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  4. Mr Green Pty Ltd v Broadbeach Bowls & Community Club Inc. - [2018] QDC 34

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Mr Green Pty Ltd v Broadbeach Bowls & Community Club Inc.[2018] QDC 34

Mr Green Pty Ltd v Broadbeach Bowls & Community Club Inc.[2018] QDC 34

DISTRICT COURT OF QUEENSLAND

CITATION:

Mr Green Pty Ltd v Broadbeach Bowls & Community Club Inc. [2018] QDC 34

PARTIES:

MR GREEN PTY LTD

(plaintiff)

V

BROADBEACH BOWLS & COMMUNITY CLUB INC

(defendant)

FILE NO/S:

D4166/2016; S2791/2010.

DIVISION:

 

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

21 – 24 August, 19 September 2017

JUDGE:

McGill SC DCJ

ORDER:

Judgment that the defendant pay the plaintiff $111,284.60, including $45,346.60 by way of interest. 

CATCHWORDS:

CONTRACT – Termination – contractual provision for termination – whether complied with – whether right to terminate for repudiation – whether contract breached as alleged – significance of breaches.

CONTRACT – Damages for wrongful termination – loss of profits – whether enforceable option to renew contract – whether reduced payment to employee who was sole shareholder and director to be treated as expense saved.

Australian Energy Limited v Lennard Oil NL [1986] 2 Qd R 216 – applied.

Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 – applied.

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 – cited.

Cardwell Shire Council v Calabrese (1975) 49 ALJR 164 – applied.

Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 – considered.

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 – applied.

CMF Projects Pty Ltd v Masic Pty Ltd [2014] QSC 209 – applied.

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 – applied.

Devpro v Seamark Pty Ltd [2007] QCA 241 – considered.

DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 – applied.

Dymocks Holdings Pty Ltd v Top Ryde Booksellers Pty Ltd [2000] NSWSC 795 – applied.

FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343 – considered.

Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd [2009] QSC 262 – followed.

Greenridge Botanicals (Aust) Pty Ltd v Nevin [2000] QCA 498 – applied.

Hadoplane Pty Ltd v Edward Rushton Pty Ltd [1996] 1 Qd R 156 – applied.

Highmist Pty Ltd v Tricare Ltd [2005] QCA 357 – cited.

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 – applied.

Malec v Hutton Ltd (1990) 169 CLR 638 – cited.

Nosic v Zurich Australia Life Insurance Ltd [1997] 1 Qd R 67 – cited.

Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Ltd [2017] QCA 254 – cited.

Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 – applied.

Randazzo v Golding [1968] Qd R 433 – applied.

Relwood Pty Ltd v Manning Homes Pty Ltd [1990] 1 Qd R 481 – cited.

Robinson v Harman (1848) 1 Ex 850; 154 ER 363 – followed.

Santos Ltd v Fluor Australia Pty Ltd [2016] QSC 129 – distinguished.

Shevill v Builders Licensing Board (1982) 149 CLR 620 – applied.

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 – cited.

Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 – cited.

St George Bank Ltd v Perpetual Nominees Ltd [2011] 1 Qd R 389 – followed.

Wallace-Smith v Thiess Infraco (Swanston) Pty Ltd [2005] FCAFC 49 – applied.

Wash Investments Pty Ltd v SCK Properties Pty Ltd [2016] QCA 258 – applied.

Winks v W H Heck & Sons Pty Ltd [1986] 1 Qd R 226 – applied.

Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563 – distinguished.

Zucal v Harper (2005) 29 WAR 563 – considered.

COUNSEL:

P L Somers for the plaintiff

M Steele for the defendant

SOLICITORS:

Cronin Litigation Lawyers for the plaintiff

Gilberts Legal for the defendant

  1. [1]
    The defendant (the club) operates the Broadbeach Bowls Club which is located in the northern part of Broadbeach Park, between Broadbeach Boulevarde and Surf Parade. It has a clubhouse and four bowling greens, three of which face Armarick Avenue, while the fourth lies at an angle to the east of the clubhouse, which is located to the south of the other three greens. In March 2007 the club entered into a contract with the plaintiff for it to provide greenkeeping services for three years commencing on 1 March 2007. In August 2008 the club decided to terminate the plaintiff’s contract, and locked the plaintiff’s employees out of a shed it had previously used on the property. The plaintiff accepts that this put an end to the contract, and claims damages for breach of contract. The club denies that it is liable to the plaintiff for such damages, and further disputes the plaintiff’s calculation of damages.

Background

  1. [2]
    Mr Wilson is the director of the plaintiff. From 1990 to 1998 he was employed by the club as a greenkeeper: p 17. By a contract in writing made 1 July 1998 he agreed with the club to provide greenkeeping services for a term of three years, for $105,000 per annum.[1]From this amount he was to be responsible for wages of his employees, the cost of insurance and the cost of supplying necessary fertilizers, chemicals, soils and other consumables required to perform his duties.  On 1 May 2001 there was a further agreement entered into with the club, for Mr Wilson to provide such services for a term of three years from the execution of that agreement.[2]
  1. [3]
    On 29 April 2004, there was a similar contract entered into between the club and the plaintiff for a period of one year from 1 July 2004 to 30 June 2005 for a remuneration of $115,500 plus GST, but with an option to renew the agreement for a further term of three years.[3]If the option were exercised the remuneration for the option period was to be the GST exclusive rate plus seven and a half percent, together with GST: Clause 5, Schedule B, which showed the total inclusive of GST for the option period of $136,578.75.[4]In the event the option was exercised,[5] but before that agreement had expired it was superseded by a new agreement made 1 March 2007, by which the club engaged the plaintiff for a term of three years from that date.[6]Clause 10 fixed the remuneration at $133,476.00 plus GST for the first year, payable by 12 monthly instalments, with the contract amount to be adjusted at 1 March each year “to allow for inflation or CPI increase of the past year.”  Clause 3 purported to grant an option to renew for a further term of three years, but Clause 5 provided that:

“the remuneration for the option period will be:

  1. at a fee to be negotiated;

by way of twelve (12) equal monthly instalments.”

  1. [4]
    The agreement of 1 March 2007 was signed on behalf of the club by Mr Bayliss, the then chairman of the board, and Mr Woolrich. Evidently later in 2007 Mr Bayliss ceased to be chairman, and was replaced by Mr Foreshore, who in turn resigned along with the rest of the board when the 2007 annual general meeting was finally held in March 2008: p 4–29. Mr Foreshore said frankly that the outgoing board members did not feel they were doing as well as they would have liked to have done, and Mr Gilbert who replaced him as chairman said that, when he took over, the club was in a poor financial position, and the club grounds had not been properly cleaned and maintained for some time: p 4-4. He was critical of the club surrounds, the gardens and lawns (as distinct from the greens) which he said did not have a presentable appearance which would tend to attract passing trade into the club as a hospitality venue: p 4–4.[7]Mr Gilbert and some other volunteers put in some time tidying up the physical premises, and some other work was done to freshen up the clubhouse, and make it more attractive.  In addition new catering contractors were engaged.[8]As a result the income of the club, particularly from the bar and gaming machines, has greatly increased.[9]
  1. [5]
    The contract of 1 March 2007 referred to tender specifications for contract greenkeeper which were supposed to be annexed to it, but there was no such document actually annexed to the executed contract. That the contract in its executed form incorporated specifications is apparent from Clause 8, and was common ground before me. The plaintiff’s case, which the defendant admitted in its pleading and supported in submissions, was that the contract specifications which were part of the April 2004 contract were the specifications which were incorporated into the March 2007 contract, and I am content to proceed on that basis.
  1. [6]
    It appears that Mr Wilson was on good terms with the people who were running the club prior to March 2008: p 33. To the extent that there were any complaints about his work, and on the evidence there were few, they did not have the support of the members of the board of the club.[10]My impression is that during this period Mr Wilson was generally left to do things in his own way, and his performance, particularly in those matters of concern to the bowlers, was at least good enough to prevent any significant threat to his position arising.[11]After Mr Gilbert took over however he rapidly become dissatisfied with the performance of the plaintiff, initially it seems mainly about a failure to maintain the surroundings of the club to the sort of the standard that he wanted in order to attract casual customers.[12]
  1. [7]
    Mr Gilbert complained in his evidence about the failure of the plaintiff to empty rubbish bins and litter pots, and to clean up cigarette butts around the club premises.  I shall deal with these matters in more detail later.  Mr Wilson said that the first contact he had with Mr Gilbert was when he complained about Mr Gilbert’s using a derogatory term to refer to an apprentice employed by the plaintiff.[13]He complained to the Board, which investigated, but Mr Gilbert denied using that term,[14] as he did in court: p 4-28, p 4-44. 
  1. [8]
    There was a later incident when Mr Gilbert was using a leaf-blower to clean the concrete walkway to the north of the clubhouse, moving in an easterly direction, to and then around the eastern end of the club: p 4-28.  This took him to the area outside the greenkeeper’s shed where Mr Wilson and his assistant were attending to a ride-on mower.  Mr Wilson claimed that the effect of what Mr Gilbert was doing was to blow dirt and grit over them, and the mower.[15]He admitted that as a result of this he lost his temper with Mr Gilbert and yelled at him.  For a few days he did not personally attend the club, though other workers of the plaintiff did what was required on those days.  That such a thing occurred was supported by the evidence of his assistant, Mr Grimley (p 95), of Mr Jerinic,[16] and perhaps of the Men’s Club President, Mr Archer, who said he came on a scene when Mr Gilbert was swearing at Mr Wilson.[17]Mr Gilbert said that there was an occasion when he was using a leaf-blower in such a fashion, but nothing of consequence happened to anybody as a result: p 4-88.[18]
  1. [9]
    Mr Gilbert said that the financial position at the time he took over the club was very tight:[19] he had to make special arrangements with suppliers so as to prevent supplies to the club being cut off, and the club had already changed the arrangement under the contract from paying the plaintiff monthly in advance to fortnightly in advance, to ease the cash flow difficulties of the club: p 4–5.  Mr Gilbert conceded that he was concerned about the cost of greenkeeping to the club, and that he thought that the plaintiff was being paid too much for its services: p 4-34.[20]He explored ways to reduce this cost by excluding green 4 from the contract,[21] and after the plaintiff’s contract was terminated a replacement was arranged on different terms.[22]In any event, it does seem clear that the relationship between Mr Wilson and Mr Gilbert rapidly became hostile.[23]

Credibility

  1. [10]
    I was not impressed by Mr Gilbert as a witness. I thought him prone to exaggerate, not consistent in his evidence, tending to talk around an issue, and deviating from the question. Under cross-examination he seemed defensive, and at times seemed to disagree with propositions put in cross-examination even when what was put was consistent with his earlier evidence.
  1. [11]
    The best example of this is probably his evidence about weeds in the gardens. He spoke about removing weeds from the gardens after he took over as chairman, and said the gardens were rock hard and just had in them shrubs which had not been attended to, or clipped so they looked respectable: p 4-4. This work was supposed to have occurred just after he took over,[24] but he later said that nothing was ever done about the gardens, and they ended up doing it themselves: p 4-9.  At p 4-16 he said that he was doing all the gardening, but elsewhere he spoke of other people doing it, or its being handled by volunteers.  When he was asked about a photograph of part of the garden, Exhibit 40, he said the reason why there were no weeds shown was because they had all died as the gardens were never watered: p 4-39.  He said that nothing would grow in the gardens because the soil was so hard: p 4-99, but two answers later he said that in August 2008 the gardens were overgrown, untidy and unkempt because “there was weeds up all around the shrubs and everywhere.”  The propositions that the gardens were full of weeds, that the gardens were being maintained by himself or other persons apart from the greenkeeper, and that the gardens were so neglected that even weeds would not grow in them[25] are inconsistent. 
  1. [12]
    My impression was also that he was being too critical of the standard of the gardens. The photographs in evidence which reveal gardens do show low maintenance gardens, as one would expect in this context, but in my opinion the photographs show gardens in reasonable shape, at least for a bowling club. They do not reveal any large weeds which have not been spot sprayed, or indeed any significant growth of weeds.
  1. [13]
    Mr Gilbert’s tendency to exaggerate was also manifested in the formulation of paragraph 14 of the defence, and the particulars. He conceded that he gave instructions to the solicitors (p 4-40) and that he gave instructions for the particulars to which I have referred: p 4-98. When cross-examined about the particulars he conceded that the assertion that various things were not done “each and every day” was a “long bow” (p 4-97), but then seemed to suggest that it was not true only to the extent that on occasions things the plaintiff should have done were done by other people. He did not concede that in most cases such particularisation was obviously ridiculous, as it was, nor that there were allegations in paragraph 14 which were either exaggerated or completely unfounded, even on his evidence.[26]
  1. [14]
    He gave evidence about speaking to Mr Wilson in May 2008 in which he complained about a lot of matters (p 4-23), but seemed to have difficulty recalling another meeting in May with Mr Wilson when Mr Jerinic was also present, which Mr Jerinic gave evidence about, which was confirmed by the letter to the plaintiff[27] that among other things complimented Mr Wilson on the “very distinct visual improvement in the appearance of the gardens surrounding the greens”.  Eventually he asserted that this must have been a different meeting: p 4-51.  He claimed that the club did not need green 4 (p 4-33), but several witnesses spoke of the fact that the club was a busy one which did use all four greens, particularly during the winter season when there were visiting bowlers.  He claimed at p 4-37 that “in those early days”, presumably soon after he took over, they had people leaving the club because the greens were not up to standard.  Given the length of time Mr Wilson had been the greenkeeper of the club, it seems surprising that people who were dissatisfied with what he was producing would wait until 2008 to move elsewhere. 
  1. [15]
    Another example of exaggeration was his statement at p 4-34 that “every section of his contract wasn’t being fulfilled. Nothing was done in accordance with that properly… .” There was also the claim at p 4-53 that there were about 50 times more people through the club now. There would obviously not be 50 times the number of bowlers attending the club now compared with 2008. At p 4-75 he spoke of infringement notices as though they were being given as much as possible, yet most of the breaches alleged in paragraph 14 were not the subject of any infringement notices during August 2008. At p 4-99 he said that greens were rotated and rinks moved occasionally, though at p 4-100 this became “every two or three days”, but all the other evidence was that the greens were rotated[28] between morning and afternoon play routinely.  There was one infringement notice given, on 29 August, for failing to do this: Exhibit 1 tab 26.[29]At p 4-104, he was asked about whether he was aware in August 2008 that a green had an annual cycle to it.  He denied that, but after further questioning on p 4-105 he conceded that at that time he knew that greens changed over a period, and “they had a cycle …”.  Overall it seemed to me that he was quite hostile to Mr Wilson personally, and keen to criticise him as much as possible, and I do not regard him as a reliable witness.
  1. [16]
    Mr Wilson also struck me as quite emotionally committed to his side of the story, and somewhat defensive under cross-examination, which lent support to the evidence that he reacted badly to any criticism of his work as a greenkeeper.[30]When he was asked in cross-examination about dealings with Mr Gilbert in May 2008 and in August 2008, his answers did not always seem to be consistent and to reflect what he actually recalled, though he was in some of them fairly frank about having manifested hostility to Mr Gilbert in August 2008.  He admitted that in March 2008 he had told Mr Gilbert that he could not stand Mr McCloskey, but denied that he had said he disliked Mr Watkins: p 2-16.  The former admission was at least frank, though it strikes me as an odd thing for him to have said at the time.  He also made some frank admissions about the leaf blower incident: p 2-18.  At p 2-19 when asked if he could tolerate criticism of his greenkeeping abilities, he said he could handle constructive criticism.  At times he was quick to deny allegations completely, when I suspected there may have been some truth to them.  Overall I am cautious about his reliability, but in general prefer his evidence to that of Mr Gilbert. 
  1. [17]
    The various bowlers who gave evidence for the plaintiff did so in a way which was generally straightforward and apparently reliable, though I did notice that Mr Robertson, when asked whether ash pots were emptied by Mr Wilson, was disposed to assume that they were even though this was something he did not actually know: p 2-54.  No doubt Mr Wilson had been there for a long time and would have his supporters within the club, and they would be the people who would give evidence for him.  By contrast, apart from the people who formed part of the new board with Mr Gilbert, and his wife, the only bowler called was Mr Koorey, who had left the club as early as 1999 because he did not consider that Mr Wilson was maintaining the greens properly: 3-56.  He thought them too slow, a view rejected by the then hierarchy of the club.  This evidence is too remote from 2008 to be relevant to the issues in the proceeding, but the fact that the defendant was reduced to calling such evidence suggests that it had difficulty in securing ordinary members who would speak about the situation in 2008 in a way which would support the defendant’s case.
  1. [18]
    I also felt the lack of any independent, objective expert evidence at the trial, particularly because I had some difficulty in reconciling the various complaints that the defendant’s witnesses had about the greens. Mr McCloskey’s criticism, that the edges of the greens slopped down to the ditches, sounded a significant problem, but no other witness mentioned it. The idea that if the rinks are not moved from side to side there would be uneven wear across the greens makes sense, though the suggestion that rinks need to be moved every day to prevent this strikes me as a bit farfetched. This seemed to be the cause of the problem described by Mr Gibbs, but Mr Watkins for example rejected the notion that that was the problem he was complaining about, and it also seems inconsistent with the complaint of Mr Jerinic, that unevenness in the greens prevented him from driving accurately: p 2–86, 87.
  1. [19]
    A drive is a fast bowl which therefore follows a relatively straight line, and would ordinarily be delivered close to the centre line of the rink, where on this theory there would be the most wear.[31]It seemed more as though Mr Jerenic was speaking about a green which was not properly levelled during the annual restoration, and that appeared to be the issue raised by Mr McCloskey when he spoke of bumps in the green.[32]But I would expect that if this were the problem it would have been apparent from soon after the last restoration had been completed, and it was not the problem described by Mr Gibbs. 
  1. [20]
    Mr Jerenic fell into this category: he seemed to be trying to criticise Mr Wilson, rather than giving an objective account of what he had seen and heard. He said that while he was a member of the board of the club several members left because of the greens, one of whom was Mr Koorey: p 2-90. But Mr Koorey left in 1999, before Mr Jerenic joined the club in 2000: p 2-85.  I was also unimpressed by his attempt to explain away some of the language in the letter he sent to Mr Wilson, Exhibit 1 tab 12.  Overall, I did not regard him as reliable.  Mr McCloskey obviously disliked Mr Wilson, and was critical of his work, but he and Mr Watkins were more even handed in theie evidence, and in that way more plausible, though I remain wary of it. 
  1. [21]
    Mrs Gilbert’s evidence, so far as it went, was consistent with her husband’s. She had little contact with Mr Wilson, but clearly disliked him and did not get on with him, probably as a result of the poor relationship between him and her husband. Much of her evidence was uncontroversial. She said she had looked in his office for a chemical register one day when he was not there,[33] conduct unlikely to have endeared her to him.  There was one direct conflict, as to whether Mr Wilson offered her a list of chemicals Exhibit 1 tab 20.[34]This is not in issue on the pleadings, but if I had to resolve it, I would prefer the evidence of Mr Wilson.[35]

Termination of the contract – Clause 11

  1. [22]
    A contract may be terminated pursuant to an express provision, or in accordance with the ordinary law. An express provision may validly stipulate that any breach major or minor shall entitle the other party to terminate, and where there is a specific provision in the contract effect will be given to that right, although clauses giving a right to terminate for breach are in general construed strictly.[36]In general, the existence of a contractual provision conferring a specific right to terminate will not exclude the existence of a right to terminate under the general law.[37]
  1. [23]
    The contract between the parties contained in Clause 11 an express provision for termination of the contract, which so far as is relevant provided:

“The parties hereto acknowledge and agree that this agreement and the respective rights of the parties hereunder may be terminated by the party not in default in any of the following events:

a. If default shall occur with respect to any of the provisions hereunder, and the defaulting party shall fail to remedy such default within 30 days of receiving written notice of such default from the non-defaulting party; …

provided that disputes between the Greenkeeper and the Club are first dealt with in accordance with the tender documents.”

  1. [24]
    The tender documents, that is the specifications in the 2004 contract, deal with disputes in Part 13, although section 13.1 refers to a procedure in Part 8, section 8.7, which ought to be a reference to section 8.6.  That paragraph provides:

“Disputes between the Greenkeeper and the Club must first be resolved with the Greens Director.  If the dispute is not resolved, the problem will be brought to the Club’s Committee of Management.  If this process fails, an independent arbitrator will be engaged.”

Section 13.2 then provided the mechanism for selecting the arbitrator, while section 13.3 said somewhat unhelpfully that “refusal to accept arbitration could terminate this contract.”  Section 13.4 dealt with a national disaster causing loss of greens, machinery and building, which was not relevant. 

  1. [25]
    In my opinion the effect of these provisions is that, if the plaintiff were in default under the contract, notice in writing had to be given of such default, and, if the plaintiff failed to remedy such default within 30 days of receiving such notice, the club could terminate the contract. If there were a dispute as to whether the plaintiff was in default under the contract, that dispute was first to be resolved by the process set out in the tender documents, that is by the Greens Director, or failing that by the Committee of Management, or failing that by arbitration.  If the default was not disputed of course there was no need for that mechanism to be followed.  In the present case, there was no evidence that any relevant dispute had been brought for resolution before the Greens Director or the Committee of Management, or that there had been any arbitration.  Nevertheless, the defendant alleged that the contract had been validly terminated pursuant to Clause 11 on the basis that written notice of default had been given to the plaintiff and 30 days had elapsed without such default being remedied.
  1. [26]
    Counsel for the defendant submitted that the provision for referral to arbitration did not necessarily prevent the defendant from terminating the contract, but merely conferred a discretionary factor in refusing relief, albeit a strong one, citing for this proposition Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563 and Santos Ltd v Fluor Australia Pty Ltd [2016] QSC 129.  These cases however are talking about something different from the matter in issue here.  They are concerned with a situation where a proceeding is commenced in a court where by contract the parties have agreed that the matter is to be submitted to arbitration, and acknowledge that the court has a discretion as to whether or not to stay the proceeding to enable the matter to proceed to arbitration, though the terms of the contract between the parties will be a strong factor in that decision.  But the issue here is not whether this proceeding should be stayed pending a referral of this current dispute to arbitration; the issue is whether the defendant was entitled to terminate the contract under the specific provision for termination in Clause 11, without having followed the mechanism of referral of the dispute to arbitration.
  1. [27]
    This is not a discretionary matter; if the defendant wants to take advantage of an express provision in the contract to terminate it, it is necessary for the defendant to comply with the requirements for termination set out in that express provision. If there is a dispute between the parties, relevantly as to whether or not a party is in default under the contract, the terms of this clause require that dispute to be resolved, if necessary by independent arbitration, before the contract is terminated under this clause. There is nothing in these cases which suggest that the court has a discretion to find in some way that the contract is been validly terminated under this clause without that step having been taken.
  1. [28]
    It is not to the point that the plaintiff made no attempt to refer the dispute to arbitration. The plaintiff’s explanation was simply that it denied having ever received the letter dated 31 July 2008 relied upon by the defendant as the notice in writing pursuant to clause 11 of the contract.[38]A copy of the letter became Exhibit 37.  The body of the letter was in the following terms:

“In respect to the requirements in your contract dated 1 March 2007 which you duly signed, the Board would like to make you aware of matters which continue to breach your agreement.  We believe that this is in no way a form of intimidation or harassment but a continuance of improvement so that you overcome issues that are considered contractual.  Continued proven breaches will mean the nullification of your contract.

Joe Jerinic will monitor performance on a daily basis as the Board’s representative and will liaise with you on a regular basis.

Matters which have been on going with no visible sign of improvement are:

2.3  The surrounds – please make sure they are continually free from litter.

2.6  Rolling – it is noted how and when you roll the greens.  This is a daily event and / or as arranged with the games director. 

2.7  Rink-marking – this is definitely not up to any standard.  Every day – please mark the rinks, jacks and mats to be positioned, clear ditches of debris, return all the pots etc to the greens, simply removing them because you don’t wish to empty them is not satisfactory, please empty them daily.

2.8  Fertiliser – please advise the games director of the diary inserts regarding all pesticides, fertilisers etc as requested in your contract.  This should also make mention of expired dates etc.

2.11  Pots – again we ask that all pots be cleared daily.

2.12  Walkways – we ask that the requirements under the contract be met daily.  The concrete paths are covered with litter and butts.

2.15  Scoreboard – we ask that the requirement under the contract be met daily.  The scoreboard are not changed from morning to afternoon play because staff are not available or on premises.

3.3  Pruning and weeding – we ask that the requirements under the contract be met.  It has been some time since hedges have been clipped back. 

7.1  Main building – we ask that the requirements under the contract be met daily.  You should be mindful that your contract does specify that all seats be wiped down daily.  Paths hosed down and surrounds litter free.

8.5  Hours – green staff MUST be on duty, until after PM games or event starting times.  You are a contractor, not an employee and therefore your Award issues do not affect the Club or your contract.  As a contractor you should nominate someone to make sure you have not breached your contractual obligations.  We ask that the requirements under the contract be met daily.

8.10  Subcontracting – we ask that the requirements under the contract be met daily.  Removal of any equipment from our premises will definitely breach your contract.

As the equipment in your storage area belongs to the club we require access to your security code to be kept in our safe as well as a separate set of keys for access at your expense.  Any issues with the alarm should be pursued if there is a breach of security.  As a member of the club and a business man you would think that best practice would come into play here. 

Let’s hope that you correct these issues so we can all work together to achieve better outcomes.”

  1. [29]
    The basic function of a notice of default is to enable the recipient to understand with reasonable certainty what it is required to do in response in order to avoid the consequences of default.[39]Parts of this notice did not clearly identify what default was alleged against the plaintiff, or what was to be done to remedy such default, but those matters need not be considered further, because there are more fundamental problems with an alleged termination under clause 11. 
  1. [30]
    The defendant’s case was the notice had been given by post, and also handed to Mr Wilson at the club premises.  Mr Gilbert said that on 31 July 2008 he and others put together the letter which became Exhibit 37: p 4-30.  He said he was advised to post the letter to Mr Wilson’s home address and to deliver it to him by hand.  He gave it to the office girls to post, but did not see them actually post it with the rest of the mail.  He gave a copy in an envelope to his wife to hand to Mr Wilson, but could not say of his own knowledge that she did so: p 4-30.  Mrs Gilbert however gave no evidence of having given Mr Wilson such an envelope on 31 July 2008, or at all. 
  1. [31]
    For reasons given elsewhere, I am not prepared to rely on Mr Gilbert’s evidence of these matters. Apart from this, with regard to posting, the evidence is insufficient to prove posting properly.[40]Despite Mr Gilbert’s evidence about the advice he had received, the letter on its face was addressed to the plaintiff at “PO Box 330 Broadbeach”.  There was some evidence that the plaintiff or Mr Wilson had that post office box: Exhibit 1 document 33 is a contract between the plaintiff and the Gold Coast City Council, and included in that document is a page headed “Tender Form” which appears to have been signed on 20 May 2008 by Mr Wilson on behalf of the plaintiff, and which has as an address for service of notices “PO Box 330 Broadbeach”.  Also included in the bundle is a copy of a letter issued on 28 April 2008 to the plaintiff, addressed to the plaintiff at “PO Box 330 Broadbeach,” from the Australian Taxation Office, which presumably the plaintiff received otherwise it would not have been in a position to provide it to the Gold Coast City Council for inclusion in the contract. 
  1. [32]
    The evidence fell short of proving that the letter was given or posted to the plaintiff on 31 July, and in the circumstances there is no reason not to accept Mr Wilson’s evidence that he never received the original of Exhibit 37: p 2-21. If posted on 31 July it would not have been received by the plaintiff that day. It might have been received in the ordinary course of post on the following day, 1 August 2008, depending on when it was posted and the efficiency of the mail service on the Gold Coast. If not delivered that day, it would not have been delivered before the following Monday, 4 August. In the circumstances there is no evidence that Exhibit 37 was actually received by the plaintiff on any particular day.
  1. [33]
    Under clause 11 of the contract the defaulting party had 30 days to remedy the default following receipt of the written notice,[41] and even apart from any question of the mechanism in the tender documents for resolving a dispute, the right to terminate only arose after a failure to remedy within 30 days of receiving notice.  Even if the notice had been received on 31 July, the plaintiff then had 30 days to remedy the default, that is, the first 30 days of August, and accordingly a right to terminate arose only on 31 August 2008.  The defendant purported to terminate the contract at a meeting held on 29 August 2008: Exhibit 15.[42]Such purported termination was premature, even if the notice had been received on 31 July, which was not proved.  In this situation, apart from any question of the mechanism for resolving a dispute, the defendant has not terminated the contract in accordance with the provisions of Clause 11 of the contract. 

Termination of the contract – at law.

  1. [34]
    I accept that the defendant was still entitled to terminate the contract if it had been repudiated by the plaintiff, a proposition relied on in the pleadings by the defendant. If in fact there was a right to terminate at law, the purported termination under Clause 11 would be still legally effective to bring the contract to an end. A right to termination arising at law has been analysed by reference to concepts of repudiation, a breach of an essential term, and a breach causing a substantial loss of benefit of the contract to the other party.[43]The second analysis is helpful in a situation where a party relies on the terms of the contract to determine whether the term which has been breached is an essential term, since a contract will often say something to this effect expressly.  In the present case however there was no express provision in the contract which made any particular term essential, and the defendant’s case was not that an entitlement to terminate arose from a breach of a particular term of the contract which was essential, so this aspect of the matter need not be considered further. 
  1. [35]
    The defendant’s case was that the plaintiff’s performance of the contract was in a number of respects unsatisfactory, so that the cumulative effect of this manifested the plaintiff’s unwillingness or inability to perform the contract properly in accordance with its terms, which amounted to repudiation. To the extent that such conduct also had the effect of depriving the defendant of the substantial benefit of the contract that was really just another way of presenting the same argument. In substance therefore the issue here was whether the plaintiff was in breach of the contract and whether the cumulative effect of the defective performance by the plaintiff was sufficiently serious to constitute repudiation of the contract.
  1. [36]
    Not every breach amounts to repudiation of a contract, particularly if the breach is not of a more significant term. The test for repudiation is objective.[44]There is authority that repudiation of a contract is a serious matter and not to be lightly found.[45]For example, bona fide insistence on an incorrect but arguable interpretation of an ambiguous term in the contract would not ordinarily amount to repudiation, at least as long as the party in error is willing to accept an authoritative exposition of the correct interpretation of the contract.[46]In order to assess this submission, it is necessary to have regard to the defendant’s detailed case in relation to breaches of contract by the plaintiff.
  1. [37]
    The pleadings in this matter are wrong, because the statement of claim alleged unnecessarily that certain infringement notices from the defendant to the plaintiff were unjustified, and that the plaintiff was not in breach of the contract (paragraphs 5,6), when the plaintiff ought to have alleged that it had a contract, the defendant terminated the contract, the termination was in breach of contract, and as a result of that breach the plaintiff had suffered damages. It was then a matter for the defendant to plead that it was entitled to terminate the contract, and for that purpose to plead any and all breaches of contract on the part of the plaintiff relied on. For practical purposes however, the defendant’s pleading in paragraph 14 fulfils that function, where it was alleged that there were breaches of contract by the plaintiff in no fewer than 20 respects.[47]

Alleged breaches of contract

  1. [38]
    Para 14 (a) alleged that the plaintiff did not provide all necessary maintenance and upkeep to greens, lawns, garden and machinery of the defendant as required by paragraph 1 of the greenkeeping agreement.[48]This is a reference to the contract Exhibit 1 tab 7, which in Clause 1 engaged the plaintiff to perform that general work. This clause is a very general statement of the obligation to the plaintiff, and was enlarged on in Clause 8, which added the qualification that it be done “as set out in the tender documents [that is the specifications from the 2004 contract] … in a proper and workmanlike manner.”  In these circumstances, it is not helpful to be attempting to analyse the obligations of the plaintiff and whether they were breached by reference to the general wording in Clause 1 of the agreement.
  1. [39]
    Para 14(b) then alleged a breach of clause 8 (a) of the agreement, again in very general terms. In circumstances where that obligation is qualified by the requirements of the specifications, breaches of which are themselves the subject of the bulk of the balance of the paragraph, it is sufficient in my view to consider those allegations, and it is not helpful, and indeed in practical terms not really possible, to analyse the defendants case by reference to a very general allegation of a failure to comply with the requirements of Clause 8(a). That allegation was particularised as failing to mark and peg rinks so as to move them to spread wear, failing to set out mats and jacks, failing to clear ditches and failing to empty ash pots. Apart from moving the rinks, these are covered by paras (g) and (i). I will deal separately with the condition of the greens.

Condition of the greens

  1. [40]
    Mr Gilbert said that the greens were not true, that is, that irregularities in the surface would make bowls deviate: p 4-6. He said the rinks were not moved from side to side, and spoke of the greens tracking: p 4-23. Mr Jerinic complained that the greens were not flat, so that bowls deviated: p 2-86, 87. For reasons given elsewhere, I did not regard these as reliable witnesses, and do not give this evidence any weight.
  1. [41]
    Mr Watkins was critical of the greens at the club, and said that he did not think they were flat; if a kitty was rolled from one end of the green to the other it would shudder or bounce rather than roll smoothly: p 2-76. He said this affected the turning of the bowls, and that the problem was that the surface was not totally smooth: p 2-80. He said that this was not a problem when the greens were renovated each year, but became a problem probably from March or April onward. He did not accept that this was due to the natural deterioration of the greens in the winter months (p 2-79), which is something which could possible produce the effect he described, or that it was caused by wear and tear due to some games being played in one direction and others at 90 degrees to that direction: p 2-81.[49]His opinion was that the problem had to do with the standard of the renovation that was done at the start of the year: p 2-79, p 2-82.  As a result the problem would not be fixed by rolling; the effect of his evidence seemed to be that the greens were rolled.  He conceded that he had no greenkeeping credentials, that he was just a bowler. 
  1. [42]
    Mr Watkins did concede that the greens were not unplayable, they just could have been a lot better than they were, and the new board were looking to lift standards at the club. He described what he was talking about as only a small problem: p 2-81. Later he said the greens were kept in reasonable condition, it was just that they were not totally true: p 2-82. His impression was that greens generally on the Gold Coast were of a very high standard because the weather were particularly good for them. Overall his evidence does not support the proposition that there was anything seriously wrong with the plaintiff’s maintenance of the greens.
  1. [43]
    I am not prepared to accept Mr Watkins’ evidence as evidence of a significant defect in the greens. His description of the jack bouncing or skipping is inconsistent with his statement that this was not something caused by play at right angles producing worn strips across the greens.[50]The jack would not bounce unless running across fairly pronounced ridges in the greens, which would not have survived rolling.  If there were more subtle undulations in the greens as described by Mr Gibbs, the jack would just roll over them.  If a green had not been laid quite level when renovated, this would cause the jack to deviate, not to bounce, and the problem would have been apparent from the beginning, not take time to emerge.  I expect Mr Watkins was just being fussy about the greens during their period of winter deterioration. 
  1. [44]
    Mr McCloskey gave evidence that the ditches were the worst part about the greens, because the plinths were bent, or mostly non-existent.[51]He said that as a result a bowl would just roll into the ditch if it came within a couple of feet of it: p 3-62.  That sounds serious, but no other witness spoke of such a problem, even Mr Gibbs, who referred to a problem with the plinths which was cosmetic rather than functional.  It was also not supported by any photos.  Mr McCloskey said that at one time the greens were running fast in winter, even too fast, but Mr Wilson had slowed them down, perhaps so they did not get too quick: p 3-62, 63.  Mr McCloskey said there was some unevenness in places, which he spoke of as bumps, particularly three rinks on one green which turned a lot in one direction, and were hard to play.[52]He said the surface of the greens now was 100 percent better than in 2008, although there was always the odd bump, and people would complain when they lost: p 3-64.  The current greenkeeper had more grass on the greens in winter, and less deterioration, possibly because he was using more fertiliser: p 3-64, 65.[53]He did say however that the surface of the greens was as good as Mr Wilson could get it: p 3-63. 
  1. [45]
    There was evidence from other players called by the plaintiff that the greens were fine, and that they compared favourably with greens at other clubs on which those witnesses had played.[54]A favourable assessment of the greens in August 2008 by members of the Gold Coast Greenkeepers Association was excluded as expert evidence because it had not been exchanged as required by the rules.[55]There was no independent expert evidence called by the defendant that there was a problem with the greens as described by any of the defendant’s witnesses, or that this was due to some deficiency in the way the annual renovations were conducted or the greens were otherwise maintained. 
  1. [46]
    The current greenkeeper, Mr Gibbs, who was engaged in September 2008 after the plaintiff’s contract was terminated, gave evidence that when he arrived the greens were in very poor condition, with some areas of deterioration in the grass, and with some undulations in the surface, which he attributed to the rinks not being moved from side to side, so that play was predominantly in the same place: p 3-71, 72. One of the greens which did not get much sun in the morning was in poor condition because of that. He said that the edges on two of the greens had a high level of mealybug infestation, which was common in summer but usually controlled by spraying. In addition the material used to hold the greens in, separating the green from the ditch, was more flexible than it ought to have been, so that the edges of the greens were not straight and were not properly supported: p 3-73. This was supposed to apply to greens 3 and 4, and he said that this was something a non-greenkeeper would notice. He said that in order to get the greens back into condition he renovated them after he started, which was at about the usual time for an annual renovation: p 3-79. He rejected the proposition that the condition of the greens at the time was just that of greens which were due for their annual renovation: p 3-77.
  1. [47]
    The difficulty with this evidence is that Mr Gibbs is still employed as the head greenkeeper by the club, so he is not an independent expert witness. It would be unsurprising for someone in his position to maintain that he was doing a better job than his predecessor.[56]His evidence may be true, but needs to be treated with a degree of caution.  Another point that concerned me was his comment about the unsatisfactory green edging on green 3.  In Exhibit 1 there are a number of photographs at tab eight, the first of which shows the edge of green 3.  This may have been taken some years earlier, but there is no irregularity apparent to me in that photograph in the division between the green and the ditch.  Apart from these matters, it is not clear to me that the problem described by Mr Watkins was the same as the problem described by Mr Gibbs.  Overall I felt the want of independent expert evidence about the greens, and was left with the impression that the defendant’s witnesses who criticised them were looking for an excuse to criticise Mr Wilson, rather than describing significant deficiencies in the greens. 
  1. [48]
    On the whole, I prefer the evidence of Mr Wilson and the other witnesses called for the plaintiff to Mr Gilbert and the witnesses called for the defendant, and am not satisfied that there was as at August 2008 any significant problem with the greens at the club which demonstrated a failure on the part of the plaintiff properly to maintain the greens in accordance with the contract. This is significant, because I regard the task of keeping the greens as the most fundamental and important of the obligations of a greenkeeper at a bowls club. If this obligation was being performed adequately, it is going to be difficult to show that there was a sufficient failure on the part of the plaintiff properly to perform the contract so as to amount to repudiation of it.

Other alleged breaches

  1. [49]
    Para 14(c) alleged that there was a failure by the plaintiff to confer fully and freely with the greens director and any other duly authorised officer of the defendant as requested relevant to the performance of the greenkeeper’s duties and obligations as required by clause 8(c) of the contract. The particulars identified Mr Gilbert, Mr Watkins, Mr McCloskey and Mr Jerinic as the people concerned. Evidence was given by Mr Watkins that he was a member of the board in 2008 for a short time, and that he was greens director of the club in 2008, but he thought for probably only about a month at the most: p 2-75. I assume that he was elected to the board at the 2007 annual general meeting. He is currently a board member again. He said that on probably only two occasions while he was greens director he did speak to Mr Wilson about his belief that the greens were not flat, but that Mr Wilson’s response was that there was nothing wrong with the greens, and that Mr Watkins did not know what he was talking about, not being a professional.[57]The difficulty with this as evidence of a breach of clause 8(c) is that it depends on the proposition that there really was a problem of this nature with the greens, as Mr Watkins asserted, which I do not accept. 
  1. [50]
    After Mr Watkins resigned as greens director Mr Jerinic took over as greens director, briefly with Mr McCloskey, but his evidence was to the effect that the contact he had with Mr Wilson was just giving him written notices complaining about his conduct, which he described as infringement notices: p 2-86. He did not give evidence of any failure on the part of Mr Wilson in relation to conferring with him, indeed did not give evidence of his having made any attempt to confer with Mr Wilson.[58]Mr McCloskey gave evidence, but said that while greens director he only spoke to Mr Wilson on a couple of occasions about the greens, but could not recall the details: p 3-61.  He said that Mr Wilson did not respond well to criticism of the greens, but when he was greens director he had not raised with Mr Wilson the issues he had with the greens: p 3-64.  He gave no evidence of any breach of clause 8(c) of the contract.   
  1. [51]
    The only duly authorised officer of the defendant referred to in the evidence was the chairman Mr Gilbert, who said that he spoke to Mr Wilson about the state of the greens, about their tracking and being slow and not regularly maintained: p 4-8. Mr Gilbert said that he did get much response from Mr Wilson, but the effect of his evidence seemed to be that Mr Wilson would not engage in any particular discussion about things but would simply agree briefly with what was said to him. Mr Wilson on the other hand said that he did respond to matters raised with him, for example by explaining that greens tended to become faster as growth slowed in the winter.[59]Mr Gilbert’s complaint in evidence was not really directed to a failure to confer, but to Mr Wilson’s not doing what he wanted Mr Wilson to do: p 4-9.  Certainly the relationship between the two of them was not good, but on the whole of this evidence I am not persuaded that any breach clause 8(c) of the contract by the plaintiff has been proved.
  1. [52]
    Clause 8(d) of the contract required the plaintiff to “comply with all reasonable direction and instruction from the greens director (as defined in the tender document) in the performance of their duties and obligations….” Breach of this provision was presented as a sweeping allegation without proper particularisation,[60] and without a great deal of attention to exactly what the clause provides.  It did not require the plaintiff to comply with any direction or instruction from the greens director, even if reasonable; it was concerned with directions and instructions “in the performance of [its] duties and obligations”.  It was concerned therefore with the way in which particular duties and obligations covered by the specifications were to be performed, I suspect with a view to ensuring that the greenkeeper‘s work fitted in with the requirement of the club, such as not undertaking work on a particular green which took it out of use at a time when the club was organising some event which would require the availability of all greens.  In so far as the defendant’s case was based on instructions to comply with other particular duties and obligations under the tender documents that is covered by the allegations in the balance of this paragraph.
  1. [53]
    Para 14(e) alleged that the plaintiff did not raise flags on each day of play before play commenced as required by Clause 1.5 of the specifications. This was particularised as having occurred on every day from 16 March 2008 to 31 August 2008.[61]There was no evidence that the flags were not raised each day before play.  Mr Wilson said that he did raise the flags (p 26), and his evidence was supported by Mr Gardner, Mr Foreshore, Mr Robinson and even Mr Gilbert.[62]The case that was put in cross-examination was that he did not lower the flags (p 77) but although he agreed to that proposition, that was not the task required by Clause 1.5.  The greenkeeper would not normally be there at close of play in the afternoon.  This allegation was not made out.
  1. [54]
    Para 14(f) alleged that the green surrounds and environs were not maintained in a neat and tidy appearance free of refuse, litter, clippings, prunings, fallen leaves and tree discardments as required by Clause 2.3 of the specifications. Again this was particularised as having occurred every day from 16 March 2008 to 31 August 2008. Clause 2.3 appears in Part 2 of the specifications headed “Greens”, separate from Part 3 headed “Gardens”, and I would not interpret it as applying to the gardens as distinct from the lawns surrounding the greens, bearing in mind that only these would be mowed or edged trimmed as also required by the clause.[63]There was no evidence of litter or anything like that on the greens, or with any problem with anything other than litter; complaints were made about litter in the form of cigarette butts, and to some extent of plastic cups, apparently provided for the water fountains at the club.
  1. [55]
    There were certainly complaints about cigarette butts being left in places where they were visible, and there are photographs of them near some steps to the club house, Exhibit 24, under a seat, Exhibit 22, or in the car park at the club: Exhibits 25, 26. There were also white plastic cups on a lawn or adjacent concrete strip near a seat (Exhibit 27), an empty beer bottle left on another seat (Exhibit 39), a small amount of assorted litter around the base of the fence apparently between the back of the club and some adjacent sporting fields, Exhibit 23, and two more empty bottles and some pot plant litter close to another part of that fence, Exhibit 28. Mr Wilson said that these last two were in inconspicuous places behind sheds: p 101, 102. He said he made an effort to clean up cigarette butts: p 44.
  1. [56]
    There are two difficulties with these allegations. The first is that as I read Clause 2.3 in context it is not concerned with the whole area of the club property, but only with “surrounds”, that is lawns around the greens, and there is not much evidence of a problem with litter or anything else in those specific areas. It also seems to me that the clause did not require the plaintiff to be promptly removing any litter or other things referred to which appeared at any time anywhere in the area covered by the clause, so that if there was any litter found anywhere on the surrounds or environs at any time there was a breach of that clause. It might be expected that some litter would come on to the surrounds at times when there were bowlers present at the club but outside the greenkeeper’s hours, and even during his hours it could have hardly have been expected that he would be constantly patrolling the surrounds for litter. In my view a more reasonable interpretation of this clause is that it imposed a reasonable obligation to perform any necessary clean-up of this nature, for example before play started on each playing day. Mr Wilson said that he did that and there was no evidence to the contrary.  The letter from Mr Jerinic of 9 May 2008 complimented Mr Wilson on the state of the surrounds: Exhibit 1, tab 12.  Accordingly I am not persuaded that a breach of this clause has been shown.
  1. [57]
    Para 14(g) alleged that the plaintiff did not mark the rinks, peg the boundaries, position the jacks and mats, clear ditches of debris and empty ash pots in preparation for play as required by Clause 2.7 of the specifications. That clause required that the rinks requested by the Games Director be marked, boundary pegged, jacks and mats positioned, ditches cleared of debris and ash pots emptied in preparation for play. Mr Wilson said that he did this (p 26) and the other bowlers called by the plaintiff supported him in this.[64]Apart from the ash pots, there was little evidence to contradict this, and most of the defendant’s witnesses either agreed that these things were done (or generally done) or did not comment on these matters.[65]
  1. [58]
    Exhibit 3 showed a small section of ditch on one green which had a flag flying which appeared to have something in it, though my impression is that it shows the ditch generally free from debris; I cannot determine from the photograph whether what looks like a piece of red wire with something attached to it near the corner of the ditch is debris or something that is supposed to be there. I am not persuaded there has been any significant breach of this clause in these respects by the plaintiff.
  1. [59]
    There were also complaints about Mr Wilson not emptying ash pots or putting them out.  Exhibit 36 shows what I suspect was a rink stand which had an ash pot holder at the top which was empty.  I assume ash pots originated in the days when bowlers would smoke on the green, and were provided in an attempt to prevent them from discarding butts actually onto the green or into the ditch.  At some point prior to 2008 legislative restrictions on smoking areas came into force which meant that smoking could only lawfully occur within certain specified areas of the club premises.[66]At least parts of the greens were not included in those areas.  It appears that Mr Wilson took the view that as a result of this prohibition it was appropriate to remove ash pots from areas where smoking was not allowed (p 106), on the theory that their presence might encourage smokers to smoke in areas where they should not smoke.  The members of the new board seemed to take the view that ash pots should be put out anyway, or perhaps simply seized upon this as a convenient thing to complain about.  Reference was made to the use of these pots for also discarding small items of litter.[67]
  1. [60]
    In my opinion the legislative restrictions on smoking on or about the greens did not have the effect that it was unlawful for the plaintiff to comply with the requirement to empty or to put out ash pots on the rinks as part of the process of setting them up, and if as appears to be the case Mr Wilson was not doing this the plaintiff was in this way in breach of this clause. There was however other evidence that ash pots were being emptied,[68] and I accept that generally that occurred. 
  1. [61]
    Para 14(h) alleged that the plaintiff did not keep a diary of fertilisers applied as required by Clause 2.8 of the specifications. Relevantly that clause provided: “A diary is to be kept of fertilisers applied by the greenkeeper. Record dates and types of fertilizer required and volume used per green.” Mr Wilson said that he kept a diary which recorded his work at the club, and he recorded in that, among other things, information about application of fertilisers: p 50. There were fairly extensive extracts from the diary in evidence in Exhibit 1 (in particular tab 22) but I was not taken to any entry which specifically referred to fertiliser. Mr Wilson said that he generally used fertiliser only when renovating the greens (p 50) so there would not be many such entries. On the other hand, Mr Wilson was not cross-examined about recording fertiliser use, and there was no specific evidence led by the defendant that he did not do so. Overall this allegation is not made out.
  1. [62]
    Para 14(i) referred again to the ash pots, and alleged a failure to empty them at the end of each rink before the commencement of play as required by Clause 2.11 of the specifications. That clause, headed Ash/Litter Pots, provided “pot plants situated at the end of each rink are to be emptied of cigarette butts, chewing gum, lolly papers and paper cups and litter before the commencement of play”. This must be a reference to the ash pots referred to earlier in Clause 2.7; there were no separate pot plants as such at the end of each rink for the reception of litter. The point here is the one that I have already dealt with in relation to paragraph 14(g); no doubt it featured twice in the pleading because this proposition features twice in the specifications. I am not persuaded that this breach has been proved.
  1. [63]
    Para 14(j) alleged that the plaintiff failed to keep the paths and concrete walkways surrounding the greens clean by hosing or vacuuming as required by Clause 2.12. Clause 2.12 provided:

“Paths and concrete walkways surrounding greens are to be kept clean by hosing or vacuum cleaning particularly after mowing and edge trimming.”

The clause did not in terms require this to be done daily; I consider the obligation was that this be done always after mowing and edge trimming, and otherwise if needed.  There was very little evidence about this subject except about cigarette butts.  There were certainly areas where smokers used to drop cigarette butts at the club on concrete paths: Exhibit 24, 25.  The defendant’s witnesses claimed that these butts remained there for some time and were not cleaned up;[69] Mr Wilson claimed that if he did see cigarette butts lying on the concrete paths he would clean them up or have them cleaned up: p 44.

  1. [64]
    The photographs seemed to show quite a number of cigarette butts, but this was said to be a busy club and if there were a significant number of smokers[70] it occurs to me that a significant number of cigarette butts could accumulate in a smoking area quite quickly, particularly if at least some of the patrons were heavy smokers and they had the view that the correct place for a cigarette butt was on the ground.  Apart from the ash pots, the evidence does not reveal any particular provision of ashtrays for smokers.  I do not think the effect of the section is that the plaintiff was in breach of it whenever a cigarette butt was not instantly removed from any path or walkway. 
  1. [65]
    I suspect that the true position was that Mr Wilson would clean up the cigarette butts from time to time when he had time and thought that it was warranted[71], but this was not as frequently as Mr Gilbert wanted it done.  It may be that there was a problem with bowlers leaving unsightly cigarette butts around the entrance to the club, which was deterring casual visitors from coming to the club later in the afternoon to make use of the bar and gaming machines, which Mr Gilbert was trying to encourage.  But if this was outside the greenkeeper’s hours, it was not the plaintiff’s fault if these butts were not then cleaned up.  Overall I am not persuaded that any persistent breach of this clause has been proved. 
  1. [66]
    Para 14(k) alleged that the plaintiff did not set the scoreboards to zero or clean them as required by Clause 2.15 of the specifications. This clause relevantly provided:

“The scoreboards to be set at zero readings…[and] to be kept clean and in working order or replaced by the club, if faulty or irreparable at the discretion of the Greens Director.”

Each rink was equipped with a scoreboard, examples of which were shown in the photograph Exhibit 35, although these examples are not in position, possibly because they are defective.  Depending on the extent of movement it may be necessary to move the scoreboards from side to side on the green to keep them in line with the rinks.  Ms Gilbert said that these things were not done without prompting (p 4-96), and there was evidence from other defendant’s witnesses in support; Mr Wilson said that he did attend to these matters[72] and that was supported by the evidence of the witnesses called for the plaintiff.[73]

  1. [67]
    On the whole I expect the true position was that normally Mr Wilson or his employees would reset the scoreboards to zero, though no doubt on some mornings this was missed, and that the scoreboards probably needed more maintenance than they had received, though whether this was something which the plaintiff was to fix, or something which required the boards to be replaced, was not explored in detail. It looks to me as though some of the numbers which appear to be dangling in the photograph Exhibit 35 are in that state because the corner of the number where the hole would have been has broken off. It is not immediately obvious to me how something like that could be repaired. There could hardly be a more trivial breach of the plaintiff’s contractual obligations than failing to reset the scoreboard numbers to zero, and even if this did occur on occasions it could not amount to, or contribute to, conduct properly characterized as repudiation of the contract by the plaintiff.
  1. [68]
    Para 14(l) alleged the plaintiff did not keep a record of preventative spraying as required by Clause 2.16 of the specifications. That clause required a program of preventative spraying to be undertaken to keep greens free from pests and diseases, and that “a record of dates and sprays to be kept as stipulated in Clause 2.8.” That was the clause dealing with fertilizer, and when read together this required dates and types of sprays applied and the volume used to be recorded in a diary. Again, part of the difficulty here seems to stem from the fact that the defendant’s officers have misinterpreted this clause. Mr Wilson kept a work diary and it appears that he kept a record in it of the occasions when he applied pest or disease spray to the greens. Several examples were identified in the course of the evidence.
  1. [69]
    It appears that at one stage the club was pressing Mr Wilson to provide a list of the occasions on which something had been sprayed on the greens, and what it was and so on, and there was some argument about this, and criticism of Mr Wilson because he had not actually provided such a list. It seems to me however that Clause 2.16 did not require him to keep a list in that form. There were copies of some lists which went into evidence,[74] but my impression from the evidence was that these were secondary documents which Mr Wilson prepared from the records in his diary, apparently in response to complaints from the officers of the club.[75]It appears that these or copies of them were never actually handed over to club officers.  In my view whether or not copies of these lists were provided is irrelevant.
  1. [70]
    This matter is complicated by the fact that at one stage the officers of the club sought from Mr Wilson a register of the chemicals which were used on the greens,[76] apparently because this was required by the club’s insurer in connection with risk management precautions.[77]Keeping such a list was not a requirement of the plaintiff under the specification, though providing a list of the chemicals used or commonly held on the club premises may well have been a sensible thing to do, and hence a reasonable direction and instruction from the “greens director” for the purposes of Clause 8(d) of the contract.  Such a failure was not within the particulars provided for paragraph 14(d), which were confined to failing to comply with a request “to provide copies of the records and documents that it was required to keep.”  In any case, the particular allegation in paragraph 14(l) was not made out.  There was no good evidence of a failure to record in the diary spraying that actually occurred. 
  1. [71]
    Para 14(m) alleged that the plaintiff did not spot spray large weeds in the gardens as required by Clause 3.3 of the specifications. Part 3 of the specifications which dealt with the gardens included Clause 3.3 which did require the plaintiff do this. Mr Wilson was not actually asked about this, even in cross-examination. There was evidence from Mr Gilbert that after he took over the club the gardens were in poor condition and he arranged for various volunteers to work on the gardens to get them into a better condition.[78]This evidence was supported by Mr Jerinic, who said that for some years the gardens at the club had in fact been maintained by his wife and by another member who were keen gardeners: p 2-94.  On 9 May 2008 Mr Jerinic as greens director wrote to the plaintiff and among things said: “There has been a very distinct visual improvement in the appearance of the gardens surrounding the greens, thank you, please keep it up.”[79]   Overall there was no convincing evidence that there were large weeds in the gardens which the plaintiff had left unsprayed for any significant length of time; strictly speaking the weeds had to reach the stage of being large before the obligation to spot spray arose.  This allegation was not made out.
  1. [72]
    Para 14(n) alleged that the plaintiff did not secure all machinery and other equipment, tools, provisions, plants, oils, inflammable liquids on completion of the day’s work as required by Clause 4.8 of the specifications. Part 4 of the specifications is headed Machinery, a term which is defined in Clause 1.2, and that word in Clause 4.8 is used in its defined sense, though the clause extends to other equipment, tools, provisions, “plant”, oils and inflammable liquids. It is concerned with “plant” in the sense of “equipment”, not “plants” in the sense of say pot plants. Mr Wilson said that he did secure machinery at the end of each working day (p 59) and all that was put to him in cross-examination was that he did not always do that, which he denied: p 90.[80]The case particularised was that “flammable liquids and poisonous chemicals” were not locked securely away.  The storage of chemicals was dealt with in Clause 6.5, which required them to be “stored in a safe place of keeping.”  The particulars therefore went beyond the obligation in Clause 4.8.  The relevant particularised breach was a failure to lock away securely inflammable liquids.  The short answer is that there was no evidence of any failure to lock away securely any inflammable liquids, and this allegation was not made out.
  1. [73]
    Para 14(o) alleged the plaintiff did not keep the building and surrounds clean and free of litter, nor did it hose down and wipe dry the seats before morning play commenced as required by Clause 7.1 in the specification. That clause provided:

“The main club building surrounds must be kept clean and free of litter.  Paths, seats to be hosed down, and seats wiped dry before morning play commences.  Bins are to be emptied and plastic liner bags inserted.”

The evidence was that building surrounds were not kept free from litter, because of the presence of cigarette butts.  I have already said something about this allegation; I do not think a breach of contract was proved simply by showing that at the end of the day’s play a number of cigarette butts had accumulated in areas frequented by smokers at the club.  One additional aspect of this clause is that it extended to the building surrounds (not the building and surrounds) which could well include the car park which was adjacent to the western end of the clubhouse, and the areas behind the greenkeeper’s shed next to the fence.  Otherwise, the car park does not seem to be covered by the specifications. 

  1. [74]
    There was evidence that cigarette butts accumulated in the car park, and Mr Wilson conceded that he did not regularly clean the car park.[81]It does appear that in this respect the plaintiff was in breach, although Mr Wilson may have believed that his obligations did not extend to cleaning the car park.  The areas near the shed had some empty bottles and other litter which I expect came in from the adjacent park (Exhibits 23, 28) and some old pot plants and leaf material: Exhibits 28, 29.  I suspect that the litter along the fence line should have been cleaned up, but otherwise this just looks like the sort of thing I would expect to see in an area near a greenkeeper’s shed, which is a suitably inconspicuously place.  To the extent that this involved a breach of the plaintiff’s obligations in clause 7.1, it was not a serious breach. 
  1. [75]
    As well, I would interpret the second sentence as an obligation to hose down paths and seats before each day’s play, with the seats then being wiped down, and even on Mr Wilson’s evidence it seems clear that this was not being done.[82]Mr Wilson’s evidence was that if the seats were wet he would wipe them down, and there are entries in the diary Exhibit 1 tab 22 which support the proposition that this was done on occasions, presumably those occasions when the seats were wet.  It does not appear however that hosing down seats and paths was done routinely before each day’s play, and the plaintiff was in breach of this part of this clause.[83]My impression is that Mr Wilson did not really appreciate the effect of this provision.  There was also some evidence and cross-examination about the emptying of litter bins, but this was a matter not expressly raised in paragraph 14(o).  It is not at all clear to me that Clause 7.1 required the bins to be emptied daily regardless of the extent to which they were full, but in the circumstances it is not necessary for me to decide this. 
  1. [76]
    Para 14(p) alleged the plaintiff did not keep the implement shed tidy and free from debris and waste materials as required by Clause 7.2 of the specifications. The aerial photograph which served as a plan during the trial, Exhibit 1 tab 1, identified just a “greenkeeping shed”, though the specifications suggest a separate implement shed, workshop and greenkeeper’s lunch room and office. It may be that the workshop was located within the implement shed, and that all of these were under the one roof, so to speak. The evidence suggested that there were at least separate rooms for this. Under cross-examination Mr Wilson said that their procedure was to clean the machinery shed at the end of each week: p 91. Mr Gilbert said that the machinery shed was untidy (p 4-96), but was vague about just what made it untidy; it may have been just because it was full of machinery. I was not favoured with a photograph showing the machinery shed generally. I am not persuaded that any breach of this clause has been proved.
  1. [77]
    Para 14(q) alleged that the plaintiff did not keep the workshop tidy and free of clutter as required by Clause 7.3 of the specifications, which did impose that requirement. The evidence included the photograph, Exhibit 31, of what was said to be the workbench, which shows a number of items on it, mostly the kind of items that I would expect to find on a workbench which was in use, even if not in use at that immediate moment.[84]Obviously if work is being done at a workbench there are going to be things on it, and Mr Wilson said that at the time the workbench was being used: p 103.  This is a matter on which minds may differ, but what is shown in the photograph does not strike me as untidy or cluttered for a workbench which is in use, and where someone doing a particular job has interrupted that job to do something else.[85]I am not persuaded that any breach of this clause has been proved.
  1. [78]
    Para 14(r) alleged that the plaintiff did not keep the lunchroom and office tidy as required by Clause 7.4 of the specifications. Mr Wilson maintained that it was kept tidy, on the basis that it was kept reasonably tidy during the week and it was swept out on a Friday afternoon: p 91. Exhibit 3 was a photograph of the sink in the lunchroom, with a plastic drainer rack on one side with what looks like a number of items which had been washed up and placed there, two mugs and a milk bottle (which could have been empty) in the sink itself, a jug and some glasses, an empty coffee bottle and a hand spray on one side, and with a number of old coffee jars, most of which look to be empty, and some other things including a container of dishwashing liquid, above. It was put that this showed that the sink was not kept tidy, but Mr Wilson maintained that he would not call that unkempt: p 103. The question of how many and what things if placed on the sink have the effect of rendering the lunchroom untidy is a question upon which reasonable minds may differ, but in my view a thing is not untidy just because it is not bare, and what is shown in the photograph Exhibit 30 does not go far enough to show that the lunchroom was not being kept tidy by the plaintiff at the relevant time. This allegation was not made out.
  1. [79]
    Para 14(s) alleged that the plaintiff did not “by demeanour or behaviour uphold the good name of the defendant” as required by Clause 8.3 of the specification. Clause 8.3 of the specifications provided:

“Employees of the contract and the greenkeeper shall at all times, by dress, demeanour or behaviour uphold the good name of the club.”

This is an allegation which cried out for proper particularisation, but all that was said was that Mr Wilson was rude, unfriendly, aggressive, intimidating and unco-operative on each and every day from 16 March to 31 August 2008.  Apart from being generally inadequate, such particulars seem to me to miss the point of the allegation, and indeed the clause, which is concerned with upholding the good name of the club.  This is something which people do in the context of dealings with outsiders, because the process of upholding the good name of the club is concerned with the relationship between those within the club and persons who are not within the club.  It is concerned with the public image or reputation of the club.

  1. [80]
    The position is similar to that with the rule considered in Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 166: “Players must not indulge in conduct detrimental to the game.”  Hunt J said of that rule that it was “clearly limited by its general context to conduct which is of that quality because it causes injury to the game by being known to the public.”  That decision was cited with approval by the Court of Appeal in Western Australia in Zucal v Harper (2005) 29 WAR 563 at [49], in the interpretation of a rule:

“A person employed, engaged or participating in the harness racing industry shall not behave in a way which is detrimental to the industry.”

Steytler P, with whom the other members of the court agreed, said at [50] of this rule:

“If a person who is prominent in the harness racing industry engages in conduct which has the potential for being made public and which if made public will cause people to lose confidence in his or her integrity or standards (even if the conduct is unconnected with the racing industry), then it may very well be the case that that conduct will, as a consequence, have a flow on effect as regards the manner in which the harness racing industry itself is perceived.”

  1. [81]
    His Honour was concerned with whether the rule should be given a wide or a narrow interpretation, but for present purposes the point is that the purpose of the rule was identified as being concerned with the image of the industry to the wider public. In my opinion the position is similar here: clause 8.3 is concerned with the image of the club presented to persons outside the club. Hence if the defendant’s true case was that Mr Wilson was rude, unfriendly, aggressive, intimidating and unco-operative towards visitors to the club or members of the public generally, such as passers-by, there might be some force in the allegation. Although on its face the inadequate particularisation did not exclude such a case, there was no evidence that Mr Wilson behaved in this fashion except towards Mr Gilbert, his wife and his supporters on the Board.[86]Accordingly this allegation of breach was not made out.
  1. [82]
    Curiously the particulars in paragraph 18(b)-(e) listed six occasions, of which three were in August 2008, which look like particulars of rudeness by Mr Wilson, but which were particulars of an allegation then in paragraph 18 of the defence, that if the option were exercised a favourable remuneration rate would not have been agreed because of Mr Wilson’s “aggressive attitude”. Two related to conduct alleged towards members in 2007 of which there was no admissible evidence, and the rest alleged conduct towards Mr Gilbert or other defence witnesses covered by their evidence. That allegation has since been omitted from paragraph 18 of the defence by amendment, so this issue no longer arises on the pleadings, and these matters were not particularised as breaches of paragraph 14(s).
  1. [83]
    Finally para 14(t) alleged the plaintiff did not work hours necessary to maintain first class quality greens as required by Clause 8.4 of the specification. That clause relevantly provided: “Hours worked by the greenkeeper and his servants will be those necessary to maintain first class quality greens comparable with greens, which have existed for the past five years.” There was no attention paid to whether the reference to the past five years meant five years before 2007 or five years before 2004, but in either case the period was one when Mr Wilson was in charge of the greens, either as the greenkeeping contractor, or as the person running the plaintiff.
  1. [84]
    In my opinion those words cannot be ignored, and in substance the obligation was to maintain the greens to continue the standard which had existed for the past five years. There was no evidence led, which in the circumstances would have to be expert evidence, as to how many hours a greenkeeper and his servants would have to work in order to achieve that. There was evidence from the plaintiff’s successor, Mr Gibbs, that he and an assistant who was also a greenkeeper worked eight hours a day six days a week (p 3-75) which amounts to 96 hours per week, and they were able to devote all their time to green maintenance because their obligations do not extend to maintaining the gardens, or perhaps the grounds of the club generally.[87]
  1. [85]
    There was evidence from Mr Wilson that he probably worked an average of 50 hours per week at the club, starting between 5.00 am and 6.30 am depending on the season; nothing very useful could be done before daylight: p 2-9, 10. He had an apprentice who worked similar hours to himself, and an assistant who worked three to four hours a day: p 2-12.[88]There was evidence from some of the defendant’s witnesses that on occasions when they went looking for Mr Wilson they were not able to find him at the greenkeeper’s shed,[89] but that would not exclude the possibility that he was working somewhere else within the grounds of the club at that time, and without more the evidence does not demonstrate a breach of Clause 8.4.
  1. [86]
    The particulars of this allegation were “two qualified and experienced greenkeepers working at least 40 hours per week each, giving a total of at least 80 hours per week.” That indicated that the breach alleged was concerned with the first sentence of Clause 8.4, not the second sentence, about green staff being on duty on days of play “until after the pm games excluding Saturdays or events starting times is past should last minute rink changes be requested… .” That is a somewhat opaque provision, but I would interpret it as imposing an obligation for green staff, that is someone associated with the plaintiff, to be available until after the starting time of afternoon games, except on Saturdays or days when events are being held. There was evidence that on Saturdays the play occurred only in the afternoons, so presumably the rinks for those games could be set up in the morning, and the greenkeeping staff could then leave. The exclusion of “events” is puzzling.
  1. [87]
    Also puzzling is the fact that no reference was made to Sundays or public holidays. Mr Wilson said that on Sundays and on public holidays the plaintiff just set up the greens in the morning (p 48), and that that had always been the situation, which may well be right. This may be one of those cases where nothing was said expressly in the contract because it did just go without saying.[90]I note that the current greenkeeper when speaking of weekend work spoke of working on Saturdays but not Sundays: p 3-75.  Most of the plaintiff’s witnesses said that during weekdays play was changed from one direction to the other between morning and afternoon, indicating that ordinarily someone from the plaintiff was present to give effect to this, which supports the evidence of Mr Wilson.  There was I think no clear and reliable evidence that this did not occur, at least not on a regular basis.
  1. [88]
    Strictly speaking in the light of the particulars it is sufficient for me to say in relation to this allegation that there was no evidence that maintenance of the greens to the standard required by Clause 8.4 would have taken the amount of time and effort identified in the particulars, and in those circumstances no breach as particularised has been proved. In relation to the question of whether the second part of Clause 8.4 was complied with, I am not persuaded the defendant has shown that there was any regular or persistent failure to comply with this obligation, so that if a breach of this part of the clause is regarded as being in issue because of the way in which the trial was actually conducted, that part of the defendant’s case was not made out.

Conclusion on liability

  1. [89]
    Overall, it seems to me that the effect of the evidence is that, although there may have been some problems with the greens as maintained by the plaintiff, generally speaking the greens were maintained to a reasonable standard, which is the fundamental obligation of a greenkeeper under a contract of this nature. With regard to the particular allegations of breach of the specifications, there was a breach of the obligations in Clause 7.1 to keep the car park and building surrounds free from litter, and to hose down and wipe dry seats on each playing day, and a breach of Clause 2.7 in relation to the provision of empty ash pots, because of Mr Wilson’s decision to remove ash pots in areas where smoking was not allowed. Given that the latter could be characterised as a misunderstanding of the effect on the contractual obligations of the restrictions on smoking, such a failure would not be characterised as or as part of the repudiation of the contract. To the extent that there were breaches on occasions of other obligations, they were obligations which were ordinarily complied with, and occasional breaches of particular obligations not of any great importance in themselves would not amount to repudiation or renunciation of a contract.
  1. [90]
    It is by no means clear that the plaintiff was failing to maintain the greens of the club to the standard to which it or Mr Wilson had maintained them during the relevant prior five year period, whatever that was, and accordingly the essential purpose of the contract was being satisfied. As far as I can tell from the photographs, the gardens were essentially low maintenance gardens, which were reasonably neat and tidy, even if they were not of a standard designed to enhance the appearance of a hospitality venue. There may well have been some hostility between Mr Wilson and the new board, particularly Mr Gilbert, but I am not persuaded that that was leading Mr Wilson at the relevant time to cause the plaintiff to behave in a way that deprived the defendant of the substantial benefit that it was to achieve from the plaintiff’s performance of the contract, or to produce a situation where the plaintiff was effectively refusing to perform the contract other than the way which was significantly different from the obligation contracted for.
  1. [91]
    Overall, I am not persuaded that the defendant has proved that at the time it purported to terminate the plaintiff’s contract on 29 August 2008 the plaintiff was repudiating (or renouncing) the contract, so that the defendant was entitled at law to terminate. It follows that the defendant’s purported termination of the contract was a breach of it. It was promptly followed by the exclusion of the plaintiff from the facilities provided for a greenkeeper of the club,[91] so as to leave the plaintiff no choice but to accept the defendant’s repudiation of the contract and bring it to an end.  In these circumstances, the defendant’s purported termination of the contract was itself a wrongful repudiation of the contract.  The defendant was therefore in breach of the contract, and is liable in damages for its breach of it. 

Quantum

  1. [92]
    The general rule for an assessment of damages for breach of contract is that a party is entitled to be placed so far as money can do it in the same position as if the contract had been performed.[92]In the ordinary case, the award of damages protects a plaintiff’s expectation of receiving the defendant’s performance of a contract, something which commonly will lead to a profit for the plaintiff, so that such damages are often described as damages for loss of profits.[93]Expectation damages can also cover expenditure which has already been incurred on the basis that it would have been reimbursed out of the proceeds of the contract had it not been terminated.  In the present case however no evidence was adduced that the plaintiff had incurred any particular expenditure prior to the termination which was referable, wholly or in part, to that part of the plaintiff’s performance of the contract which ultimately never occurred.
  1. [93]
    When a contract for services is wrongly terminated by the customer, the measure of damages is the agreed price for doing the work, less the cost that the party not in breach would have incurred specifically for doing that work.[94]The costs which are deducted are those of expenses avoided, but that does not include expenses which were not in fact avoided as a result of the termination of the contract, at least so long as the expenditure incurred anyway was reasonably incurred, including expenditure incurred attempting to minimise the loss, or avoid further loss.[95]However, expenditure which would have been incurred by the plaintiff by way of remuneration to Mr Wilson had the contract not been terminated, but which was not paid because the contract was terminated, is to be deducted as an expense saved by the plaintiff: Hadoplane Pty Ltd v Edward Rushton Pty Ltd [1996] 1 Qd R 156.
  1. [94]
    In that case the plaintiff company had as its only business the provision under a contract with the defendant of the services of two individuals who were also the only shareholders and directors of the company. The defendant repudiated the contract, the plaintiff’s gross income was reduced and it ceased to pay remuneration to the shareholders. Damages were assessed at trial on the basis of the plaintiff’s loss of net profits, an outcome which was upheld by the majority of the Court of Appeal.[96]Subsequently in Nosic v Zurich Australia Life Insurance Ltd [1997] 1 Qd R 67 McPherson JA at p 75 said of this case that it established that “in a claim for damages for breach of contract, the corporate plaintiff was limited to recovering the net profit lost as a result of the breach, which did not include payments that, apart from the breach, would have been but were in fact not made by the plaintiff to the two working directors by way of remuneration and superannuation benefits for their services.”
  1. [95]
    In Greenridge Botanicals (Aust) Pty Ltd v Nevin [2000] QCA 498 the contract which was wrongfully terminated was one for the plaintiff to have, for a particular fee, the exclusive right to distribute the defendant’s product within a defined territory at an agreed commission on gross sales.  The agreement was terminated summarily and it was held that this put the defendant in breach of an implied term to give reasonable notice of termination of six months, so that the question was what net profits had been lost by the plaintiff during that period.  The plaintiff sold other products, though the defendant’s product was a major part of its turnover, but during the notice period the plaintiff continued to employ the same number of employees and to pay them as it had, while applying efforts to avoid the loss of further business as a flow-on effect from the defendant’s actions, so that its overall expenses went up rather than down following the termination of the contract.  In those circumstances it was held that for practical purposes the loss of gross income which would otherwise have been achieved was a reasonable reflection of the net loss of the plaintiff during that period.  This decision is important because it shows that the deduction is the amount of the costs saved by not having to do the work, not the cost which would, as an accounting exercise, have been attributed to the work if it had been done. 
  1. [96]
    In this matter I have the benefit of evidence from two chartered accountants, each of whom had prepared reports calculating the loss suffered by the plaintiff as a result of the termination of the contract. The plaintiff’s accountant was Mr Otto; the defendant called a Mr Benjamin. Mr Otto had prepared reports dated 4 May 2011, Exhibit 10, and 28 August 2013, Exhibit 11. Mr Benjamin’s reports were dated 25 October 2012, Exhibit 17, 28 November 2012, Exhibit 18, and 17 December 2012, Exhibit 19. Both gave oral evidence, and were cross-examined on their reports. A bundle of financial documents dealing with the financial position of the plaintiff, financial reports for the years 2007 to 2013, company tax returns for years 2007-2010, copies of cashbooks for the financial years 2008 and 2009, Mr Wilson’s tax returns for 2007-2010, and some other financial documents became Exhibit 2. This material was referred to by the accountants in the preparation of their reports. No objection was taken to any of the reports on the ground that they were based on material which had not been properly proved.

Validity of option

  1. [97]
    One issue which arises in relation to quantum is as to the period in respect of which the loss should be assessed. At the time of termination the contract had 18 months to run, but as mentioned earlier it said the plaintiff had an option to renew for a further term of three years: Clause 3. I am prepared to assume that the plaintiff would have exercised the option had it been able to do so. The difficulty however is that the contract provided that the remuneration during the option period was to be “at a fee to be negotiated”. In other words, the option did not provide either a fixed amount of remuneration during the option period, or a mechanism for the determination of remuneration during the option period.
  1. [98]
    Whether an option is characterised as an offer capable of immediate acceptance on its exercise, or an existing contract conditional on the exercise of the option, the option must be in terms such that, if it is exercised, there is a complete contract between the parties. An essential requirement for a complete contract is the identification of the consideration, and although courts lean in favour of upholding contracts where possible, it is well established that if the parties are yet to agree on the consideration there is no valid contract. Hence if a lease purports to grant an option for renewal of the lease at a rental to be agreed, the option is void.[97]   The same principle has been applied in relation to a guarantee which provided for a credit limit “to be agreed”,[98] and to a provision in a development agreement between a company and a partnership to undertake land development, which provided for payment of a development fee, one component of which was “a proportion of the profit as agreed”.[99]It follows that in my opinion no valid option was given in this case.
  1. [99]
    The plaintiff argued that the effect of the contract as a whole was that, if the parties did not negotiate or agree upon remuneration for the option period, the default provision would be a CPI increase pursuant to clause 10. The difficulty with that submission lies in the wording of clause 10. It was not elegantly drafted, but it provides for a figure which can only be interpreted sensibly as annual remuneration, that it be paid by way of 12 equal monthly instalments, and that the contract amount (i.e. that figure) be adjusted on 1 March each year to allow for inflation or CPI increase for the past year, and continues, that this be paid “throughout the term hereof … .” Clause 1 of the agreement, headed “term of contract” provided expressly that the engagement was “for a term of three (3) years”. Clause 3 referred to an option to renew for a further term of three years, rather than to extend the existing term.
  1. [100]
    In my opinion the contract clearly provided for a term of three years, and that the CPI increase would apply for the second and third year of that term. It did not contain a formula for a contract amount, or a default provision in the absence of agreement, for the renewed term. There is also the difficulty that such an interpretation would be inconsistent with clause 5, because if there were such a default provision, negotiation would be meaningless, as there would be no incentive for the club to agree to a higher figure, and no incentive for the plaintiff to agree to a lower one.
  1. [101]
    It was also submitted that I could have regard to the negotiations between the parties in determining the correct interpretation of the contract. The only evidence of this came from Mr Wilson. He gave evidence that he negotiated with Mr Bayliss, the then chairman of the club, and that another member of the then board was present at the time: p 21. He said there was a meeting when he asked for an increase of 12 per cent at the beginning of the new contract and CPI increases thereafter, which Mr Bayliss was not prepared to agree to, but he would agree to seven and a half per cent and CPI thereafter. Mr Wilson then asked for the same arrangement to apply to the option period, that is seven and a half per cent increase initially plus CPI increases, which Mr Bayliss did not agree to: p 21.  He said that Mr Bayliss did however agree that he could have the CPI increases. 
  1. [102]
    There was a further meeting, which had a draft of the contract a copy of which became Exhibit 1 tab 6. That document had something different in clause 5, and both Mr Wilson and Mr Bayliss said that that did not represent what had been agreed earlier. Three lines of the draft agreement were crossed out, and the words “at a fee to be negotiated” were written in in their place, and the following clause, which referred to a remuneration calculation for the option period being attached as a Schedule B to the document, was also crossed out. The parties then initialled the amended version of clause 5. Hence they deliberately superseded any earlier oral agreement.
  1. [103]
    A retyped version of clause 5 was prepared for incorporation into the document which became the contract at tab 7, which reflected the changes made to the draft on p 2 of the document at tab 6. It appears to me that that document was then signed; the proposition that it was the document at tab 6 which was executed, and the parties later executed the two new pages which were substituted in that document for tab 7, is not consistent with the fact that the document in tab 6 has the handwritten amendments initialled by the parties, but that page has not been signed by the parties. Alternatively, it may be that the signing sheet on p 5 was completed but each page was not signed until the agreement had been reconstituted with the new pages 2 and 3. Examination of the signing sheets on documents at tab 6 and tab 7 suggests they are photocopies, and an original signing sheet appears in Exhibit 5, which is another version of the document at tab 7, possibly the original of it.
  1. [104]
    The effect of this evidence is that the parties deliberately settled on the form of words now in the document at tab 7. In those circumstances regard cannot be had to the evidence of their subjective view of the legal effect of those words.[100]The objective theory of contract requires that what matters is the legal effect of an objective interpretation of the words the parties have chosen to use to express their agreement, and if the parties deliberately choose to express their agreement in terms which render the option void, that dictates the outcome.  The opinion as to the operation of the contract reflected in the minutes of the board meeting on 20 June 2008, Exhibit 13 is simply someone’s opinion as to the legal effect of the document, and irrelevant. 
  1. [105]
    Counsel for the plaintiff referred to FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343 at 351.  That is at best a very tenuous basis for the proposition that a party may by conduct make an admission as to the correct interpretation of a contract, but in any event in my view it is inconsistent with the decisions of the Queensland Full Court, binding on me, to the effect that the post-contractual conduct of the parties is admissible as to whether there was a contract between them, but not as to its correct construction.[101]
  1. [106]
    Accordingly damages are to be assessed on the basis that the plaintiff did not have an enforceable option to renew the contract for another three years. Of course the assessment of damages for the termination of a contract can take into account the loss associated with the loss of opportunity for renewal, even if there is no actual right to renew,[102] but the issue depends on whether the plaintiff can say that the possibility of renewal of this contract represented a commercial opportunity for profit which had some value, in which case allowance must be made for that value, applying the methodology in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332.[103]
  1. [107]
    In the present case I am satisfied there was no real possibility that the defendant would agree to any extension or renewal of the plaintiff’s contract, and accordingly the plaintiff has not lost any real opportunity for profit arising from any such renewal. Given the clear hostility to the plaintiff which was apparent, both to Mr Wilson at the time and to me from the defendant’s witnesses during the trial, I am satisfied there was no chance of the defendant entering into any further contract with the plaintiff unless it was legally bound to do so. The plaintiff’s loss of profit must therefore be computed by reference to the 18 month period between when the contract was wrongfully terminated by the defendant and when it would have expired.

Plaintiff’s loss - income

  1. [108]
    Mr Wilson gave evidence at p 56 that when he spoke to Mr Gilbert after being locked out of the shed he complained that he had not been fully paid up, and that Mr Gilbert had denied that. There was however no direct evidence about what payments were made by the defendant to the plaintiff in the 2008-9 financial year, though both accountants worked on the basis that the July and August monthly payments were made but the remainder were not. So shall I.
  1. [109]
    In the first year of the contract the monthly payments were to be $11,123 plus GST (Clause 10) and there was to be an adjustment each March to allow for CPI increase the following year. The All Groups CPI for Australia for the year to March 2008 produced an increase of 4.2%.[104]Nevertheless it appears that in June 2008, and I assume July and August, the amount actually paid was $11,434 plus GST, an increase of about 2.8%.[105] I assume that payments were made at that rate also in July and August, and that had the contract not been terminated they would also have been made at that rate each month from September to February 2009.  In March 2009 there should have been a further increase to allow for CPI changes.  The increase in the All Groups CPI Index from March 2008 to March 2009 was 2.5%. Applying that percentage increase produces a monthly payment of $11,720 plus GST.  Accordingly the income the plaintiff has lost from the defendant during the balance of the contract term was six months at $11,434, and twelve months at $11,720, a total of $209,244.[106]

Plaintiff’s loss – expenditure

  1. [110]
    From this figure there needs to be deducted the expenditure saved by the plaintiff as a result of not having to do the work required by the contract. This involves comparing the position the plaintiff actually was in during that 18 month period with the position the plaintiff would have been in if the contract had not been terminated; the latter involves the determination of a hypothetical situation. There were two particular issues ventilated in relation to this question, the extent to which payments not made to Mr Wilson should be treated as part of the loss, and the extent to which other work done by the plaintiff during this period should be deducted, on the basis that had the contract not been terminated this work would not have been undertaken.[107]
  1. [111]
    As for the former, it is clear from the authorities referred to earlier that the amount saved by the plaintiff in not paying Mr Wilson as much as it would have paid him had the contract been continuing was a saved expense which is to be deducted. The approach of the accountants to this question however seems to me to be inappropriate, because it focussed on the fully allocated cost of doing the work,[108] rather than the actual saving to the plaintiff.  The authorities indicate that it is the latter which is important, because of the way in which damages in this situation are properly calculated.  The decision in Greenridge Botanticals (supra) demonstrates that what matters is the actual cost saving as a result of the termination, rather than the hypothetical cost of doing the work had the contract not been terminated.  In that case there was no saving in wages, but the plaintiff’s efforts were directed to avoiding further loss of business, and trying to expand other areas of the company’s business, both of which were regarded as legitimate aspects of consequential loss for the company. 
  1. [112]
    The position is not the same here, but the same principle applies. As a result of the loss of the contract with the defendant the plaintiff still had some other work, and Mr Wilson would no doubt have been attempting to obtain further work, but the amount paid to him was in fact reduced. In those circumstances it is the actual reduction in payment to him as a result of the termination which matters, because that was the actual saving achieved. To the extent that the plaintiff was doing work after the termination of the contract which would not have been done had the contract remained on foot, this is covered by the fact that income from such work is to be allowed for in assessing damages.
  1. [113]
    In the 2008 financial year Mr Wilson received director’s fees of $6,500, a salary of $60,000, and the benefit of superannuation payments. In the accounts the last totalled $13,201, but that figure would have included compulsory superannuation in respect of amounts paid as wages, 9% of $25,356, $2,282, leaving a balance of $10,919, so total remuneration was $77,419.[109] The figures were a little different in 2007, but overall I think this a good guide to the level of remuneration Mr Wilson would have received during the balance of the contract, subject to adjustment for inflation. 
  1. [114]
    Making adjustments, for convenience at the same rate as the contract remuneration was increased, 2.8% and 2.5%, this produces a hypothetical remuneration during 2009 of $79,587, and during 2010 of $81,576. During 2009, the actual remuneration was director’s fees of $13,500, salary of $12,600 and superannuation of $2,860 minus 9% of $4,275, a total of $28,575.[110]The reduction in the remuneration of Mr Wilson during 2009 financial year was therefore $51,012. 
  1. [115]
    In the 2010 financial year Mr Wilson’s remuneration did not include director’s fees, and apparently no amount was paid as a contribution to superannuation, even the percentage of the wages paid to others of $8,175. Mr Wilson’s remuneration was therefore the amount of salary of $22,100. During this financial year, however, I am only concerned with the loss for a period of eight months, from July to February. The hypothetical annual income during this financial year of $81,576 was the equivalent $6,798 per month, or $54,384 for a period of eight months. The actual income of $22,100 was the equivalent of $1,842 per month or $14,736 for eight months. Over that eight month period therefore the reduction in income from the hypothetical to the actual for Mr Wilson comes to $39,648. So the total saving the plaintiff achieved in remuneration to Mr Wilson for the balance of the contract term was $90,660.
  1. [116]
    Apart from Mr Wilson, labour was provided by an assistant greenkeeper and by an apprentice. At the time when the contract was terminated the former was on a sub-contract basis, but the amount paid in 2008 for sub-contractors, $8,589, does not seem sufficient to allow for the amount that I would have expected him to be paid if he worked as a sub-contractor for the hours stated in his evidence throughout that year.[111]The “wages” figures came down a bit from 2007 to 2008, and a lot more to 2009, and it is possible that there was a change from employee to sub-contractor during the 2008 year.  In any event, any saving in amounts paid as wages and to a sub-contractor between 2008 and 2009 would appear to reflect expense saved as a result of the termination of the contract, if the 2008 figures are increased to allow for inflation. That produced a hypothetical sub-contract figure of $8,829, and a saving in 2009 of $2,041.  The hypothetical wages figure for 2009 is $26,066 and deducting the actual wages of $4,275 produces a saving in wages in 2009 of $21,791.[112] The saving on other labour during 2009 was therefore $23,832.
  1. [117]
    The position in 2010 was complicated by the fact that spending on sub-contractors actually went up, while the wages figure, lower than in 2008, was higher than in 2009. This was because in 2010 significant other work was obtained. Nevertheless the combination of wages (plus superannuation) plus sub-contractor payments in 2008, indexed for inflation, remained more than the combination of wages plus sub-contractor payments in 2010. The hypothetical annual figure for 2010 is $38,183[113] whereas the actual wages plus sub-contractor payments in 2010 came to $31,561.[114] Again however this saving is to be determined over only eight months.  Over that period the hypothetical indexed figure is $24,455 whereas the actual figure is $21,041, a saving of $3,414.  Hence the total saving on other labour during the balance of the contract comes to $27,246.
  1. [118]
    The plaintiff’s financial statements include a figure each year for “cost of goods sold” which was lower in 2009, but increased in 2010. The plaintiff had to supply fertilisers, pesticides and other consumables under the contract with the defendant and there would have been a saving for not having to do this. Unfortunately there was no attempt to quantify that part of the figure in any year which was attributable to work done for the defendant. It was not the only client of the plaintiff during the operation of the contract, though it was by far the largest, representing some 90% of income in 2008. If cost of goods sold was apportioned to the different clients on the basis of income received, that produces of figure for the defendant’s contract of about $8,500 per annum, and over the 18 months the contract had left to run, that is a figure $12,750, which I will round up for inflation to $13,000.
  1. [119]
    With regard to the rest of the expenses in the accounts, many of these appear to be unrelated to particular work which was being done by the plaintiff, or to increase anyway between 2008 and 2009, for no doubt other reasons. Depreciation went up but that was associated with the acquisition of motor vehicles in relation to other work.[115]There was a drop in the cost of hire of plant and equipment, but the figure for 2008 seems anomalous, since there was no amount for this in 2007, and my impression from the evidence is that the plant and equipment used to work at the defendant’s premises was plant and equipment owned and provided by the defendant. It has not been shown that any reduction in the amount paid for this between 2008 and 2009 was caused by the loss of this contract.  There was an increase in motor vehicle expenses, and a small reduction in repairs and maintenance, but again that is not obviously a saving as a result of not doing this work, bearing in mind my comments about the hire of plant and equipment. 
  1. [120]
    A further area where costs would have been reduced was the need to provide public liability insurance for the club under Clause 10.1 of the specifications, and the need to provide workers compensation insurance under Clause 10.2. To the extent that the plaintiff was still employing people it would have been necessary to provide such cover, but the cost of such cover is associated with the level of wages paid so that I expect the cost of cover would have dropped as the wages did. In fact insurance went down from $1,886.00 in 2008 to $811.00 in 2009, suggesting that it is appropriate to allow $1,500.00 for saving in insurance costs as a further expense saved.
  1. [121]
    There was a saving of a small amount on staff amenities and staff training and welfare, both of which were covered in 2007 and 2008, which had disappeared by 2010. I will allow $1,000 cost saving for that. There was also a saving in tip fees, but under Clause 3.7 of the specifications refuse and lawn clippings were to be removed as required at the defendant’s cost, so this cannot relate to the contract with the defendant. Overall therefore it appears that the actual savings achieved by the plaintiff as a result of not having to complete the work required under this contract came to $133,406.[116]
  1. [122]
    This figure is quite different from the figures calculated by either of the experts. I think there are essentially two reasons for this. The first is that the accountants do not appear to have attempted to analyse the various heads of expenditure of the plaintiff in order to ascertain what expenditure the plaintiff did actually save as a result of not having to do the work for the defendant, but rather appear to have allocated most of the expenditure to work for the defendant or other categories of work on a percentage basis.[117]I do not regard that as the correct way to approach the matter.  On the authorities, the issue is, what income did the plaintiff lose, and what expenses that would otherwise have been incurred was the plaintiff able to avoid, as a result of not doing this work.[118]Expenses which were incurred anyway did not fall into this category, even if, in an accounting sense, most of them would be allocated to the contract which was the major source of income of the plaintiff in order to determine the economic profitability of that contract. 
  1. [123]
    Mr Otto disregarded interest and additional accounting and legal fees (Exhibit 10, para 48) while Mr Benjamin appears to have disregarded the last two: p 3-37. One consequence of this is that, to the extent that additional work was done which would not have been done if the contract had not been terminated, Mr Benjamin has allowed, as additional damages, an accounting loss made as a result of doing that additional work. It is possible for a loss to be suffered in this way and for it to be recovered as consequential loss, on the basis that the plaintiff, in attempting to mitigate its loss, did other work which proved to be unremunerative, but that would depend on proof that the company was actually worse off as a result of taking on that particular work in money terms, rather than on the basis of allocating unavoidable expenditure.
  1. [124]
    This is a real problem in this case from my point of view. No attempt has been made to identify just how the plaintiff did in cash terms from the defendant’s contract, or what expenses in cash terms were saved by not having to do the work. In these circumstances, the fact that the accountants largely agree in their calculations really only demonstrates that they are both approaching it in the way accountants approach these things, but not in a way which in my view calculates the correct measure of damages in these circumstances.
  1. [125]
    Despite the considerable volume of accounting reports provided, they are largely useless to me because the accountants have approached things in what I regard as the wrong way. A good example was Mr Benjamin’s approach to the amount claimed for depreciation in 2008/2009 as a result of the purchase of motor vehicles, which were depreciated using the diminishing value method: Exhibit 18 para 5.7(3). Mr Benjamin thought the prime cost method was more appropriate, and adjusted his calculations accordingly. As an exercise in determining how the accounts should provide a true and fair picture of the financial situation of the company’s business, there may be some force in this exercise,[119] but depreciation is simply a means by which capital expenditure can be allocated to current expenditure over a period of time to reflect the fact that capital assets have a wasting value, and does not represent actual money spent in that amount in that year by the plaintiff.  Further, on the evidence the truck was purchased because of the Gold Coast City Council contract, and the utility purchased in December 2009 replaced the utility used previously.[120]Therefore this expense (the purchase of the motor vehicles) would have been incurred anyway.  Depreciation was not in any sense an expense saved by the plaintiff because it did not need to do work under the defendant’s contract, and regardless of how it is calculated, it is irrelevant in determining properly the plaintiff’s loss of profits.  How it is calculated is also necessarily irrelevant. 
  1. [126]
    One aspect of this is that no attention has been paid to the things to which attention ought to have been paid, such as the make-up of the plaintiff’s income after the termination of the defendant’s contract, the extent to which the defendant’s contract was profitable to the plaintiff on a cash basis,[121] and the extent to which any subsequent contracts obtained by the plaintiff were profitable on a cash basis.[122]This is the sort of thing I need to know.  I have had to work it out for myself as best I can. 

Plaintiff’s loss – other work

  1. [127]
    The other reason is that the accountants seem to have treated all new work as replacing work under the contract. It is more complicated than that. With regard to other work done, it is apparent from the analysis of Mr Otto, in Exhibit 10 para 35, that during the currency of this contract the plaintiff had a number of other customers, though most of them were producing quite modest remuneration. As well, Mr Wilson said that prior to the termination of the contract he was planning for the plaintiff to expand and to become involved in weed spraying, and to this end he had purchased a truck and a spray unit, and entered into a contract with the Gold Coast City Council: p. 56; Exhibit 1 tab 33. The contract was not actually signed until September 2008, but the tender form which led to it had been submitted by the plaintiff on 21 May 2008 and accordingly this was put in hand well before the termination of the contract with the defendant. Accordingly any work for the Gold Coast City Council would have been done anyway; Mr Wilson said that if necessary the plaintiff would just employ additional staff to do it: p. 56.
  1. [128]
    This explains why there were additional expenses associated with borrowing money and operating a motor vehicle, and additional depreciation, in the 2009 financial year. Mr Wilson said that the plaintiff also obtained a greenkeeping contract at the Balmoral Bowls Club in January 2009: p. 57.[123] The contract with the Club was actually signed on 13 June 2009: Exhibit 1 tab 35.  This may not have been the first contract or it may have taken a while for a written contract to be entered into.  There was a further contract from 1 July 2010, but not signed until November and December 10: Exhibit 1 tab 36.  Remuneration under the tab 35 contract was $800 per week plus GST, and did not cover major renovations such as removal of the top of a green; the club paid for consumables, but had to approve their purchase.  The contract with the Balmoral Club overlapped the balance of the defendant’s contract by about 13 months.  At $800.00 per week, 13 months’ remuneration is $45,071.00. 
  1. [129]
    Apart from this, in March 2009 the plaintiff signed an agreement to do lawn maintenance and gardening at Lakeland Villas at Merrimac for $59,784.00 per annum including GST: Exhibit 1 tab 34. Mr Wilson said that these additional contracts would have been taken on anyway even if the contract with the defendant had not been terminated, but I think there is a difference between the plaintiff picking up some extra garden maintenance and lawn-mowing work, and taking on greenkeeping at another bowling club or clubs. This is concerned with a hypothetical situation, of whether either or both of these contracts would have been taken on anyway if the plaintiff had still been working for the defendant. It therefore has to be assessed on the basis of probabilities in accordance with Malec v Hutton Ltd (1990) 169 CLR 638.  Mr Wilson said that apart from these contracts the plaintiff had attempted to obtain other contracts, including tendering for at least one other bowls club, but they were not obtained: p 59. 
  1. [130]
    The contract with the Gold Coast City Council did not in fact produce any income in 2009, and only about $880 in 2010: p 2–11. It was more remunerative thereafter. Mr Wilson said that in the 2009 financial year the two largest providers of income were the Balmoral Bowls Club and the Lakeland Villas contract: p 2-11. Mr Benjamin in his allocation of income after the defendant’s contract was terminated treated all amounts earned other than what was earned from other work in 2008 as derived from work which would not have been done but for the termination of the contract.[124]That was inconsistent with the evidence of Mr Wilson, who said that he was trying to expand the plaintiff’s business (p 56) and that he would have done the extra work anyway even if he had kept the defendant’s contract: p 58.  The proposition that he was trying to expand anyway was supported by the steps taken to obtain the contract with the Gold Coast City Council well before August 2008 when the relationship with the defendant really deteriorated, and in any event this proposition was not challenged in cross-examination, which was limited to securing his agreement that if he had obtained extra work while keeping the defendant’s contract he would have had to employ additional labour to do that work: p 2–21. 
  1. [131]
    That makes sense; Mr Wilson was on his account working long hours for the defendant (p 2–9) and would have had little time to do other work, particularly maintaining the greens at a bowls club in Brisbane. One matter that was not explored however was the extent to which such a contract would have been profitable in cash terms if the plaintiff had to employ someone else actually to do the work required. I assume however that unless it was profitable the plaintiff would have not have entered into such a contract in such circumstances.
  1. [132]
    It is not appropriate in my view to follow Mr Benjamin’s approach and treat any additional work obtained by the plaintiff as necessarily work the plaintiff would not have obtained had it retained the defendant’s contract.[125]If the plaintiff had been doing significant new work while retaining the defendant’s contract, it would have incurred additional expense for labour, and no doubt to some extent consumables, and other expenses.[126]But although replacement work is properly taken into account in assessing damages for loss of profits, so far as I am aware work which would have been done anyway is not relevant to the assessment.  I do not know of any authority which makes it relevant, and in any case I do not have a sufficient basis in the evidence to take it into account in a meaningful way in this case.  

Replacement or additional work?

  1. [133]
    Mr Wilson’s evidence was that both of these contracts would have been obtained anyway, and in the context of the Lakeland contract there is no evidentiary basis for me to doubt that proposition, nor to make any allowance in the assessment because of the possibility of that not being the case, that is, the possibility that the plaintiff would not have undertaken this job if the defendant’s contract had still been on foot. There is the consideration that by this time the defendant’s contract would have had only one more year to run, and by then the plaintiff should have realised that the writing was on the wall for any renewal.
  1. [134]
    In the case of the bowling club contract however the position is not as clear. Apart from the fact that this was an additional bowling club being taken on, it was a club in Brisbane, which would have required a good deal more driving in order to do the necessary work.[127]There was unfortunately no evidence at all about the extent of work required under this contract.  I do not know whether it was necessary to prepare greens every day, or on how many days in the week, nor how many days a week there was something which had to be done requiring someone in attendance, and how long such a person would be in attendance.  Strictly speaking I know there were only two greens at this club only from private research, which I should not act on. 
  1. [135]
    It is possible that Mr Wilson would have taken on another bowling club in circumstances where the defendant’s contract was coming to an end, even if it proved inconvenient and relatively expensive to service, in the hope that this would enable him to maintain continuity in greenkeeping for lawn bowls. Apart from any inherent enthusiasm for this he may have, and he has obviously been a greenkeeper for a long time, it may be of assistance to him in obtaining more and better lawn bowls greenkeeping work in the future for the plaintiff.
  1. [136]
    An argument can however be made for the proposition that, had the contract with the defendant still been on foot, there was at least a real chance that the plaintiff would not have taken on another bowling club in early 2009. If this contract was replacement work in the sense of work that would not have been undertaken by the plaintiff if the defendant’s contract had remained on foot, the income from it should be deducted in assessing damages, except for an allowance for any costs specific to this contract or in an amount which would not have been incurred had the defendant’s contract been retained instead. If after the loss of a profitable contract a contractor obtains a replacement contract which is as remunerative, but where the contractor has to incur additional costs to earn the equivalent remuneration compared with the contract which was lost, the contractor’s damages include the additional costs, as expenses reasonably incurred in mitigating its loss by securing that other contract. The practical effect of this is that, if this were a replacement contract, the amount to be deducted would be the income received from the club, say $17,600 in 2009, less some allowance for the extra motor vehicle expenses associated with this, say $2,000.
  1. [137]
    In order to allow for this on Malec principles, it is necessary to assess the probabilities that this contract is one that would not have been entered into if the defendant’s contract were still in force.  In all the circumstances, although there is a real possibility that the plaintiff would not have taken on this work had the defendant’s contract still been in place, I think I should assess that possibility at a relatively modest figure, and I adopt 25 per cent.  Hence the allowance for replacement work should be 25 per cent of the income from that contract less $2,000, $3,900 in 2009. 
  1. [138]
    In 2010, I expect the income from the Balmoral Bowls Club would have been $41,600 while from Lakeland it would have been $54,348. These two contracts produced about 75 per cent of the plaintiff’s income for the year. The income from the bowls club over the eight month period which is relevant however was $27,733. Again an allowance should be made for the increased motor vehicle expenses because of this contract, and I will deduct $3,733 for this eight month period, to produce a round figure of $24,000. 25 per cent of this is $6,000, which is the amount to be deducted on this basis for 2010. So the total to be deducted to allow for the possibility that this contract was replacement work is $9,900.

Conclusion

  1. [139]
    Hence the plaintiff’s damages for breach of contract are the loss of income, $209,244, less the expenses saved $133,406, less an allowance for the possibility that the contract with the Balmoral Bowls Club would not have been obtained if the plaintiff had still been doing the work required under the defendant’s contract, $9,900. Overall this leaves a balance of $65,938. This may be compared with the figure ultimately adopted by Mr Benjamin in his third report, Exhibit 19 for what he described as economic loss during the remainder of the contract term, $33,177.[128]It is much lower than the figure derived by Mr Otto, but that difference is largely due to the fact that his figure was based on a calculation which did not take into account the reduction in payments made to Mr Wilson after the termination of the contract and as a result of it, which on the authorities have to be taken into account. 
  1. [140]
    The plaintiff is also entitled to interest from the time when the loss was suffered. Essentially the loss accrued over the balance of the 18 months the contract had left to run when it was terminated by the defendant. Accordingly, and subject to any submissions which may be made on this point when I deliver these reasons, interest should run from the midpoint of that time to the date of judgment, 1 June 2009, at the rate allowed under the practice direction. The court calculator gives for this figure $45,346.60. Subject to any submissions to the contrary about interest, therefore, there will be judgment for the plaintiff for $111,284.60 including $45,346.60 by way of interest. I shall invite submissions in relation to costs when these reasons are delivered.

Footnotes

[1] Exhibit 1 tab 2.

[2] Exhibit 1 tab 3.  The agreement is expressed to be with Mr Wilson personally, although the common seal of the plaintiff was applied to it. 

[3] Exhibit 1 tab 4. 

[4] Although a literal reading of Clause 5 suggests that this was the remuneration for the whole of the 3 year period, plainly that was not the true interpretation of the clause; it provided an annual remuneration for each of the 3 years of the option period.  Neither party contended to the contrary.

[5] Exhibit 1 tab 5; Wilson p 19.

[6] Exhibit 1 tab 7. 

[7] This was the sort of thing which probably would not have troubled those members who simply went to the club in order to bowl. Mr Gilbert said that when he was just coming there as a bowler he was not concerned by them: p 4–4 line 39.

[8] Mrs Gilbert p 3-97: the previous caterers had given notice to the outgoing board.

[9] Mrs Gilbert p 3-92; Gilbert p 4-70.  This began in the 2008 year: Exhibit 21.

[10] Koorey p 3-56.

[11] There were some pre-existing animosities: he did not get on with Mr McCloskey, and criticised him to Mr Gilbert after he took over the club, as he admitted: Wilson p 2-16; McCloskey was on the new board in 2008.  He did not give evidence of any animosity on his part.

[12] Mr Gilbert had a career as a publican: p 4-53.  His concern was about how the club presented as a hospitality venue: p 4-71. 

[13] Wilson p 35.  He made a diary note of the incident on 8 April 2008; Exhibit 1, tab 8.  He also wrote an incident report, tab 10.

[14] Wilson p 36; Exhibit 1 tab 11.

[15] Wilson p 47; p 2-18.

[16] Jerinic p 2-89: he criticised Mr Wilson for his behaviour, and gave him two infringement notices as a result: Exhibit 1 tabs 23, 24, which date the incident to 16 August 2008.  The argument started before he got there: p 2-110; but see p 2-114.

[17] Archer p 64.  The next day he resigned from the Club because Mr Gilbert also swore at him: p 65.  He put this on 9 August 2008.  He had no prior difficulties with Mr Gilbert: p 66.  If he is correct about the date, he saw a separate earlier incident when Mr Gilbert swore at Mr Wilson.

[18] He also put the date at 9 August 2008: p 4-26.  He denied that he argued with Mr Wilson: p 4-88, contra Jerinic p 2-110, p 2-114. 

[19] See also Jerinic p 2-94: the club was flat broke.

[20] See also Exhibit 14; Jerinic p 3-3. 

[21] Gilbert p 4-32, 33.  Exhibits 13, 16, 41.  See also Wilson p 2-30: there were negotiations which fell through when he discovered green 4 was not to be closed.  (It has not been closed: Gilbert p 4-62.)

[22] He is an employee of the club: Gilbert p 4-36,  He and his offsider are paid hourly, and presumably the club pays for the consumables: Gibbs p 3-74.  Gilbert said the total cost was higher: p 4-35.

[23] Wilson p 36, p 2-20.

[24] See also Mrs Gilbert p 3–86. 

[25] In the light of over 50 years’ experience of gardening, I find this very difficult to accept. 

[26] For example paragraphs 14(e), (h), (m) and (n). 

[27] Exhibit 1 tab 12. 

[28] That is, play was changed from east west to north south: Wilson p 27.

[29] Mr Wilson said that this was because Friday 29 August was a public holiday: p 45 (Gold Coast show day: Gov’t Gazette 7 December 2007 p 1971.)  There was only one game that day: Jerinic p 2–115.

[30] Jerinic p 2–98; McCloskey p 3-64, although he may not be an unbiased witness: Wilson p 2-16.

[31] That would not be the case if the jack had already been displaced to the side, but an attempt to draw to a displaced jack could put a bowl further off the centre line of a rink, depending on the hand.

[32] He said that they still get the odd bump, and that people will still complain, mainly when they lose: p 3-64.  Others spoke of bowlers always complaining: Wilson p 2-15; Gilbert p 4-48. 

[33] Mrs Gilbert p 3-87. Mr Wilson was not happy about this: p 2-28. 

[34] Wilson p 45, 46; Mrs Gilbert p 3-86, 98. 

[35] On its face the tab 20 list was not what the club had asked for, and Mrs Gilbert could have rejected it for this, and then thought nothing more about it. 

[36] Wallace-Smith v Thiess Infraco (Swanston) Pty Ltd [2005] FCAFC 49 at [131].

[37] Seddon & Ellinghouse, Cheshire & Fifoot’s Law of Contract (9th Australian Ed. 2008) para [21.3].

[38] Wilson p 2-21.

[39] St George Bank Ltd v Perpetual Nominees Ltd [2011] 1 Qd R 389 at [58]; Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 413. 

[40] Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd [2009] QSC 262. 

[41] For “receive” see CMF Projects Pty Ltd v Masic Pty Ltd [2014] QSC 209 at [25]. 

[42] Gilbert p 4-34.  The club changed the locks on the greenkeeper’s shed on 31 August 2008: p 4-101. 

[43] See also the analysis in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, especially at [44] which used “renunciation” for repudiation in this sense.

[44] DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 431.

[45] Shevill v Builders Licensing Board (1982) 149 CLR 620 at 633-4; Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 32-3; Wash Investments Pty Ltd v SCK Properties Pty Ltd [2016] QCA 258 at [32].  In that case it was held that there was repudiation of a lease by a tenant who had written asserting that unless the landlord would agree to a reduction in rent of the order of 30 per cent the tenant would cease trading in the premises and declare bankruptcy: [33].

[46] DTR Nominees v Mona Homes (supra) at 432-3, Highmist Pty Ltd v Tricare Ltd [2005] QCA 357 at [58].

[47] Particulars were given of these alleged breaches by letter on 26 June 2014, but the particulars were drafted in such sweeping terms that they were largely useless as particulars, and certainly failed to give any proper notice of the case the defendant actually ran at trial in relation to these matters. 

[48] Particularised as the greens being patchy, lumpy, not level and tracking, and gardens and lawns overgrown, untidy, and unkempt.  I deal with all of these below. 

[49] The effect of this was that rolling a kitty in either direction would mean rolling it across areas of wear caused by play in the other direction, if the rinks were always laid out in the same place rather than being moved from side to side so as to spread the wear.

[50] As supported by the evidence of Mr Gibbs (p 3-71) although he conceded this was not apparent on visual inspection: p 3-77.

[51] McCloskey p 3-61.  The plinth was what separated a green proper from the ditch that surrounded it. 

[52] McCloskey p 3-63.  He liked to play on them in competitions, as they gave the home team an advantage.  That green was not too bad if played in the other direction: p 3-63. 

[53] The plaintiff had to supply fertiliser under its contract, but Mr Gibbs can use fertiliser at the club’s expense. 

[54] Foreshore p 2-42; Robinson p 2-54 (better than most); Gardner p 2-35, who went there from another club because of its good greens; see also the plaintiff’s then assistant greenkeeper, Mr Grimley: the greens were in excellent condition: p 94. 

[55] UCPR r 429.  The document is Exhibit 1 tab 32, my ruling is at p 54.  But the fact that Mr Wilson was told this would have encouraged him to reject criticism of the condition of the greens: p 50.

[56] The defendant’s witnesses spoke very highly of him.  See Koorey p 3-58.  He may be an exceptionally good greenkeeper. 

[57] Watkins p 2-77.  Mr Wilson denied that this occurred: p 2-19. 

[58] There was a meeting with Mr Wilson about his letter Exhibit 1 tab 12, when Mr Wilson said there was a discussion: p 36.  Mr Jerinic spoke about the letter, but not any meeting. 

[59] In summer grass will be denser, and will grow back faster after the morning cut, and the more grass on the green the more it will slow down the bowl. 

[60] Particulars alleged directions “to rectify the problems with the greens”, to keep the whole area “free from debris and rubbish”, and to provide copies of records and documents “it was required to keep”.

[61] This was a standard, and meaningless, particular given in respect of almost every breach alleged in the defence.  If true, the plaintiff would have effectively done nothing for 4.5 months. 

[62] Gardner p 2-36; Foreshore p 2-43; Robinson p 2-54; Gilbert p 4-94. 

[63] See also Jerinic p 2-95: surrounds are lawns around greens.

[64] Gardner p 2–35, 36; Foreshore p 2–43; Robinson p 2–54.

[65] For example, Gilbert p 4-94: rinks marked, boundaries pegged, jacks and mats positioned each day. 

[66] Gilbert p 4-83; Mrs Gilbert p 3-100.  She put up signs about this: p 3-101. 

[67] Gilbert p 4-7, p 4-104.  He said they were emptied only about once per week – p 4-7 – but later, emptied some days, just not every day: p 4.95.   

[68] Foreshore p 2-43; Robinson p 2-54 “I would guess so”; McCloskey did not know: p 3-67. 

[69] Gilbert p 4-10, 4-15; Mrs Gilbert p 3-89, 3-102. 

[70] Gardner p 2-40; Robinson p 2-55; Mrs Gilbert p 3-100: Quite a few bowlers smoked; Exhibit 24 showed an area below a smoking area: p 3-102.  Mr Gilbert spoke of butts accumulating after barefoot bowls days: p 4-15. 

[71] Preparing the greens in the morning took him 2.5 hours: p 28.

[72] Wilson p 26, p 92.

[73] Foreshore p 2–43; Robinson p 2–54; Gardner p 2–36: scoreboards generally ok.  McCloskey p 3-67: scoreboards cleaned. 

[74] Exhibits 6, 7, 8.  Lists of chemicals he prepared were at Exhibit 1 tab 19, tab 21. 

[75] These lists were not always consistent with the entries in Mr Wilson’s work diary: Wilson p 2 – 23 – 28; but see p 2 – 30.

[76] Wilson p 44-46; Jerinic p 2-92; Gilbert p 4-24, 25; Exhibit 1 tab 17, 18. 

[77] Exhibit 20, which refers to the club keeping a register of chemicals used on the greens as part of a “Risk Management Manual,” presumable to identify potential hazards from them.  It is dated 18 August 2008, after the issue had arisen: Exhibit 14. 

[78] Gilbert p 4-4, p 4-9, p 4-16.  See also Mrs Gilbert p 3-89.

[79] Exhibit 1, Tab 12.  Mr Jerenic in his evidence suggested that the improvement referred to was in fact the work of the volunteers.  English was not his first language, but he did not suggest that this part of the letter was written with sarcasm.  I think it more likely that the letter was accurate at the time it was written, though this part of its contents is now inconvenient for the defendant.

[80] Mr Gilbert conceded the machinery was put away each day: p 4-96. 

[81] Gilbert p 4-4, p 4-16; Mrs Gilbert p 3-89; Jerinic p 2-96; Wilson p 100-1. 

[82] Wilson p 26, p 90: he hosed down on Mondays, and wiped seats when required.  Gilbert p 4-7, Jerinic p 2-97: seats were not wiped down. 

[83] It was not suggested in the course of evidence that the existence of any restrictions on the use of tap water in the relevant period meant that the plaintiff’s performance of this contractual obligation was prevented by force majeure.

[84] See also Gilbert p 4-96: a disgrace. 

[85] An arrangement which is obviously more efficient than first putting everything away.

[86] Gibson p 4-22: Mr Wilson made a rude remark to a woman at the club, but it is not clear that she was not herself a member.  She was referred to in particulars as a member. 

[87] McCloskey, p 3-68.

[88] That the assistant worked about four hours a day four or five days a week was confirmed by him: Grimley p 96.  He worked longer hours if Mr Wilson was away.

[89] Jerinic p 2-88; Gilbert p 4-5: Wilson left after play started in the mornings, and returned about 12 noon.  Mrs Gilbert p 3-88: not in his shed on two occasions when she looked. 

[90] Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227; BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. 

[91] The locks were changed on the greenkeeper’s shed, and he was not given a key: Wilson p 55; Grimley p 96; Gilbert p 4-101, 102: He was told the contract had been terminated. 

[92] Robinson v Harman (1848) 1 Ex 850 at 855; 154 ER 363 at 365; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80.

[93] Amann Aviation, at p 80-1.

[94] Cardwell Shire Council v Calabrese (1975) 49 ALJR 164 at 165.

[95] Greenridge Botanicals (Aust) Pty Ltd v Nevin [2000] QCA 498.

[96] Apart from one minor adjustment to one aspect of the calculation at trial, which was uncontentious.

[97] Randazzo v Golding [1968] Qd R 433; Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 at 604.

[98] Relwood Pty Ltd v Manning Homes Pty Ltd [1990] 1 Qd R 481.

[99] Devpro v Seamark Pty Ltd [2007] QCA 241 at [35]. The court went on to reject an argument based on authorities where an obligation to pay a reasonable or fair amount had been implied, on the basis that in those cases what was a reasonable or fair amount could be objectively ascertained, or there was a mechanism for determining a particular figure, not present in that case. 

[100] DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 429. 

[101] Winks v W H Heck & Sons Pty Ltd [1986] 1 Qd R 226 at 238; Australian Energy Limited v Lennard Oil NL [1986] 2 Qd R 216 at 237. 

[102] Amann Aviation (supra) at p 94, p 103; Dymocks Holdings Pty Ltd v Top Ryde Booksellers Pty Ltd [2000] NSWSC 795 at [23]. 

[103] Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Ltd [2017] QCA 254 at [13], [23].

[104] Exhibit 10 appendix 12, p 165. 

[105] Exhibit 10 p 18. 

[106] For comparison, Otto $209,250: Exhibit 10 para 63; Benjamin $210,889: Exhibit 19 para 6.5. 

[107] This issue became more significant in relation to the option period, but in the circumstances it is unnecessary for me to deal with that period.

[108] Otto Exhibit 10 paras 73, 74; Benjamin Exhibit 19 para 6.10. 

[109] This is the figure derived by Mr Benjamin in Exhibit 19 p 10. 

[110] Figures from Exhibit 18, Schedule 1. 

[111] Grimley p 96: about $416 per week, or $21,632 for a full year at that rate. 

[112] If there was a saving in wages anyway as a result of the assistant greenkeeper being put on a sub-contract, this figure would have been lower but the saving on sub-contractor payments would have been higher.  Overall therefore this represents a reasonable estimate of the saving on other labour.

[113] $26,718 plus $2,415 plus $9,050

[114] $8,175 plus $736 plus $22,650

[115] The contract with the Gold Coast City Council Exhibit 1 tab 33, which did not produce significant income until 2010: Wilson p 2-11.  This would have occurred anyway. 

[116] $90,660 + $27,246 + $13,000 + $2,500. 

[117] For example, see Benjamin p 3-38. 

[118] Mr Otto mentioned this approach at Exhibit 10 para 45, but appears to have rejected it. 

[119] As I understand the position, the diminishing value method is a legitimate way of calculating depreciation for tax purposes.  It also seems appropriate to me anyway if the motor vehicles were purchased new, since new vehicles commonly depreciate quickly at first. 

[120] Exhibit 2 tab 4 p 75. 

[121] Obviously it was, since the plaintiff made a profit even after all expenses were paid for, including those not specific to the contract with the defendant, but I do not know how profitable. 

[122] Mr Benjamin said they were in fact loss making (p 3-38) but that was on a basis of full allocation of costs, not just the extra cost of doing that work. 

[123] At p 56 Mr Wilson spoke about the Bulimba Bowls Club, but did say when he began to work there.  This club, from the internet, is actually located at Balmoral, has only two greens, and is still in existence.  The Balmoral Club, which was actually at Morningside, also had two greens (Google Earth) but closed in early 2014: Quest Newspaper article, February 2014.  I assume the reference to the Bulimba club was an error by Mr Wilson.   

[124] Exhibit 18, paras 5.1, 5.2(1); Benjamin p 3-51. 

[125] Benjamin p 3-36.  See also Exhibit 18 table 3. 

[126] That depends on the terms of the particular contract.  For example the Lakeland Villas contract: Exhibit 1, Tab 34 provided for mower fuel and pesticides to be paid for by the customer, not the plaintiff.

[127] I note that the motor vehicle expenses increased in 2009, and even further in 2010 and in 2011.

[128] Exhibit 19 para 2.1.  I have explained why I disagree with his approach to costs saved.

Close

Editorial Notes

  • Published Case Name:

    Mr Green Pty Ltd v Broadbeach Bowls & Community Club Inc.

  • Shortened Case Name:

    Mr Green Pty Ltd v Broadbeach Bowls & Community Club Inc.

  • MNC:

    [2018] QDC 34

  • Court:

    QDC

  • Judge(s):

    McGill DCJ

  • Date:

    09 Mar 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216
2 citations
Jump To
Cite 1 - [1986] 2 Qd R 216
Cite 2 - [1986] 2 Qd R 216
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600
2 citations
Jump To
Cite 1 - (1982) 149 CLR 600
Cite 2 - (1982) 149 CLR 600
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
2 citations
Jump To
Cite 1 - (1977) 180 CLR 266
Cite 2 - (1977) 180 CLR 266
Cardwell Shire Council v Calabrese (1975) 49 ALJR 164
2 citations
Jump To
Cite 1 - (1975) 49 ALJR 164
Cite 2 - (1975) 49 ALJR 164
Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153
2 citations
Jump To
Cite 1 - (1988) 14 NSWLR 153
Cite 2 - (1988) 14 NSWLR 153
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
2 citations
Jump To
Cite 1 - [1984] 1 Qd R 404
Cite 2 - [1984] 1 Qd R 404
CMF Projects Pty Ltd v Masic Pty Ltd [2014] QSC 209
2 citations
Jump To
Cite 1 - [2014] QSC 209
Cite 2 - [2014] QSC 209
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
4 citations
Jump To
Cite 1 - (1991) 174 CLR 64
Cite 2 - (1991) 174 CLR 64
Cite 3 - (1991) 174 CLR 64
Cite 4 - (1991) 174 CLR 64
Devpro (a firm) v Seamark [2007] QCA 241
2 citations
Jump To
Cite 1 - [2007] QCA 241
Cite 2 - [2007] QCA 241
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 C.L.R 423
4 citations
Jump To
Cite 1 - (1978) 138 C.L.R 423
Cite 2 - (1978) 138 C.L.R 423
Cite 3 - (1978) 138 C.L.R 423
Cite 4 - (1978) 138 C.L.R 423
Dymocks Holdings Pty Ltd v Top Ryde Booksellers Pty Ltd [2000] NSWSC 795
2 citations
Jump To
Cite 1 - [2000] NSWSC 795
Cite 2 - [2000] NSWSC 795
FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd (1993) 2 VR 343
2 citations
Jump To
Cite 1 - (1993) 2 VR 343
Cite 2 - (1993) 2 VR 343
Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd [2009] QSC 262
2 citations
Jump To
Cite 1 - [2009] QSC 262
Cite 2 - [2009] QSC 262
Greenridge Botanicals (Aust) P/L v Nevin [2000] QCA 498
3 citations
Jump To
Cite 1 - [2000] QCA 498
Cite 2 - [2000] QCA 498
Cite 3 - [2000] QCA 498
Hadoplane Pty Ltd v Edward Rushton Pty Ltd[1996] 1 Qd R 156; [1995] QCA 446
2 citations
Jump To
Cite 1 - [1996] 1 Qd R 156
Cite 2 - [1996] 1 Qd R 156
Highmist Pty Ltd v Tricare Ltd [2005] QCA 357
2 citations
Jump To
Cite 1 - [2005] QCA 357
Cite 2 - [2005] QCA 357
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
2 citations
Jump To
Cite 1 - (2007) 233 CLR 115
Cite 2 - (2007) 233 CLR 115
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
2 citations
Jump To
Cite 1 - (1990) 169 CLR 638
Cite 2 - (1990) 169 CLR 638
Nosic v Zurich Australian Life Insurance Ltd [1997] 1 Qd R 67
2 citations
Jump To
Cite 1 - [1997] 1 Qd R 67
Cite 2 - [1997] 1 Qd R 67
Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Limited[2018] 2 Qd R 584; [2017] QCA 254
2 citations
Jump To
Cite 1 - [2017] QCA 254
Cite 2 - [2017] QCA 254
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
2 citations
Jump To
Cite 1 - (1985) 157 CLR 17
Cite 2 - (1985) 157 CLR 17
Randazzo v Goulding [1968] Qd R 433
2 citations
Jump To
Cite 1 - [1968] Qd R 433
Cite 2 - [1968] Qd R 433
Relwood Pty Ltd v Manning Homes Pty Ltd [1990] 1 Qd R 481
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 481
Cite 2 - [1990] 1 Qd R 481
Robinson v Harman (1848) 1 Ex 850
2 citations
Jump To
Cite 1 - (1848) 1 Ex 850
Cite 2 - (1848) 1 Ex 850
Robinson v Harman (1848) 154 ER 363
2 citations
Jump To
Cite 1 - (1848) 154 ER 363
Cite 2 - (1848) 154 ER 363
Santos Limited v Fluor Australia Pty Ltd [2016] QSC 129
2 citations
Jump To
Cite 1 - [2016] QSC 129
Cite 2 - [2016] QSC 129
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
2 citations
Jump To
Cite 1 - (1994) 179 CLR 332
Cite 2 - (1994) 179 CLR 332
Shevill v Builders' Licensing Board (1982) 149 CLR 620
2 citations
Jump To
Cite 1 - (1982) 149 CLR 620
Cite 2 - (1982) 149 CLR 620
Shirlaw v Southern Foundries [1939] 2 KB 206
2 citations
Jump To
Cite 1 - [1939] 2 KB 206
Cite 2 - [1939] 2 KB 206
St George Bank Ltd v Perpetual Nominees Limited[2011] 1 Qd R 389; [2010] QSC 57
2 citations
Jump To
Cite 1 - [2011] 1 Qd R 389
Cite 2 - [2011] 1 Qd R 389
Wallace-Smith v Thiess Infraco (Swanston) Pty Ltd (2005) FCAFC 49
2 citations
Jump To
Cite 1 - (2005) FCAFC 49
Cite 2 - (2005) FCAFC 49
Wash Investments Pty Ltd v SCK Properties Pty Ltd [2016] QCA 258
2 citations
Jump To
Cite 1 - [2016] QCA 258
Cite 2 - [2016] QCA 258
Winks v W.H. Heck & Sons Pty Ltd[1986] 1 Qd R 226; [1985] QSCFC 119
2 citations
Jump To
Cite 1 - [1986] 1 Qd R 226
Cite 2 - [1986] 1 Qd R 226
Zeke Services Pty Ltd v Traffic Technologies Ltd[2005] 2 Qd R 563; [2005] QSC 135
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 563
Cite 2 - [2005] 2 Qd R 563
Zucal v Harper (2005) 29 WAR 563
2 citations
Jump To
Cite 1 - (2005) 29 WAR 563
Cite 2 - (2005) 29 WAR 563

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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