Supreme Court New South Wales Medium Neutral Citation: In the matter of Leslie Muir Holdings Pty Limited [2019] NSWSC 1519 Hearing dates: 17 October 2019 Decision date: 05 November 2019 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Plaintiff's Amended Notice of Motion be dismissed. The parties to be heard further as to any orders to be made under the Defendants' Interlocutory Process. Direct the parties to bring in agreed short minutes of order within 7 days to give effect to this judgment. Catchwords: CONTRACTS – formation – agreement – enforceability – uncertainty and incompleteness – where parties entered into heads of agreement at mediation – where heads of agreement provided for entry into settlement deed and transfer documents – where agreement provided for parties to have regard to taxation and structuring advice prior to entry into settlement deed and transfer documents – where dispute as to settlement deed and transfer documents – where settlement deed and transfer documents not entered into – whether heads of agreement are certain and complete and enforceable – whether other ancillary orders should be made. Legislation Cited: - Civil Procedure Act 2005 (NSW) s 73 Cases Cited: - ADG United Pty Ltd v EG Enterprises Pty Ltd [2019] NSWSC 745 - Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 - Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98 - Braude v Kaye [2013] VSC 705 - Brown v Gould [1972] Ch 53 - Council of the Upper Hunter County District v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 - G Scammell & Nephew Ltd v Ouston [1941] AC 251 - G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 - Hammond v Vam Ltd [1972] 2 NSWLR 16 - Lahodiuk v Pace [2013] NSWSC 512 - Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227 - Masters v Cameron (1954) 91 CLR 353 - Nurisvan Investment Ltd v Anyoption Holdings Limited [2017] VSCA 141 - Pavlovic v Universal Music Australia Pty Limited [2015] NSWCA 313 - Peña v Dale [2004] 2 BCLC 508 - Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149 - The Owners – Strata Plan No 58087 v Matthews [2015] NSWSC 1906 - Thorby v Goldberg (1964) 112 CLR 597 Texts Cited: - J D Heydon, Heydon on Contract (Lawbook Co, 2019) Category: Procedural and other rulings Parties: Amended Notice of Motion dated 21 August 2019 Mavis Marilyn Ross (Plaintiff) John Leslie Muir (First Defendant/Respondent) Muir Woodside Pty Ltd as the trustee for the John Muir Family Testamentary Trust (Second Defendant/Respondent) Leslie Muir Holdings Pty Limited (Third Defendant/Respondent) Interlocutory Process filed 27 May 2019 John Leslie Muir (First Applicant) Muir Woodside Pty Ltd as the trustee for the John Muir Family Testamentary Trust (Second Applicant) Leslie Muir Holdings Pty Limited (Third Applicant) Mavis Marilyn Ross (Respondent) Representation: Counsel: M Ashhurst SC/A Gandar (Plaintiff/Applicant to Amended Notice of Motion dated 21.8.19; Respondent to Interlocutory Process filed 27.5.19) D L Cook SC (First and Second Defendants/Respondents to Amended Notice of Motion dated 21.8.19; Applicants to Interlocutory Process filed 27.5.19) Solicitors: Kardos Scanlan (Plaintiff/Applicant to Amended Notice of Motion dated 21.8.19; Respondent to Interlocutory Process filed 27.5.19) Hall & Wilcox (First and Second Defendants/Respondents to Amended Notice of Motion dated 21.8.19; Applicants to Interlocutory Process filed 27.5.19) File Number(s): 2017/243835 Judgment 1. By Amended Notice of Motion dated 21 August 2019 the Plaintiff, Ms Ross, seeks a range of orders concerning a Heads of Agreement signed at a mediation on 3 May 2018 with the First, Second and Third Defendants, Mr John Muir, Muir Woodside Pty Ltd ("MWPL") as trustee for the John Muir Family Testamentary Trust and Leslie Muir Holdings Pty Limited ("LMH"). The First Defendant, Mr Muir, is the older brother of Ms Ross and the sole director of LMH. Ms Ross and Mr Muir each hold 40% of the ordinary shares on issue in LMH. The balance of ordinary shares and two management shares in LMH are held by the Second Defendant, MWPL, which is the trustee of the John Muir Family Testamentary Trust. 2. By Interlocutory Process filed 27 May 2019, the Defendants in turn seek a declaration that the Heads of Agreement did not give rise to an enforceable contract and consequential orders and directions to give effect to restitution in respect of any payment made in part performance of the Heads of Agreement. They also, alternatively, seek declarations as to the terms of the contract, if the Heads of Agreement gave rise to an enforceable contract, and seek a declaration that, inter alia, it was an implied term of the Heads of Agreement that Ms Ross would cause any shareholder loan associated with her 40% interest in LMH, whether held personally by her or by any entity for her benefit, to be assigned to Mr Muir or his nominee as part of the purchase of the interest in LMH by Mr Muir or his nominee. 3. It is common ground that the Court has power under s 73 of the Civil Procedure Act 2005 (NSW) and in its inherent jurisdiction to resolve the issue of whether the Heads of Agreement is binding and enforceable. I will deal with the relief sought by the respective parties below, after referring to a chronology of events and the affidavit evidence. Chronology 1. I first set out a brief chronology of events, although it will not be necessary to deal with all of the correspondence between the parties, their legal representatives and the experts they retained, given the conclusions I reach below. By a Statement of Claim dated 24 August 2017, Ms Ross sought a range of relief, including a declaration that the affairs of LMH were being conducted in a manner that was contrary to the interests of its members as a whole or was oppressive to or unfairly prejudicial to or unfairly discriminatory against Ms Ross, and orders for Mr Muir or MWPL or LMH to purchase her shares in LMH or alternatively for the winding up of LMH. The Defendants filed their Defence on 4 October 2017. 2. The parties attended a mediation on 3 May 2018, at which the Heads of Agreement was signed. Prior to the mediation, each of Ms Ross and the Defendants provided position papers which both contemplated that any agreement reached at the mediation would have an "in principle" character. Ms Ross' position paper stated that: "any in-principle agreement reached in the mediation will likely be subject to the parties receiving structuring and taxation advice before the agreement can be finalised." The Defendants' position paper similarly stated that: "In her Position Paper, [Ms Ross] states that any in-principle agreement will be likely to be subject to the parties receiving structuring and taxation advice. [Mr Muir] accepts that such a condition is necessary in the circumstances." 1. Ms Ross, Mr Muir, LMH and MWPL executed a mediation agreement dated 3 May 2018 with the mediator which dealt with documentation of any settlement of the dispute and enforcement of any agreement reached at the mediation (cll 26–27) as follows: "Settlement of the Dispute 26. If agreement is reached at the mediation, the terms of the agreement must be written down and signed by the parties before they leave the mediation. Enforcement of the Settlement Agreement 27. Any party may enforce the terms of the settlement agreement by judicial proceedings." 1. The Heads of Agreement was signed at the conclusion of the mediation. The parties to it are Ms Ross, Mr Muir, MWPL as trustee for the John Muir Family Testamentary Trust and LMH, although it was signed only by Ms Ross and Mr Muir. Clause 1 relevantly provided that: "Terms of agreement 1. [Ms Ross] agrees to sell and [Mr Muir] or his nominee agrees to purchase [Ms Ross'] 40% interest in LMH, to be paid for by: (a) [Mr Muir] or his nominee paying the following cash amounts to [Ms Ross] or her nominee: (i) [amount omitted]; (ii) plus or minus, 39.12% of the amount by which the value of the Carsales Shares as at the day before Completion exceeds, or is less than, [amount omitted]; (iii) plus 39.12% of the interest earned on the ANZ Term Deposit as at the day before Completion; (b) LMH transferring its beneficial interest in Lot 41 Yamba to [Ms Ross] or her nominee, either by transfer of the land or LMH's shares in Bate & Leslie Pty Ltd ["BLPL"] having regard to the advice contemplated in clause 2 of this Heads of Agreement." The reference to "Lot 41 Yamba" is a property located in Yamba, New South Wales. I will refer below to a significant issue as to construction and certainty as to paragraph 1(a) of the Heads of Agreement, and to the difficulties with the use of the phrase "having regard to" in cl 1(b) and also in cl 3 of the Heads of Agreement. 1. Clauses 2 and 3 of the Heads of Agreement in turn provided: "Taxation and structural advice 2. Within 7 days of the signing of this Heads of Agreement, the parties will jointly engage Auswilds and Grant Thornton to jointly undertake tax and structuring advice with respect to the transactions referred to in clause 1 of this Heads of Agreement. Deed of settlement and transaction documents 3. Within 6 weeks of the date of this Heads of Agreement: (a) advice from Auswilds and Grant Thornton is to be procured; (b) having regard to that advice, a deed of settlement is to be executed; and (c) all transaction documents are to be executed, to give effect to the agreement in clause 1." Mr Cook, who appears for the Defendants, submits, and I accept, that the reference to "structuring advice" in cl 2 of the Heads of Agreement extended beyond tax advice to advice as to how the transactions referred to would be structured. I will refer to difficulties with the construction of cl 3 of the Heads of Agreement below. 1. Clause 4 of the Heads of Agreement in turn provided for Mr Muir to procure that a specified company release a specified amount to Ms Ross or her nominee "on account of the payment" referred to in cl 1(a)(i) of the Heads of Agreement and a corresponding amount to Mr Muir or his nominee. That payment was to be made on 8 May 2018, shortly after the Heads of Agreement was executed and several weeks before the tax and structuring advice contemplated by the Heads of Agreement would be obtained or completion of the transactions contemplated by it would occur. Clauses 5 and 6 provided for an adjournment and subsequent dismissal of the proceedings. Clause 7 provided for confidentiality. 2. As I noted above, cl 2 of the Heads of Agreement provided for the parties jointly to engage two accounting firms, Auswilds and Grant Thornton to jointly undertake "tax and structuring advice" with respect to the transaction, and cl 3 of the Heads of Agreement in turn provided for the parties to procure advice from Auswilds and Grant Thornton within six weeks of the date of the Heads of Agreement. It appears that Auswilds subsequently delivered advice which is not in evidence. I will refer below to a dispute as to whether joint advice was ultimately obtained from Grant Thornton, which it is not necessary to resolve given the findings that I reach on other grounds. 3. By email dated 7 May 2018, shortly after the mediation and execution of the Heads of Agreement, Ms Ross' solicitor advised Grant Thornton of the outcome of the mediation and noted issues arising as to implementation of the transactions, including the: "● Optimal structure to get [amount omitted] to [Ms Ross]: this could be partly through loan repayment, partly on dividends, partly on sale or buyback of the shares (to the extent on share then [Mr Muir] may need a distribution or loan repayment to fund the purchase); ● Whether LMH sells its 75% shares in [BLPL] to effectively transfer Lot 41 … We haven't discussed sharing of tax costs or stamp duty with the other side, but this will need to be resolved commercially once a few options are on the table …" These are obviously not issues of narrow scope and the Heads of Agreement did not address how they should be resolved, beyond contemplating that the parties obtain and "hav[e] regard to" the joint advice of Auswilds and Grant Thornton. 1. On 8 May 2018, the solicitors acting for the Defendants followed up with the solicitors acting for Ms Ross, and noted that cl 2 of the Heads of Agreement required the joint engagement of Auswilds and Grant Thornton "to provide tax and struct[ur]ing advice with respect to the agreement reached in Clause 1" and followed up on the draft retainer letters (Ex P1, 1). The solicitor for the Defendants also advised the solicitors for Ms Ross that she had spoken to Mr Dick of Auswilds to put him on notice that his assistance would be required, and that he said he would be obtaining advice from a tax expert (Ex P1, 4). An email dated 14 May 2018 from the solicitors for Ms Ross to Auswilds, Grant Thornton and the solicitors for the Defendants proposed a conference call to commence the "structuring and implementation" for the settlement (Ex P1, 11). 2. A draft letter of instructions to Auswilds and Grant Thornton dated 21 May 2018 (Ex P1, 14) recorded that: "You are jointly instructed by [Ms Ross] on the one hand and by [the Defendants] on the other hand, to provide tax and structuring advice with respect to the settlement reached between the parties, as set out in Clause 1 of the attached Heads of Agreement dated 3 May 2018. Clause 1 of the Heads of Agreement specifies the terms on which [Ms Ross] agreed to sell and [Mr Muir] or his nominee agreed to purchase [Ms Ross'] 40% interest in LMH." That draft letter, like cl 1 of the Heads of Agreement itself, did not refer to Ms Ross shares in LMH but adopted a possibly broader reference to her "interest" in LMH. That draft letter also referred to the intent that advice be obtained from Auswilds and Grant Thornton, a deed of settlement be executed and all transaction documents be executed by 14 June 2018. 1. A final letter, signed by both solicitors, sent to Auswilds and Grant Thornton (Ex P1, 217), was in the same terms. Grant Thornton subsequently required the execution of separate letters of engagement specifying, inter alia, their hourly rates, which were addressed to Ms Ross (Ex P1, 229); Mr Muir and MWPL as trustee of the John Muir Family Testamentary Trust (P1, 242) and LMH (Ex P1, 255). Those separate letters of engagement were subsequently signed by Ms Ross and Mr Muir on 16 July 2018 and consent orders were subsequently made by Ward CJ in Eq adjourning the proceedings to the Corporations List on 10 September 2018. 2. In early August 2018, the parties or their advisers contemplated that an application would be made for a private tax ruling in respect of the transactions and advice was given as to relevant issues (Ex P1, 360) but the proposed application for a private ruling was not pursued. By email dated 3 August 2018, Grant Thornton identified the possibility of tax implications for Mr Muir if the Commissioner of Taxation was not satisfied that the majority underlying ownership of LMH remained unchanged after Ms Ross shares were acquired, and also identified the possibility of tax implications for Mr Muir on his "ultimate extraction of the wealth retained in [LMH]" (Ex P1, 363A). 3. On 6 August 2018, the solicitors acting for the Defendants advised that: "Chris Brown has been retained by [Mr Muir] to assist with the restructure and Paul King [of MinterEllison] to advise on tax. We will continue to act for the defendants in the NSW Supreme Court proceedings." (Ex P1, 364-365) 1. Lengthy correspondence followed between the parties' solicitors in respect of the proposed MinterEllison advice. In late August 2018, Ms Ross' solicitors followed up with Mr Muir's solicitors as to the progress of that advice and were advised that that was in progress, without being provided any detail as to its content. By an email dated 4 September 2018, the Defendants' solicitors advised that: "[MinterEllison] continue to work on the optimal structure to buy out [Ms Ross] whilst not leaving [Mr Muir] in a compromised [position] post transaction." By their response also sent on 4 September 2018, Ms Ross' solicitors expressed frustration as to a suggested lack of transparency in the position adopted by the Defendants' solicitors and MinterEllison in respect of the "tax structuring" issues. 1. Mr Ashhurst, who appears with Mr Gandar for Ms Ross, submits that this process was not consistent with that contemplated by the Heads of Agreement. I accept that submission, at least in the limited sense that MinterEllison's involvement was not contemplated by the reference to a joint advice to be given by Auswilds and Grant Thornton in the Heads of Agreement. I do not accept a further implication of Mr Ashhurst's submissions that, when the parties had regard to the tax and structuring advice that was contemplated by the Heads of Agreement, either of them could not legitimately raise any tax difficulties for it that would arise from the transaction set out in cl 1 of the Heads of Agreement. There would have been little or no point in the parties agreeing to obtain tax or structuring advice, if the Heads of Agreement did not contemplate that they would then potentially adjust the terms of the transaction to avoid or mitigate any issues arising from that advice. As will emerge below, a substantial difficulty with the Heads of Agreement is that it provides no criteria or mechanism for determining how such difficulties are to be addressed, if they are identified and consensus is not reached between the parties as to how they are to be resolved. 2. On 5 September 2018, Mr Muir's solicitors advised Ms Ross' solicitors that: "Paul King at [MinterEllison] is preparing an advice for [Mr Muir], but with a view to sharing (in the spirit of the Heads of Agreement), with all parties and their advisers, the parts of the advice which are relevant to settling the dispute." That email also referred to previous tax advice commissioned under the Heads of Agreement, which appears to have included advice from Auswilds which, as I noted above, is not in evidence. That email also referred to additional steps, not contemplated by the Heads of Agreement but possibly not controversial between the parties, including a loan to fund the acquisition of Ms Ross' shares in LMH to a new company established and owned by Mr Muir which would be the purchaser of those shares, and the transfer of the shares in BLPL or the freehold to Lot 41 to Ms Ross or her nominee as part consideration for the LMH shares that she would sell to that new company. 1. By 14 September 2018, a difference of view had emerged between the parties, since MinterEllison's advice contemplated an adjustment in the sale proceeds payable to Ms Ross for tax liabilities that would arise on winding up, inter alia, LMH. MinterEllison's advice also identified two proposals, one of which dealt with a situation where Ms Ross' shares in LMH were acquired by a newly formed company and another where those shares were acquired by a trust. By letter dated 18 September 2018, the solicitors for Ms Ross referred to the draft tax structuring advice provided by MinterEllison and challenged the basis of that advice, observing that: "[Ms Ross] did not agree that the payments were on an after-tax basis. We do not accept the purported and unsubstantiated deductions set out in the Minter Ellison advice from the amounts that [Mr Muir] has agreed to pay [Ms Ross] under the Heads of Agreement." That letter did, however, indicate that there was a consensus as to "proposal 1", namely that Ms Ross' shares should be acquired by a newly formed company and that the Yamba property (rather than shares in BLPL) would be transferred to Ms Ross or her nominee. 1. A wider dispute as to the status of the Heads of Agreement then emerged, when Mr Muir's solicitors responded by their letter dated 20 September 2018 that it: "was and remains [Mr Muir's] right and prerogative to receive and consider reliable tax advice before committing to the finalised terms of any settlement and transaction documents. [Ms Ross] enjoys a corresponding right and prerogative. This reservation is clearly reflected in our clients' position paper going into mediation (as, we understand, it was in your client's as well). The terms of the 3rd May 2018 Heads of Agreement are, accordingly, no more than a record of the parties' agreement in principle (subject to tax and structuring advice) to the amount in gross and other items needed to settle their dispute. On that basis, due to the absence of consensus ad idem, the Heads of Agreement are not binding, and, from [Mr Muir's] perspective, were never intended to be such. The Heads of Agreement are abundantly clear that any deed of settlement would need to have regard to the Grant Thornton and Auswild tax and structuring advice. Indeed, tax and structuring advice, a settlement deed having regard to that advice and other transaction documents are needed to give effect to (and not simply carry out) the agreement in clause 1 of the Heads of Agreement. It is plain that this is the purpose of clause 2 of the Heads of Agreement." 1. In December 2018, Grant Thornton in turn provided a "tax structuring review report" which, inter alia, addressed the means for the Yamba property to be acquired by Ms Ross, the appropriate structure for Mr Muir's acquisition of Ms Ross' "40 per cent interest in LMH" (which treated that interest as limited to Ms Ross' LMH shares) and also reviewed and responded to MinterEllison's previous tax advice. Although Ms Ross relies on that advice as constituting the joint advice required under the Heads of Agreement, Mr Ashhurst also submits that significant aspects of that advice went well beyond the terms of the Heads of Agreement. The parties are also at issue as to whether the advice provided by Grant Thornton constituted the joint tax and structuring advice contemplated by cl 2 of the Heads of Agreement. It is also not necessary for me to resolve these issues, given the findings I reach below on other grounds. 2. Subsequently, on 21 December 2018, Ms Ross' solicitors circulated a draft Share Sale Agreement, draft Deed of Settlement and Release and contract for the sale of Lot 41. Ms Ross subsequently circulated revised agreements, which she seeks to have executed under her application for specific performance of the Heads of Agreement. By a "without prejudice" letter dated 10 October 2019, tendered without objection (Ex P1, 415ff), the Defendants' solicitors provided comments on the transaction documents which Ms Ross sought to have executed, without conceding that the Heads of Agreement was binding or that the documents were in a final form that could be executed and exchanged. Those comments included introducing Muir Burnside Pty Ltd ("Muir Burnside") as trustee of the Marilyn Ross Family Testamentary Trust as an additional party to the Deed of Settlement and Release and to provide for the assignment of the LMH Loan (as defined) by Muir Burnside to Mr Muir or his nominee. The term "LMH Loan" was in turn defined as "the outstanding loan owing by LMH to [Muir Burnside] as trustee of the Marilyn Ross Family Testamentary Trust in the amount of $3,693,731" and that definition was amended to include a reference to any interest on it. The proposed Share Sale Agreement was marked up as being subject to tax review, including as to GST and stamp duty and land tax consequences; to state that Mr Muir would confirm the purchasing entity; and to include reference to the assignment of the LMH Loan (as defined) from Muir Burnside to Mr Muir or his nominee in a specified form and to require Ms Ross, in addition to selling the LMH shares to Mr Muir or his nominee, to procure that Muir Burnside enters into and performs its obligations under the Assignment (as defined). That agreement was also marked up to require that, prior to completion, Ms Ross procure the repayment by Muir Burnside of a substantial loan made by another entity. The amendments proposed by Mr Muir to the transaction documents also include releases to "affiliates" and Muir Burnside and a change to the purchase price for shares in LMH by Ms Ross. Affidavit and other evidence 1. Ms Ross read the affidavits dated 8 April 2019, 8 August 2019 and 22 August 2019 of her solicitor, Mr Scanlan. Mr Scanlan's first affidavit referred to the mediation of the proceedings and to the execution of the Heads of Agreement at that mediation, and to the steps that were subsequently taken to obtain "tax and structuring advice" from Grant Thornton, culminating in Grant Thornton's "tax structuring review report" to which I referred above. Mr Scanlan also referred to extensive without prejudice negotiations between the parties' legal representatives. By his second affidavit dated 8 August 2019, Mr Scanlan referred to the calculations undertaken to value shares in Carsales.com Ltd, to which reference was made in the Heads of Agreement. By his third affidavit dated 22 August 2019, Mr Scanlan referred to the calculation of interest and to the identification of the Yamba property to which reference was made in the Heads of Agreement. He also referred to a joint letter of instruction dated 22 May 2018 sent by the Defendants' previous legal representatives to Auswild and Grant Thornton, reflecting a step contemplated by the Heads of Agreement. Ms Ross also tendered, without objection, a substantial bundle of documents (Ex P1) and paragraphs 1 and 3–5 of the affidavit of Mr Matthew Muir dated 25 May 2019, which referred to his attendance at the mediation and to comments made by the mediator, at the commencement of the mediation, as to the parties' ability to resolve the dispute and provide closure so as to finalise the matter and avoid a costly and potentially stressful Court process. 2. The Defendants read the affidavit dated 27 May 2019 of Mr John Muir, which referred to the history of LMH and associated companies, the mediation and steps subsequently taken in respect of the Heads of Agreement. Mr Muir also referred to loans recorded within the accounts of the LMH Group including a liability owing to the Marilyn Ross Family Testamentary Trust in the amount of $3,693,731 and a liability owing to the John Muir Family Testamentary Trust in the amount of $6,078,651. Mr Muir's evidence (Muir 27.5.19 [28]-[31]) is that the loans owing by LMH to the John Muir Family Testamentary Trust and to the Marilyn Ross Family Testamentary Trust are owed in proportion to their shareholdings in LMH, and I did not understand Mr Ashhurst to take issue with that proposition. The Defendants also tendered a substantial bundle of documents produced under notice to produce and subpoena (Ex D1), which was admitted only to the extent that documents were specifically referred to in Mr Cook's submissions for the Defendants. Whether the Heads of Agreement is a binding and enforceable agreement 1. First, Ms Ross seeks a declaration that the Heads of Agreement is a binding and enforceable contract between Ms Ross and Mr Muir, MWPL as trustee for the John Muir Family Testamentary Trust and LMH for the settlement of the disputes in the proceedings on specified terms. For the reasons set out below, I accept that a binding agreement was formed between the parties, but that agreement is so uncertain, in essential respects, that it is not enforceable. 2. Not surprisingly, Counsel referred to Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360–362, where the High Court identified three categories of case which may exist where parties which have been in negotiation reach agreement upon terms of a contractual nature. The first category of case is one where the parties have reached finality and intend to be immediately bound to the performance of the relevant terms, but propose to have the terms restated in a form which will be fuller or more precise, but not different in effect. A second case is where the parties have reached complete agreement, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. A third case is one in which the intention of the parties is not to make a concluded bargain unless and until they execute a formal contract. At first instance in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628, McLelland J identified a fourth case, where the parties were content to be bound completely and exclusively by the terms they had agreed, while expecting to make a formal contract in substitution for the first contract, containing, by consent, additional terms. 3. Whether a contract has been formed in this situation depends on the objective intention of the parties ascertained from the terms of the relevant document, read in light of the surrounding circumstances, and, if the terms of that document indicate that the parties intended to be bound immediately, then effect must be given to that intention irrespective of the subject matter, magnitude or complexity of the transaction: G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 634, 636; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-9; Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149 at [66]. In Lahodiuk v Pace [2013] NSWSC 512 at [18], Sackar J similarly observed that: "If the terms of such a document indicate that the parties intended to be bound immediately, effect must be given to it. Construction of a document may make it sufficiently clear that the parties were content to be bound immediately by the terms to which they had agreed, notwithstanding they contemplated further documentation (Masters v Cameron (1954) 91 CLR 353 at 360; Anaconda Nickel Ltd v Tarmoola Pty Ltd (2000) 22 WAR 101 at 110 per Ipp J)." 1. In Pavlovic v Universal Music Australia Pty Limited [2015] NSWCA 313; (2015) 90 NSWLR 605, Beazley P (with whom Bathurst CJ generally agreed and Meagher JA agreed) observed (at [64]-[65]) that whether parties intend to be immediately bound, where they have reached agreement as to the terms of a contract but have also agreed that a further, formal agreement is to be executed, is to be determined objectively, having regard to the "outward manifestations" of their intentions. Her Honour also observed (at [65]) that the question was "what each party by words and conduct would have led a reasonable person in the position of the other party to believe". Beazley P also observed (at [69]) that the three classes of case in Masters v Cameron above no longer applied, if they ever were, as strict categories into which cases must fall. Her Honour noted (at [72]) that it was relevant to consider the commercial context and surrounding circumstances of the parties' dealings in determining whether a binding agreement had come into existence. The Court of Appeal also noted (per Bathurst CJ at [15] and per Beazley P at [118] (with whom Meagher JA agreed)), and consistently with the case law to which I referred above, that the Court may have regard to subsequent conduct of the parties in determining whether, at an earlier juncture, the parties intended to enter into a binding agreement. 2. In Nurisvan Investment Ltd v Anyoption Holdings Limited [2017] VSCA 141 at [106], the Court of Appeal of the Supreme Court of Victoria similarly observed that: "In determining whether the Heads of Agreement constituted a binding contract to enter into a Share Sale Agreement, the critical issue concerns the intention of the parties which must be ascertained objectively from the terms of the document, construed in the context of the surrounding circumstances. In that respect, it is relevant to take into account the commercial context and surrounding circumstances of the parties' dealings." [citations omitted] 1. The fact that the parties might negotiate further, additional terms, that were not included in the first agreement, is not necessarily inconsistent with a conclusion that the first agreement constituted a binding contract between them: Nurisvan Investment Ltd above at [107]. The Court may have regard to the conduct of the parties after the date of entry into the alleged contract to determine whether they entered a binding contract: Sagacious Procurement Pty Ltd above at [105]; Nurisvan Investment Ltd above at [77]ff, [82]-[83]. In setting out these principles, I have also drawn on my summary of them in The Owners – Strata Plan No 58087 v Matthews [2015] NSWSC 1906 and ADG United Pty Ltd v EG Enterprises Pty Ltd [2019] NSWSC 745. 2. Mr Ashhurst refers to these principles and submits that the Defendants can only succeed in their primary case if they establish that the intention of the parties, objectively ascertained, was not to be immediately bound by the Heads of Agreement and for there to be no concluded bargain unless and until the Deed of Settlement was executed. He submits, and I accept, that the provision in the Heads of Agreement for Mr Muir to cause the LMH to pay Ms Ross or her nominee a substantial cash amount "on account" of the amount payable under the Heads of Agreement, was consistent with the Heads of Agreement having binding effect. That payment was due to be made, and was made, shortly after the conclusion of the mediation and the execution of the Heads of Agreement. He also submits, and I also accept, that the provision in the Heads of Agreement for a completion date for the settlement deed and transaction documents is also consistent with the Heads of Agreement having binding effect. Mr Ashhurst also emphasises and I accept that it is relevant that cl 3 of the Heads of Agreement does not use the terms "subject to" or "conditional upon" to expressly condition the contemplated transactions upon the execution of subsequent agreements. Mr Ashhurst also submits that the Defendants' contention that the Heads of Agreement was not binding would have the "uncommercial result" that the settlement agreement would terminate because one party was not satisfied with the taxation treatment of the share buyout for which it provided. 3. Mr Ashhurst submits that the Heads of Agreement falls most comfortably into the first category in Masters v Cameron above as one where the parties intended to be bound by its terms and to be required immediately to perform them, while also contemplating entering into a more formal deed of settlement, or alternatively falls in the fourth category identified in G R Securities, where the parties intended to be bound but expected to make a further contract in substitution for the first contract including additional terms. It should be noted, however, that the Heads of Agreement required the execution of a deed of settlement and transaction documents. That was not surprising, given the magnitude of the transaction and the value of the properties involved in it, and these matters tend against a finding that the parties intended that transaction could be effected without the execution of those further documents. It is not necessary to categorise the Heads of Agreement in this way given the other findings that I reach below. 4. In lengthy submissions in response, Mr Cook refers to the parties' expectation, reflected in their position papers, that only an "in principle" agreement would be formed at the mediation. Mr Cook also refers to a difference in the outcome for the parties, if LMH were wound up and its assets distributed to shareholders, and to a claim by Muir Burnside as trustee for the Marilyn Ross Family Testamentary Trust to a further payment of $3.7 million in respect of a shareholder loan, which (as I noted above) Mr Muir contends was included as part of Ms Ross' "40% interest" in the sale. Mr Cook relies on the description of the document executed at the mediation as a "Heads of Agreement" as consistent with an "in principle" rather than a binding resolution of the matters in dispute. He also notes that the Heads of Agreement was not executed by MWPL or LMH, although they were described by parties to it and several clauses impose obligations on them. Mr Cook points out that the Heads of Agreement also provides for dealings with the assets of Muirs Motors (Ashfield) Pty Ltd although it is not a party to the Heads of Agreement. It seems to me that the fact that companies controlled by Mr Muir are not party to the Heads of Agreement should be given little weight where, as I noted above, there is no suggestion that Mr Muir could not procure them to take steps contemplated by it. 5. Mr Cook submits that the reference to "having regard to that advice" in cl 3(b) of the Heads of Agreement requires that: "[T]he settlement deed had to be executed (and impliedly, drafted) having regard to what the joint advice provided. That conclusion gives weight to the fact that the contextual material makes it clear that the parties appreciated that giving effect to the terms of any agreement would have significant taxation consequences for them." Mr Cook relies on that proposition, at least in part, to submit that the Heads of Agreement was not binding upon the parties, prior to execution of more detailed documents which had regard to that advice. While I do not accept that submission, in terms, those matters are significant for whether the Heads of Agreement was sufficiently certain to be enforceable, which I address below. Mr Cook also submits that the provision for joint advice from Auswilds and Grant Thornton did not address the potential that Ms Ross and Mr Muir would have conflicting interests as buyer and seller or that there would be differences in professional opinions expressed by Auswilds and Grant Thornton, or provide any mechanism for a deadlock between the parties to be resolved, and submits that that would be expected in an agreement intended to be binding upon execution. Mr Cook also points to the significance of releases, within complex commercial litigation in which other parties have been joined, and to the absence of any specification of the extent of releases in the Heads of Agreement, or of warranties of the kind that would be expected in respect of a substantial transaction. 1. It seems to me that the Heads of Agreement was a binding agreement, having regard to the matters to which I have referred in paragraph 33 above and the subsequent correspondence with Auswilds and Grant Thornton which was consistent with the existence of a binding settlement between the parties. That agreement plainly contemplated that further documents would be executed, and also required the parties to "have regard" to the joint advice of the accountants in executing the further documents contemplated by the agreement. It seems to me that the Heads of Agreement did not itself establish any obligation to transfer property, other than by the mechanism provided in it, which included the obtaining of the joint tax and structuring advice and the execution of the deed of settlement and transaction documents. I now turn to the question of whether the Heads of Agreement, including that mechanism, was sufficiently certain to be enforceable. 2. The case law requires that the language used in a contract be "certain in the sense that it provides a criterion by reference to which the rights of the parties may ultimately and logically be worked out, if not by the parties then by the courts": Thorby v Goldberg (1964) 112 CLR 597 at 607; Council of the Upper Hunter County District v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 at 437; Braude v Kaye [2013] VSC 705 at [321]. A contract may be void for uncertainty where, inter alia, various meanings are open and it is impossible to say which one of them was intended: Brown v Gould [1972] Ch 53 at 61–2; Braude v Kaye above at [321]. On the other hand, in G Scammell & Nephew Ltd v Ouston [1941] AC 251 at 268, Lord Wright observed that: "the court will do its best, if satisfied that there was an ascertainable and determinate intention to contract, to give effect to that intention, looking at substance and not mere form. It will not be deterred by mere difficulties of interpretation. Difficulty is not synonymous with ambiguity so long as any definite meaning can be extracted. But the test of intention is to be found in the words used. If these words, considered however broadly and untechnically and with due regard to all the just implications, fail to evince any definite meaning on which the court can safely act, the court has no choice but to say that there is no contract." 1. A contractual provision will not be void for uncertainty merely because its language may admit more than one possible meaning or because, when construed, the application of the provision may produce more than one result, unless the Court is unable to attribute to the parties any particular contractual intention or to determine its meaning upon the proper application of the principles of construction: G Scammell & Nephew Ltd v Ouston above; Council of the Upper Hunter County District Council above at 436–7; Brown v Gould above at 61-2; Braude v Kaye above at [336]ff. The Court will endeavour to give effect to a contract reached between businesspeople, even if its terms are not fully or well stated, although whether the parties have expressed their agreement carefully is a matter relevant to whether they have entered into an agreement, and the Court should seek to put a fair meaning on a contractual provision unless it is impossible to do so: Council of the Upper Hunter County District above at 436; Hammond v Vam Ltd [1972] 2 NSWLR 16 at 18; Sagacious Procurement Pty Ltd above at [73]; Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98 at [143]. The omission of a term of a contract will also not render the contract incomplete and uncertain, and therefore void, unless the term is essential: Australian Goldfields NL (in liq) v North Australian Diamonds NL above at [140]. 2. There is, first, a question of construction, and as to certainty, in respect of cl 1 of the Heads of Agreement. The Defendants contend that cl 1 of the Heads of Agreement is uncertain, and alternatively extends to the "sale" (or, strictly, assignment or novation) of the amounts owed by LMH to Muir Burnside as trustee of the Marilyn Ross Family Testamentary Trust (being 40% of the shareholder loans to LMH) to Mr Muir or his nominee, in part consideration for the substantial price to be paid by Mr Muir. Mr Cook submits that the reference to the transfer of Ms Ross' "40% interest in LMH" was not a reference to a simple transfer of her 40% shareholding, but would also need to extend to shares that she held in MWPL, together with Mr Muir, which in turn held 20% of the shares in LMH as trustee. Mr Cook submits that the Heads of Agreement is also uncertain because there is no definition of what Ms Ross' "40% interest in LMH" means. Mr Cook also points out that the Defendants' position paper for the mediation had referred to liabilities of LMH to companies outside the LMH Group, including to Muirs Burnside as trustee of the Marilyn Ross Family Testamentary Trust although, I should add, it did not address what should be done with them and Mr Ashhurst points out that there is no evidence whether that was discussed at the mediation. 3. Mr Ashhurst submits that that clause is certain and deals only with Ms Ross' shares in LMH, and that it does not address the liability of LMH to Muir Burnside as trustee of the Marilyn Ross Family Testamentary Trust. Mr Ashhurst submits that that is the preferable reading of that clause, because Muir Burnside as trustee of the Marilyn Ross Family Testamentary Trust is not party to the Heads of Agreement and was not party to the proceedings. The weight of that matter is reduced by the fact that there is no suggestion that Ms Ross does not have the ability to procure Muir Burnside as trustee of the Marilyn Ross Family Testamentary Trust to transfer or assign the amount owed to it to Mr Muir or his nominee and there was therefore no need for it to be party to the Heads of Agreement to allow it to be implemented. Mr Ashhurst also submits that the reference to Ms Ross' "40% interest" in LMH is plainly and unambiguously a reference to her holding 1,600 out of the 4,000 ordinary shares on issue in LMH, which are the subject of the sale and purchase agreed in cl 1 of the Heads of Agreement. That submission is to some extent circular, since the content of the obligation in cl 1 of the Heads of Agreement depends upon whether or not the reference to Ms Ross' "40% interest" in that clause is limited to her shares in LMH, or extends to her interest, through the Marilyn Ross Family Testamentary Trust, in shareholder loans owed by LMH. 4. It seems to me that cl 1 of the Heads of Agreement, which is an essential provision for the payment of money by Mr Muir to Ms Ross and the transfer of assets by Ms Ross to Mr Muir or their respective nominees, could potentially bear more than one meaning as to the content of Ms Ross' "40% interest in LMH", and I had been troubled in the course of the hearing that that ambiguity may not be capable of resolution by the Court. The term "interest" in that phrase is not defined, and, as is common ground between the parties, would at least include Ms Ross' shares or interest in shares in LMH. The possibility that term extends more widely is open since Ms Ross (or, more precisely, Muir Burnside as trustee of the Marilyn Ross Family Testamentary Trust) also has, in a sense, a 40% interest as a creditor in the shareholders loans owed by LMH and the straightforward terms "shares" or "interest in shares" are not used in that clause. That wider approach is plausible where, had Ms Ross been asked to identify her interest in LMH to, for example, her accountant, she might well have responded that she held a 40% interest as shareholder and, through the Marilyn Ross Family Testamentary Trust, as creditor in respect of shareholder loans. 5. On balance, although with hesitation, I have concluded that this ambiguity is capable of resolution by the Court and does not render the Heads of Agreement unenforceable. First, the clause refers to Ms Ross' 40% "interest" in LMH, and a creditor owed a debt by a company would not ordinarily be described as having an "interest" in a company by reason of that debt; second, although it would be commercially plausible for that debt to be repaid as part of a settlement, the contrary position is also plausible, and other debts owed by LMH were to be left in place; and, third, and importantly, the Court can have regard to subsequent conduct in construing that clause and I was not taken to any evidence indicating any significant focus by the parties on the novation or assignment of that debt in the period immediately after the Heads of Agreement was executed. It seems to me that the better view is that this clause, considered broadly and untechnically and with regard to the parties' subsequent conduct, has the meaning for which Ms Ross contends, and the availability of two possible interpretations does not rise to the level of a failure to evince any definite meaning on which the Court can safely act, adopting the language of Lord Wright in G Scammell & Nephew Ltd v Ouston above at 268. The proper construction of that clause can be, and now has been, determined by the Court. For this reason, it seems to me that cl 1 of the Heads of Agreement is not too uncertain to be enforceable and the Heads of Agreement does not fail for uncertainty with that clause. 6. That is not, however, the end of the uncertainties that potentially render the Heads of Agreement unenforceable. As I noted above, paragraph 1(b) of the Heads of Agreement contemplates the transfer of LMH's "beneficial interest" in Lot 41 to Ms Ross or her nominee, either by transfer of the land or LMH's shares in BLPL, "having regard to" the advice specified in cl 2 of the Heads of Agreement. Clause 3(b) of the Heads of Agreement requires a deed of settlement to be executed "having regard to" that tax and structuring advice. 7. Mr Cook submits that the Heads of Agreement is uncertain because it did not make clear how any deed of settlement was to have regard to the joint advice, or what was the scope of the joint advice which would inform any transaction documents. In submissions in reply, Mr Ashhurst responds that the absence of a mechanism for resolving a "deadlock" in the tax and structuring advice is not an uncertainty affecting the agreement, where a joint engagement is not an adversarial process. It remains that the joint engagement was capable of demonstrating that the parties were differently impacted by the transaction, and the Heads of Agreement did not address how that was to be resolved. 8. In a further document headed "Plaintiffs' Summary of Issues", provided on the date of the hearing, which had something of the character of further submissions in reply, Mr Ashhurst submitted that the reference to "structuring advice" in cl 2 of the Heads of Agreement should be understood as limited to whether Mr Muir or a nominee would purchase Ms Ross' 40% interest in LMH and whether the Yamba land or shares in the company that owned that land would be transferred to Ms Ross. I do not accept that submission, which is not consistent with the width of language used in the Heads of Agreement; is not consistent with the complexity of the tax and commercial issues raised by the transaction; and is radically inconsistent with the subsequent conduct of the parties, in seeking advice from MinterEllison (on the part of Mr Muir) and Grant Thornton (whether jointly or on behalf of Ms Ross) that extended to substantially wider structuring issues. Mr Ashhurst also there submitted that: "The expression 'having regard to' means what it says, that is that the two variables [as to the purchase of Ms Ross' 40% interest in LMH and the structure for sale of the Yamba land or shares in the company that owned it] should be determined by having regard to the joint advice." As I noted above, I do not accept that the relevant advice was so narrowly confined and that submission does not assist as to how those matters are to be determined having regard to that advice. 1. It seems to me cll 1(b) and 3(b) of the Heads of Agreement are too uncertain to be enforceable, because they provide no criteria by which the parties are to give effect to such advice, in whole, in part, or not at all, after they have had "regard to" it. There was an obvious potential in this transaction that one or other party would be advantaged or disadvantaged by a structure for the settlement and relevant transactions that adopted a particular form, for example, when it emerged (as was the case) that a sale of Ms Ross' interest in LMH was less advantageous than, for example, a winding up of LMH. The requirement for the parties to have "regard to" that advice provides no basis to determine what should be included in a deed of settlement in addressing their potentially different interests as to the structure of the transaction once such an advantage or disadvantage was identified by that advice. A similar difficulty arises with cl 3(c) of the Heads of Agreement. That clause does not expressly refer to the taxation and structuring advice, although Mr Ashhurst characterised that as a drafting error, and it also provides no criteria to determine the content of the transaction documents if a dispute arose between the parties, as it did. It may be possible that a requirement to have "regard to" the joint advice could be read into that clause as a matter of construction rather than by rectification. However, even if that were the case, that clause would still provide no criteria and no mechanism as to how that advice, or the parties' differing interests or particular issues arising from that advice, should be reflected in the content of the transaction documents. 2. Mr Ashhurst submitted that, if the Court reached that view as to the uncertainty and unenforceability of cl 3 of the Heads of Agreement, it could be severed from the Heads of Agreement and the parties made supplementary submissions, by leave, as to principles of severance. Mr Ashhurst referred to Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227 where Macfarlan JA (with whom Bathurst CJ and Meagher JA agreed) distinguished between the essential parts of a contract, and merely mechanical provisions designed to implement an existing agreement between the parties, in holding that the Court could make an order for specific performance where the parties had agreed the essential elements of the bargain. Mr Ashhurst also drew attention to one English decision, Pena v Dale [2004] 2 BCLC 508, where a provision that contemplated options or their equivalent would be issued in the "most tax-efficient manner" could be severed, with the agreement for the issue of the option remaining enforceable. That case is readily distinguishable from this case, given the complexity of the transactions contemplated here. Mr Ashhurst otherwise acknowledged that whether a term or part of a contract was severable for uncertainty would be a question of construction, depending on the intention of the parties to be gathered from the instrument as a whole, and referred to several cases which had formulated and given effect to that approach. Mr Ashhurst also submits that tax and structuring advice was not necessary in respect of the acquisition of Ms Ross' shares by Mr Muir or his nominee for cash and that the requirement to have regard to such advice could be severed in respect of the transfer of the Yamba land, leaving that transfer to be effected without regard to tax advice. That submission seems to me to be inconsistent with the express terms of the parties' agreement and radically inconsistent with the manner in which they had conducted themselves. 3. Mr Cook responds, by reference to the commentary on severance in J D Heydon, Heydon on Contract (Lawbook Co 2019) at [3.480], also recognising that severance depends on the intention of the parties to be gathered from the instrument as a whole. Mr Cook submits that cll 2 and 3 of the Heads of Agreement made clear that the parties intended to give effect to any agreement in cl 1 in the manner contemplated by cl 3, which required the performance of the obligations in cl 2 of the Heads of Agreement. Mr Cook submits, and I accept, that what would remain, if cll 2 and 3 were to be severed from the Heads of Agreement, would not be what the parties had agreed. Mr Cook also submits that cll 1-3 of the Heads of Agreement form an indivisible whole which cannot be taken to pieces without altering its nature, and that the parties' intention, emerging from the Heads of Agreement, was not to enter an agreement in respect of cl 1 without taking the steps contemplated by cll 2 and 3; and that cll 2 and 3 of the Heads of Agreement were not mere "machinery provisions", but were central to the process for Ms Ross' extracting her 40% interest in the LMH group, and could not be severed without giving rise to a different agreement to that reached by the parties. 4. It seems to me plain, both from the terms of the Heads of Agreement and the voluminous correspondence between the legal representatives and Grant Thornton, that the parties were far from indifferent to whether tax liabilities would arise from any particular means of implementing the transaction. I do not accept that severance of the clauses that I have found to be uncertain is possible in these circumstances. 5. For these reasons, the Heads of Agreement is too uncertain to be enforceable. That perhaps reflects the parties' attempts to achieve two potentially (and, in the event, actually) inconsistent objectives, both to achieve a binding agreement at the conclusion of the mediation and to leave open a means to address unknown tax and structuring issues in a complex transaction. There was likely good reason for the parties to take that course at the time, since the Heads of Agreement had the potential to bring the parties to a prompt and cost efficient resolution of the matter, had they been more cooperative in addressing the issues that arose from the subsequent tax advice, although it has ultimately failed to achieve an enforceable resolution of the dispute. 6. I should note that Mr Cook also advances further submissions as to the fact that, plainly, the parties did not conduct themselves in accordance with the timetable and aspects of the mechanism contemplated by the Heads of Agreement. It is not necessary to address those matters given the conclusions I have reached on other grounds. As an alternative submission, if the Heads of Agreement were held to be binding and enforceable, Mr Cook contended that the proper construction of the Heads of Agreement required, as a step in the specific performance of the Agreement, that there be an assignment of the loan account held by Muir Burnside, the trustee of the Marilyn Ross Family Testamentary Trust of which Ms Ross was beneficiary, to Mr Muir or his nominee. Mr Cook also contended that the transaction had been frustrated, because no joint advice had been procured and no deed of settlement had been prepared which had regard to that advice. It is also not necessary to address those submissions given the conclusions that I have reached on other grounds. Date for completion and consequential calculations 1. Ms Ross seeks a declaration as to the date for completion in the Heads of Agreement and two figures to be calculated pursuant to the Heads of Agreement. This issue does not arise given my finding that the Heads of Agreement is unenforceable for the reasons noted above. Order for specific performance of the Heads of Agreement 1. Ms Ross also seeks an order that the Heads of Agreement be specifically performed and carried into execution by four agreements in specified form, namely a Deed of Settlement and Release between Ms Ross and the three Defendants; a Share Sale Agreement between Ms Ross and Mr Muir; a contract for the sale and purchase of land between Ms Ross and BLPL to be executed by Mr Muir as director and secretary of that company; and a transfer from BLPL to Ms Ross, to be executed by Mr Muir in his capacity as director and secretary of that company. 2. That order cannot be made, because the Heads of Agreement is too uncertain to be enforceable for the reasons noted above. It also could not be made, even if the Heads of Agreement were enforceable, because (putting aside the question whether the debt owed to Muir Burnside as trustee of the Marilyn Ross Family Testamentary Trust was to be assigned or novated, which I have determined above), its terms do not provide any basis by which the general provisions of the Heads of Agreement could be translated into the specific provisions of the particular agreements for which Ms Ross contends, rather than the alternative forms of those agreements proposed by the Defendants, or many other different agreements that would also have been consistent with the general framework of the Heads of Agreement. An alternative order sought by Ms Ross for the Registrar to sign such documents could not be made for the same reason. Order for advice to be obtained from Auswilds and Grant Thornton 1. Alternatively, Ms Ross seeks an order that the parties do all things necessary to obtain joint tax and structuring advice from Auswilds and Grant Thornton, against the contingency that the Court would find that they had not yet done so. The Court could not make an order in that form, where there is no evidence that Auswilds or Grant Thornton would be prepared to give such advice and numerous discretionary judgments would need to be made in determining the instructions to be given to them. In any event, there would be no utility in making such an order, since such advice could not lead to any useful result where the Heads of Agreement is too uncertain to be enforceable, and does not provide any basis for determining the content of transaction documents that would give effect to it, and any further advice from Auswilds and Grant Thornton would not resolve that difficulty or take the parties closer to a resolution. Order for specific performance of the Heads of Agreement 1. Finally, and in the alternative to the earlier orders sought, Ms Ross seeks an order that the Heads of Agreement itself be specifically performed and carried into execution and certain steps be taken. That order also cannot be made, where the alternative constructions of the provisions of the Heads of Agreement that are properly available render it uncertain and unenforceable for the reasons noted above. Orders 1. The parties have, regrettably, devoted a significant amount of time and likely incurred substantial costs in this application, and that is exacerbated by the vacation of an earlier hearing date for this application following the late service of revised draft documents that Ms Ross sought to have executed. In the event, the Plaintiff's Amended Notice of Motion will be dismissed with costs. It will be necessary to hear the parties further as to any orders to be made under the Defendants' Interlocutory Process and as to any order for restitution of amounts paid under the Heads of Agreement, both to Ms Ross and Mr Muir, if the parties seek to press that issue. 2. The matter will be relisted in the Corporations List on 18 November 2019, when I will make directions to bring the substantive proceedings to a hearing, likely in the first half of 2020. I direct the parties to bring in agreed short minutes of order within 7 days to give effect to this judgment. ********** 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: 06 November 2019