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- Unreported Judgment
MAGISTRATES COURT OF QUEENSLAND
Jovelands Pty Ltd v Doyle  QMC 12
Jovelands Pty Ltd ABN 84 535 235 895
Martin Charles DOYLE1ST Defendant
Maryanne Rhyl DOYLE2nd Defendant
15 September 2020
14 February 2020
EVIDENCE — Reliance on spoken words — Standard of proof.
CONTRACTS - Formation - oral contract - intention to create legal relations – promises made – sale of goods - performance of work - nature of friendship - reasonable person
LIMITATION OF ACTIONS - Whether claims statute‑barred - Rationales for existence of limitation periods
CONTRACTS — Parties — Privity — Agency – whether husband acted as agent for his wife – whether the wife consented to, and authorised, her husband to act on her behalf in relation to the alleged agreement
Mr. R Cameron for the Defendants
Mr K Bressington, Solicitor, Bressington & Partners for the plaintiff
CQ Legal for the defendants
- The plaintiff sues the defendants for goods sold namely conveyor belt and work performed being labour supplied for the erection of the conveyor belting around the horse stables and yards at the defendants’ property at 131 Murphy Drive. Glenlee.
- The conveyor belt consisted of 330 metre roll and 30 metre at $20 per metre and 50 hours labour at $40 per hour.
- The defendants deny the existence of any contract, and in the alternative, say that if there was such an arrangement between them it arose out of their close personal friendship and was made in circumstances in which the Court would not impute to the parties an intention to enter into contractual relations and further the claim is statute-barred under the Limitation of Actions Act 1974.
- The burden of proof lies with the plaintiff and the standard of proof is on the balance of probabilities.
- The plaintiff called Christopher John GLAZBROOK and Peter Hugh GREEN to give evidence and the defence called both defendants Martin Charles DOYLE and Maryanne Rhyl DOYLE.
- I also bear in mind what was said inFox v Percy (2003) 214 CLR 118;  HCA 22 atabout the preference for reasoning to a decision, “as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”. There is precious little in the present case falling under these three rubrics.
- The resolution of the relevant factual disputes in this matter will turn, principally, on the reliability and credibility of Chris Glazbrook and Martin Doyle. Both gave evidence about conversations of critical transactions, based on recollection, which was unaided by contemporaneous records, some years after the conversations had occurred, and in the context of these proceedings. The failure to keep proper records also leads to a degree of scepticism in respect of both.
- Where there is no written agreement, the task of determining the characterisation, as a matter of law, of the commercial relationship between the parties, involves an examination of their words and conduct, with a view to objectively ascertaining their intentions as a matter of reasonable inference from their actions: Christian v Cooper  QSC 224 at 
- I set out some principles regarding the assessment of the evidence and the credibility of the witnesses.
- Dixon CJ in Jones v Dunkel (1959) 101 CLR 298 at 305;  HCA 8, noted that “[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied” (a statement cited with approval by the majority in West v Government Insurance Office of New South Wales (1981) 148 CLR 62 at 66;  HCA 38 ).
- In assessing the evidence, written and oral, what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56 at 69;  FCA 1123 at  should be noted:
“... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw  HCA 34 ; (1938) 60 CLR 336 at 361-2).”
- McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315, observed at 318-319:
“Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances … Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”
- In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime  NSWSC 813, at -. However, as McLelland CJ in Eq also pointed out in the passage referred to above, the views apply to all types of litigation.
- In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466;  FCAFC 132 Weinberg, Bennett and Rares JJ, wrote, at 479-482, -, that a mere mechanical comparison of probabilities, independent of any belief in the reality of a fact, cannot justify a finding that it occurred.
- In John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell v Birketu Pty Ltd  NSWSC 1006, Hammerschlag J wrote at :
“Where a party seeks to rely upon spoken words as a foundation for a cause of action the conversation must be proved to the reasonable satisfaction of the Court. This means that the Court must feel an actual persuasion of its occurrence or its existence. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319.”
- Also, a Court in cases involving events, some of which occurred some years before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5)  FCA 1200 at  (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mis-state those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4)  WASC 160 , at  (Martin J) ; Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor  EWHC 3560 (Comm) at -.
- In Parsonage (acting as personal representative in the estate) v Parsonage & Ors  EWHC 2362 (Ch) at -, HHJ Simon Barker QC wrote:
“There is a significant body of modern judicial pronouncement, both in the cases and in commentary, providing guidance and warnings as to how to approach witness evidence.
In Onassis v Vergottis  2 Lloyds Rep 403, Lord Pearce considered the assessment of a witness' oral evidence:
‘Credibility involves wider problems than mere demeanour which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part’.
In The Ocean Frost  1 Lloyds Rep 1, at p.57, Robert Goff LJ stressed the importance of having regard to the documentary evidence, objective facts, witnesses' motives and overall (or inherent) probabilities when attempting to decide whether a and/or which witness is telling the truth:
‘Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, references to the witness' motives and to the overall probabilities can be of very great assistance to a Judge in ascertaining the truth.’
Also in 1985, Bingham J, in his article The Judge as Juror: The Judicial Determination of Factual Issues, Current Legal Problems 38, drew attention to three matters he considered important to testing the reliability of a witness's evidence: (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence to have occurred; (2) the internal consistency of the witness's evidence; and, (3) consistency with what the witness has said or deposed on other occasions. Bingham J considered the credit of a witness in matters not germane to the litigation to be of less significance, and the demeanour of a witness to be an unreliable pointer to honesty.
More recently, in Gestmin SGPS SA v Credit Suisse (UK) Ltd  EWHC 3560 (Comm), at - , Leggatt J considered problems of assessing the reliability or truthfulness of recollection evidence in commercial cases. Leggatt J's observations have been considered and applied in other types of case. After addressing the fallibility of human memory and the impact of civil litigation, which itself subjects the memories of witnesses to powerful biases, both by the processes involved in preparing witness evidence and, in particular, where the witnesses have a stake in the litigation, Leggatt J concluded that the best approach for a trial judge to adopt is to base factual findings on documentary evidence and known or probable facts and inferences to be drawn therefrom. The purpose of witness evidence, written and oral, in a trial is more to subject the documentary evidence to scrutiny and to evaluate the witness's motivations, personality and working practices.
Also relevant, in my view, to the evaluation of a witness's evidence is the non-exhaustive, but telling, list of indicators identified by Lewison J in Painter v Hutchinson  EWHC 758 (Ch) at . Indicators of unsatisfactory witness evidence include: evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for documentation (pleadings and witness statements), disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence, and selective disclosure.
This selection from the authorities seems to me to demonstrate an established approach to fact finding. The court takes as a platform for fact finding reliable contemporaneous documentary evidence. It adds to that known, established or agreed facts, probable facts (both inherently probable and by inferences properly drawn from known, established or agreed facts), and then builds further with witness evidence which is consistent or compatible with that underlying body of reliable documentary evidence and is not tainted or flawed by other indicators of unreliability.”
- I should also refer to a paper by Mark L Howe and Lauren M Knott, “The Fallibility of Memory in Judicial Processes: Lessons from the past and their Modern Consequences” (2015) Memory 2015 ; 23(5) 633-656. In the introduction, the authors, who are academic psychologists, wrote:
"When memory serves as evidence, as it does in many civil and criminal legal proceedings, there are a number of important limitations to the veracity of that evidence. This is because memory does not provide a veridical representation of events as experienced. Rather, what gets encoded into memory is determined by what a person attends to, what they already have stored in memory, their expectations, needs and emotional state. This information is subsequently integrated (consolidated) with other information that has already been stored in a person's long-term, autobiographical memory. What gets retrieved later from that memory is determined by that same multitude of factors that contributed to encoding as well as what drives the recollection of the event. Specifically, what gets retold about an experience depends on whom one is talking to and what the purpose is of remembering that particular event (e.g., telling a friend, relaying an experience to a therapist, telling the police about an event). Moreover, what gets remembered is reconstructed from the remnants of what was originally stored; that is, what we remember is constructed from whatever remains in memory following any forgetting or interference from new experiences that may have occurred across the interval between storing and retrieving a particular experience. Because the contents of our memories for experiences involve the active manipulation (during encoding), integration with pre-existing information (during consolidation), and reconstruction (during retrieval) of that information, memory is, by definition, fallible at best and unreliable at worst."
- Because it may be relevant, particularly to some of the evidence, what O’Loughlin J had written in Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1 ;  FCA 1084 , at  and  is relevant:
“Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions.
A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected.”
- What Kirby J, although in dissent, wrote in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 ;  HCA 48 , at -, must also be borne in mind:
“… Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties’ morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that the falsehoods be ignored as irrelevant or immaterial to the decision-maker’s ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned.
Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of no real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law.” (Footnotes omitted)
- In other words, a lie does not necessarily prove the opposite of the lie even though, depending on the subject matter and its significance in the case, it may indicate a consciousness on the part of the witness that the truth would not have assisted her or his case, or may amount to evidence that is corroborative of other evidence: Tobin v Ezekiel (2012) 83 NSWLR 757 at 775;  NSWCA 285, at .
- Without limiting the matters that the court may take into account, I have also taken into account the nature of the causes of action and the defences, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged.
- Finally, I should refer to the relevance of post contractual conduct where there is an oral contract, and what Sackar J wrote in Diransson Pty Ltd v Hassan El Dirani  NSWSC 617, at -:
“In addition with oral contracts, unlike written contracts, post contractual conduct if objectively sustainable may be relied upon not only to prove the existence of a contract but in addition its terms (see e.g. Australian Estates v Palmer  NSWCA 11, 50; Re Centura Global Holdings Pty Ltd (2016) 111 ACSR 185;  NSWSC 62 -; Gestion Pty Ltd v Kit Digital Aus Pty Ltd (in liq)  NSWSC 1547 ).
However post contractual conduct can be a two edged sword. Whilst it may be that post contractual conduct points either to the existence of a contract or one of its terms, a failure to complain for example may have the inverse consequence. In other words, if a person asserts a cause of action based on reliance upon certain contractual relations, but then failed in circumstances where it might have been thought appropriate to complain about the way in which they were being treated, the absence of the complaint may well amount to an admission that no contract or no promise of the sort alleged was made in the first place (see e.g. Textralian Enterprises Pty Ltd v Perpetual Trustees Victoria Ltd  NSWCA 176 ; Raphel Shin Enterprises Pty Ltd v Waterpoint Shepherds Bay Pty Ltd  NSWSC 743 ).”
Christopher John GLAZBROOK
- Chris Glazbrook testifies he is a director of Jovelands Pty Ltd which buys and sells refurbished mining machinery, conveyor belt, property development and safety training. It buys conveyor belt, refurbishes it and sells it to rural industry, secondary industry and the mining industry.
- He indicates for primary producers it stops for instance cattle and horses getting bruised.
- The Doyle’s were his next-door neighbours at Glenlee and had a 3-acre block like his with house, carport, couple dog sheds and stables for 3 horses.
- He swears that has lived at Glenlee since 2008.
- He states they had a good relationship with the Doyle’s with occasional BBQ and beer. He says they had no falling out.
- He had business dealings with Mr Doyle as Mr Doyle had a stump grinding business and he was doing property development, refurbishing houses, buying houses and subdividing. Some properties needed stumps removed and Martin did the business for him. Martin would send and invoice to him and he would pay.
- He says he paid Marty over 5 years somewhere between $4 and $5000.
- He states the Doyle’s were involved in pony club with jumps and dressage arenas set up on their property and would see them leave with horses Saturdays and Sundays. He also saw them performing at the Cave show and other shows participating in events.
- Mr Glazbrook indicated he stored conveyor belts at a property on 5 acres at Blackwater as well as on his property at 129 Murphy Drive, Glenlee.
- He and Martin had spoken about their work and Chris had taken Martin to his Blackwater shed and saw his stock.
- As to selling the conveyor belt, Chris states Mr Doyle, after the barbecue or beer, said that he would like to purchase some to put up around his stables, in his sheds, protect his horses from the fences and bruising. And we went from there.
- He went over to Martin’s property. He took a measuring wheel and measured the area Martin wanted to do. Chris worked out it was probably just under 200 metres and Martin said, “Well if we can bring some more belt in than that, that will do that job and I’ve got a lot of friends and a lot of mates in the pony club would be interested in buying the excess.”
- Chris told Martin it would cost $20 a metre and he was happy with that.
- Mr Glazbrook in his testimony indicates the rolls of belt come in different sizes. A roll of 330 metres costs $6000 plus GST. For a 1.5 metre wide belt of 30 metres was $20 a metre and was to be used on an existing little stable at the end of the carport that had raw iron facia boards to protect the horses when leaning over from being cut in the chest.
- The small roll was on Mr Glazbrook’s property at 129 Murphy Drive.
- These conversations took place a number of times in 2010.
- They also discussed how the work would be done.
- As to the labour cost in answer to the question:
And did you discuss a price for that?‑‑‑For me to do the labour on that would be $40 an hour.
And did he offer any objection?‑‑‑No.
- He testifies the price was discussed in 2010/2011.
- His claim is for 50 hours works but estimates he did 70, 80 hours.
- Mr Glazbrook arrange for transport of the large conveyor belt roll in from Blackwater on a McAleese Transport. He met them at the gate of 131-135 Murphy Drive let them in and unloaded the belt 60, 70 metres in the back paddock.
- Mr Doyle wasn’t home, but he saw Mrs Doyle standing at the kitchen window watching and on way out waved and said “Bye, we’re out of here.”
- A photograph (Exhibit 2) was tendered with Mr Glazbrook testifying that the conveyer belt was delivered September/October 2012 as he paid the McAleese bill on 17th October. He never onforwarded the bill to the Doyle’s’.
- He testifies the work was to be done when Mr Doyle was free as he was working 2 jobs, had an ailing father and they would try to make arrangements a week or so in advance. Most times failed because of weather. Sometimes no work was done for months.
- This agreement was reached during discussions and before the conveyor belting was brought in 2010/2011.
- Mr Glazbrook indicates he was in a motor vehicle accident in October 2015 which slowed him down and he discussed that with Marty who told him Marty was separating from his wife and they agreed to end the contract.
- In February 2016 at Glazbrook’s property at 129 Murphy Drive Glenlee he again spoke to Mr Doyle and Doyle told Glazbrook he had spoken to hie wife about separation and how much money was owed to who. She was unhappy that she owed $10,000 and something dollars and asked for an invoice for the work done.
- Glazbrook gave an invoice which copy is in evidence as exhibit 5. Marty looked at the invoice and said “That looks about right. There’s not a problem.” He then said: “I can’t pay you at the moment, I haven’t got any money. We’re going to have a separation.” Marty said: “I can’t pay you until the house is sold.” He said: “When the house is sold I will guarantee I’ll pay you.”
- Glazbrook did not have any further discussions with Marty about the invoice.
- Glazbrook testifies he believe Marty Doyle left the property in May/June 2017 and Mrs Doyle stayed on the property.
- Glazbrook also testifies he did not ever have a discussion at any time with Mrs Doyle about the work or the account as the agreement was between he and Mr Doyle.
- Glazbrook believes the Doyle’s property was sold in April/May 2019.
- He also testifies that at under half the roll of conveyor belting was used and Martin left in May jane July 2017, Glazbrook and his wife went on holidays for 2 or 3 weeks and came back and saw the rill was gone.
- Glazbrook further testifies that every job they did and every job Martin did for him he tendered an invoice and got paid.
- In cross examination it was put that in about late 2009 and early 2010 that he said to Marty, “Look, I can give you some old conveyor belt.” didn’t say anything about paying for it. Glazbrook denied this.
- It was also put that he and Marty that Glazbrook came over and said the conveyor belt has arrived and they went and picked up the 4 tonne roll of conveyor built and rolled it off the truck correct. Glazbrook denied this.
- It was also put You came over. Mr Doyle was there. You saw the netting and you said to him words to the effect, “Marty you should put some conveyor belting up there, and – in and around the stables. Get rid of the netting. It will look after the kids’ horses.” Do you recall that?‑‑‑No.
- Mr Doyle said to you that that would – he couldn’t afford to do that. And you then said, “Well, look, I’ll give you some.” You said, “I’ve got plenty of old second-hand conveyor belt lying around.” That’s what you told him, didn’t you?‑‑‑No.
- Glazbrook denies when put that that he did not say anything about Marty paying for it.
- He also denied going and picking the conveyor belt up in his four-tonne truck.
- He also denies telling Martin that he would give him some old second-hand conveyor belt.
- Glazbrook did not render an invoice after delivering the conveyor belt as he believes the job was supply and install. He agreed there was no end date to have the work completed and he would render an invoice when all the work was done.
- He says Martin agreed to this before the conveyor belt was delivered.
- When it was suggested that out of friendship Glazbrook gave Doyle the material replied: “Mo, not true. Because Mr Doyle got paid for every job he done. There’s no such thing as I pay him for every job and whatever I do for him is free. It doesn’t work like that.”
- When put, Glazbrook denied the conveyor belt was not in a good condition and there were large sections of the belt that could not be used and there was never ant agreement that Glazbrook would be paid for helping Doyle. When cross examined about the number of hours worked, Glazbrook indicates no records were kept.
- When cross-examined about when the work was completed, Glazbrook denied it was all completed by early 2013.
- Glazbrook testifies the shed Martin and Green built was built December 2013/January 2014.
- Mr Glazbrook indicates the reason he put the invoice in both Maryanne and Martin Doyle’s names was because Martin wanted to pay the bill out of his company and claim the tax with M and M Stump grinding.
- He also stated Martin wanted the invoice in both names because of the breakup of the marriage.
- As to interest he claimed on the invoice he does not know how he came to calculate interest and says that is a penalty for non-payment of the account.
Peter Hugh GREEN
- Peter Green’s evidence is that he helped build a shed on the Doyle’ property and saw Martin and Chris putting in posts, cutting out posts and slotting them in to fit the conveyor belt. one day between May and September 2014. He denied in cross examination that the shed was completed prior to December 2013.
Maryanne Rhyl DOYLE
- Maryanne Rhyl DOYLE evidence is that conveyor belt was installed on her property prior to October 2010 and as able to relate that date because of photos (Exhibit 6) taken on 31st October 2010 of a pony, Gypsy, in a shelter lined with conveyor belt.
- The pony was sold in December 2010 and an account was tendered (Exhibit 8) indicating this.
- Mrs Doyle also swears she did not have any discussions with Mr Glazbrook about any agreement to purchase material.
- She says the work was all completed prior to March 2014 and can recall this by reference to the erection of Shed 2 which Martin and Peter Green erected.
- Maryanne Doyle first became aware of that payment was sought when a letter and document arrived by registered post in May 2019 (Exhibit 11).
- She swears that she had no idea of any agreement between her husband and Mr Glazbrook and her husband had no authority to or permission to enter into any contract on her behalf.
- Mr Doyle left the matrimonial home on 23rd September 2017 and the property went under contract for sale in April 2019.
- In cross examination Mrs Doyle indicates she sold the leftover conveyor belting for $500 prior to moving.
- She also states that if there had been a request for payment, Martin would have spoken to her about it.
- She also does not recall when the conveyor belt was delivered whether Martin was present.
Martin Charles DOYLE
- Martin Charles DOYLE testifies he first met Christian GLAZBROOK around 2007, 2008 when he purchased property beside his at 135 Murphy Drive.
- He describes the relationship with Mr Glazbrook as friendly and had drinks together once or twice a week and helped each other out on properties when he was home from work.
- He recalls having a conversation with Glazbrook about using conveyor belt for the horse yards and said Glazbrook stated: “I might have some old conveyor belt laying around that I could probably give you.”
- Although he is not sure of the date he thinks he got the conveyor belt around the end of 2010 beginning 2011.
- He describes the belt was loaded on Glazbrook’s 8 to 10 tonne tray back body truck with a forklift at his depot. He was a passenger in the truck.
- He asserts there was no mention of costs.
- He admits Glazbrook helped him installing some of the conveyor belt. This was after he received the conveyor belt and indicates Glazbrook said “I’ll give you a hand to put it ip.” Because its pretty hard stuff to work and he had a fair bit of experience with it.
- Doyle says there were 2 rolls of conveyor belting provided, a larger roll for the stables and smaller one for the horse float.
- Mr Doyle states there was no mention about paying for the 6 metre material.
- When asked did you ever offer Mr Glazebrook anything for the large roll answered: “Well, when we first got it, I – he – when he mentioned it, I said, “Look, you know, we’ve got children at school and at this stage in my life, I can’t afford substantial amount of money like that to fork”, and he said, “Look, it’s just old second-hand conveyor belt”. And I said, “Well, can I give you something for it”, and he said, “No, look, it’s just old second-hand”.
- Mr Doyle says he used about 130 metres of the large roll and some of it could not be used because it was so worn.
- He says he first heard Mr Glazbrook was seeking payment when Maryanne received an registered letter containing an invoice. In June 2019.
- He also states that most of the installing of the conveyor belt had been done by the end of 2013.
- He denies there was any discussion about Glazbrook helping him.
- He also states he helped Glazbrook on his property occasionally shifting something, exchange tools and lend each other tools.
- He testifies he left Glenlee on 23rd September 2017.
- In cross-examination Mr Doyle states he first learnt that Mr Glazbrook was seeking payment when he heard from Maryanne that she had received an invoice by registered mail around June 2019.
- He denies he ever asked Glazbrook for an invoice, denies do anything to work out how much conveyor belting might need. XXXX
- When asked was there any discussion with Mr Glazbrook about Mr Glazbrook being paid for helping install the conveyor belting answered: “No. There was no mention of it at all.”
- Mr Doyle did say they helped each other if he needed a hand to shift something or they used to exchange tools, lend each other tools.
- Mr doyle does remember Glazbrook using a measuring wheel on his property to work out how much conveyor belt was required. It was about 130 metres. He agreed Glazbrook said he had a 330 metre roll at Blackwater that he could have.
- Doyle denies testifies that when put that a McAleese truck delivered the conveyor belt to his property and testifies they went in Glazbrook’s body truck and went to a depot on the southside to pick up the roll of conveyor belting.
- He cannot say exactly where the depot is and does not know the from which company.
- He later states when it was put Mcaleese delivered the roll o belt that he does not remember that and it may have happened.
- Martin Doyle has no recollection after agreeing to the work of it costing $20 metre for the conveyor belt.
- As to the invoice dated 16 february 2016, he denies Glazbrook having a discussion with him about getting an invoice so he could show Maryanne and that he was handed an invoice by Glazbrook.
- He denies telling Glazbrook that he couldn’t pay right now but will when the house sells.
- He also testifies he did not contact Glazbrook when he Maryanne contacted him after receiving the May 2019 invoice.
- He also testifies he had Peter Green help him put up a shed and paying him for his help.
- It is rare in modern commercial litigation to encounter a claim based on an agreement which is not only said to have been made purely by word of mouth but of which there is no contemporaneous documentary record of any kind. In the twenty-first century the prevalence of emails, text messages and other forms of electronic communication is such that most agreements or discussions which are of legal significance, even if not embodied in writing, leave some form of electronic footprint. In the present case, however, such a footprint is entirely absent. The only sources of evidence of what was said in the conversation on which Mr Glazbrook’s claim is based are the recollections and any inferences that can be drawn from what Mr Glazbrook and Mr Doyle later said and did. The evidential difficulty is compounded by the fact that most of the later conversations relied on by Mr Glazbrook were also not recorded or referred to in any contemporaneous document except the invoice of February 2016.
- I have no reason to think that any of the witnesses were doing anything other than stating their honest belief based on their recollection of what was said in relevant conversations. But evidence based on recollection of what was said in undocumented conversations which occurred several years ago is problematic.
- The resolution of the relevant factual disputes in this matter will turn, principally, on the reliability of Chris Glazbrook and Martin Doyle. The failure to keep proper records also leads to a degree of scepticism in respect of both.
- Naturally, I have also considered what was written inAustralian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 ;  HCA 17 , at 412, :
“Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC.”
- Chris Glazbrook, given the passage of time, had a sound memory of events but not of times. I thought he was an honest witness although I see no documents or explanation was provided as to why documentation was not provided in relation to McAleese Transport delivering the conveyor belt to the Doyle’s property. That would also have helped in the resolution of credibility issues.
- However, a copy of the Tax Invoice (Exhibit 5), dated 15th February 2016 was tendered and supports Mr Glazbrook’s evidence.
- Maryanne Doyle’s evidence was really limited to the date stamp on photographs that provides the timing of events. She was not a party to any discussions between Martin Doyle and Chris Glazbrook.
- Martin Doyle, I believe did the best he could from what he remembered and was honest. At times he gave the impression that he did not have a good memory of events and was reconstructing evidence when he uses the expression “I’m not sure”, “vaguely”, “not really”, “ don’t think that happened” or “I’m pretty sure”.
- For example, in examination in chief at page 1-59 of the transcript Mr Doyle says:
CAMERON:Do you recall having some discussions with Mr Glazbrook about using some conveyor belt material in the horse yards?
MC DOYLEVaguely. Yes.
And in cross examination at page 1-66:
BRESSINGTON:So you said earlier that you’ve got a vague recollection about this. Is it fair to say that your recollection isn’t all that good?
MC DOYLENot really, no.
- Further, at page 1-68 at 20 of the Transcript the following exchange between Mr Doyle and Mr Bressington occurred:
No. Did it concern you that the work was not going to get completed because he was injured?‑‑‑No, it didn’t concern me if the work wasn’t completed.
All right. Okay?‑‑‑But I think it was already completed then, I’m pretty sure.
- The following evidence from Mr Doyle leaves me to believe his evidence is unconvincing when he gives equivocal answers on page 1-74 of the transcript:
Bressington:So you said to me on a couple of occasions that it could have happened. I mean, that in itself shows that you accept, then, that your memory’s not so good if you’re not sure if it happened?
MC DOYLEI don’t know how to answer that, sir.
BRESSINGTON: Finally, you – I put to you that when Chris and you discussed that invoice in February ’16, you in fact said, “I guarantee that when the house is sold, you will get paid”?
MC DOYLENo. I don’t recollect that.
BRESSINGTON:Could that have happened?
MC DOYLE:No. I don’t recollect it.
BRESSINGTON:You said that you don’t remember it?
MC DOYLE:No. I don’t think that happened, sir.
Intention to Create legal Relationship
- To begin with it is important to remember what was said in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97, McHugh JA (Hope JA and Mahoney JA concurring), at 7-8, 11,110:
“It is often difficult to fit a commercial arrangement into the common lawyers’ analysis of a contractual arrangement. Commercial discussions are often too unrefined to fit easily into the slots of ‘offer’, ‘acceptance’, ‘consideration’ and ‘intention to create a legal relationship’ which are the benchmarks of the contract of classical theory. In classical theory, the typical contract is a bilateral one and consists of an exchange of promises by means of an offer and its acceptance together with an intention to create a binding legal relationship…
Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties’ subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.”
- For a contract to exist the parties to an agreement must intend to create legal relations. Usually, the presence of consideration will provide evidence of this - if the promisor has specified something as the price for the promise this - in most cases - carries with it an intention that the parties be bound. Intention remains, however, an independent requirement and must be separately demonstrated and there are cases in which consideration has been present but no contract found to exist because this pre-condition has not been fulfilled. In determining if there is contractual intent and objective approach is taken. It is trite that not every promise, however sincerely made, is legally enforceable. In Greig and Davis in The Law of Contract The Law Book Company, 1987, refer toThomas v Hollier (1984) 53 ALR 39 as indicating that, where a promise has been made as an act of friendship, something that otherwise might be classified as adequate consideration might not be so regarded.
- That is, social agreements made between friends are made without an intention of being enforceable. The majority of social and domestic agreements are not considered to be serious sufficient to influence the court that the agreement was always intended to be binding at the time.
- As Ward J explained inDarmanin v Cowan  NSWSC 1118 (at )
There is a rebuttable presumption of fact that arrangements or agreements made in a family are not intended to have legal force, the rationale being that, at the time of making the alleged promise, the parties would not have regarded their arrangements in terms of legal consequences. As her Honour also explained (at ), this presumption has been applied beyond the family context to other social and domestic arrangements.
- The presumption that, due to the nature of the relationship between the parties, they did not intend to create legal relations, has been applied beyond the family context to other social and domestic arrangements (for example,Coward v Motor Insurer’s Bureau  1 QB 259 ;Buckpitt v Oates  1 All ER 1145 .
- InTeen Ranch Pty Ltd v Brown (1995) 87 IR 308 , Handley, JA at 310 indicated that family, social, and domestic arrangements do not normally give rise to binding contracts because the parties lack the necessary intention, referring toBalfour v Balfour  2 KB 571 .
- The leading authority in Australia on social and domestic agreements is Ermogenous v Greek Orthodox Community (2002) 209 CLR 95 ;  HCA 8 . Archbishop Ermogenous was an Archbishop with the Australian Greek Orthodox Church for over two decades. He was paid a salary by the Greek Orthodox Community, which controlled all activities of the church and its clergy. At the end of his appointment the community refused to pay to him the accumulated leave (annual and long-service leave entitlements) he would have been entitled to under a legally binding contract of employment. The Supreme Court of Appeal of South Australia had presumed that an agreement involving a religious minister was not intended to create a legally binding employment contract. He succeeded at first instance but the Full Court of the Supreme Court of SA found there was no intention to create legal relations between the parties. An appeal was made to the High Court.
- A plurality of four justices of the High Court (Gaudron, McHugh, Hayne and Callinan JJ) said at  - :
“To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet “[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts”.Because the inquiry about this last aspect may take account of the subject-matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, 48not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the “intention to create contractual relations” requires an objective assessment of the state of affairs between the parties 49(as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules.” (Footnotes omitted.)
- In short, the High Court questioned ‘the utility of using the presumptions in this context’ and instead stipulated that this merely throws an onus of proof onto the party alleging that contractual relations exist. Although not entitled to rule on issues of religious doctrine, the church was not distinct from the community where proprietary and economic entitlements were concerned.
- InAshton v Pratt  NSWCA 12 , Meagher JA at  states the question of the intention of the parties to create legal relations:
“Turns on whether in the circumstances, by what they said and did, they objectively conveyed such an intention in the sense that reasonable persons in their position would have understood that to have been intended”.
- InSharp v Anderson (1994) 6 BPR 13,801 at 13,809 Santow J considered the following factors relevant to whether a statement of testamentary intention gave rise to enforceable contractual obligation:
- The number of people to whom the statement was made
- Whether the statement was in writing
- Whether there was substantial consideration offered for the promise
- The number of times the statement was made
- The context, formal or informal, in which the promise was made
- The nature of the relationship between the parties
- The certainty of the term.
- The English courts apply an objective test when determining whether the parties intended to be bound. Lord Clarke explained the approach inRTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG  UKSC 14  WLR (D) 75 ,  3 All ER 1 , (2010) 129 Con LR 1 ,  1 WLR 753 ,  2 All ER (Comm) 97 ,  1 CLC 388 ,  Bus LR 776 ,  CILL 2868 ,  BLR 337 at :
“Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations.”
- My view is that the factors to take into account in determining whether there is an intention to create legal relations include:
- Type of relationship
- Degree of closeness of relationship
- Nature of relationship at time of alleged agreement
- Intention of both parties
- Whether consensus among parties
- Extent to which expressed to definitive of concurrence – how clear terms setting out rights and obligation of parties are
- Subject matter or topic of agreement
- Way it came into existence
- Seriousness of conduct involved
- The distinction between social and domestic agreements and commercial agreements can be fine.
- I have also considered the matters of Mills, Alana v Safe, Andrew.  TTHC 66 where Ms Mills claimed her actions amounted to no more than a boyfriend assisting his girlfriend at a time her vehicle was not working in paying $14,000 for the repair of her motor vehicle. Mr Safe submitted in response that the plaintiff allocated significant resources toward the repair of her vehicle which by itself is indicative of the importance which was placed on the proper execution of the agreement.
- Her Worship Magistrate Nalini Singh cited Dugas v. Dugas 23 NBR (2d) 199 , a case where $200 which was termed by that court as “a substantial sum of money” was advanced by a father to his adult son to have a car repaired. It was held that the presumption of transactions between parents and children being gratuitous was displaced. At paragraph 15 of that judgment Hughes CJNB stated emphatically that: “While there is a presumption of fact that in certain transactions between near relatives the parties do not intend to create legal relations, I do not think there is any presumption that where a father loans a substantial sum of money to an adult son to have a car repaired or for other such purpose there is any presumption that the father has no legal rights to recover it
- Her Worship Magistrate Nalini Singh further stated: “There is also case law to the effect that if the act performed by one of the parties to the agreement is something that could be considered to be serious that it is unlikely that such a sacrifice would have been made upon reliance of a promise based on trust in the promisor to honour a promise of support, then an inference of intention will be more readily made by a court: Wakeling v. Ripley (1951) 51 SR (NSW) 183 ; Todd v. Nicol  SASR 72 ; Parker v. Clark; Tanner v. Tanner  EWCA Civ 4 ;  1 WLR 1346 ; Raffaele v. Raffaele  WAR 29 andRe Gonin (deceased)  Ch 16.
- I am also considered the following.
- The decisions of Baulkham Hills Private Hospital Pty Limited v G R Securities Pty Limited (1986) 40 NSWLR 622 and Australian Broadcasting Corporation v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540 also indicate that the magnitude, subject matter or complexity of the transaction or dispute may in appropriate cases lead to an inference that the parties’ common intention was not to be bound by any contract or agreement until a formal document was executed.
- In Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (supra) Gleeson CJ (with whom Hope JA and Mahoney JA agreed) held that ‘it is proper to have regard to communications between the parties subsequent to the date of the alleged contract to the extent to which those communications throw light upon the meaning of the language which is being considered for the purpose of determining whether it expresses an intention one way or the other upon the critical matter. At the least, such subsequent communications will often form part of the context in which the particular exchanges in question are to be evaluated’: at 550.
- As to the question of certainty, it is suggested by Greig and Davis in The Law of Contract (at 197) that the weight of the consideration (in the form of the detriment or disadvantage to the plaintiff) may compensate for a lack of clarity in the arrangements, where the substance of the promise can be ascertained, but that as the substance of the agreement becomes difficult to identify with certainty then the more likely it is the arrangement will fail for want of an intention to create legal relations (see also Carter J., Peden E and Tolhurst G.,Contract Law in Australia,5thend,Butterworths, 2007, at [8-04]).
- In Blue v Ashley  EWHC 1928 , the English High Court has applied the test in RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG  UKSC 14 for determining whether parties had intended to be contractually bound in the context of a conversation that took place during an informal business meeting held in a public house, the Horse & Groom. Factors which may tend to show that an agreement was not intended to be legally binding include where it is made in a social context, if it was expressed in vague language or that the promise was made in anger or jest. Mr Justice Leggatt reaffirmed the principle that it is possible to make a valid contract purely by word of mouth, but noted that the absence of a written record may render the existence of an agreement between the parties harder to prove. This is because ‘anyone with business experience’ generally understands the value of a written record of a commercial agreement and therefore, depending on the circumstances, the absence of a written document tends to suggest that a legally binding agreement was not intended.
- In MacInnes v Gross  EWHC 46 (QB) , this case concerned a claim for €13.5 million pursuant to an oral contract alleged to have been made over dinner in a Mayfair restaurant on March 23, 2011. Mr MacInnes claimed that the parties agreed at dinner that the he would leave his employment with an investment bank and would personally provide services to the defendant with the purpose of maximising the defendant’s return on the sale of his business. In return, he would receive remuneration calculated by reference to a formula which gave him 15 per cent of the difference between the “strike” (or target) price of the business and the actual sale price. Following the dinner, Mr MacInnes said in an email to Mr Gross, that there was an agreement “on headline terms” but crucial elements relating to Mr MacInnes’ remuneration had not been set out.
- The Court held that there was no intention to create legal relations and therefore on this (and other grounds) no binding contract had been made over dinner.
- The fact that the key discussion took place over dinner did not, of itself, prevent the making of a legally binding contract. Coulson LJ noted that “a contract can be made anywhere, in any circumstances”, but the fact that the alleged agreement was made in a highly informal and relaxed setting meant that the court should look closely at the claim that, despite the setting, there was an intention to create legal relations.
- In Wright v Rowlands and another  EWHC 2478 (Comm) also concerned a financial consultant claiming breach of an oral agreement although this time the setting for the alleged agreement was a rather more glamorous setting than a public house – a yacht.
- Mr Wright provided consultancy services to various Rowland family businesses. He alleged that in 2008, he was responsible for the introduction of the Rowlands to the former Chairman of Kaupthing Luxembourg (the distressed Luxembourg arm of the collapsed Icelandic banking group, Kaupthing Bank), and that he then worked as a senior member of their deal team to negotiate, structure and close an acquisition of the bank. The transaction involved the demerger of Kaupthing Luxembourg into a private bank called Banque Havilland S.A. (BH).
- It was contended by Mr Wright that at a party on July 20, 2009 on board the Rowlands’ yacht in the south of France, an oral agreement was reached between himself and the Rowlands that (amongst other things) granted him an option to purchase up to five per cent of the shares in BH for the same proportionate price that the Rowlands had paid to acquire the entire issued share capital of BH, i.e. €50 million. The Rowlands subsequently denied that they had made any such agreement with him.
- The Court rejected the claim that money was due on the basis of an oral contract because there was no evidence of the parties’ intention to create legal relations, as well as a lack of certainty in relation to certain other fundamental terms which militated against the existence of a binding contract.
- Mr Christopher Butcher QC, sitting as a High Court judge, said he was “entirely unpersuaded that there was any commitment” given by the Rowlands to Mr Wright on the yacht and had “Mr Rowland said what Mr Wright alleges or something approximating to it, with a firm commitment on a series of points, I consider that it would have been documented. Had such words been spoken, I consider that it is likely that Mr Wright would have put them in an email, or at least to have made a contemporaneous note”.
- Conduct of the parties that is subsequent to the alleged point of contract formation may have probative value in a number of respects. For example, it may bear upon the credibility of their or other witnesses’ accounts of what occurred beforehand, or it may serve to confirm matters on which the parties were agreed or not agreed.
- The question whether a concluded agreement may be inferred from the conduct and dealings of the parties is to be determined objectively from the point of view of a reasonable person in the position of the parties that is what inferences reasonable people would draw from their words or conduct: Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 ;  HCA 52 at  (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 ;  HCA 8 at  (Gaudron, McHugh, Hayne and Callinan JJ). And in this context difficulties in analysing the dealings into a strict classification of offer and acceptance are not decisive: see Heydon JA’s discussion in Brambles Holdings Limited v Bathurst City Council (2001) 53NSWLR 153 ;  NSWCA 61 at—.
- inFilm Bars Pty Limited v Pacific Film Laboratories Pty Limited (1979) 1 BPR 9251 , McLelland J noted that in determining whether the communications between the parties constituted a contract, the court was not confined to a consideration of the terms or manner in which the communications were made, but could interpret them by reference to the subject matter and surrounding circumstances, (including the nature of and relationship between the parties; previous communications between the parties; and standards of reasonable conduct in the known circumstances); and that it was legitimate to refer to and take into account subsequent communications between the parties.
- His Honour there noted that the probative value of subsequent communications must be found in the light they throw on the proper interpretation of the earlier communications alleged to constitute the contract and said that, perhaps more commonly, subsequent communications might be legitimately used against a party as an admission by conduct of the existence or non-existence as the case may be of a subsisting contract, referring toBarrier Wharfs Limited v W Scott Fell & Co Limited  HCA 88 ; (1908) 5 CLR 647 .
- So in the case ofAshton v Pratt (No 2)  NSWSC 3 at Brereton J made the point that: “Subsequent conduct or communications may be considered when considering whether a binding agreement has been reached.”
- In the well-known case of Jones v Padavatton  1 WLR 328 . where the question arose whether a mother’s promise to pay maintenance to her daughter while she studied for the Bar was a legally binding contract, Fenton Atkinson LJ thought that the subsequent history gave ‘the best guide to the parties’ intention’. He referred, in particular, to three aspects of the daughter’s subsequent conduct which were inconsistent with an intention on her part to enter into legal relations, including her statement in cross-examination that ‘a normal mother she had never for a moment contemplated the possibility of her mother or herself going to court to enforce legal obligations. It may be observed that the daughter’s statement did not unequivocally acknowledge that she had no intention to enter legal relations. There is no necessary inconsistency in saying: ‘We intended this agreement to give rise to enforceable legal rights but I did not expect either of us would actually enforce them’. As Salmon LJ pointed out, ‘The fact that a contracting party is in some circumstances unlikely to extract his pound of flesh does not mean that he has no right to it’: at 334
- The relationship between Chris Glazbrook and Martin Doyle who are neighbours was both commercial, the parties had a history of doing business with each other in that they did work that was invoiced and social in that they helped each other out with small jobs and lent tools to each other.
- One would expect some sort of record like a proper written contract or at the least a diary note when the agreement was made and if work is done either electronic or written notes like diary notes of the hours worked for a commercial arrangement.
- The agreement itself was made in a social setting at a social BBQ.
- The work involved here was not small and the value of the conveyor belt is not inconsiderable. It has an appearance on its face of commerciality.
- The acts of delivering the conveyor belt and the amount of time and the time it took to install the conveyor belt amounting to around $10,000 which could be considered serious enough that it must have been obvious to the defendant that the plaintiff was relying upon what can be considered a definite agreement such that it could be inferred that there was an intention to create legal relations.
- I reiterate what I said at  and .
- Mr Doyle knew Mr Glazbrook’ss business included refurbishing and selling conveyor belt for profit and had been to his storage shed at Blackwater.
- Martin Doyle admits there was a discussion about the conveyor belt in 2010 as on his own evidence he says he told Mr Glazbrook he could not afford a substantial amount of money as he had 2 children at school. There is conflict in the evidence of what was said.
- I also take into account the following:
When it was suggested that out of friendship Glazbrook gave Doyle the material replied: “No, not true. Because Mr Doyle got paid for every job he done. There’s no such thing as I pay him for every job and whatever I do for him is free. It doesn’t work like that.”
- If as Mr Glazbrook says, an agreement struck between Mr Glazbrook and Mr Doyle, there is certainty of terms as it did specify the price of the conveyor belt and what work Mr Glazbrook had to perform and a time period of whenever each was available to install the belt.
- Glazbrook gave an invoice which copy is in evidence as exhibit 5. Martin Doyle looked at the invoice and said “That looks about right. There’s not a problem.” He then said: “I can’t pay you at the moment, I haven’t got any money. We’re going to have a separation.” Marty said: “I can’t pay you until the house is sold.” He said: “When the house is sold I will guarantee I’ll pay you.”
- I accept that the conversation In February 2016 at Glazbrook’s property at 129 Murphy Drive Glenlee took place where Mr Glazbrook spoke to Mr Doyle and Doyle told Glazbrook he had spoken to his wife about separation and how much money was owed to who. He asked for an invoice for the work done.
- The evidence of both Mr and Mrs Doyle at the time of this conversation indicates that their financial position was limited as one child was at school and the other at University costing a considerable amount of money.
- In cross-examination of Glazbrook, the reason he gives for both the Doyle’s names being on the invoice was because Martin Doyle wanted to pay the invoice “from his company” M and M Stump Grinding and claim the tax.
- The above evidence is reliable and fits in with the financial position of the Doyles’ and Mr Doyle’s actions is consistent with what a reasonable person would say and do considering the status of the parties, their relationship to one another, and other surrounding circumstances.
- As such I am inclined to agree with the submissions advanced by the plaintiff on this point.
- This case is finely balanced. I prefer the evidence of Chris Glazbrook over Martin Doyle. Martin Doyle’s evidence is unconvincing.
- I find that Mr Doyle entered into an enforceable agreement to buy the conveyor belt and perform the work.
Limitation on Actions
- A simple contract is any contract made other than by deed whether in writing or not. When breach of a contract occurs depends on the nature of the breach and the terms of the contract.
- Section 10(1)(a) of the Limitation of Actions Act 1974 provides:
“10 Actions of contract and tort and certain other actions
- (1)The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose –
(a) … an action founded on simple contract …”
- InBrisbane South Regional Health Authority v Taylor  HCA 25 ; (1996) 186 CLR 541 at 552-553McHugh J outlined the rationale for limitation periods. He noted that as time goes by relevant evidence is likely to be lost; it can be oppressive to a defendant to allow a claim to be brought long after the circumstances which gave rise to it have passed; people should be able to order their affairs in the knowledge that claims can no longer be brought; and public interest requires that disputes be settled as quickly as possible
- The onus is on a defendant under UCPR (Rule 150(1)(e) to plead the expiration of a procedural limitation period in order to rely on it as a defence. That is an action is statute-barred. Under the Limitation of Actions Act 1974, it is fundamental to the operation of such legislation that the Act does not bar the right but bars the remedy. Unless the issue is raised in the pleading by the defendant, it simply does not arise. Further, if the defence is not pleaded, a court will not, of its own motion, refuse a remedy, even though it is obvious that the proceedings have been commenced out of time.
- A “cause of action” is a factual situation which gives rise to the right to sue. It consists of every fact which it is necessary for the plaintiff to prove to succeed in the action.
- Gibbs v Guild (1882) 9 QBD 59 is the authority that a cause of action in contract accrues at the time of the breach, not at the time the damage is sustained. The rule was outlined by Chitty J inRe Brown’s Estate  2 Ch 300 where he said: The law is quite settled that, with regard to a promissory note payable on demand, no demand is necessary before bringing an action... [W]here there is a present debt and a promise to pay on demand, the demand is not considered to be a condition precedent to the bringing of the action.
- In the more recent matter ofUGL Rail Pty Ltd v Wilkinson Murray Pty Ltd  NSWSC 1959 the NSW Supreme Court upheld that saying: A cause of action for breach of contract first accrues when the breach occurs: Gibbs v Guild (1881) 8 QBD 296 at 302 per Field J; Hawkins v Clayton  HCA 15 ; (1988) 164 CLR 539 at 583 per Deane J; Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2)  UKHL 53 ;  1 All ER 305 at 308 per Nicholls LJ.
Sale of Conveyor Belt
- The evidence is that the roll of conveyor belt was more than required for the work to be done and Mr Glazbrook states Mr Doyle intention was going to sell the remainder off to his friends at pony club for a profit.
- In the absence of a term in the contract prescribing when payment becomes due, the limitation period begins to run from the earliest time at which the debt could have been recovered.
- In cross examination of Chris Glazbrook the following exchange took place:
CAMERON:And there was no actual agreement struck between the two of you as to when it would be paid for?‑‑‑When the job was finished.
CAMERON:Well, I suggest that that was never agreed. And that you didn’t say to him – that’s to Marty Doyle – when you delivered it – that, “You can pay me, you know, when all the work’s finished”?‑‑‑
GLAZBROOKThat was agreed to before it was delivered.
BENCH: When was it agreed to before it was delivered?‑‑‑Probably when we were discussing it 2011.
- I am not satisfied that the agreement was Doyle would pay all when the job was finished. Remembering a conversation that happened 10 years ago with such precision is difficult to accept and fallibility to remember conversations increases with the passage of time including what should or could have been said.
- According to the sale of goods legislation the seller’s action for the price of goods accrues when property passes to the buyer in the absence of any agreement as to the time of payment. 
- In this case, the conveyor belt passed to /Mr Doyle upon delivery to his property prior to October 2010.
- There is no time prescribed in the contract when payment became due.
- The limitation period started in 2010 and runs for 6 years.
- The claim was filed on the 5th June 2019.
- The defendants plead in their defence the action is statute-barred.
- The plaintiff suggests that the invoice provided in February 2016 starts the limitation period again.
- It is possible for the six (6) year limitation period to start again, essentially restarting the clock. If it has been six years since the debt was last acknowledged or made a payment towards a debt and there has not been a court judgment, the debt may be statute-barred.
- Section 35(3) of theLimitation of Actions Act 1974(QLD)says:
Where a right of action has accrued to recover a debt or other liquidated pecuniary claim … and the person liable or accountable therefor acknowledges the claim or makes a payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment.
- This means that upon the acknowledgement of the debt, or payment made the limitation period starts on that date.
- The Act then goes on to prescribe the formal requirements needed for an acknowledgement of debt and/or part-payment. Section 36 of the Limitation of Actions Act 1974 (QLD)says:
Every acknowledgment referred to in section 35 shall be in writing and signed by the person making the acknowledgment
- Whilst Mr Doyle acknowledged the debt in 2016, the acknowledgement is of no force or effect as it is not in compliance with the requirements of the Act.
- The claim for payment of the conveyor belt is statute-barred.
- A contract may stipulate that the occurrence of specified milestones creates an entitlement to progress payments before all work or services under the contract have been completed. Alternatively, the contract may provide that payment for a service only becomes payable one month from the completion of all work. The parties to the contract have absolute discretion to determine when debts become due and payable before entering into the contract. It is when the debtor fails to make the required payment by the agreed payment date, thereby breaching the contract, the cause of action accrues.
- In this case, a cause of action for payment for work or services accrues when the work or service is provided in the absence of contrary agreement.
- For example, consider the scenario of a lawyer who has issued their client with an invoice one month after the completion of the lawyer’s work and is now seeking to recover the unpaid fees. In this case, the cause of action is taken to have accrued not when the bill was issued, but when the work was actually completed. Similarly, if a builder demands payment for work performed, the cause of action begins to accrue from the time the work was completed, not when the demands were made.
- This distinction becomes particularly relevant in circumstances where a bill is not issued until several months, or in this case, years after the work was completed.
- The work started in 2010/2011 and finished at a date unknown but before or around December 2013.
- The claim was filed on the 5th June 2019.
- As the work was completed around or just before December 2013, and as the limitation period to bring a cause of action for payment for work is when the work is completed, there being no contrary agreement, the limitation period of 6 years has not expired.
Was there an agency relationship between Mrs Doyle and Mr Doyle
- The defendants have not plead an alternative that the business is responsible for the debt.
- An agency relation between two parties is a relationship:
“involving authority or capacity in one person (the agent) to create or affect legal relations between another person (the principal) and third parties.”
- Usually, a person is responsible only for his or her own debts. For example, if you did not sign the contract or loan agreement for yourspouse’s debt, you usually would not have to pay that debt.
- The onus of establishing authority is on the party making the claim.
- Mrs Doyle has not given any security for her husband’s debt. For a long time a principle has stood in Australian law which means that a wife who provides security in support of her husband’s debt may be able to avoid that contract if she can show that she misunderstood the transaction in some way and that she did not receive adequate explanation of the transaction by the lender. This principle emerged from the judgment of Dixon J inYerkey v Jones  HCA 3 ; (1939) 63 CLR 649 .He states it thus:
If a married woman’s consent to become a surety for her husband’s debt is procured by her husband and without understanding its effect in essential respects she executes an instrument of suretyship which the creditor accepts without dealing directly with her personally, she has a prima facie right to have it set aside. [at 683]
- This principle became known as the special equity of wives and it received much attention and criticism in and out of courts. The decision was seen, among other things, as discriminatory and inconsistent with the contemporary status of women.
- It was in this context that the High Court of Australia heard the case ofGarcia v National Bank Ltd  HCA 48;  155 ALR 614. This was an opportunity long awaited to have a debate on the representation of wives in the law. In terms of law the majority of the High Court did uphold theYerkeyprinciple. Ms Garcia was not bound to the guarantee she had given in relation to her husband’s debts because she did not understand fully the extent of her liability and the bank had not fully explained the contract to her.
- The majority decision was given by Gaudron, McHugh, Gummow and Hayne JJ. They asserted that the Yerkey principle has as much application today as it did in 1939. They dispute that the case represents outdated views of society and the role of women in it. Their view was that the changes that have occurred have not fundamentally altered the experience of marriage for a significant number of women. For such women, the marriage relationship can be unequal in economic and other power. Leaving this aside, however, the Justices argue that the Yerkey decision does not result from a view of wives as economically and emotionally weak, subservient, inferior and vulnerable to exploitation. Rather it is based on the view that in a marriage the two parties have trust and confidence in each other. This absolute trust and confidence means that like a well organised factory they engage in a division of labour. They put it like this:
The marriage relationship is such that one, often the woman may well leave many, perhaps all, business judgments to the other spouse. In that kind of relationship, business decisions may be made with little consultation between the parties and with only the most abbreviated explanation of their purport or effect … That that is so is not always attributable to intended deception, to any imbalance of power between the parties, or even, the vulnerability of one to exploitation because of emotional involvement. It is, at its core, often a reflection of no more or less than the trust and confidence each has in the other. [Garciaat 404]
- The judges did not rule out that this type of relationship could be found outside of a heterosexual marriage. They did not rule out, therefore, that theYerkeyprinciple could apply to same sex-couples, and couples who were in a de facto relationship. Nor did they rule out that it could apply to husbands as well as wives. To this day, however, the law suggests that it is wives, and wives only who can take advantage of this principle.
- InCaxton Street Agencies Pty Ltd v Korkidas  QSC 210, a contract relating to the sale of a property had been signed by the husband on his own behalf and also on his wife’s behalf. In dismissing an application for summary judgment on a claim by the plaintiff for specific performance of the contract, Holmes J (as her Honour then was) stated (at):
It is trite law to say that it is not enough, in order to establish ostensible authority, that the agent makes a representation of authority. That representation, by words or conduct, must emanate from the principal. Clearly, the mere facts of the first defendant’s being married to the second defendant, or registered as proprietor with her of the subject land, cannot amount to a representation of his having authority. The feature crucial to the pleading of ostensible authority is that the second defendant had “the apparent management, control and decision makingin respect of the land”. But that seems to me no better than a re-alleging of actual authority, with, tagged on, an assertion that if the first defendant had such authority, the second defendant must have known he would look to others as if he did. … [my emphasis and references omitted]
- In Tonna v Mendonca  NSWSC 1849, Ward CJ in Eq stated:
376 There is no longer an historically presumed agency relationship between husband and wife (cf Garcia v National Australia Bank Ltd (1998) 194 CLR 395;  HCA 48 at ). (See the latest edition ofBowstead and Reynolds on Agency(21st ed, 2017, Sweet & Maxwell) where it is said that the idea of presumed authority arising because of the husband and wife relationship is no longer considered appropriate or of any force as “one spouse has no usual authority to bind the other in contract” (see at [3-043]).) (My emphasis)
- Glazbrook’s evidence is he did not ever have a discussion at any time with Mrs Doyle about the work or the account as the agreement was between he and Mr Doyle.
- In cross-examination of Glazbrook, the reason he gives for both the Doyle’s names being on the invoice was because Martin Doyle wanted to pay the invoice “from his company” M and M Stump Grinding and claim the tax.
- M & M Stump Grinding is a business name the Doyles’ business operates under rather than a company although no ASIC search has been provided. The defendants are not being sued as proprietors of the business e.g. Martin Doyle and Maryanne Doyle trading as M&M Stump Grinding QLD BN 123 456 78.
- It is apparent from Mrs Doyle’s evidence she knew little about the arrangements regarding the conveyor belt and it was not part of any property settlement between her and Martin. She did not authorise Martin to act as her agent.
- In the present case, Maryanne Doyle effectively was not part of the arrangements in relation to this transaction, did not play a part to any discussions and at no time agreed to pay an money for the conveyor belt and work done. She is not being sued as part of the business M & M Stump Grinding.
- She is not responsible for any alleged debt.
- I am satisfied on the balance of probabilities that Chris Glazbrook and Martin Doyle agree for Mr Glazbrook to provide conveyor belt at $20 per metre and for Glazbrook to be paid $40 per hour to help install the belting.
- The claim for the cost of the conveyor belting is statute barred and therefore unenforceable.
- The claim for work performed is not statute barred and is enforceable.
- Whilst there is no records of the number of hours Glazbrook worked, he estimates 70 hours from his experience but charged 50 hours.
- Bearing in mind the timeframe it took to install, the difficulties with installing of 130 metres of the conveyor belting including cutting out of the posts and Glazbrook’s experience I do not think it unreasonable to allow 50 hours work.
- Maryanne Doyle is not responsible for the debt although she sold the remainder of the conveyor belt for $500 which should have been taken into account in the property settlement between her and Martin Doyle.
- As to interest claimed on the invoice, there is no agreed/contractual rate so interest falls under the statutory interest rate.
- I give judgment for the plaintiff Jovelands Pty Ltd against the first defendant Martin Doyle for $2200 plus interest under s 58 of the Civil Proceedings Act 2011.
 Currie v Dempsey (1967) 69 SR (NSW) 116 at 539. Denning J said in Miller v Minister of Pensions  2 All ER 372at 374: That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: " We think it more probable than not", the burden is discharged, but, if the probabilities are equal, it is not. See also Sargent v Massachusetts Accident Co 29 NE (2d) 825 (1940) at 827. See also Smith v Rapid Transit Inc 58 NE (2d) 754 (SJC Mass, 1945); Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 642-3; 92 ALR 545at 548;  HCA 20
 In the case ofYulema Pty Ltd & Anor v Simmons & Anor , the Supreme Court upheld contractual obligations imposed by a verbal agreement in October 2009. As a result, the defendant was required to pay the plaintiff approximately $350,000 plus interest from May 2011. It is significant to note that the Court upheld the agreement notwithstanding that one of the parties involved in the negotiations was unable to give evidence because they had passed away.
 Yasmine Taylor v Camille Roberts  NSWLC 9; Mills, Winter v Nemeth  NSWSC 644; Alana v Safe, Andrew.  TTHC 66
 Balfour v Balfour [1919} 2 KB 571 (agreement between married couple), Todd v Nicol  SASR 72 (agreement with family - sister-in-law and niece); Jones v Padavatton  2 All ER 616(agreement between mother and daughter); Wakeling v. Ripley (1951) 51 S.R.(N.S.W.) 183.; Riches v Hogben (1986) Qd R 315 (Son agreed to emigrate, having been assured that the mother would buy a home and put it in the son's name. She bought the home but put it in her own name); Woodword v Johnston  2 Qd R 214 (wife agreed to help husband in his business in return for 10% of the profit); Cohen v Cohen (1929) 42 CLR 91 (Husband promised to pay the wife a dress allowance
 Teen Ranch Pty Ltd v Brown (1995) 87 IR 308
  EWHC 1928 at 
 Rann v Hughes (1778) 7 Term Rep 350n, 101 ER 1014n per Skynner LCB
 Commonwealth v Verwayen (1990) 170 CLR 394 at 426, Brennan J said that it was introduced solely for the benefit of a defendant who must plead it before it is effective and who may waive it; Spoor & Ors v Price & Ors  QCA 297 at 
 Amaca Pty Ltd v Ridgeway  NSWCA 417.
 Commonwealth of Australia v Mewett (1995) 59 FCR 391 per Lindgren J at 419
 Sale of Goods Act 1896 (Qld), s 50(1)
 Emery v Day (1834) 149 ER 1071.
 Pirie Street Stage 1 P/L v Trotman & Anor And Stewart & Ors  SADC 123: International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co  HCA 16;100 CLR 644at 652.
- Published Case Name:
Jovelands Pty Ltd v Doyle
- Shortened Case Name:
Jovelands Pty Ltd v Doyle
 QMC 12
14 Feb 2020