Chambers v Brice [2013] QSC 232

SUPREME COURT OF QUEENSLAND CITATION: Chambers v Brice [2013] QSC 232 PARTIES: JOHN CHARLES CHAMBERS (First plaintiff) AND DORRIGO PROPERTY PTY LTD (Second plaintiff) AND HARROD HOLDINGS PTY LTD (Third plaintiff) v ROBERT ANDREW CREETH BRICE (Defendant) AND SUSAN MARGARET CHAMBERS (Defendant by counterclaim) FILE NO/S: BS1317 of 2010 DIVISION: Trial Division PROCEEDING: Claim DELIVERED ON: 5 September 2013 DELIVERED AT: Brisbane HEARING DATE: 11–15, 18–20, 22, 25–28 February 2013, 6 March 2013; Judgment delivered on 27 March 2014. JUDGE: Peter Lyons J ORDER: 1. Judgment for the first plaintiff on his claim against the defendant in the sum of $2,086,700 together with interest to be determined. 2. Judgment for the defendant on his counterclaim against the second and third plaintiffs in the sum of $1,500,000 together with interest to be determined. CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – where the first plaintiff is a qualified veterinarian and has practised as such for most of his working life – where the first plaintiff had developed an interest in Wagyu cattle – where the defendant had provided the first plaintiff with a range of accounting services since 1992 –– -- 1 of 58 -- 2 where around the end of August 2007 there were telephone calls between the defendant and the first plaintiff where a number of transactions were discussed – where the content of the phone calls is contentious – where the first plaintiff alleged that during those telephone calls a contract was formed between the first plaintiff and the defendant – where the defendant alleged that no agreement was reached during the telephone conversations – where the defendant alleged that even if an agreement was reached it was not sufficient to constitute a binding and enforceable contract because the subject matter of some elements of it, and some of the terms, were not sufficiently identified – where the defendant alleged that the parties did not intend to be contractually bound or alternatively they did not intend to be contractually bound until the agreement was reduced to writing – where the defendant alleged that the agreement was uncertain – where the plaintiff alleged a number of matters after the end of August 2007 were carried out in part performance of the agreement – whether a binding agreement had been formed DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTION FOR BREACH OF CONTRACT – GENERAL – where the first plaintiff alleged that the appropriate date for the assessment of damages is the date on which the defendant either breached or repudiated the contract – where the defendant alleged the relevant date is the date identified under the contract for completion – where there was no express agreement about the time for delivery of the cattle – whether the appropriate date for the assessment of damages is the date the defendant either breached or repudiated the agreement EQUITY – GENERAL PRINCIPLES – FIDUCIARY OBLIGATIONS – ASCERTAINMENT OF RELATIONSHIP – where the defendant had provided the first plaintiff with a range of accounting services since 1992 – where the defendant continued to provide advice to the first plaintiff until at least the end of 2007 – where in that period the first plaintiff continued to rely on the defendant for advice, in particular during the course of the August 2007 telephone conversations – whether the defendant was a fiduciary in relation to the first plaintiff Evidence Act 1977 (Qld), s 92 400 George Street (Qld) Pty Ltd v B G International Ltd [2010] QCA 245 Alford v Ebbage [2004] QCA 283 Allen v Carbone (1975) 132 CLR 528 B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 -- 2 of 58 -- 3 Big Top Hereford Pty Ltd v Gavin Thomas as Trustee of the Bankrupt Estate of Douglas Keith Tyler [2006] NSWSC 1159 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Browne v Dunn (1894) 6 R. 67 Brunninghausen v Glavanics (1999) 46 NSWLR 538 Bulstrode v Trimble [1970] VR 840 Carmichael v National Power Plc [1999] 1 WLR 2042 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 Emeness Pty Ltd v Rigg [1980] 1 Qd R 172 Ermogenous v Greek Orthodox Community (2002) 209 CLR 95 Film Bars Pty Ltd v Pacific Film Laboratories (1979) 1 BPR 9251 Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 Hall v Busst (1960) 104 CLR 206 Hillan v Lewis [2012] NSWSC 640 Hospital Products v United States Surgical Corporation Howard Smith & Co Ltd v Varaw (1907) 5 CLR 68 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 Johnson v Agnew [1980] AC 367 Johnson v Perez (1988) 166 CLR 351 Love and Stewart Ltd v S Instone & Co Ltd (1917) 33 TLR 475 Lym International Pty Ltd v Marco Longo [2011] NSWCA 303 Maguire v Makaronis (1997) 188 CLR 449 McDonald v Shoalhaven City Council [2013] NSWCA 81 Meehan v Jones (1982) 149 CLR 571 Moffatt Property Development Group Pty Ltd v Hebron Park Pty Ltd [2009] QCA 60 NCH v Western Australia [2013] WASCA 29 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Pagnan SPA v Feed Products (1987) 2 Lloyd‟s Rep 601 Pasqualotto v Pasqualotto [2013] VSCA 21 Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165 Robinson v Harman (1848) 1 Ex 850 Rossiter v Miller (1878) 3 App Cas 1124 Scammell & Nephew Ltd v Ouston [1941] AC 251 Securities and Exchange Commission v Chenery Corporation (1943) 318 US 80 Seven Cable Television Pty Ltd v Telstra Corporation Ltd (2000) 171 ALR 89 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 -- 3 of 58 -- 4 Van der Velde v Halloran [2011] WASCA 252 Watson v Foxman (1991) 49 NSWLR 315 WAQ v Di Pino [2012] QCA 283 Weemah Park Pty Ltd v Glenlaton Investments Pty Ltd [2011] QCA 150 York Air Conditioning and Refrigeration (A/sia) Pty Ltd v Commonwealth (1989) 80 CLR 11 COUNSEL: D Kelly QC and E Goodwin for the plaintiffs and defendant by counterclaim R Bain QC and G Beacham for the defendant SOLICITORS: Hopgood Ganim for the plaintiffs and defendant by counterclaim Tresscox for the defendant [1] Peter Lyons J: In 2007 and 2008, the first plaintiff, Mr Chambers, had dealings with the defendant, Mr Brice, in relation to sale of cattle and other matters. The parties other than Mr Brice (Chambers parties) contended that those dealings resulted in an agreement, of contractual effect, primarily for the sale of cattle by Mr Chambers to Mr Brice, which agreement was subsequently terminated, on the basis of repudiatory conduct by Mr Brice. Alternatively they alleged that Mr Brice is estopped from denying the existence of that contract. They also alleged that Mr Brice is liable for damage for breach of his obligations as a fiduciary. They also claimed other relief against him. [2] Mr Brice denied that he reached an agreement with Mr Chambers. He denied that he is bound by an estoppel. He also denied breach of fiduciary obligations. [3] Mr Brice also claimed from the second plaintiff (Dorrigo Property) and the third plaintiff (Harrod Holdings) money advanced under a loan agreement, together with interest. He claimed against Mr Chambers monies for agistment fees. He also made a restitutionary claim against Mr Chambers, and his wife, the defendant by counterclaim (Mrs Chambers), in respect of monies paid for semen straws; and against Mr Chambers he made a similar claim in respect of monies paid for embryos. Background [4] Mr Chambers is a qualified veterinarian and has practised as such for most of his working life. [5] In his early years he practised in Queensland. In 1978 he married Mrs Chambers and, shortly after, moved to Darwin where he established a veterinary practice. In 1988 he sold his practice and returned to Brisbane1. [6] In the same year, Mr Chambers was charged with two counts of operating a bank account in a false name. He was sentenced to a term of imprisonment of three months, which he served. It would appear that the offending was related to tax 1 See ex 2. -- 4 of 58 -- 5 matters, but by the time of sentence Mr Chambers had resolved any related disputes with the Deputy Commissioner of Taxation. [7] After his release from prison, Mr Chambers did not return to work immediately. His evidence was that in about 1990, a solicitor suggested that he contact Mr Brice to look after his bookkeeping and tax affairs for the future, so that they might be conducted in the normal fashion without further tax related problems2. [8] By this time, Mr Brice had been an accountant for quite a number of years. He had been an auditor with the accounting firm, Arthur Anderson, for ten years. In 1977 he commenced to practise as the principal of AH Jackson & Company (Jackson). Although he subsequently took on partners, he remained a principal of Jackson until he retired on 30 June 2004. [9] From about 1992, when Mr Chambers returned to practice in Darwin, Mr Brice provided Mr Chambers with a range of accounting services, including financial and tax-related advice. [10] In Darwin, Mr Chambers conducted his practice as the Darwin Veterinary Hospital3. On 11 June 1999, Darwin Veterinary Hospital Superannuation Fund (Superannuation Fund) was established, with Mr and Mrs Chambers as trustees4. [11] Shortly after his return to Darwin, Mr Chambers entered into a partnership with another veterinarian, Mr Simon Coates, related to breeding and raising cattle. By this time, Mr Chambers had developed an interest in Wagyu cattle, specifically in their breeding, the production of calves from embryos, and the raising of these cattle. He considered that Mr Coates might assist him, because of his background in beef cattle raising5. [12] In time, Mr Chambers came to conduct his veterinary practice from premises also referred to as the Darwin Veterinary Hospital (Hospital). The Hospital is owned by Harrod Holdings, the shareholding in which was said to be under the control of Mr and Mrs Chambers6. [13] When Mr Brice retired as a partner of Jackson on 30 June 2004, he became a consultant to that firm. His pleaded case is that since late 2004 he has not undertaken accountancy work, or provided accounting or other financial advice, to Mr Chambers; and that those services have been provided by Ms Catherine Zammit7. He gave oral evidence that he ceased providing financial advice to Mr Chambers “in or about 2004”8. [14] By the time of the trial, Ms Zammit had married; and she gave evidence under her married name of Mrs Catherine Bryant. However, consistent with much of the evidence, it is convenient to refer to her as Ms Zammit. On graduation from university in December 1999, she commenced employment at Jackson. She became 2 See T2-23. 3 T2-25/50. 4 Ex 1, tab 1. 5 T2-25/10. 6 See T3-10/10. 7 Defence para 6. 8 T10-26/5. -- 5 of 58 -- 6 a partner in that firm on 30 June 20099. From about the time when she commenced to be employed by Jackson, she worked on Mr Chambers‟ affairs10. It would appear that until his retirement, Ms Zammit worked under the supervision of Mr Brice. Thereafter, for times of present relevance, her work was supervised by Mr Mark Page, a partner of the firm. [15] In August 2004, Mr Brice provided recommendations relating to the conduct of that part of the veterinary practice which involved the sale of pharmaceutical products. That part of the practice was to be conducted by a company, DVH Pharmaceutical Pty Ltd (DVH Pharmaceutical), as trustee of the DVH Pharmaceutical Trust. Mr Brice made recommendations about the shareholding and directorship of the trustee, and arranged for solicitors to incorporate the trustee of the trust, with Mr Brice providing the settlement sum11. Subsequently, on 17 September 2004, Ms Zammit provided practical guidance about the conduct of the business of the trust12. That followed discussions the previous day involving Mr Brice, Mr Page and Mr Chambers13. [16] On 14 January 2005, DVH Pharmaceutical purchased a property at 61 Smith Street in Darwin (Smith Street). It was a commercial property, purchased with the intention of letting it, but, because of its condition, attempts to do so were unsuccessful. The purchase price was $2,000,000, of which $1,700,000 was borrowed on the security of a mortgage over that property and the Chambers‟ family home14. The purchase was the result of advice given by Mr Brice, in about 2004, that Mr Chambers should buy some commercial real estate in Darwin15. [17] In the second half of 2005 and in January 2006, Mr Chambers was seeking advice about his cattle business, and in particular about a “structure to provide some form of asset protection”16. It is apparent that the discussions recorded in the timesheets of Jackson, to which Mr Brice was a party, related to the manner in which Mr Chambers‟ cattle business was to be structured, as well as to asset protection and other matters17. Mr Brice also took part in discussions in May 2006, the only apparent explanation for which is the finalisation of tax returns for Mr Chambers18. [18] Mr Norbury Schwennesen is Mr Brice‟s son-in-law. By late 2005, Mr Schwennesen had become interested in engaging in the business of cattle production. Mr Brice telephoned Mr Chambers about this. It is contentious whether in the course of this conversation Mr Chambers simply offered to provide some guidance to Mr Schwennesen19; or whether the basis of the discussion was that Mr Brice, Mr Schwennesen and Mr Chambers might use their joint efforts to enhance and grow a business for marketing Wagyu meat20. Subsequently, late in 9 T8-2/35. 10 T8-22/40. 11 Ex 1, tab 3. 12 Ex 1, tab 4. 13 Ex 1, tab 633, p 3602. 14 T2-26 and 27. 15 See Statement of Claim para 8(d)(8); Defence para 10(d). 16 Ex 1, tab 10 (which seem to relate primarily to exporting beef, and the QLW Group, but extended to Mr Chambers‟ business structure) and tab 12. 17 Ex 1, pp 3605 to 3610. 18 Ex 1, p 3609. 19 T2-36. 20 T9-15/55 to 9-16/31. -- 6 of 58 -- 7 January 2006, at Mr Chambers‟ suggestion, Mr Schewennesen and Mr Chambers went to a property called “Bogandilla”, near Dulacca. A purpose of the trip was to enable Mr Brice and Mr Schewennesen to meet a Mr Takeda, who, the evidence indicates, was regarded as a significant figure in the Wagyu breeding industry. It also gave them the opportunity to observe something of Mr Chambers‟ Wagyu breeding business conducted on the property, and to meet Mr Sam Lingard, described by Mr Chambers as the technician responsible for the embryo transfers as part of Mr Chambers‟ Wagyu breeding operation21. [19] Thereafter, Mr Chambers provided detailed advice to Mr Schwennesen relating to the breeding and raising of Wagyu cattle22. By early 2006 Mr Chambers had entered into a Memorandum of Understanding with other parties relating to the fattening of Wagyu cattle in a feed lot, and the subsequent marketing of meat, under the label “Queensland Longfed Wagyu” (QLW). He provided a copy of the document to Mr Schwennesen23. [20] In May 2006, the company Ywagyu Pastoral Co Pty Ltd was incorporated24. At about the same time a partnership called the Ywagyu Pastoral Co (Ywagyu) was established between a trust of which Mr Schwennesen and his wife were trustees, and a company which was the trustee of the RAC & JD Brice Pastoral Trust25. Ywagyu Pastoral Co Pty Ltd was then appointed manager of the partnership26. [21] Throughout 2006, Mr Chambers continued to provide substantial advice to Mr Schwennesen. Much of the advice was directed to a proposed breeding program. However it extended to prices which might be received for Wagyu meat, information from Mr Chambers‟ personal records relevant to the preparation of a cash flow projection, and other assistance with marketing. [22] Mr Chambers gave evidence that in about the middle of 2006 he was considering the purchase of some Wagyu semen straws from Mr Takeda, using the Superannuation Fund. Some 911 semen straws were in fact purchased by Mr and Mrs Chambers as trustees of the Superannuation Fund, at $50 per straw, plus GST27. He gave evidence that he asked Mr Brice whether that could be done, and Mr Brice agreed28. He also gave evidence that Mr Brice then asked him whether he should also purchase some semen straws, which Mr Chambers recommended. As a result Mr Chambers placed an order for semen straws on behalf of Ywagyu29. Mr Chambers identified a document as the order form30. Mr Chambers gave evidence that the details in the right column were filled in by Mr Schwennesen. Essentially Mr Schwennesen gave evidence that he had completed the document and sent it to Australian Wagyu Beef31. Mr Chambers sent an email to Mr Schwennesen on 6 June 2006 which included the partly completed order, together with an order that Mr Chamber had placed for straws, at a price of $50 per straw. In his evidence in 21 See T2-37 and 38. 22 See for example ex 1, tabs 14 and 15. 23 Ex 1, tab 16. 24 Ex 1, tab 23. 25 Ex 1, tab 24. 26 Ex 1, tab 27. 27 Ex 1, tab 20. 28 T2-40 to 41. 29 T2-41. 30 Ex 1, tab 666.02. 31 T12-18. -- 7 of 58 -- 8 chief, Mr Brice provided corroboration of this, to the extent that he said that Mr Chambers recommended the purchase of certain semen straws from Mr Takeda‟s company; and Mr Chambers was to arrange the purchase32. [23] On 12 July 2006, Ywagyu entered into an agreement to purchase 200 Wagyu embryos from Mr Chambers at a price of $500 per embryo33. The agreement was prepared by Mr Schwennesen, with Mr Chambers‟ assistance. [24] In August 2006, Mr Schwennesen visited Mr Chambers in Darwin where he observed the Herdmaster Computer Program being used by Mr Chambers in relation to his Wagyu herd, and demonstrated that he had been able to use Excel to record pedigrees34. There was subsequent email correspondence between Mr Chambers and Mr Schwennesen relating to these programs. [25] At about this time Mr Brice had entered into a contract to purchase a property called “Lockerbie”, near Beaudesert. The contract settled in October 200635. Because Bogandilla was in drought, Mr Chambers agreed with Mr Brice to agist some of his cattle on Lockerbie. Mr Chambers agreed to pay an agistment fee, and to make payments related to the management of property, but there was no written record of the agreement36. Mr Chambers‟ cattle first arrived at Lockerbie on about 11 October 2006. [26] It is apparent that in the latter part of 2006, Mr Chambers was giving consideration to the purchase of a rural property in New South Wales37. In the first half of 2007, Mr Chambers was also giving consideration to the transfer of Smith Street to the Superannuation Fund38. [27] On 1 June 2007, Mr Brice, Mr Chambers and Mr Schwennesen travelled to Macquarie Downs to meet Mr Tony Fitzgerald. A purpose of the meeting was to discuss the acquisition by Ywagyu of meat from cattle fattened there on behalf of QLW. On 20 June 2007, Mr Schwennesen sent an email to Mr Fitzgerald offering to purchase some of the cattle. Subsequently, there was a telephone conference involving Mr Brice, Mr Schwennesen, Mr Fitzgerald, Mr Chambers and Mr Robert Bryett, representing another member of QLW. In it Mr Bryett expressed concern about selling meat to Mr Brice and Mr Schwennesen, if they would in turn sell in competition with Australian Agricultural Company, an existing client of QLW39. [28] About the middle of 2007, Mr Brice telephoned Mr Chambers. The terms of the conversation are in dispute, but it is clear it related to the possible acquisition of some of Mr Chambers‟ Wagyu herd. Early in August, Mr Brice and Mr Schwennesen travelled to Darwin. They met with Mr Chambers at his veterinary clinic in Darwin. It is not controversial that, at the meeting, the parties discussed how Mr Chambers‟ herd might be valued, that Mr Schwennesen demonstrated the use of a cash flow model, and Mr Chambers expressed the view that his full blood 32 T9-21/20-50. 33 Ex 1, tab 666.01. 34 T6-19 to 20 and ex 1, tab 52. 35 Ex 1, tab 55; defence para 18(f). 36 Defence par 18(f); reply par (e) and (d); T11-40 to 41 and 11-66/20. 37 See ex 1, tab 113; see also ex 1 p 3615, entry for 20/12/2006. 38 Ex 1, tab 130. 39 T2-56. -- 8 of 58 -- 9 Wagyu breeding cows were worth approximately $10,000 per head. It is also not controversial that some discussion related to the sale by Mr Chambers of his veterinary practice in Darwin, though there was an issue as to whether he expressed a positive intention to do so40. Mr Chambers gave evidence, contradicted by Mr Brice, that Mr Brice said that if a substantial number of animals were involved in the purchase, a premium would attach because the number would permit a viable business operation41. Mr Chambers said that Mr Brice stated that he wanted to identify goodwill in relation to the possible sale, and a period, suggested as three years, over which information was to be transferred to himself and Mr Schwennesen42. This evidence is somewhat controversial. [29] On this visit, Mr Brice saw Smith Street, and was aware that it could not be leased43. [30] On 19 August 2007, Mr Schwennesen sent an email to Mr Brice showing figures he had derived by means of a cashflow exercise, relating to Mr Chambers‟ cattle44. The number of cattle referred to was 470 head; the calculated price per head ranged from $11,436 to $14,797; and the value of half the herd ranged from $2,687,000 to $3,477,000 (depending on the adopted discount rate). These figures were compared to a calculated amount of $2,350,000 on the basis of the $10,000 per head for half the herd mentioned by Mr Chambers. This reference was followed by the statement, “NB not including Bulls or straws”, the last word undoubtedly being a reference to semen straws. [31] On 26 August 2007, Mr Schwennesen sent an email to Mr Chambers, with a copy to Mr Brice45. The subject line read, “Calculations behind pricing of herd”. The email itself commenced with the statement, “Attached is the file which shows how I have come up with my valuation of the herd.” It then stated that Mr Brice had requested Mr Schwennesen to show the difference resulting from the use of different discount rates. Attached was a spreadsheet setting out details of the calculations and data, with resulting values. The values were the same as those communicated to Mr Brice in the email of 19 August 2007. [32] Around the end of August 2007 there were telephone calls between Mr Brice and Mr Chambers (August 2007 telephone conversations). Mr Chambers‟ case is that a contract, referred to as the first agreement, was formed in the course of them. In significant respects, their content is contentious, and will be considered later in these reasons. However it is convenient to record here that the plaintiffs alleged that Mr Brice agreed to pay $3,200,000 for half of Mr Chambers‟ Wagyu business, being $1,000,000 for goodwill, $100,000 for embryos, $300,000 by three equal annual instalments, “to be treated as management fees”, $300,000 for semen straws, and $1,500,000 by three equal annual instalments, “to be treated as leasing payments”, to be paid in July 2008, 2009, 2010. The herd was to be divided into two halves of equal quality, one half to be delivered to Mr Brice, with ownership to pass at the end of the third year. Mr Brice would lend Mr Chambers $1,500,000, 40 See statement of claim paragraphs 12 and 13, defence paragraphs 22, 23 and 24 and reply paragraphs 21 and 22. 41 T2-60/50. 42 T2-61/30. 43 T10-57/55. 44 Ex 1, tab 148. 45 Ex 3. -- 9 of 58 -- 10 secured against the Hospital, and a property to be purchased in New South Wales, with interest on the loan to be met by additional amounts to be paid on the three annual instalments of $500,000, and the instalments themselves to be set off against the loan repayment. The semen straws were those owned by the Superannuation Fund; and Mr Brice was to supply to Mr Chambers semen straws of equivalent value to those to be supplied from the Superannuation Fund46. Notwithstanding the description of one of the payments, no embryos were in fact to be transferred to Mr Brice47. [33] In his defence, Mr Brice alleged that in the course of the telephone calls, a number of transactions were discussed which might have resulted in a total payment of over $3,000,000 to Mr Chambers. Those transactions included the purchase of semen straws for $300,000; the purchase of embryos for $100,000; the payment of $1,000,000 for the provision by Mr Chambers of his knowhow and expertise in relation to the Wagyu industry, referred to by the parties as “goodwill”; the acquisition of half the herd for $1,500,000 either by three instalments, or by payment pursuant to a lease; and a payment of $300,000 over three years as management fees. There was also discussion about a loan to Mr Chambers to purchase property, to be secured against property owned by Mr Chambers. The parties discussed the proceeds of the sale of the cattle being used to repay the loan. However the parties did not discuss the purchase of half of Mr Chambers‟ business. The discussion did not proceed to the point of agreement48. [34] There are entries in the Jackson timesheets made by Ms Zammit and Mr Page of work activities undertaken by them at about this time in relation to Mr Chambers‟ affairs. They record that on 7 August 2007, Mr Brice, Mr Page and Ms Zammit had discussions dealing with the small business Capital Gains Tax concession; a sale of a fifty percent interest in the primary production partnership; and the implications of this for tax, stamp duty, and superannuation49. They also record that on 30 August 2007 Mr Page discussed with Mr Brice the purchase of fifty percent of the cattle business, with reference to goodwill, stock value and prepaid management fees50 [35] On 5 October 2007 Dorrigo Property was incorporated. On the same date, a discretionary trust was constituted, with Dorrigo Property as the trustee. Mr Chambers was at this time considering the purchase of a property at Dorrigo, in New South Wales (Big Top). On 24 October 2007, Ms Zammit sent an email to Mr Brice suggesting what parties should purchase that property51. She stated that the debt of $1,700,000 on Smith Street was “really bothering/stressing” Mr Chambers and inquired whether the debt should be reduced by the use of “funds from the sale of the business”. She also sought Mr Brice‟s views on a proposal relating to the payment of pensions from the Superannuation Fund. On 30 October 2007 Ms Zammit sent an email to Mr Chambers stating that she had spoken to Mr Brice and “updated him with latest info. He is cool with everything so I‟ve got the ball rolling with the SF and commencing those pensions I was talking about”. 46 Statement of claim para 20. 47 Statement of claim para 20A. 48 Defence para 30. 49 Ex 1, p 3620, 3622. 50 Ex 1, p3622. 51 Ex 1, tab 180. -- 10 of 58 -- 11 [36] At this time, Mr Chambers was arranging funds for the purchase of Big Top. Ms Zammit sent him an email advising that the Superannuation Fund had a cash balance of $1,040,000; and that amount “plus the $300k from the sale of embryos” would make $1,340,000 available for the purchase of the land (including associated costs). [37] It is clear that in the latter part of 2007, Mr Chambers had an expectation that Mr Brice would provide money to be used towards the purchase of Big Top. On 19 November 2007, Ms Zammit sent an email to Mr Brice. The subject line referred to that purchase. The body of the document stated that Mr Chambers had asked Ms Zammit to let Mr Brice know that the vendor would like to exchange and sign the contract on 13 December, with settlement on 20 December. Mr Brice replied on 22 November 2007. The subject line contained the same reference. The text of the email simply was, “need to confirm the no‟s Catherine”52. Ms Zamitt‟s billing worksheet records a discussion on 23 November 2007 with Mr Brice, for a period of an hour. The subject is unidentified. The worksheet also records a discussion for half an hour with Mr Brice on the 26 November 2007. The subject matter was identified as “sale of jcc Cattle Business”. On 28 November 2007 Ms Zammit sent an email to Mr Chambers53, which set out the proposed terms of the loan between him and Mr Brice, including the amount ($1.5 million); the interest rate (payable annually in arrears on 1 July 2008, 1 July 2009 and 1 July 2010); the period of the loan (three years); a repayment schedule ($500,000 on 1 July 2008, 1 July 2009, and 1 July 2010); and specifying the security. The letter stated that Mr Brice had drawn a cheque for $1,500,000 payable to the Trust Account of Stubbs Barbeler, a firm of solicitors, part to be available at settlement of the purchase. The email asked whether Mr Chambers had any comments; and sought certain information if Mr Chambers agreed to the proposed security. The email envisaged that, of the funds provided by Mr Brice, $800,000 would be used for the purpose of the purchase of Big Top, and the remaining $700,000 would become available to Mr Chambers on settlement. [38] A cheque from Mr Brice to Stubbs Barbeler Trust Account for $1,500,000 is in evidence54. It was originally dated 28 November 2007, but the date was later changed to 10 December 2007. [39] The evidence does not identify the source of the instructions which led Ms Zammit to send the email of 28 November 2007. However, the previous communications between Mr Brice and Ms Zammit, the terms of the email, and the existence of the cheque, lead me to conclude that the source was Mr Brice. [40] About this time, Mr Allan Barbeler, a Brisbane solicitor and partner in the firm Stubbs Barbeler, was engaged to act in relation to the loan. His evidence was that he came to act for Mr Chambers as a result of a request from Mr Brice, who indicated he wanted to lend the money to Mr Chambers to purchase a grazing property in New South Wales which was to be a retirement project for Mr Chambers55. Mr Barbeler then attempted to arrange, and subsequently arranged, for other solicitors to act for Mr Brice. Nevertheless, Mr Brice continued to have 52 Ex 1, tab 192. 53 Ex 1, tab 194. 54 Ex 1, tab 222. 55 T8-47/1. -- 11 of 58 -- 12 personal communications with Mr Barbeler about the transaction56. The tax invoice from the solicitors acting for Mr Brice in the transaction was sent to Mr Barbeler, and not to Mr Brice direct; and the communication of some of Mr Brice‟s instructions to those solicitors was communicated through Mr Barbeler57. [41] On 3 December there was a telephone discussion between Mr Brice and Mr Barbeler, in the course of which arrangements were made for Mr Brice to provide a cheque to Mr Barbeler‟s trust account, by 8 December 201258. On 5 December 2007 Mr Barbeler sent an email to Mr Brice, reporting on his attempts to engage a solicitor to act for Mr Brice in relation to the loan and asking for him to agree to the appointment of a particular solicitor. The email discussed what property searches would be required, and how security would be taken59. On 5 December, Mr Brice telephoned Mr Barbeler, approving his choice of solicitor and giving instructions about the searches required60. [42] Mr Brice‟s instructions were on occasion conveyed to Mr Barbeler by Ms Zammit. On 10 December 2007, she caused cheques to be delivered to him61. She was authorised to give instructions to Mr Barbeler about the distribution of the $1,500,000 then held in his trust account. On 23 and 24 January 2008 she gave such instructions62. The sum of $762,624.54 was to be transferred to the solicitors acting in the purchase of the New South Wales property; and the balance to the Dorrigo Property Trust. [43] A written loan agreement was executed by Dorrigo Property as borrower, and Harrod Holdings as guarantor, apparently by the end of December 2007. It was not executed by Mr Brice until 15 July 200863. [44] Shortly before settlement, it emerged that the mortgage erroneously included one of the titles for the New South Wales property. Mr Barbeler discussed this with Mr Brice, proposing that the reference simply be omitted from the mortgage. Mr Barbeler recorded Mr Brice‟s response as being that he was relaxed, because the Hospital alone was worth $1,500,00064. [45] The purchase of Big Top, and part of the loan transaction, settled on 30 January 2008. [46] Mr Barbeler gave evidence that he did not give Mr Chambers advice about the loan transaction65. [47] In the meantime, a tax invoice dated 20 December 2007 from the Superannuation Fund to Mr Brice was prepared, for the sum of $330,000 for 911 semen straws. Mr Brice signed a cheque of the same date for that amount, in favour of the Superannuation Fund. Mr Chambers contended that this was pursuant to the 56 See Ex 11, tab 4; Ex 1 tab 259, 271, 281, 297. 57 See Ex 11, tabs 17 and 18; see also tabs 19, 20, 21 and 22; and see Ex 1, tab 219. 58 T8-57/1; ex 11, tab 6. 59 Ex 1, tab 208. 60 Ex 11, tab 7. 61 Ex 1, tab 223; and see defence para 45. 62 Ex 1, tabs 253, 261. 63 See Ex 1, tab 443. 64 Ex 1, tab 271; T8-63/10. 65 T 8-47/50. -- 12 of 58 -- 13 agreement reached about the end of August 200766. Mr Brice however alleged that the payment was the result of an offer made by Ms Zammit, on behalf of the Superannuation Fund, to sell semen straws, accepted by Mr Brice, in December 2007. It is common ground that the semen straws were not given to Mr Brice67. [48] In early 2008, Mr Brice negotiated the purchase of Hawkins, a property adjoining Lockerbie. By this time, Ywagyu was conducting some of its business under the name “Scenic Rim Beef”. [49] On 28 March 2008, Mr Chambers, Mr Brice and Mr Schwennesen met at the offices of Jackson. The evidence about this meeting is contentious. It is, however, convenient at this point to record the parties‟ pleaded cases. Mr Chambers alleged that a second agreement was made at this meeting. He alleged that the first agreement was varied, the three annual payments to be treated as instalments of the purchase price rather than lease payments. He also alleged that it was agreed that a list would be prepared to divide the herd evenly; the process of moving the cattle to Lockerbie would commence; he would not pay further agistment or management fees for cattle at Lockerbie; each party would look after the cattle of the other, in that party‟s possession, pending the division of the herd; and Mr Chambers and Mr Brice would share evenly the costs of the embryo production program for the entire herd which at that time was underway at Broadwater Downs68. [50] Mr Brice alleged that it was agreed that he would cease charging agistment and management fees to Mr Chambers, but that was pending finalisation of an agreement between them. They would also share the costs of the embryo production program, on the basis that he would receive half of the embryos. There was discussion, but not agreement, about the preparation of lists to divide the herd; and about whether payment for half the herd would be made by way of instalment, or lease payments69. [51] It might be noted that it was common ground that the embryo production program was carried out through to October 2008, and the embryos which became available to the parties were then divided evenly between Mr Chambers and Mr Brice70. It was also common ground that, at the meeting in March 2008, mention was made of Mr Brice writing a cheque for $1M in relation to the goodwill which had been discussed in the telephone conversations in about August 2007. Mr Brice alleged that the reference was sarcastic71. [52] In the meantime, Mr Schwennesen continued to make arrangements for the conduct of a cattle breeding operation on the two properties near Beaudesert72. [53] A tax invoice dated 1 April 2008 was issued by Mr Chambers to Mr Brice for 100 Wagyu embryos for the sum of $100,000 plus GST. Mr Brice provided a cheque 66 See para 30 in the statement of claim. 67 See defence para 40, reply para 28. 68 Statement of claim para 42. 69 See defence para 52 and 53. 70 Statement of claim para 42A; defence para 53A. 71 Statement of claim para 45; defence para 57. 72 Ex 1, tab 315, 317. -- 13 of 58 -- 14 dated 24 April 2008 to Mr Chambers in the sum of $110,00073. Again, it is common ground that no embryos were provided to Mr Brice. [54] In this period, Mr Chambers continued to provide assistance to Mr Schwennesen in relation to his cattle breeding activities74. In particular, the communications between them and Mr Brice show that on Sunday 8 June 2008, Mr Chambers met Mr Brice, probably at Lockerbie. In their discussion, Mr Brice asked Mr Chambers to advise whether Mr Brice should continue with breeding Wagyu cattle. On 12 June 2008, Mr Chambers advised Mr Brice to buy 10 bulls, probably Brahman, to put with his (Charbray) heifers, “and maybe don‟t continue with wagyu.” However in an email of 25 June 2008 to a John Doyle, a person with apparent expertise in cattle nutrition, Mr Chambers sought advice on an appropriate feeding regime for cattle, including the Charbray heifers, on the basis that they were to be implanted with Wagyu embryos, commencing about the end of July. The email was copied to Mr Brice, who forwarded it to Mr Schwennesen. In an email of 27 June 2008, sent to both Mr Chambers and Mr Brice, Mr Schwennesen thanked Mr Chambers for his enquiries of Mr Doyle, and expressed agreement with the “concepts” which Mr Chambers had communicated to Mr Doyle. The email also referred to the Charbray heifers as “recips”, which in context was a reference to embryo recipients. [55] Work had commenced on the division of the herd, Mr Chambers writing to Mr Schwennesen and Mr Brice on 20 May 2008 to inform them of that75. From time to time he provided further information to Mr Brice about this matter76. It was common ground on the pleadings that, in late July or early August 2008, Mr Chambers and Mr Brice had a telephone conversation regarding the division of the herd, during which it was agreed the herd would be divided into an X list and a Y list of the same quality; with that task to be done by Ms Jane Radeski77. [56] On 27 August 2008, Mr Brice sent an email to Mr Chambers78 which included the following: “Going thru all lists, checking the mechanics and using the exercise to understand the breeding (trying). Before we decide what goes where and how and why we need to document the financial transactions. We have had a couple of discussions around my desire to not spend more money and the possibility to sell stock to generate cash and thereby reduce the investment…ie. is there a commercial position whereby we could sell cattle to say the Hammonds and those Funds go to you and i get less cattle. I do not want to put you in a position where you need to feed more cattle than you planned. Appreciated that this has to be resolved ASAP.” 73 Ex 1, tab 331. 74 Ex 1, tabs 337, 338, 353, 355, 364, 367, 375, 376, 379. 75 Ex 1, tabs 350, 357, 367, 368. Mr Brice continued to provide assistance. 76 Ex 1, tab 357, 442, 446, 447, 448, 451, 452. 77 Statement of claim para 49, defence para 61. 78 Ex 1, tab 449. -- 14 of 58 -- 15 [57] In about late August 2008, Mr Chambers and Mr Brice had a telephone discussion relating to the preparation of sale documentation, in the course of which Mr Chambers told Mr Brice that Mr Barbeler was not prepared to act in the matter. Mr Brice suggested that Mr Chambers engage a solicitor from Darwin, or the solicitor from New South Wales who had acted in relation to the purchase of Big Top79. [58] The lists which had been provided to Mr Brice divided the cattle between lists referred to as the X list and the Y list. On 9 September 200880 Mr Brice sent an email to Mr Chambers which included the following: “My toss came up Y. We will need to discuss the cattle that Jane did not include on either X or Y lists. I am writing you to set a moratorium on the interest and repayments due under the loan agreement on 19th July 2008 until 19th October 2008. Between now and then we need to engage Solicitors to document-the proposed acquisition of part of your Wagyu business. … Between Norbury, Chris, Terry and myself we can manage cattle movement. I have not got my head around the timing and logic of moving Cattle Group B < C or those at Ron Fitzgerald‟s.” [59] The reference to B and C cattle groups reflect the fact that letters of the alphabet were used to identify the birth year of each beast. On 9 and 10 September Mr Chambers sent to Mr Brice further lists of the B cattle and the C cattle, one of which had allocated them between the X and Y lists81. [60] On 11 September 2008, Mr Chambers sent an email to Mr Brice, the subject line reading “split cattle”82. It included the following: “For the Y cattle…blood will be available to vaccinate next Tues Wed & Thursday these can then be moved in the window 21 to 30 days post vaccination. Ideally if after discussion a plan can be achieved for B, C, D, Ron‟s, Bulls etc any of these can be vaccinated to window the same or otherwise as preferred.” [61] On 2 October 2008 Mr Chambers sent an email to Mr Brice83. The subject line referred to “three decks (of cattle) from Shiro & Bogandilla to Lockerbie”. The email advised that three decks could be sent from the following Tuesday, but would be “full decks to provide the most economical transport costs”. Some other information relating to the movement of cattle was also provided, followed by the query, “Is this all ok Andrew”. The email also recommended that B and C cattle should be left at Dulacca until after the birth of their calves. 79 Statement of claim para 53, defence para 65, reply para 1. 80 Ex 1, tab 466. 81 Ex 1, tabs 471, 472, 473. 82 Ex 1, tab 481. 83 Ex 1, tab 486. -- 15 of 58 -- 16 [62] By email dated 8 October 2008, Mr Chambers advised Mr Brice that three decks of cattle arrived at Lockerbie on 7 October84. The email proposed discussing with Mr Brice a management strategy for cattle on Lockerbie, including embryo transfers. Further flushing of embryos at “Ron‟s” was dependent on Mr Brice‟s wishes. The email included a draft contract prepared by Northen Territory solicitors, Cridlands MB (Cridlands). Mr Brice forwarded that email to Mr Schwennesen the following day85. Mr Brice then replied to Mr Chambers by email on 14 October 2008. The email advised that Mr Schwennesen had done work to enable the prediction of Wagyu cattle available year by year as full blood cattle and pure bred Wagyu cattle, and differentiating between steers, heifers and bulls. The email continued: “Decisions about forward production should be made in light of this information. Will forward you base information.”86 The email referred to the need to include, in the draft contract prepared by Cridlands, cattle numbers, values, timing “and other details”. That did not occur87. [63] On 15 October 2008 Mr Chambers sent an email to Mr Brice. It dealt with an embryo transfer program being conducted on cattle at Beaudesert. However, it continued: “As a side issue can you give some thought re embryo production at Ron‟s…I have enough embryos in the can and would like to stop . but if you want to do more we can…only difference would be 100% production costs to you rather than 50% and you get all the production .”88 [64] On 16 October 2008, Mr Schwennesen sent an email to Mr Chambers89, confirming the number of cattle which had arrived on 7 October (72 head) and asking the expected calving date for these cattle. On 24 October, Mr Schwennesen sent an email to Mr Brice relating to the cattle that had arrived at Lockerbie90. The email stated: “These animals should all check off against the y list you picked.” [65] On 3 November 2008, Mr Chambers sent an email to Mr Brice. It discussed the recipient heifers being used for the embryo transplant program at Lockerbie; and the Wagyu cattle there which were to be pregnancy tested, with some to be subject to artificial insemination. The email referred to removing “my cattle” to Dorrigo; with the consequence that the only cattle Mr Chambers would then have at Lockerbie would be some steers and “recips”, apparently recipients of embryo transplants91. 84 Ex 1, tab 489. 85 Ex 1, tab 490. 86 See Ex 1, tab 491. 87 Defence para 71(e); reply para 42(b). 88 Ex 1, tab 493. 89 Ex 1, tab 494. 90 Ex 1, tab 502. 91 Ex 1, tab 519. -- 16 of 58 -- 17 [66] On 7 November 2008 Mr Schwennesen sent an email to Mr Chambers, with a copy to Mr Brice, relating to cattle at Lockerbie, to be the subject of artificial insemination. It identified 27 head which were to be treated in this fashion. The herd tag numbers for several of these cattle coincided with the herd tag numbers for cattle shipped on 7 October 200892. Mr Chambers replied by email on 8 November enquiring as to whether, for some of the animals, Mr Schwennesen was wanting to produce calves where females would be suitable for future breeding purposes, or was wanting to produce steer carcasses, no doubt for sale. He also enquired as to “what you see as your AI options…” and suggested breeding females for further breeding, with commercial production to occur when the herd numbers were sufficient93. Mr Schwennesen replied on 10 November 2008, accepting the recommendation for producing females for breeding, and identifying the options for artificial insemination as well as the possibility of purchasing other semen94. Mr Chambers responded by an email of 13 November 2008, with some recommendations, including a recommendation to use “mop up bulls”, especially for “that group of your cattle Andrew which are the longer residents at Lockerbie”95. On 16 November 2008, Mr Chambers sent a further email to Mr Schwennesen with his recommendations for the mating of these cattle. A note on an earlier document, attached to the email, showed that the recommendations were based on a preference of Mr Brice and Mr Schwennesen (consistent with Mr Schwennesen‟s email of 10 November 2008); but recorded that the recommended use of a mop up bull had not by then been confirmed96. Each of these emails was copied to Mr Brice, no doubt the “Andrew” referred to in the email of 13 November. [67] With respect to these communications, it is convenient to note that Mr Chambers alleged that some time after 9 September 2008, Mr Brice undertook an artificial insemination program in relation to some Y list cattle at Lockerbie. In response, Mr Brice alleged that, after the emails of 7 and 8 November 2008, 15 of the Y list cattle at Lockerbie were inseminated using straws owned by Ywagyu, but otherwise denying the allegation97. [68] On 7 November 2008, Mr Chambers wrote to Mr Brice providing information relating to costs to be paid by Mr Brice, including some invoices98. One class of cost specifically identified was the cost of transporting Wagyu cattle to Lockerbie. On 14 November 2008 Ms Zammit sent to Mr Chambers tax invoices addressed to Mr Brice, for the cost of the embryo flushing program and for the transport of cattle from Bogandilla to Beaudesert. The tax invoices were supported by accompanying invoices. For the embryo flushing program, costs were apportioned until 11 September 2008. Recipient costs were not apportioned, nor were the transport costs. Mr Brice received these invoices99; and he paid the amount claimed by cheque dated 17 November 2008. 92 See Ex 1, tab 527, page 3156 and tab 502. 93 Ex 1, tab 528. 94 Ex 1, tab 530. 95 Ex 1, tab 531. 96 Ex 1, tab 539. 97 Statement of claim para 78A; defence para 79A. 98 See Ex 1, tab 525. 99 Statement of claim para 47; defence para 59; T 5-20, ll 3-40; T 9-66. -- 17 of 58 -- 18 [69] Thoughout 2008, Mr Chambers continued to provide assistance to Mr Brice and Mr Schwennesen in relation to their cattle business100. [70] On 20 January 2009, Mr Chambers sent an email to Mr Brice. The email included Mr Chamber‟s version of the telephone call made about the middle of 2007, relating to Mr Brice making an offer for some of Mr Chamber‟s cattle. It asserted an agreement for the sale of the cattle, including payment for a goodwill component. Reference was made to the loan from Mr Brice, including a statement that the “concept was the loan would be paid out by funds from part of the cattle sale”. The email stated that, with the passage of time, the value of the goodwill component was decreasing, and that it might now be difficult to justify. It stated that Mr Chambers thought that it existed “primarily to increase the nett benefit to me”, and asked Mr Brice “to see your way clear Andrew to complete the arrangement to the dollar value agreed on previously in such a way that neither party is advantaged or disadvantaged by the passage of time”101. [71] On 11 February 2009 Mr Chambers sent a confidential email to Ms Zammit, stating that he was “having trouble seeing a way to progress this situation”102. The letter included a draft email to Mr Brice. Ms Zammit responded on 11 February 2009, in an email mildly supportive of the approach expressed in the draft103. Later that day, Mr Chambers sent to Ms Zammit a further draft of an email to be sent to Mr Brice, her response being “sounds good…..”104. The draft proposed that Mr Brice “brief” Ms Zammit on what he wanted to do. Mr Chambers then sent that email to Mr Brice105. He then sent a further email to Ms Zammit stating, “Its been sent…so we wait????”; and enquiring whether Ms Zammit felt she was in an awkward situation106. Ms Zammit replied, “…it should be fine”107. [72] After having his secretary check some matters in his records, Mr Brice responded to Mr Chambers on 21 February 2009. He stated that the involvement of Ms Zammit would be inappropriate. He advised that, in his opinion, there was no legally binding contract for the acquisition of half of Mr Chambers‟ herd. He said that “legal processes” of determining warranties and a number of other matters, as well as due diligence, had not been completed; and until they were, and documented, “there is no agreement with binding terms and conditions”. He said, however, that there was a legally binding contract to repay the loan, with interest. He suggested they should “attempt to come to a commercial agreement that is acceptable to both you and myself”. He concluded by stating that he had always understood that “business and benefaction are mutually exclusive and should not be mixed”108. [73] On 3 March 2009, Mr Brice sent an email to Mr Chambers, saying that the 72 heifers sent to Lockerbie and their calves had not been branded with the Ywagyu 100 Statement of claim para 48, defence para 6. 101 Ex 1, tab 554. 102 Ex 1, tab 564. 103 Ex 1, tab 565. 104 Ex 1, tab 567. 105 Ex 1, tab 568. 106 Ex 1, tab 569. 107 Ex 1, tab 570. 108 Ex 1, tab 572. -- 18 of 58 -- 19 brand, and remained in Mr Chambers‟ ownership, and asking Mr Chambers to make a decision about the castration of the male calves109. [74] On 10 March 2009, Mr Chambers forwarded to Ms Zammit a copy of Mr Brice‟s email of 21 February 2009110. Later that day, in response to an email from Ms Zammit, Mr Chambers provided information relating to the sale, including information that had been sought by her for the preparation of a tax estimate. In providing the information, Mr Chambers suggested working on a number of scenarios in relation to the goodwill component of the sale price. He also suggested that the number of head of cattle be taken as 250 females, though it was supposed to be one half of the herd. He also stated that “most of the termed intellectual property has been transferred but further available if required…”. He sought advice about the treatment of interest, stating that the lease payments were to offset the loan and interest. He did not know when the sale date would be. The information was provided with the statement, “Thankyou for working a couple of scenarios for tax estimates so I can work to resolve cattle sale to ARB” 111. On 14 March 2009, Mr Chambers sent a further email to Ms Zammit suggesting that she did not need to make a great effort with the tax estimates “cause…..a deal is a deal”112. [75] Early in April 2009, Mr Brice sent to Mr Chambers an invoice for the agistment and management fees for the cattle at Lockerbie for the previous twelve months. A covering letter stated that Ywagyu Pastoral Co Pty Ltd was willing to negotiate the purchase of cattle at specified prices per head. Those prices would have produced a total payment dramatically lower than that which had been discussed in the August 2007 telephone conversations. The letter also stated that Ywagyu would consider the acquisition of straws and embryos, but would need to know the quantity and heritage113. Thereafter, Mr Brice continued sending invoices for agistment and management fees for the cattle at Lockerbie. Mr Chambers continued to provide some advice, acknowledging there was a dispute about the ownership of the cattle114. [76] On 10 November 2009, Mr Brice sent to Mr Chambers a calculation of the amount owing in respect of the loan. It included interest charged monthly from December 2007, initially at 8.5 percent; and subsequently at a default rate of 10.5 percent from 19 July 2008115. A further calculation was sent on 1 December 2009116. On 29 March 2010 Mr Brice gave notice to Dorrigo Holdings of a default under the loan agreement, and made demand of Harrod Holdings as guarantor of the total amount said to be owing under the loan agreement117. The pleaded cases [77] I have previously mentioned the allegations made by Mr Chambers to the effect that a contract was formed in the August 2007 telephone conversations, and made some 109 Ex 1, tab 573. 110 Ex 1, tab 580. 111 Ex 1, tabs 581, 582. 112 Ex 1, tab 587. 113 Ex 1, tabs 595, 596. 114 See for example ex 1 tab 609. 115 Ex 1, tab 626. 116 Ex 1, tab 629. 117 Counter-claim paras 113, 116; answer paras 64, 67. -- 19 of 58 -- 20 reference to Mr Brice‟s pleaded defence. In addition to alleging that no agreement was reached118, Mr Brice pleaded that if an agreement was reached, it was not sufficient to constitute a binding and enforceable contract because the subject matter of some elements of it, and some of the terms, were not sufficiently identified. It was also said that the alleged agreement relating to the semen straws was “a commercial nonsense” and was illusory119. It was further alleged that the parties did not intend to be contractually bound; or alternatively they did not intend to be contractually bound until the agreement was reduced to writing120. It was also alleged that the agreement was uncertain, by reason of the matters not sufficiently identified121. [78] With respect to the alleged second agreement, save in respect of the cessation of charges for agistment and management fees, and the sharing of the costs of embryo production at Mr Ron Fitzgerald‟s property at Wandoan, Mr Brice alleged that there was discussion, but no agreement, about a number of matters. He denied there was discussion, or agreement, about moving cattle to Lockerbie. He also alleged that if an agreement was reached in March 2008, it did not constitute a binding and enforceable contract; the parties did not intend to be contractually bound by the agreement; or alternatively, they did not intend to be so bound unless and until the agreement was reduced to writing. He also alleged the agreement was uncertain, in respects similar to those alleged in respect of the first agreement122. [79] Mr Chambers alleged that the following matters were carried out in part performance of the agreement as relied and subsequently varied with Mr Brice: (a) The division of his herd; (b) The selection by Mr Brice of the Y list cattle; (c) The transport of Y list cattle to Lockerbie; (d) The acceptance of the delivery of some Y list cattle to Lockerbie; (e) The sharing of costs of the embryo production program carried out in the latter part of 2008; (f) Entry into the loan agreement; (g) The payment of $300,000 plus GST by Mr Brice to Mr Chambers (for semen straws); (h) The payment of $100,000 plus GST by Mr Brice to Mr Chambers (for embryos); (i) The provision by Mr Chambers of management services and goodwill to Mr Brice and Mr Schwennesen123. [80] To the extent that Mr Brice admitted some of the factual matters referred to, he denied that they were acts of part performance of the agreement alleged by Mr Chambers. [81] With respect to the provision of “goodwill”, Mr Brice pleaded that Mr Chambers had not moved from Darwin, or become involved in the management of “the Wagyu herd” or put himself in a position to assist Mr Schwennesen over the following three 118 Defence para 31. 119 Defence para 33. 120 Defence para 34. 121 Defence para 35. 122 See defence paras 52, 53 and 54. 123 Statement of claim para 77. -- 20 of 58 -- 21 years; nor had he given any indication he was prepared to do these things124. However he did not allege that these matters were specifically discussed, or agreed. [82] With respect to the agreement to purchase further embryos, Mr Brice pleaded that that was the result of an agreement reached in a telephone conversation late in March 2008125. I have previously mentioned his allegation about the purchase of semen straws. [83] With respect to the delivery of the cattle to Lockerbie, Mr Brice alleged that he did not complain or inquire about the delivery of the cattle because he anticipated a contract under which he would purchase them; and that the cattle remained on Lockerbie on the basis of an agistment126. With respect to the allegation that he had undertaken an artificial insemination program on some of the Y list cattle using semen straws owned by him after 9 September 2008, Mr Brice alleged that that occurred as a result of an email exchange of 7 and 8 November 2008 between Mr Schwennesen and Mr Chambers127. [84] Mr Chambers alleged that the agreement was repudiated by Mr Brice‟s emails of 21 February and 3 March 2009; by the sending of agistment charges and the proposal to negotiate on 8 April 2009; and by the subsequent charges for agistment and management at Lockerbie128. Mr Brice denied these allegations, on the basis that he denied the existence of any agreement129. [85] In the course of the hearing, Mr Chambers‟ counsel informed the court that Mr Chambers accepted Mr Brice‟s conduct as terminating the contract. Mr Chambers claims damages for breach of contract. [86] Mr Chambers alleged that from about 1990 Mr Brice was his accountant; that from about 1992 Mr Brice provided him with ongoing taxation, business and corporate structuring and advice; and that consequently by about late 2005 he had acquired an intimate knowledge and understanding of Mr Chambers‟ financial and business affairs130. As a consequence, he had come to trust and rely upon Mr Brice to advise him about his business affairs131; and Mr Brice owed him fiduciary duties not to place himself in a position of conflict with the interests of Mr Chambers, and not to make any unauthorised personal profit from their relationship132. Mr Chambers alleged that in the August 2007 telephone conversations, Mr Brice gave advice relating to the documentation of the lease and the loan aspect of their agreement; and about a tax benefit in respect of the payment for goodwill133. He alleged that (in the event there is not found to be a binding contract) Mr Brice breached his fiduciary obligations by failing to advise him that he should obtain his own valuation in respect of the cattle; that he should seek independent commercial and legal advice; and that Mr Brice was no longer acting to protect Mr Chambers‟ 124 Defence para 57. 125 Defence para 58. 126 Defence para 70. 127 Defence para 79A. 128 Statement of claim para 67 to 75. 129 Defence para 77. 130 Statement of claim para 8(c), para 8(d) and para 8(e). 131 Statement of claim para 9(a). 132 Statement of claim para 10. 133 Statement of claim para 22. -- 21 of 58 -- 22 interest but was acting rather with regard to his own self interest134. Mr Chambers alleged that he suffered damage, by reason of the management services he provided; because he caused Dorrigo Property to enter into the loan agreement, and Harrord Holdings to give the guarantee and support of it; and because, if they are required to met obligations in relation to the loan agreement, they and Mr Chambers will be forced to sell assets. He alleges that he is accordingly entitled to equitable compensation, particularised in the Fourth Further Amended Statement of Claim in an amount of $109,264135. [87] Mr Brice alleged that since late 2004, he had not undertaken accountancy work for Mr Chambers, nor provided accounting or other financial advice to him136. As at late 2005, he had not been a professional advisor of Mr Chambers for at least twelve months, and any knowledge he had about Mr Chambers‟ financial and business affairs was at least twelve months old, except to the extent they had discussed such matters in casual conversation, they remaining good friends, with a mutual trust and regard for each other137. By July 2007, it had been approximately 2 ½ years since Mr Brice had been a professional advisor of Mr Chambers, or had had any knowledge of his financial and business affairs in that capacity138. Mr Brice alleged that it was unreasonable for Mr Chambers (apparently at least by late 2005) to trust and rely upon him, and that it was not obvious to Mr Brice nor would it have been to a reasonable person in his position, that Mr Chambers did so139. Mr Brice alleged that in the August 2007 telephone conversations, and at the meeting on 28 March 2008, he told Mr Chambers that he would need to consult with Ms Zammit about the structure of any agreement that was reached between them140. He denied any breach of a fiduciary obligation owed to Mr Chambers141. [88] Insofar as Mr Chambers claimed that he has suffered loss as a result of providing his time, skill and expertise to Mr Brice, Mr Brice alleged that Mr Chambers provided these things gratuitously, in the hope or expectation of making an agreement for the sale of his cattle142. [89] Mr Chambers alleged that the loan agreement “did not exclude or diminish the right of set off”, an agreement having been reached in the August 2007 telephone conversations that any interest payable on the loan would be met by equivalent amounts to be paid by Mr Brice in addition to the cattle instalments143. He alleged in the alternative that he and Mr Brice entered into the loan agreement in the mistaken belief that it was consistent with this agreement; and that Mr Brice was aware of circumstances indicating that both Dorrigo Property and Harrod Holdings entered into the loan agreement and the guarantee under that mistake. He alleged that, for that reason, the loan agreement is liable to be set aside, or to be rectified by the omission of cl 5.4(4), which denies any right of set off144. 134 Statement of claim para 96. 135 Statement of claim para 97 and para 98. 136 Defence para 6(a). 137 Defence para 7. 138 Defence para 8. 139 Defence para 11. 140 Defence para 28(b); see also para 37(b). 141 Defence para 29. 142 Defence para 95. 143 Statement of claim para 33. 144 Statement of claim para 34. -- 22 of 58 -- 23 [90] Mr Brice, in addition to his denial of an agreement reached in the August 2007 telephone conversations, denied any construction of the loan agreement contended for by the plaintiffs and relied on cl 5.4(4) of the loan agreement. He also alleged that he was entitled to assume that the plaintiffs had taken advice in relation to the terms of the loan agreement, as they were represented by a solicitor; and accordingly that they were under no mistake about, and were satisfied with, the terms of the loan agreement145. [91] Mr Chambers made an alternative claim for the management services he has provided to Mr Brice146. In part, he alleged that the effect of the second agreement was that $300,000 became due and owing as a debt at that time147. He also sought a declaration that nothing was due to Mr Brice under certain agistment invoices148. Mr Brice denied the allegations made by Mr Chambers149. [92] The plaintiffs alleged that under the first agreement, as varied by the second agreement, Dorrigo Property and Harrod Holdings are entitled to set off against the sum owing under the loan agreement, amounts payable in respect of the Y list cattle150. In part because of matters earlier pleaded, and in part because he alleged that the loan agreement varied or discharged any earlier agreement before any acceptance of the benefit of it by Dorrigo Property or Harrod Holdings, Mr Brice denied these allegations151. [93] Mr Chambers also made an estoppel claim. Broadly stated, it was that in the August 2007 telephone conversations Mr Brice represented that he would be bound by a contract in the terms discussed, on which Mr Chambers acted, with the result that Mr Brice was estopped from denying the existence of an obligation to pay $3,200,000 for half of Mr Chambers‟ Wagyu business152. Generally on the basis of matters pleaded earlier, Mr Brice denied the allegations, including the estoppel. [94] Mr Chambers alleged that by reason of Mr Brice‟s refusal to accept some of the Y list cattle, he incurred agistment and management costs, which are payable by Mr Brice153. Again, generally relying upon matters pleaded earlier, Mr Brice alleged that he was entitled to refuse delivery of those cattle; and accordingly denied that he is liable for these costs; as well as disputing the amounts claimed154. [95] Mr Brice made a counterclaim for the amount of the loan and interest, against Dorrigo Property as borrower, and Harrod Holdings as guarantor, alleging default from 19 July 2008155. The plaintiffs denied that money was payable under the loan agreement, essentially because of the alleged right of setoff156. 145 Defence para 40. 146 Statement of claim para 85 to para 90. 147 Statement of claim para 87(b). 148 Statement of claim para 91. 149 Statement of claim para 85 to para 89. 150 Statement of claim para 92 to para 94. 151 Defence para 91; see also para 92. 152 Statement of claim para 100 to para 108. 153 Statement of claim para 109. 154 Defence para 106A and 106B. 155 Counterclaim para 107 to para 117. 156 Answer par 61ff. -- 23 of 58 -- 24 [96] Mr Brice pleaded an agreement made with Mr and Mrs Chambers for the purchase of semen straws for $300,000, which had not been delivered, and which he, by his pleading, terminated. He also pleaded an agreement with Mr Chambers for the purchase of embryos for $100,000 plus GST, which he by his pleading terminated. He claimed recovery of the sums paid under both agreements157. By reason of matters earlier alleged in respect of these transactions, the plaintiffs and Mrs Chambers denied the allegations on which these claims are based. [97] Mr Brice alleged that some of Mr Chambers‟ cattle were agisted on Lockerbie until June 2010, and claimed agistment fees158. Mr Chambers denied liability by reason of the second agreement159. General matters relating to credit [98] For the Chambers parties, it was submitted that Mr Brice was an extremely unsatisfactory witness. Reference was made to some 20 records from the AH Jackson timesheets, relating to discussions involving Mr Brice, of which he claimed to have no recollection. It was also submitted that he resisted a number of simple questions and reasonable propositions. It was submitted that he made up things to support his position. One example related to his gift of Wotif shares to the University of Queensland. In cross-examination it was suggested that his attitude to his agreement with Mr Chambers was, in August 2008, affected by the significant reduction of his considerable fortune. Mr Brice sought to rely on the gift, said to be made around that time, when in fact it was made almost 12 months earlier. Another example was said to be his evidence that he was not considering charging Mr Chambers agistment fees when he sent his email of 21 February 2009 (having earlier stated that he could not remember when he had first decided to demand agistment). He was said to have maintained untenable denials of his knowledge of and involvement in Mr Chambers‟ financial affairs. The submissions were critical of his evidence that he “did nothing” in response to the email from Ms Zammit of 24 October 2007 (plainly seeking his advice in relation to a number of matters, including the reduction of debt on Smith Street, and the commencement of pensions from the Superannuation Fund). It was submitted that his version of the transaction relating to the purchase of semen straws in late 2007 was a recent invention, and his evidence that he then had no idea of the value of the straws was incredible. He was criticised for his failure to provide an “honest and upfront” response to Mr Chambers‟ email of 2 October 2008, advising of the proposed delivery of some of the Y list cattle to Lockerbie. Reference was made to the fact that under cross- examination, Mr Brice had to concede that his email of 8 April 2009, asserting that Mr Chambers had requested Mr Brice to make a new offer for his cattle, was untrue160. [99] Mr Brice‟s denial of a statement, during his dealing with Mr Chambers in about August 2007, that the purchase of half of Mr Chambers‟ breeding herd would command a premium, because he thought such a purchase would be “cheaper by the dozen”, was contrasted with his pleaded non-admission on the ground that he was uncertain about the truth or falsity of the allegation that he had made the statement. 157 Counterclaim para 118; see the Prayer for relief on the counterclaim. 158 Counterclaim para 119. 159 Answer para 70. 160 T10-16 to 17. -- 24 of 58 -- 25 He was criticised for suggesting his consultant fees from Jackson related to services associated only with another client. His evidence and conduct in relation to the gift of shares to the University of Queensland was also the subject of criticism. [100] For reasons to which I shall refer a little later, I place some substantial weight on the entries made by Ms Zammit and Mr Page in the Jackson timesheets161. They disclosed that Mr Brice played a significant role in the provision of financial and accounting advice to Mr Chambers, well beyond Mr Brice‟s retirement as a partner of Jackson on 30 June 2004162. The entries generally speak for themselves, though in some cases further light is shed on them by communications from Ms Zammit163. Thus, it is apparent that in the latter part of 2004 Mr Brice gave advice, and was involved in discussions for the providing of further advice, to Mr Chambers about the establishment of the DVH Pharmaceutical Trust, and the purchase of Smith Street. In the second half of 2005 and in January 2006, Mr Chambers was seeking advice about his cattle business, and in particular about a “structure to provide some form of asset protection”164. It is apparent that the discussions, as recorded in the timesheets, related to the manner in which Mr Chambers‟ cattle business was to be structured; and that Mr Brice was a party to them. He was also involved in discussions relating to the finalisation of tax returns in May 2006. [101] The timesheet entries record discussions between Ms Zammit, Mr Page and Mr Chambers between November 2006 and February 2007 in relation to the purchase of a new property, including whether it could be purchased by the Superannuation Fund. That resulted in a written letter of advice from Ms Zammit on that topic of 23 February 2007165. In that period, Mr Page recorded on 20 December 2006 he had discussions with Ms Zammit on that and other topics, as well as with Mr Brice.166 Ms Zammit‟s timesheet entry of 31 May 2007 refers to the transfer of Smith Street into the Superannuation Fund, without reference to the involvement of Mr Brice. However, her email of the same day to Mr Chambers167, records comments (in truth, recommendations) from her and Mr Brice relating to the rental of Smith Street and its transfer into the Superannuation Fund. [102] Both Ms Zammit and Mr Page made entries for 23 October 2007, which, read together, record discussions with Mr Brice and (by telephone) with Mr Chambers, relating to the structure for the purchase of the new property (Big Top), the funding of it, and the role of the Superannuation Fund and a unit trust in its purchase. This resulted in a relatively detailed email from Ms Zammit to Mr Brice of 24 October 161 Ex 1, tab 633. I understood that Mr Brice‟s case was conducted on the basis that these entries were evidence of any facts they recorded; in any event they were admissible for that purpose under s 92 of the Evidence Act 1977 (Qld). 162 See in particular the entries for 23 June 2005; 8 December 2005; 3 & 6 January 2006; 22 March 2006; 12 May 2006; 7 August 2007; 23 October 2007 (especially Mr Page‟s entry); 23, 26, 27 and 28 November 2007. 163 Some have been relied on by the Chambers parties from an early stage of the trial as evidence of facts asserted in them, without objection. Many were directed to Mr Brice, generally without his disagreement as to statements of fact in them. In any event they are admissible as proof of what they record under s 92 of the Evidence Act 1977 (Qld). 164 Ex 1, tab 10 (which seem to relate primarily to exporting beef, and the QLW Group, but extended to Mr Chambers‟ business structure) and tab 12. 165 Ex 1, tab 113. 166 Ex 1, tab 633, p 3615. 167 Ex 1, tab 130. -- 25 of 58 -- 26 2007168 dealing with that topic, and a number of other topics, including succession planning, wills, Mr Chambers‟ concern about the level of debt in relation to Smith Street, and the commencement of pensions from the Superannuation Fund. The letter plainly sought Mr Brice‟s advice. Her email of 30 October 2007 to Mr Chambers169 records that she had had a communication with Mr Brice and that he was “cool with everything”; as a result of which she has taken steps to commence the pensions from the Superannuation Fund. It also might be observed that the timesheets record that in August and November 2007, Mr Brice took part in discussion relating to capital gains tax (CGT) concessions for the sale of Mr Chambers‟ cattle business, including the structuring of the sale170. [103] I also note that at the time of Mr Brice‟s retirement as a partner, Ms Zammit was not a partner in Jackson, and was herself relatively junior. Her work was “managed” at this time by Mr Page, a continuing partner in Jackson. However Mr Page gave evidence that he did not himself take part in substantive discussions with Mr Chambers about tax planning and consulting matters171. On the other hand, even in 2007, Ms Zammit sought Mr Brice‟s views about a number of matters172; and on two occasions when communicating advice in that year, referred to his involvement (on one occasion, describing him as “the boss”)173. [104] In those circumstances, Mr Brice‟s denials of the provision of accounting or other financial advice or being the professional advisor to Mr Chambers, or of knowledge of Mr Chambers‟ financial and business affairs (current in 2007), and his evidence which is generally consistent with those denials, are not to be accepted. In my view, this is a matter of some significance in considering Mr Brice‟s credibility. Similarly, his evidence that he had no recollection of discussions recorded in the timesheet where he is said to be a party is not to be accepted. His evidence of an absence of recollection might be contrasted with his positive assertion that he “did nothing” in response to Ms Zammit‟s email of 24 October 2007 (the day after a discussion as recorded by her involving Mr Brice, and recorded by Mr Page as relating to the structure for Dorrigo, the funding thereof, and the use of the Superannuation Fund and a unit trust for its purchase). His positive assertion cannot be regarded as the product of an honest recollection; and is inconsistent with Ms Zammit‟s email of 30 October 2007. Nor do I accept the honesty of his denials of the provision of advice to Mr Chambers, or current knowledge of his financial and business affairs, after 2004. [105] Likewise, I do not accept Mr Brice‟s evidence that as at 27 August 2008 he did not know that Mr Chambers had made plans which would involve keeping fewer cattle than he had. It is contradicted by Mr Brice‟s email of that date. As was suggested in cross-examination, the likely explanation is that if Mr Brice accepted he had that knowledge, it would suggest he appreciated he had made an agreement with Mr Chambers to purchase some of his cattle174. 168 Ex 1, tab 180. 169 Ex 1, tab 183. 170 Ex 1 pp 3620 to 3622. 171 T 8-43 ll 45-60. 172 See ex 1 tab 180. 173 See ex 1 tabs 130, 183. 174 See T10-21 to 22. -- 26 of 58 -- 27 [106] Mr Brice was cross-examined about the circumstances in which he became involved with Wotif. He denied that that was the result of one of his accounting clients taking him into his confidence; and sought to suggest that the client was not the original creator of the idea. However, further cross-examination made plain that his involvement arose from the fact that a client of his had the original idea (to register certain domain names, and better to utilise inventory); and Mr Brice became involved because that client sought his advice175. In my view, Mr Brice attempted to give evidence on this topic which was less than frank. [107] Mr Brice was cross-examined about a large gift of Wotif shares to the University of Queensland Endowment Fund, and the treatment of this transaction in his tax returns. It appears that the shares were owned by his superannuation fund, but the gift was made from him to the University. It resulted in an audit of his 2008 Income Tax Return, which did not contain a disclosure of the CGT event. Mr Brice gave evidence that the event was disclosed in documents which he produced, and which became exhibit 23. Mr Brice was asked whether he was required in his tax return to identify the market value of the shares as having been received by him in substitution for the shares given to the Endowment Fund. He was not prepared to accept that proposition, but said that when he acquired the shares from the superannuation fund, he did so at a capital gains tax base, and disposed of them by way of a gift which would give rise to a (notional) consideration, with no effect on his taxable income; and that that position was confirmed by the audit176. [108] It is more than a little surprising that the transactions were not disclosed in Mr Brice‟s tax return, given his long experience as an accountant. Nor does the material in exhibit 23 provide a clear explanation of what occurred; it simply includes a receipt to Mr Brice from the Fund. Mr Brice‟s evidence on this topic was at times argumentative, and at times evasive. However, in a general assessment of his credit it seems to me somewhat less significant than other matters that have been raised against him. [109] As mentioned earlier, on 2 October 2008, Mr Chambers sent an email to Mr Brice advising of the proposed delivery of Wagyu cattle to Lockerbie. Mr Brice gave evidence that he did not respond to the email, because he did not want to be seen to be accepting delivery of Mr Chambers‟ cattle177. In my view, that answer is not to be accepted. It followed the advice of Mr Brice of 9 September 2008 that he had chosen the Y list. A little later, on 8 October 2008, Mr Chambers emailed Mr Brice advising of the arrival of the cattle at Lockerbie. Mr Brice did not protest; rather, he forwarded the email to Mr Schwennesen, and on 14 October replied to Mr Chambers, discussing “forward production”. Subsequently some embryos were implanted in some of these cattle, using straws owed by Ywagyu. It must have been obvious to Mr Brice that the fact that the cattle were delivered to Lockerbie, and that no protest was made, would indicate acceptance by him of the delivery. It seems to me that that acceptance is confirmed by the use of Ywagyu semen straws to impregnate some of these cattle. Moreover, the email communications between Mr Chambers as to the artificial insemination program to be undertaken for cattle at Lockerbie (no doubt, Wagyu cattle), in particular in relation to the types of calves sought, strongly indicate that the relevant decisions were to be made by Mr Brice 175 T10-46 to 47. 176 T11-5 to 11-8. 177 T9-65/40-50. -- 27 of 58 -- 28 and Mr Schwennesen, again showing acceptance of the delivery. Mr Brice‟s evidence as to his reason for not responding to the email of 2 October 2008 can not be accepted. [110] It is convenient at this point to refer to Mr Brice‟s evidence about paying the cost of transporting some of the Y list cattle to Lockerbie. His evidence was that, until it was alleged in these proceedings that he had paid for the transport, he had no recollection of doing so; and that he took the invoices simply to be related to the issue of production of embryos178. Mr Chambers‟ short letter of 7 November 2008 clearly identified transport costs as included in the amount sought. One of the tax invoices identified, as a separate item, transport costs; and an attached invoice from the transport company referred to the transport of “THREE DECKS” to Beaudesert on 7 October 2008179. These matters, the recency of the delivery of the cattle to Lockerbie, the email correspondence about them, and Mr Brice‟s experience as an accountant, all indicate that his explanation is not to be believed. [111] In his defence of 29 March 2010, Mr Brice pleaded that on about 20 December 2007 Ywagyu paid $330,000 (inclusive of GST) to Mr Chambers for semen straws owned by the DVH Superannuation Fund180. That was in response to an allegation that the payment was made in accordance with the agreement alleged by Mr Chambers to have been formed in August or September of 2007. Mr Brice‟s pleading was in part based on his denial that an agreement had been made at that time. In his third further amended defence and counterclaim, dated 26 November 2011, Mr Brice alleged, in relation to this payment, that in about December 2007, Ms Zammit, as the authorised agent of the trustees of the Superannuation Fund, offered to sell the semen straws to Mr Brice, the agreement being constituted by a conversation at Jackson‟s offices, and the invoice of 20 December 2007; as well as the payment made by Mr Brice on about that date181. Mr Brice‟s evidence was broadly consistent with this pleading182. It might be observed that his evidence does not record any communications identifying the semen straws said to the be the subject of this transaction; though one of the bases on which he denies the agreement alleged by Mr Chambers is that there is no agreement as to the semen straws to be transferred for $300,000183. Indeed, it seems unlikely that Ms Zammit would have been able to identify the semen straws. In my view, it is improbable that Mr Brice would have entered into a transaction, separate from the dealings between the parties in August and September 2007, for the purchase of semen straws for $300,000 without the identification of those straws, and with no knowledge of their value. There is no evidence that Ms Zammit was authorised to act as the agent of the trustees of the Superannuation Fund for such a sale. Ms Zammit did not support Mr Brice‟s version of events. It seems unlikely that Ms Zammit would have been asked to negotiate for the sale of semen straws, when there had earlier been direct negotiations between Mr Chambers and Mr Brice, on a range of matters. I also note that the reference in Ms Zammit‟s email to Mr Chambers on 5 November 2007184 to “the $300K from the sale of embryos” seems inconsistent with Mr Brice‟s version of this transaction, which associates its timing with the issue of the tax invoice. It 178 T9-66/10 to 9-67/5. 179 Ex 1, pp 3178 and 3232 – 3234. 180 Par 40. 181 Defence para 40. 182 T9-52 to 9-53. 183 Defence para 33(e). 184 Ex 1, tab 185. -- 28 of 58 -- 29 therefore seems to me that the current version recorded in the pleadings, and supported by Mr Brice‟s evidence, is a recent invention, and not to be accepted. [112] I am conscious of the difficulties in relying on an assessment of a witness giving evidence in the witness box. Nevertheless, it seems to me necessary to provide some record of my impressions of Mr Brice as a witness. At times he appeared to me to be attempting to give his honest and genuine recollection of events. However, in a number of areas adverse to his case, he gave the impression of a person determined to maintain a particular position, rather than of someone attempting to give an honest account of events. [113] In his defence, responding to an allegation by Mr Chambers, that Mr Brice had agreed to pay $3.2 million for half of Mr Chambers‟ Wagyu business, Mr Brice alleged that he and Mr Chambers did not discuss the purchase by him of half of Mr Chambers‟ business185. In his oral evidence, Mr Brice said that, at no time did he discuss with Ms Zammit or Mr Page the acquisition of part of Mr Chambers‟ (cattle) business; and he gave evidence that, “We never were acquiring any part of John Chambers‟ business. Our very first discussion would preclude that.”186 The next answer demonstrates that the first discussion was with Mr Chambers. His evidence is contradicted by Jackson worksheet entries for 7 and 30 August 2007 (by Mr Page); and 26, 27 and 28 November 2007 (by Mr Page and Ms Zammit)187. His own email of 9 September 2008 speaks of the acquisition of “part of your Wagyu business”. Mr Brice‟s allegation and evidence should be rejected. They seemed to me to be a product of a determination by Mr Brice to controvert some parts of Mr Chambers‟ case, without regard to what in truth happened. [114] I have not found the other submission relating to Mr Brice‟s credit to be of much assistance in determining this case. [115] A number of matters were relied upon in the submissions made on behalf of Mr Brice, for the proposition that Mr Chambers did not have a reliable recollection of matters about which he gave evidence. A submission was made to the effect that Mr Chambers had incorrectly asserted that Mr Brice remained his accountant, and understated the role played by Ms Zammit, in relation to which it was submitted that, on one occasion, Mr Chambers had “tailored” his evidence. It was submitted that on another occasion (in relation to an enquiry about the sale of his veterinary practice) he had lied, and was prepared to lie when it suited him. [116] Some of the submission made in support of the proposition that Mr Chambers was not a reliable historian of events, it seems to me, are of little significance in determining these proceedings. Thus, the fact that he could not say whether he had made any profit from Wagyu breeding in each of the years from 1992 through to 2007 is of little significance, particularly since in that period Mr Chambers‟ focus was on building up the herd, rather than making a profit from it. Nor do I attach much significance to his answers when cross-examined about his foxtail palm business. Although the number of female breeders in Mr Chambers‟ herd in August 2007 is a matter of some importance in the case, I also do not see his reluctance in cross-examination to commit to a number in mid 2007 as a matter of much 185 Defence para 31 (f). 186 T 11-24; see also 11-25/25; 11-26/50 to 11-27/4. 187 Ex 1, pp 3621, 3622. -- 29 of 58 -- 30 significance. The number in August 2007 had plainly been identified in material provided to Mr Schwennesen, along with details including an identification number for each beast, its date of birth, and its location188. [117] It was submitted that the close similarity between his evidence of the telephone conversation with Mr Brice in August 2007, and what appeared in his statement of claim, showed that this evidence was the result of memorisation, rather than recollection, particularly in view of the absence of recollection of the end of the conversation. It is not uncommon for people to recollect some events, and some parts of the events, better than others. It was not suggested that he had memorised any other part of his pleading; nor was a reason identified for his memorising this part of his pleading, and not others. I do not accept the submission. [118] It was also submitted that he tended to give evidence of his conclusion or opinion about the effect of what had occurred, rather than the events which had led to his forming that conclusion. I accept that that occurred on occasion in the course of Mr Chambers‟ evidence, though I do not accept all of the instances relied upon. It seems to me to be a matter to be considered when assessing the reliability of some parts of Mr Chambers‟ evidence; but the fact that in respect of some matters he could not recall precisely what happened does not necessarily mean that his recollection of other matters is to be rejected; nor that his conclusion is necessarily wrong. [119] It was submitted that he was at times evasive and argumentative, and at other times his answers were non-responsive or inconsistent. To some extent, Mr Chambers‟ responses were influenced by the manner in which he was questioned. At times the questions were long and complex. In one of the examples given189, after what appears to have been substantially the same question was twice put to Mr Chambers, he found it necessary to inquire as to what the question was. That occurred on other occasions. Mr Chambers was criticised for his manner of responding to a question about whether he had built up the number of the herd that he had in 2007, over a period from 1992190. His answer sought to explain that the nature of the herd, and not the just the number, had changed over that period. I do not consider the answer to be in truth non-responsive. Nevertheless, in respect of some of the other examples relied upon I accept that answers were not responsive. [120] Mr Chambers‟ evidence that Ms Zammit was an “intermediary” for the provision of advice, ultimately from Mr Brice, was criticised. However, on one occasion Mr Brice gave evidence that he “conduited” advice through Ms Zammit191 (he later described this as “bad use of words”192). As has been mentioned, on occasion Ms Zammit identified Mr Brice as being associated with the provision of advice. Further, the evidence indicates some objective basis for the view expressed by Mr Chambers, although he did not give evidence of that basis. Ms Zammit‟s advice of 17 September 2004 was given the day after her discussions with Mr Brice (as well as with Mr Chambers); and the Jackson worksheets identified a number of occasions where Ms Zammit had discussions with Mr Brice at times proximate to giving advice to Mr Chambers. I do not accept the submission made on behalf of 188 See ex 3. 189 T4-17/54 to 4-19/15. 190 See T4-62/45 to 4-63/45. 191 T9-10/10. 192 T10-64/12. -- 30 of 58 -- 31 Mr Brice that Mr Chambers‟ statements about the relative roles of Mr Brice and Ms Zammit, particularly to the effect that she was an intermediary for the provision of advice from Mr Brice, were “implausible and totally incorrect”; though I accept that some of the advice she conveyed was her own. [121] Mr Chambers gave evidence of telephone conversations which occurred shortly after 26 August 2007. He produced notes which he said were taken in the course of the second and third conversations; and he said that the third conversation was a result of a telephone call from him (at his place of work) to Mr Brice193. On the reverse side of the piece of paper on which the note of the second conversation was made was a facsimile transmission form, which had been filled out and dated 19 October 2007. On the reverse side of one of the pieces of paper on which the notes of the second conversation were made was a hand written note dated 3 September 2007. For Mr Brice, it was submitted that, contrary to Mr Chambers‟ evidence, the notes could not have been made contemporaneously with the conversations; and accordingly he did not have a reliable recollection of what occurred. It was not submitted that the notes were dishonestly prepared for the purposes of the litigation, or even that they were prepared at a time when there was a dispute between Mr Chambers and Mr Brice about what occurred in the course of the conversations. [122] Mr Chambers‟ evidence suggested that it was unlikely that members of his staff had taken the pieces of paper from his room, and used them either as a facsimile transmission form or for the purpose of making a note. There was, however, evidence of the reuse of paper used for sending facsimile messages194. It seems to me that the notes are strongly suggestive of notes taken in the course of a telephone conversation or conversations. They are abbreviated, on occasion to the point that it is difficult to identify what has been recorded. If they were written subsequently, as an attempt to record a completed past conversation or conversations, one would expect a fuller note. It is common ground that many of the things referred to in the notes were the subject of discussion in telephone conversations which occurred about the end of August 2007. On Mr Chambers‟ evidence of the nature of these conversations, there is some inherent likelihood of his making such notes; though that might be a little less true on Mr Brice‟s version. When Mr Chambers gave his evidence (including under cross-examination about these notes) he seemed to me to be doing so honestly, though I acknowledge the difficulties in making an assessment of this kind. I am inclined to accept Mr Chambers‟ evidence about the making of the notes. I am conscious of the difficulties arising from the dates which appear on the reverse sides of the sheets of paper. Nevertheless, it seems to me not to be impossible that the pieces of paper were used to make notes, and subsequently reused for other purposes. [123] I am also conscious that Mr Chambers said that the third conversation was the result of his having telephoned Mr Brice at night, while Mr Chambers was still at his place of work. A schedule prepared on behalf of Mr Chambers reveals that the only telephone call made from Mr Chambers‟ work telephone to Mr Brice‟s mobile telephone at about this time was made on 29 August 2007 at 2:43 pm195. On that 193 The notes became Ex 4. 194 Ex 1 tab 34. 195 See Ex 5. -- 31 of 58 -- 32 basis, the third telephone conversation could not have been made at night196. That raises some question about the reliability of Mr Chambers‟ evidence about these events, but I do not regard it as determinative. [124] The fact that on one occasion Mr Chambers gave an untruthful response to a person asking him for financial information about his practice197, while relevant, does not seem to me of particular significance in assessing Mr Chambers‟ evidence about matters of importance in the present case. [125] It was submitted Mr Chambers tailored his evidence when he said that he informed Mr Brice personally about arrangements he was making with QLW about the end of 2005198. That was because he had been challenged a little earlier in his cross- examination about whether he had any personal knowledge of conversations between Ms Zammit and Mr Brice. The submission assumes the evidence that Mr Chambers spoke to Mr Brice about these matters to be untrue. At about this time Mr Brice was in contact with Mr Chambers about the possibility of Mr Schwennesen engaging in the business of cattle production. On Mr Brice‟s evidence, this discussion occurred in late December 2005199. It seems to me there is not a sufficient basis for finding that Mr Chambers tailored his evidence about discussing these matters with Mr Brice. [126] Although by no means central to the case, I have found the evidence relating to the purchase by the Superannuation Fund of semen straws from Mr Takeda to be of some assistance in assessing the relative credibility of Mr Chambers and Mr Brice. I have earlier referred to the evidence of Mr Chambers on this topic. Mr Brice‟s evidence was that about the time that Ywagyu bought semen straws from Mr Takeda (in June 2006200), Ms Zammit asked whether it was acceptable for semen straws to be acquired by the Superannuation Fund, and he stated that was not a good idea201. That evidence was not corroborated by Ms Zammit, and would seem to be inconsistent with such evidence as she gave on the topic202. In my view, it is unlikely that Mr Chambers was advised that the Superannuation Fund could not purchase the semen straws, prior to the purchase. Otherwise, the purchase would have been contrary to advice; and it would seem that for quite a number of years prior to that time, Mr Chambers had been intent on obtaining appropriate advice about his taxation affairs, and acting on it. Moreover, Mr Brice gave evidence that in the conversation at the end of August 2008, he then told Mr Chambers that the Superannuation Fund could buy straws as an investment, with a view to selling them to an arm‟s length party203. It is difficult to see why he would not have given similar advice a little over a year earlier. In light of the difficulties with Mr Brice‟s evidence, it seems to me that the evidence of Mr Chambers about receiving advice from Mr Brice that the semen straws could be purchased by the Superannuation Fund is more credible and is to be accepted. The evidence of Mr Brice seems to me 196 I note that no evidence was produced relating to telephone calls from Mr Chambers‟ work telephone to any other telephone number. 197 Ex 1, tab 176 and T5-44 to 45. 198 T4-82/1-8. 199 See T9-15 to 9-17. 200 T9-21/22. 201 T9-35/40 to 9-36/10. 202 See T8-36/35-55. 203 T9-44/30. -- 32 of 58 -- 33 to be directed to avoiding a finding that he continued to advise Mr Chambers, after he retired as a partner in Jackson. [127] Submissions were made on behalf of Mr Chambers about whether the evidence of Mr Schwennesen should be accepted. It was submitted that he was not an independent witness. It was submitted that he denied providing a valuation of Mr Chambers‟ herd in August of 2007 when in fact he plainly had done so204. In my view, both submissions are correct. [128] Mr Chambers gave evidence that in relation to sending cattle purchased by Mr Brice to Lockerbie, Mr Schwennesen told him to make sure the decks were full. There is some support for his evidence in his email of 2 October 2008205. This evidence was said to be of some significance on the question whether Mr Brice would be responsible for the cost of the transport, because he had acquired the cattle. Mr Schwennesen denied making the statement. He said he was confident about his denial, because he had been through the cattle numbers when preparing his cash flow (apparently a reference to his work at the end of August 2007); and the properties near Beaudesert had a limited carrying capacity, and it was important to know the number of cattle arriving, to match that capacity206. It was submitted the matters relied upon by Mr Schwennesen indicated an absence of recollection. It seems to me that the first matter (unless it is simply an introduction to the second matter) is of no relevance. The second matter does not provide a basis for not having made the statement. His evidence appears to be designed to support the position taken by Mr Brice about the events which happened in and about October 2008. [129] In my view, Mr Schwennesen‟s evidence was, in a number of respects, not objective and independent, and I propose to treat it with some caution. [130] Ms Zammit attended to give evidence in Mr Chambers‟ case in response to a subpoena. She gave evidence that her practice was only to make worksheet entries which were factually correct207. However, the extent to which, in her evidence in chief, she denied any recollection of matters recorded by her in the work sheets was surprising, particularly about events in the latter part of 2007. They involved dealings between a client with whose work she had been associated from about the time she commenced her employment with Jackson; and a person who had plainly been a significant figure in her professional life. That lack of recollection is particularly surprising in light of the communications between Mr Chambers and her in the early part of 2009. Her evidence in chief was in significant contrast to her evidence when under cross-examination, both in terms of her ability to remember things, and her general responsiveness. When asked in cross-examination about the circumstances in which Mr Brice came to be present at meetings, as recorded by her in the work sheets, she said, “… usually it was a case of him just passing through the office”208. That answer seemed to me designed to understate the significance of Mr Brice‟s involvement in the provision of advice to Mr Chambers. Particularly in light of the evidence of Ms Zammit‟s making contact with Mr Brice and seeking his views, I do not accept that as an accurate description of the circumstances in which 204 See Ex 3 and T12-64. 205 See Ex 1 tab 486. 206 T 12-36/35-48. 207 T 8-4/30. 208 T 8-33/60. -- 33 of 58 -- 34 Mr Brice came to be present for discussions with Ms Zammit about Mr Chambers‟ affairs. Her denial of a recollection of events in the latter part of 2007 is, it seems to me, of particular significance, because the work sheets recorded discussions with Mr Brice about a “sale” of Mr Chambers‟ “cattle business”; and referred, in an entry on the following day, to a “deal with ab” (a reference to Mr Brice). While Ms Zammit‟s lack of recollection does not itself provide evidence of what occurred, in the circumstances it seems to me that I can more easily draw inferences from what is recorded in the work sheets, read in the light of other evidence of contemporaneous events. [131] In the course of the short oral address on behalf of the Chambers parties, I raised my concern about the difference between Ms Zammit‟s evidence in chief, and her evidence in the course of cross-examination. Mr Declan Kelly QC, who, with Mr Goodwin of Counsel, appeared for those parties, then relied upon that difference. Their submission had already challenged the evidence of Ms Zammit as to the circumstances in which Mr Brice came to be present at meetings relating to Mr Chambers‟ affairs. A subsequent written submission from Mr Bain QC and Mr Beacham of Counsel, for Mr Brice, contended that findings that Ms Zammit was an unhelpful witness and not independent, could not be made in view of the rule in Browne v Dunn. Inevitably, questioning of Ms Zammit by Mr Kelly on these matters would involve a challenge to her credit; and it seems to me some questions would be likely to go to credit only. No case has been cited to support the proposition that, having called Ms Zammit, Mr Kelly was in a position to ask questions of either kind; or that the rule applies to evidence of a witness called by the party. The rule is usually stated by reference to an obligation imposed on a cross-examiner, or a party questioning a witness called by an opposing party209. [132] It is regularly said that the rule has two aspects. The first states the duty of a cross- examiner to put matters on the basis of which a submission is subsequently to be made that the witness is not to be believed; as well as any contradictory evidence proposed to be called, and the nature of the case proposed to be relied upon to contradict the witness‟s evidence, even in a case where inferences are relied upon210. The second was formulated by Newton J in Bulstrode v Trimble211, a case regularly cited with approval at intermediate appellate level212, as being no more than that if a witness is not cross-examined upon a particular matter, upon which the witness has given evidence, then that will often provide very good reason for accepting that evidence. His Honour went onto say that if the evidence in chief appeared to be incredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence, the fact the witness was not cross- examined might be of little importance in determining whether to accept the evidence. In Pasqualotto213 it was held that a failure to put evidence does not mean that contradictory evidence cannot be considered; rather the failure goes to the weight of the evidence which was not put to the witness. The failure means no more 209 JD Heydon, Cross on Evidence, (Aus ed looseleaf service) para [17435]; NCH v Western Australia [2013] WASCA 29 at [99]. 210 Pasqualotto v Pasqualotto [2013] VSCA 21 at [242]. 211 [1970] VR 840 at 848. 212 See for example in NCH at [100]; Pasqualotto at [243] – [245]; Van der Velde v Halloran [2011] WASCA 252 at [116]; McDonald v Shoalhaven City Council [2013] NSWCA 81 at [59]; WAQ v Di Pino [2012] QCA 283 at [30]. 213 At [247]. -- 34 of 58 -- 35 than that the evidence of the witness might be more readily accepted214. A court is not precluded from rejecting evidence which is internally inconsistent, notwithstanding a failure to cross-examine on the inconsistency215. In my view, even if the rule in Browne v Dunn216 applies to the evidence of Ms Zammit, the fact that evidence adduced in her cross-examination was not challenged by Counsel for Mr Chambers does not mean that I am bound to accept it; rather, if there is good reason to do so, I consider I am free to reject it. Equally, I do not consider that the rule precludes me from taking the approach I have taken to the entries in the Jackson worksheets. Some contractual principles [133] Mr Chambers‟ case is that a contract was formed in the course of the telephone discussions about the end of August 2007; and it was varied at the meeting at Jackson‟s office on 28 March 2008. The issues which arise in respect of that case may be summarised by the following questions: (a) Did Mr Chambers and Mr Brice reach any agreement? (b) Were any terms on which they agreed sufficiently certain to be capable of having contractual effect? (c) If they reached agreement, did they intend the agreement to be contractually binding? (d) Did they agree on sufficient terms to constitute a contract? [134] I was referred to propositions of law discussed in a number of authorities. There was little that was contentious in the references to principle. However, it is convenient to record some of the matters raised; and, on occasion, to set out passages from some authorities. [135] Since the issues raised by the contractual case relate to the determination of the rights and liabilities of the parties to a contract, they are to be determined objectively217. That determination requires findings of fact. The evidence admissible in respect of those findings, for the purpose of identifying the subject matter of an oral contract, or the determination of its terms, includes post- contractual conduct218. Indeed, subsequent conduct is relevant generally to questions relating to the formation of a contract (as distinct from its interpretation)219. In this context, subsequent conduct includes correspondence between the parties220. 214 McDonald at [59]. 215 WAQ at [27] – [31]. 216 (1894) 6 R. 67. 217 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]. 218 Lym International Pty Ltd v Marco Longo [2011] NSWCA 303 at [136] – [146] , esp [139], [143], [145]; see also [1], [272]. 219 Howard Smith & Co Ltd v Varaw (1907) 5 CLR 68, 77; Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647, 668, 669. 672; B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 at 9154- 9156; 400 George Street (Qld) Pty Ltd v B G International Ltd [2010] QCA 245 at [58] (referring to the earlier authorities); [68], [69]. 220 Barrier Wharfs at 669. -- 35 of 58 -- 36 [136] Where parties reach an informal agreement, but there is a dispute about whether it advanced to a concluded contract, it is legitimate to resolve the dispute by drawing inferences from the words and conduct of the parties221. It seems to me that this approach is also applicable where it is common ground that matters were discussed, but whether they amounted to a concluded contract is in issue. I thus consider the following statement to be relevant222: “In resolving this dispute it is legitimate to ascertain the terms of the agreement then made by the parties, that is to say, what the parties relevantly intended, by drawing inferences from their words and their conduct in the making of that agreement. Where parties reach an agreement which is expressed informally, whether in writing or orally, the terms of their bargain are not ordinarily recorded in meticulous detail in the words which they use. To ascertain their relevant intention it is often necessary to resort to inference, a process for which there is little or no scope when the parties have taken care to comprehensively record the terms of their agreement in written form.” [137] In my view, support for this approach is to be found in the following statement by Allsop J (as His Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd223 (the other members of the Court agreeing with His Honour‟s reasons):224 “(Contracts) can also arise when business people speak and act and order their affairs in a way without necessarily stopping for the formalities of dotting „i‟s and crossing „t‟s or where they think they have done so. … Sometimes this failure occurs because, having discussed the commercial essentials and having put in place necessary structural matters, the parties go about their commercial business on the clear basis of some manifested mutual assent, without ensuring the exhaustive completeness of documentation. In such circumstances, even in the absence of clear offer and acceptance, and even without being able (as one can here) to identify precisely when a contract arose, if it can be stated with confidence that by a certain point the parties mutually assented to a sufficiently clear regime which must, in the circumstances, have been intended to be binding, the court will recognise the existence of a contract. … The essential question in such cases is whether the parties' conduct, including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract. …” [138] It is well recognised that agreed terms, or at least those which are essential to a contract between parties, must be sufficiently certain. I understand this to mean that they must be such that either a court can identify the obligations arising under them, or (for example, in the case of conditions) it can determine their effect. The task of 221 Allen v Carbone (1975) 132 CLR 528, 532. 222 From Allen v Carbone at 532. 223 (2001) 117 FCR 424. 224 Ibid at [369]. -- 36 of 58 -- 37 a court is to identify the terms to which the parties are to be taken objectively to have agreed. In performing that task, no narrow or pedantic approach is warranted225. Where terms of the contract had been performed, a court would be reluctant to hold the terms uncertain226. Nevertheless, where the language used by the parties is so obscure and so incapable of any definite or precise meaning that a court is unable to attribute any particular contractual intention to the parties, a court will hold terms so expressed not to be of contractual effect227. [139] Submissions made on behalf of Mr Brice cited authority for the proposition that where spoken words are relied upon, it is necessary that they be proven with a degree of precision sufficient to enable a court to be reasonably satisfied that they had the effect contended for by the party relying on them228. It might be observed that the proposition does not require complete satisfaction about the specific language used. Recollections of conversations are generally quite unlikely to be word perfect. Insofar as a contract is to have been made orally, the understanding of a party as to what was agreed is relevant to determining what were the terms of a contract229. It is nevertheless necessary for the court to be able to determine what agreement was reached between the parties. I accept that in undertaking that task, it is necessary to bear in mind the nature and consequences of the facts to be proved230. [140] Consistent with what has been said earlier, whether any agreement reached by the parties was intended to be of contractual effect is a matter to be determined objectively231. The question is to be determined by reference to the communications between the parties, as well as the surrounding circumstances232. As has been said, such circumstances include subsequent conduct of the parties. Indeed, an agreement may be inferred from the conduct of the parties, if it shows a tacit understanding or agreement between them; although care must be taken to avoid inferring an agreement from subsequent conduct which in truth is no more than an adjustment of their relationship in light of changing circumstances233. [141] The submissions made on behalf of Mr Brice pointed out, and I accept, that a number of factors may indicate that the parties to some form of oral agreement did not intend to be bound immediately. They are: the contemplation of a formal 225 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 436 – 437. 226 York Air Conditioning and Refrigeration (A/sia) Pty Ltd v Commonwealth (1989) 80 CLR 11 at 53. 227 See Scammell & Nephew Ltd v Ouston [1941] AC 251, 268; see also Meehan v Jones (1982) 149 CLR 571 at 578. 228 Watson v Foxman (1991) 49 NSWLR 315, 318; Hillan v Lewis [2012] NSWSC 640 at [101]. 229 Carmichael v National Power Plc [1999] 1 WLR 2042, 2050-1; 2048 B, C; cited in County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [22], per Spigelman CJ. The evidence points to what was said, which is relevant to the objective determination of the question whether an agreement was reached. It is, it seems to me, different in character from evidence of a party‟s intention in relation to a document to be delivered to another party, considered in Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]. In principle, it seems to me, the understanding of a mere observer as to what parties agreed in the course of their discussions is similarly relevant. 230 Watson at 319. 231 Ermogenous v Greek Orthodox Community (2002) 209 CLR 95 at [25]. 232 Weemah Park Pty Ltd v Glenlaton Investments Pty Ltd [2011] QCA 150 at [45] – [46]. 233 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110, at 11,117-11,118; cited in County Securities at [153]. -- 37 of 58 -- 38 exchange of documentation234; the fact that the parties contemplated that the transaction would be dealt with by lawyers235; the subject matter of the oral agreement, and the magnitude of the transaction236; subsequent negotiations237; and the fact that numerous or significant matters were not the subject of agreement. The submissions also correctly point out that a contract requires more than simply an accumulation of agreed terms238. The ultimate question however remains whether the parties are to be taken to have intended to be legally bound in relation to the matters about which they reached agreement. [142] A certain minimum must be agreed between the parties for their agreement to be recognised in law as a contract. In the simplest of cases that requires the identification of a promise, and consideration. For a sale of land, the necessary essential elements are the parties, the subject matter and the price239. However, agreement about matters sufficient to constitute a contract in law does not always result in a binding contract. It may be apparent that the parties have not reached agreement on terms which they regard as essential to a binding agreement240. On the other hand, parties may by their words and conduct make it clear that they intend to be bound, even where they have not yet agreed on terms usually agreed upon before a binding contract is made241. [143] It seems to me the following statement is helpful242: “(6) It is sometimes said that the parties must agree on the essential terms and that it is only matters of detail which can be left over. This may be misleading, since the word „essential‟ in that context is ambiguous. If by „essential‟ one means a term without which the contract cannot be enforced then the statement is true: the law cannot enforce an incomplete contract. If by „essential‟ one means a term which the parties have agreed to be essential for the formation of a binding contract, then the statement is tautologous. If by „essential‟ one means only a term which the Court regards as important as opposed to a term which the Court regards as less important or a matter of detail, the statement is untrue. It is for the parties to decide whether they wish to be bound and, if so, by what terms, whether important or unimportant. It is the parties who are, in the memorable phrase coined by the Judge, „the master of their contractual fate‟. Of course the more important the term is the less likely it is that the parties will have left it for future decision. But there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later.” 234 Film Bars Pty Ltd v Pacific Film Laboratories (1979) 1 BPR 9251 at 9256. 235 B Seppelt & Sons v Commissioner for Main Roads (1975) 1 BPR 9147 at 9154. 236 Moffatt Property Development Group Pty Ltd v Hebron Park Pty Ltd [2009] QCA 60 at [22] – [23]; Film Bars at [9256]; Seven Cable Television Pty Ltd v Telstra Corporation Ltd (2000) 171 ALR 89 at [99]. 237 Barrier Wharfs Ltd v W Scott Fell & Co (1908) 5 CLR 647, 668 – 669. 238 Seven Cable Television Pty Ltd at [96]. 239 Hall v Busst (1960) 104 CLR 206 at 222. 240 Rossiter v Miller (1878) 3 App Cas 1124 at 1151; cited by Bingham J in Pagnan SPA v Feed Products (1987) 2 Lloyd‟s Rep 601 at 611; see Alford v Ebbage [2004] QCA 283 at [119]. 241 Love and Stewart Ltd v S Instone & Co Ltd (1917) 33 TLR 475, 476, cited in Pagnan at 611. 242 See Pagnan in the Court of Appeal, per Lloyd LJ with whom Stocker and O‟Connor LJJ agreed, at 619; cited in Alford at [118]. -- 38 of 58 -- 39 Submissions relating to contractual liability issues [144] For Mr Chambers it was submitted that this was a case where the parties had reached agreement, intended to be immediately binding, notwithstanding their expectation that this would be replaced by a further written contract or contracts243. That conclusion is to be derived from the evidence of Mr Chambers with some support in the evidence of Mr Brice. These people were the parties to the agreement. The cattle to which the agreement related was one half of the 470 female full blood Wagyu breeders identified in exhibit 3. In relation to the semen straws owned by the Superannuation Fund, it was not necessary for the formation of the agreement that straws be specifically identified. The parties agreed that the repayment obligations for the loan would be off-set by lease payments. The transactions were to be documented in the way that was most tax effective. [145] It was further submitted that post-contractual conduct demonstrated that a contract had been formed in the August 2007 telephone conversations. Specific reliance was placed on some matters relating to the subsequent loan from Mr Brice. The submissions, unlike the statement of claim, do not contend that the agreement included a provision for a mortgage; rather it was submitted that the granting of mortgages in respect of the loan was not inconsistent with the agreement. Reliance was also placed on the division of the herd; Mr Brice‟s choice of the Y list cattle; acceptance of physical delivery of some of the Y list cattle; the transaction relating to the sharing of embryos (and costs) in the later part of 2008; the provision of assistance and information by Mr Chambers to Mr Schwennesen; the payment by Mr Brice of $110,000 for embryos; the payment by Mr Brice of $330,000 for semen straws; and Mr Brice‟s failure to assert before 21 February 2009 that there was no agreement between them. [146] For Mr Chambers it was submitted that there was no uncertainty about the subject matter of the agreement. It was also submitted that, although some matters (including registration of certificates with the Australian Wagyu Association, liability for transport costs, GST issues, and ownership of progeny) were not the subject of express agreement, that did not affect the existence of a binding contract. [147] For Mr Brice it was submitted that no agreement was reached, although there was discussion about the matters which Mr Chambers alleges to be the subject of the contract. The evidence did not show that the parties intended to be contractually bound. Rather, they did not get beyond the stage of ongoing, but incomplete, negotiations. There was uncertainty about the subject matter of the contract, and in particular whether it included a sale of half of the whole of the herd owned by Mr Chambers; or half of the female breeding herd; or half of his business. Even if the parties were considering a sale of half of the female breeding herd, the particular half was not indentified, nor was agreement reached about how that would be resolved. In view of the case pleaded on behalf of Mr Chambers, reliance could not be placed on the subsequent work of Ms Radeski, and Mr Brice‟s choice of the Y list cattle. The goodwill to which reference was made in the discussions was unidentified. Likewise it was not clear what Mr Chambers was obliged to do for the management fee. As has been mentioned, reliance was placed upon the lack of agreement about GST. Further negotiations were contemplated. It was clear that the parties expected the transactions to be reduced to writing. Lawyers were expected 243 See Brunninghausen v Glavanics (1999) 46 NSWLR 538 at [33]. -- 39 of 58 -- 40 to be involved. The magnitude of the transaction favours the view that the parties would not have intended to enter into a binding agreement, unless it was in writing. Mr Chambers made no reference to the existence of an agreement, until 11 February 2009. Even then, the language used by Mr Chambers suggests that no binding contract had been made. The time which had passed also indicated that the parties had not entered into a binding contract. The sharing of embryos in 2008 was not referable to the agreement relied upon by Mr Chambers. The draft contract produced by solicitors then acting for Mr Chambers late in 2008 is inconsistent with his case that agreement had been earlier reached between the parties. Likewise his instructions to Ms Zammit on 10 March 2009 are inconsistent with an earlier agreement. [148] In a document entitled “PLAINTIFFS‟ WRITTEN REPLY SUBMISSIONS” (Reply Submissions) reference was made to the fact that around August 2007, Mr Brice recognised an unique opportunity to get into the cattle business, and to create a career path for Mr Schwennesen, which he began to pursue, including by travelling to Darwin. Mr Brice knew that Mr Chambers was looking for an amount in excess of $3,000,000, which explains the total amount discussed in the August 2007 telephone conversations. The email of 27 August 2008 from Mr Brice supports the conclusion that they previously reached a binding agreement. The terms of the agreement said on behalf of Mr Brice to be “redolent of a sham” in fact reflected that Mr Brice was an innovative and aggressive accountant, who was obtuse about ethical matters. The conduct of the parties in relation to the subsequent transactions involving semen straws and embryos demonstrates that Mr Brice was to pay GST, in addition to the amounts discussed. So far as the fate of progeny was concerned, in the absence of agreement, that is determined under the general law244. It was sufficient for the formation of a binding agreement that the parties agreed upon the sale of half of the breeding herd. That was something objectively capable of achievement; though each party was entitled to insist upon an objectively reasonable outcome. Liability issues for the contractual claim [149] Reference has previously been made to the state of the pleadings relating to the August 2007 telephone conversations. Mr Chambers gave evidence in support of his pleaded position. His evidence was that there were three telephone calls. In the course of the first call, Mr Brice expressed an interest in buying half the female breeding herd for $2,500,000, of which $1,000,000 would be treated as a payment for goodwill. Mr Chambers indicated that that was not a sufficient amount245. In the second telephone conversation, Mr Brice again proposed the payment of $1,000,000 for goodwill. He also proposed leasing the cattle over three years; that would be “conjoined” with a loan over a similar period of time. These two transactions could occur in either order; but they would be “in effect a round robin transaction”. In the same conversation there was discussion of management fees246. In the third conversation, Mr Brice pointed out the advantage to Mr Chambers of the payment of $1,000,000 for goodwill. He said that Mr Brice suggested that he would pay $300,000 for semen straws owned by the Superannuation Fund; and in 244 Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 at [37]; Big Top Hereford Pty Ltd v Gavin Thomas as Trustee of the Bankrupt Estate of Douglas Keith Tyler [2006] NSWSC 1159 at [35]. 245 See 3-6 to 7. 246 T3-8 to 3-10. -- 40 of 58 -- 41 addition would transfer equivalent straws to Mr Chambers. Mr Brice proposed three payments of $100,000 each, at the end of June 2008, 2009, 2010, for management fees. He also said that he would pay $100,000 for 100 embryos, though the embryos did not need to be given to Mr Brice. Mr Brice also said that the loan and the lease “should be indentified and documented separately and spaced by a reasonable period of time”; but when they “come together, the monies owing under the lease agreement will offset the monies owing on the loan agreement over the three years, and that would include any interest that was applicable to the loan”. Mr Chambers said that he agreed to each of these matters247. In cross-examination, Mr Chambers said that in these conversations, the number of embryos to be paid for was specified, being 100 embryos248. Mr Chambers said that when he asked what he had to do for the management fees, Mr Brice told him that he had to keep Mr Lingard involved, even if there were difficulties between him and Mr Schwennesen249. He also asked what else he needed to do. That evidence was not further pursued in cross-examination. [150] Mr Chambers gave evidence that the figure of $1,500,000 was derived by Mr Brice starting with an overall figure of $3,200,000, and deducting the amounts for the other parts of the transaction250. He also gave evidence that the lease and loan “would counteract each other out … and those payments will offset the loan and the payments would include at each time any interest that had been earned on the loan”251. He said that there was no discussion about what would happen to offspring of cattle that were in calf252. Nor was there discussion about the process of registration of the cattle with the Wagyu Association253. Nor did he recall discussions about GST254. He gave evidence that Mr Brice said that the lease payments would be made in July of each of the three following years; and the management fees were to be paid in June of each of the three following years255. He also gave evidence that Mr Brice said with respect to the loan and the payments for the leasing of the cattle, one would “wipe out” the other256. [151] Mr Chambers did not give evidence to the effect that, in the telephone conversations around the end of August 2007, there was discussion about securing the loan of $1,500,000; nor was that suggested to him in cross-examination. [152] I previously referred to Mr Brice‟s pleaded case relating to these telephone conversations. In his evidence in chief, Mr Brice dealt with them globally; and, in doing so, topic by topic. The first topic to which he was taken was what Mr Chambers said about needing money to move from Darwin to northern New South Wales. Mr Brice‟s evidence was that Mr Chambers said he needed $3,000,000 to do this; and asked Mr Brice about the tax implications of selling half the herd. Mr Brice informed him that he would be taxed at a rate of 50 percent. Mr Chambers then said that he did not wish to sell half the herd, and Mr Brice responded by 247 T3-10 to 3-14. 248 T6-53. 249 T6-56. 250 T6-57. 251 T6-58. 252 T6-59 to 6-60. 253 T6-60. 254 T6-60 to 6-62. 255 T6-61. 256 T6-63 to 6-64. -- 41 of 58 -- 42 saying that there could be other alternatives, which would include buying semen straws and embryos, and some cattle, and some ongoing assistance from Mr Chambers, in part referred to as intellectual property, and in part referred to as management257. At this time, Mr Brice knew that there were semen straws owned by the Superannuation Fund258. Mr Brice later said that he suggested a figure of $300,000 for the acquisition of semen straws259; although he also said (with reference to the time when signed the cheque late in 2007) that he had no idea of the value of the straws260. [153] Mr Brice referred to a “combination of transactions, which were sort of linked”: and said that he used the expression “goodwill” in relation to the assistance to be provided by Mr Chambers261. [154] Mr Brice initially said that in these conversations, there was no reference to bulls; but subsequently said that Mr Chambers said that bulls were “in”262. [155] Mr Brice said that there was no discussion about how Mr Chambers would provide “goodwill”, but that it would take three years263; nor of what would be done for the management fees264; nor was there discussion of specific numbers of cattle to be purchased; nor of how the division of the herd might be dealt with; nor of delivery dates; nor of who would be the ultimate purchaser of the cattle265. There was discussion of the sale of cattle “possibly in three tranches”; and there was discussion about “the possibility of leasing cattle266. Mr Brice also said there was discussion “that there was a possibility that I could lend (Mr Chambers) $1.5 million”267. There was no discussion of the incidence of GST268. Mr Brice said that there was simply “a proposal at foot”269; and that Mr Chambers‟ response was that “we should proceed to consider these proposals”270. [156] Mr Brice denied that there was any offsetting or linkage between the loan which was discussed, and the leasing or sale of the cattle (in conversation it was said that the proceeds from the sale of the cattle can pay off the loan, “but not in its entirety”); and he denied that he was not to receive embryos or semen straws pursuant to the proposals271. At one point he referred to the loan as being “to assist the funding of the Darwin Veterinary Hospital and the practice”, in context, a reference to Mr Chambers‟ veterinary practice272. Mr Brice said that he pointed out in the course of the conversation that it would be an advantage to Mr Chambers to have the semen straws no longer owned by the Superannuation Fund273. He also 257 T9-34 to 9-35. 258 T9-35 to 9-36. 259 T9-37/40. 260 T9-53/20. 261 T9-35/20. 262 T9-39/20-40. 263 T9-38/20. 264 T9-38/25. 265 T9-40/10-30. 266 T9-40/44. 267 T9-40/50. 268 T9-41/44. 269 T9-41/45. 270 T9-39. 271 T9-43. 272 T9-43. 273 T9-44/10-20. -- 42 of 58 -- 43 told Mr Chambers that it would be an advantage for the sale of the semen straws to take place, because the profit derived by the Superannuation Fund would be taxed at a lower rate274. [157] He said that that no conclusion was reached about whether there would be a purchase of the cattle or a lease; nor as to the timing of the transaction; nor as to insurance or transport275. He also said that the payment for goodwill would come at the end of the three year period276. [158] In cross-examination, Mr Brice agreed that the loan and the cattle transaction could be done “in whatever order”277. He said there was discussion about the payment of management fees in sums of $100,000 in June 2008, June 2009, June 2010278. [159] Before considering whether the August 2007 telephone conversations resulted in a binding contract, it is convenient to refer to the evidence of the meeting at the Jackson offices in March 2008. Mr Chambers gave evidence that the meeting was a result of a telephone call from Mr Brice, stating that he had purchased Hawkins, and it would be a good time to “conclude the other part of our agreement”279. Mr Chambers said that at this meeting, Mr Brice referred to a sum of $200,000 for the management fee; but otherwise referred to the components of the transaction discussed in the August 2007 telephone conversations. Mr Brice asked whether he should write a cheque for $1,000,000, in relation to the “goodwill” component of the transaction280. There was discussion about vaccination of animals to be delivered to Mr Brice, as his properties were in a tick affected area281. Mr Brice instructed Mr Schwennesen to cease charging Mr Chambers for agistment of cattle at Lockerbie. They also discussed the division of the female breeding animals, some of which were at Mr Ron Fitzgerald‟s property at Wandoan for an embryo collection program. It was decided the program would continue, Mr Chambers and Mr Brice would each get half of the embryos, and each would pay half of the costs282. The concept of leasing the cattle was not discussed; rather, Mr Brice simply spoke of making the payments for the cattle283. The position reached at the meeting with regard to the division of the cattle was that Mr Chambers would prepare lists dividing the cattle into two groups, as fairly and evenly as was possible; and Mr Brice would select one of the groups284. Each party would look after the cattle in that party‟s possession, as if those cattle belonged to that party; and neither would charge the other agistment fees, until the herd had been divided between them285. Mr Chambers asked Mr Brice whether, in view of the fact he was getting embryos from the program being conducted at Wandoan he still wished to purchase other embryos. Mr Brice replied that it was “just a way to get $100,000 into your hands”286. Mr Schwennesen, who was also at the meeting, told Mr 274 T9-44/30. 275 T9-44/40-50. 276 T9-45/10. 277 T11-53/10. 278 T11-54/40. 279 T3-36/40. 280 T3-37/10. 281 T3-37/20. 282 T3-37/40. 283 T3-38/10. 284 T3-38/10. 285 T3-38/30. 286 T3-38/40. -- 43 of 58 -- 44 Chambers that when sending cattle to Lockerbie, to make sure the decks of the trucks used for this purpose were full287. [160] Mr Brice‟s evidence was that the meeting was convened by Mr Schwennesen288; though in cross-examination he said, with reference to the meeting and his acquisition of Hawkins, that he may have rung Mr Chambers and said they should “commence a process of talking about acquisition of cattle”289. Mr Brice said that Mr Chambers said that “his property was in drought”; and so Mr Brice proposed “letting him off the agistment of the cattle” at Lockerbie “until ... the prospect of the proposal of possibly of acquiring some of his cattle being completed”290. He denied that it was agreed that each would look after the cattle in his possession as if they were his own291, but agreed that Mr Chambers was to work out a way to subdivide the herd292. He also said that Mr Chambers asked whether he would like to take part in the embryo flushing program being conducted by Mr Ron Fitzgerald, to which he agreed293. He said that he made a sarcastic comment, suggesting he had no intention of paying for goodwill294. [161] Mr Schwennesen was also at this meeting. He gave evidence that it was “a chance for Mr Chambers to update us on where he was in terms of getting some – some more finalised cattle numbers”, which Mr Chambers did not in fact have available295. There was a discussion about “various components for the proposal”, including semen straws, embryos and goodwill. He said that the sum of $300,000 was “set aside for semen straws”, $100,000 for embryos, and the goodwill component was $1,000,000; but the balance purchase price depended on the actual cattle numbers296. He said that each of the parties was to look after the cattle in his possession “as though they were our own”297. He also said that it was agreed that they would be able to obtain one half of the embryos produced by the program being carried out by Mr Fitzgerald, for half of the costs298. He denied giving instructions in relation to shipping cattle, to “make sure the decks are full”299. [162] The submissions made on behalf of Mr Chambers rely heavily on the conduct of the parties after the August 2007 telephone conversations, as demonstrative of an oral agreement formed at that time. It seems to me there is considerable force in those submissions. Although in October 2007 Mr Chambers had the difficulty that Smith Street could not be leased, and was encumbered by a debt of $1,700,000 in respect of which Ms Zammit, when writing to Mr Brice at that time, said that he was stressed, nevertheless steps were taken with a view to purchasing Big Top. Ms Zammit‟s email to Mr Brice of 19 November 2007 was plainly sent on the basis of an expectation that Mr Brice would provide funds in relation to its purchase. However, the amount of the loan provided by Mr Brice was not determined by the 287 T3-38/50. 288 T9-54/45. 289 T11-58/20. 290 T9-55/5. 291 T9-55/35. 292 T9-55. 293 T9-56/10. 294 T9-57/20. 295 T12-35. 296 T12-35/25. 297 T12-35/60. 298 T12-36/1. 299 T12-36/40. -- 44 of 58 -- 45 amount needed to meet the costs of the purchase of Big Top. Rather, it reflects the amount which, on Mr Chamber‟s evidence, was agreed in the August 2007 telephone conversations to be lent; matching the amount to be paid for the cattle. [163] The submissions for Mr Chambers described the loan as “uncommercial”, involving, as it did, full repayment by substantial annual instalments over the following three years. I accept that the loan was “uncommercial”, and one which Mr Chambers was unlikely to enter into in other circumstances. The likely explanation for his doing so, in my view, was the fact that there was an agreement between Mr Chambers and Mr Brice under which Mr Chambers was to be paid amounts by Mr Brice over that period, matching his obligations in relation to the loan. [164] Under the loan agreement, Mr Chambers was to repay the sum of $500,000 on 19 July 2008; and a further sum of $500,000 on 19 July 2009. These amounts were not repaid on those dates; nor was any demand made for payment until, at the earliest, November 2009300. These facts seem to me to support the existence of an agreement under which Mr Brice was to make payments of corresponding amounts to Mr Chambers. I also note that interest payments were not pursued before November 2009. [165] There are some features of the loan transaction which might suggest it does not demonstrate the agreement alleged by Mr Chambers. Thus the evidence does not suggest that an agreement was reached about the provision of security in the August 2007 telephone conversations. Nor was there any specific agreement about an interest rate. It was likely that the parties expected that there would be a written loan agreement, but its terms had not been settled in the August 2007 telephone conversations. [166] Ordinarily, an agreement to make a loan of $1,500,000 would not be expected to be made, without some specific agreement about the provision of security and a rate of interest. Notwithstanding the significance of the fact that agreement had not been reached about these things in the August 2007 telephone conversations, that seems to me to be explicable by the fact that the parties had agreed that Mr Brice would be liable to pay corresponding amounts to Mr Chambers. Mr Chambers‟ willingness to provide security when called upon to do so is not particularly surprising in the circumstances: the agreement made it unlikely that recourse to the security would ever occur. The loan was part of the mechanism by which Mr Chambers was to be paid. Mr Brice had, by the time of the telephone conversations, shown strong interest in buying the cattle. The parties had been friends for quite some time, and trusted one another. The absence of a written record of the agreement to make the loan, and agreement about more detailed terms, seems to me less significant than it would in other circumstances. [167] On 20 December 2007, Mr Brice paid $330,000 to the Superannuation Fund for semen straws. In context, it is clear that this payment was made to provide money for the purchase of Big Top. I have earlier rejected Mr Brice‟s evidence about this transaction. It is a curious feature of this transaction that semen straws were not delivered at about this time, nor did Mr Brice make any enquiries about delivery, nor did he attempt to discuss with Mr Chambers what was to be done about them. 300 See T 10-34 to 10-37 and Ex 1 tab 626. -- 45 of 58 -- 46 Indeed, he seems to have taken no action with a view to obtaining the semen straws until 10 September 2010301. This transaction, too, provides support for the existence of the agreement alleged by Mr Chambers. [168] For Mr Brice, it was pointed out that this aspect of the transaction alleged by Mr Chambers is in the nature of a sham, and it is extremely unlikely that Mr Brice would have entered into such an agreement. He would be required to pay a substantial amount of money, but would have no more semen straws after the transaction than before. While acknowledging the force of the submissions, the circumstances as I have found them to be, it seems to me, provide significant support for the case for Mr Chambers. Once it is accepted that the payment was not the product of an agreement made with Ms Zammit in December 2007, the only explanation for it is an earlier agreement; and the only evidence of an earlier agreement is that given by Mr Chambers. The transaction was intended to be another means by which money could be made available to Mr Chambers, in relation to the sale of half of his herd. [169] It is clear that at the meeting at Jackson‟s offices in March 2008, Mr Brice and Mr Chambers agreed that Mr Brice would receive half of the embryos from the embryo flushing program being conducted at the property of Mr Ron Fitzgerald, on the basis that he would pay half of the associated costs. That agreement was carried out. No sensible explanation was given for this arrangement by Mr Brice. I note that in July 2006, Ywagyu had purchased 200 embryos at $500 each; and in April 2008, paid $100,000 (plus GST) for 100 embryos. It seems to me that the likely explanation for the agreement in relation to the sharing of embryos from female breeders in Mr Chambers‟ herd is that the parties had by then reached an agreement involving a series of transactions, under which Mr Brice (or his associated interests) would acquire one half of the female breeding herd, some parts of which had been carried out, and the remainder of which was expected to be carried out in the relatively near future. [170] It is also clear that at this meeting, Mr Brice said he would cease charging agistment fees for the cattle which had earlier been taken to Lockerbie. Indeed, the effect of Mr Schwennesen‟s evidence was that each party would look after the cattle under his control as if there were his own. These things are consistent with the parties taking the view that Wagyu breeders on agistment at Lockerbie included cattle which would remain the property of Mr Chambers, though some would become Mr Brice‟s cattle; and that the remaining breeders for which Mr Chambers was responsible included cattle which would become Mr Brice‟s. While Mr Brice‟s explanation may not be improbable, it seems to me to be less likely. It also sits uncomfortably with his statement in his email of 21 February 2009, in relation to his dealings with Mr Chambers, that business and benefaction are mutually exclusive and should not be mixed302. For these reasons, in view of my conclusion about the credit of the parties, and in light of the other matters which in my view support a conclusion that there was a concluded agreement as alleged by Mr Chambers, I reject this explanation. [171] In my view, the fact that there was discussion at this meeting about the means by which the herd was to be divided is itself some evidence of the existence of a 301 See the letter from Mr Brice‟s solicitors to Mr Chambers‟ solicitors of 10 September 2010, in Ex 6. 302 Ex 1, tab 572. -- 46 of 58 -- 47 concluded agreement. It seems to me that what was under discussion was the means by which the agreement might be implemented. Otherwise, there was no need for concern about whether a fair division of the herd took place; rather Mr Chambers could have identified the cattle which he wished to sell, and Mr Brice could then have decided what amount he was prepared to pay for them. [172] In April 2008, Mr Brice paid $100,000 plus GST for 100 embryos. Mr Brice alleged that this payment was not made pursuant to the agreement alleged by Mr Chambers; rather it was the result of an agreement made by telephone late in March 2008, against the background of the purchase made in July 2006303. His evidence was that this was discussed in the meeting at Jackson‟s offices304. Mr Chambers gave evidence that the payment was discussed at this meeting, Mr Brice saying of it that “it‟s just a way to get $100,000 into your hands”305. There are some features of this transaction which should be mentioned. The embryos were not identified. There was no evidence of any discussion about arrangements for providing them to Mr Brice. Nor was any attempt made to obtain the embryos until 31 March 2011306. This transaction is, in a number of respects, similar to the transaction relating to semen straws. It seems to me to provide some support for the existence of the agreement alleged by Mr Chambers. [173] Likewise, Mr Brice‟s communication on 9 September 2008 of his decision to take the Y list seems to me to be a step in the performance of the agreement. That conclusion is reinforced by the discussion in that email, and by Mr Chambers‟ email of 11 September 2008, relating to movement of cattle. The subsequent movement of cattle to Lockerbie, and the fact that Mr Brice paid the cost of the transport, seems to me also to indicate that the parties were then carrying out an agreement previously reached relating to the sale of cattle. [174] The email correspondence in October and November 2009 relating to the management of Wagyu cattle at Beaudesert, including a breeding program, indicated that the Wagyu cattle which had been delivered by Mr Chambers to Mr Brice‟s properties, or which Mr Chambers had earlier placed there on agistment and were to remain there, would be Mr Brice‟s. That in turn points to the existence of the agreement alleged by Mr Chambers. [175] It is clear that the breeding program carried on at Lockerbie in the latter part of 2008 included the insemination of Y list Wagyu cattle, some of which had been delivered on 7 October from Shiro and Bogandilla. As has been mentioned, Mr Brice‟s pleading indicates Y list cattle were inseminated at this time, using straws owned by YWagyu. It seems to me that the only sensible explanation for these events is that the delivery of the cattle in October 2008 was accepted by (or on behalf of) Mr Brice; and the cattle were thereafter treated as his. That, in turn, demonstrates the existence of the earlier agreement for the transfer of the cattle to him. [176] The submissions made on behalf of Mr Chambers relied on the assistance, information and help he provided to Mr Schwennesen after August 2007 as evidence of the existence of the contract. While I ultimately accept that by then he 303 Defence para 58. 304 T 9-58. 305 T 3-38/45. 306 See the letter of that date from the solicitors for Mr Brice to the solicitors for Mr Chambers, found in Ex 6. -- 47 of 58 -- 48 was doing so pursuant to the agreement, I do not consider that this is of assistance in determining whether a contract had been formed. He had provided similar assistance over a period of time before the August 2007 telephone conversations. [177] Further, Mr Brice‟s email of 21 February 2009 did not deny the parties had reached agreement. It simply asserted there was no legally binding contract. It provides some support for the fact that agreement had been reached in the August 2007 telephone conversations. [178] Some of the conduct of the parties after the August 2007 telephone conversations could be said to indicate that a binding agreement had not been made. Mr Brice‟s email of 27 August 2008 is to some extent ambiguous. On the one hand, the suggestion that stock might be sold to generate cash and thereby reduce the investment, with the result that Mr Chambers would still get the sale proceeds, and Mr Brice would get fewer cattle, rather suggests an attempt to negotiate away from an existing agreement. On the other hand, Mr Brice‟s expressed reluctance to put Mr Chambers in a position where he had to feed more cattle than he planned, suggests a degree of freedom about the performance of the contract. On the whole, this email does not seem to me to weigh strongly against the existence of an earlier agreement. Indeed, in part it points to the existence of the agreement asserted by Mr Chambers. [179] The draft contract produced by Cridland in about October 2008 does not sit comfortably with the agreement alleged by Mr Chambers. Mr Chambers explained his conduct by reference to his concern about Mr Brice‟s attitude to carrying out the agreement307. His email to Mr Brice enclosing the contract indicated that it differed from his instructions, but stated it would provide a basis for a revised draft. [180] The submissions made on behalf of Mr Brice contended that the absence of any attempt to bring about completion at an earlier point in time showed that no agreement had in fact been formed. The submission is not without some force. However, if my conclusion about the loan agreement is correct, that agreement demonstrates some relatively early action, based on the agreement alleged to have been reached in the August 2007 telephone conversations. Moreover, it seems to me that the delay may well have a different character. In the period up to and including those telephone conversations, Mr Brice had displayed some enthusiasm for purchasing one half of Mr Chambers‟ breeding herd. On his case, no definite position was then reached, and he did nothing to further the transaction until the following March. His case provides no explanation for leaving the proposal unresolved for so long. On the other hand, if an agreement had been reached, delay in progressing the purchase of the cattle could well relate, as Mr Chambers‟ evidence suggests, to the fact that Mr Brice wished to secure another property to accommodate them. That occurred in the early part of 2008. In the meantime, having taken the loan, it would have been difficult for Mr Chambers not to proceed with the transaction. [181] It might also be observed that Mr Chambers‟ email to Mr Brice of 20 January 2009 is somewhat diffident in asserting an existing contract. However, it seems to me that when read as a whole that is its effect. 307 See T3-52;7-30 to 7-32. -- 48 of 58 -- 49 [182] The submissions for Mr Brice placed some weight on communications between Mr Chambers and Ms Zammit resulting in the provision of information by him to her in an email of 10 March 2009308. The communications indicate that he had sought a “tax estimate”; and to provide it, Ms Zammit asked for further information. It seems to me that these communications simply reflect an attempt by Mr Chambers to obtain information with a view to seeking to resolve the dispute which had arisen because Mr Brice denied the existence of a binding contract. Some of the language used by Mr Chambers reflected the existence of an earlier agreement. Moreover, it seems to me that Mr Chambers‟ email to Ms Zammit of 14 March 2009309 sheds light on the email of 10 March. [183] When considered overall, it seems to me that the conduct of the parties subsequent to the August 2007 telephone conversations points strongly to the existence of an agreement between them, intended to be binding. That view is consistent with the evidence of Mr Chambers about these telephone conversations. Accordingly, I find that the parties intended, in those telephone conversations, to make a binding agreement; although I also find that it was intended that at least some of the elements of that agreement were to be the subject of subsequent documentation. However, I find that it was not intended that the agreement as a whole be recorded in a single document. Accordingly, I am satisfied that the parties reached agreement in the August 2007 telephone conversations, generally as alleged by Mr Chambers, save with respect to the allegation that payments to be made for cattle and repayments under the loan could be set off against each other. I shall return to that matter later. [184] I also accept that the agreement was varied at the meeting on 28 March 2008, as alleged by Mr Chambers. [185] Mr Brice‟s pleaded case, generally supported by the submissions made on his behalf, is that either there was no agreement about a number of matters alleged by Mr Chambers; or that any agreement reached was of no effect because it was uncertain with regard to those matters. A number of these matters related to the identity of the cattle said to be the subject of the transaction, including the proportion of heifers, steers and bulls; the treatment of progeny; and how the herd would be divided. [186] I should commence by saying that I accept Mr Chambers‟ evidence that bulls were not included in the agreement reached in the discussions which took place in the August 2007 telephone conversations; nor in the agreement reached at the Jackson offices in March 2008. The total amount to be paid by Mr Brice was arrived at after the valuation carried out by Mr Schwennesen. That was done by reference only to the female breeders owned by Mr Chambers. Each was specifically identified. Bulls were not included in the exercise. The total amount offered by Mr Brice was within the range of values for half the herd resulting from Mr Schwennesen‟s valuation. Although at the meeting on 28 March 2008, there was discussion about the preparation of lists to divide the herd, there was no discussion about the identification of bulls to be transferred to Mr Brice. The lists which were 308 Ex 1, tab 582. 309 Ex 1, tab 587. -- 49 of 58 -- 50 subsequently sent to Mr Brice referred only to female cattle310. No complaint was made by Mr Brice about the failure to undertake a process of dividing bulls between him and Mr Chambers. [187] It seems to me that the method by which the herd would be divided into two halves of equal quality was a matter about which the parties expected to be (and were) able to reach subsequent agreement. The dealings between Mr Brice and Mr Chambers in the period around August 2007, including the process by which Mr Brice came to a price, proceeded without regard to how the herd might be divided. The mechanism for doing this did not appear to be of any particular significance to either of them; though no doubt it can be assumed they expected it to be fair. It seems to me that, had the parties not reached subsequent agreement, a court could, if necessary, give effect to the agreement reached in the August 2007 telephone conversations. [188] The subject matter of the agreement was female breeders. So far as a lease was contemplated, its obvious purpose was to permit Mr Brice to have the benefit of the calves which they produced during the period of the lease. The absence of any specific agreement about ownership of the calves would not, in my view, affect the question whether the parties entered into a binding agreement. Moreover, the lease proposal was abandoned at the meeting in March 2008. [189] So far as a sale was contemplated, similar considerations would apply. Under the general law, a calf is the property of the owner of its mother311. Absence of express agreement about this matter would not ordinarily prevent the formation of a binding contract; and there is nothing in the circumstances of the present case which would lead to a different conclusion. Although the case pleaded by the plaintiffs alleged that ownership of the cattle was not to pass until the end of the three year period, the evidence did not demonstrate that. If, however, property in the breeders was not to pass for three years, it seems to me that the intention of the parties was that from the time of delivery of the cattle, Mr Brice was to have the benefit of their calves. He was paying to have the benefit of half of a herd of female breeders. As Mr Chambers knew from at least 1 June 2007, he and Mr Schwennesen were anxious to secure a supply of Wagyu meat. Mr Chambers also knew that the price had been developed by reference to a discounted cash flow, which took into account the value of calves from the first year of the period under consideration312. [190] The agreement which was reached between Mr Chambers and Mr Brice resulted from the fact that Mr Chambers was not prepared to sell half his herd for $2.5 million, and accordingly Mr Brice sought to develop a structured agreement which would have made available to Mr Chambers the amount of money he wanted. That resulted in a substantial amount being included for what was described as “goodwill”. Moreover, Mr Brice wished to have the benefit of Mr Chambers‟ continued assistance in relation to the effective use of the cattle Mr Brice was purchasing; and the continuation of the assistance he had received in the past. 310 See generally the evidence of Ms Radeski, T7-55 to 7-63; although in her work she identified two steers, they were under the heading “PROBLEM CATTLE”; and appear to have been referred to because they were erroneously included in the artificial insemination list: see Exhibit 1 opposite page 2608. 311 See Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 at [37]; Big Top Hereford Pty Ltd v Thomas [2006] NSWSC 1159 at [35]. 312 See Exhibit 3. -- 50 of 58 -- 51 Against that background, it seems to me, that there was sufficient definition of what was to be provided by Mr Chambers in relation to what the parties described as goodwill; and as to the management services to be provided by him; although there was no clear definition between the two. I do not accept the submissions advanced on behalf of Mr Brice, that no binding agreement was reached, or that any agreement was of no effect by reason of uncertainty, in relation to these matters. [191] The semen straws were in my view, sufficiently identified. At the time of their agreement, they were known by both parties to be those owned by the Superannuation Fund. The identity of the embryos was not, on the evidence, a matter of importance to Mr Brice at the time of the agreement. So much is confirmed by Mr Brice‟s willingness to pay $100,000 in April 2008, without any identification of the embryos. Nor was the identification of further terms necessary for a binding agreement in relation to each of these items. Again, Mr Brice‟s subsequent conduct confirms this. [192] The submissions made on behalf of Mr Brice also relied upon the absence of express agreement about payment of GST. For Mr Chambers it was submitted that the amounts subsequently paid in respect of semen straws and embryos demonstrated an agreement that the purchaser would pay GST. It seems to me that this conduct is more likely to demonstrate a tacit agreement that the purchaser would pay GST. That is consistent with their agreement for the sale of embryos in June 2006; and Mr Brice‟s intention to make an offer that would enable Mr Chambers to have available to him the amount of money he sought. Even if it were not correct to find that the parties reached agreement about payment of GST, the result simply would be that they agreed on amounts to be paid, but that they did not agree that Mr Brice would provide additional funds to meet Mr Chambers‟ liability for tax on the transactions. It would not mean that they had not reached a binding or certain agreement. [193] As previously mentioned, it has been submitted on Mr Brice‟s behalf that the transactions relating to embryos and semen straws, as alleged by Mr Chambers, amount to a “sham”; and were unlikely to have been entered into by Mr Brice. It may be accepted that one would start with a predisposition not to accept that an experienced accountant would enter into a transaction which involved a payment for property which was not in fact to be transferred; or where the transfer is to be matched by a transfer, without further consideration, of similar property from the accountant. Some aspects of the evidence would reduce the significance of that predisposition. I refer in particular to Mr Brice‟s evidence in relation to the gift to the University of Queensland; and the evidence about how he came to be involved in the Wotif venture. I also take into account the fact that monies were paid in respect of the semen straws and embryos, without any arrangement for their transfer or delivery; and that no effort was made by Mr Brice to obtain the straws or the embryos for a long time, and indeed until well after the action commenced. In the end, I have come to the view that Mr Chambers‟ evidence about this aspect of the transaction is to be accepted. It must be borne in mind that the question for me to determine is whether an agreement was reached in the terms alleged by Mr Chambers; and not what view might be taken by the Commissioner of Taxation about the significance of the transactions for income tax purposes. I also note that the case is not one about a number of separate contracts; so that the obligations imposed on Mr Brice to pay the sums of $300,000 and $100,000 do not necessarily fail for absence of consideration. -- 51 of 58 -- 52 [194] Accordingly I find that Mr Chambers and Mr Brice entered into a binding contract in the August 2007 telephone conversations, varied at the meeting in March 2008. Mr Brice repudiated that contract on 21 February 2009, since which date his attitude to its performance has remained unchanged. The contract came to an end when the repudiation was accepted as having that effect, in the course of the trial. Mr Brice is accordingly liable for any damages for its breach. Contractual damages [195] The statement of claim alleged the damage as the amount resulting from the reduction from the total sum of $3.2 million, the sum of $400,000 already paid by Mr Brice, and the value of the Y list cattle at 21 February 2009, said to be $561,000. The written submissions for the plaintiffs varied the amount by deducting a greater sum for the value of the Y list cattle at 21 February 2009, with that deduction being $713,300; and by also deducting the sum of $409,192.80, held in trust from the sale of some of the Y list cattle. The valuation of the Y list cattle is detailed in Annexure B to the plaintiffs‟ submissions, and is based on the valuation of Mr David Blackmore313. The deduction of the sale proceeds was said to be based on a statement in a supplementary report by Mr Blackmore314 to the effect that he has not valued cattle which had been sold. As I read that statement, that is a reference to cattle sold by 1 January 2013315. It is clear from exhibit 14 that the value of the Y list cattle at 21 February 2009, included the value of cattle later sold. After the hearing, I arranged for my Associate to draw these matters to the attention of Counsel for all parties. No one took issue with my understanding of the effect of Mr Blackmore‟s evidence. [196] The plaintiffs‟ written submission identify 21 February 2009 as the appropriate date for the assessment of damages, on the basis that is the date on which Mr Brice either repudiated or breached the contract. Moreover, the date is said to be the most reliable date, because with the lapse of time, the herd has changed due to sales, death and age. [197] The submissions for Mr Brice helpfully refer to some principles and authorities. I accept that the damages are to be assessed by reference to the difference between the contract price, and the value of the cattle. With respect to the date of assessment, it was submitted that the relevant date is the date identified under the contract for completion; though, by reference to Johnson v Agnew316 and Emeness Pty Ltd v Rigg317, a different date might be chosen by the court in order to avoid injustice. The submissions however do not contest 21 February 2009 as the appropriate date, or contend for some different date. [198] The general rule at common law is that where a party sustains a loss by reason of a breach of contract, that party is, so far as money can do it, to be placed in the same 313 Exhibit 14. 314 Exhibit 15, p 9. 315 It is apparent from Ex 14, vol 2 tab 3, that the value of all Y list cattle as at 21 February 2009 is included in the sum of $713,300. 316 [1980] AC 367 at 400-401. 317 [1980] 1 Qd R 172. -- 52 of 58 -- 53 situation as if the contract had been performed318. Where the contract involves the sale of property, the value of which might fluctuate over time, the amount might vary depending on date chosen. Neither party referred me to s 51 of the Sale of Goods Act 1896 (Qld), and accordingly, I do not need to consider the potential difficulties which might arise in the application of s 51(3). In any event the measure of damages it identifies is said in the subsection to be “prima facie”, and is accordingly not an absolute rule319. At a practical level the difficulties which might seem to be raised by s 51(3) sometimes disappear. [199] In the present case, there was no express agreement about the time for delivery of cattle. Some cattle were delivered in October 2008. It seems to me the correct view of the agreement reached between the parties is that cattle were to be delivered at a time to be agreed between the parties subsequent to their agreement about how the the herd was to be divided; and, failing agreement, within a reasonable time. There is no reason to think that 21 February 2009 is a date materially different from the date when the cattle should have been accepted. On the other hand, if the proper construction of the agreement was that no time was fixed for acceptance, then 21 February 2009 represents the date when Mr Brice made clear his refusal to accept the further delivery. Accordingly, it seems to me to be an appropriate date on which to assess damages. [200] As I read Mr Blackmore‟s evidence, that would result in an assessment of damages at $2,086,700. No question of mitigation has been raised, and it is unnecessary therefore to make any adjustment under that head. I note that Mr Blackmore‟s valuation includes 253 Y list cattle; and some 154 progeny of those cattle. The number of Y list cattle might be thought to be generous having regard to numbers under discussion when the contract was formed. It might also thought to be generous by inclusion of all of the progeny, since it would seem that these were born, at least in most cases, prior to the time for delivery. Nevertheless, in view of the plaintiffs‟ submissions, I am content to proceed on this basis. [201] Accordingly, I assess the damages which flow from Mr Brice‟s breach of the agreement in the sum of $2,086,700. Alternative claims [202] One claim made by Mr Chambers, described as an alternative claim, is for agistment and management fees for Y list cattle after 21 February 2009. No meaningful submissions were made in support of it. In truth, it seems to be a claim for damages for wrongful refusal of delivery. The proposition advanced on behalf of Mr Chambers, and accepted by me, that damages should be assessed on the basis of the value of the cattle as at 21 February 2009, carries with it the notion that Mr Chambers could, as from that date, have disposed of the cattle. That is inconsistent with this claim, which I reject. [203] In view of my earlier findings, it seems to me there is no scope for making further findings in relation to the estoppel claim. 318 See Robinson v Harman (1848) 1 Ex 850 at 855; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80, 98, 117, 134, 148, 161; see also Carter, Contract Law in Australia (5th Ed) [35- 04]. 319 Johnson v Agnew [1980] AC 367, 400-401; Johnson v Perez (1988) 166 CLR 351, 386. -- 53 of 58 -- 54 [204] I am satisfied that Mr Brice continued to provide financial advice to Mr Chambers until at least the end of 2007. Indeed, the fact that Mr Brice engaged Mr Barbeler to act on behalf of Mr Chambers in the loan transaction, and continued thereafter to deal with Mr Barbeler, says something of the unusual nature of the relationship between Mr Brice and Mr Chambers. In this period, Mr Chambers continued to rely on Mr Brice for advice. In particular, that occurred in the course of the August 2007 telephone conversations, in relation to the way the agreement would be structured. [205] The submissions on behalf of Mr Brice, relying on a statement by Mason J in Hospital Products v United States Surgical Corporation320, contended that there were three essential requirements for the imposition of a fiduciary obligation. They were: an undertaking or agreement to act for or behalf of other persons; the undertaking or agreement was given or made in relation to the exercise of a power or discretion; and the exercise of the power or discretion would affect the interests of the other person in a legal or practical sense. It might be observed that in this case, there is no suggestion that Mr Brice was to exercise a power or discretion. [206] The difficult with considering in isolation the question whether one person stood in a fiduciary relationship to another was identified some time ago by one of the leading writers in this area of the law321: “In the following pages it will be suggested that it is meaningless to talk of fiduciary relationships as such. Once one looks to the rules and principles which actually have been evolved, it quickly becomes apparent that it is pointless to describe a person – or for that matter a power – as being fiduciary unless at the same time it is said for the purposes of which particular rules and principles that description is being used. These rules are everything. The description „fiduciary‟, nothing.” [207] To similar effect is the passage from the judgment of Frankfurter J in Securities and Exchange Commission v Chenery Corporation322, adopted in Pilmer v Duke Group Ltd (in liq)323: “But to say that a man is a fiduciary only begins analysis; it gives direction to further enquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? In what respect has he failed to discharge these obligations? And what are the consequences of his deviation from duty?” [208] A great variety of relationships may be classed as fiduciary. As Finn‟s work points out, a significant class consists of those entrusted with a power to be exercised for the benefit of another, discussed at length in the first section of his book324. For others, the fiduciary character of their relationship is derived from some other feature; and results in the invocation of different rules, and makes available different remedies. Thus, where a relationship of influence can be established, a contract 320 (1984) 156 CLR 41 at 96-97. 321 Paul Finn, Fiduciary Obligations, Law Book Co Ltd 1977 at p 1. 322 (1943) 318 US 80, 85-86. 323 (2001) 207 CLR 165 at [77]. 324 Finn at p 3; Pt 1 of his work deals with this class. -- 54 of 58 -- 55 between the parties to the relationship might be set aside325. The statement from Hospital Products, it seems to me, while relevant to the first class discussed by Finn, is not decisive in all cases where it is alleged a party owes fiduciary obligations. Here, Mr Brice was a trusted adviser, on whom Mr Chambers relied. I would be prepared to hold that Mr Brice was a fiduciary in relation to Mr Chambers. [209] The submissions for the plaintiffs do not explain the calculation resulting in the amount claimed as equitable damages for breach of fiduciary duty. The starting point is what is said to be half of the agreed value of the herd at September 2007. It is by no means obvious that this is an element of any loss, as the claim is based on the proposition that Mr Chambers retained the herd. It also includes an amount said to be the value of management services provided from September 2007. It seems to me that the provision of management services would be recoverable in a claim for unjust enrichment, whether or not a fiduciary relationship existed326; though that may not preclude its recovery as damages for breach of fiduciary obligation. No allowance is made for interest on the mortgage. While the mortgage may be liable to be set aside if it were the result of a breach of fiduciary obligation, that would only be on terms that it be repaid with interest327. [210] In the circumstances, there is, in my view, no utility in making further findings in relation to the claim for breach of fiduciary duty. Set-off [211] This part of the claim depends upon my finding that an agreement was made between Mr Chambers and Mr Brice relating to the sale of cattle. Since Mr Chambers has now accepted Mr Brice‟s conduct as terminating the contact, and that he remains the owner of the Y list cattle, there is no utility in dealing with this part of the case. However, it was pressed by the plaintiffs. [212] It arises out of the allegations in the statement of claim that, in the 2007 telephone conversations, Mr Chambers and Mr Brice agreed, in respect of the loan, that interest payable on it would be met by equivalent amounts to be paid by Mr Brice in addition to and at the same time as each of the payments of $500,000 to be made by Mr Brice for the cattle in July 2008, July 2009 and July 2010; and that the payments to be made by Mr Brice, including amounts equivalent to interest on the loan, would be set-off against any amounts, including interest, payable under the loan.328 [213] The plaintiffs alleged that, on its proper construction, the loan agreement did not exclude the right of set-off which they alleged formed part of the agreement made in the August 2007 telephone conversations. Alternatively, they alleged that the loan agreement is liable to be set aside or rectified, by reason of the mistaken belief on the part of Dorrigo Properties and Harrod Holdings that the loan agreement gave effect to the earlier agreement329. 325 Finn at p 82-83; 84-85. 326 See Seddon and Ellinghaus, Cheshire and Fifoot’s Law of Contract (9th Aust ed) para 26.1. 327 Maguire v Makaronis (1997) 188 CLR 449, 475-477. 328 See statement of claim para 20(f) and para 20(g) 329 See statement of claim para 34. -- 55 of 58 -- 56 [214] The plaintiffs also alleged that they were entitled, pursuant to the agreement made in the August 2007 telephone conversations, to set-off any sums owing under the loan agreement, damages for breach of the agreement by Mr Brice330. The plaintiffs also alleged that there were mutual dealings between Mr Chambers, Dorrigo Properties, Harrod Holdings, and Mr Brice; that Mr Brice‟s failure to honour the agreement impeached his entitlements under the loan agreement; and that Dorrigo Properties and Harrod Holdings were entitled to set-off against monies owing under the loan agreement, the amount to be paid for the Y list cattle, or damages payable by Mr Brice for his breach of the agreement331. [215] The plaintiffs also claimed rectification of the loan agreement, in the event that the right of set-off which they allege would otherwise be defeated332. [216] There was no evidence of a conversation in the terms pleaded by the plaintiffs. Mr Chambers gave evidence that Mr Brice said that the payments to be made by Mr Brice would “wipe out” the payments to be made on the loan333. However, the evidence seemed to me to be directed to the practical effect of the proposed transactions; rather than to a promise that one liability can be set-off against the other. [217] No subsequent conduct by the parties was identified in performance of an agreement in the terms alleged by the plaintiffs. Clause 5.4(4) of the loan agreement required Dorrigo Property to make payment under it “in full without any set-off or counterclaim and without any deduction in respect of taxes …” The loan agreement is inconsistent with an earlier agreement for setoff. Accordingly, I find that the agreement between Mr Chambers and Mr Brice did not include the term alleged, relating to a set-off. [218] The language of clause 5.4(4) is quite clear. I find no basis for construing it other than as excluding a right of setoff in respect of the payment obligations for which it provides. [219] The right of set-off on which all of these aspects of the plaintiffs‟ claim is made appears to be a right to have any indebtedness under the loan agreement reduced by amounts to be paid by Mr Brice in respect of the purchase of the cattle. The obligation to make those payments was interdependent with Mr Chambers‟ obligation to deliver the Y list cattle. With the exception of the cattle delivered in October 2008, he did not perform that obligation; and his acceptance of Mr Brice‟s repudiatory conduct as terminating the agreement means that he no longer has an obligation to do so. There is, accordingly no surviving obligation of Mr Brice to make the payments pursuant to the agreement; and no scope for the operation of the set-off. [220] In view of my finding about the agreement reached in the August 2007 telephone conversations, there is no basis for rectification of the loan agreement. [221] Absent any current obligation on Mr Brice to make payments for the cattle, I consider that there is no basis for saying that his right to enforce the loan agreement 330 See statement of claim para 93. 331 See statement of claim para 94. 332 See statement of claim, prayer for relief paras 7 – 12. 333 T6-63 to 6-64. -- 56 of 58 -- 57 is impeached by his breach of his agreement with Mr Chambers. There is accordingly no equitable right of set-off. [222] In the circumstances, I reject the claims by the plaintiffs in relation to set-off. Counterclaim [223] Mr Brice claimed for the recovery of the amount lent to Dorrigo Properties, with interest, including default interest. One of the failures to repay alleged by Mr Brice, was a failure to pay the sum of $500,000 by 19 July 2008. The defendants to the counterclaim have alleged that nothing was then due and payable under the loan agreement334. No basis was identified for that allegation, other than matters relating to the right of setoff. My findings on those matters mean that there is no basis for rejecting Mr Brice‟s claim. It is inconsistent with the terms of the loan agreement, and the terms of the earlier agreement between Mr Chambers and Mr Brice. Accordingly, I find that the sum of $500,000 became due and payable on 19 July 2008. [224] Accordingly I propose to give judgment on the counterclaim for the amount of the loan, together with interest, pursuant to the loan agreement. [225] Mr Brice has made claims based on the failure of Mr Chambers to provide embryos, and the failure of the Superannuation Fund to provide semen straws. I have found that Mr Chambers was not obliged to provide embryos under the agreement. I have also found that Mr Brice was required to provide equivalent semen straws to Mr Chambers. There is no suggestion that he has done so. In my view, he has suffered no loss in respect of the semen straws. [226] Mr Brice has claimed from Mr Chambers the sum of $96,525.00 as agistment fees for the period from April 2008 to June 2010. The amount claimed is based on a monthly rate of $3,575 (including GST). That in turn is said to reflect the weekly rate of $750 referred to in an email from Mr Schwennesen to Mr Chambers of 19 September 2006335. [227] Mr Chambers pleaded that the agreement reached in March 2008 included a term that no further fees would be charged by Mr Brice (no doubt with respect to cattle of Mr Chambers on Mr Brice‟s properties at Beaudesert) “because (Mr Chambers) would be looking after some of (Mr Brice‟s) cattle while the division occurred”336. Mr Brice pleaded that he and Mr Chambers agreed that he would cease charging these fees to Mr Chambers “pending the finalisation of an agreement”337. [228] I have accepted the substance of Mr Chambers‟ evidence as to the effect of the meeting on 28 March 2009. Accordingly, I find the agreement reached in the August 2007 telephone conversations was varied, one of the variations being an agreement by Mr Brice not to charge agistment fees until the herd had been divided between them. For Mr Brice it was submitted that, on his evidence, this agreement was not supported by consideration. However, I have accepted Mr Chambers‟ evidence. That submission fails. 334 See para 61 of the answer. 335 Ex 1, tab 58. 336 See statement of claim para 42(d). 337 Defence para 52(c). -- 57 of 58 -- 58 [229] Accordingly, I dismiss Mr Brice‟s claim for agistment fees. Conclusion [230] I propose to give judgment for Mr Chambers against Mr Brice in the sum of $2,086,700. I also propose to give judgment for Mr Brice against Dorrigo Property and Harrod Holdings for the outstanding amount of the loan, together with interest. I shall invite the parties to make submissions as to further orders, including costs. -- 58 of 58 --