Supreme Court New South Wales Medium Neutral Citation: Zintix (Australia) Pty Ltd v Employsure Pty Ltd [2018] NSWSC 924 Hearing dates: 24 November 2017 Date of orders: 19 June 2018 Decision date: 19 June 2018 Jurisdiction: Common Law Before: Walton J Decision: The Court makes the following directions: (1) The plaintiff shall file and serve within 14 days of this judgment, draft orders reflecting the judgment of the Court. In the event of any dispute as to the form of any order corresponding to the issues identified in [143] and [144] of the conclusion of this judgment, the draft orders shall be accompanied by a short written submission addressing any disputed question in that respect. (2) The defendant shall file and serve a short submission and any alternative orders proposed within 14 days of the service of the draft orders and/or submissions in accordance with (1) above. (3) Any disputed question, with respect (1) above, shall be resolved on the papers, unless, in written submissions filed in accordance with the allocated timetable, either party seeks an oral hearing. In that event, the matter will be listed for directions. Catchwords: APPEAL – contract – leave to appeal – construction of a contract is a question of law – whether a term of the contract was a penalty – relevant provision operates on breach – acceleration principle – whether a debt was owing at the time the contract was entered into – authority in O'Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 – no relevant distinction recent matter – businesslike interpretation of a contract – no express provision that an immediate debt was owed by the plaintiff to the defendant – construction of contract as a whole – notion of total fee – post execution requirements – clause found not to be a genuine pre-estimate of costs – clause found to be a penalty and therefore unenforceable – nature of services provided – no option for payment in full – no provision for early termination – impermissible to examine post-contract conduct for the purposes of construing a contract –decree for specific performance unlikely to be ordered – clause in the contract found to be a penalty – inconsistent with realistic commercial reading that a debt was immediately due – burden arises irrespective of nature of breach or service offered – provision unenforceable – appeal allowed Legislation Cited: Local Court Act 2007 (NSW) Cases Cited: AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30 Campbell Discount Co Ltd v Bridge [1962] AC 600 Co-Operative Insurance Society Ltd v Argyll Stores (Holding) Ltd [1998] AC 1 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 Doherty v Allman (1878) 3 App Cas 709 Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; [2008] NSWSC 159 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 Fermiscan Pty Ltd v James (2009) 261 ALR 408; [2009] NSWCA 355 Francis v Lyon (1907) 4 CLR 1023 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 Geeveekay Pty Ltd v Director of Consumer Affairs Victoria (2008) 19 VR 512; [2008] VSC 50 Geys v Société Genérale [2013] 1 AC 523 Gregory v Philip Morris Ltd (1988) 80 ALR 455 Hawkins v Bank of China (1992) 26 NSWLR 562 Hill v C A Parsons & Co Ltd [1972] Ch 305 International Advisor Systems Pty Ltd v XYYX Pty Ltd [2008] NSWSC 2 International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151; [2008] HCA 3 J C Williamson Ltd v Lukey (1931) 45 CLR 282 Johnson v America Home Assurance Co (1998) 192 CLR 266; [1998] HCA 14 Lamson Store Service Co Ltd v Russell Wilkins & Sons Ltd (1906) 4 CLR 672 Lumley v Wagner (1852) 1 De G M & G 604 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Network Ten Pty Ltd v Seven Network (Operations) Ltd [2014] NSWSC 274 O'Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 Page One Records Ltd v Britton [1968] 1 WLR 157 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30 Protector Loan Co v Grice (1880) 5 QBD 529 Ruddenklau v Charlesworth [1925] NZLR 161 Turner v Australasian Coal and Shale Employees' Federation (1984) 6 FCR 177 Texts Cited: I C F Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (LawBook Co, 9th ed, 2014) I Neil and D Chin, The Modern Contract of Employment (Thomson Reuters, 2nd ed, 2017) J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) J W Carter, LexisNexis, Carter on Contract (at September 2017) Category: Principal judgment Parties: Zintix (Australia) Pty Ltd trading as Italian Foods Aust (Plaintiff) Employsure Pty Ltd trading as Employsure (Defendant) Representation: Counsel: DL Cook SC and V Cha (Plaintiff) C Wood and R Perla (Defendant) Solicitors: Levitt Robinson Solicitors (Plaintiff) Milton Graham Lawyers (Defendant) File Number(s): 2017/193562 Decision under appeal Court or tribunal: Local Court Jurisdiction: Civil Date of Decision: 31 May 2017 Before: W G Pierce LCM File Number(s): 2015/191672 Judgment INTRODUCTION 1. HIS HONOUR: On 25 March 2014, Zintix (Australia) Pty Ltd trading as Italian Foods Aust ("the plaintiff"), entered into a contract with Employsure Pty Ltd trading as Employsure ("the defendant"). The contract was in electronic form (executed on an iPad) and titled "Contract for Services" ("the contract"). The contract had dual logos in its heading, one of which was that of QBE Insurance (Australia) Ltd ("QBE"), a large insurer, and the other that of the defendant. The defendant was a company that operated a business of providing industrial relations or employment relations and work health and safety related services. The Contract 1. The contract was divided into four major sections, each headed with the following titles: 1. "The Client"; 2. "The Service"; 3. "Payment Schedule"; and 4. "Further Terms". 1. The first section recorded only basic information regarding the client and is uneventful for the purposes of these proceedings. 2. The second section provided, by a means of hollow bullet points, a series of services offered by the defendant which the plaintiff may accept (in which case an entry was made within the bullet point to indicate acceptance). The section provided for new and renewal services. It would appear that the first three services offered were standard to the contract whereas the fourth and fifth services were optional. 3. The first three services (numbered in that fashion), offered in the contract (which were nominated by the plaintiff) were as follows: 1. Assessment of terms and conditions of employment and working relationships, the preparation of key employment documentation and stationary. 2. Updating of documentation as a result of new legislation or changes to contractual terms. 3. 24 hour hours a day, 365 days per year telephone advice on all workplace relations matters. 1. The fourth option was also selected by the plaintiff and was in the following terms: 4. Fair work cover – employment advice and practice indemnity – covering representation, awards and settlements incurred in resisting workplace relations claims resulting from an incident occurring after the date of this contract. The cover provided by the Fair work cover – employment advice and practice indemnity is subject to policy terms and conditions which are set out in the Policy. Please refer to the Policy for full terms and conditions as well as the limits and exclusions to the cover to decide whether this insurance is right for you. 1. The plaintiff correctly described this as a "bolt-on" option for Fair work cover provided by QBE. In this case, although the insurance option was marked, the payment schedule showed no premium was included in the total fee for the services. No policy was pleaded by the defendant as to the formation of the contract in that respect. Accordingly, it is the first three services that were the consideration offered by the defendant. 2. The next section of the contract was described as the "Payment Schedule". By that section of the contract, reference was made to the number of employees of the plaintiff, the total wages bill of the plaintiff for the last financial year and under a subheading "Contract Period and Installment [sic] Details" terms for the contract. This subheading had a series of subsidiary headings which, together with the entry appearing in the contract, were as follows: SUBSIDIARY HEADING ENTRY BY THE PLAINTIFF Initial Contract Period: 5 Year(s) Total Fee: $18,000 Ex GST Insurance Premium included in fee: (There was no entry by the plaintiff) Payable In 60 Instalments of $ 300 +GST Due (The plaintiff elected for "monthly") (with corresponding bullet points: "monthly", "quarterly" and "annually") 1. Given the significance of this section of the contract, I extract below (albeit with a reduced quality through copying) the terms of that schedule as it actually appears in the contract: 1. The final section of the contract was entitled "Further Terms". It sets out the terms of the contract in six clauses (a)-(f). The provisions of clauses (a)-(c) feature in these proceedings. Those provisions are set out below: a. The contract shall be for the duration of the initial contract period, with no provision for early termination. It shall continue automatically thereafter for the same period, unless terminated by either party giving a minimum of six months written notice to expire at the end of the initial period or any subsequent renewal period. b. Time for payment of the instalments shown in the Payment Schedule together with the Service, shall be the essence of the contract. c. Failure to adhere to the above payments will result in the total balance outstanding becoming payable immediately in full. 1. The plaintiff used services provided for within the contract and made a number of monthly instalment payments pursuant to the contract. It then ceased making those payments in November 2014 (save for two payments in April and May 2015). The defendant contended, but I will later reject, that services were provided to the plaintiff after that time. The Claim in the Court Below 1. By an amended statement of claim filed on 21 October 2015, the defendant commenced proceedings in the Local Court and sought, inter alia, damages. It pleaded that the plaintiff entered into a contract with the defendant whereby the plaintiff agreed to pay the defendant a specified rate for the supply of employment relations and work health and safety related services. It pleaded that the defendant agreed to pay the sum of $18,000 exclusive of GST in exchange for the services and that the contract fee was payable in "60 instalments" (each instalment in the sum of $300 plus GST and due and payable monthly). 2. The defendant further pleaded that between 25 March and 4 August 2014 the defendant provided the services to the plaintiff and that the plaintiff made payments between 1 April 2014 and 1 May 2015. The defendant pleaded a breach of contract in that the plaintiff failed to pay the instalment amounts due and claimed that "as at 1 June 2015 the amount of $18,463.20 was due and payable by the [plaintiff] pursuant to the contract". The particular relied upon in that respect was cl (c) of the fourth section of the contract entitled "Further Terms". (I note that the defendant contended that, in the proceedings below, it had opened upon the basis that the defendant sued the plaintiff for the balance of monies owing under the contract and made a claim for a debt owing. This submission is commensurate with the submission advanced on the appeal but the same may not be said of the pleadings). 3. The matter was heard by Local Court Magistrate W G Pierce who delivered his reasons for decision in his primary judgment on 31 March 2017 and further reasons for decision with respect to the incorporation of GST, costs and interest on 31 May 2017. In the latter judgment, his Honour ordered the plaintiff to pay the defendant the sum of $16,800 plus interest (together with an order for costs). 4. There were a number of issues ventilated in the primary proceedings before his Honour but the central issue, and the one that will occupy the determination of this Court, was whether the provisions of cl (c) of the "Further Terms" section of the contract gave rise to a penalty and was ultimately unenforceable. There was also an issue as to whether the plaintiff's claim was for a debt or liquidated damages; which accounted for a significant portion of the Court's reasoning below. 5. Whilst Pierce LCM considered the operation of clauses (a)-(c) of the "Further Terms" in the context of the entire contract, he ultimately concluded that cl (c) of the "Further Terms" was an acceleration clause because the contract gave rise to an immediate debt of $18,000, the payment of which was postponed pursuant to an arrangement for 60 instalments. He found that the reality was that "the primary obligation" which fell on the plaintiff was to "pay the total amount, and to meet the full 60 instalments as they fell due. To require the whole to be met on the failure of one or more payments is not to impose a separate collateral or accessory stipulation, but to simply require the [plaintiff] to meet the primary stipulation itself". Clause (c), his Honour found, was "not a penalty because it is an acceleration clause, and because there is nothing to indicate it was intended as a deterrent or a punishment". 6. Pierce LCM determined that the defendant was entitled to "liquidated damages" and an amount that would compensate it for the plaintiff's "breach". That was found to be the remaining value of the contract which his Honour estimated to be (having regard to a concession that GST was not payable) $16,800 plus interest. The Appeal before this Court 1. By a summons filed on 28 June 2017 ("the summons"), the plaintiff sought leave to appeal and, if granted, appeal from the whole of the decision below. The plaintiff sought that the judgment below be set aside and that, in particular, the orders made 31 May 2017 be set aside with a verdict and judgment in favour of the plaintiff with costs. 2. It is unnecessary to set out the particular grounds of the appeal as, to the extent applicable, they will be traversed in the consideration of the issue raised for adjudication on the appeal, namely whether upon the proper construction of the contract, cl (c) gave rise to a penalty or not. The counterpoint question raised by the defendant was whether the clause was an acceleration clause (hereinafter, collectively, referred to as "the issue"). The parties agreed that it was unnecessary to consider Pierce LCM's conclusions which travelled beyond those matters into the territory of debt and liquidated damages. (It may be noted that the plaintiff did not press ground 4 concerning a finding by the Court below that oral notice of the terms of the contract was given by the defendant and ground 6 concerning the amount of ordinary and indemnity costs ordered by the Court below). 3. As mentioned, the plaintiff sought leave to appeal. However, in the plaintiff's written submissions this order was sought only in the alternative pursuant to s 40 of the Local Court Act 2007 (NSW). 4. The plaintiff correctly submitted that the construction of a contract which lay at the centre of the issue raised on the appeal was a question of law (see Francis v Lyon (1907) 4 CLR 1023 at 1040 and Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 ("Cripps") at [46] per Santow JA with whom Mason P and Brownie AJA agreed). As such s 39 of the Local Court Act gave the plaintiff a right of appeal. (The defendant accepted this was the case although suggested that the appeal may constitute a mixed question of fact and law). 5. Pierce LCM characterised the construction of a contract and, in particular, whether the clause was a penalty as a question of fact. Nothing turns upon this finding but I note that it was erroneous: see Cripps at [46] and J W Carter, LexisNexis, Carter on Contract (at September 2017) at [12-010]. 6. Prior to addressing the submissions of the parties as to the issue, I will turn to the decision below. However, it should also be observed, at this juncture, that the judgment of the High Court in O'Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 ("O'Dea") featured predominantly in the respective contentions of the parties (I will return to a discussion of that authority below at [41]-[86] of this judgment). THE DECISION BELOW 1. In reliance upon the judgment of the High Court in Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30 ("Andrews"), Pierce LCM stated that, generally, a stipulation is a penalty if, collateral to the failure of a primary stipulation, it imposed an additional detriment as a "collateral or accessory stipulation". His Honour found that it is a primary stipulation if the whole debt was due and payable at the time of contracting with the payment postponed. The provisions of cll (a)-(c) of the section entitled "Further Terms" in the contract only imposed a primary stipulation and not an "additional detriment as a collateral". 2. The Court below recognised that a requirement to pay all 60 monthly payments on breach of an obligation to pay just one would raise "a strong suspicion that it was grossly disproportionate" and, therefore, raised a question as to whether the clause was "nothing more than a deterrent against breach". However, the obligation to make a payment of the whole in the present case, it was found, was the operation of an acceleration clause. 3. His Honour recognised that because of the nature of the contract examined in O'Dea, "it was not easy to distinguish [that judgment] from the present matter". 4. The Court below considered the judgment of the then Chief Justice in O'Dea (at [5] and [6]) and, in the course of doing so, identified what became a principal basis for the Magistrate distinguishing that decision. That passage from the judgment below was as follows (at 9): Gibbs C.J. [9] found that the clause in question was not an acceleration clause. His Honour concluded that clause 1(a) read alone might have that effect, but read with other clauses (those providing for monthly payments and the whole due for unexpired terms on breach) it amounted to a penalty. One of those clauses permitted the leasing company to take back the truck, and plainly that provision heavily influenced his Honour in reaching a view that the clause was not an acceleration clause. It similarly influenced Brennan J [15]. 1. As I will discuss momentarily, I do not consider that this passage from the judgment below properly reflects the judgment of Gibbs CJ in O'Dea. Nor does it properly understand the judgment of Brennan J in the same decision. 2. Pierce LCM then turned to the question of the significance of a breach of contract in determining whether a provision was a penalty clause. His Honour observed that Gibbs CJ's judgment at [6] might give the impression that, in a case of breach of contract, "the provision in question will always be a penalty unless it is a genuine pre-estimate of loss". However, his Honour then concluded that Gibbs CJ in AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 ("AMEV-UDC") at [4] "had made it clear that, in the case of breach, a provision of a contract will be a penalty only if the party enforcing the clause itself terminates the contract because of the other party's breach". Pierce LCM continued (at 9): Where that other party simply breaches the contract itself by stopping payments, as occurred in the present matter, it will be less easy to conclude that the clause is a penalty. 1. It is not clear from the judgment below how the judgment of Gibbs CJ in AMEV-UDC may support such a conclusion. In that matter, a hirer of equipment, in breach of its contract, but without repudiating it, failed to pay instalments of hire when due. The owner exercised a contractual right to determine the hiring and claimed under the terms of the contract a right to recover not merely unpaid instalments with interest but the whole unpaid balance of the total hiring charges and the residual effects specified under the contract less the proceeds of sale of equipment. In that context, Gibbs CJ held (at 174): It was held in the Supreme Court, on the authority of O'Dea v Allstates Leasing System (WA.) Pty. Ltd, that the provision requiring the lessee to pay the full balance of the unpaid rent to the appellant was in the circumstances a penalty. Before us it was conceded that this conclusion was correct, as it clearly was. [Footnote omitted.] 1. It may also be noted that a distinction of the kind referred to by Pierce LCM was discussed by Gibbs CJ in O'Dea but only in relation to a contract of a different character to the one here under consideration, namely, in O'Dea, a particular class of contract where a sum became payable on a certain event vis-à-vis a hire purchase contract (see at [51] of this judgment). 2. It was in this light that Pierce LCM found that, upon reading of the contract as a whole, "it was apparent that there was an agreement to pay a total sum of $18,000.00, with payment merely postponed pursuant to an arrangement for 60 monthly instalments, which militates in favour of viewing the provisions as an acceleration clause" (at 9-10). 3. His Honour then turned to the distinction between the primary and collateral obligations or stipulations and made the following finding: Moreover, it would be surprising if in the present circumstances the obligation to pay the whole could operate as a penalty. I find the reality is that the primary obligation on the defendant was to pay the total amount, and to meet the full 60 instalments as they fell due. To require the whole to be met on the failure of one or more payments is not to impose a separate collateral or accessory stipulation, but simply to require the defendant to meet the primary stipulation itself. Not being a collateral or accessory stipulation it follows that it does not answer the definition of a penalty approved in Andrews [10] and referred to by Mr. Perla at [43]. (The reference to 'Andrews' in this passage is a reference to Andrews at [10]). 1. Further, his Honour held (at 11): The contract in the present matter provides in its own terms not only that on default it becomes due and payable but also, as appears from the first page, that it was characterised expressly as a total amount ($18,000.00) although payable by instalments. I find that it was an accrued and due debt, with payment postponed. 1. Pierce LCM found that "in a quite real sense there is a debt owed, but [the defendant] does not sue for debt". Later, his Honour opined that, although the claim in the matter before him "speaks in a general way of debt" it was not a claim for debt but rather one for liquidated damages. 2. As the plaintiff correctly submitted, the Magistrate must have appreciated the tension between concluding that the obligation to pay $18,000 was a debt accrued upon the entering into the contract for the purposes of deciding whether the clause was a penalty or an acceleration clause but then rejecting the argument that the claim was one founded in debt and not liquidated damages. This resulted in a form of reconciliation by the Court below which both parties eschewed in their arguments on this appeal (at 15-16): I find that when the contract was entered into there was a debt owing for the whole, with payment postponed to monthly instalments. I make that finding simply because in its own language that is what the contract provides. On breach, that debt ceased to exist and was replaced by a right to liquidated damages. I find that references to debt in the Further Claim are a reference to the crystallised debt for the whole which would form the basis of those damages, but that they are apt also to pick up the general nature of the obligation owed as one of debt, even though the remedy is damages. In my view, while the plaintiff in the present matter was required to and did correctly sue for liquidated damages, the whole fell due and payable and thereby, forming the basis for the damages, evidences a fresh debt. 1. That reasoning lead to the well-founded critique by the plaintiff of that aspect of the first instance judgment which is reflected in my reasoning in the next paragraph of the judgment. The plaintiff's contention is also relevant to the ultimate conclusion reached in this judgment that the Magistrate erred in finding that cl (c) was an acceleration rather than a penalty clause. 2. The difficulties with the reasoning of the Court below as extracted in the preceding paragraphs are as follows: 1. If there was a debt for the whole $18,000 at the time the contract was entered into, neither a breach nor even a termination of the contract, would cause the debt to cease to exist. Termination of a contract does not affect accrued rights: McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 at 476-477. 2. To the extent that cl (c) gave rise, upon breach, to a "fresh debt", it was then necessary to consider whether cl (c) was a genuine pre-estimate of damages or a penalty. However, Pierce LCM failed to consider that question at all. 3. For the same reasons set out in O'Dea (at 369), there could not be any suggestion that the measure of damages in this instance was a genuine pre-estimate of the defendant's losses. Given the nature of the services that had to be provided (and the insurance cover to be provided), it could not sensibly be argued that the entire fee was necessary to compensate the defendant if the contract was terminated at an early stage, as it was. No evidence was led to show otherwise (nor was any contention adduced by the defendant to justify such a conclusion). SUBMISSIONS OF THE PARTIES The plaintiff 1. In summary, the submissions for the plaintiff were as follows: 1. Looking at the contract as a whole, it is clear that the contract did not give rise to an immediate obligation on the part of the plaintiff to pay the sum of $18,000 at the moment it entered into the contract. 2. The premise that the Magistrate proceeded from was that the contract gave rise to an immediate debt of $18,000, payment of which was postponed. This appeared to be derived from the provisions of the contract which refer to a total fee of $18,000 payable in 60 instalments. The conclusion was incorrect. 3. This was not a contract of loan nor a settlement agreement – it was a contract for services to be rendered by the defendant over a period of 5 years. 4. This contention was supported by the manner in which the services to be provided under the contract were specified in the contract itself as follows: 1. the first service was to be provided subsequent to the entering into the contract; 2. the second service envisaged ongoing services for the duration of the contract; 3. the third service required the defendant to provide a 24 hours a day, 365 days a year service for the duration of the contract; and 4. the fourth service was to be provided for the duration of the contract and included an insurance component for the duration of the contract. 1. There could be no sensible suggestion that, prior to the defendant rendering any of the services, the plaintiff had become indebted to the defendant in the sum of $18,000. 2. As to the judgment of the High Court in O'Dea, it was submitted: 1. The High Court's reasoning in O'Dea was apposite to the contract in the present matter and Pierce LCM erred in distinguishing that judgment. 2. The only basis upon which the plaintiff could become obligated to pay immediately the amount of $18,000 (or the balance of that amount) and not on the basis of the instalments was if the plaintiff breached the contract. This is precisely what the contract before the High Court in O'Dea provided. 3. Based on the reasoning of the judgment of Gibbs CJ in O'Dea (at 369), cl (c) of the "Further Terms" section of the contract had to be "a liquidated damages clause". 4. Pierce LCM was wrong to distinguish O'Dea on the basis that the contract in O'Dea provided for the return of a truck and that this factor was instrumental in the decisions of Gibbs CJ and Brennan J in O'Dea. 1. There was no present obligation under the contract to make an immediate payment of $18,000 because there was no basis upon which the plaintiff could have become indebted to the defendant for $18,000 at that time. The defendant 1. In summary, the defendant submitted as follows: 1. Pierce LCM was correct in his findings and construction of the contract as one containing an acceleration clause. The Magistrate was correct to distinguish O'Dea. 2. The question of whether a contractual provision amounted to a penalty depends on all the surrounding circumstances existing at the time of the making of a contract as well as the terms of the contract itself. 3. The words on the pages of the contract are not depositive of the issue because it is necessary to look at the substance of the arrangement which included a background as to the service offered. 4. If a sum of money is payable by instalments and it is provided that, in the event of one instalment not being punctually made, the whole sum shall immediately become payable, the acceleration payment is not a penalty. 5. The essence of the contentions advanced on behalf of the defendant were expressed in the following passage of the defendant's written submissions (excluding references to the plaintiff's submissions and footnotes): The question is not (as Zintix submits) whether Employsure had done anything at the time of entering into the Contract to "earn" an entitlement of $18,000. Total failure of consideration was never pleaded; this was a contractual debt. The substance of the Contract was that Employsure would provide the services during the contract period and that Employsure was to be paid $18,000, albeit by instalments. This was not a contract by which Employsure would render a service and then get paid for that service. Employsure was entitled to the money when the ink dried; it did not need to further "earn" its fee. Put another way, even if Employsure had not been called upon by Zintix to provide any of the services that it undertook to provide over the contract period, Zintix was still liable to pay the contract price. That was the deal, and the parties are bound by what they signed. 1. The present contract can be distinguished from a contract for the supply of goods for a price to be paid on delivery which is an executory contract in which the buyer has agreed to pay the price in return for the goods – not for the seller's promise to supply the goods: Geeveekay Pty Ltd v Director of Consumer Affairs Victoria (2008) 19 VR 512; [2008] VSC 50 ("Geeveekay") at [74] (per Bell J). Rather, it is analogous to a contract that requires the buyer to make payments before consideration or full consideration has passed. 2. Unlike the circumstances in O'Dea, the "Payment Schedule" in the contract did not contain a stipulation that the contract price was exigible upon an event of breach of contract. The reality was that the contract price was due and payable regardless of a breach of contract by the plaintiff. The debt was due and payable and the plaintiff obtained a right but not an obligation to use the services. The very nature of the services that were provided by the defendant leant themselves to such a construction. 3. The services provided were in the nature of "on demand services" where a client may never choose to contact the provider after the initial assessment. The client received a bundle of offerings for a period which can be used or not used but the price operated for the whole of the period. 4. There was nothing commercially "unreal" about that arrangement. The plaintiff sought to raise a positive defence below that the defendant had ceased to provide services after the termination of that contract but that was never made out on the evidence. The Court below found that, on the pleadings, there had been an admission of a provision of some services and, therefore, there was no failure of consideration. Even though the contract may be terminated, the defendant was contractually obliged to provide the services because the breach by one party of the contract did not relieve the other party of an obligation to comply with it. In substance, the plaintiff was required to pay the whole of the monies required on breach but that did not alleviate the defendant's obligations to provide the contractual services. 5. O'Dea was distinguishable upon the facts and circumstances of the respective matters. In O'Dea the contract provided that, upon breach, the customer's right to retain and use a truck terminated. The O'Dea contract could not be one for a single debt, payable at the start of the contract, but deferred, unless the customer in breach could keep the truck for the whole contract period, even if in default. 6. The reason why a clause in the contract in the O'Dea matter (cl 12 and not cl 1(a)) fell outside "the acceleration exception" and was thereby a penalty clause was because the subject clause required not only repayment of monies due in full but the return of the "goods", namely the truck. This changed the nature of the payment obligation. In those circumstances, the arrangement could not be in the nature of a "rental" because the things rented are no longer held by the renter and there was a penalty "because I am going to take the goods back but I will have my price as well". The renter still had to pay for the truck but no longer had possession of it. What the then Chief Justice was dealing with was: "how can it be the entire rental if you don't get to keep the thing you're renting for the entire period". That is why the "rental" is important. The first respondent was entitled to recover such of the unpaid instalments as were due before it took repossession and this was critical to the reasoning in O'Dea. 7. In reliance on the judgment of Brennan J in O'Dea (at 386), if the contract simply required the lessee on default to pay what it was already bound to pay in performance of the agreement, the acceleration provisions could not be held to be a penalty. 8. In the present case, the contract price was due and payable upon the entering into the contract. The defendant was obliged to provide the services, if requested, for the entire five years and there was no early termination regime. It was an absolute obligation to pay the contract price. Thus, in O'Dea, the leasing company had the ability to recover both the hire vehicle and the remainder of the payments being owed in full. No such provision is found in the present contract and the evidence established that upon default of payment by the plaintiff, the defendant continued to provide services under the contract. 9. In this case, the critical point of distinction is that "the contract is still alive" and services are still being used or available because the defendant did not deprive the plaintiff of access to the services. The question of the return of the truck was the core reasoning of four out of five of the justices in O'Dea. 10. The contract referred to total fee and it is styled in the form of an indulgence being so many instalments but it is a five year arrangement and thus the $18,000 is the contractual consideration. It is not penal it is just a price. 11. Even if Pierce LCM wrongly characterised the contractual obligation, it makes no difference to the conclusion. 12. A further point of distinction in the present case is that the contract did not provide for a month to month rent, but rather a monthly, quarterly or annual rental. That underscores the fact that the whole amount is the "contractual consideration". A client may elect to make a manual payment which constitutes a single payment. THE AUTHORITY IN O'DEA 1. As earlier mentioned, O'Dea featured predominantly in the respective contentions of the parties. The judgment in O'Dea concerned an appeal from the Supreme Court of Western Australia. Mr and Mrs O'Dea and a Mr and Mrs Granich traded as cartage contractors. They entered into an agreement with the first respondent to the proceedings for the hire of a truck for the period of 36 weeks resulting in the entire rental being about $39,000. 2. Clause 1(a) of the agreement stated that the lessor, the first respondent, leased to the lessee and the lessee took on the lease of the truck as follows: ... upon the terms and conditions hereinafter contained for a period of 36 months at an entire rental of $39,550.32 which shall be due by the LESSEE to the LESSOR upon the signing of this Agreement PROVIDED THAT if the LESSEE shall duly observe and perform all and singular the covenants and conditions on the part of the LESSEE herein contained or implied and if the LESSEE shall duly and punctually pay on account of such entire rent the following instalments on the days following namely:– The sum of $1098.62 per month commencing on the 13TH day of APRIL 1977 up to and including the 13th day of MARCH 1980 ... THEN the LESSOR shall not demand or seek to enforce payment of the entire rent or any balance thereof outstanding otherwise than by the said instalments. [Emphasis added.] 1. By cl 6(a) of the agreement, the lessee agreed duly and punctually to pay the lessor instalments of rent on the days set forth in cl 1(a) (at 364). 2. Clause 12 of the agreement also required attention in the context of the contentions advanced in these proceedings (and the identification of the ratio in O'Dea). It was in the following terms: In the event that the LESSEE defaults in the punctual payment of any of the instalments of rent as herein provided or in the payment of the insurance premiums as herein provided or defaults in the performance of any of the terms and conditions of this agreement, the LESSOR may immediately retake possession of the vehicle in respect of which such default has occurred, without notice to the LESSEE, with or without legal process, and the LESSEE hereby authorises and empowers the LESSOR to enter the premises or other places where the said vehicle may be found and take and carry away the said vehicle, and, in such eventuality, the LESSEE'S right to the retention and use of the said vehicle shall terminate. All moneys due for unexpired terms shall become immediately due and payable, plus reasonable costs of repossession. Provided that the LESSOR at its option may lease the leased vehicle for the account of the LESSEE for the remainder of the term and should the rental therefrom be less than that provided herein the LESSEE shall pay the deficiency. Nothing herein shall release the LESSEE from the obligation to pay the rent as herein provided for the unexpired balance of the term of this agreement plus reasonable costs of repossession. [Emphasis added.] 1. Clause 31 of the agreement required the lessor, on receipt of the vehicle on repossession, to sell the vehicle for the best price it could reasonably obtain and the lessee agreed to pay, by way of indemnity, for the capital loss of the amount by which the appraisal value stated in the schedule to the agreement exceeded the disposal price after allowing for costs and expenses of disposal. The appraisal value was stated at about $13,300. 2. The lessee took possession of the vehicle and paid rent totalling about $8,000 representing the first seven monthly instalments and part of the eighth instalment but paid no rent thereafter. The truck was repossessed and sold for $20,000. To take possession, the lessor had to pay a sum to a company which had a lien on the vehicle for repairs. The lessor sought to recover a sum representing the difference between the entire rent and the instalments paid plus interest and the amount paid to discharge the lien debt. The Court held that the lessor was not entitled to recover the balance of the entire rent. 3. Gibbs CJ, Wilson and Deane JJ came to that conclusion because the claim constituted a penalty; since it arose upon the breach by the lessee of the terms of the lease and the amount the lessor was entitled to receive was excessive in comparison with the greatest loss the lessor could possibly suffer. I will address each judgment in turn, as well as that of Brennan J, commencing with the then Chief Justice. Gibbs CJ 1. His Honour observed that the lessee claimed that the terms of the agreement were unenforceable as a penalty. The first respondent contended that the rules which distinguished between a penalty and liquidated damages were inapplicable as the first respondent was suing for the consideration payable under a contract and was not seeking to recover a sum in the event of a breach by the lessees of their contractual obligation. As a result, "the question whether the amount payable was a genuine pre-estimate of damage did not arise" (at 366). 2. Gibbs CJ considered that the authorities relied upon by the first respondent to establish that no question of a penalty arose fell into two classes. The first such class was described in the following terms (at 366-367): In the first class of case, if a sum of money is payable by instalments, and it is provided that in the event of one instalment not being punctually paid the whole sum shall immediately become payable, the acceleration of payment is not a penalty: The Protector Loan Co. v Grice; Wallingford v Mutual Society. Similarly there is no penalty where it is agreed to charge a certain rate of interest on condition that if payment is made punctually the rate will be reduced (Astley v Weldon) or where a creditor agrees to accept payment of part of his debt in full discharge if certain conditions are met but stipulates that if the conditions are not met he will be entitled to recover the original debt: Thompson v Hudson; Ex parte Burden; In re Neil. In all the cases of this kind there is a present debt, which, by reason of an indulgence given by the creditor, is payable either in the future, or in a lesser amount, provided that certain conditions are met. The failure of the conditions does not mean that the creditor becomes entitled to damages; the consequence is that the sum which was always owed, but which the debtor was allowed to pay by instalments or in a smaller amount, becomes recoverable at once or in full. [Footnotes omitted.] 1. The defendant correctly described this class as the "true acceleration" class deriving in its earliest form from the Protector Loan Co v Grice (1880) 5 QBD 529. 2. The second class to which Gibbs CJ referred concerned circumstances where the sum stipulated became payable on a certain event. His Honour also considered in those circumstances whether the requirement arose in consequence of a breach of contract. His Honour's judgment in that respect was as follows (at 367): The second class of case arises where the parties have stipulated that a sum shall become payable on a certain event which, although brought about by the party required to make the payment, does not involve a breach of contract. It has been held that where there is a contract for the payment of a certain sum in a certain event, and that event has happened, the sum is payable and no question of penalty versus liquidated damages arises: In re Apex Supply Co.; Alder v Moore. Difficulties have arisen in the application of this principle to contracts of hire purchase which provide that in the event of termination a sum representing all or part of unpaid instalments will be paid by the hirer to the owner. There was some controversy as to the position when the owner's right to terminate the contract and receive payment arose on the happening of any of a number of events, some of which were breaches and some of which were not, but it has now been settled in England that in such a case where the agreement is terminated by reason of a breach committed by the hirer, the sum payable will be a penalty unless it is a genuine pre-estimate of the loss suffered by the owner by reason of the breach: Cooden Engineering Co. Ltd v Stanford; Campbell Discount Co. Ltd v Bridge; Financings Ltd v Baldock. I respectfully agree with that conclusion. [Footnotes omitted.] 1. After turning to some general principles, to which I will return, his Honour considered the case before him, the discussion of which commenced as follows (at 368): In the present case, the event upon which the outstanding balance of the instalments became payable was a breach by the lessee of its obligations, under cl. 6(a), duly and punctually to pay the instalments of rent on the days set forth in cl. 1(a). The present case therefore does not fall within the second class of cases on which the first respondent relied - it is not a case in which under the contract money became payable on a certain event which was not a breach of the contract. On the contrary, the reasoning in such cases as Cooden Engineering Co. Ltd. v. Stanford and Campbell Discount Co. Ltd. v. Bridge supports the conclusion that the provision requiring payment of the balance of the rent is a penalty, unless of course it can be said to be a genuine pre-estimate of damage. 1. It is evident from that passage of the judgment that his Honour was not concerned with the second class of cases to which he referred but one concerning a breach of the lease. Nor was his Honour dealing with the first class of cases providing for the acceleration of a presently existing debt (see at 368). 2. The conclusion his Honour arrived at came from a consideration of the operation of cll 1(a), 6(a) and 12 of the agreement when read together. That component of his Honour's judgment is significant in the present proceedings and will be set out in full below (at 368-369): Nor, in my opinion, is the present case within the first class of cases cited by counsel for the first respondent. The contract did not, in my opinion, merely provide for the acceleration of a presently existing debt. In the argument for the first respondent much reliance was naturally placed on the provisions of cl. 1(a) of the contract, and it was said that the first respondent's claim was based entirely on that clause, and could succeed even if no breach of the contract were proved. If cl. 1(a) was read in isolation, it might create a present debt for the entire rental, although it would allow the lessee the indulgence of paying the sum due by instalments, provided the payments were duly and punctually made. In other words, there might then be debitum in praesenti, although selvendum in futuro, and, if so, such authorities as The Protector Loan Co. v Grice would apply. But the contract must be viewed as a whole, and not in fragments. When cll. 1(a), 6(a) and 12 are read together, it becomes apparent that at the date of the contract there was no presently existing obligation to pay the entire rental. The obligation was to pay the instalments, and if there were a default in payment of the instalments the whole became payable. The clauses, read together, had the effect that the entire rent only became payable in the events specified in cl. 12 - including default in punctual payment of the instalments. In the circumstances of the present case the obligation to pay the entire rent arose only by reason of a breach, and the amount which the contract makes payable in that event is either a penalty or liquidated damages. [Footnote omitted.] 1. This passage from his Honour's judgment represents a plain difficulty for the defendant's case. 2. Clause 1(a) of the agreement considered in O'Dea provided that the entire rental was due and payable by the lessee upon the signing of the agreement, albeit that payment was deferred upon the lessee making punctual payment of instalments on account of the entire rent. Gibbs CJ concluded that, read in isolation, that clause may create a present debt for the entire rental, even though the lessee was granted an indulgence for paying the sum by instalments. However, when cll 1(a), 6(a) and 12 of the agreement were considered together, no presently existing obligation to pay the entire rental arose in that case. The obligation was to pay the specified instalments and, in the event of default, the whole became payable. Hence, the entire rental only became payable in the events prescribed in cl 12, that is, the obligation to pay the entire rent arose only by reason of breach, thereby making the amount which the contract made payable in that event either a penalty or liquidated damages. 3. In the contract here under consideration, unlike the terms of cl 1(a) of the agreement in O'Dea, there is no express wording that the entire sum entered against the words "Total Fee" in the "Payment Schedule" section of the contract is due and payable upon the execution of the contract, save that an indulgence would be given to make instalments on certain basis. I will ultimately find that, upon proper construction, the contract does not give rise to an immediate debt upon execution which was payable in the future. 4. But even if the provisions of the contract other than cl (c) of the "Further Terms" section were to be construed, having regard to the circumstances addressed by the contract, as giving rise to a present debt for the entire fee upon the execution of the contract (contrary to my later findings), in my view, cl (c) (described in argument as the "third Further Term") operated indistinguishably from the counterpart provision of cl 12 of the agreement in O'Dea (albeit in a context where the terms of cl 1(a) were arguably much stronger in providing for an immediate debt than any provision of the contract) because that provision provided that any obligation to pay the entire fee only arose by reason of breach. To apply the reasoning of the Chief Justice, the obligation was to pay instalments and, if there was a default (the language in cl (c) is "failure") the whole became payable. 5. The substance of the contract is to provide for a significant sum of money to be paid upon breach which, akin to the circumstances in O'Dea, was unrelated to compensation for loss which the defendant may suffer on the premature termination of the contract as it is due irrespective of nature of the breach or when it occurred (and other factors discussed later in this judgment in ruling the clause is in the nature of a penalty provision). The fact that payments may be available on a monthly, quarterly or annual basis does not affect the operation of those principles but raises other questions discussed below. 6. As the plaintiff correctly contended, there is a two-fold question where a penalty provision arises for consideration namely, if the clause provides for a breach and a breach arises, is the clause simply a penalty or one in which there is a genuine pre-estimate of damages (as discussed in the aforementioned extracts from the judgment of Gibbs CJ). The defendant did rely upon later passages from the judgment of Gibbs CJ (see, for example, at 373, 374 and 375) but I agree with the plaintiff that the defendant's contentions failed to apprehend this distinction in a case of a penalty. Thus, there appears the then Chief Justice's judgment, immediately following the last extracted passage above the following (at 369): Counsel for the first respondent did not dispute that if the question whether the sum was a penalty or liquidated damages falls for decision the sum must be held to be a penalty. 1. His Honour explained that acceptance by counsel for the first respondent in O'Dea on two bases. The first was that the outstanding balance of the entire rental could not, in the circumstances, possibly represent a genuine pre-estimate of loss which would be caused to the first respondent by a breach of contract. Significantly, in terms of a further argument advanced by the defendant in this matter vis-à-vis a distinction drawn in relation to the capacity under the provision of cl 12 of the agreement in O'Dea to repossess the truck, the second basis was that the first respondent was, in the case of a breach, entitled to repossess and sell the vehicle but it was not bound to account to the lessee for any amount received on a re-sale, even if it exceeded (as it did) the appraisal value. In other words, that issue was relatively connected to the issue of a genuine pre-estimate of loss. 2. The defendant placed reliance upon the passage of the judgment of the then Chief Justice where his Honour observed that whether a contractual provision amounts to a penalty depends on all the surrounding circumstances existing at the time of the making of a contract as well as the terms of the contract itself and that "it is therefore not always possible to apply a decision given upon one contract to another case even though that case concerns a contract in identical terms" (at 373). His Honour was there dealing with the reliance placed in O'Dea upon Lamson Store Service Co Ltd v Russell Wilkins & Sons Ltd (1906) 4 CLR 672 ("Lamson Store") (which was not followed by his Honour and two other judgments of the Court) but the principle is applicable in the present matter. 3. However, neither that passage nor a later passage (at 374) relied upon by the applicant (where the then Chief Justice referred to the first respondent being entitled to recover such unpaid instalments as were due before it took repossession of the vehicle and such damages as may be proved to have been occasioned by the breach) warrants a conclusion that the distinction sought to be drawn by the defendant vis-à-vis the capacity under cl 12 to repossess the truck (in addition to recovering the entire rental) between the judgment of the then Chief Justice in O'Dea and the present matter is available for two reasons. 4. First, as the then Chief Justice observed, The Procter Loan Co v Grice only applied where there was a present debt, that is "a debt actually due before the breach which accelerated the payment" (at 374). He found that the provisions of the contract which required payment of the entire rent upon breach amounted to a penalty and, therefore, the first respondent's claim could not succeed. Those findings did not depend upon the provisions of cl 12 of the agreement considered in O'Dea providing that, as a consequence of a breach, the first respondent had available under the contract both the repossession of the vehicle as well as the recovery of the entire rental. 5. Secondly, for the reasons I have given, the consideration by his Honour of the repossession the truck did not influence his determination as to the nature of cl 12 of the agreement in O'Dea. Rather, it was a factor going to whether the sum payable under the contract was a penalty or liquidated damages. There was no dispute in O'Dea that, if an immediate debt was not found to exist, the sum payable under the agreement was a penalty because the sum did not represent a genuine pre-estimate of loss. 6. The repossession of the vehicle was relevant in that context – the Court having found that the contract did not provide for a present debt. For example, his Honour had regard to whether the first respondent in O'Dea became entitled under the contract to receive accelerated payments of the rental without any rebate and to receive back the vehicle sooner than would otherwise be the case without giving credit for its value and in circumstances where the amounts received by the first respondent were manifestly excessive in comparison to its greatest loss (at 369). Wilson J 1. Next, I turn to the judgment of Wilson J. 2. The passage relied upon by the defendant, which appears in italics in the extract from Wilson J's judgment below (at 382-383) does not, in my view, assist the defendant: It seems to me that Lamson Store is an authority applicable to this case only if Allstates' claim proceeds on the basis that cl. 1(a) established a present liability in the lessee for the entire rent subject to an indulgence in the form of a proviso permitting payment by instalments and that default in the payment of those instalments entitled the lessor to withdraw that indulgence and sue immediately for the entire rental. Such a cause of action might well be established by reference solely to cl. 1(a) of the agreement. The question of penalty or liquidated damages would not then arise. But it is quite clear that Allstates' claim did not proceed on this basis. If it had done so, there would have been no question of repossession of the vehicle. The obligation to pay an entire rent supplies the consideration for a lease of the vehicle for a period of three years. The only clause which entitles Allstates to repossess the vehicle at an earlier time is cl. 12. Given a repossession pursuant to cl. 12, the respective rights of the parties are wholly governed by that clause and cl. 31. The lease is terminated, the lessee no longer having any right to the retention and use of the vehicle. The clause does not purport to operate to withdraw the indulgence of deferred payment of rent which is the subject of the proviso to cl. 1(a). Significantly, it makes no reference to rent. On the contrary, it says, "All moneys due for unexpired terms shall become immediately due and payable." In my opinion, it is this provision which supplies the basis to Allstates' claim. [Emphasis added.] 1. Reference should also be made to the passage of his Honour's judgment following a finding that Lamson Store did govern the case: It remains, then, to consider whether the acceleration provision in cl. 12 can be considered to be a "genuine pre-estimate of the creditor's [Allstates'] probable or possible interest in the due performance of the principal obligation": Public Works Commissioner v Hills or whether it is a penalty inserted "merely to secure the enjoyment of a collateral object": Sloman v Walter, per Lord Thurlow L.C. Bearing in mind that the possible defaults that may activate the powers of the lessor under cl. 12 encompass both trivial and serious breaches without distinction in the remedy and that the clause may operate at any time during the currency of the lease with no provision for rebate of future instalments or for crediting the lessee with any capital gain represented by the amount by which the value of the vehicle on repossession exceeds its appraisal value, it is in my opinion quite impossible to conclude that the clause reflects on the part of the parties a genuine pre-estimate of damage. It is a penalty against which the lessee is entitled to relief. [Footnotes omitted.] 1. His Honour there found that, if the first respondent had relied only upon cl 1(a) of the agreement, it may have been successful in a cause of action for the entire rental. In those circumstances "[t]he question of penalty or liquidated damages would not then arise" (at 382). 2. However, Wilson J's reference to the repossession of the vehicle in this context was merely for the purposes of aligning the claim as one made under cl 12. As his Honour found, that clause did not purport to effect a withdrawal of the indulgence of deferred payment of rent which was the subject of the proviso in cl 1(a) of the agreement, and, in fact, made no reference to rent but made "[a]ll moneys due for the unexpired terms… immediately due and payable" (at 383). As defaults under the clause may arise from trivial or serious breaches without distinction in remedy and the clause may operate at any time during the currency of the lease with no provision for rebate, cl 12 could not represent a genuine pre-estimate of damage and was a penalty. None of those factors correspond to any penalty arising with respect to the repossession of the truck. Clause (c) is to a similar effect and the judgment of Wilson J in O'Dea provides guidance as to why it should be considered a penalty clause. Deane J 1. The defendant placed reliance upon the judgment of Deane J. His Honour described the nature of the contract as follows (at 395-396): As a matter of substance, the rent which the lessees promised to pay under the agreement was the consideration for the possession and use of the prime mover during the agreed term of the hiring. The equation between the thirty-six months of that agreed term and the thirty-six equal monthly instalments of rent indicated a relationship between monthly instalment and monthly period which would, in my view, have sufficed to relieve the lessees of any obligation to pay further rent if Allstates, which remained the owner of the prime mover, had wrongfully deprived them of possession and use of it. If those primary terms of the agreement had stood alone with no provision as to "default" or if Allstates had not resorted to the default provisions contained in a subsequent clause of the agreement, a failure by the lessees to pay an instalment of rent would have resulted in the "entire rental" becoming payable. In that event, the lessees would, if they had honoured the obligation to pay the "entire rental", have remained entitled to the possession and use of the prime mover and, to the extent that it is appropriate to use the word "rent" to describe a hiring charge for an item of personality, the payment could properly have been seen as conforming to that description, 1. His Honour then turned to the effect of cl 12, adopting a similar analysis to Wilson J (at 396): Clause 12 of the agreement operated only in the event of default by the lessees followed by an election by Allstates to take advantage of the terms of the clause by retaking possession of the prime mover. In such circumstances, which are the circumstances which have occurred, the lessees lost all right to the possession and use of the prime mover and all "moneys due for unexpired terms" became "immediately due and payable, plus reasonable costs of repossession", In addition, Allstates became entitled (cI. 31) to sell the prime mover at the best price it could reasonably obtain and to recover from the lessees any amount by which the agreed "appraisal" value of $13,300 exceeded the sale price, If any regard at all is had to substance, it would be a misuse of language to describe the obligation under cl. 12 immediately to pay the "moneys due for unexpired terms" as an obligation to pay rent. The obligation to pay those moneys without any entitlement to the possession or use of the machine was an obligation immediately to pay an amount of money upon default which was calculated and described by reference to, but was distinct and quite different in substance from, the amounts which would have been payable as rent if no default had occurred. 1. To the same effect, Deane J found (at 397): To the extent to which the provisions of cl. 1(a) and cl. 12 might otherwise have overlapped, the provisions of cl. 12 were paramount. Upon Allstates exercising its rights under cl. 12, the amount equivalent to the instalments attributable to the unexpired period of the original term ceased to be due and payable under cl. 1(a) as rent and became due and payable under cl. 12 as a consequence of the lessees' breach. 1. The defendant referred to a passage at 398 of Deane J's judgment. That passage is italicised below in the following (larger) extract from that part of his Honour's judgment (at 398): Counsel for Allstates submitted that the question of damages or penalty did not arise in the present case because the sum to be paid was the balance of the agreed figure for thirty-six months' hire and represented the agreed consideration for the hiring and not an amount payable as the consequence of breach. It seems to me that what has been said above answers this argument. Once Allstates elected to terminate the hiring' and retake possession of the machine pursuant to the provisions of cl. 12, its rights against the lessees in respect of moneys attributable to the unexpired term of the hiring which it had terminated were the rights conferred by cl. 12. The amount payable under that clause was not the balance of the agreed payment for thirty-six months' hiring. It was not a payment for hire at all: it became payable as a consequence of the lessees' breach when Allstates elected under cl. 12 to terminate the hiring by depriving the lessees of possession and use of the machine which was the subject of the hiring. [Emphasis added.] 1. Deane J's analysis is, in my view, ultimately of no different effect to that of Wilson J. His Honour rejected the contentions advanced by the first respondent that the sum payable was for the balance of the agreed hire term (the consideration for the hiring) and not the amount payable as a consequence of a breach. Once cl 12 of the agreement in O'Dea had been engaged because the first respondent had elected to terminate the hiring and retake possession of the vehicle, the first respondent's rights against the lessee in respect of monies attributable to the unexpired term of the hiring which it had terminated were rights conferred by cl 12. 2. As his Honour found, it would be a misuse of language to describe the obligation under cl 12 to immediately pay the "moneys due for the unexpired term" as an obligation to pay rent. Rather it was an obligation to pay those moneys as a consequence of breach calculated and described by reference to, but "distinct and quite different in substance from the amounts which would be payable as rent if no default had occurred" (at 396). His Honour's reliance upon the repossession of the vehicle was not instrumental in the rejection of the argument presented by counsel for the first respondent as to a present debt but rather crucial to a finding that cl 12 applied. 3. It is true that his Honour found that the moneys payable could not be for hire of the truck because the lessees had been deprived of possession and use of the vehicle but the centrality of his Honour's reasoning was that the moneys became due and payable because of the breach and the first respondent's election to repossess the truck under cl 12. 4. His Honour went on to consider the judgment in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 ("Dunlop Pneumatic Tyre Co") to find the provisions of cl 12 imposed a penalty. His Honour found that there was nothing at all in the agreement to suggest the provisions represented a genuine or reasonable pre-estimate of damages which the first respondent would sustain in the event of a breach by the lessee. It was found that the provisions could result in an unreasonable windfall to the first respondent and an unconscionable burden on the lessees in the event of a breach of the most trivial condition (at 400). Brennan J 1. Some attention was given by the parties to the judgment of Brennan J. It should immediately observed that his Honour found that neither cl 1(a) nor cl 12 imposed a liability for damages but only accelerated the time for payment of money already due which could not be regarded as penal. However, his Honour found the lessee was entitled to equitable relief against forfeiture in respect of the rental for the period after the lessor recovered possession. 2. Nonetheless, his Honour's observations in relation to the question of acceleration are applicable in the present context and are consistent with the then Chief Justice's observations, in that respect, and supportive of the plaintiff's position). His Honour observed (at 386): If the contract in the present case were construed as imposing an absolute obligation to pay three years' rent on the signing of the contract with a provision that that debt might be paid in monthly instalments, the rule stated by Brett LJ would govern the present case, as it was held to govern Lamson Store Service. But the debt created by cl. 1(a) is not a debt to be paid on the signing of the contract; it is a debt payable by instalments over thirty-six months; it does not otherwise become payable in full unless there be a default. 1. His Honour recognised that there was a commercial distinction between an entitlement to recover a full amount that a creditor is entitled to immediately as opposed to instalments, as follows (at 387): There seems to be an air of commercial unreality in a time of high interest rates to hold that a debt which a creditor is not entitled to recover except by instalments over a period is to be equated with a debt which the creditor is entitled to recover immediately but which he agrees to receive by instalments over such a period. In the latter case, the value of the debt is greater than the value of the instalments payable over the period… 1. His Honour then drew a distinction between cll 1(a) and 12 of the agreement in O'Dea similar to the approach adopted by the then Chief Justice and Wilson J as follows (at 387): Although the opinion expressed by Griffith CJ in Lamson Store Service on this question may require re-examination, it should not be re-examined finally in this case. The result in this case does not depend upon the acceleration of the payment of all thirty-six instalments; rather, the result depends upon the question whether all of those instalments are payable if the lessor repossesses the vehicle. Liability to Pay and Repossession For the purposes of this argument, it may be assumed that the acceleration of the payment of the entire rental is not a penalty, but is merely a mode of payment of the sum ($39,550.32) which is the true hiring charge specified in cl. 1(a). As that sum is agreed to be "due by the LESSEE to the LESSOR upon the signing of [the] Agreement", it is payable in performance of the agreement, not as damages for breach of that agreement. 1. His Honour then approached the question of the resolution of the matter differently to the then Chief Justice and Wilson and Deane JJ in the following passage of his judgment (at 390-391): The mere obligation to pay the entire rental cannot be characterized [sic] as penal. What gives to that obligation the flavour of a penalty is the lessor's right, in the event of a default by the lessees, to repossess the vehicle. If the lessor was to repossess the vehicle and recover the entire rental, he would have both the price of the hiring and possession of the vehicle which was to be hired. That would be inconsistent with the respective rights of the parties under the agreement if the agreement should be duly performed. The contract was to be performed by the lessees paying the entire rental to the lessor and by the lessor allowing the lessees possession and use of the vehicle for thirty-six months. Clause 12 confers upon the lessor in the event of and by reason of a default by the lessees a right to recover both the moneys due for unexpired terms and possession of the vehicle, so that the lessor becomes entitled to more than it would be entitled to if no default occurs. However, cl. 12 leaves the lessees with the right to retain and use the vehicle until the lessor actually takes the vehicle and carries it away. The lessor is not bound upon a default by the lessees to repossess the vehicle before the expiry of the hiring period; it may choose not to do so. Unless the lessor repossesses the vehicle, there is no ground for denying it the right to payment of the entire rental to which it is entitled under the agreement. 1. Brennan J found that, although the stipulation as to the price payable for the sale of hiring of goods was not itself in the nature of a penalty, a stipulation which provided for the forfeiture on breach by the buyer or hirer of both the price and the consideration for which it is payable is in the nature of a penalty and equity will relieve against it (at 391). In the result, his Honour found that cl 12 was in the nature of a penalty because "the lessor who exacts the full measure of his entitlement under that clause receives more than the damages he would suffer by reason of many of the defaults which enliven that clause" (at 391). I have earlier mentioned the manner in which his Honour disposed of the appeal. 2. Ultimately, the approach adopted by Brennan J does not support the contentions of the defendant in this matter. His Honour merely approached the question of penalty in a different manner. His Honour found cl 12 was in the nature of a penalty and distinguished, in that respect, the obligation to pay the entire rental and one arising from the default of a lessee which resulted in a right to have both the price of the hiring and the possession of the vehicle which was to be hired in a manner inconsistent with the respective rights of the parties under the agreement if the agreement should be duly performed. In other words, his Honour found, in equity, that the lessor becomes entitled to more than the lessor would be entitled to if no default occurred. CONSIDERATION 1. Gibbs CJ in O'Dea referred with approval (at 368) to the judgment of Lord Dunedin in Dunlop Pneumatic Tyre Co at 86-87 wherein his Lordship stated: The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of the breach. 1. It was common ground, again by reference to the judgment of the then Chief Justice in O'Dea (at 368), that the question was "not of words or of forms of speech, but of substance and of things" adopting the words cited by Lord Radcliffe in Campbell Discount Co Ltd v Bridge [1962] AC 600 at 624. As Deane J stated in O'Dea (at 400) in relation to the statement by Lord Dunedin in Dunlop Pneumatic Tyre Co, the question as to whether or not a provision of a contract imposes a penalty must be determined by reference to the true operation of the provision as a matter of substance not foreclosed by statements of the parties in their agreements. That question must be judged at the time of the making of the contract in question. 2. As to the question of construction of the contract, reference should be made to the judgment of Gleeson CJ in International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151; [2008] HCA 3 at [8] where his Honour stated: [8] In giving a commercial contract a businesslike interpretation, it is necessary to consider the language used by the parties, the circumstances addressed by the contract, and the objects which it is intended to secure. An appreciation of the commercial purpose of a contract calls for an understanding of the genesis of the transaction, the background, and the market. This is a case in which the Court's general understanding of background and purpose is supplemented by specific information as to the genesis of the transaction. The Agreement has a history; and that history is part of the context in which the contract takes its meaning. Before considering that history, it is necessary to explain, by reference to the text, how the issue of construction arises. [Footnotes omitted.] 1. In Johnson v America Home Assurance Co (1998) 192 CLR 266; [1998] HCA 14 at [19], Kirby J (in dissent) stated, "the primary duty of a court is to discern from the language, structure and apparent purpose of the document what it means". 2. Commercial contracts should be given a businesslike interpretation. In McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65 at [22], Gaudron J observed: "[i]nterpreting 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". 3. The proper construction of the contract in accordance with those principles, having regard to its terms, the circumstances addressed by the contract and its evident commercial purposes does not sustain the defendant's contention, in my view, that an immediate debt was incurred upon the execution of the contract, that is, a requirement to make an immediate payment of $18,000, albeit deferred by the making of instalments in accordance with the contract. 4. There was no express provision in the contract providing that, upon execution, such a debt was owed by the plaintiff. The terms of the contract speak strongly against the finding that an immediate debt emerged upon its execution. The only contractual basis upon which the plaintiff was required to pay the sum of $18,000 or the balance of the instalments was if the contract was breached. It was not argued that the immediate payment of the balance of the instalments on default was a genuine pre-estimate of cost and the terms of cl (c) plainly, by their operation, constitute a penalty. Clause (c) is a penalty provision. 5. Those conclusions require elaboration. 6. The first three sections of the contract stand contrary to the construction proposed by the defendant for the following reasons: 1. Both the title of the contract, as a contract for services and immediately following section entitled "The Service" strongly suggest that the commercial purpose of the contract was for the provision of services. 2. The nature of the services contracted was such that the defendant was to perform work after the contract was concluded. The defendant had to assess the conditions of employment of the plaintiff's employees and then prepare key documentation and stationary. The defendant had to provide a 24 hours a day, 365 days a week telephone advice service. As I will discuss immediately below, the defendant had to update the documentation as and when the legislation changed or the contractual terms changed. 3. I do not accept the defendant's submissions that the consideration offered was services purely "on demand". The defendant had active duties to fulfil. The nature of the plaintiff's business was not clear on the material before the Court; however, the plaintiff was clearly not engaged in the provision of employment services. If the contract is to be given a businesslike interpretation, it is a fanciful suggestion that a company such as the plaintiff could reasonably be expected to initiate contact with the defendant for the purposes of notice, with respect to, the updating of legislation or the amendment of contractual terms. The defendant was the specialist provider that was in the position to identify relevant changes in legislation or where changes in the contract terms were required, for example, where there were developments in employment law. 4. Whilst the defendant referred to the contract as providing for not only monthly instalments (as selected by the plaintiff in this case) but quarterly or annual payments, there was no option in the contract to make payment in full. Thus, the contract does not represent to the plaintiff that the client, upon entry into the contract, had prepaid for services. The drafting of a provision to that effect, namely, that upon execution there would be created an immediate debt, would have been a relatively simple drafting step. 5. The next section of the contract entitled "Payment Schedule" also contradicts the defendant's contention for the following reasons: 1. The title is suggestive of a fee structure whereby payments are made by a series of sequential payments. 2. The expression "total" appearing under that heading in the entry "Total Fee" connotes that the total fee is the sum of fees in the form of instalments paid monthly or by one of the other two methods provided for under that heading. 3. Overall, the expression "Total Fee" is suggestive of a provision which gives advice to the defendant of the total sum payable after the making of instalments. 4. There is a notation at the end of the schedule which provides that "First Instalment payable immediately". This entry contradicts the notion that the words "Total Fee" reflect the creation of a debt upon the execution of the contract (see as discussed further below in the context of "Further Terms" section of the contract). 5. There is an absence of a provision giving rise to an immediate debt in the "Payment Schedule" per se. 1. The section of the contract entitled "Further Terms" also conflicts with the defendant's contentions as to the construction of the contract. 2. I agree with the contention of the plaintiff that the provisions of cl (a) in this section are significant. Clause (a) provides that there shall be no provision for early termination. That notion sits uncomfortably with the contention that the reference to "Total Fee" in the payment schedule section of the contract connotes that a debt of full payment of the amount specified was incurred upon the execution of a contract. 3. In this respect, I accept the following submissions by the plaintiff (although I would note additionally that, in discussion of the language used in the "third Further Term" in that part of its submissions, the plaintiff omitted to refer to contentions made elsewhere in the plaintiff's submissions (correctly, in my view) that the word "failure" in the "third Further Term" meant breach): It is unlikely that the defendant, as the drafter of the Contract, would have included such a term in circumstances where an early termination of the Contract would have resulted in a windfall for the defendant. On the defendant's construction, the defendant became entitled to its fee of $18,000 as the Contract was entered into and a debt in that amount arose. Accordingly, if the Contract was terminated early by the Client, the defendant would be absolved from providing the further services but still be entitled to its fee. It is precisely because the Contract provided for a monthly service fee of $300 that the Further Term was introduced by the defendant to commit the Client to paying that fee for the duration of the Contract by excluding the possibility of an early termination (which is usually found in contracts of insurance). Dovetailing with that Further Term to lock in the Client for the full duration of the Contract is the second Further Term, making time for payment of the essence, and the third Further Term, providing for a penalty in the event that the Client stops paying for the Services: the Client will still have to pay all of the remaining instalments, even if not earned or due. Although the third Further Term is in the language of an acceleration clause (…will result in the total balance outstanding to become payable immediately in full"), there would never be a total balance outstanding under the Contract because the Payment Schedule did not provide for an immediately owing debt, deferred by instalments. No balance was ever owing; rather each instalment became due as each month passed. 1. The defendant submitted that the circumstances of this matter were distinguishable from O'Dea because the plaintiff retained the use of the services that is a truck provided for under the contract, notwithstanding the termination of the contract (or its breach). 2. I have earlier explained why the defendant's submissions misunderstood the judgment in O'Dea in that respect and why, when properly understood, the judgment in O'Dea (per Gibbs CJ, Wilson and Deane JJ), as to the finding that the relevant provision of the contract did not, in substance, constitute an acceleration clause operating in the context of an immediate debt but, in the absence of a genuine pre-estimate of loss, a penalty clause and how those considerations are applicable to the contract in this case (see with respect to the judgment of the then Chief Justice, at [56]-[59] of this judgment and the subsequent discussion of similar conclusions reached by Wilson and Deane JJ; see further the earlier discussion of the judgment of Brennan J).The repossession of the truck by the first respondent in O'Dea did not influence that finding, namely, that the relevant clauses constituted a penalty, save to the extent that such a determination depended upon there being no genuine pre-estimate of loss (see at [60]-[66] of this judgment with respect to the judgment of the then Chief Justice and the subsequent discussion of conclusions by Wilson and Deane JJ). Thus, the ratio in O'Dea was apposite to the determination of the present matter. In any event, there are significant difficulties with the premise underpinning the defendant's contention in this respect vis-à-vis the present matter being distinguishable because of the availability of services to the plaintiff after the termination or breach of the contract for three reasons. 3. First, and broadly, the plaintiff is correct to submit that, had the plaintiff only purchased a promise to provide for the services provided in the section of the contract entitled "The Service" for a five year period by paying "an upfront payment of $18,000", it would have had the uncommercial consequence that the plaintiff was exposed to the risk that the services were either not provided or not provided to the quality expected by the plaintiff when signing the contract. As the plaintiff correctly contended, there were no warranties in the contract as to the quality of the services in the contract. Nor was there, in the light of the section of the contract entitled "Further Terms", any ability for the plaintiff to terminate the contract for services that were not satisfactory. 4. Secondly, the defendant submitted that the evidence established that upon default of payment by the plaintiff, the defendant continued to provide services under the contract. 5. I accept the submission of the plaintiff that it is impermissible to examine the post-contract conduct of the defendant in the present context for the purposes of construing the contract: Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 at [10]-[13] (per Allsop P), [58] (per Giles JA) and [327] (per Campbell JA). 6. The plaintiff correctly pointed out that, in any event, the evidence sought to be relied upon by the defendant consisted of three emails of demand for payment, a letter demand from a debt collector, and a letter of demand from the defendant's solicitor. This evidence cannot be said to be the provision of services under the contract and there is, therefore, no evidence of the provision of services after the termination of the contract. 7. Thirdly, the submission presupposes that the plaintiff could obtain, in the circumstances alluded to by the defendant, namely, the continuation of services under the contract (in contrast to the repossession of the truck in O'Dea), specific performance of the contract. The defendant was invited by the Court to provide a submission with relevant authorities as to how specific performance might be available in the circumstances of a contract for services of a kind hereunder consideration, having particular regard to the third service condition, namely, a "24 hours a day, 365 days per year telephone advice on all workplace relations matters". 8. The defendant contended that there was no longer a strict rule against granting an injunction which had the effect of keeping people in a personal relationship and referred to Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 ("Curro") at 346-347. It submitted that, whether or not the Court would grant specific performance or an injunction in relation to the contract, did not change how the clause should be constructed because the defendant's claim was for a debt (a relatively circular argument). 9. In my view, the defendant's proposition is unsustainable for the following reasons. 10. I agree with the plaintiff's submission that its inability to compel the defendant to perform the promised services is a relevant consideration in construing the contract to give effect to the commercial objectives of the parties (in this case, of course, the matter proceeds upon the basis that the plaintiff is in breach of a contractual term to make instalment payments but this issue arises as a consideration in the construction of the contract). 11. Further, I accept the plaintiff's submission that it is most unlikely that equitable remedies would lie to compel performance of the work or services required under the contract in the event of a failure to perform the contract by the defendant (as I have found above the defendant did not perform services under the contract after the last instalment payment by the plaintiff). 12. It may be accepted (noting the limited submissions received by the Court on this question) that the rule that specific performance will not be granted if the contract involved the performance by one party to the other (such as the enforcement of a contractual obligation for personal service) or requires their continual co-operation (see J C Williamson Ltd v Lukey (1931) 45 CLR 282 at 298 per Dixon J and Geys v Société Genérale [2013] 1 AC 523 at [117]) is not absolute, is attended by exceptions (albeit few: see J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) at [20-055]) and is subject to the exercise of the Court's discretion, although the operation of the general rule is a matter of very great weight in that respect: Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; [2008] NSWSC 159 at [448]-[449]. (In The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (LawBook Co, 9th ed, 2014) ("The Principles of Equitable Remedies"), I C F Spry observed that the rule that a court of equity will not "as a rule enforce contracts of personal service or any other contract the execution whereof would require continued superintendence by the court" (quoting Starke J: J C Williamson Ltd v Lukey at 292-293) has been gradually resiled from by courts although it would appear less so in the case of contracts for work or labour or hiring and service (at 107). 13. An example of such an exception was provided by the defendant, namely, the judgment in Curro, and needs to be approached with care. 14. In that matter, the Court (per Meagher, Handley and Cripps JJA) held that, in the case of appeals from judgment granting, inter alia, an injunction restraining a television presenter and her company from acting in breach of a negative promise in her contract with her television company with the producer of a documentary program. 15. The trial judge in Curro, had relied upon the doctrine in Lumley v Wagner (1852) 1 De G M & G 604. In this context, the Court dealt, in that respect, with an exception to the rule (stated by Lord Cairns LC in Doherty v Allman (1878) 3 App Cas 709 ("Doherty") at 720) that a court of equity would always grant an injunction to enforce a negative contractual promise – the exception being that a negative promise would not be enforced by injunction if that would have the practical effect of compelling specific performance of a contract of personal service. 16. The Court of Appeal in Curro held that the rule could no longer be stated "with such precision" (at 346) and that the "second rule" (the exception to the first rule in Doherty) had been departed from in England per Hill v C A Parsons & Co Ltd [1972] Ch 305 which was followed by the Federal Court in Turner v Australasian Coal and Shale Employees' Federation (1984) 6 FCR 177 at 192-193 and Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 481-482. 17. The Federal Court cases to which the Court of Appeal referred in this context concern cases, perhaps exceptional in nature, where employees may be able to obtain a decree of specific performance of a contract of employment against the employer wrongfully dismissing the employee. (It should be noted that Hill v C A Parsons & Co Ltd concerned the granting of an injunction and not specific performance). It may be noted that there are English cases in which injunctions were granted to restrain threatened wrongful dismissals, in each case Heydon et al. described the line of cases as "controversial" (see Meagher, Gummow & Lehane's Equity Doctrines & Remedies at [20-055]). The categories of exceptional circumstances in those employment cases are not closed and involve the aforementioned exercise of discretion. 18. Some examples of exceptions to the rule against specific performance in the case of contracts of employment include where the effect of maintaining a relationship between parties to a contract of employment may be tempered by the remainder of sufficient trust and confidence between the parties and where there may be no problem of supervision if, for example, the effect of the order is only to require the performance of a specific and definable obligation, such as to submit a dispute about the right to terminate employment to arbitration or to implement a disciplinary procedure (see I Neil and D Chin, The Modern Contract of Employment (Thomson Reuters, 2nd ed, 2017) at 331). 19. This line of authority often reflects that a Court may more readily depart from the general rule against specific performance in the case of contracts for work or labour by restraining a threatened wrongful dismissal than by restraining an employee abandoning his or her job in breach of a contract because, as the industrial law remedy of reinstatement reflects, the compulsory reinstatement of an employee is more willingly embraced than compulsory servitude: Network Ten Pty Ltd v Seven Network (Operations) Ltd [2014] NSWSC 274 at [13] (per Brereton J). 20. Similar considerations arise in relation to the defence against a decree of specific performance arising in the case of orders requiring continued supervision. In J C Williamson Ltd v Lukey, Dixon J stated specific performance is inapplicable when the continued supervision the Court is necessary in order to ensure the fulfilment of the contract (at 297-298). The defence will be made out when it is shown that a decree of specific performance would compel the performance, over a period of time, of a number of contractual terms of some detail and complexity, particularly where there is some un-clarity in them: Co-Operative Insurance Society Ltd v Argyll Stores (Holding) Ltd [1998] AC 1 ("Argyll") at 11-13. However, in the employment context, the High Court commented in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30, by reference to Lord Hoffman's speech in Argyll that the difficulty of supervision was a matter of degree rather than absolute restriction and that that factor "by itself [was] no longer an effective or useful criterion for refusing a decree of specific performance" at [79] (per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ). 21. Spry argues that "although indefiniteness or uncertainty may not be such as to prevent the arising of a contract for breach of which damages may be obtained at law, enforcement in specie may in exceptional cases be refused in equity" (The Principles of Equitable Remedies at 109). Whether a particular breach of contract case may fall into such a class is a question of degree which will be affected by factors such as the length of time over which performance may take place, the complexity of the acts or performance that are required, the degree of probability that disputes as to performance may arise and the extent of the difficulty that may arise in establishing whether particular terms have been complied with as well as questions relating to the hardship caused by refusing relief (see The Principles of Equitable Remedies at 110). 22. This relatively lengthy analysis as to the nature of the rules against decrees of specific performance in the case of contracts for personal service, work or hire and the exceptions to those rules have been undertaken to illustrate the basis upon which the aforementioned conclusion (as part of the construction of the contract) was reached that it is likely that a decree for specific performance would likely, as a matter of discretion, be refused in the present context. 23. The present matter concerns what may be described as a relational commercial contract (see International Advisor Systems Pty Ltd v XYYX Pty Ltd [2008] NSWSC 2 ("XYYX") at [49] (per Brereton J). The contract requires the provision of personal services by the defendant to the plaintiff as well illustrated by the third service under the contract, namely, a telephone advice on all workplace relations matters. 24. The contract is not one of a contract of employment and, therefore, does not fall within one of the aforementioned limited exceptions to a decree of specific performance in relation to contracts of that character. It may be noted, in that respect, that, if the contract were of that character, that is, cases of wrongful dismissal, there would still be significant hurdles to the decree of specific performance. (In De Francesco v Barnum (1890) 45 Ch D 430 at 438, Fry LJ observed "I think the courts are bound to be jealous, lest they should turn contracts of service into contracts of slavery…"). 25. In Curro, the Court was not considering an order for specific performance of service or service contracts (see at 348). (Spry notes that in many cases where specific performance is not available in the case of a contract for personal services, an injunction prohibiting performance of a particular service may be available (at 56)). The Court did consider the third rule in Doherty by way of "exception to the exception" – in the case of special services a promise not to take employment with a competitor, would, under the doctrine of Lumley v Wagner be restrained. The Court of Appeal refused to accept the contention that the Court would not follow the doctrine in Lumley v Wagner. 26. However, the Court was careful to set out the limits of the operation of the doctrine and its application in that case. As their Honours observed, Lord St Leonards LC in Lumley v Wagner pointed out that the injunction granted in the case would not compel Madame Wagner to perform her contract with Mr Lumley. Failure to sing for Mr Lumley would not be a breach of the injunction (see at 347 of Curro). She could employ her energies in some other occupation or perhaps return to Germany. The Court observed that the doctrine has been said to apply to contracts for "special services" and referred in that context to opera singers, actresses, football players and newspaper production managers. The injunction in Curro, similar to the injunction in Lumley v Wagner was for a very short period of time and did not represent a case where the choice was between the performance of the service and "destitute idleness" (at 347). Reference was made to Page One Records Ltd v Britton [1968] 1 WLR 157 by way of distinction from the case in Curro because the injunction sought in that case would have compelled the defendants to "re-employ the plaintiff or go out of business" (at 348). 27. Returning to the circumstances of the present case in the light of the foregoing principles and the further discussion of Curro above, it is possible to examine more closely why an order for specific performance would be most unlikely to follow a breach of contract. A decree of specific performance would compel the performance, over a period of nearly 5 years, of a number of contractual terms of some detail providing for very substantial personal service (24 hours a day, 365 days per year) in relation to intimate issues, namely, workplace relations matters where there is some real lack of clarity as to the nature of the services to be provided by the defendant. There is a high degree of probability that disputes as to performance may arise and there being a difficulty in such cases in deciding whether particular terms have been complied with by the defendant (given the nature of the services). Indeed, one of the issues agitated by the plaintiff was that there was a lack of provision in the contract in the event of an absence of quality in the service provided and any means of rectifying that deficit. 28. Overall, an order for specific performance would, in my view, be very unlikely to be made (in the exercise of a discretion of the Court upon any default of an obligation such as service by the defendant under the contract) because, for the reasons given above, such an order would require part performance by one party, namely the defendants, in a manner which required their continual cooperation in the performance of personal services under continued supervision of the Court in order to ensure fulfilment of a contract whose nature made it inappropriate for such supervision. Again, this is a matter bearing upon the construction of the contract adversely to the contentions advanced by the defendant. 29. It is appropriate to address two further aspects of the defendant's submissions before turning to the penalty nature of cl (c). 30. First, the defendant placed reliance upon Geeveekay at [74] and [76] (per Bell J). It was submitted that the judgment concerned a contract which required "the buyer to make payments before consideration". The passage of the judgment relied upon was to the effect that a buyer who failed to make agreed pre-payments could be sued by the seller in debt, once the time for payment had passed, even if consideration had not yet been given. It was submitted the legal character of the buyer's obligation to make the pre-payment was the present debt to make a future payment that matures into a debt due and payable when the time for the making of payment arises. 31. As earlier mentioned, the defendant contended the judgment in Geeveekay was analogous to the present case and may be distinguished from a contract for the supply of goods for a price to be paid on delivery which is an executory contract – in which the buyer has paid the price in return for goods, not the seller's promise to supply the goods. I do not consider that the analogy sought to be drawn, by the defendant, is available in the present context. Geeveekay concerned the question of whether a debt was incurred in the context of the sale of land such as to give rise to the extending of credit and a contravention of the Victorian Consumer Credit Code ("the Code"). In deciding upon the meaning of "incurring a deferred debt" for the purposes of s 4(1) of the Code, the Court observed that the meaning of "incurred" depended upon the particular legislation in which it appears (see Geeveekay at [59]) and concluded that, for the purposes of considering the Code, the same "wide construction" of the phrase "incurs a debt" found in the context of insolvent trading legislation in Hawkins v Bank of China (1992) 26 NSWLR 562 should apply. 32. More significantly for the present matter, Bell J was concerned only with the question of a debt arising in the context of a contract of sale. The Court noted that, depending upon the terms of the contract, the debt could arise before the delivery of the sale of goods (see Geeveekay at [82]). 33. Thus, in circumstances where there is a contract for sale under which there is an agreement to pay the purchase price before delivery is taken, it was found that there was a debt at the time the contract was entered into. 34. The logic of that analysis is that there was a right to the delivery of goods in exchange for the seller obtaining the debt such that the buyer of the goods becomes their owner once the contract is completed. If the seller does not provide the goods, then the buyer can sue for specific performance. Bell J referred to the decision of Salmond J in Ruddenklau v Charlesworth [1925] NZLR 161 with approval (Geeveekay at [114]). At 164-165, Salmond J stated: As a general rule, on the failure or refusal of a purchaser to complete an executory contract for the purchase of land the vendor is not entitled to sue for the purchase-money as a debt. He is entitled merely to sue for specific performance or for damages for the loss of his bargain. It is only when the contract has been completed by the execution and acceptance of a conveyance that unpaid purchase-money may become a debt and can be recovered accordingly. This general rule is sufficiently illustrated and established by the case of Laird v Pim. The sale of land is in this respect similar to the sale of goods. In the case of goods sold and delivered, and of goods bargained and sold, the property in each case having passed to the buyer, the seller's remedy is to sue for the price. But if under any executory contract the buyer wrongfully refuses to accept the goods the seller's only remedy is an action for damages. The general rule, however, that in an executory contract for the sale of land the vendor cannot sue for the price is excluded whenever a contrary intention is shown by the express terms of the contract. And it seems established by authority that a contrary intention is sufficiently shown in all cases in which by the express terms of the contract the purchase-money or any part thereof is made payable on a fixed day, not being the agreed day for the completion of the contract by conveyance. In all the cases the purchase-money or such part thereof becomes, on the day so fixed for its payment, a debt immediately recoverable by the vendor irrespective of the question whether a conveyance has been executed and notwithstanding the fact that the purchaser may have repudiated his contract. [Footnote omitted.] 1. This circumstance lays in stark contrast to a contract for services of the kind hereunder considered. 2. Secondly, the defendant contended that the acceptance of the plaintiff's submissions would result in the acceleration principle applied in Fermiscan Pty Ltd v James (2009) 261 ALR 408; [2009] NSWCA 355 ("Fermiscan") at [142] ceasing to have effect or a role in the resolution of construction issues of this kind. 3. I do not consider this conclusion may be accepted for two reasons: 1. Fermiscan did not apply the acceleration principle (see at [143] (per Allsop P), [165] (per Ipp JA) and [185] (per Handley AJA)). It was concluded that, in the circumstances of that case, the clause gave rise to a penalty. 2. More fundamentally, consideration of the acceleration principle only arises once the construction of the contract leads to the conclusion that an immediate owing debt exists which has been deferred upon the basis of timely payments of instalments. This is not, as I have found, such a case. 1. However, the decision in Fermiscan is applicable to the extent that it identifies what the doctrine of penalties seeks to prevent. Allsop P stated (at [149]): [149] Paragraph (c) of point 4 in Lord Dunedin's statement of principle was directed to circumstances where the clause said to be a penalty provides for payment on the breach of more than one provision. Paragraph (c) is to be read with Lord Dunedin's discussion at 88-89 of Lord Watson's speech in Lord Elphinstone v Monkland Iron and Coal Co Limited (1886) 11 App Cas 332, from which speech para (c) had been taken by Lord Dunedin. In Dunlop at 89 Lord Dunedin said: I think Elphinstone's Case ... or rather the dicta in it, do go this length, that if there are various breaches to which one indiscriminate sum to be paid in breach is applied, then the strength of the chain must be taken at its weakest link. If you can clearly see that the loss on one particular breach could never amount to the stipulated sum, then you may come to the conclusion that the sum is penalty. But further than this it does not go; so, for the reasons already stated, I do not think the present case forms an instance of what I have just expressed. 1. The final question involved in the construction of the contract was whether, having regard to the foregoing analysis, cl (c) should be found to be a penalty clause. That question, in my view, should, as I have stated, be answered in the affirmative. Some further observations may be made in that context. 2. The clause provided that, if the plaintiff stopped paying the instalments, and thereby breached the contract, it would face a penalty of paying out the entire balance of unpaid monies being the sum of $18,000 has monies paid. Thus, the balance of the five year contract was payable immediately. The clause operated irrespective of whether the breach was substantial or trivial without distinction in remedy or when the breach occurred in the five year term, that is, at any time during the currency of the agreement without rebate. There was no proper or realistic basis to conclude that the services would be continued after termination (and they were not). It was not (and could not be) suggested the sum payable under the contract by operation of cl (c) was a genuine pre-estimate of losses and damage. The purpose of the clause is plainly to coerce performance of the contract by the plaintiff. 3. Further, it is inconsistent with any realistic commercial reading of the contract, being a contract for services that, prior to the defendant rendering any of the services provided in the contract, the plaintiff became indebted to the defendant in the sum of $18,000. That burden falls irrespective of the nature of the breach or the inadequacy of the services provided by the defendant. I have earlier dealt adversely to contentions by the defendant as to prepayment of services or services "on demand". There was nothing in the contract which would permit the plaintiff to later question the value of the services rendered by the defendant and the plaintiff was unable to exit the service. 4. It follows that from the foregoing considerations that the relevant clause of the contract, namely, cl (c) under the section entitled "Further Terms", is a penalty clause and that the provision is unenforceable. Pierce LCM was in error in reaching a contrary conclusion in his construction of the contract and making orders in conformity with a finding that the contract gave rise to an immediate debt of $18,000 postponed pursuant to an arrangement for 60 monthly instalments (and a corresponding conclusion as to acceleration). CONCLUSION 1. The appeal in the present matter concerns the construction of a contract. The appeal is of right. 2. In all the circumstances discussed in this judgment, the appeal must be allowed and the judgments and orders of the Court below of 31 May 2017 should be set aside. 3. In the summons, the plaintiff also sought verdict and judgment for the plaintiff and the defendant pay the costs of the proceedings including costs of the appeal. No submissions were advanced in that respect, although the plaintiff did not press ground 6 of the summons. 4. In the ordinary course, this judgment would result in an order that the defendant pay the plaintiff's costs of the appeal as agreed or, in the absence of agreement, as assessed. The Court proposes to make orders in those terms, subject to any further submissions received by either party on the question of costs. 5. Directions will be made that the plaintiff bring in short minutes of order reflecting this decision within 14 days of this judgment. 6. In the event there is a dispute as to the form of orders having regard to the issues discussed in [143] above, the Court will make provision for further submissions in writing in that respect with the issue resolved on the papers (subject to any contrary contention advanced in that respect). DIRECTIONS 1. The Court makes the following directions: 1. The plaintiff shall file and serve within 14 days of this judgment, draft orders reflecting the judgment of the Court. In the event of any dispute as to the form of any order corresponding to the issues identified in [143] and [144] of the conclusion of this judgment, the draft orders shall be accompanied by a short written submission addressing any disputed question in that respect. 2. The defendant shall file and serve a short submission and any alternative orders proposed within 14 days of the service of the draft orders and/or submissions in accordance with (1) above. 3. Any disputed question, with respect (1) above, shall be resolved on the papers, unless, in written submissions filed in accordance with the allocated timetable, either party seeks an oral hearing. In that event, the matter will be listed for directions. ********** 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: 25 June 2018