Beachmount Pty Ltd v Iker Partnership - [2020] QSC 379

SUPREME COURT OF QUEENSLAND

CITATION:

Beachmount Pty Ltd v Iker Partnership & Anor [2020] QSC 379

PARTIES:

BEACHMOUNT PTY LTD
ACN 088 946 801

(plaintiff)

v
IKER PARTNERSHIP

(first defendant)

EUNEEKE CATTLE COMPANY PTY LTD
ACN 112 009 097

(second defendant)

FILE NO/S:

BS No 8370 of 2017

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

16 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2020 to 31 July 2020; 4 September 2020

JUDGE:

Williams J

ORDER:

1.   I direct that, by 10:00 am on 17 December 2020, the parties agree and provide to my Associate a proposed timetable in relation to the following:

(a)      The parties prepare draft orders to give effect to these reasons and provide them to my Associate.

(b)      If the parties are unable to agree on draft orders, then each party is to provide its proposed draft orders together with a brief description for the basis of the disagreement.

(c)      The plaintiff file and serve submissions and any supporting affidavits in relation to costs.

(d)      The defendants file and serve submissions and any supporting affidavits in relation to costs.

(e)      The plaintiff file and serve submissions in reply in relation to costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – CONDITIONS – GENERAL MATTERS – where the plaintiff alleges that the defendants, in breach of two agreements entered into between the parties (the ESA and the New Agreement), failed to pay the plaintiff $810,460.49 for provision of services under those agreements – whether the defendants are indebted to the plaintiff for that amount

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – MATTERS NOT GIVING RISE TO BINDING CONTRACT – VAGUENESS AND UNCERTAINTY – UNCERTAIN PROMISES – where the defendants allege that the terms of the ESA did not define with precision the ‘services’ the plaintiff was required to perform to the extent that the ESA is too uncertain to be enforceable – where the defendants further allege that the terms relating to the remuneration of the plaintiff under the ESA are uncertain to the extent that the ESA is too uncertain to be enforceable – where payments were made to the plaintiff by the defendants pursuant to the ESA on a regular basis – where the defendants do not seek to recover those amounts – whether the ESA is void for uncertainty

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – CONTRACTS IMPLIED FROM CONDUCT OF PARTIES – where the plaintiff alleges that the ESA ended by mutual agreement and the parties entered into another agreement (New Agreement) on similar terms – where the plaintiff continued to perform services for the defendants – where the defendants submit that there was no New Agreement but rather that the plaintiff was engaged on a “temporary basis” following the expiry of the ESA – whether the parties entered into the New Agreement – whether the terms of the New Agreement are certain so as to be enforceable

ESTOPPEL – ESTOPPEL BY CONDUCT – PROMISSORY ESTOPPEL – PARTICULAR CASES – where the defendants allege that they were induced into entering into the ESA with the plaintiff on the basis of the plaintiff’s misrepresentations – where the defendants submit that the plaintiff should be estopped from enforcing the ESA on that basis – whether the plaintiff made the representations alleged by the defendants – whether the defendants relied upon those representations to their detriment

ESTOPPEL – ESTOPPEL BY CONDUCT – ACT, OMISSION OR ASSUMPTION – REPRESENTATION GENERALLY – NATURE OF REPRESENTATION – where the defendants allege that the plaintiff made representations as to his ability to sell the defendants’ property “within 3 to 6 months” – where the defendants allege that the plaintiff made representations that, if he were engaged, the defendants’ businesses could only “move forward” – whether such representations were made – whether such representations were misleading or deceptive so as to give rise to a promissory estoppel

ESTOPPEL – ESTOPPEL BY CONDUCT – ACT, OMISSION OR ASSUMPTION – REPRESENTATION GENERALLY – ACQUIESCENCE, ENCOURAGEMENT OR SILENCE – where the defendants allege that the plaintiff had an obligation to inform them of his prior unsuccessful business dealings – where the defendants allege that the plaintiff’s failure to do so was a representation by silence that was relied on by the defendants when entering into the ESA with the plaintiff – whether the plaintiff’s silence constitutes a representation – whether such representations were misleading or deceptive so as to give rise to a promissory estoppel

ESTOPPEL – ESTOPPEL BY CONDUCT – CAUSATION – RELIANCE – where the defendants allege that, in reliance on the plaintiff’s misrepresentations, they entered into the ESA – whether, if the alleged misrepresentations were made, the defendants relied on them – whether the defendants have shown detriment by relying on the alleged misrepresentations

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – MISLEADING OR DECEPTIVE CONDUCT GENERALLY – MISLEADING OR DECEPTIVE: WHAT CONSTITUTES – where the defendants alleged that the plaintiff made three misleading or deceptive representations that induced them to enter into agreements with the plaintiff – whether the representations were made – whether the plaintiff engaged in conduct that was misleading or deceptive

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTION FOR DAMAGES – LIMITATION PERIOD – WHEN CAUSE OF ACTION ACCRUES – where the plaintiff alleges that, even if the defendants make out a misleading or deceptive conduct claim, the limitation period prevents them from pursuing that cause of action – whether the cause of action accrues at the formation of the agreement or at a later time

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTION FOR DAMAGES – ASSESSMENT OR AVAILABILITY OF DAMAGES – GENERALLY – where the defendants claim relief under s 237 and 243(c) of the Australian Consumer Law (ACL) or s 36(3) ACL, together with s 237 and 243(c) ACL – where the defendants do not seek to recover any amount against the plaintiff – where the defendants seek to apply the relief sought in the manner of a “shield” by seeking to offset any amount claimed by the plaintiff – whether the defendants are entitled to relief

Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law), s 236, s 237, s 243

Civil Proceedings Act 2011 (Qld), s 58

Al Azahri, Azhari and Azhari as trustees of the Australia Islamic Educational Trust v Sheik Al-Maktoum [2020] QSC 297, cited
Alford v Ebbage [2004] QCA 283, cited
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36, cited
Barnes v Forty Two International Pty Ltd (2014) 316 ALR 408; [2014] FCAFC 152, cited
Bellmere Park Pty Ltd as trustee for the Bellmere Park Development Trust v Benson [2007] QCA 102, cited
Bennett v Elysium Noosa Pty Ltd (in liq) (2012) 202 FCR 72; [2012] FCA 211, cited.
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25, cited
Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130; [1946] EWHC KB 1, cited
Clifford v Vegas Enterprises Pty Ltd (No. 5) (2010) 272 ALR 198; [2010] FCA 916, cited
Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601, cited
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26, cited
Dawson v LNG Holdings [2008] NSWSC 137, considered
De Bortoli Wines Pty Ltd HIH Insurance Ltd (in liq) (2011) 200 FCR 253; [2011] FCA 645.
Fraser v NRMA Holdings Ltd (1995) 55 FCR 452; [1995] FCA 9, cited.
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1; [2003] FCA 50, cited
Hanave Pty v LFOT Pty Ltd [1999] ATPR 41-687; [1999] FCA 357, cited
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1998) 39 FCR 546; [1988] FCA 40, cited
I&L Securities v HWT Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; [2002] HCA 4, cited
Jones v Dunkel (1959) 101 CLR 298 [1959] HCA 8, cited
Juniper Property Holdings No 15 Pty Ltd v Caltabiano [2016] QSC 5
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68, cited
Legione v Hateley (1983) 152 CLR 406, cited
Low v Bouverie [1891] 3 Ch 82, cited.
Meehan v Jones & Others (1982) 149 CLR 571; [1982] HCA 52, cited
Miller v BMW (2010) 241 CLR 357; [2010] HCA 31, cited
Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Limited (2005) 189 FLR 14; [2005] NSWSC 20, cited
POA Enterprises Pty Ltd & Others v Chemist Warehouse Southport & Others [2012] QSC 316, cited
Rafferty v Madgwicks (2012) 203 FCR 1; [2012] FCAFC 37, cited
Razdan v Westpac Banking Corporation [2014] NSWCA 126, cited
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466, cited
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7, applied
Wardley Australia Limited v Western Australia (1992) 175 CLR 514; [1992] HCA 55, considered
Watson v Foxman (1995) 49 NSWLR 315, cited
Wright v Hamilton Island Enterprises Ltd [2003] QCA 36, cited

York Airconditioning and Refrigeration (Australasia) Pty Ltd v The Commonwealth (1949) 80 CLR 11; [1949] HCA 23, cited

COUNSEL:

MD Martin QC for the plaintiff

B Whitten for the defendants

SOLICITORS:

Mills Oakley for the plaintiff
Kelly Legal for the defendants

The plaintiff’s claim is for an amount of $810,490.69 (inclusive of GST) as a debt due and owing by the defendants, consisting of:
(a)The balance of bonuses payable under an Executive Services Agreement dated 17 December 2013 (with a commencement date of 1 November 2013) (ESA); and
(b)The balance of fees and expenses payable pursuant to an agreement made in August 2015 (New Agreement).
The defendants’ position is less straightforward. The defendants raise a number of cascading legal arguments, including that:
(a)The defendants were induced to enter into the ESA by the plaintiff’s misleading or deceptive conduct and consequently the plaintiff should not be allowed to enforce the ESA.
(b)There is no New Agreement, including that if it was agreed it was done without authority.
(c)The ESA and the (alleged) New Agreement are void for uncertainty.
(d)The plaintiff breached the ESA and the (alleged) New Agreement on the basis that the plaintiff has failed to provide the services in accordance with the terms of the ESA and the (alleged) New Agreement and the defendants’ loss can be set off against the plaintiff’s claim.
(e)The proper construction of the ESA does not provide for payment of the bonuses as claimed by the plaintiff.
(f)The payments made to the plaintiff are excessive and should be set-off against the amount claimed.
(g)In the pleaded circumstances, the plaintiff is estopped from bringing the claim.
Ultimately the defendants’ position is that the plaintiff’s claim should be dismissed, either on the basis that there is no debt due and owing or alternatively, that the ESA and the (alleged) New Agreement should not be enforced.
The defendants do not seek repayment of the money already paid by way of counterclaim and do not seek any compensation for loss or damage. The relief sought in effect is neutral: that is, any liability to the plaintiff is extinguished and no further amount is owing.
A number of allegations made by the defendants in the Fourth Further Amended Defence (4FA Defence) are expressly no longer pursued.[1] These are set out in the following paragraphs of the 4FA Defence:
(a)41(c)(iv) ‒ payments of more than $20,000.00 without the prior written approval of the defendants;
(b)41(c)(v) and (vi) ‒ the plaintiff acted in a way which constituted a conflict of interest;
(c)41(c)(iiA) ‒ the plaintiff caused the defendants to overpay rates for Stay on Sullivan of approximately $800,000.00 together with legal fees;
(d)41(c)(iiB)(c)(2)[2] ‒ consultancy fees in the sum of approximately $1.45 million dollars which was said to be “excessive”; and
(e)34(e) ‒ the plaintiff caused the “group level of debt” to increase by approximately $7 million dollars.
[1]See defendants’ written closing submissions dated 19 August 2020.
[2]Page 21 of 4FA Defence.
It also became apparent at the conclusion of the trial that the defendants were seeking to rely on a further argument that is outside of the 4FA Defence. The defendants now seek to argue that the obligations to pay:
(a)the bonus payments under the ESA which had accrued by August 2015; and
(b)the monthly invoices for services and expenses which accrued from August 2015 under the (alleged) New Agreement,
were extinguished by a further new agreement whereby a company called Iker Group Holdings (IGH) took over the liability. The plaintiff objects to this argument being raised outside the defendants’ pleaded case. This new case is outside the pleaded case and should not be allowed.
Agreed facts and list of issues to be determined
Prior to the commencement of trial, the parties provided a statement of agreed facts and a list of issues to be determined. This document is reproduced in full as Schedule 1.
The agreed facts are:
2.The parties entered into a written consultancy agreement dated 1 November 2013 (CA).
3.The parties entered into a written executive services agreement dated 17 December 2013 [the ESA].[3]
4.The defendants made payments to the plaintiff as pleaded in [9(b)] and [14(b)] of the further amended statement of claim (FASOC).
5.The project as defined in the CA was not completed.
[3]I further note that the commencement date in the Reference Schedule is 1 November 2013.
In respect of the third agreed fact, from submissions at the trial it appears that while the defendants admit that the payments were made, they do not admit the basis of the payments. This is to be read subject to [41(c)(ii)(A)] and [45] of the 4FA Defence.
The parties and background
The plaintiff, Beachmount Pty Ltd, was the corporate vehicle for Peter Queitzsch (Mr Queitzsch), who is the sole director and authorised representative of the plaintiff.
The first defendant is a partnership between Edward Alexander Iker (Mr Lex Iker), Jo-Anne Iker and Iker Pty Ltd as trustee for the Iker Family Trust.
The second defendant, Euneeke Cattle Company Pty Ltd, has Mr Lex Iker and Jo‑Anne Iker as its directors.
Mr Lex Iker and Jo-Anne Iker have two sons, Clayton and Trent. Clayton Iker is married to Chrystal Iker. Trent Iker is married to Chantal Iker.
The Iker family have various entities, incorporated and unincorporated, through which they operate agricultural interests in and around Emerald.
Ikerus Pty Ltd (Ikerus) owned a property situated at Sullivan Street, Emerald, referred to as “Stay on Sullivan” (SOS) which operated as a motel or accommodation for mine workers. Ikerus was trustee for the Ikerus Unit Trust and was controlled by Mr Lex Iker and Jo-Anne Iker, who held 49 percent of the units. There were also other unit holders.
TLD Qld Pty Ltd (TLD) was another company that owned the adjoining property to SOS which was also being developed as mine worker accommodation. Mr Lex Iker was a director of TLD. There were also other parties who owned units in the TLD Qld Unit Trust.
At the hearing, the following witnesses gave evidence:
(a)For the plaintiff:
(i)Mr Queitzsch;
(ii)Ms Leanne Daniels (former group administrative manager of the Iker Group).
(b)For the defendants:
(i)Mr Lex Iker;
(ii)Mrs Chrystal Iker;
(iii)Mr Clayton Iker;
(iv)Ms Susan Williamson (bookkeeper for the Iker Group from 3 August 2015).
Mr Christopher Todd provided a witness summary of evidence on behalf of the defendants, but ultimately was not called to give evidence.
Agreed trial bundle
Exhibit 1 is the agreed trial bundle which consists of three lever arch folders.
At the conclusion of the trial, the parties prepared a revised agreed index to Exhibit 1 reflecting the documents which had gone into evidence through the various witnesses. This resulted in some documents being removed.
Two documents were disputed, namely:
(a)Tab 154 – Iker Group board meeting minutes 10 September 2015;
(b)Tab 155 – Iker Group board meeting minutes 12 November 2015.
The plaintiff says that these two documents are admissible on the basis of the unchallenged evidence of Leanne Daniels that the minutes she prepared were accurate.[4] Further the plaintiff contends that they are in substantially the same form as the board meeting notes at Tab 153, to which significant reference was made at the hearing and are agreed to be in evidence. Further, the plaintiff submits that the defendants do not contend that the minutes are wrong or inaccurate.
[4]Plaintiff’s written closing submissions at [139].
The defendants contend that Ms Daniels was not taken to each of the minutes and also gave evidence that she attended “most” of the meetings. Their submission in respect of the significantly different form may not be sustainable given the similarity in form to the document at Tab 153 (as pointed out by the plaintiff).
Counsel for the defendants took me to the document at Tab 154 in closing oral submissions and accepted that I could have regard to it.[5]
[5]T 6-37 L 26 and T 6-38 L 6.
I find that the documents at Tab 154 and 155 are admissible and it is then a question of what weight should be given to them given the general nature of the documents.
Issues
The list of issues prepared by the parties and set out at Schedule 1 does not deal with the relevant issues in a logical order for the purpose of working through the issues, particularly as some issues may fall away depending on the position reached on some of the issues.
Accordingly, in these reasons I approach the issues under the following headings and in the following order:
(a)Misleading or deceptive conduct
(i)Were the three pleaded representations made?
(ii)Did the plaintiff engage in conduct that was misleading or deceptive?
(iii)Is any claim under the Australian Consumer Law[6] (ACL) for misleading or deceptive conduct statute barred?
[6]Competition and Consumer Act 2010 (Cth), Schedule 2.
(b)ESA
(i)Is the ESA void for uncertainty?
(ii)Do the pleaded warranties (defined by the defendants as “specific services”) form part of the ESA?
(iii)If so, is payment conditional upon performance of the “specific services”?
(iv)Has the plaintiff breached the ESA by failing to provide the Services?
(v)If so, is payment conditional upon performance of all of the Services?
(vi)Is the plaintiff entitled to the bonus payments?
(vii)Were the payments as identified in [9(b)] of the FASOC paid in accordance with the ESA?
(viii)Were expenses as claimed in the plaintiff’s invoices to be paid?
(c)New Agreement
(i)Was the New Agreement entered into in August 2015 and on what terms?
(ii)Is the New Agreement void for uncertainty?
(iii)Were the payments identified in [14(b)] of the FASOC paid in accordance with the New Agreement?
(iv)Were expenses claimed in the plaintiff’s invoices to be paid?
(d)Were the payments to the plaintiff pursuant to the ESA and the New Agreement totalling $1,133,699 “excessive”?
(e)Estoppel
(i)Is the plaintiff estopped from relying upon the ESA or the New Agreement on the basis of the matters set out in [53] of the 4FA Defence?
(f)Relief
(i)Are the defendants entitled to any of the relief claimed pursuant to:
(A) section 237 and 243(c) ACL?
(B) section 36(3) ACL, together with s 237 and 243(c) ACL?
(ii)Are the defendants indebted to the plaintiff for $810,460.49 (inclusive of GST) as pleaded in [21] of the FASOC?
Misleading or deceptive conduct

The defendants’ claim for misleading or deceptive conduct is set out in [7] to [32] of the 4FA Defence. In summary:
(a)[8] set outs the “Iker goals” on the basis that Mr Lex Iker told Mr Queitzsch matters at a meeting at the Iker’s property in August 2013.
(b)[9] sets out the “Queitzsch experience representations”, being statements by Mr Queitzsch to Mr Lex Iker as to his experience, together with implied representations in the particular circumstances, including the “Iker goals”.
(c)[10] sets out the “SOS sale representation” being statements by Mr Queitzsch to Mr Lex Iker about the sale and timing of the sale of SOS, together with an implied representation in the particular circumstances, including the “Iker goals”.
(d)In reliance on these two representations, [12] provides that Mr Lex Iker entered into the CA.
(e)[13] to [20] sets out facts and circumstances relevant to the CA.
(f)[21] sets out the “agribusiness request”, being a request by Mr Lex Iker to Mr Queitzsch in November 2013 for assistance with the agribusiness operations of the Iker family. Three specific matters are listed, including dealing with financiers “while the process of selling SOS was engaged through the CA Services”.
(g)[22] sets out certain facts alleged to have been known by both Mr Lex Iker and Mr Queitzsch at the time of the “agribusiness request”, including a link back to the “Iker goals”.
(h)[23] sets out the “business improvement representation” being:
(i)A statement by Mr Queitzsch that “given his experience, the business could only go forward and that he could assist the Iker family in the manner sought by the agribusiness request”; and
(ii)An implied representation in the circumstances of [8], [9], [21] and [22] of the 4FA Defence that Mr Queitzsch would “satisfy the agribusiness request” and “relieve the financial stress the Iker family had been under by using skills and experience to reduce their debt level”.
(i)[24] sets out the “business improvement representation” was intended to “include ensuring significant relief for the financial stress and pressure the Iker family and entities were then under”.
(j)[25] sets out that, in reliance on the three representations, the defendants were induced to enter into the ESA.
(k)[27] sets out that the “Queitzsch experience representation” was false, misleading or deceptive or likely to mislead or deceive because:
(i)Mr Queitzsch had an obligation and duty to inform Mr Lex Iker of any businesses or companies that he had controlled[7] that “had not been successful or had ceased operating”.
(ii)The obligation and duty arose due to the “Queitzsch experience representation” and the nature of the information would have been important to a person in the position of Mr Lex Iker in deciding whether Mr Queitzsch “had the skills and experience to be able to successfully assist in the achievement of the Iker goals”.
(iii)Mr Queitzsch did not disclose prior to entry into the CA or the ESA that he had controlled a business or company that “had not been successful or had ceased operating … or … that had failed”, nor did he correct the impression to the opposite effect.
(l)[28] sets out that the “SOS sale representation” was false, misleading or deceptive or likely to mislead or deceive because Mr Queitzsch did not sell SOS within three to six months or at all and did not make the sale a priority over other matters.
(m)[29] sets out that the “business improvement representation” was false, misleading or deceptive or likely to mislead or deceive because the agribusiness operations “did not go forward”, the debt level was not reduced and financial stress and pressure increased.
(n)[30] sets out that, to the extent that the “SOS sale representation” and the “business improvement representation” were future matters, there were not reasonable grounds to make the representations.
(o)[31] sets out that, on the basis of all three representations viewed as a whole, the conduct of the plaintiff was misleading or deceptive or likely to mislead or deceive.
(p)[32] sets out that, had Mr Lex Iker known of the facts pleaded in [27], [28] and [29] of the 4FA Defence, the defendants would not have entered into the CA or the ESA.
[7]Including capacity to control.
In the Reply to the 4FA Defence, the plaintiff denies the pleaded representations were made, says that parts of the pleading are vague and embarrassing or wrong, and further relies on the entire agreement clause in the ESA.
Were the three pleaded representations made?
In cases involving oral misrepresentations, caution should be taken to ensure 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 circumstances.
Barker J in the case of Clifford v Vegas Enterprises Pty Ltd (No. 5)[8] offers an important reminder of these evidentiary difficulties as follows:
“… I should approach with caution accounts of apparently significant events that tend to go against how the evidence of the subsisting ordinary relationship of the parties would tend to suggest they would have acted, especially in the absence of a context or documentary evidence suggesting the contrary. … there can often be serious difficulties of proof for an applicant who relies upon alleged oral representations as the foundation of an action based on misleading and deceptive conduct, in the absence of some reliable contemporaneous record or other satisfactory corroboration. This is because the question of what was said may depend on relatively subtle nuances following from the use (or absence) of particular words, phrases or grammatical constructions. Ordinary human experience is that 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. This is particularly likely when the conversation becomes the subject of dispute or litigation. It is often the case in such circumstances that perceptions or self interest in conscious attention to what should or could have been produces plausible details of a conversation which are, in truth, nothing more than a subconscious construction from a more vague memory or impression of what was in fact said or may have been generally discussed on prior unrelated occasions. Accordingly, the precise words alleged to have been said can be very important. For a witness to identify the substance of the words spoken can in many cases be dangerous.”[9]
[8](2010) 272 ALR 198.
[9](2010) 272 ALR 198, 220.
Further, the observations of McLelland CJ in Eq in Watson v Foxman[10] are also of some assistance. His Honour said:
“Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as ‘misleading’) within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. 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. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. 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.
Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court ‘must feel an actual persuasion of its occurrence or existence’. Such satisfaction is ‘not … attained or established independently of the nature and consequence of the fact or facts to be proved’ including the ‘seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’: Helton v Allen (1940) 63 CLR 691 at 712.
Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration.”
[10](1995) 49 NSWLR 315, 318-319.
In this case the oral evidence of Mr Queitzsch and Mr Lex Iker is central to the consideration of the representations but there is also the need to consider contemporaneous documents which may, or may not, be consistent with the oral testimony.
Generally, in respect of the oral evidence of Mr Queitzsch and Mr Lex Iker I make the following findings:
(a)Mr Queitzsch’s evidence was rational and logical and was largely consistent with the pleaded case. In answering extensive questions under cross-examination he tried to be helpful and answered questions openly and mostly directly. I find his evidence generally plausible and reliable.
(b)Mr Lex Iker’s evidence was brief and narrow in its focus. His evidence in respect of the alleged representations is in a number of respects not plausible or believable. This is particularly so when analysed in conjunction with the formal written agreements. It is particularly troubling that key aspects now raised in the defence were not included in the pleading until a short time before the trial. I find it implausible that they were not included due to mere inadvertence. Even if Mr Lex Iker has given honest evidence in respect of the alleged representations, I am not satisfied that it is reliable.
The “scattergun” approach by the defendants in raising issues to avoid any liability to the plaintiff lacks logic and is void of commercial reality. Many allegations have been made and then not pursued. Fundamental aspects were only identified and articulated recently. Mr Lex Iker is, as described by his own Counsel, a “perceptive and decisive man” who built and ran a successful family farming business. Aspects of his evidence are plainly inconsistent with this and add additional weight to my concerns about the reliability of his evidence.
Queitzsch experience representation
Mr Queitzsch disagreed with Mr Lex Iker that their first meeting was at the Vandyke property sometime in August 2013. Rather, Mr Queitzsch said that there were two meetings previous to that – one at the Brisbane Domestic Airport between Mr Queitzsch, Mr Lex Iker and Tony Richmond; [11] and another in Toowoomba between Mr Queitzsch, Mr Lex Iker, Tony Richmond and Damien Quinlan. [12]
[11]T 1-26 L 23-28.
[12]T 1-26 L 30-35.
According to Mr Queitzsch, at the Brisbane Domestic Airport Mr Queitzsch and Mr Lex Iker discussed SOS, including that they were having trouble selling individual strata-titled units. Mr Queitzsch told them that Maroon Group could be a prospective buyer for SOS.^[13] Further, at the Toowoomba meeting, the group worked through the Ikerus and TLD assets and discussed “thoughts about … combining the two of them.”^[14] Mr Queitzsch said that, only following those meetings did the Vandyke meeting occur.^[15]
[13]T 1-26 L 41-45.
[14]T 1-28 L 4-10.
[15]T 2-49 L 39-40.
Mr Queitzsch’s evidence was contradicted by Mr Lex Iker, who stated that the first time he had ever met Mr Queitzsch was at Vandyke in August 2013.[16]
[16]T 4-39 L 9-10.
The meetings described by Mr Queitzsch are significant to the context of how the parties entered into the CA and, subsequently, the ESA. This is because, especially at the Toowoomba meeting, Mr Queitzsch said the attendees went into detail about the Ikerus and TLD assets (Mr Queitzsch described how the attendees illustrated on a whiteboard describing the assets of the entities) and how they could be combined. If this meeting did occur, then it would contradict the defendants’ position that Mr Queitzsch was engaged to sell SOS, and to do so quickly, rather than develop the property over a period of time.
Mr Queitzsch gave evidence about the Vandyke meeting. He was not certain about the timing of the meeting, but agreed that it could have occurred in August 2013 or sometime later.^[17] He agreed with Mr Lex Iker that Chris Todd, who introduced Mr Queitzsch to the Ikers, was “in and out” during the meeting.^[18] He agreed that the Iker family also attended the meeting intermittently.
[17]T 2-49 L 32-40.
[18]T 2-57 L 6-11.
In cross-examination, Mr Queitzsch agreed that Mr Lex Iker described some “concerns” in relation to the banks (Suncorp and Westpac),[19] although he said that he did not understand what the level of concern was at the time.[20] He said that Mr Lex Iker told him about the market pressure that the property was under.[21] He said that he did not recall that Mr Lex Iker told him that they needed to sell SOS to relieve pressure from the banks,[22] or that the reason Mr Queitzsch was there was to sell the property.[23]
[19]T 2-58 L 25-28.
[20]T 2-59 L 23-26.
[21]T 2-63 L 45 to T 2-64 L 2.
[22]T 2-60 L 26-29.
[23]T 2-60 L 31-32.
Mr Lex Iker gave evidence that, at the Vandyke meeting, Mr Queitzsch told him that “he had quite a lot of financial experience and with Elders and Primac Elders, and that he was a finance manager for Queensland for Elders. … he held executive positions other than that with Elders. He had spent somewhere around 20 to 25 years with Elders.”[24]
[24]T 4-40 L 2-5.
Mr Queitzsch, in cross-examination, agreed that he told Mr Lex Iker that he was a finance manager with Elders, had worked for Elders for 25 years, and had held “a high level position with Elders” by the time he had left.[25]
[25]T 2-64 L 17-23.
Mr Lex Iker stated that his reaction to Mr Queitzsch telling him this was that he “immediately thought that, well, this is the sort of person we need, because to be honest to the court, I’m a cocky. I’m not a – not a person that likes the office very much. I’m not – I am a hands-on person and – and I needed somebody. Our business had got too large for our family.”[26]
[26]T 4-40 L 5-8.
Additionally, Mr Lex Iker stated that Mr Queitzsch said that he was a Justice of the Peace (JP), which, according to Mr Lex Iker, “was something, because I’m of the old belief that if somebody is a JP, they should be honest and be able to handle what we needed to have handled.”[27]
[27]T 4-40 L 35-37.
Mr Lex Iker stated that those were the “main reasons” why he engaged Mr Queitzsch but also added that, “you know, I respected Chris Todd. Toddy, you know, is a very caring person and – and so I just thought, well, everything is right here.”[28]
[28]T 4-40 L 39-41.
Mr Queitzsch and Mr Lex Iker agreed that Mr Queitzsch did not tell Mr Lex Iker about PRD Noosa Pty Ltd or Apex AM Pty Ltd, which were wound up in 2009 and 2012 respectively.[29] Mr Lex Iker stated that, had he been told that at the time, he would not have engaged Mr Queitzsch.[30] However, Mr Lex Iker also gave evidence that, sometime in early 2014, Mr Queitzsch told him about one of the businesses, and explained that it was “over the GFC”. Mr Lex Iker accepted that explanation from Mr Queitzsch at the time.[31]
[29]T 2-85 L 43-46; T 4-42 L 40-45 and T 4-43 L 1-2.
[30]T 4-43 L 7.
[31]T 4-57 L 30-31. On the evidence, it is unclear precisely which business Mr Queitzsch told Mr Lex Iker about in early 2014. If the business was affected by the GFC, then it is likely that it was the PRD Noosa Pty Ltd business that was wound up in 2009.
Other evidence
The proposal for the CA provided by email on 27 September 2013 (CA Proposal) contains a statement in relation to Mr Queitzsch’s experience. It states as follows:
“Peter Queitzsch will direct the project. He has 25 years commercial experience in Agribusiness having held several senior and executive management positions with Elders Limited. His time at Elders included over 5 years as state finance manager. Since leaving Elders he undertook several consulting projects and has been actively involved in a number [of] commercial property based enterprises for the past 12 years. He holds a Graduate Diploma in Business, Masters in Business Administration, Certified Practising Real Estate Agent and is a Justice of the Peace.”[32]
[32]Court Book tab 226 page 1211.
The Proposal dated 20 November 2013 which preceded the ESA (ESA Proposal) contains a statement of qualifications in substantially the same form.[33]
[33]Court Book tab 227 page 1216.
This is also largely consistent with the evidence of Mr Lex Iker as to his recollection of what Mr Queitzsch told him about his experience.[34]
[34]T 4-40 L 1-5; T 4-40 L 32-37.
Consideration
While the statements of experience as set out in [9(a), (b) and (c)] of the 4FA Defence were made, I do not find that the “implied representation” as set out in [9(d)] of the 4FA Defence was made.
Given the specific nature of the statements of experience and the evidence at the trial, I consider that the representation as pleaded has not been established.
The implied representation purports to imply a specific link to the tasks to be undertaken: that is, the sale of SOS and the “Iker goals”. As will be further discussed below, I find that the overall evidence does not support that position.[35]
SOS sale representation
[35]See discussion in paragraphs following in relation to the SOS sale representation.
Oral evidence
The oral evidence outlined at paragraphs [36] to [39] above is also relevant background to the consideration of the SOS sale representation.
Mr Lex Iker gave evidence of two key statements he said were made at the Vandyke meeting. First, that Mr Queitzsch said that “[Mr Queitzsch] thought that he may have a potential buyer and that he believed that … he could sell [SOS] in three to six months.”[36] Second, he said that he told Mr Queitzsch that they wanted to sell SOS soon to relieve their financial pressure.[37] This, according to the defendants’ counsel, was the “SOS sale representation”, and the context in which it was made.
[36]T 4-40 L 10-13.
[37]T 4-40 L 15-22.
Mr Queitzsch, in cross-examination, denied making that statement at all,[38] and further denied that he said that he would sell SOS in priority to any other matter.[39]
[38]T 3-17 L 30-33.
[39]T 3-17 L 35-36.
Clayton Iker gave evidence that he was not involved in much of the conversation at Vandyke as he was running the feedlot during the day.[40] Clayton gave some evidence, over objection by Counsel for the plaintiff, that “[Mr Queitzsch] had a plan of three to six months to – to sell [SOS].”[41] Clayton gave further evidence that Mr Queitzsch talked “multiple times” about selling SOS “within a timeframe” but those were not conversations he had at Vandyke.[42] Clayton’s evidence was quite vague in this regard.
[40]T 5-7 L 1-4.
[41]T 5-7 L 25-29. This had not been foreshadowed in the evidence summary for Clayton Iker.
[42]T 5-11 L 7-18.

Chrystal Iker, the only other witness present at the Vandyke meeting, did not provide any evidence that the representation was made and said that she could not recall the specifics of the meeting.[43]
[43]T 2-77 L 18-20.
Jo-Anne Iker was not called as a witness by the defendants and the plaintiff submits that the Court is entitled to assume that nothing she would say would have assisted the defendants in accordance with Jones v Dunkel.[44]
[44](1959) 101 CLR 298.
Consideration
The defendants submit at paragraph 109 of the written submissions as follows:
“Furthermore, it is likely that the plaintiff made the SOS sale representation, including the timing of selling SOS given the importance of the timing to Lex as a result of the financial concerns he was then under, and because he was intent on getting out of SOS to free up finance to ease those concerns and relieve the Iker group agribusiness meeting the debts of Ikerus and TLD.” (Emphasis added)
This submission on behalf of the defendants seems to focus on the motivations of the defendants, particularly Mr Lex Iker, rather than the actual evidence of whether the representations were made.
The SOS sale representation as pleaded in [10] of the 4FA Defence is in some respects quite specific but at the same time lacks precision.
For example, at the time that the alleged representation was made, Mr Queitzsch was not engaged by the Iker Family and Entities in relation to other projects. [10(d)(i) and (ii)] of the 4FA Defence state the implied representations to be:
(a)he would be able to sell SOS within three to six months;
(b)he would in any event sell SOS as a priority to anything else he had to do.
Further, the lack of precision in relation to the SOS sale representation is amplified as the various parts of the SOS sale representation are not clearly established by the oral evidence.
For example, the plaintiff refers to the evidence of Mr Lex Iker in relation to the timing of any sale of SOS as follows:
“He said that he thought that he may have a potential buyer and that he believed that ‒ when I questioned him, he believed he could sell it in three to six months.”[45]
[45]T 4-40 L 10-15.
The plaintiff submits that this is not evidence that Mr Queitzsch said he would sell SOS “as a priority to any other matter”. Nor is it evidence that he said he was certain that he would sell SOS in three to six months.
The difficulties in respect of the oral evidence relating to this representation is compounded by the documentary evidence. The alleged SOS sale representation is not supported by any contemporaneous documents and is in fact contrary to the agreements signed by the parties.
The CA Proposal makes no reference to the matters pleaded in [7], [8] or [10] of the 4FA Defence. The CA Proposal outlined the development of a strategy in respect of SOS and the adjoining property, TLD. Further, at the first bullet point on page 1209 of the trial bundle, the CA Proposal expressly states:
“[The partners in Ikerus and TLD’s] preference is to lower their exposure and passively hold the investment going forward.”
This is in stark contrast to a sale of the freehold title in SOS, consistent with the SOS sale representation.
Further, the CA that was signed by the parties clearly envisages a period of considering options and “developing or upgrading” SOS and/or “exploitation” of SOS.
The CA also raises in the definition of Stage One Services the potential for freehold sale and lease. This again is inconsistent with the alleged SOS sale representation because, if Mr Lex Iker had made it clear that SOS was to be sold and Mr Queitzsch had represented that he would in effect do that, then those parts of the written CA would not be required.
The ESA Proposal also makes no reference to selling SOS or doing so within three to six months. In fact, by the time that the ESA was signed on or about 17 December 2013, potentially four months of that three to six month period had already expired. To the extent that the alleged SOS sale representation is relied on as being misleading or deceptive in respect of the entry into the ESA, it would suggest that it was no longer misleading if it had in fact been made because by then at least the earliest of the dates clearly had not been met.
The plaintiff also refers to the fact there is not one letter or email from the defendants to the plaintiff complaining that SOS was not sold within the alleged three to six month timeframe. Further, when the defendants caused a letter of termination to be sent to the plaintiff in August 2017 that letter made no reference to any misleading conduct.[46]
[46]Court Book tab 216.
The defendants also place reliance upon an email dated 1 June 2017 from Mr Queitzsch to Mr Todd. This email makes reference to Mr Queitzsch being initially introduced to Mr Lex Iker and Tony Richmond to sell SOS and the adjoining property. While this may have been the thinking behind the initial introduction by Mr Todd, the CA Proposal and the CA do not reflect that as the position upon which Mr Queitzsch was retained.[47]
[47]Through the agreements with the plaintiff company.
Further, the plaintiff refers to the fact that the allegations of misleading conduct did not appear in at least the first two versions of the defences filed by the defendants.[48]
[48]Exhibits 21 and 22.
On 19 October 2017 a proposed defence and counter claim also made no reference to misleading conduct.[49]
[49]Exhibit 23.
In or about December 2017 an attempt was made to introduce a claim for misleading conduct however that was not allowed. The proposed draft pleading at that stage in relation to misleading conduct makes no reference to a representation that SOS would be sold within three to six months.[50]
[50]Exhibit 24.
The amended defence filed on 21 December 2017[51] following the application before Justice Jackson does not contain any reference to misleading conduct in accordance with the orders of his Honour. Rather, the representation that Mr Queitzsch would procure the sale of SOS “in priority to any other matters” allegedly induced the defendants to enter into the agreements and was pleaded as either an express or implied term of the ESA and/or the CA.
[51]Exhibit 25.
A further amended defence filed on 2 August 2019[52] also made no reference to misleading conduct.
[52]Exhibit 26.
On 9 October 2019[53] a further amended defence was filed which contained an allegation in paragraph 5(b) in respect of the defendants being “induced to enter into the contract” alleging a representation from Mr Queitzsch that he would procure a sale on SOS in “priority to any other matters”.
[53]Exhibit 27.
The first pleaded misleading case in relation to a representation that SOS would be sold within three to six months only arose in a further amended defence dated 18 June 2020.[54] Mr Lex Iker was asked to explain why such an important allegation had not been included in the pleaded case until then and he was unable to provide a plausible explanation.[55]
[54]Exhibit 28.
[55]T 4-67 L 5-10.
In cross-examination, Mr Lex Iker suggested that the failure to plead the allegation was an “oversight on my behalf”.[56] There is some suggestion in the defendants’ closing submissions that it may have been an oversight of the lawyers advising the defendants.[57]
[56]T 4-66 L 40-45.
[57]Defendants’ written closing submissions at [111].
Given that the SOS sale representation is now such a critical component to the defendants’ position in its pleaded case, it is difficult to accept that it had merely been overlooked until June 2020.
The central importance of the SOS sale representation to the defendants’ case is seen by the fact that it is relied upon in relation to inducing the defendants’ entering into the CA even though no relief is sought under the CA. Further, it is alleged as part of the context for the misleading or deceptive conduct claim in relation to entry into the ESA. It is also alleged to be a breach of the ESA on the basis that the plaintiff warranted that it could and would sell the SOS within three to six months and in priority to all other matters. Given the now fundamental role that the SOS sale representation takes in relation to the defendants’ case, the late inclusion of it in the defence is difficult to understand.
In the circumstances in which the SOS sale representation was incorporated into the defendants’ case, the lack of precision in the evidence and the fact that it is inconsistent with contemporaneous documents including the final signed CA, I am not satisfied that the defendants have established the SOS sales representation.
Business improvement representation
The business improvement representation is pleaded in relation to the lead up to entry into the ESA. It is also relied upon in relation to the breach allegations considered separately below.
The circumstances that form the basis of the business improvement representation are set out in [21], [22] and [23] of the 4FA Defence:
(a)A discussion between Mr Queitzsch and Mr Lex Iker in or about November 2013 constituted by “the agribusiness request” which encompassed:
(i)Reliance on the Queitzsch experience representations;
(ii)asking whether Mr Queitzsch could assist the agribusiness by:
(A) “reviewing” and “improving” the agribusiness operations; and
(B) dealing with financiers “to hold them off enforcement of debt arrangements while the process of selling SOS was engaged through the CA Services”.
(b)At that time, both Mr Lex Iker and Mr Queitzsch knew:
(i)“the Iker family were under significant financial stress from the financiers who had been pressuring the Iker family to secure relief from the then debt level”;
(ii)“Mr Queitzsch by then had gained a level of knowledge of the Iker family business finances and operations”;
(iii)“the sale of SOS would provide significant financial relief from the aforesaid stress, and would substantially satisfy the Iker goals”.
(c)In response to the agribusiness request, Mr Queitzsch:
(i)said words to the effect “that given his experience, the business could only go forward and that he could assist the Iker family in the manner sought by the agribusiness request”; and
(ii)“gave the impression” in the circumstances of the “Iker goals”, the Queitzsch experience representation and the agribusiness request, that he would satisfy the agribusiness request and “relieve the financial stress the Iker family had been under by using his skills and experience to reduce their level of debt”.
I note that [23] of the 4FA Defence does not include the SOS sale representation.
At [24] of the 4FA Defence the defendants plead that the business improvement representation “was, and was understood by Mr Lex Iker, to be intended to include ensuring significant relief for the financial stress and pressure the Iker family and entities were then under”.
In response the plaintiff says that the agribusiness request as pleaded was not made, to the extent that [22] pleads the state of mind of Mr Queitzsch, he did not have that state of mind, Mr Queitzsch did not say the words alleged in [23] and the implied representations were not made.
Further the plaintiff says that the implied representations as pleaded are unintelligible and liable to be struck out.
Oral evidence
According to Mr Lex Iker, there were further discussions with Mr Queitzsch in November 2013 about Mr Queitzsch taking over running the cattle business in conjunction with the Ikers.[58] Mr Queitzsch agreed that, in November 2013, Mr Lex Iker asked him to review the Ikers’ agribusiness operations. Mr Queitzsch said that this was done to look at the agribusiness’s capability to support the program proposed for SOS (i.e. the development of the property).[59]
[58]T 4-40 L 45-47 to T 4-41 L 1-10.
[59]T 3-33 L 30-44.
Mr Queitzsch denied that, prior to entering into the ESA, he was aware of the significant financial stress the Ikers were under from their financiers.^[60]
[60]T 3-36 L 40-46.
Mr Lex Iker gave evidence that, in the lead-up to signing the ESA, Mr Queitzsch promised that he would “corporatize” the business.^[61] Further, Mr Lex Iker gave evidence that Mr Queitzsch said that “[the business] could only move forward under his watch.”[62] Mr Lex Iker also said in evidence that he took that to mean that Mr Queitzsch would “get out of the hole that we’re in” and “alleviate our financial problems.”[63]
[61]T 4-41 L 11-14.
[62]T 4-41 L 16-17. It should be noted that this evidence was led out of Mr Lex Iker by counsel for the defendants during examination in chief. The exchange was: “Did he say anything to you about how the business might move?---Move forward. He said that it could only move forward under his watch.”
[63]T 4-41 L 19-23.
Mr Queitzsch, in cross-examination, said that he did not recall saying that the business could “only go forward”.[64] Mr Queitzsch said that he held the belief at the time that he could help the Ikers to negotiate a short-term increase with the banks leading up to Christmas.[65]
[64]T 3-40 L 6-10. Counsel for the defendants did not put the proposition to Mr Queitzsch that he said the words “move forward”, which was the evidence of Mr Lex Iker. Counsel for the defendants used the phrase “go forward” with Mr Queitzsch. Counsel for the defendants also put multiple propositions to Mr Queitzsch at the same time. The exchange was as follows: “All right. During those discussions with Lex Iker, when he asked you to review the business operations and other matters which you denied, you said to him, or words to the effect, that given your experience, the business could only go forward, and that you could assist the Iker family in what Lex was asking you to do?---They are not words that I recall using.”
[65]T 3-40 L 40-46.
There appears to be some inconsistency about this representation between the defendants’ witnesses. For example, Chrystal Iker said that, at the Vandyke meeting, "[Mr Queitzsch said that he] had – been in positions previously that proved that he seemed to be confident to – to help us in – in moving forward.”[66] It is unclear whether Chrystal Iker meant that Mr Queitzsch used those words, or whether that was her impression from what he stated about his experience.
[66]T 2-77 L 22-24.
Clayton Iker also used the phrase unprompted. When asked about the changes Mr Queitzsch implemented after he came on board, Clayton said, “he tried to corporatize the business, introduce the board meetings, implemented a business strategy that – that was to – to help – help the Ikers go forward.”[67]
[67]T 5-15 L 42-43.
Consideration
The plaintiff’s position is that the business improvement representation is not an actionable representation as it has no definite or precise meaning. Alternatively, the plaintiff submits that if it is an actionable representation it was a statement or prediction about future matters. As such, it is only misleading if there was no reasonable basis for making it. In this regard the plaintiff relies on Mr Queitzsch’s qualifications and work history with Elders to provide a reasonable basis for stating that the business would move forward.
Further, the plaintiff says that if in fact the business did not move forward then it does not necessarily prove misleading conduct and the defendants bear the onus of proving misleading conduct.
Whilst the plaintiff acknowledges that Mr Lex Iker gave evidence that Mr Queitzsch said the business could only move forward under his watch, he did not give other evidence about the importance of such comments to his decision making process. That is, he did not provide evidence that he was misled or fell into error because of what he was told.
In their submissions, the defendants refer to Mr Lex Iker’s evidence that “Peter promised he would corporatize the business, and that it would only move forward[68] under his watch. In that context, Mr Lex Iker took that to give him hope that Peter was going to alleviate their financial problems[69]”.
[68]A proposition that Peter Queitzsch accepted that he could have said - T3-40, 12. [I note that this reference provided by the defendants is of the following exchange: “You could’ve said it though, couldn’t you?---I could’ve said anything.”. Both before and after this exchange, Mr Queitzsch said that he did not recall using the words “go forward”.]
[69]T 4-41 L 19-23.
The reference to giving him hope as to alleviating their financial problems is different from making out what is pleaded as the business improvement representation.
The plaintiff also refers to the ESA as containing no reference to “moving the business forward”.
There is a heading “Going Forward” in the ESA Proposal dated 20 November 2013[70] however the use of this phrase in the document is more akin to “next steps” then a representation as to the improvement in the financial position of the businesses.
[70]Court Book tab 227 at page 1216.
Given the lack of precision in the evidence as to this alleged representation, in the circumstances I am not satisfied that the defendants have established the business improvement representation was made.
Did the plaintiff engage in conduct that was misleading or deceptive?
As I have found that each of the three representations as pleaded have not been established, it is not strictly necessary for me to consider this issue further. However, I consider that it is appropriate to address some aspects in case I am wrong about whether the representations were made.
SOS sale representation
If the SOS sale representation was made then it is likely that it would be misleading or deceptive as SOS was not sold within three to six months, nor was it sold as a matter of priority.
However, it is also important to keep in mind the relevant timeframe. At a point in time once the three to six month period had expired then it was obvious that the sale of SOS would not occur within three to six months. In those circumstances at a point in time it arguably became no longer misleading or deceptive because it in effect had not occurred and that was known.
Business improvement representation
If the business improvement representation was made, it is less clear whether it was conduct that was misleading or deceptive.
The evidence in respect of this issue is less than satisfactory. To the extent that it is a future representation then Mr Queitzsch’s considerable experience may have provided a basis for the making of the representation. However, there is a lack of evidence as to whether the business in effect did “move forward” or not.
The plaintiff in its written submissions in paragraphs [116] to [119] in the context of the breach claim also addresses issues relevant to the alleged business improvement representation. The plaintiff points to evidence including the following:
(a)by April 2017 an “in principle” agreement had been reached with Westpac to write-off the majority of the debt on SOS.[71]
(b)a contract had been entered into to sell the Outstation for $10.6 million dollars which contract settled after termination of the plaintiff’s agreement.[72]
[71]Court Book tab 140; T 4-17 L 25-35.
[72]T 4-17 L 40-45.
The plaintiff relies upon this as evidence of a significant reduction in debt as a consequence of the plaintiff’s efforts.
Further, a final report prepared by Grant Thornton sets out historical financial performance for the first defendant.[73] In this regard, the plaintiff points to the following:
(a)For the financial year ending 2012, the second defendant operated at a loss of $2.3 million;
(b)For the financial year ending 2013, that loss reduced to approximately $1.56 million;
(c)For the financial year ending 2014, a loss of $746,000.00;
(d)For the financial year ending 2015, the loss increased to $1.3 million.
[73]Court Book tab 215 at page 963.

The plaintiff relies on this to indicate that there was some improvement in profitability at least in 2014 and 2015 financial years when the plaintiff was engaged.
The defendants specifically plead that success was not achieved for the matters set out in [34(e)] of the 4FA Defence and the particulars including the debt set out in Table A. No evidence was adduced at trial in relation to these matters, including the debt set out in Table A. [34(e)] of the 4FA Defence (including Table A) is not being pressed by the defendants.
As an alternative, the defendants now seek to point to various parts of a report from Grant Thornton[74] as evidence that the “organisation” was not a success. However, the plaintiff objects to the defendants’ reliance on these factual allegations as they do not form part of the defendants’ pleaded case.
[74]Defendants’ written closing submissions at [83].
On the evidence it is difficult to conclusively conclude that, if the business improvement representation was made, then it was misleading or deceptive. Particularly this is so given the various business entities operated by the Iker family. That is: the defendants operated a number of different businesses in the agricultural sector and it is impossible on the evidence to conclude whether individually or together they in effect “moved forward” or not.
The fact that events occurred which Mr Lex Iker and/or the defendants may not have been happy about in relation to the negotiations with the banks is fundamentally different to establishing that the alleged representation was misleading or deceptive.
Queitzsch experience representation
The defendants submit that the Queitzsch experience representation in the circumstances outlined in [27] of the 4FA Defence amounts to misleading or deceptive conduct contrary to section 18 of the ACL.
If I am wrong and the Queitzsch experience representation as set out in [9] of the 4FA Defence was made, then whether it is misleading or deceptive requires consideration of a number of issues.
The pleading in [27] of the 4FA Defence sets out the basis on which the defendants say that the conduct of Mr Queitzsch in making the Queitzsch experience representation was “false, misleading and deceptive or likely to mislead and deceive”. Namely:
(a)Mr Queitzsch had an “obligation and duty” at the time of making the alleged representation “which continued during the entire time he was engaged” to inform Mr Lex Iker “whether any part of is working history involved him being in a position of control or having the capacity to control any businesses or companies that had not been successful or had ceased operating whilst he was in such a position”.
(b)The “obligation and duty” arose because:
(i)“that information would have affected the impression conveyed”; and
(ii)“would have been information of importance to a person in the position of Lex Iker who had to determine whether Mr Queitzsch had the skills and experience to be able to successfully assist in the achievement of the Iker goals”;
(c)Mr Queitzsch did not tell Mr Lex Iker or Jo-Anne Iker prior to entry into the CA or ESA or the making of the business improvement representation that “his previous working history also involved him being in a position of control or having the capacity to control any businesses or companies that had not been successful or had ceased operating whilst he was in such a position operating businesses or companies that had failed”;
(d)Further Mr Queitzsch did not correct the “impression”; and
(e)Mr Queitzsch’s working history involved him being “in a position of control or having the capacity to control any businesses or companies that had not been successful or had ceased operating whilst he was in such a position”.
In respect of (e) above the defendants rely on the following specific instances:
“(i)Mr Queitzsch had been involved in a failed business involving the National Rental Affordability Scheme through the entity Apex AM Pty Ltd, of which he was a director. In 2012, Apex AM Pty Ltd applied to the Supreme Court of Queensland to set aside two (2) statutory demands for payment, and on 18 September 2012 proceedings were commenced in the Supreme Court of Queensland applying to wind up Apex AM Pty Ltd. On or about 5 October 2012 ASIC received notification that liquidators had been appointed by the Court.
(ii)Mr Queitzsch had been involved in a failed real estate business through the entity PRD (Noosa) Pty Ltd, of which he was a director and shareholder. In July 2009 ASIC received notification of the appointment of liquidators (in a creditors’ voluntary through winding up) to PRD (Noosa) Pty Ltd.
(iii)Mr Queitzsch had been a director of the following entities which had been deregistered:
1.      Fox Sunshine Pty Ltd (which had been deregistered on 4 June2008 pursuant to an application for voluntary registration);
2.      Fox Noosa Pty Ltd (which had been deregistered by ASIC on 16 June 2013); and
3.      Atherton Retirement Holdings Pty Ltd (which had been voluntarily deregistered on 26 December 2012).”
The defendants submit that there was a failure to disclose the liquidation of Apex AM Pty Ltd and PRD (Noosa) Pty Ltd and that this amounted to misleading conduct. To the extent that other entities are mentioned in [27(e)] of the 4FA Defence these have not been made out on the evidence and are not pursued.
The defendants rely on the case of Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd[75] in support of the proposition that silence may constitute misleading or deceptive conduct where some qualification to a statement is necessary to avoid a party being misled.
[75](1987) 72 ALR 601, 610.
The defendants point to Mr Queitzsch’s failure to disclose the history of the liquidated Apex AM Pty Ltd and the PRD (Noosa) Pty Ltd as being misleading or deceptive or likely to mislead or deceive a reasonable person into believing that “[Mr Queitzsch] did not have any adverse work history involving him being in a position of control of a company or business that had been forced to cease operating or had not been successful”.
The defendants’ position is that in entering into the CA and the ESA, Mr Lex Iker relied on Mr Queitzsch’s stated experience and it was not accurate as it did not refer to the two prior episodes of liquidated companies. Further, the defendants submit that if the two episodes been disclosed then the defendants would not have entered into the CA or the ESA. The defendants rely on the following evidence in support of this:
(a)Mr Lex Iker told Mr Queitzsch that he wanted to sell SOS because the family wanted some finance to help out in the rural business. Further, they were concerned about the finances with the banks.[76]
(b)Mr Lex Iker discussed the desire to get out of SOS, that a sale completed soon was important as there was a need to relieve the family’s financial pressure. Mr Lex Iker told Mr Queitzsch for the need to sell it soon.[77]
(c)The reference to “facilitating your specific needs” in the CA Proposal supports the defendants’ case that Mr Lex Iker told Peter Queitzsch that he wanted to sell SOS to gain financial help with the family’s concerns with the banks and to help the rural business side of their operations.[78]
[76]T 4-39 L 40-46.
[77]T 4-40 L 15-22.
[78]Defendants’ written closing submissions at [49].
At the trial Mr Lex Iker was asked whether he would have engaged Mr Queitzsch had he known about the prior company liquidations and he replied “absolutely not”.[79]
[79]T 4-43 L 7.
The written submissions on behalf of the defendants expand on the basis for the obligation to disclose this information as follows:
(a)Failure to disclose “would have sensibly been a serious concern” especially where his more favourable experience was displayed.
(b)“In the circumstances of the financial concerns the desire to alleviate the financial pressures that Lex [Iker] informed Peter [Queitzsch] of, and also the inherent responsibility of taking over the business operations in conjunction with the family, it is difficult to see why that information should not have been required to be disclosed when entering into the ESA …”.[80]
(c)The role of operational management of the business included making business plans to achieve a successful outcome for the business and a “successful history of such skills would have objectively been important to any reasonable person looking to engage an acting CEO, and someone to undertake the tasks in the CA, and so naturally it also would have been important to know if there were any events displaying an unsuccessful episodes [sic] in the persons [sic] history involving corporate, executive or real estate work.”[81]
[80]Defendants’ written closing submissions at [60].
[81]Defendants’ written closing submissions at [60] and [62].
The plaintiff relies on several matters in response:
(a)Other than proving that Apex AM Pty Ltd and PRD (Noosa) Pty Ltd had been wound up, there is no evidence before the Court establishing that they were businesses that had “failed”.
(b)The evidence from Mr Queitzsch was that Apex AM Pty Ltd was wound up because of an internal dispute between shareholders and directors and not as a consequence of being a “failure”. Further, at the time the company was wound up, it was not trading and had no external creditors. The company was wound up upon the application of two directors who claimed amounts for director’s fees which were in excess of the amount that was held in the bank account.[82]
(c)In respect of PRD (Noosa) Pty Ltd there is no evidence before the Court that this was a failed business. A company search shows that it was the subject of a creditor’s voluntary winding up on 6 July 2009.[83] A voluntary administrator was appointed which then wound up the company at the second meeting of creditors. The company was wound up in 2009 but there is not further evidence before the Court.
[82]T 4-11 and exhibit 11.
[83]Court Book tab 160.
The plaintiff also refers to evidence from Mr Lex Iker that he became aware in early 2014 that Mr Queitzsch had been involved in a company which had not been successful but “because it was over the GFC, I thought it was quite ok”.[84] The plaintiff submits that this is obviously a reference to PRD (Noosa) Pty Ltd given it was wound up in 2009 which aligns with the period of the GFC. In this regard the plaintiff submits that if it was really of concern to Mr Lex Iker he could have taken action in early 2014 but did not do so.
[84]T 4-57 L 30-35.
At the hearing there was also reference to the fact that Mr Queitzsch had been a director of three companies which had been deregistered. The plaintiff submits that the fact that the companies had been deregistered was not evidence that the companies had “not been successful”.
The plaintiff recognises that before silence can constitute misleading conduct there must be circumstances which give rise to the reasonable expectation that if some relevant fact exists it would be disclosed.[85]
[85]POA Enterprises Pty Ltd & Others v Chemist Warehouse Southport & Others [2012] QSC 316, [20]-[23].
In relation to misleading conduct by silence, the general legal principles have been expressed in a number of different ways, including as follows:
(a)If the circumstances of a particular case give rise to a reasonable expectation that, if a fact existed, it would be disclosed, then the failure to disclose that fact may give rise to an inference that the fact does not exist.[86]
(b)Unless the information given constitutes a full and fair disclosure of all the facts which are material to enable an informed decision, the combination of what is said and what is left unsaid may, depending on the full circumstances, be likely to mislead or deceive.[87]
(c)Where an applicant claims to have been misled by a failure to make full and true disclosure, the applicant bears the onus of proving how what was not said was likely to mislead or deceive. Errors must be relevant and material.[88]
(d)The approach for determining whether the conduct created a misleading impression, which it failed to correct “is to determine whether what was actually said or done, in all the relevant circumstances, conveyed something more, such that it led the applicant into error”.[89]
(e)The question is whether what was actually said, in all the relevant circumstances, would convey something more to a reasonable person in the position of the other party, such that it was likely to lead into error. Merely because information would be useful does not mean Courts will impose an obligation on the defendant to disclose it.[90]
[86]Rafferty v Madgwicks (2012) 203 FCR 1, 68.
[87]Fraser v NRMA Holdings Ltd (1995) 55 FCR 452, 467.
[88]Ibid.
[89]Bennett v Elysium Noosa Pty Ltd (in liq) (2012) 202 FCR 72, 88.
[90]Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1998) 39 FCR 546; Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Limited (2005) 185 FLR 14.
Further, in Miller v BMW[91] the High Court took two different approaches to determining whether the conduct there was misleading or deceptive. The majority analysed whether the conduct viewed as a whole conveyed a representation which was misleading. The alternative approach was to analyse whether the circumstances gave rise to a “reasonable expectation that if some relevant fact existed, it would be disclosed to the person who claimed to be misled”. In regard to this latter approach, French CJ and Kiefel J (as the Chief Justice then was) observed:
“Reasonable expectation analysis is unnecessary in the case of a false representation where the undisclosed fact is the falsity of the representation. A party to pre-contractual negotiations who provides to another party a document containing a false representation which is not disclaimed will, in all probability, have engaged in misleading or deceptive conduct. When a document contains a statement that is true, non-disclosure of an important qualifying fact will be misleading or deceptive if the recipient will be misled, absent such disclosure, into believing that the statement was complete.”[92]
[91](2010) 241 CLR 357.
[92](2010) 241 CLR 357, 371.
On the basis of this analysis the reasonable expectation would only arise where there is an objectively reasonable expectation on the part of the other party that the fact should be disclosed because it would be relevant or material in its decision making. There reasonableness is to be assessed objectively and is not the subjective expectation of the other party.[93]
[93](2010) 241 CLR 357, 369.
Where one party specifically makes known a “particular purpose or objective which that party is seeking to achieve, or specific transactional requirements for entering into the transaction” then a reasonable expectation of disclosure may be more likely to arise.[94]
[94]Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, 583 and 587-588; Paterson, Corones’ Australian Consumer Law (4^th edition) at [3.290].
Further, the existence of something unusual may give rise to a reasonable expectation in the circumstances of a particular case. For example, if something is not able to be ascertained by conducting public searches and the information for example is only in the hands of one party.
The case of Dawson v LNG Holdings[95] is an example of a reasonable expectation of disclosure arising in circumstances similar in some respects to the current situation.
[95][2008] NSWSC 137.
In that case, Mr and Mrs Dawson, the first and second plaintiffs, claimed damages against LNG Holdings, Mr Vaughan and Mrs Nash in respect of their investments in a failed property development. The Dawsons alleged that, through various representations, Mr Vaughan, a director of LNG, and his de facto partner Mrs Nash, engaged in misleading or deceptive conduct that induced them to invest the project. In particular, the Dawsons allege that Mr Vaughan’s failure to disclose his status as an undischarged bankrupt prior to the Dawsons investing in the development was misleading or deceptive conduct.
His Honour Justice White set out the following in relation to representations by silence:
“[86] … Silence is to be assessed as one of the factors in a party’s conduct having regard to what the party did, what it said, and what it did not say or do, in order to determine whether its conduct as a whole was misleading or deceptive (Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 34, 41). If the circumstances are such as to give rise to a reasonable expectation that if some relevant fact exists it will be disclosed, silence may support the inference that that fact does not exist (Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53,193 at 53,195; Demagogue Pty Ltd v Ramensky at 32, 41; Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97 at 114; Warner v Elders Rural Finance (1993) 41 FCR 399 at 405).”
After concluding that Mr Vaughan did, in fact, know that he was an undischarged bankrupt at the relevant time, his Honour concluded that Mr Vaughan’s failure to disclose his bankruptcy was deliberate. Further, his Honour stated:
“[128] Mr Vaughan submitted that his bankruptcy was not material because he was providing no financial support to the venture. However, the relevance of his bankruptcy was not confined to whether he could provide financial support to the venture. Bankruptcy carries a stigma. People invited to invest in a venture are likely to be concerned and suspicious if one of the promoters is an undischarged bankrupt. Bankruptcy may convey to a potential investor that the promoter is not a reliable or trustworthy person. At the very least, his or her financial acumen is called into question. Mr Vaughan’s bankruptcy was a material matter for potential investors to know. The fact that he had been acting as a director of LNG notwithstanding his bankruptcy would also be material, but this was not a separate particular of misleading conduct. I conclude that Mr Vaughan, in trade or commerce, engaged in misleading or deceptive conduct by not disclosing the fact of his bankruptcy. It was a matter which, if it existed, Mr and Mrs Dawson would reasonably expect to be disclosed. I accept Mr and Mrs Dawson’s evidence that had they known Mr Vaughan was an undischarged bankrupt they would not have invested in the project.
[129] LNG also engaged in misleading and deceptive conduct by not disclosing Mr Vaughan’s bankruptcy. Mr Vaughan was purporting to act as an officer of LNG at his meetings with Mr and Mrs Dawson. Mr Gorman held him out to Mr and Mrs Dawson as his joint venture partner and co-director. LNG, through Mr Vaughan, engaged in misleading and deceptive conduct by not disclosing his bankruptcy.”
White J found Mrs Nash had not engaged in misleading and deceptive conduct on this issue as she had not known Mr Vaughan was an undischarged bankrupt at the relevant time.
In considering the particular circumstances in which the obligation to disclose arose in that case, it is important to also consider the following circumstance:
“122.The lenders to LNG and PED had required tax returns, a curriculum vitae, and a statement of assets and liabilities in support of the funding application. On 5 August 2002, Mr Gorman sent an email to Mr Vaughan saying that he needed that information urgently. Mr Vaughan fobbed off the inquiry, saying he had not lodged tax returns due to divorce difficulties and that his accountant had a dispute with the Australian Taxation Office. Those were not the only difficulties facing Mr Vaughan if he were required to provide the information. I am satisfied that he was conscious in August 2002 of his status as an undischarged bankrupt.”

The defendants’ written closing submissions accept that at the conclusion of the term of the ESA Mr Queitzsch continued to be engaged on a monthly basis.[153] The defendants’ position in their closing submissions appears to be that the ESA term naturally expired on 31 October 2015 and that the conduct of the parties shows that Mr Queitzsch was not re-engaged on the terms alleged by the plaintiff (i.e. the New Agreement) or at all.[154]
[153]Defendants’ written closing submissions at [90].
[154]Defendants’ written closing submissions at [93] and [94].
But this position is plainly at odds with what actually happened: Mr Queitzsch continued to provide services and rendered invoices which were paid by the defendants post 31 October 2015. It is inconsistent for the defendants to say there was no “re-engagement”. Whether there was an engagement on a monthly basis or something more formal, there was some form of engagement of Mr Queitzsch.
This is also inconsistent with the letter of termination dated 12 August 2017 sent by Mr Geoff Shannon as “authorised officer” for the Iker Group.[155] In the covering email to Mr Queitzsch, Mr Shannon states “confirming of [sic] termination of any agreement you may or may not rely upon in respect of your dealings with the Iker’s [sic]”. The attached letter refers to the CA and the ESA and then outlines a number of alleged breaches. It concludes by stating:
“The Iker Group rely on a repudiation of both contracts given both C, D and E above.
Given the repudiation of both contracts caused by the Consultant, the Iker Group demand all monies received to date to be returned within 7 days to the Iker Group.”
[155]Court Book tab 216.
If there was no on-going engagement of the plaintiff or Mr Queitzsch as at August 2017 there would be no need to send this letter as the term of the ESA ended on 31 October 2015. The idea of giving a form of notice to bring the relationship to an end in August 2017 is consistent with there being some form of relationship at that point in time.
It is not in dispute that Mr Queitzsch continued to work for the defendants up until August 2017 – even the evidence of Mr Lex Iker supports this. The relevant question is then, what was the arrangement under which Mr Queitzsch continued to do work for and provide services to the defendants.
At the hearing much time was spent in respect of whether Clayton Iker formally took over as Chief Executive Officer or not. This in itself is not determinative of whether there was an arrangement by which plaintiff would be paid for services provided by Mr Queitzsch. However, the role actually undertaken by Clayton Iker in this period may be more consistent with one version of events than the other.
It is necessary to address the oral evidence, in particular the evidence of Mr Queitzsch and Clayton Iker in respect of the alleged New Agreement. In the end there are some common elements but there are also some contested facts.
Mr Queitzsch gave evidence over a period of just over three days, with cross-examination for over two days. Mr Queitzsch’s evidence was rational and logical and was largely consistent with the pleaded case. In answering extensive questions under cross-examination he tried to be helpful and answered questions openly and mostly directly. While at times his evidence could be described as a narrative response, this was more a result of the questions that he was asked than a reflection on him or going to his credit. Critically, I find Mr Queitzsch’s evidence as to the “New Agreement” to be plausible and believable.
Clayton Iker’s evidence had inconsistencies and some concerning aspects. His evidence was vague and imprecise and, at times was, deliberately evasive when he was under cross-examination. I find that Clayton Iker’s explanation of signing the Grant Thornton report as a “representative of the Iker Group” was implausible and not believable. Further, his original denial of the conversation with Mr Queitzsch in August 2015 and then concession that a conversation had occurred while trying to maintain a position of not agreeing with the propositions put to him supports a finding that his evidence is unreliable.
I prefer the evidence of Mr Queitzsch as to the discussions regarding the New Agreement over that of Clayton Iker. I accept the evidence of Clayton Iker to the limited extent that it is consistent with the evidence of Mr Queitzsch in this regard.
As to the terms of the “new arrangement”, as a minimum it appears that the terms were consistent with the ESA but varied to reflect the “new arrangement” regarding the roles of Mr Queitzsch and Clayton Iker. Further, this is consistent with Mr Lex Iker’s evidence and the position set out in the 4FA Defence: any changes to the role, services or remuneration were carried on with the acquiescence of Mr Lex Iker and the Board from time to time. By conduct, Mr Lex Iker and therefore the defendants agreed to Mr Queitzsch continuing to provide the services as varied.
In relation to the terms of the “new arrangement” on the evidence I find that:
(a)The terms of the ESA continued as varied by conduct and consistent with the terms discussed between Mr Queitzsch and Clayton Iker.
(b)The invoices contain the new rates and reflect the revised time Mr Queitzsch was to spend providing services (consistent with the terms discussed between Mr Queitzsch and Clayton Iker).
(c)The interest rate claimed is consistent with the discussion between Mr Queitzsch and Clayton Iker, and is less than would otherwise be claimable under s 58(3) of the Civil Proceedings Act 2011.
(d)Clayton Iker commenced acting consistently with being the Chief Executive Officer, even if not formally appointed.
(e)Notes of a Board meeting of the Iker Group on 5 August 2015 refer to the “handover” from Mr Queitzsch to Clayton Iker consistent with the “new arrangement”.[156] The notes record Mr Queitzsch’s preference to only attended monthly Board meetings from that time and that Clayton Iker would travel to Brisbane for meetings with the banks and handover with Mr Queitzsch.
(f)Meeting notes in respect of the Iker group for 26 January 2016 refer to Clayton Iker acting as CEO from 1 September 2015.[157]
(g)The Grant Thornton report of 10 November 2015 was approved by Clayton Iker as CEO, with Clayton Iker signing a letter stating the report was accurate. This was also consistent with what was set out in the report: that Clayton Iker was CEO and Mr Queitzsch was chairman of the advisory board on a retainer of $5000 per month and had an accrued debt of $600,000.[158]
(h)Mr Lex Iker was aware that Mr Queitzsch was acting consistently with these varied terms and was content to let him continue to act on this basis.[159]
[156]Court Book tab 153.
[157]Court Book tab 158.
[158]Court Book tab 202 (letter); tab 215 (Grant Thornton Report).
[159]T 4-45 L 44-47; T 4-46 L 1-3; T 4-46 L 5-9.
Accordingly, I find the New Agreement on the terms set out in [13] of the FASOC.
The defendants raise an issue that the New Agreement, if found, would not be enforceable as it could only be a variation to the ESA which under clause 14.2 of the ESA had to be in writing.
The plaintiff contends that there is no statutory limitation on the ability to amend the ESA other than in writing: it is merely a term of the agreement. As such, it is possible for the parties to an agreement to vary a written contract and this could be done in writing or by oral agreement. Further, the agreement to vary a contract could be express or implied from conduct.
In respect of this latter point, the plaintiff relies on the decisions in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd[160] and Alford v Ebbage.[161]
[160](2003) 128 FCR 1.
[161][2004] QCA 283.
The principles in those cases set out that the existence of an agreement may be inferred from the subsequent conduct of the parties.[162] Further, written contracts can be varied by oral agreement unless required by law to be in writing. Though lacking legal effect in the face of a subsequent oral or implied agreement, “no oral modification” clauses can have significant evidentiary effect and their presence is a fact to be taken into account in interpreting the subsequent conduct of the parties.[163]
[162]Alford v Ebbage [2004] QCA 283, [123] – [125] (Muir J).
[163]GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1, 61-63 (Finn J).
I am satisfied on the evidence that the New Agreement was in effect a variation of the ESA which varied the terms consistently with the discussion between Mr Queitzsch and Clayton Iker and which was accepted by the defendants through their conduct, in particular the conduct of Mr Lex Iker.
Mr Lex Iker was prepared to let Mr Queitzsch continue to provide services and undertake work in accordance with the varied ESA and now seeks to, perhaps opportunistically, deny the existence of any agreement to prevent Mr Queitzsch being paid for those services and work undertaken. Clearly he was aware of the work being done and acquiesced for a significant period of time. In the pleading the defendants acknowledge that there was an “arrangement” even if a temporary one. Mr Lex Iker also in oral evidence admitted that the defendants saw it as a benefit to continue to have Mr Queitzsch’s be involved with the banks on their behalf. In these circumstances, it would now not be just for the defendants to deny Mr Queitzsch’s entitlement to payment under the New Agreement.
At trial the defendants raised a new argument outside the pleading that the liability of any outstanding amounts under the New Agreement had been transferred to IGH. This was objected to by the plaintiff. The defendants are to be held to their pleaded case.
In any event, I accept the evidence of Mr Queitzsch that this was done for accounting purposes and was not a change in the legal liability in respect of the outstanding amounts. This is also consistent with the email exchanges with Grant Thornton about the arrangements.[164] I do not otherwise comment on the desirability or otherwise of arrangements such as this that may result in a reduced transparency to a financier of the true financial position of a company or group.
[164]Court Book tab 207.
Is the New Agreement void for uncertainty?
The terms of the New Agreement are as I have found above.
The arguments in respect of the New Agreement are largely the same as those made by the defendants in respect of the ESA.
However, this has the added complication that there is no executed written agreement in respect of all of the terms of the new arrangement from August 2015. These are however sufficiently clear from the identified conduct and consistent with the discussions between Mr Queitzsch and Clayton Iker.
It is accepted by the defendants that Mr Queitzsch did continue to provide services for the period from August 2015 through to the ultimate termination of his role by letter dated 12 August 2017.
There is evidence that between 1 September 2015 and 30 June 2017 Mr Queitzsch performed the “Board Services” in accordance with the New Agreement and issued tax invoices for the “new Contract Fee” and expenses.
Further, amounts were paid by the defendants in the period from 30 September 2015 through to 14 June 2017 in relation to the work undertaken by Mr Queitzsch. Although, the basis upon which the amounts were paid is contentious (see further discussion below).
I find that the terms of the New Agreement are sufficiently certain so as not to be void for uncertainty.
Were the payments identified in [14(b)] FASOC paid in accordance with the New Agreement?
Again the defendants admit that payments were made but dispute the basis upon which the payments were made.
As I have found that Mr Queitzsch continued to provide services under the New Agreement, the amounts invoiced would be payable in accordance with the terms of the New Agreement.
These invoices begin on 30 September 2015 and go through to 15 December 2016 as identified in [14(b)] of the FASOC.
There is an issue as to whether these payments were authorised by Mr Queitzsch himself or were paid by Chrystal Iker following the invoices being discussed at board meetings in accordance with the usual procedure. Mr Lex Iker’s evidence is that he was not involved in the payment of invoices and that this was left to “Peter and Leanne”. But while Mr Lex Iker maintained that he did not authorise the payments, he did admit that “Chrystal” paid the bills.[165]
[165]T 4-73 L 40.
There is some uncertainty as to the timing of when Chrystal Iker became involved in the payment of invoices. It appears from her evidence that she had some involvement from at least May 2016.[166]
[166]T 2-79 L 13-15; T 2-79 L 30.
I find that it is more likely than not that the three payments were made consistently with the unchallenged evidence of Leanne Daniels that a list of creditors to be paid was presented at the monthly board meetings and they were discussed and a decision was made which creditors were to be paid.[167] This is also consistent with Mr Lex Iker’s evidence that a list of bills to be paid would be presented at the monthly board meetings[168] and that he was aware Mr Queitzsch was being paid, either by Leanne Daniels, Chrystal Iker or Clayton Iker, up to June 2017 through his review of the monthly Grant Thornton reports.[169]
[167]T 3-46 L 15-30.
[168]T 4-74 L 1-22.
[169]T 4-74 L 43 to T 4-75 L 12.
Accordingly, I find on the evidence that the amounts in these invoices in respect of fees and expenses were paid by the defendants to the plaintiff in accordance with the New Agreement.
The three payments in respect of invoices 000867, 000872 and 000882 relate to part payments of the automatic bonuses that had accrued under the ESA. As set out above, the New Agreement did not provide for the accrual of these amounts. There was an agreement reached as to the timing of the payment of this debt which had already accrued. These payments were made on that basis.
Were expenses claimed in the plaintiff’s invoices to be paid?
On the basis that I have found that the terms of the New Agreement applied in this period, expenses would continue to be payable on those terms.
There was no evidence led at trial that the expenses were not incurred or were of a nature that was not claimable. Accordingly, I find that the expenses claimed in the plaintiff’s invoices are to be paid in accordance with the New Agreement.
Were the payments to the plaintiff pursuant to the ESA and the New Agreement totalling $1,133,699 “excessive”?
No repayment of the sum of $1,133,699 paid by the defendants under the ESA and the New Agreement is sought. Rather, the defendants elect to set-off “this loss and damage” against any amounts held to be due and owing.
The defendants claim that the amount paid to the plaintiff in the amount of $1,133,699.10 is excessive on a number of bases:
(a)The plaintiff failed to perform the services as alleged by the defendants, thereby disentitling the plaintiff to the Contract Fee.
(b)The amount paid over the 42 month period was excessive “in all of the circumstances pleaded”.
(c)The appropriate payment to the plaintiff for the services provided by Mr Queitzsch should have been $567,600 (inclusive of GST) and the balance of $566,099.10 is excessive.[170]
[170]Defendants’ written closing submissions at [187].
In respect of the first basis, I refer to my previous discussion of the issues concerning performance of services under the ESA and the payment obligation, and the related issues in respect of the New Agreement.
In respect of the second basis, the ESA specifies the amount that is to be paid for performance of the services. That was agreed between the parties. There is no claim of unconscionability in respect of the agreement. The claims in respect of misleading or deceptive conduct made by the defendants are in respect of the services to be provided, not the amount of the fee.
In circumstances where I have found that there is no basis for the claim that the whole of the services has to be completed before an entitlement to payment arises, the contract fee would be payable. The defendants may now question whether they should have agreed to the amount of the contract fee but that does not justify the Court in rewriting the contract to provide for another amount.
This would be equally applicable in respect of the New Agreement.
In respect of the third basis, the defendants seek to rely on an email from Paul Hilton, an accountant who provided advice that services of a CEO would “easily equate to $12,000pm x GST” as the basis to say that Mr Queitzsch’s reasonable fees would be $12,000 per month.[171]
[171]Exhibit 12.
The plaintiff objects to the third basis as it does not form part of the defendants’ pleaded case. Further, they object to the submission in any event as they say this is not what that the email from Mr Hilton says.
The email from Mr Hilton is in respect of the time spent by Mr Queitzsch in relation to the Ikerus site: that is SOS. As Ikerus was a different entity to the defendants who were the parties to the ESA, the issue was estimating an appropriate fee to be charged between companies for the provision of services in respect of SOS. The estimate provided by Mr Hilton was in respect of that subset of work that should be charged to Ikerus (which included a unitholder outside of the Iker Group).
The plaintiff also relies on the minutes of meeting of 3 July 2014[172] in this regard. Reference is made to “time and effort since November which has been funded by the Iker Group so far” and that “a fair and reasonable monthly figure for the board to review/accept for charges to be paid to the Iker Group”.[173]
[172]Court Book tabs 7 and 8.
[173]Court Book tab 7.
Further, there is reference to the CA and that “is distinctly different from the services that have been provided by the Iker Group since November 2013”.[174]
[174]Court Book tab 8.
This evidence does not support the defendants’ contention but it is in any event outside the pleaded case.
The plaintiff in its Reply says that the words “was excessive in all of the circumstances pleaded herein” was vague, unintelligible and liable to be struck out. That part of the 4FA Defence is not sufficiently ascertainable so as to be able to be properly evaluated. It has no foundation in the ESA and is not a legal concept.
The plaintiff makes a few other more general submissions relevant to this issue:
(a)Schedule 1 of the ESA provides that the Chief Executive Officer “in partnership with the Board is responsible for the success of the organisation”. The individual defendants on the Board would, the plaintiff submits, be equally responsible. In this regard the plaintiff also points to the evidence of Mr Lex Iker who maintained that he made all of the significant decisions involving the defendants.[175]
(b)No causal connection has been identified between the alleged breach of the ESA and the alleged loss in the amount which the fees are said to be “excessive”.
(c)In any event any loss suffered cannot be claimed against the plaintiff by operation of clause 10.2 of the ESA whereby the defendants indemnify the plaintiff in respect of any loss incurred as a consequence of the plaintiff’s performance (actual or purported) of the services.[176]
[175]T 4-36 L 12-15; T 4-73 L 42-45.
[176]Reply [28(c)(xvii)] filed 23 July 2020.
I agree with these contentions raised by the plaintiff in respect of this claim.
A similar claim in respect of the costs paid to external consultants was abandoned by the defendants.
The defendants’ claim that the payments to the plaintiff totalling $1,133,699 are “excessive” is not made out.
Estoppel

The defendants’ claim in respect of an estoppel is contained in [53] and [54] of the 4FA Defence.
The claim for an estoppel is that the defendants acted to their detriment:
(a)in reliance on the representations by entering into the ESA;
(b)by relying on the legal firm engaged by the plaintiff to act in their interests in drawing the CA and the ESA;
(c)in making the contract [sic] and all other payments to the plaintiff;
(d)by making the expense invoice payments; and
(e)in not terminating the ESA by the expiry of the SOS sale representation period or other period before or upon the expiry of the ESA.
In these circumstances, the defendants plead that the plaintiff should be estopped from relying upon the ESA or the New Agreement to seek any of the monies claimed.
The defendants’ outline of closing submissions does not identify the relevant legal principles relied upon in relation to the estoppel claim or the nature of the estoppel claim.
Paragraph 135 of the plaintiff’s written closing submissions refers to the requirements to establish promissory estoppel as set out by Brennan J in Waltons Stores (Interstate) Ltd v Maher.[177] The plaintiff cites the Queensland Court of Appeal decision in Wright v Hamilton Island Enterprises Ltd,[178] which applies the ‘test’ outlined in Waltons Stores.
[177](1988) 164 CLR 387 (‘Waltons Stores’).
[178][2003] QCA 36.
In their written submissions in reply, the defendants state that the requirements outlined in Waltons Stores have been made out. I infer from this that the defendants consider that the characterisation of the estoppel claim as promissory is correct.
The doctrine of promissory estoppel[179] was developed from the decision of Lord Denning in Central London Property Trust Ltd v High Trees House Ltd.[180]This formulation was recognised by the High Court in Legione v Hateley.[181]The current state of authority can be found in the decision of Waltons Stores.[182]
[179]Referred to as a species of the larger doctrine of equitable estoppel: see Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466, 472 (Priestly JA); Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5e 2014) at [17-165].
[180][1947] KB 130; [1946] EWHC KB 1.
[181](1983) 152 CLR 406.
[182](1988) 164 CLR 387.
In relation to how a promissory estoppel is established (described in the decision as an equitable estoppel), Brennan J stated:[183]
“[I]t is necessary for the plaintiff to prove that
(1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship;
(2) the defendant has induced the plaintiff to adopt that assumption or expectation;
(3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation;
(4) the defendant knew or intended him to do so;
(5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and
(6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.”
[183](1988) 164 CLR 387, 428 to 429. This quote has been reformatted from the original judgment for ease of reference.
The above statement of principle was adopted in Wright v Hamilton Island Enterprises Ltd,[184] which was referred to by the plaintiff in its written closing submissions.
[184][2003] QCA 36.
Further, where a representation is used to establish a promissory estoppel, such representation must be clear. In Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd,[185] French CJ, Kiefel and Bell JJ stated:
“It has long been recognised that for a representation to found an estoppel it must be clear.[186] In Low v Bouverie it was said[187] that the language used must be precise and unambiguous. This does not mean that the words used may not be open to different constructions, but rather that they must be able to be understood in a particular sense by the person to whom the words are addressed. The sense in which they may be understood provides the basis for the assumption or expectation upon which the person to whom they are addressed acts. The words must be capable of misleading a reasonable person in the way that the person relying on the estoppel claims he or she has been misled.[188]”[189]
Is the plaintiff estopped from relying upon the ESA or the New Agreement on the basis of the matters set out in [53] of the 4FA Defence?
[185](2016) 260 CLR 1, 16.
[186] Legione v Hateley (1983) 152 CLR 406, 435.
[187]Low v Bouverie [1891] 3 Ch 82, 106.
[188]Low v Bouverie [1891] 3 Ch 82, 113.
[189]For further discussion of this case, see the recent decision of Brown J in Al Azahri, Azhari and Azhari as trustees of the Australia Islamic Educational Trust v Sheik Al-Maktoum [2020] QSC 297 at [13] to [19].
The focus of the defendants’ contention is the SOS sale representation and the business improvement representation. As I have found that the representations have not been made out, this claim must fail.
However, there are a few aspects that I should address further in respect of this issue.
In clause 20.1 of the ESA the defendants acknowledge that HopgoodGanim were not their solicitors and that they were advised to obtain independent legal advice with respect to the agreement. The CA contains a similar clause.
Further, in oral evidence, Mr Lex Iker acknowledged the clause and said there was nothing stopping him getting independent advice:
“All right. So he presented to you an agreement that had been done up by his lawyers?‑‑‑Yes.
All right. And there was nothing stopping you from getting your lawyers to look at this agreement, was there?‑‑‑No.
Okay. And, in fact, you acknowledged by this agreement that Hopgood Ganim weren’t acting for you and you’d been advised and had the opportunity to take independent legal advice?‑‑‑Yes.”[190]
[190]T 4-52 L 40-45 and T 4-53 L 1-5.
Based on the clause and this evidence, the defendants have also not established the second aspect that they identify in [54] of the 4FA Defence to found the estoppel.
In relation to the last point identified in [54] of the 4FA Defence, the plaintiff also points to:
(a)Mr Lex Iker’s knowledge that SOS had not been sold at a very early stage. Mr Lex Iker gave evidence that “things were stumbling around Christmas time”; that is December 2013.[191] In this regard the plaintiff points to the absence of any email or letter of complaint.
(b)when SOS was offered to the market in May or June 2014, the offers made were small.[192]
[191]T 4-42 L 5-10.
[192]T 2-71 L 35 to T 2-72 L 3.
The plaintiff relies upon these two points as evidence that the defendants had the opportunity to terminate the agreement (if they were entitled to do so) but they did not take any steps to do so.
The defendants have not established the necessary factors for a promissory estoppel. This cause of action must fail.
Relief
Are the defendants entitled to any of the relief claimed pursuant to (a) s 237 and 243(c) ACL or (b) s 36(3) ACL, together with s 237 and 243(c) ACL?
As previously indicated the defendants did not seek repayment of any monies paid or payment of loss or damage. The relief was more in the nature of a “shield”: that is the plaintiff should not be entitled to enforce the ESA and the New Agreement in the circumstances alleged by the defendants.
The defendants have not established any of the matters raised by them in defence of the claim.
Further, if I am wrong about the representations being made and constituting misleading or deceptive conduct, any claim pursuant to s 237 of the ACL would be statute barred.
Otherwise, it is not necessary for me to comment further on whether the defendants could have relied on s 237 and 243(c) ACL and/or s 36(3) ACL, together with s 237 and 243(c) ACL to achieve the identified outcome.
Are the defendants indebted to the plaintiff for $810,460.49 (inclusive of GST) as pleaded in [21] of the FASOC?
The defendants owe the plaintiff for the amount of $810,460.49 (inclusive of GST), being:
(a)$679,971.69 being the Outstanding Contract Fee in accordance with [15] and [16] of the FASOC; and
(b)$130, 519.00 being the unpaid Expense Invoices in accordance with [19] of the FASOC.
The plaintiff is also entitled to interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld). The plaintiff should prepare the interest calculations and provide them to the Court with the draft orders as set out below.
Orders
I direct that, by 10:00 am on 17 December 2020, the parties agree and provide to my Associate a proposed timetable in relation to the following:
(a)The parties prepare draft orders to give effect to these reasons and provide them to my Associate.
(b)If the parties are unable to agree on draft orders, then each party is to provide its proposed draft orders together with a brief description for the basis of the disagreement.
(c)The plaintiff file and serve submissions and any supporting affidavits in relation to costs.
(d)The defendants file and serve submissions and any supporting affidavits in relation to costs.
(e)The plaintiff file and serve submissions in reply in relation to costs.

SCHEDULE 1
BEACHMOUNT PTY LTD v IKER PARTNERSHIPS & ANOR
Agreed Facts
1.The parties entered in to a written consultancy agreement dated 1 November 2013 (the consultancy agreement).
2.The parties entered in to a written executive services agreement dated 17 December 2013 (the agreement).
3.The defendants made payments to the plaintiff as pleaded in paragraphs 9(b) and 14(b) of the further amended statement of claim (the statement of claim).
4.The project as defined in the consultancy agreement was not completed.

List of issues to be determined
5.Is the agreement and the new agreement, or any part of those agreements, void for uncertainty.
6.Did the plaintiff make the representations pleaded in paragraphs 9, 10 and 23 of the defence.
7.If the plaintiff made the representations did it engage in conduct that was deceptive or misleading.
8.Did the plaintiff engage in misleading conduct in failing to disclose the matters pleaded in paragraph 27(e) of the defence.
9.Is any claim by the defendants pursuant to the Australian Consumer Law statute barred.
10.As a matter of constructions does the agreement include the warranties contended for by the defendants in paragraph 33 of the defence.
11.If so was payment pursuant to the agreement conditional upon performance of the services including the “specific services”.
12.As a matter of construction was the plaintiff entitled to the automatic bonuses in the agreement.
13.As at the end of August 2015 was the defendant indebted to the plaintiff in the sum of $675,000.
14.Did the parties enter into a new agreement in or about August 2015 as pleaded in paragraphs 11-13 of the statement of claim, and if so, what were the terms agreed.
15.Where [sic] the payments pleaded in paragraph 9(b) of the statement of claim paid in accordance with the agreement.
16.Were the defendants liable for payment of the expenses claimed by the plaintiff under the clauses pleaded in paragraph 39(e) of the defendant [sic].[193]
[193]The reference should possibly be to [39(d)] of the 4FA Defence as that deals with expenses.
17.Were the payments pleaded in paragraph 14(b) of the statement of claim paid pursuant to the new agreement.
18.Were the payments to the plaintiff pleaded in paragraphs 9(b) and 14(b) of the statement of claim paid under a mistake of fact or law.
19.Was the plaintiff in breach of the agreement as pleaded in paragraph 34 of the defence.
20.During the term of the agreement was the plaintiff in a position of conflict as pleaded in paragraph 41(c)(vi) 1-4 of the defence and thereby breached the argument.
21.Was the plaintiff in breach of the agreement with respect to the liability for rates as pleaded in paragraph 41(c)(iiA) and (iiB) of the defence.
22.What loss flows from any alleged breach of the agreement by the plaintiff.
23.What loss can the defendants set off against the plaintiff’s claim.
24.Were the payments to the plaintiff of $1,133,699.10 excessive.
25.Were the payments to external consultants of $1,448,695.03 excessive.
26.Is the plaintiff estopped from bringing its claim as alleged in paragraph 54 of the defence.
27.Did the plaintiff carry on conduct pleaded in paragraph 50 and 51 of the defence and if so, what effect has that on any relief sought by the defendants.
28.Will the defendants be likely to suffer loss and damage if relief pleaded in paragraph 55 of the defence is not granted.
29.Is the plaintiff entitled to any relief pursuant to the Australian Consumer Law, and if so, should the Court refuse to enforce the agreement and new agreement or any part thereof.
30.Are the defendants indebted to the plaintiff in the sum of $810,460.69 as pleaded in paragraph 21 of the statement of claim.

CITATION:	Beachmount Pty Ltd v Iker Partnership & Anor [2020] QSC 379
PARTIES:	BEACHMOUNT PTY LTD ACN 088 946 801 (plaintiff) v IKER PARTNERSHIP (first defendant) EUNEEKE CATTLE COMPANY PTY LTD ACN 112 009 097 (second defendant)
FILE NO/S:	BS No 8370 of 2017
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	16 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	27 July 2020 to 31 July 2020; 4 September 2020
JUDGE:	Williams J
ORDER:	1. I direct that, by 10:00 am on 17 December 2020, the parties agree and provide to my Associate a proposed timetable in relation to the following: (a) The parties prepare draft orders to give effect to these reasons and provide them to my Associate. (b) If the parties are unable to agree on draft orders, then each party is to provide its proposed draft orders together with a brief description for the basis of the disagreement. (c) The plaintiff file and serve submissions and any supporting affidavits in relation to costs. (d) The defendants file and serve submissions and any supporting affidavits in relation to costs. (e) The plaintiff file and serve submissions in reply in relation to costs.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – CONDITIONS – GENERAL MATTERS – where the plaintiff alleges that the defendants, in breach of two agreements entered into between the parties (the ESA and the New Agreement), failed to pay the plaintiff $810,460.49 for provision of services under those agreements – whether the defendants are indebted to the plaintiff for that amount CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – MATTERS NOT GIVING RISE TO BINDING CONTRACT – VAGUENESS AND UNCERTAINTY – UNCERTAIN PROMISES – where the defendants allege that the terms of the ESA did not define with precision the ‘services’ the plaintiff was required to perform to the extent that the ESA is too uncertain to be enforceable – where the defendants further allege that the terms relating to the remuneration of the plaintiff under the ESA are uncertain to the extent that the ESA is too uncertain to be enforceable – where payments were made to the plaintiff by the defendants pursuant to the ESA on a regular basis – where the defendants do not seek to recover those amounts – whether the ESA is void for uncertainty CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – CONTRACTS IMPLIED FROM CONDUCT OF PARTIES – where the plaintiff alleges that the ESA ended by mutual agreement and the parties entered into another agreement (New Agreement) on similar terms – where the plaintiff continued to perform services for the defendants – where the defendants submit that there was no New Agreement but rather that the plaintiff was engaged on a “temporary basis” following the expiry of the ESA – whether the parties entered into the New Agreement – whether the terms of the New Agreement are certain so as to be enforceable ESTOPPEL – ESTOPPEL BY CONDUCT – PROMISSORY ESTOPPEL – PARTICULAR CASES – where the defendants allege that they were induced into entering into the ESA with the plaintiff on the basis of the plaintiff’s misrepresentations – where the defendants submit that the plaintiff should be estopped from enforcing the ESA on that basis – whether the plaintiff made the representations alleged by the defendants – whether the defendants relied upon those representations to their detriment ESTOPPEL – ESTOPPEL BY CONDUCT – ACT, OMISSION OR ASSUMPTION – REPRESENTATION GENERALLY – NATURE OF REPRESENTATION – where the defendants allege that the plaintiff made representations as to his ability to sell the defendants’ property “within 3 to 6 months” – where the defendants allege that the plaintiff made representations that, if he were engaged, the defendants’ businesses could only “move forward” – whether such representations were made – whether such representations were misleading or deceptive so as to give rise to a promissory estoppel ESTOPPEL – ESTOPPEL BY CONDUCT – ACT, OMISSION OR ASSUMPTION – REPRESENTATION GENERALLY – ACQUIESCENCE, ENCOURAGEMENT OR SILENCE – where the defendants allege that the plaintiff had an obligation to inform them of his prior unsuccessful business dealings – where the defendants allege that the plaintiff’s failure to do so was a representation by silence that was relied on by the defendants when entering into the ESA with the plaintiff – whether the plaintiff’s silence constitutes a representation – whether such representations were misleading or deceptive so as to give rise to a promissory estoppel ESTOPPEL – ESTOPPEL BY CONDUCT – CAUSATION – RELIANCE – where the defendants allege that, in reliance on the plaintiff’s misrepresentations, they entered into the ESA – whether, if the alleged misrepresentations were made, the defendants relied on them – whether the defendants have shown detriment by relying on the alleged misrepresentations TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – MISLEADING OR DECEPTIVE CONDUCT GENERALLY – MISLEADING OR DECEPTIVE: WHAT CONSTITUTES – where the defendants alleged that the plaintiff made three misleading or deceptive representations that induced them to enter into agreements with the plaintiff – whether the representations were made – whether the plaintiff engaged in conduct that was misleading or deceptive TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTION FOR DAMAGES – LIMITATION PERIOD – WHEN CAUSE OF ACTION ACCRUES – where the plaintiff alleges that, even if the defendants make out a misleading or deceptive conduct claim, the limitation period prevents them from pursuing that cause of action – whether the cause of action accrues at the formation of the agreement or at a later time TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTION FOR DAMAGES – ASSESSMENT OR AVAILABILITY OF DAMAGES – GENERALLY – where the defendants claim relief under s 237 and 243(c) of the Australian Consumer Law (ACL) or s 36(3) ACL, together with s 237 and 243(c) ACL – where the defendants do not seek to recover any amount against the plaintiff – where the defendants seek to apply the relief sought in the manner of a “shield” by seeking to offset any amount claimed by the plaintiff – whether the defendants are entitled to relief Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law), s 236, s 237, s 243 Civil Proceedings Act 2011 (Qld), s 58 Al Azahri, Azhari and Azhari as trustees of the Australia Islamic Educational Trust v Sheik Al-Maktoum [2020] QSC 297, cited Alford v Ebbage [2004] QCA 283, cited Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36, cited Barnes v Forty Two International Pty Ltd (2014) 316 ALR 408; [2014] FCAFC 152, cited Bellmere Park Pty Ltd as trustee for the Bellmere Park Development Trust v Benson [2007] QCA 102, cited Bennett v Elysium Noosa Pty Ltd (in liq) (2012) 202 FCR 72; [2012] FCA 211, cited. Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25, cited Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130; [1946] EWHC KB 1, cited Clifford v Vegas Enterprises Pty Ltd (No. 5) (2010) 272 ALR 198; [2010] FCA 916, cited Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601, cited Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26, cited Dawson v LNG Holdings [2008] NSWSC 137, considered De Bortoli Wines Pty Ltd HIH Insurance Ltd (in liq) (2011) 200 FCR 253; [2011] FCA 645. Fraser v NRMA Holdings Ltd (1995) 55 FCR 452; [1995] FCA 9, cited. GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1; [2003] FCA 50, cited Hanave Pty v LFOT Pty Ltd [1999] ATPR 41-687; [1999] FCA 357, cited Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1998) 39 FCR 546; [1988] FCA 40, cited I&L Securities v HWT Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; [2002] HCA 4, cited Jones v Dunkel (1959) 101 CLR 298 [1959] HCA 8, cited Juniper Property Holdings No 15 Pty Ltd v Caltabiano [2016] QSC 5 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68, cited Legione v Hateley (1983) 152 CLR 406, cited Low v Bouverie [1891] 3 Ch 82, cited. Meehan v Jones & Others (1982) 149 CLR 571; [1982] HCA 52, cited Miller v BMW (2010) 241 CLR 357; [2010] HCA 31, cited Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Limited (2005) 189 FLR 14; [2005] NSWSC 20, cited POA Enterprises Pty Ltd & Others v Chemist Warehouse Southport & Others [2012] QSC 316, cited Rafferty v Madgwicks (2012) 203 FCR 1; [2012] FCAFC 37, cited Razdan v Westpac Banking Corporation [2014] NSWCA 126, cited Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466, cited Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7, applied Wardley Australia Limited v Western Australia (1992) 175 CLR 514; [1992] HCA 55, considered Watson v Foxman (1995) 49 NSWLR 315, cited Wright v Hamilton Island Enterprises Ltd [2003] QCA 36, cited York Airconditioning and Refrigeration (Australasia) Pty Ltd v The Commonwealth (1949) 80 CLR 11; [1949] HCA 23, cited
COUNSEL:	MD Martin QC for the plaintiff B Whitten for the defendants
SOLICITORS:	Mills Oakley for the plaintiff Kelly Legal for the defendants