Cirrus Real Time Processing Systems Pty Ltd v Jet Aviation Australia Pty Ltd (formerly Hawker Pacific Pty Ltd) - [2025] FCAFC 85

FEDERAL COURT OF AUSTRALIA
Cirrus Real Time Processing Systems Pty Ltd v Jet Aviation Australia Pty Ltd (formerly Hawker Pacific Pty Ltd) [2025] FCAFC 85

Appeal from: Cirrus Real Time Processing Systems Pty Limited v Hawker Pacific Pty Ltd [2024] FCA 763

File number: NSD 1074 of 2024

Judgment of: DERRINGTON, CHEESEMAN AND JACKMAN JJ

Date of judgment: 3 July 2025

Catchwords:
CONTRACTS – formation of contracts – intention to create legal relations – whether evidence of parties’ intending to be bound by terms – whether agreement as to sufficient terms

CONTRACTS – formation of contracts – intention to be legally bound – underlying rationale for requirement to be legally bound – relevant principles – factors to be considered

CONTRACTS – relevance of matters occurring after date of alleged contract – so called “post-contractual evidence” – relevance to contractual intention

Legislation: Evidence Act 1995 (Cth)

Cases cited:
Abadeen Group Pty Ltd v Bluestone Property Services Pty Ltd [2009] NSWCA 386
Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Allen v Carbone (1975) 132 CLR 528
Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168
Anon (1478) YB 17 Edw IV
Ashton v Pratt (2015) 88 NSWLR 281
Atco Controls Pty Ltd (in liq) v Newtronics Pty Ltd (recs and mgrs appt) (in liq) (2009) 25 VR 411
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Cirrus Real Time Processing Systems Pty Limited v Hawker Pacific Pty Ltd [2024] FCA 763
Coles Supermarkets Australia Pty Ltd v 461 Hampton Street Investments Pty Ltd [2024] VSC 306
Commonwealth Bank of Australia v TLI Management Pty Ltd [1990] VR 510
Edge Development Group Pty Ltd v Jack Road Investments Pty Ltd (as trustee for Jack Road Investments Unit Trust) [2019] VSCA 91
Edge Development Group Pty Ltd v Jack Road Investments Pty Ltd [2018] VSC 326
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 289 ALR 237
Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251
Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551
HDI Global Speciality SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296
Hillas & Co Ltd v Arcos Ltd [1932] All ER Rep 494
Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41
Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68
In re Bed Bath & Beyond Corp. Securities Litigation (D Colu, No 1:22-cv-02541, 27 September 2024)
James Adam Pty Ltd v Fobeza Lty Ltd [2020] NSWCA 311
Kennedy v Lee (1817) 36 ER 170
Kleinwort Benson v Malaysia Mining Corporation Berhad [1989] 1 WLR 379
Krolczyk v Winner t/as J Winner Building Services [2022] NSWCA 196
Liquorland (Australia) Pty Ltd v GYG Holdings Pty Ltd (unreported, 28 October 1994, NSWCA)
Masters v Cameron (1954) 91 CLR 353
Merritt v Merritt [1970] 1 WLR 1211
Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605
Proton Energy Group SA v Orlen Lietuva [2014] 1 Lloyd’s Rep 100
Quinlan v A and J Brady Pty Ltd [2007] FCA 1409
R v Lord Chancellor’s Department; Ex parte Nangle [1991] ICR 743
Re Access Strata Management Pty Ltd [2022] VSC 639
Re Anglican Development Fund Diocese of Bathurst (2015) 336 ALR 372
Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
South West Terminal Ltd v Achter Land & Cattle [2023] SKKB 116
Southeaster Maritime Ltd v Trafigura Maritime Logistics Pte (The MV Aquafreedom) [2024] EWHC 255 (Comm)
Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2023] NSWCA 102
The Crown v Clarke (1927) 40 CLR 227
Thorby v Goldberg (1964) 112 CLR 597
Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488
Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106
Uranium Equities Ltd v Fewster (2008) 36 WAR 97
Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd (2015) 47 WAR 547
Vroon BC v Foster’s Brewing Group Ltd [1994] 2 VR 32
Wakim v Wakim [2017] NSWSC 1283
WorldAudio v GB Radio [2003] NSWSC 855
Coote B, “The Essence of Contract: Part I” (1988) 1(2) Journal of Contract Law 91
Coote B, “The Essence of Contract: Part II” (1988) 1(3) Journal of Contract Law 183
Heydon J D, Heydon on Contract: The General Part (2019, Thomson Reuters)
Restatement (Second) of the Law of Contracts (American Law Institute, 1981)
Seddon NC and Bigwood RA, Cheshire & Fifoot Law of Contract (12^th Aust ed, 2023, LexisNexis)
Swain W, The Law of Contract 1670 – 1870 (2015, Cambridge University Press)
Tolhurst GJ and Peden E, Furmston and Tolhurst on Contract Formation: Law and Practice (3^rd ed, 2023, Oxford University Press)
Williston S, A Treatise on the Law of Contracts (3^rd ed, rev Walter HE Jaeger, Vol 1, Baker, Voohris & Co., Inc., 1957)

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 275

Date of hearing: 3 – 4 March 2025

Counsel for the Appellant: Mr S White SC with Ms T Epstein and Ms M Aguinaldo

Solicitor for the Appellant: Hazan Hollander

Counsel for the Respondents: Mr J Giles SC with Mr S Puttick

Solicitor for the Respondents: Johnson Winter Slattery

ORDERS

NSD 1074 of 2024

BETWEEN:
CIRRUS REAL TIME PROCESSING SYSTEMS PTY LTD ACN 075 393 798

Appellant

AND:
JET AVIATION AUSTRALIA PTY LTD (FORMERLY HAWKER PACIFIC PTY LTD) ACN 001 540 316

First Respondent

JET AVIATION NZ LIMITED (FORMERLY HAWKER PACIFIC NZ LIMITED) NZBN 9429039590626

Second Respondent

ORDER MADE BY:

DERRINGTON, CHEESEMAN AND JACKMAN JJ

DATE OF ORDER:

3 JULY 2025

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondents’ costs of the appeal, to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
DERRINGTON J:
Introduction

This appeal concerns whether the appellant, Cirrus Real Time Processing Systems Pty Limited, (Cirrus) entered into a binding contract with either of the respondents, Hawker Pacific Pty Ltd or Hawker Pacific NZ Limited (Hawker NZ) (together, HP). Specifically, it turns upon whether it can be said that the parties objectively intended to be legally bound by an arrangement they put in place while HP tendered for a contract with the New Zealand Defence Force (the NZDF).
That tender concerned the provision of services including, inter alia, the supply of certain equipment and software (as well as their installation upon various aircraft to be leased to the NZDF) which could, in general terms, record, manipulate and display live and synthetic data in order to create scenario-based training environments for users. Relevantly, the precise scope of that work was not defined by the request for tender released by the NZDF in 2016, such that the ensuing tender process necessarily involved a measure of fluidity. In short, the NZDF first sought to identify a “preferred” (or “highest ranked”) tenderer with whom it would then attempt to negotiate a final agreement. That search ultimately brought the NZDF into contact with HP.
HP operates in the aircraft and aerospace industry. It provides engineering services, including the supply of aircrafts and aircraft support services. For the purposes of its tender submission, HP required support from a third party that could provide the digital software necessary for the presentation of the training environments sought by the NZDF. It therefore entered discussions with Cirrus, a software development and engineering business. Over a period of approximately four years, the parties exchanged correspondence that expressed, at least, the general ambition or aspiration that, if HP was successful in obtaining the prime contract with the NZDF, it would engage Cirrus to provide the necessary software support. Cirrus claims that such commitment was greater and that a binding agreement was reached between the parties in or about late 2016.
The learned primary judge concluded, inter alia, that the circumstances of the parties, including their conduct and communication, did not evince an intention to be legally bound and, as such, no contractual obligations had been created: Cirrus Real Time Processing Systems Pty Limited v Hawker Pacific Pty Ltd [2024] FCA 763 (PJ). As these reasons detail, his Honour was correct in reaching those essentially factual conclusions and the appeal should be dismissed upon that basis.
I note that in the preparation of these reasons I have had the benefit of the very thoughtful and astute observations of Jackman J on my earlier drafts. As a result of his Honour’s comments, I have made some beneficial alterations to my original views.
Background
The identification of an objective intention to be legally bound lies at the heart of this dispute. It requires a careful analysis of the parties’ circumstances, including, inter alia, what they said and did. In that respect, it is helpful that the inter-party negotiations and discussions largely occurred in writing, with the result that there is very little disputation as to the evidential basis of the respective claims. Nevertheless, as Cirrus calls into question the conclusions drawn by the learned primary judge, it is necessary to set out the factual background in some detail.
Commercial context: The Core and Optional Offerings
In or about 2014, the NZDF began to explore options to repatriate the training of Air Warfare Officers (AWOs) – being those officers responsible for the navigation, surveillance and tactical communications of military aircraft – from Australia to the north island of New Zealand. This came to be colloquially known as the Aircrew Training Capability (ACTC) Program.
By the time that the ACTC Program formally went to tender in late 2016, it was envisaged that the “preferred” tenderer would, inter alia, supply an AWO training system (or AWOTS). Such system was to be installed on various aircraft to be leased to the NZDF, as well as at pre-defined ground locations. In short, it was to comprise several “proven mission systems” – that is, digital interfaces – that were capable of integrating and displaying (a) basic “live” sensor data (being data drawn from the avionics bus of the relevant aircraft, such as its location and orientation in 3D space); and (b) “synthetic” sensor data (being data that had been artificially generated in order to simulate inclement weather, opposing interactions etc) to create various scenario-based training environments for the relevant console user(s) (together, the Core Offering).
At the time of the relevant discussions between Cirrus and HP, the NZDF had also expressed an interest in tenderers (a) affixing a small number of sensors and equipment upon the relevant aircraft that would increase the volume and variety of live sensor data which was recorded; and (b) providing software that could integrate such data with the proposed AWO training system. To be sure, this option was additive to the Core Offering and envisaged a training system that could process and display, in addition to synthetic sensor data, live sensor data recorded by the existing avionic systems of the aircraft and several additional sensors (the Optional Offering).
The parties’ relationship between 2014 and 2015
Cirrus’ claim derives from a series of exchanges it had with HP which reached their crescendo, at least for present purposes, following release of a request for tender for the ACTC Program in November 2016. For Cirrus, a Mr Peter Freed conducted, or was involved in, the majority of those discussions and negotiations. Conversely, HP were largely represented by Mr Craig Purry, Vice President – Government Business and Ms Katrina Binotto, Contract Manager. The authority of those persons to act on behalf of their respective companies was not in dispute.
The relationship between the parties can be traced to June 2014, when HP approached Cirrus to discuss “a potential customer enquiry regarding a fleet upgrade that may be in part satisfied by your ACOTS system”. Three observations ought to be made. First, the term “ACOTS” (an acronym of Air Combat Officer Training System) is a reference to certain software developed by Cirrus. Second, the relevant customer was the NZDF, whom HP sought to offer an ACOTS-based AWOTS as part of its bid to upgrade the capabilities of certain aircraft it then-supplied to the NZDF under an existing agreement (the 2014 Proposal). Third, from the outset, HP had noted the possibility that Cirrus would only contribute to a proposal to the NZDF “in part”.
A bilateral confidentiality agreement was executed between Cirrus and HP on 7 July 2014 and, some nine days later, on 16 July 2014, Cirrus provided the latter a quotation (V1Q) that detailed the technical specifications and commercial terms upon which it would provide the ACOTS system to HP. Relevantly, that technology was described by V1Q as “a simulation of a modern multi-function display system (MFD) on which the (simulated) outputs of various sensors and avionics systems are presented”. For example, V1Q outlined two use cases:
5.2 ACOTS USE CASES
…
For use [onboard aircraft], ACOTS collects aircraft data and simulates sensor and other systems to match both current aircraft position/posture, and additional synthetic entities and weather effects.
For use in the ground based simulation environment, ACOTS incorporates simulated aircraft data and simulates sensor and other systems to match both current (simulated) aircraft position/posture, and additional synthetic entities and weather effects.
On 22 July 2014, Mr Purry sought Cirrus’ approval to incorporate V1Q in the 2014 Proposal. In a tranche of correspondence exchanged later that day, Mr Freed agreed to accede to such a request following Mr Purry’s commitment that “[s]hould the current proposal being submitted by Hawker Pacific relating to the Cirrus ACOTS system be progressed into contract, then Cirrus will be the provider via HP”. Ultimately, neither of the outcomes foreshadowed by Mr Purry came to pass in 2014.
In or about June 2015, the NZDF issued a request for information that pertained, in broad terms, to the ACTC Program (the RFI). As with the 2014 Proposal, HP sought to call on the services of Cirrus and, on 20 July 2015, the following email was sent to Mr Freed:
Hi Peter, thanks for your time this afternoon. As discussed the NZDF has recently released an RFI exploring options for the possible repatriation of AWO training to Ohakea. This RFI was expected and in line with preparatory work we have been doing together in the recent past. Hawker Pacific now invites Cirrus to provide an offer that will form part of our response to the RFI.
The main thrust of the Hawker Pacific response [to the RFI] will be to offer a pathway whereby the current B200 fleet is modified and extended out to 2025 with an AWO system installed combined with ground AWO systems. …
Other options being put forward include the provision of King Air 350 aircraft to replace the current fleet at the end of the their [sic] current term (end 2017) - modified to host:
1. Standard AWO system, and/or
2. Standard AWO system plus actual sensors …
…
As the response is due 5 Aug please provide by COB Friday 31 July 2015:
…
3.Confirmation that Cirrus can supply a solution that draws from live data via actual sensors fitted to the aircraft (as per our optional modified 350 solution above)
oAs much information on this option as possible would be very appreciated …
Later that day, Mr Freed made the following observations as to “bullet point (3)”:
… This is developmental. We did discuss this w your engineers a couple of weeks back. It isn’t difficult, but raises lots of questions on scope, simply because it is fairly open, depends on sensors etc. Difficult to cost w/o some sort of bounds. E.g. what data would the sensors provide, what form would their tracks take etc.
That email was met with the following response by Mr Purry on 21 July 2015:
… Yes – completely understood – it will be largely conceptual from our point of view – we will be focusing on tender quality pricing for the core AWO solution with some words and rough pricing for sensor solutions at a later time in contract. All we need from you [Cirrus] on this is whether it is possible to develop a AWO training system that takes inputs from EO [Electro-Optics] and Radar so that students can gain experience using actual sensors rather than simulated. …
HP’s general “conceptual” interest in the capacity of ACOTS to, in effect, meet the Optional Offering, was a theme embraced by its subsequent request for quotation. In an email sent by Mr Steve Lang (Government Programs Business Development Manager for HP) to Mr Freed on 28 July 2015, Cirrus was apprised of the following request:
… Re: real-world sensor integration – as discussed, please develop against simply taking sensor feeds direct into ACOTS system. No sensor or data control required by ACOTS system.
Mr Freed deposes to having understood Mr Lang as requiring Cirrus to quote for an ACOTS system that could receive and display live sensor data recorded by several yet-to-be-installed sensors (that were under independent control). Over the ensuing fortnight, Cirrus proceeded to furnish HP with two additional quotations (V1.1Q and V1.2Q). Amongst other things, those quotes contemplated a “Base Option” (i.e., supply and installation of ACOTS upon four aircraft systems and one ground system) that was susceptible to some defined variation. For example, “Option 3” addressed the potential for the ACOTS system to integrate live sensor data recorded by radar and optical sensors independent to the existing avionics of the relevant aircraft:
6.4.4 Option 3 : Display of Sensor Data in ACOTS Window
This option enables the display in ACOTS radar and optics windows the sensor information from sensors that have been installed onto a King Air 350 aircraft, and connected to the ACOTS ethernet
…
Under this option, HP will install onto the aircraft platform radar and optical sensors, together with a tactical link system. HP will additionally connect the sensors’ data interfaces to the Ethernet that ACOTS connects to.
…
The sensors will include the associated processing of the sensor data, and a console to control the sensors.
…
The intent of this option is to enable data generated by the sensors to be displayed onto the ACOTS sensor displays. …
This option was imagined by a diagrammatic, which was accompanied by the following legend:
… Concept for connection of actual sensors to ACOTS. ACOTS is not used to control the sensors, or to process the sensor data, but is used to present generated data (video and tracks) within the ACOTS sensor display windows and moving map display as applicable.
Content with the terms of those quotations, HP sought Cirrus’ permission to provide V1.2Q to the NZDF. As with V1Q, Cirrus agreed to relax the parties’ confidentiality agreement on 4 August 2015 following reassurances that (a) “[s]hould you [Cirrus] allow us [HP] to include your proposal as part of our overall submission, we will incorporate the Cirrus offer as our core compliant solution to the AWO simulation training requirement, and … treat the solution as fully attributable as a Cirrus offer and deliverable under any subsequent NZDF Contract subject to NZDF acceptance of the Cirrus solution”; and (b) “at no stage will Hawker Pacific seek to utilise the Cirrus proposal in order to gain favourable evaluation or enter contract with NZDF and then subsequently replace Cirrus”. However, and as with V1Q again, nothing immediately came of HP’s subsequent submission to the NZDF on 5 August in response to the RFI.

Taking stock, perhaps all that can be gleaned from the parties’ initial discussions throughout 2014 and 2015 is that first, HP was interested in (a) using ACOTS to satisfy, in effect, the Core Offering; and (b) whether ACOTS could satisfy the Optional Offering, and second, Cirrus was desirous to receive some degree of commitment from HP should it enter into any head contract.
The 2016 “arrangement”
Proposed scope of work
On 26 August 2016, Cirrus and HP entered a second confidentiality agreement which precluded the parties from using each other’s “Confidential Information” for any purpose other than that which was expressly described in the document. Disclosure of Cirrus’ confidential information for the purposes of tendering for the ACTC Program was not one such “Express Purpose”.
On or about 30 September 2016, a meeting occurred between officials representing the NZDF and HP which concerned, in part, the type of information that would be required to be provided in any tender for the ACTC Program. Shortly thereafter, on 5 October 2016, Mr Purry sent an email to Mr Freed that identified certain aspects of that information, such as:
•All inclusive price including subscriptions and maintenance of the AWO system
…
•Budget is tight as always.
•There will be a requirement to quote on the option of fitting actual sensors on the a/c for the surveillance role and real-time training effect – but this is not within the core requirement.
Let me know if you want to discuss beforehand – possibly explore some detail with our engineering folks? …
In relation to the fitting of “actual sensors” onto the aircraft, Mr Freed’s response later that day included the following observations as to Cirrus’ capacity to meet the Optional Offering:
Hard to quantify. I think there is a good possibility of displaying sensor data in ACOTS windows, but this is dependent on unknowns, primarily the nature, scope and detail of the s/w interfaces provided by the sensors to facilitate this (and possibly whether or not the sensor OEM’s [the original equipment manufacturers of the sensors] are commercially amenable to having their kit operate from within someone else’s console software, and whether their information is ITAR controlled).
The exchanges of 5 October expose the important distinction in relation to the training systems under discussion, being those that integrated synthetic sensor data with live sensor data from (a) the avionics bus; or (b) the avionics bus as well as additional real-time sensors. Whereas the request for tender was envisaged to be predominantly concerned with the former, Mr Purry’s email noted the likelihood of needing to quote for the latter. Mr Freed’s response mirrored that which he gave on 20 July 2015; in short, he noted that, from Cirrus’ perspective, the viability of this offering turned on several variables, the scope of which were yet unknown.
The NZDF released its draft request for tender document on 1 November 2016 (the RFT).
On 8 November 2016, Mr Freed attended the NZDF ACTC Industry day in Wellington, New Zealand. There he met with the General Manager (New Zealand) of HP as well as an employee of MAROPS Ltd (MAROPS). Before the primary judge, Mr Freed’s evidence was that, prior to that meeting, he had some awareness that MAROPS would potentially be considered by HP to supply the real-time sensors that were required to provide the Optional Offering. However, he was “shocked” to learn MAROPS was also being considered by HP as a potential supplier of the software necessary to provide that offering. Indeed, he said that he had not yet turned his mind to the possibility that MAROPS could provide the requisite sensors and the software capable of feeding any data recorded into the AWO training system. Given the correspondence between the parties on 5 October 2016, his Honour was critical of that evidence and concluded that Mr Freed, prior to 8 November, must have had “some inkling” Cirrus and MAROPS could ultimately end up competing for some aspect of the work that would be contracted for (PJ [29]).
A telephone conversation ensued between Messrs Freed and Purry the following day. During the carriage of that discussion, Mr Freed told Mr Purry, in no uncertain terms, that “Cirrus will not participate in HP’s tender unless HP is committed to Cirrus as the supplier of the AWO training component of ACTC”. Mr Purry said that he would get back to him (see PJ [30]).
On 11 November 2016, Mr Purry sent Mr Freed a brief, but somewhat conciliatory, email:
… As discussed we are working with MAROPS to remove overlap on the workscope between you and establish a powerful team based offering. Those discussions will continue in Auckland early next week.
…
Hopefully the discussions in Auckland go well next week and we will be able to come to you with a firm RFQ before the end of the week. …
At around this time, much discussion within HP sought to address how to best approach the tender and, in particular, HP’s then-desire to offer both Cirrus’ and MAROPS’ products to the NZDF. It was abreast of the difficulties that were likely to arise with this so-called “Plan A” given the competition between Cirrus and MAROPS, and the very real possibility that one may not wish to work with the other. Nevertheless, HP considered it to be rather unlikely that Cirrus would walk away from their negotiations if the level of commitment that had been sought by Mr Freed was not provided and, even if that were to eventuate, it was something that could be overcome. Indeed, as the primary judge found, HP was not in the position of having to accede to Cirrus’ demand of 9 November 2016 in order for it to lodge a credible tender (PJ [34]).
In a rather more formal email sent 23 November 2016, Mr Purry wrote to Mr Freed, requesting the provision of information for the purposes of lodging the respondents’ tender. It said:
Hi Peter, as per recent conversations, HPNZ is participating in the current New Zealand Ministry of Defence RFT for the Aircrew Training Capability Tender (ACTC Project) closing 10th Jan 2017 and request from Cirrus the following RFQ details to allow HP to bid your products/services as part of the overall HP response. …
Attached to that email were several documents including, inter alia, the Conditions of Tender and a document specifying the AWO capability requested. Under the heading, “Workscope.”, Mr Purry identified the scope of HP’s intended tender in respect of the AWOTS:
Hawker Pacific solution set for the ACTC RFT response is now firmed as follows.
The RNZAF will be offered one of two exclusive paths for AWO training:
1.        Non-Sensor fitted aircraft (Core) using Cirrus Proposed Training Solution, and
2.        Sensor fitted aircraft (Optional) using MAROPS Proposed Training Solution
Host aircraft will be the 4 x existing Pro-line 21 Rockwell Collins Avionics King Air 200 aircraft.
Therefore, specific areas of the RFT that are needed for response by Cirrus are:
1. Cirrus proposal for compliance to AWO elements of Non-Sensor Fitted Aircraft solution under:
•Part Two, Section 18, Training Systems, Statement Of Requirement
o AWO Training Course (3 students per course);
o AWO Instructors Course (1 student per course); and
o AWO Instructor Currency Training (4 AWOs);
•         to the requirements of AWO Training System including:
o Airborne AWO Training System, and
o Ground Based Training System
•described in DID TRG-01 AWO Training System and DID TRG-03 Conversion Training Plan.
In response, Mr Freed suggested a suite of modifications to HP’s proposed workscope which caused the latter some internal consternation, and prompted further consideration by HP as to how any AWO training system could feasibly integrate both Cirrus’ and MAROPS’ offerings.
Following further discussions between Messrs Purry and Freed, on 24 November 2016, the former sent the latter an amended scope of works in the following terms:
Workscope.
Hawker Pacific solution set for the ACTC RFT response is now firmed as follows.
The RNZAF will be offered:
1. Core:
This involves a fleet of 4 aircraft all of which are Non-Sensor fitted and use the Cirrus Proposed AWO (i.e. simulation based) Training Solution, and
2. Optional:
This involves the option of fitting actual sensors to 1-4 aircraft and using Cirrus Proposed AWO (i.e. simulation based) Training Solution co-hosted with MAROPS Proposed Sensor Interface Solution.
In both cases the host aircraft will be the 4 x existing Pro-line 21 Rockwell Collins Avionics King Air 200 aircraft.
Should HP (including HPNZ) be invited to negotiate a contract with NZDF (or RNZAF), Cirrus will be invited by HP to participate in the negotiations with NZDF in relation to the AWO training solution.
Should HP (including HPNZ) subsequently enter a contract with NZDF (or RNZAF), HP (including HPNZ) shall subsequently subcontract Cirrus for the Cirrus proposed solution as per Cirrus’ response to the RFQ (and as possibly amended though negotiations). The only exception to this is the case where the NZDF directs during contract negotiation for a solution that does not include a simulation based AWO training solution in any aircraft.
The final paragraph quoted is important and reappears in several documents, albeit in various iterations. For convenience, it and any subsequent versions, will be referred to forthwith as the “Operative Paragraph”.
Later that day, Mr Freed replied indicating that Cirrus was “pleased to join in with this plan”.
Some commercial questions
On 25 November 2016, Mr Freed emailed Mr Purry to outline what was described as “some commercial questions”. One was articulated under the heading, “Contract Flow down”, where Mr Freed expressed his view that, although the terms of the head contract were not yet known, they would not necessarily dictate what appeared in any subcontract with Cirrus. He stated that Cirrus would indicate its “overall commercial terms” which would be “pretty much the same as [V1.2Q]” and designed to keep costs low and to avoid delays over minutiae. He stated:
If there is a gap between the Cirrus proposed terms, and what you have in the head contract, that gap is part of the value that HP as prime contractor brings to table. (sic)
This was apparently a statement to the effect that where such a gap existed, HP would bear that difference and be able to negotiate with Cirrus in relation to it.
Mr Purry responded to Mr Freed’s questions some three days later. In relation to the possibility of such “gaps”, he wrote:
Looking at your workshare we’ll have to cover off on critical flow downs such as the following if they [the NZDF] seek them:
•Milestone penalties on delivery – i.e. HP is late due to Cirrus missing a deadline we would need to flow down some pain
•Liability undertakings – should be straight forward given workscope
•Insurance coverage – it will need to be appropriate in the context of what you are delivering
•Warranty terms – we can’t warrant Cirrus products to the NZDF outside of what you offer HP
•Price validity – please try and meet the RFT requirements else this risk comes to HP and we have to price it as a premium
•Annual price escalation for services – please propose
•Service Availability KPIs – we’ll have a look at this – it maybe that we need to flow something down for non-performance of Cirrus products that causes HP to be hit with KPI pain in-service
The final version of NZDF’s RFT was released on 28 November 2016. It specified a closing date for submissions of 16 January 2017 and was sent to Mr Freed by Mr Purry the following day. Amongst other things, it referred to the Core Offering as a “mandatory requirement” and noted “the Crown may also further expand the capability to include a sensor suite” that was capable of “integration with the proposed AWO training system” (i.e., the Optional Offering).
The Version 3 and Version 4 Quotations
On 13 December 2016, Cirrus sent a quotation to HP for the provision of ACOTS (V3Q).
At 2:33 pm on 16 December 2016, Mr Freed sent an email to Mr Purry that noted that technical issues involved with Cirrus’ proposal were likely to be settled by 21 December 2016. He also stated:
Re: commercial angle; the proposal is covered by [the confidentiality agreement] which does not let HP put Cirrus’ proposal into your tender response. The last section of our proposal addresses that – basically, we are looking for HP to say “yes, this quote fits the bill” at which point we will relax the NDA so you can incorporate into your tender. Noting your RFT response times, I suggest we aim to get this squared away by next Wed [21 December], rather than let it drag into the xmas period.
Shortly thereafter, Mr Purry responded via email indicating that HP would not “be in a position to close completely on your [Cirrus] subcontract arrangements until after new year” due to the unavailability of its legal counsel. He also inquired whether Cirrus was “clear” on all the issues “associated with fitting the AWO solution onto sensor fitted [aircraft]” and whether Mr Freed foresaw any other outstanding issues in that regard.
Mr Freed responded at 3:04 pm on 16 December 2016. He stated:
Re: sensors. I don’t quite understand the question. We are supplying ACOTS software that goes into HP console hardware, and connects to the aircraft via HP’sr [sic] AID. ACOTS has zero technical interaction with any sensors and I don’t see Cirrus as having any responsibility for sensors at all.
If you think the sensors you might fit might clash with COTS, maybe you could give us some detail?
Although the question of ACOTS interfacing with live sensor data was deferred by Mr Purry, his email in response, sent at 3:46 pm that day, raised several questions arising from the terms of V3Q. One question pertained to cl 10.5, which was emblazoned “Next Steps” and provided:
Should HP find this quotation (including the cost and commercial terms proposed) acceptable and wish to incorporate this data in its RFT response, Cirrus would appreciate that HP provide Cirrus further correspondence that clearly states that should HP (irrespective of whether it be HP NZ or another entity in the HP group) be selected by NZ MoD to enter into contract negotiations and subsequently enter into a contract for the ACTC capability, the engagement between HP and Cirrus will be on the basis set out in this document.
That language, Mr Purry noted, did not adequately address the possibility that the NZDF may very well opt to proceed with the ACTC Program without training its AWOs in New Zealand. He indicated that, should that circumstance arise, it was “clear[]” that there would be no work for Cirrus to do and, accordingly, proposed a revised version of cl 10.5 in the following terms:
Should HP (irrespective of whether it be HP NZ or another entity in the HP group) be selected by NZ MoD to enter into contract negotiations and subsequently enter into a contract for the ACTC capability as stated in the RFT (i.e. inclusive or [sic] AWO Training Capability), the engagement between HP and Cirrus will be on the basis set out in this document.
As the primary judge identified, that language relevantly referred to the ACTC capability “as stated in the RFT”, id est “inclusive or [sic] AWO Training Capability” (PJ [49]). Mr Freed responded some 30 minutes later in which he acknowledged his agreement with the proposed revisions to the Operative Paragraph but indicated that, before he would authorise use of Cirrus’ material in any tender, he required a letter from Mr Purry that set out the amended cl 10.5.
On 21 December 2016, Mr Freed sent Mr Purry and Ms Binotto a revised quotation which was referred to as the Version 4 Quotation (V4Q). It contained the following text:
10.5 NEXT STEPS
HP has previously confirmed (at Ref. C) that it will tender Cirrus’ ACOTS system as its solution to the AWO training element of the RFT, and that it will not in its RFT response bid any alternative solution to the AWO training element.
This document now provides HP the additional commercial data on Cirrus’ solution.
Should HP find this quotation (including the cost and commercial terms proposed) acceptable and wish to incorporate this data in its RFT response, Cirrus would appreciate that HP provide Cirrus further correspondence that clearly states that should HP (irrespective of whether it be HP NZ or another entity in the HP group) be selected by NZ MoD to enter into contract negotiations and subsequently enter into a contract for the ACTC capability, the engagement between HP and Cirrus will be on the basis set out in this document.
Following receipt of this correspondence, Cirrus will agree to a suitable relaxation to the NDA (Ref. A) to facilitate the incorporation of information from this proposal into HP’s RFT response.
Whilst the terms of V4Q are set out in greater detail below, two preliminary observations ought be made. First, it is not clear why the Operative Paragraph, as it appears in clause 10.5 of V4Q, did not mirror that which Mr Freed had agreed to some five days earlier. Instead, it seemingly reverted to the effect of an earlier iteration where the relevant “trigger” was HP entering into an agreement with the NZDF “for the ACTC capability” – not “the ACTC capability as stated in the RFT (i.e. inclusive or [sic] AWO Training Capability)” (emphasis added). Second, and unlike V1.1Q and V1.2Q, V4Q did not contemplate expansion of the “Base Option” (i.e., the Core Offering) to include the “Display of Sensor Data in ACOTS” (i.e., the Optional Offering).
At 4:33 pm on 21 December 2016, a letter under the hand of Mr Purry and on a HP letterhead, was sent to Mr Freed in the following terms:
References:
A. Document Number: TDR-B 107-01v1.4 Cirrus Quotation for The Provision of ACOTS for Air Warfare Officer Training [V4Q]
B. New Zealand Ministry of Defence Aircrew Training Capability Request for Tender, RFT1-228
C.Non-Disclosure Agreement Hawker Pacific and Cirrus RTPS dated 25 August 2016
Dear Peter
RE: Cirrus Proposal for AWO Training as part of HP Response to NZ MoD RFT 1-228
I would like to thank you for your excellent response at Reference A, and subsequent clarifications, to the Hawker Pacific request for quotation in relation to the ACOTS work scope under Reference B.
Should Hawker Pacific (irrespective of whether it be Hawker Pacific NZ or another entity in the Hawker Pacific group) be selected by NZ MoD to enter into contract negotiations and subsequently enter into a contract for the ACTC capability as stated at Reference A (i.e. inclusive or [sic] AWO Training Capability), the engagement between Hawker Pacific and Cirrus will be on the basis set out in Reference A to this Letter.
As agreed between us, the next steps required to allow the Cirrus proposal to be incorporated into the Hawker Pacific response to Reference B is an additional release, beyond Reference C which allows the Cirrus proposal, including cost and commercial terms as proposed, to be passed to the NZ MoD for the purpose of responding to Reference B.
Hawker Pacific now requests such a release from Cirrus by 3rd January 2017.
If you wish to clarify any matters in relation to the use of the Cirrus proposal or the broader RFT please do not hesitate to contact me.
Yours Sincerely,
[Mr Purry’s signature]
Craig Purry
Vice President
Government Business
[phone number]
(Emphasis added).
It is worth pausing to acknowledge the reference to “Reference A” (being V4Q), in the above iteration of the Operative Paragraph, is significant. It appears to make it clear that the “trigger” for any obligation owed by HP to Cirrus was its entering into a contract to provide the ACTC capability quoted for in V4Q. That is inconsistent with the terms of cl 10.5 of V4Q (“the ACTC capability”) and what the parties had agreed to on 16 December 2016 (“the ACTC capability as stated in the RFT (i.e. inclusive or [sic] AWO Training Capability)”) (see PJ [127]).

Yet, that discrepancy appears to have gone unnoticed by Mr Freed, who responded at 4:55 pm that day by a letter addressed to Mr Purry:
REF. A. TDR-B I 07-01 vl .4, “Cirrus Quotation for The Provision of ACOTS for Air Warfare Officer Training”
REF. B.New Zealand Ministry of Defence Aircrew Training Capability Request for Tender, RFTl-228
REF. C.Non-Disclosure Agreement Hawker Pacific and Cirrus RTPS dated 25 August 2016
REF. D.Correspondence from Craig Purry to Peter Freed dated 21 December 2016
Re: Release of Cirrus Proposal for Use by HP in Response to NZDF RFT.
Dear Craig
1.Cirrus has recently provided HP with a proposal at Ref. A.
2.I understand that HP wishes to incorporate this proposal into HP’s response to the RFT at Ref. B.
3.The NDA at Ref. C. does not allow such provision.
4.However, having received your correspondence at Ref. D, I am now pleased to hereby relax the constraint of the NDA. Please accept this letter as explicit authorisation from Cirrus for HP to use the materials contained in Ref. A., including the cost and commercial terms proposed, for use in its response to the RFT at Ref. B.
5.Should you have any queries regarding this, please feel free to contact me.
Kind regards
[Mr Freed’s signature]
Peter Freed
Managing Director
The learned primary judge found (at PJ [56]), and it was not disputed, that the parties continued to negotiate the terms of a subcontract through 2017 and 2018. Those negotiations revealed a number of matters in respect of which it seemed that agreement could not be reached, including that which concerned Cirrus’ intellectual property rights and the price of Cirrus’ services.
As of 21 December 2017, no agreement had been reached as between HP and the NZDF. To facilitate negotiations, the NZDF wrote to the respondents to indicate it was “prepared to offer a number of scope and cost reductions”. One such reduction was characterised as follows:
•Utilising the mission software system in respect of the sensor system installation to incorporate the provision of mission software for control and fusion of the sensor data with synthetic data for the training of Air Warfare Officers and provide the Air Warfare Officer training system on both the aircraft and ground based components of the Aircrew Training Capability. The Crown sees this as an opportunity to reduce costs and avoids [sic] the need to develop and supply two separate mission software systems, as is currently proposed by Hawker Pacific, given the Crown has elected to take up the sensor costed option.
In a response sent the following day, Mr Purry agreed that the aforementioned proposal “would yield budget savings” but would, however, force HP “to change AWO Software providers to that of a single provider responsible for both sensor integration and AWO training software”. To that end, he requested the NZDF consider paying “reasonable ‘separation’ costs” associated with removing Cirrus from the ACTC Program. The NZDF did not so oblige.
On 19 January 2018, the NZDF reiterated its earlier position in writing to HP: “the Crown is now seeking to secure a single training mission system for training of both air warfare officers and sensor operators”. That is, the NZDF now sought, with a level of finality absent from the RFT, the provision of a single training system that could meet both the Core Offering and the Optional Offering (as opposed to solely the former (being what Cirrus had quoted for in V4Q)).
Mr Purry replied to the NZDF on 24 January 2018 and noted “the only feasible solution” was “a single software provider solution based on MAROPS WideEye Training software adapted to integrate with AIMS and the aircraft sensor systems provided by Selex (radar) and FLIR EO …”. Negotiations progressed accordingly and, on 13 April 2018, Hawker NZ contracted with the Crown in right of New Zealand for the ACTC Program. On 24 April 2018, it contracted with MAROPS for the supply of a mission training system, including that which would be used to train AWOs. Cirrus was informed some two weeks later that there was no work for it do.
The terms of V4Q
It is appropriate at this juncture to set out the content of V4Q to the extent to which it is relevant to the issues on appeal.
General context
V4Q is a substantial document. To the uninitiated, it is in a rather unusual form, containing, as it does, a significant amount of promotional material. That is not pejorative, and it was not suggested that the form of the document rendered it any less likely to record a legally binding agreement. Still, that material contained substantial assertions as to the (claimed) attributes of Cirrus and its products and, one would imagine, such were not intended to be warranties in any contract which used the document as its base. Nevertheless, the document identifies itself as a “quotation” and states, at cl 1.1, that it is an “offer” to be included in HP’s response to the RFT.
Leaving to one side the large amount of promotional material, V4Q contains, at cl 5, a detailed description of the ACOTS technology, its uses, and functionality. Clause 6 outlines the manner in which that technology was to be developed and modulated to meet the Core Offering. At cl 6.4, several options were given by which the “Base Option” could be varied (such as provision of ACOTS on tablets or a display emulating TCAS (ostensibly a reference to a Traffic Collision Avoidance System)); as above, no provision was made for the Optional Offering (cf V1.2Q).
The “Commercial Proposal”
The most important part of V4Q is Part 10, “Commercial Proposal”. The significance of that part inheres within cl 10.2 (“Compliance against RFT Draft Contract Terms”), which provides:
In summary, Cirrus does not comply with the draft terms of contract proposed by NZ MoD at the RFT.
Instead, Cirrus proposes terms for the HP-Cirrus subcontract per the contents of this section 10.
It is quite possible that these terms provide significant overlap with the terms of a simply ‘flowed down’ RFT draft contract.
To the extent gaps exist between the terms proposed here, and the terms of a subcontract formed by a simple flow down of the RFT draft contract, HP may assume that it will need, as prime contractor, to absorb the corresponding quantum of commercial cost or risk or both.
Alternatively, HP may propose changes to particular terms proposed in this section 10.
Cirrus is willing to consider variations that HP might propose to the commercial terms that are captured in this section 10.
This includes changes that may be proposed by HP to attain better alignment with the corresponding terms of an eventual prime contract between RNZAF and HP. Such changes to terms would carry a corresponding change to the prices quoted at section 10.4 and/or the schedule described at section 10.3.5.
In the event that HP does not agree to the price adjustment for a proposed change to a particular term, that particular term will be left unchanged as per this section 10.
It is Cirrus’ expectation that when the time comes to negotiating a subcontract with HP, HP will not present Cirrus with a subcontract that is a simple ‘flow down’ of the head contract, and expect Cirrus to ‘line by line’ redraft the document to match the terms presented in this section 10.
Rather, Cirrus expects that HP will commence negotiations with Cirrus on the basis of a draft subcontract document that HP will itself have already drafted so that it reflects the terms in this section 10.
Clause 10.3 (“Terms”) commences with the statement: “The following broad commercial terms will apply”. Clause 10.3.1 (“Conduct of Acquisition Phase Engineering Work”) immediately follows and contains several statements of intention as to what is to occur in the course of the production of the relevant ACOTS system. Reference is made, inter alia, to the conduct of the necessary engineering works to be performed by Cirrus, the testing of Cirrus’ final product, the circumstances in which HP may reject the final product, certification of that product etc.
Before the primary judge, cl 10.3.3 assumed some significance (see PJ [88] – [89]). It read:
10.3.3Acquisition Phase Milestones
•During the acquisition phase of the subcontract, payments will be made against defined milestones based on :
•Completion of defined engineering events (Design Review, TRR, Acceptance) or,
•Supply of listed deliverables, or
•Acceptance of the ACOTS.
Details of payments for each milestone may be determined at a later date, however the overall profile will represent fairly consistent payments during the acquisition phase of the project, with 90% of the acquisition component of the project cost occurring prior to Acceptance.
Clause 10.3.4 (“Intellectual Property”) defined a regime pursuant to which Cirrus was to retain all ownership in the intellectual property that it was “bringing … to this agreement” and would not be forced to disclose software source code, design data or technical data. It also noted that while Cirrus would not provide licenses to source code and design data, it would nevertheless provide licenses to HP or the NZDF to use executable versions of the software. Care was also taken to note that, should new intellectual property “emerge”, ownership in it would vest in the appellant on creation, but could be assigned to HP or the NZDF upon “payment of the relevant milestone, subject to negotiation and as agreed under any subsequent related subcontract.”
Clause 10.3.5 (“Schedule of Acquisition Phase Engineering Work”) indicates the time in which Cirrus can complete the subcontract was variable and ultimately subject to regulatory approval.
Clause 10.3.6 is important in the present context because of its anticipation of the execution of a subcontract between Cirrus and the respondents. It was drafted in the following terms:
10.3.6 Commencement of Acquisition Phase
HP has requested that Cirrus consider conduct of development works ahead of the execution of a subcontract between HP and Cirrus.
HP has described that such work would occur under the cover of a Letter of Intent (LoI) that would commit NZDEF to payment of NRE investment undertaken by Cirrus in the interval between Cirrus’ receipt of the Letter of Intent and the date that a subcontract between HP and Cirrus is executed.
Cirrus will consider this request.
Should Cirrus accede to this request, there will be a cost impact to the subsequent subcontract.
The quantum of this cost impact will be influenced by a variety of factors, including but not limited to:
•the extent to which the LoI provides Cirrus with certainty that it would recover the full investment in NRE made, in the event that Cirrus and HP do not enter into a subcontract,
•the period of time that is conducted under the LoI (i.e. prior to execution of a subcontract between HP and Cirrus), relative to the overall 6 month period of NRE development, and,
•whether HP is ready to enter into a subcontract with Cirrus once the head contract between HP and NZDEF is executed, as determined by whether this subcontract is actually executed on the same business day as the head contract is executed. This will require the terms of the subcontract to be pre-negotiated between HP and Cirrus prior to HP entering into the head contract. Preparing the terms of the subcontract will not be a simple case of flowdown of the head contract terms. Rather, the terms will need extensive amendments to match the terms set out in this document in this section 10. HP’s legal department will need to have undertaken the work to prepare these terms, and attain Cirrus agreement to the terms, prior to the execution of the head contract.
The cost proposal at section 10.4 does not include this cost impact, which will be additional.
The heading of cl 10.3.7 is “Other Commercial Terms” and, for present purposes, some of the more relevant parts that clause read as follows:
Insurance. Any requirement for insurance policies must reflect Cirrus’ existing policies as set out at Table 2 (page 26).
…
Safety. The subcontract must recognise that ACOTS is not a safety critical item of equipment, and no additional engineering is required to address any safety cases or other aspects of system safety.
…
Liquidated Damages. The costs of providing liquidated damages over the work are not included. If required this can be quoted as an additional cost. Cirrus will not take responsibility for delays caused as a result of HP not being in a position to enter a subcontract with Cirrus immediately after the head contract is signed, or as a result of HP not delivering furnished information/equipment on time.
Warranty. The costs of providing warranties over the work are not included. If required this can be quoted as an additional cost. However, the support phase costs do include an Annual Bug Fix Release, which serves a similar purpose.
Clause 10.4 identified the pricing scheme in relation to each phase of Cirrus’ work as follows:
10.4 QUOTATION
The following costs are quoted:
•Acquisition phase baseline costs. The costs charged during the build phase to undertake NRE software modifications, provide seat licenses, undertake testing and installation and set to work into ground based and airborne training environments, and to provide the SSM hardware as per the baseline proposal described at section 6.4.1.
•Optional acquisition phase item costs. The costs of providing the various options described in sections 6.4.2 to 6.4.4.
•Support phase baseline costs. The costs charged for providing the ongoing licenses and baseline support services as described at section 6.7.1.
•Optional support phase item costs. The costs of providing the optional support phase items, as per section 6.7.2.
•Additional Time and Materials Effort.
Quotes for these items are set out in the following paragraphs. All amounts are expressed in Australian dollars, and are exclusive of GST.
Clause 10.5 (“Next Steps”) has been set out above and there is no need to repeat it here.
Cirrus’ case as pleaded
The case advanced by Cirrus in its Further Amended Statement of claim (the FASoC) can be distilled to the following propositions. On 21 December 2016, Cirrus and HP entered a written agreement (the so-called “teaming agreement”). It was an express term of that agreement that:
14.… in consideration for the applicant permitting the first and second respondents to disclose, use, incorporate or combine the information from the Version 4 Quotation in the Tender, the first and second respondents would enter a subcontract with the applicant on the basis of the Version 4 Quotation if:
(a) either respondent was selected to enter contract negotiations; and
(b)subsequently entered a contract with the Ministry of Defence inclusive of training system and ongoing services (Prime Contract),
(Express Term).
The teaming agreement incorporated, by reference, the terms of V4Q (FASoC [14A]).
In turn, it was an express term of V4Q that:
14B.… in the event that the first and second respondents entered into the Prime Contract with the Ministry of Defence in terms that differed from the Version 4 Quotation including as to price, the parties agreed that:
(a)the respondents would, as prime contractor, absorb the corresponding quantum of commercial cost or risk or both;
(b)the respondents could propose changes to the particular terms contained in section 10 of the Version 4 Quotation, including to attain better alignment between the terms of the Version 4 Quotation and the corresponding terms of an eventual Prime Contract;
(c)in the event that the respondents proposed changes to terms of section 10 of the Version 4 Quotation, the applicant could propose a price adjustment to the prices quoted at section 10.4 and/or the schedule described at section 10.3.5 of the Version 4 Quotation; and
(d)if the respondents did not agree to the proposed price adjustment, the terms of section 10 of the Version 4 Quotation would remain unchanged.
The teaming agreement also contained an implied term that, in effect, required HP to:
14C. … act reasonably, cooperatively and in good faith by:
(a) ensuring the applicant had the benefit of the Express Term; and/or
(b) not engaging in conduct to deprive the applicant of the benefit of the Express Term,
(Implied Term).
In or about 2017 and 2018, HP breached both the Express Term and the Implied Term (FASoC [16] and [16A]) and, in so doing, caused Cirrus to “suffer[] loss and damage” (FASoC [17]).
In their Further Amended Defence, HP denies the existence of the teaming agreement. In the alternative, any agreement struck between the parties on 21 December 2016 is said to be “void for uncertainty and/or the terms of the alleged agreement are too uncertain to be enforced”. To the extent such an agreement was enforceable and “gave rise to a binding contractual obligation on [HP] to enter a subcontract with [Cirrus] on the basis of [V4Q] if [HP] was selected to enter contract negotiations and subsequently entered a contract with the NZDF inclusive of training system and ongoing services”, HP denies having committed any breach. First, it was said that the aforementioned obligation only arose if HP entered a contract with the NZDF that included the provision of the training system and ongoing services that were the subject of V4Q; HP had not done so. Second, it was said that the aforementioned obligation was conditional upon V4Q being acceptable to the NZDF and sufficient for HP to perform its obligations to the NZDF under the head contract; V4Q was not of such a character. Underlying these defences is the general assertion that the agreement entered into by HP and the NZDF for the training system to be provided was substantially different from that which was the subject of V4Q.
Reasoning of the primary judge
Given the conclusions reached in relation to Cirrus’ submissions, it is also necessary to set out the learned primary judge’s reasons in some detail, and with particular emphasis on those parts which are pertinent to the issues upon which this appeal turns.
The claim in contract
His Honour identified Cirrus’ claim in the following terms: by the exchange of correspondence on 21 December 2016, the appellant and the respondent “created a contract by which [Cirrus] exchanged its authorisation to disclose [V4Q] for a promise by [HP] that it would be contracted on the terms in the [V4Q] if [HP] ever entered into a contract with the NZDF that included an AWO training component” (PJ [5]). That contract was said to incorporate V4Q “by reference”, which, as discussed below, imposed on HP the obligation to absorb certain costs which it might be required to meet in the performance of the head contract with the NZDF (see PJ [142]).
“Agreements to agree” and the need for certainty
His Honour first surveyed the principles of so-called “agreements to agree” and, in particular, those instances in which an agreement to enter a contract in futuro had been found to convey contractual force (PJ [64] – [69]). That was noted to have been so in WorldAudio v GB Radio [2003] NSWSC 855 (WorldAudio), where McDougall J had found an agreement to have been reached vis-à-vis those terms that were necessary for the future contract to be presently binding:
[66]McDougall J held that the future agreement would not be uncertain because the parties had agreed upon all of the “essential” terms necessary for the future agreement to be binding (at [89]). McDougall J considered that terms could be “essential” either because the parties thought they were essential or because the Court identified them as such. As to the relationship between those two kinds of “essential” terms, his Honour observed that “the Court should be slow to substitute its own judgment for what is essential, and what is not, for that of the parties” (at [94]).

The reasoning in WoldAudio appeared to assume the role of a lodestar for his Honour. He first addressed whether the terms of V4Q (being the relevant future contract) were incomplete and lacked the “vital elements” of a contract (PJ [70], [72] – [93]). If so, the teaming agreement could not bind the parties for want of contractual certainty (“it would be a mere agreement to agree”: PJ [70]). This, his Honour noted, was tangentially relevant to the question of whether there was, on 21 December 2016, an objective intention to create legal relations (PJ [70], [93]).
The primary judge thus turned his attention to the terms of V4Q (and specifically those which appeared under the heading of cl 10, “Commercial proposal”) (PJ [72] – [84]). Having done so, his Honour was persuaded by the submission that the teaming agreement, being referable to V4Q, “was capable of being a binding agreement: it set out the services to be provided and the price to be paid” (PJ [85]). The fact that the identity of the relevant entity from within the Hawker Pacific group that was to contract with Cirrus was yet to be determined, as was the timing of payments to be made under the agreement, did not detract from such conclusion (PJ [86] – [89]). That is, the uncertainty of what might be agreed in the future did not undermine the existence of a sufficiently certain agreement as at 21 December 2016 (PJ [93]).
An intention to be legally bound
His Honour then turned to whether, in light of the foregoing, there existed, between the parties, an objective intention to create legal relations in relation to the teaming agreement (PJ [94] – [139]). He concluded (at PJ [96]) that no such intention existed. This was for three reasons:
[96]… First, the nature and extent of the incomplete terms in the Version 4 Quotation tell against a mutual contractual intention. Second, the commercial circumstances against which the exchange of letters occurred on 21 December 2016, including the language used by the parties before and on that date, tells against a mutual contractual intention. Third, the later conduct is equivocal, and does not suggest that the parties intended to bind themselves on 21 December 2016. …
Consideration (1): the nature and extent of the incomplete terms in V4Q
For the primary judge, the language of cl 10.2 of V4Q told “powerfully against” the conclusion that the parties intended to be bound by the terms of V4Q on 21 December 2016 (PJ [99]). Viewed objectively, the clause spoke of the parties negotiating a subcontract in the future and adverted to the fact that those negotiations had not yet commenced. The fact that HP could put to Cirrus new terms which arose from the terms of any head contract agreed with the NZDF greatly undermined the conclusion that the parties were binding themselves to the static terms of V4Q in the event that HP’s tender succeeded.
Similarly, the nature and extent of terms left to be agreed reflected an absence of the requisite intention. Some of those terms were, objectively, “essential” (PJ [101]). For example, his Honour reviewed the parties’ correspondence leading up to 21 December 2016, and observed (at PJ [104]) that HP had informed Cirrus that there were a number of important matters which could reasonably fall from any possible head contract with the NZDF and which would need to be accommodated in any subcontract. As his Honour noted, the draft contract which accompanied the RFT from the NZDF “contained draft terms relating to insurance, warranties, liability and KPIs …”. Though V4Q dealt with some of these issues “in a tolerably clear way” (PJ [105]), it did not deal with all of them nor had sufficient time passed between the receipt of V4Q by HP and its reply to conclude that the parties had reached agreement vis-à-vis those issues which it did address. For instance, V4Q did not grapple with “Milestone penalties on delivery” nor make provision for “KPIs” as sought by HP (PJ [106]). Similarly, the parties had not agreed upon the warranties that Cirrus would provide in relation to its services. His Honour further observed that V4Q did not deal with “Price Validity”, though, in the absence of any relevant submissions, he was unable to venture any further conclusion in that regard (PJ [107]). As an aside, and on the assumption that such expression has its usual meaning of the duration for which a price quoted remains valid and capable of acceptance, it is catered for in cl 10.4.7.
In any event, his Honour concluded (at PJ [108]) that the nature and extent of the matters left unresolved, when viewed in light of Mr Purry’s observations on 16 December 2016 (that it would not be possible to close off on all outstanding contractual issues before the end of the year), “strongly suggest[ed] the absence of a shared intention to enter a binding contract on 21 December 2016”. In particular, in the absence of any agreement as to milestone penalties, HP could well find itself liable to the NZDF under the head contract in respect of delays or deficient work by Cirrus, but without any avenue of recourse as against it. This had been the subject of discussion between Messrs Purry and Freed with the former indicating that it was something that needed resolution. The primary judge also observed (at PJ [108]) that, if the terms in V4Q were taken as a final agreement, it would amount to a finding that the respondents had agreed to contract without resolving issues which had explicitly been identified as “critical”.
His Honour also held (at PJ [110]) that the “risky and onerous nature of the promise” said to have been made in the teaming agreement rendered it unlikely that the parties had the requisite contractual intention. That view was reinforced on a comparison of the relative informality of the teaming agreement with the “potentially large consequences for both parties”.
That being so, his Honour nevertheless accepted that HP understood the participation of Cirrus to be “significantly beneficial” to the competitiveness of its tender to the NZDF (PJ [111]). However, on the evidence then before the Court, it was plain HP was prepared to run the risk of Cirrus walking away from the deal (even if that was not considered likely). In short compass, his Honour found that HP was not in the position where it would agree to “whatever Cirrus demanded” in return for its participation.
It was also considered relevant (at PJ [113]) that, as a matter of practical commerciality, the contract contended for by Cirrus would expose HP to significant risk. For example, the teaming agreement would serve to oblige HP to purchase the training system described in the V4Q if it entered into a head contract with the NZDF for the “ACTC capability” that required the supply of any AWO training system. That remained so, even where the head contract required the provision of a training system other than that offered by Cirrus in V4Q. Self-evidently, the materialisation of such a circumstance would leave HP in a particularly difficult position and the only identifiable quid pro quo for the assumption of that risk was that Cirrus would relax its confidentiality requirements for the purpose of making the tender (for the potential benefit of all parties). In that, his Honour found an “obvious” lack of balance which rendered it “objectively unlikely” that both parties were agreeing to be bound to V4Q.
His Honour also considered it to be relevant (at PJ [114]) that, if HP was bound to the terms of V4Q, it would render negotiating for the head contract rather difficult and, indeed, might place it in the position where it would be “uneconomic” to make a bid. Plainly, that would neither protect nor advance Cirrus’ interests. In this respect, he also recognised that if there were an intention to protect Cirrus to the extent alleged, there were far more convenient ways to do it.
Overall, an agreement on the terms alleged by Cirrus would have, to adopt the language of the primary judge, “placed all of the risks associated with negotiations of the price and detail of the services on the respondents and none on Cirrus, notwithstanding that both stood to benefit from those negotiations” (PJ [115]).
Consideration (2): the commercial backdrop against which the exchange of letters occurred
The primary judge then proceeded to consider the circumstances in which the exchange on 21 December 2016 took place, including correspondence that had emanated from the parties. He first recognised (at PJ [120]) that the fact that the parties had, on prior occasions, entered into formal agreements when they intended to create binding obligations (such as the first and second confidentiality agreements), tended to suggest that the informality of the 21 December letters was indicative of an absence of any intention to enter into a legal contract. He concluded (at PJ [121]) that the “alacrity and informality with which the teaming agreement was concluded are consistent with a mutual understanding that it was not to set the obligations of the parties in stone”. That was fortified (at PJ [122]) by an absence of evidence that the parties intended the terms of the teaming agreement to be embodied in a formal agreement, as the parties had done on previous occasions, as well as the absence of any express statement that, in return for the relaxation of the relevant confidentiality agreement, Cirrus was to have a legally binding exclusivity agreement in relation to any subcontract (at PJ [123].
His Honour also accepted that, had Cirrus desired an immediately binding commitment (as it had obtained from HP in the past), it would have stipulated for a signed contract (PJ [124]). It had not done so. In that context, the “commitment” that had been sought by Cirrus in its letter of 21 December, when read in light of the parties’ history of contracting formally on issues important to them, could not lead a reasonable person in the position of the parties to think it referred to a contractual commitment.
A further aspect of the parties’ informality that was alluded to by the primary judge was the lack of coherence in the identification of the elements of the essential agreement. His Honour identified (at PJ [127]) that in V4Q, the stipulation sought by Cirrus was that if HP entered into a contract for the “ACTC capability” – being the capability sought by the NZDF in its RFT – the engagement of Cirrus would necessarily follow. However, the 21 December letter sent by HP identified the relevant stipulation as being that if it entered into a contract for the ACTC capability “as stated in Reference A (i.e. inclusive or [sic] AWO Training Capability)”, Cirrus’ engagement would follow. His Honour found that “[t]his was a significant discrepancy which seemingly passed unnoticed until these proceedings were commenced. … [T]he respondents’ letter was a short one and, if intended as a contractual document, was important. Yet Mr Freed apparently neither read it carefully nor asked anyone else in his company (let alone a legal adviser) to check that it matched up with what he was seeking” (PJ [127(e)] and [127(f)]).
His Honour rejected (at PJ [128]) Cirrus’ submission that HP was only able to submit a tender with its assistance. He also held that as the teaming agreement, if afforded Cirrus’ construction, would not have prevented it from refusing to participate if HP’s tender were to be accepted, nor from supporting a competing tender. That being so, “[o]ne would have thought that the respondents would have bargained for reciprocal exclusivity if Cirrus’ involvement was indispensable to its tender”.
Consideration (3): so-called “post-contractual” conduct
The primary judge also considered the evidence of so-called “post-contractual conduct” advanced by the parties in support of their respective claims (PJ [129] – [138]). His Honour rejected evidence of any such conduct which was not known to both parties (PJ [131], [134]), and otherwise concluded that the evidence did not support the view that the parties had an intention to enter into a contract as at 21 December 2016 (PJ [136] – [137]). His Honour’s consideration of those matters is addressed in greater detail below.
Other matters considered by the primary judge
Did the teaming agreement incorporate the terms of V4Q?
Despite the foregoing conclusions (which were sufficient to dispose of Cirrus’ case in contract), his Honour appropriately proceeded to consider other aspects of Cirrus’ case. In this respect, he identified the difficulty in ascertaining precisely how the terms in V4Q related to the teaming agreement (PJ [141] – [143]). In part, Cirrus said that the teaming agreement required HP to enter into an agreement “on the basis of” V4Q and, in other parts, it was alleged that the terms of V4Q were “incorporated by reference” into the teaming agreement. As the learned primary judge observed (at PJ [141]), Cirrus did not explain this disconformity and his Honour therefore rejected the proposition that the terms in V4Q were incorporated into the teaming agreement (PJ [143]).
Construction of the respondents’ letter of 21 December 2016
On the question of the construction of the teaming agreement, his Honour first addressed the issue of whether the use of the expression “Reference A” in a letter sent by HP to Cirrus on 21 December 2016 (see [49] supra), ought to be read as “Reference B” (PJ [145] – [159]). The relevant passage had been drafted by HP in the following terms:
… Should Hawker Pacific … be selected by NZ MoD to enter into contract negotiations and subsequently enter into a contract for the ACTC capability as stated at Reference A (i.e. inclusive or AWO Training Capability), the engagement between Hawker Pacific and Cirrus will be on the basis set out in Reference A to this letter. …
(Emphases added).
The letter identified “Reference A” as the V4Q and “Reference B” as the NZDF’s RFT. On one view, namely that advanced by HP, the impugned reference to “Reference A” in the aforementioned sentence was intended to mean V4Q, such that, by the terms of the teaming agreement, HP was only bound to enter into a subcontract with Cirrus if it entered into a head contract with the NZDF to provide the training services that were the subject of V4Q.
His Honour concluded, after canvassing the views of Leeming JA in James Adam Pty Ltd v Fobeza Lty Ltd [2020] NSWCA 311 as well as Meagher JA and Ball J in HDI Global Speciality SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296, that the language adopted in HP’s letter of 21 December 2016 was likely to have been erroneous: “[t]he reference to “Reference A” (rather than “Reference B”) is inconsistent with [prior exchanges between Messrs Purry and Freed]. It also sits somewhat uneasily with the words that follow” (at PJ [153] – [157]). Yet, the language was also unambiguous, made sense and set out the terms of an agreement that was capable of being carried into effect. As such, it was “to be given its ordinary meaning” (PJ [158] – [159]).
Consideration was also afforded to disputation as to the meaning of the term “engagement” in HP’s letter of 21 December 2016 (see PJ [160] – [165]). In that regard, his Honour held (at PJ [163]) that, if an agreement had been reached by the relevant exchange of letters, it was only to the effect that HP would “negotiate for a subcontract with Cirrus if an entity in the “Hawker Pacific group” successfully tendered for the ACTC Program, using the process and on the terms set out in the [V4Q]”. Further, it was found (at PJ [164] – [165]) that the obligation to engage in negotiations arose “only if and when [HP] were engaged to provide services of the kind proposed in the [V4Q]”. “That never occurred” (PJ [165]).
The terms implied in the teaming agreement
His Honour then addressed (PJ [166]ff) the suggestion that the teaming agreement contained an implied term which, on Cirrus’ submissions, had been breached. The term was to the effect that HP would act reasonably, cooperatively and in good faith by “ensuring the applicant had the benefit of the Express Term” and/or by “not engaging in conduct to deprive the applicant of the benefit of [it]”. In short, it was concluded that the allegation of the implied term “must necessarily fail” because it relied upon the presence of the so-called “Express Term” and such a term had not been established (PJ [167]). In any event, the alleged implied term went well beyond that which might arise in the circumstances: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 (at PJ [168] – [171). For example, the implied term could not be correct because no conduct on the part of HP was required in order for Cirrus to perform its obligation(s) under the teaming agreement, in that all that it was required to do was give a release of HP’s existing confidentiality obligations (PJ [170]). Furthermore, the alleged implied terms went well beyond that which was needed to oblige HP to ensure that the conditions on which Cirrus would be engaged as a subcontractor came to fruition. That which was alleged by Cirrus would “impose a burdensome and potentially impossible obligation” on HP (PJ [173]). Indeed, as framed, it would require HP to contract with Cirrus even if it had the likely consequence of imperilling the economic viability of both.
The learned primary judge then proceeded (at PJ [181]) to address, ex hypothesi, the issue of whether Cirrus had established that any breach had occurred. As his analysis is dependent on several consecutive assumptions, it is not necessary to undertake any further consideration of the matter at this juncture. Nor is it necessary to consider his Honour’s disposal of Cirrus’ submissions founded upon an alleged estoppel by convention (PJ [186] – [192]).
The issues on appeal
The central issue before the Court is whether the parties entered into an agreement of the nature alleged by Cirrus in the FASoC. Two questions thereby arise (PJ [62]). Did the parties agree upon all the essential terms of their bargain in the form of V4Q? And did the parties intend to create legal relations? The learned primary judge answered, “yes”, (see, eg, PJ [63], [85], [93], [188]) then, “no” (see, eg, PJ [63], [96], [139], [188]). It is the latter of those conclusions which underlies the gravamen of Cirrus’ present case. For the reasons which follow, his Honour was correct to conclude that, in the circumstances, there was a lack of intention to be legally bound. On the basis of that conclusion, it is not necessary to consider the remaining grounds of appeal.
Intention to create legal relations
The question of whether, by their conduct and what they said, Cirrus and HP objectively evinced an intention to be legally bound to the performance of certain terms, is a factual one. As such, its resolution should be approached with a measure of caution. As the requisite intention is to be gleaned from the circumstances of the case, the degree of difficulty involved in doing so will fluctuate from case to case and, here, they were far from straightforward.
The present issue
The price of flexibility in commercial relations
It is apt to make the initial observation that, as any assessment of the myriad authorities will evidence, the assortment of arrangements, accords, accommodations or understandings short of a legally binding agreement which arise in commerce are almost limitless. That being so, it would be dangerous to proceed upon a presumption that any arrangement between commercial parties following discussions or negotiations is necessarily contractual. On the other hand, where the issue of the existence of contractual intention becomes the subject of litigation, one of the parties asserts that such an intention became manifest in the circumstances.
Commercial parties are self-interested. It is a matter of common experience, as this case well shows, that parties are often desirous to establish as solid a foundation as they can on which to pursue commercial opportunities, whilst remaining free of binding legal obligation: Kleinwort Benson v Malaysia Mining Corporation Berhad [1989] 1 WLR 379; Commonwealth Bank of Australia v TLI Management Pty Ltd [1990] VR 510; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, 548 – 549 (XIVth Commonwealth Games); Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551, 14,552 (Geebung Investments); Hillas & Co Ltd v Arcos Ltd [1932] All ER Rep 494, 503 – 504. The position of an entity that seeks to tender for a contract is a prime example.

The sole ground of HP’s Notice of contention cavils with the primary judge’s finding in this respect. It is said by Messrs Giles SC and Puttick for HP that V4Q could not be relied upon in the search for certainty and completeness of the terms of the teaming agreement as it was (a) not incorporated into that agreement; and, even if it was, (b) itself, uncertain and incomplete.
For present purposes, it is preferable to deal with the second of those issues at the outset. This is because, as will be recalled, the certainty of an agreement in futuro (being V4Q in the present instant) is what often distinguishes a legally binding contract from a mere “agreement to agree” and will tend to bear upon the question of whether the requisite contractual intention exists.
Uncertainty of V4Q
In Ken Morgan Motors, Brooking J (at 130) made the following observation:
An agreement is not a binding contract unless the parties have agreed upon such terms as are in the circumstances legally necessary to constitute a contract. Otherwise the supposed contract is bad for uncertainty. It is convenient to distinguish between two varieties of uncertainty in this wide sense and to call the first uncertainty and the second incompleteness. A contract is uncertain if some essential term is so vague that no definite meaning can be assigned to it. A contract is incomplete if the parties have deliberately (and whether expressly or by implication) left some essential term to be settled by their future agreement. …
(Citations omitted).
(see also Thorby v Goldberg (1964) 112 CLR 597, 607).
So framed, any inquiry into the “uncertainty” of an agreement is predicated upon identification of those terms that have, or have not, been settled; that is, the “completeness” of the agreement. In brief, the characteristics of V4Q render it rather difficult to conclude that, in the commercial context in which the parties were negotiating, the teaming agreement (assuming that it did, in fact, incorporate V4Q) was sufficiently complete and, in turn, certain to be binding. For the most part, the difficulty with V4Q lies in both cl 10.2 and its failure to address “critical” issues.
As has been mentioned, the penultimate paragraph of cl 10.2 speaks of negotiating a contract in the future and, indeed, notes Cirrus’ “expectation” when that “time comes”. Both the futurity of the wording and absence of mandatory language is a powerful indicator that little to no terms had been settled. Additionally, the final paragraph of cl 10.2 refers to what Cirrus’ “expects” when HP commences negotiations with it, which further signifies a lack of finality as to terms. In light of the manner in which cl 10.2 makes provision for the continuation of negotiations, it is difficult to reach the conclusion that the parties had reached a sufficiently complete bargain.
Against this, it is said by counsel for Cirrus that:
[15]… Clause 10.2 did not indicate an absence of certainty … It provided a workable mechanism that allowed the parties to “attain better alignment” with the terms of the eventual Prime Contract. In other words, cl 10.2 provided for the type of “stipulated machinery” referred to by the learned author in Heydon on Contract at [3.280], namely a clause by which the parties could resolve matters not initially agreed. Indeed it is difficult to envisage how the parties could have agreed terms in this commercial context without an equivalent mechanism, given that the precise terms of the Prime Contract were not known.
(Emphasis in original).
But cl 10.2 does not speak of machinery “by which the parties could resolve matters not initially agreed”. Instead, it speaks of Cirrus’ willingness “to consider variations that HP might propose to the commercial terms that are captured in this section 10”, including any “changes that may be proposed by HP to attain better alignment with the corresponding terms of an eventual prime contract” (emphasis added). Two observations need be made. First, cl 10.2 contemplates the variation of terms that are said to have been “captured” in section 10 of V4Q. In that sense, it does not define how any term that is neither so “captured” nor agreed on – including “critical” matters, such as “Service availability KPIs” (see PJ [106(b)]) – is to be agreed. Second, and in any event, cl 10.2 does not define a form of intelligible machinery for resolving terms that are sought to be varied by HP. All that is said as to that process is that “Cirrus is willing to consider variations that HP might propose”, such as changes to “attain better alignment” with any prime contract. That language, and in particular, use of the passive verb “consider”, fails to stipulate how the parties will reach agreement upon any proposed variation (cf those instances where an outstanding issue is left to be determined by a third party: see, eg, Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600; see also the examples cited in Heydon on Contract 103 [3.280] and Cheshire & Fifoot 286 [6.9]) and, therefore, suggests that V4Q does require some further agreement by the parties: see Furmston and Tolhurst 347 – 348 [10.105].
That problem is not resolved by reference to the rather more finite outcomes contemplated by cl 10.2, namely (a) any variation “to attain better alignment” will “carry a corresponding change to the prices quoted … and/or the [Schedule of Acquisition Phase Engineering Work]”; and (b) if “HP does not agree to the price adjustment for a proposed change to a particular term, that particular term will be left unchanged”. Whilst that language defines what is to occur if some variation is made to section 10, it does not spell out how that variation is ever to be arrived at.
That is of some relevance when it is recalled that several expressly “critical” matters were yet to be agreed (see [212] – [215] supra), including, inter alia, (a) “Service Availability KPIs” (it was said by Mr Purry of HP that “we [may] need to flow something down for non-performance of Cirrus products that causes HP to be hit with KPI pain in-service”); (b) “Milestone penalties on delivery – i.e. HP is late due to Cirrus missing a deadline we would need to flow down some pain” (that is, liquidated damages); and (c) the giving of appropriate warranties by Cirrus etc.
The absence of agreement upon these issues in V4Q (or the teaming agreement for that matter) is sufficient to render the alleged agreement “incomplete”. On any view, the capacity of HP to “flow down” liability to Cirrus for any delayed, incomplete or defective performance is a matter central to the parties’ relationship. In this respect, it should be noted that a subcontract between HP and Cirrus would, necessarily, be far more complicated than a simple sale transaction where agreement on the parties, the subject matter, and price will often suffice: see Cheshire & Fifoot 274 [6.2]; Vroon BC v Foster’s Brewing Group Ltd [1994] 2 VR 32, 68. As the terms of V4Q make plain, the parties were negotiating a species of “design and build” contract that required design, development, testing and transfer, all of which was to take place over an extended time frame. The terms upon which those parties would need to agree to in relation to such a contract are of a far more significant order than, for instance, a plain contract of sale: see, eg, Quinlan v A and J Brady Pty Ltd [2007] FCA 1409 [178]. Similar issues would abound in any contract with the NZDF and, understandably and rather prudently, several of those additional terms and conditions had been raised by HP as being “critical” to a contractual relationship with Cirrus.
There is a lacuna of evidence to support the submission that HP was prepared to abandon the position that such “critical” issues were to be agreed as part of any binding agreement. Indeed, and in response to Mr Freed’s suggestion on 16 December 2016 that the agreement be finalised before Christmas, all that was noted by Mr Purry was that it was “most likely that [HP] won’t be in a position to close completely on [Cirrus’] subcontract arrangements until after new year”. There was no alteration to that position prior to the exchange of correspondence some five days later. More importantly, there was no further negotiation or discussion as to HP’s requirements to suggest that they fell away in the course of the “natural back and forth” between the parties.
In short, the teaming agreement, to the extent that it incorporated V4Q, was “incomplete” vis-à-vis critical or essential matters which (a) Cirrus was aware of; and (b) it can be expected that HP would not have entertained any agreement without their being satisfactorily addressed.
Though this coincides with the primary judge’s conclusions as to incompleteness (see generally PJ [101] – [109]), it does not necessarily follow that the terms of the teaming agreement were, in toto, insufficiently certain. Indeed, it may be accepted the parties, subject matter and price were agreed (PJ [85] – [93]); whilst the latter of those conclusions is perhaps rather difficult to sustain in light of the observations made at [200]ff supra as to the “ROM price” and Acquisition Phase cost, that again can be put to one side. That being so, for the type of transaction presently in question, agreement upon the aforementioned matters does not render the putative contract any more “certain” in light of the parties’ failure agree on those matters canvassed above: Ken Morgan Motors 131; Cheshire & Fifoot 275 [6.4]. That which may afford appropriate certainty to a sale agreement, does not, necessarily, provide the same for a contract of the type alleged.
The essentials of the agreement between Cirrus and HP remained uncertain. To the extent to which the teaming agreement required the parties to enter a subcontract based on V4Q, it too lacked certainty consequent on an absence of agreement on the identified matters. This distinct lack of certainty and completeness subverts the existence of the requisite contractual intention.
Conclusion upon existence of contractual intention
In sum, if one returns to the question posed at [111] supra – “did the parties objectively evince an intention to be legally bound to identifiable terms and conditions?” – the answer is “no”. As of 21 December 2016, the parties had reached an arrangement which facilitated HP’s ability to submit its tender to the NZDF. For its part, Cirrus would allow the use of its confidential information, but remain at liberty to similarly assist other tenderers should it see fit and should HP not be successful. Conversely, HP would use Cirrus’ information to attempt to secure the position of “preferred tenderer”, and indicated its intention to engage with Cirrus in an attempt to enter into a subcontract generally in accordance with V4Q. Depending upon the agreement negotiated with the NZDF, a subcontract might be entered into with Cirrus to their benefit.
However, much was not agreed, and much was expressly left for negotiation. So, whilst it may reasonably be said that the parties had reached a position whereby the tender could proceed, the circumstances do not objectively establish an intention by them to be bound. These matters alone are sufficient justification to refuse the appeal.
Were terms agreed with sufficient certainty and completeness?
For those reasons at [241] – [252] supra, neither the teaming agreement nor V4Q were agreed with sufficient certainty or completeness. As such, the Notice of contention should be upheld.
Conclusion
There is no need to consider the remaining grounds of appeal.
For the reasons given above, it is appropriate for the appeal to be dismissed and for the appellant to pay the respondents’ costs.

I certify that the preceding two hundred and fifty-seven (257) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.
Associate:
Dated: 3 July 2025
REASONS FOR JUDGMENT
CHEESEMAN J:

I have had the benefit of reading in draft the reasons of each of Derrington J and Jackman J. I agree that the appeal should be dismissed with costs. In reaching that conclusion, I agree with the careful and detailed analysis of Derrington J subject to the following two confined points.
First, I agree with Jackman J that there are exceptional cases in which a party’s subjective intention is relevant and can be determinative as to whether an intention to create legal relations is established as a matter of fact, as illustrated at [264] to [267] of his Honour’s reasons. I further agree with Jackman J at [263] that the requirement of an intention to create legal relations does not equate to an intention that the parties objectively intend that their agreement be subject to judicial oversight.
Secondly, I agree with Derrington J (at [158]) and Jackman J (at [268] to [275]) that the primary judge erred in following McLure JA’s statement in Tipperary Developments Pty Ltd v Western Australia [2009] WASCA 126; 38 WAR 488 (Tipperary) at [120] and thereby excluding from consideration subsequent matters which were not known to both parties. In doing so, I note that it does not appear that the primary judge was invited to depart from the intermediate appellate decision in Tipperary. That does not preclude the point being raised on appeal, but it does provide context. For the sake of clarity, I should make plain that I agree with what is said by Jackman J at [272] to [274] of his Honour’s reasons. In my view, his Honour’s conclusion that an admission after the event by a party (made through a lay person with authority to act on behalf of the party) that a binding contract has (or has not) been formed is admissible as an admission of fact that the party intended (or did not intend) to enter a binding contract.
In this appeal, the subset of evidence of subsequent conduct and communications which was not known to both parties, was admissible for the reasons given by Jackman J, but attracts minimal weight for the reasons exposed by Derrington J in obiter dicta. Accordingly, the primary judge’s finding as to a lack of intention to enter binding contractual relations stands, and the appeal must be dismissed.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.
Associate:
Dated: 3 July 2025
REASONS FOR JUDGMENT
JACKMAN J:

I have had the very considerable benefit of reading in draft the reasons of Derrington J. Subject to what I say below, I agree with those reasons, and that the appeal should be dismissed with costs.
At [113]–[118], Derrington J makes some observations on the philosophical foundation of the intention to create legal relations. I would prefer not to express any view on the underlying philosophical basis for that requirement. I note, however, that if the “reliance theory” (referred to by Derrington J at [114]) is presently dominant, which I doubt, then I expressly disassociate myself from that intellectual fashion. Further, and again in relation to Derrington J’s reasons at [114], I do not regard the requirement of an intention to create legal relations as an intention that the parties objectively intend that their agreement be subject to judicial oversight, as the latter is not objectively manifested in the vast majority of mundane but binding agreements which are matters of everyday consumer experience. In addition, for the reasons which follow, there are exceptional cases in which a party’s subjective intention is relevant, and can be determinative, as to whether there is an intention to create legal relations, which I deal with below by way of amplification of Derrington J’s reasons at [115]–[119].
As a matter of general principle, it is true that the issue whether the parties intended to create contractual relations requires an objective assessment of the state of affairs between the parties, as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [25] (Gaudron, McHugh, Hayne and Callinan JJ) (Ermogenous); citing Masters v Cameron (1954) 91 CLR 353 at 362 (Dixon CJ, McTiernan and Kitto JJ); Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548–9 (Gleeson CJ, with whom Hope and Mahoney JJA agreed) (ABC v Commonwealth Games). That is, as a matter of general principle, the intention to create contractual relations must be a mutual intention manifested by how the parties’ words and conduct would be reasonably understood by the other. It is important to note, however, that in the joint judgment in Ermogenous at [25], their Honours said that “the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules”. There are at least three sets of exceptional circumstances in which subjective intention is relevant.
The first exception is where one of the parties is joking or saying something that was not intended to be taken at face value, as recognised by Gleeson CJ in ABC v Commonwealth Games at 550F. Justice Mahoney explained in Air Great Lakes Pty Ltd v K.S. Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 330G–331D (Air Great Lakes) that if one party knows that the other is play-acting, then the law will not impose the relationship of contract, but absent that knowledge the play-actor cannot set up against a reasonable meaning of his words and conduct a contrary subjective intention. Accordingly, Mahoney JA concluded that it is relevant to know the actual subjective intention of the one party “where it is the intention of or known to the other” (at 331D), and that the parties’ dealings will not produce a contract “if there be no mutual intention, known between them” (at 331F).
The second exception is where questions of mistake, misrepresentation, duress or undue influence arise, as McLelland J observed in Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 at 9255 (cited with approval by Gleeson CJ in ABC v Commonwealth Games at 530F) (Film Bars). Those questions involve the relevant party’s subjective state of mind in terms of reliance and causation.
The third exception is what McLelland J in Film Bars at 9255 referred to as the special case of a unilateral contract, citing The Crown v Clarke (1927) 40 CLR 227 (Clarke). That case concerned the public offer of a reward for information leading to the arrest and conviction of those who murdered two police officers, and it was held that acceptance of the offer required the claimant to have performed the condition of the offer acting on the faith of or in reliance on the offer, that being a question of the claimant’s subjective state of mind. The exception arises because of the unusual circumstance that the offeror has dispensed with any requirement that acceptance must be communicated to the offeror, thereby depriving the law of one of the means by which it assesses the intention of the parties. As Starke J explained in Clarke (at 244), in those circumstances performance of the conditions of the offer is not in all cases conclusive, as the conditions may have been performed by someone who had never heard of the offer or who had never intended to accept it.
On a separate matter, at [150]–[164], Derrington J deals with events and admissions in private communications that post-date the formation of the alleged contract. My reasons in relation to that topic follow.
Ground 1A of the Amended Notice of Appeal challenges the correctness of the second sentence of the following statement by McLure JA (with whom Newnes JA agreed) in Tipperary Developments Pty Ltd v Western Australia[2009] WASCA 126; (2009) 38 WAR 488 at [120] (Tipperary):
Extrinsic evidence of the conduct of the parties after the making of the alleged contract is admissible for the purpose of determining whether the parties had an intention to create legal relations: Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540. However, as with the admission of extrinsic evidence prior to the making of the alleged contract, the evidence must be confined to conduct, including communications, known to both parties: Air Great Lakes Pty Ltd v K.S. Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309.
The reference to Air Great Lakes would appear to be to Mahoney JA’s judgment at 331D and F, to which I have referred above, noting that Air Great Lakes did not concern any issue of evidence of subsequent conduct. (I note also that, although McHugh JA in Air Great Lakes at 339C took into account the surrounding circumstances known to the parties, his Honour did not say that such knowledge is an essential requirement for relevance on the issue of intention to enter contractual relations as distinct from issues of construction.) In the present case, the primary judge at [94] and [131] followed McLure JA’s statement in Tipperary Developments, and excluded consideration of subsequent matters which were not known to both parties.

It is not in dispute that subsequent conduct is admissible on the question whether a contract was formed: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 at [25] (Heydon JA), and the cases cited there; ABC v Commonwealth Games at 547G–548B and 550C; J.D. Heydon, Heydon on Contract: The General Part (Lawbook Co, 2019), at [4.170]. The probative value of subsequent communications or conduct may be that they are inconsistent with the existence of a concluded contract: Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 78 (Griffith CJ). For example, the parties may have continued in negotiations, or may have expressed the common understanding that they are not legally bound unless and until a formal contract is executed: Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149 at [105] (Giles JA, with whom Hodgson and Campbell JJA agreed) (Sagacious Procurement). Subsequent communications or conduct may also be relied on to demonstrate that the parties had intended to form a concluded contract, although as Mr J.D. Heydon points out at [4.170], there may be grave difficulties with such evidence of subsequent conduct:
Whether there is a binding contract must be assessed as at the moment when it was allegedly made. It is necessary to be sure that the court is not converting an agreement which was not a contract at the time when it was made into a contract for no reason other than the parties having performed it. Of course there could be another reason: conduct by the parties indicating that their future dealings were to be contractual.
It is not in dispute that a court may take into account the dealings and communications between the parties after the formation of an alleged contract for the purpose of determining objectively whether they intended to form such a contract, as was held in Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21; (2015) 47 WAR 547 at [110] (Buss JA, with whom McLure P and Newnes JA agreed). Nor is it in dispute that subsequent evidence of internal communications or communications with third parties may be taken into account if they are known to both parties. A party’s reaction (or lack of reaction) to knowledge of the other’s internal communications or communications with third parties may throw light on whether they share the requisite mutual intention to enter into a binding contract. The issue in dispute is whether subsequent evidence must be confined to conduct and communications known to both parties, as McLure JA said in Tipperary Developments at [120]. With respect, in my view, the evidence is not so confined, consistently with the High Court’s insistence in Ermogenous at [25] that the circumstances are too varied to permit the formation of any prescriptive rules.
The clearest demonstration of that position is by reference to admissions, which by their nature arise after the date of the alleged formation of a contract. In analysing subsequent communications in Film Bars at 9256, McLelland J said that admissions by a party of the existence or non-existence of a contract, or of a fact relevant to that issue, are admissible as against that party, but their probative force will usually vary inversely with the strength of the available direct evidence of the matters in question. For my part, bearing in mind that the question whether the parties intended to create binding legal relations is one of fact, I do not regard admissions or other evidence by non-lawyers as to whether they had entered into a binding contract as inadmissible opinion evidence. An admission after the event by a party that a binding contract had been formed is admissible as an admission of fact that the party intended to enter a binding contract. To that extent, I respectfully disagree with Derrington J’s reasons at [162], [164(e)], [224] and [235]. The weight to be given to admissions of that kind, however, is a different matter, and will depend on the particular circumstances of the case.
In ABC v Commonwealth Games at 550G, Gleeson CJ added the qualification that where acts or statements not involving communications between the parties are claimed to constitute an admission, it will often be necessary to identify with some care the fact which is said to have been admitted, noting that apart from the exceptional cases where the subjective state of mind of one or other of the parties is relevant, what is in issue is normally their intention as expressed. Accordingly, caution must be exercised in relating the fact which is said to be admitted to the fact which is legally relevant. In that case, the ABC relied relevantly on (1) the payment of a commission by the respondent to its agent which was payable on execution of a contract, (2) a statement by the respondent to the BBC that the respondent had “successfully concluded an agreement” with the ABC, and (3) internal documents of the respondent recording that “agreement has been reached with the ABC” and that the ABC was “committed” (at 547D). In addition, the respondent relied on internal ABC communications reflecting uncertainty and confusion as to the status of dealings between the parties (at 547E). There was no suggestion that any of that material was known to both parties, or that such knowledge was required for the evidence to be relevant. Ultimately, Gleeson CJ did not regard the matters relied on by the ABC, in the context of the evidence as a whole, as evidencing an intention to make a concluded bargain (at 551B–C), but his Honour’s reasoning demonstrates that subsequent acts and statements by each party were taken into account despite them not having been known by the other party.
In Sagacious Procurement at [106], Giles JA (with whom Hodgson and Campbell JJA agreed) expressly stated that the basis of subsequent communications as admissions does not depend on communication between the parties, and that that basis gives scope for evidence of, for example, a party’s internal memoranda saying, or less directly conveying, that there is or is not a concluded contract. There is no suggestion in his Honour’s reasoning as to any requirement that such communications be known to both parties. His Honour said that admissions bearing upon contractual intention present difficulties, referring to Gleeson CJ’s reference to the need to identify with some care the fact which is said to be admitted. Giles JA said that what is said to be admitted may be a relatively straightforward fact (for example that A discussed with B the price of goods), but if a matter of mixed fact and law or the application of a legal standard is involved, admissibility may be more contentious. His Honour said further that a statement that there is or is not a concluded contract, for example, may if admissible carry significant weight or little weight depending on the circumstances, and the weight of any admission will depend on the source of knowledge of the person making the admission. I note that neither party in the appeal in that case relied on conduct other than communications between the parties (see [107] and [115]–[116]), but that does not detract from the inherent cogency of the reasoning. I can see no reason in principle why an admission which is made after the alleged formation of a contract relating to the existence or non-existence of a contract must be known to both parties in order to be relevant and admissible.
Accordingly, in my respectful view, the primary judge was in error in adopting and following the proposition stated by McLure JA in Tipperary Developments in the second sentence of [120] to the effect that extrinsic evidence of conduct or communications after the making of the alleged contract must be confined to matters known to both parties. However, in the present case, for the reasons given by Derrington J at [221]–[237], subject to the qualification expressed above as to opinion evidence, the evidence of subsequent conduct and communications which were not known to both parties makes no difference to the finding as to a lack of intention to enter binding contractual relations on 21 December 2016.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.
Associate:
Dated: 3 July 2025

Appeal from:	Cirrus Real Time Processing Systems Pty Limited v Hawker Pacific Pty Ltd [2024] FCA 763
File number:	NSD 1074 of 2024
Judgment of:	DERRINGTON, CHEESEMAN AND JACKMAN JJ
Date of judgment:	3 July 2025
Catchwords:	CONTRACTS – formation of contracts – intention to create legal relations – whether evidence of parties’ intending to be bound by terms – whether agreement as to sufficient terms CONTRACTS – formation of contracts – intention to be legally bound – underlying rationale for requirement to be legally bound – relevant principles – factors to be considered CONTRACTS – relevance of matters occurring after date of alleged contract – so called “post-contractual evidence” – relevance to contractual intention
Legislation:	Evidence Act 1995 (Cth)
Cases cited:	Abadeen Group Pty Ltd v Bluestone Property Services Pty Ltd [2009] NSWCA 386 Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Allen v Carbone (1975) 132 CLR 528 Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168 Anon (1478) YB 17 Edw IV Ashton v Pratt (2015) 88 NSWLR 281 Atco Controls Pty Ltd (in liq) v Newtronics Pty Ltd (recs and mgrs appt) (in liq) (2009) 25 VR 411 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Cirrus Real Time Processing Systems Pty Limited v Hawker Pacific Pty Ltd [2024] FCA 763 Coles Supermarkets Australia Pty Ltd v 461 Hampton Street Investments Pty Ltd [2024] VSC 306 Commonwealth Bank of Australia v TLI Management Pty Ltd [1990] VR 510 Edge Development Group Pty Ltd v Jack Road Investments Pty Ltd (as trustee for Jack Road Investments Unit Trust) [2019] VSCA 91 Edge Development Group Pty Ltd v Jack Road Investments Pty Ltd [2018] VSC 326 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 289 ALR 237 Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551 HDI Global Speciality SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296 Hillas & Co Ltd v Arcos Ltd [1932] All ER Rep 494 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 In re Bed Bath & Beyond Corp. Securities Litigation (D Colu, No 1:22-cv-02541, 27 September 2024) James Adam Pty Ltd v Fobeza Lty Ltd [2020] NSWCA 311 Kennedy v Lee (1817) 36 ER 170 Kleinwort Benson v Malaysia Mining Corporation Berhad [1989] 1 WLR 379 Krolczyk v Winner t/as J Winner Building Services [2022] NSWCA 196 Liquorland (Australia) Pty Ltd v GYG Holdings Pty Ltd (unreported, 28 October 1994, NSWCA) Masters v Cameron (1954) 91 CLR 353 Merritt v Merritt [1970] 1 WLR 1211 Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605 Proton Energy Group SA v Orlen Lietuva [2014] 1 Lloyd’s Rep 100 Quinlan v A and J Brady Pty Ltd [2007] FCA 1409 R v Lord Chancellor’s Department; Ex parte Nangle [1991] ICR 743 Re Access Strata Management Pty Ltd [2022] VSC 639 Re Anglican Development Fund Diocese of Bathurst (2015) 336 ALR 372 Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 South West Terminal Ltd v Achter Land & Cattle [2023] SKKB 116 Southeaster Maritime Ltd v Trafigura Maritime Logistics Pte (The MV Aquafreedom) [2024] EWHC 255 (Comm) Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2023] NSWCA 102 The Crown v Clarke (1927) 40 CLR 227 Thorby v Goldberg (1964) 112 CLR 597 Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488 Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 Uranium Equities Ltd v Fewster (2008) 36 WAR 97 Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd (2015) 47 WAR 547 Vroon BC v Foster’s Brewing Group Ltd [1994] 2 VR 32 Wakim v Wakim [2017] NSWSC 1283 WorldAudio v GB Radio [2003] NSWSC 855 Coote B, “The Essence of Contract: Part I” (1988) 1(2) Journal of Contract Law 91 Coote B, “The Essence of Contract: Part II” (1988) 1(3) Journal of Contract Law 183 Heydon J D, Heydon on Contract: The General Part (2019, Thomson Reuters) Restatement (Second) of the Law of Contracts (American Law Institute, 1981) Seddon NC and Bigwood RA, Cheshire & Fifoot Law of Contract (12^th Aust ed, 2023, LexisNexis) Swain W, The Law of Contract 1670 – 1870 (2015, Cambridge University Press) Tolhurst GJ and Peden E, Furmston and Tolhurst on Contract Formation: Law and Practice (3^rd ed, 2023, Oxford University Press) Williston S, A Treatise on the Law of Contracts (3^rd ed, rev Walter HE Jaeger, Vol 1, Baker, Voohris & Co., Inc., 1957)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	275
Date of hearing:	3 – 4 March 2025
Counsel for the Appellant:	Mr S White SC with Ms T Epstein and Ms M Aguinaldo
Solicitor for the Appellant:	Hazan Hollander
Counsel for the Respondents:	Mr J Giles SC with Mr S Puttick
Solicitor for the Respondents:	Johnson Winter Slattery

ORDER MADE BY:	DERRINGTON, CHEESEMAN AND JACKMAN JJ
DATE OF ORDER:	3 JULY 2025