Classic Deco Pty Ltd v Fine Touch Pty Ltd
[2020] ACTSC 209
•7 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Classic Deco Pty Ltd v Fine Touch Pty Ltd |
Citation: | [2020] ACTSC 209 |
Hearing Dates: | 13 – 14 July 2020 |
DecisionDate: | 7 August 2020 |
Before: | Mossop J |
Decision: | See [121] |
Catchwords: | BUILDING AND CONSTRUCTION – DEEDS – Deeds of release – dispute between two subcontractors – whether deeds voidable by reason of economic duress – whether there was any evidence of illegitimate pressure – there was not – deeds defeat plaintiff’s claim |
Legislation Cited: | Building and Construction Industry (Security of Payment) Act 2009 (ACT) Building and Construction Industry Security of Payment Act 1999 (NSW) |
Cases Cited: | Anozira Pty Ltd v Hunt [2002] ACTCA 10 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 |
Texts Cited: | Butterworth, Halsbury’s Laws of England, 3rd ed, vol 11 J D Heydon, Heydon on Contract (Lawbook, 2019) |
Parties: | Classic Deco Pty Ltd (Plaintiff) Fine Touch Pty Ltd (Defendant) |
Representation: | Counsel P Johannessen (Plaintiff) M Karam and S Gaussen (Defendant) |
| Solicitors Johannessen Legal (Plaintiff) McInnes Wilson Lawyers (Defendant) | |
File Number: | SC 375 of 2018 |
MOSSOP J:
Introduction
The plaintiff is a company which engages in commercial painting projects. The plaintiff’s claim relates to four contracts that it entered into with the defendant. These related to four distinct building projects. The contracts were entered into between 24 June 2016 and 10 February 2017. The contracts relate to:
(a)a project at the Commonwealth Scientific and Industrial Research Organisation (the CSIRO Contract);
(b)a project at the National Archives Preservation Facility (the NAPF Contract);
(c)a project at the Palko and Nibu Apartments (the P&N Contract); and
(d)a project at the University of Canberra Hospital (the UC Contract).
The work on these projects was, to some extent, concurrent. In each case the defendant was a subcontractor to a head contractor on the project. In each case the plaintiff asserts that a deed poll signed as a condition of receiving a final payment from the defendant was entered into as a result of duress and, hence, was voidable. It seeks to have the deeds declared void and then to claim money which it says was outstanding under the relevant contracts.
The evidence led by the plaintiff was manifestly inadequate to establish its entitlement to relief.
Unless otherwise identified, dollar amounts in these reasons are inclusive of GST.
The plaintiff’s pleaded claims
In order to understand the nature of the plaintiff’s claims it is useful to set out in some detail what is alleged in the plaintiff’s Statement of Claim.
CSIRO Contract
The plaintiff alleges that the CSIRO Contract was entered into on 24 June 2016. It was for painting and related work on a CSIRO construction project. The plaintiff alleges that the scope of the work was defined by a Bill of Quantities provided by the defendant.
The contract price was $313,500. The plaintiff alleges that there was also a term that variations to the Bill of Quantities be paid at the rate of 80% of the rates that the defendant charged the head contractor, irrespective of whether or not the head contractor approved or paid for those variations. The plaintiff alleges that the obligation of the defendant was to pay the plaintiff every fortnight.
The plaintiff alleges that between July 2016 and 23 October 2017 the plaintiff issued 14 progress and variations tax invoices but that the defendant defaulted in paying all of those invoices “without exception”. The plaintiff alleges that this included tax invoice 336 of 3 February 2017 for $42,900, which the defendant defaulted for 170 days and tax invoice 353 of 23 October 2017 for $216,745, in relation to which the defendant defaulted for 208 days.
The plaintiff alleges that on 23 October 2017 it wrote to the defendant seeking immediate payment of the tax invoices, alleging that the total amount payable was $599,180 and that the plaintiff had only received $382,435. The plaintiff alleges that “the Defendant’s failure to observe the fortnightly contractual payment term in all the dealings between the parties has brought the Plaintiff into financial hardship”.
The plaintiff alleges that on 14 November 2017 the defendant presented the plaintiff with a document named “Subcontractor Agreement Deed of Release & Waiver” which the plaintiff describes as the “CSIRO Payment Receipt”. That description has buried within it a characterisation which is contentious. It is therefore unhelpful. Notwithstanding the description provided in the pleading, I will refer to the document as the “CSIRO Deed”. The CSIRO Deed is alleged to contain a number of unilateral declarations:
(a)the original contract value is $313,500;
(b)the agreed variations are $261,849.73;
(c)the total subcontract value is $575,349.73;
(d)the payments made to the plaintiff up to 9 November 2017 are $515,349.73;
(e)the financial payment due to the plaintiff is $60,000; and
(f)the plaintiff has no further claim for payment.
The plaintiff alleges that the defendant advised the plaintiff that if the CSIRO Deed was left unsigned the plaintiff would not receive any payment whatsoever.
The plaintiff then alleges that:
(a)The plaintiff signed the CSIRO Deed under duress only to be able to receive funds to ease off the pressures of bearing over six months of default in payment by the defendant.
(b)The plaintiff was not afforded any opportunity to check the accuracy of the calculations and was not offered any other source document to substantiate the calculations on the deed at that moment.
(c)In reliance on the accuracy of the defendant’s calculations as expressed in the CSIRO Deed, the plaintiff issued a tax invoice on 15 November 2017 in line with the deed.
The plaintiff alleges that between 15 November 2017 and 17 April 2018 “the Plaintiff discovered that the Defendant miscalculated its liability to the Plaintiff under the CSIRO Contract”. The plaintiff alleges that instead of the amounts shown on the CSIRO Deed the correct figures were as follows:
Amount in CSIRO Deed Plaintiff’s amount Original contract value $313,500 $313,500 Variations $261,849.73 $285,680 Total contract value $575,349.73 $599,180 Amount paid $515,349.73 $452,435 Amount due $60,000 $146,745
Given that $60,000 had been paid, the plaintiff’s calculations left an unpaid balance of $86,745. The plaintiff then alleges that on 17 April 2018 the plaintiff issued the defendant an amended tax invoice demanding the amount of $86,745.
The plaintiff claims the defendant is in breach of the terms of the CSIRO Contract and is liable to pay the amount of $86,745.
NAPF Contract
The plaintiff alleges that the NAPF Contract was entered into on 24 June 2016. The claim in relation to the NAPF Contract bore the same structure as that in relation to the CSIRO Contract. The painting and related works were to be carried out at the National Archives Preservation Facility. The contract price was $126,500. Variations were to be paid at 80% of the rates that the defendant charged the head contractor, irrespective of approval or payment by the head contractor. The defendant was required to pay every fortnight.
The plaintiff issued 15 tax invoices between 23 June 2016 and 23 March 2017. There are allegations that the tax invoices were paid late. The plaintiff alleges:
25. The Defendant, by withholding progress payments and not paying the tax invoices described above in paragraph 24, placed the Plaintiff in a position of significant financial hardship leading the Plaintiff to deplete all its reserves, savings and credit lines in order to pay its sub-contractors and remain afloat.
26.On 10 May 2017, the Plaintiff wrote to the Defendant and expressly notified him of the difficult and untenable position it is placed and sought immediate action and payment.
The plaintiff alleges that it wrote to the defendant alleging a total amount payable of $292,438, an amount paid of $207,271 and a balance of $85,167 owing.
The plaintiff then says that the defendant presented a document named “Subcontractor Agreement Deed of Release & Waiver” which the plaintiff describes as the “NAPF Payment Receipt”. Once again, I will refer to this as simply the “NAPF Deed”. The document is alleged to contain a number of unilateral declarations:
(a)the original contract value is $126,500;
(b)the agreed variations are $132,771.90;
(c)the final subcontract value is $259,271.90;
(d)the payments made up to 25 May 2017 are $207,271.90;
(e)the final payment due to the plaintiff is $52,000; and
(f)the plaintiff has no further claim for payment.
The plaintiff once again claims that the defendant said that if the document was not signed the plaintiff would receive no payment. It also claims that the plaintiff was not afforded an opportunity to check the accuracy of the calculations or offered any other source document to substantiate the calculations.
The plaintiff alleges that between 7 June 2017 and 17 April 2018, “the Plaintiff discovered the Defendant has understated the variation figures by $33,160.00 inclusive of GST”. As a consequence, on 17 April 2018 the plaintiff sent the defendant an invoice for that amount which had not been paid. The plaintiff claims that the defendant is in breach of the NAPF Contract and is liable to pay the balance of $33,160.
P&N Contract
The P&N Contract was entered into on 20 February 2017 and is alleged to relate to painting and related work during the construction of the Palko and Nibu apartment development in Braddon. The contract sum is $316,978 excluding GST. Any discrepancy and variations of the contract were to be paid at 75% of the rates charged to the head contractor, whether or not the head contractor agreed to the variations or paid for them. The plaintiff was to be paid every fortnight.
The plaintiff alleges that it issued seven tax invoices between 5 March 2017 and 14 July 2017 and that the defendant delayed in paying them or failed to pay them.
The plaintiff then alleges that in October 2017 the defendant represented to the plaintiff that the P&N project was to be a net loss for the defendant. There was an oral agreement between the parties. That agreement was:
(a)the contract amount for the P&N Contract was to be set aside;
(b)the defendant was to receive $550,000 from its head contractor, Bloc;
(c)the defendant was to pay $550,000 to the plaintiff; and
(d)the plaintiff would accept a loss of $39,126, being the shortfall between the initial contract and the payout amount, on the condition that $550,000 was paid promptly within the week to the plaintiff.
This is alleged to be an agreement made orally, on site at Braddon (the P&N Oral Agreement).
The plaintiff alleges that on 3 November 2017 the defendant sent the plaintiff a document entitled “Subcontractor Agreement Deed of Release & Waiver”. The plaintiff refers to this as the “P&N Payment Receipt”. I will refer to the document ultimately entered into as the “P&N Deed”. The proposed deed, provided 3 November 2017, is alleged to contain the following unilateral declarations:
(a)the final subcontract value is $454,576.93;
(b)the payments made to the plaintiff up to 25 October 2017 total $433,071.33;
(c)the final payment due to the plaintiff is $21,505.60; and
(d)the plaintiff has no further claim for payment.
The plaintiff alleges that the defendant advised by email that the payment would only be arranged after the document was signed and returned. The plaintiff also alleges that it was not afforded any opportunity to check the accuracy of the calculations and not offered any other source document to substantiate the calculations.
The plaintiff alleges that on 3 November 2017 it wrote to the defendant seeking clarification of the payout amount and making a demand for full payment of the $550,000 to be made by 4 November 2017.
The plaintiff alleges that on 6 November 2017 the defendant presented the plaintiff with another draft of the deed at the defendant’s office in Sydney. This contained the following declarations:
(a)the original contract value is $348,675.80;
(b)the agreed variations are $138,624.20;
(c)the final subcontract value is $487,300;
(d)the payments made to the plaintiff up to 25 October 2017 are $433,071.33;
(e)the final payment due to the plaintiff is $54,228.67; and
(f)the plaintiff has no further claim to payment.
The plaintiff alleges that the calculations were $62,700 short of the oral agreement between the parties and $101,826 less than the initial contract.
The plaintiff alleges that the defendant was in default of paying tax invoices for approximately four months and that:
49.By 6 November 2017, the Plaintiff had exhausted all its financial reserves, credit lines and savings and was under considerable financial pressure due to the cumulative impact of the Defendant’s withholding of payments for this and the other simultaneous projects referred to at paragraph 5.
50.By reason of the matters pleaded in paragraphs 47 to 49, the Plaintiff felt hard pressed into a corner and under duress, and realised that it was compelled to sign the [P&N Deed] in order to pay its sub-contractors and ease the pressure on its financial facilities.
The plaintiff alleges that the defendant was in breach of the terms of the P&N Contract and the P&N Oral Agreement. It alleges that the defendant is liable to pay the outstanding balance of $101,826 under the contract.
UC Contract
The plaintiff alleges that on about 10 February 2017 the defendant entered into the UC Contract with the plaintiff. It related to painting and related works at the University of Canberra Hospital. The contract sum was $715,000. Extra work was to be paid for at 75% of the rates charged to the head contractor, whether or not the head contractor accepts or pays for them. The defendant was to pay the plaintiff every fortnight.
The plaintiff alleges that it issued the defendant a series of tax invoices for progress payments, 23 variations, “touch up works” and “management fees”. The plaintiff alleges that the defendant was in default of payment for eight of the tax invoices issued, for periods of between 22 and 110 days.
The plaintiff then alleges that:
61.As a consequence of the Defendant failing to pay the Plaintiff progress payments and variation tax invoices for over 4 months, the Plaintiff was compelled to deplete all its savings, credit lines and reserve funds in order to pay its sub-contractors to continue the project.
The plaintiff alleges that on 27 October 2017 the plaintiff ran out of funds to service the borrowed funds as well as to pay its subcontractors and that its subcontractors walked off the site in protest. The plaintiff said that if the defendant did not pay it that day then the plaintiff would not be able to continue the work. The defendant transferred $20,000 to the plaintiff’s bank account on that day. The plaintiff alleges that this was less than the amount due in relation to two of the unpaid tax invoices (366 and 367), in relation to which a total of $159,610 had been owing.
The plaintiff alleges that on 9 November 2017 its subcontractors again walked off the site in protest, and once again the plaintiff notified the defendant that if overdue payments were not received the plaintiff would not be able to continue the work.
The plaintiff then says that on 14 November 2017 the defendant presented the plaintiff with a document entitled “Subcontractor Agreement Deed of Release & Waiver”. This is described in the pleading as the “UC Payment Receipt” but I will refer to it as the “UC Deed”. The UC Deed recorded:
(a)the original contract value is $715,000;
(b)the agreed variations are $477,561.59;
(c)the final subcontract value is $1,192,561.59;
(d)the payments made to the plaintiff up to 9 November 2017 are $1,072,561.59;
(e)the final payment due to the plaintiff is $120,000; and
(f)the plaintiff has no further claim for payment.
The plaintiff alleges that it was not afforded any opportunity to check the accuracy of the calculations and was not offered any other source document to substantiate the calculations on the document. It then alleges that:
73.Faced with the sub-contractors’ walk-out and overdue financial commitments, the Plaintiff had no other alternative but to comply and sign the document.
The defendant then paid $120,000 to the plaintiff and the plaintiff continued to work on the project to complete the contract “for the following several days”.
The plaintiff alleges that on 17 November 2017 the plaintiff’s subcontractors walked off the site for the third time as a result of not being paid.
The plaintiff then alleges that also on 14 November 2017 (the day on which the UC Deed was executed) the plaintiff and two of the defendant’s directors had a meeting at the Belconnen Labor Club in Canberra and:
77.During the meeting, the parties agreed (“the UC Oral Agreement”) that if the Defendant’s contracted value for the project increases to more than the initial price of $1,340,000.00 excluding GST from its Head Contractor, Multiplex, the additional amount less all costs of the Defendant and the Plaintiff will be shared equally between the parties.
The particulars allege that the agreement was oral and was “confirmed on site on 17 November 2017” (the UC Oral Agreement). The plaintiff alleges that the project value referred to in the oral agreement was never disclosed to the plaintiff.
The plaintiff alleges that about two days after signing the UC Deed “the Plaintiff discovered that the Defendant had made errors in calculating the payment due to the Plaintiff and consequently, understated its liability to the Plaintiff under the UC Contract by $70,500.00”. The alleged differences between the position of the defendant and the position claimed by the plaintiff were then pleaded by the plaintiff and may be summarised in the following manner:
Defendant’s position Plaintiff’s position Total contract price $715,000 $979,000 Quantum of variations $477,561.59 $495,000 Total contract value $1,192,561.59 $1,474,000 Total payments to plaintiff $1,072,561 $1,093,000 Balance to be divided between the parties under UC Oral Agreement $247,000 $381,000 Amount to be paid to each party under UC Oral Agreement $123,500 $190,500
The plaintiff then alleges that because $120,000 was paid on 14 November 2017, a shortfall of $70,500 remains unpaid.
The plaintiff alleges that on 16 November 2017 the defendant telephoned the plaintiff and threatened to stop the $120,000 cheque if the plaintiff continued to pursue its alleged shortfall under the UC Contract.
On 17 November 2017 the plaintiff is alleged to have written to the defendant detailing the correct calculation of the amount payable under the UC Oral Agreement.
The plaintiff then alleges that it sought advice from a delegate of “the Union” and a joint meeting was arranged between the plaintiff, the defendant and Mr Munro, a union delegate. It is then alleged that the defendant undertook to return to Canberra on 21 November 2017 to finalise the outstanding payments but did not return as promised. The plaintiff alleges that on 29 November 2017 the plaintiff wrote to the defendant advising that it would commence legal action if the unpaid claim was not made by the end of that day.
There are then pleadings under the heading “Bogus Threats of Defamation”. In closing submissions the plaintiff did not press this claim.
The plaintiff then alleges that the defendant breached the terms of the UC Contract and the UC Oral Agreement and is liable to pay the plaintiff $70,500. There is also a claim which refers to further amounts outstanding but the cross-reference within the pleading does not make sense.
Relief claimed
It is useful to set out verbatim the final claim for relief in the Statement of Claim:
92. By reason of the matters pleaded in paragraphs 1 to 91, the Plaintiff claims:
a. A declaration that the CSIRO Payment Receipt was signed by the Plaintiff under duress of the financial constraint exercised by the Defendant and therefore it is invalid;
b. A declaration that the NAPF Payment Receipt was signed by the Plaintiff under duress of the financial constraint exercised by the Defendant and therefore it is invalid;
c. A declaration that the P&N Payment Receipt was signed by the Plaintiff under duress of the financial constraint exercised by the Defendant and therefore it is invalid;
d. A declaration that the UC Payment Receipt signed by the Plaintiff under duress of the financial constraint exercised by the Defendant and therefore it is invalid;
e. An award in the sum of $292,231.00 for the short-payments owing by the Defendant, by virtue of the miscalculations of the Payment Receipts;
f. Interest under section 13(2)(a) of the Building and Construction Industry (Security of Payments) Act 2009 (ACT);
g. Alternatively, interest under schedule 2.2 of the Court Procedure Rules at the applicable rate from 1 January 2018;
h. [not pressed]
i. [not pressed]
j. A declaration that the Defendant is obligated to account to the Plaintiff for the total value of the project, in accordance with the UC Oral Contact [sic], and thereby is liable for any further dues to the Plaintiff;
k. Costs on an indemnity basis;
l. Any other orders the Court sees fit.
The amount of $292,231 referred to in paragraph (e) is the sum of the various amounts alleged to be unpaid referred to at [15], [21], [32] and [50] above.
Defence
The defence filed by the defendant admits the existence of the four contracts but disputes their terms. In particular, it denies that it was a term of the contracts that variations were to be paid irrespective of whether or not the head contractor agreed with or paid for the variations. It denies that it was a term of the contracts that the plaintiff was to be paid fortnightly. It alleges certain implied terms, namely:
(a)the plaintiff would perform the work in a proper and workmanlike manner;
(b)the plaintiff would complete the work within a reasonable time;
(c)any variations submitted by the plaintiff required prior approval of the defendant in a manner consistent with usual commercial practice;
(d)payments were due to the contractor only after assessment of the plaintiff’s invoices or payment claims;
(e)the plaintiff would not be paid for work which had not been carried out;
(f)the plaintiff was not entitled to submit invoices for variations where the work which was the subject of the variation formed part of the existing scope of works; and
(g)the contract included the documents provided to the plaintiff, being documents supplied by the relevant head contractor.
It admits payments as set out in the respective deeds and denies any further liability to the plaintiff for the works performed on the relevant projects.
In relation to the claims of duress, it denies that any of the deeds were entered into under duress. It denies any miscalculations in the deeds. It denies the plaintiff’s claim that any additional amounts are owed to the plaintiff. It denies that the plaintiff is entitled to relief.
Evidence generally
The evidence led by the plaintiff was completely inadequate to establish the causes of action pleaded. For example:
(a)basic documents forming part of, or informing the content of, each contract were not tendered;
(b)invoices forming the basis of the claims for payment under each original contract or for variations of that contract were not tendered, even though they were specifically referred to in the pleadings;
(c)no evidence was led to support the validity of the claimed variations of the contract except in such generalised terms that the evidence was not admitted and there was therefore:
(i)limited or no evidence as to the nature of the work the subject of the variations; and
(ii)no evidence as to the dealings between the parties or between either of the parties and the head contractor that might shed light on whether or not amounts claimed in variations were in fact payable.
Rather, as the pleadings suggest, the case was run by the plaintiff on the basis that if the plaintiff succeeded in having the relevant deeds declared to be void, its claims would necessarily, and without more, be made out.
However, even in relation to what would, on this view, be the plaintiff’s fundamental contention, namely, the voidability of the deeds, the evidence was very limited. There was no attempt to provide a firm factual foundation for the assertions of financial pressure alleged to be caused by the defendant. As will become apparent, there was little or no relevant evidence directed to the circumstances surrounding two of the four deeds.
The deeds
The plaintiff’s pleaded claim and the defence proceeded on the basis that the execution of a deed poll by the plaintiff would be effective to bar any further claim by the plaintiff in relation to the subject matter of the contract. That was consistent with the way in which the case was conducted at the hearing. In those circumstances, it is not necessary to analyse precisely how the bar would arise. Therefore, in order to succeed, the plaintiff needed to establish that the deeds were voidable by reason of duress.
The structure of the “Subcontractor Agreement Deed of Release & Waiver” was relevantly similar in each case. The document identified the project, the contractor, the subcontractor and the date of the agreement. It then contained a series of statements about the value of the contract, the value of variations made, the total subcontract value, the payments made and the amount owing. It then contained terms, which are set out in the example below, which were clearly intended to finalise the financial relations between the parties.
The most significant parts of the UC Deed are set out below. Those provisions following the numbered list were common to all of the deeds except that the amount to be paid (set out in the final paragraph) was varied from deed to deed.
Inc GST 1. Original Contract Value $715,000.00 2. Agreed Variations (and other claims) $477,561.59 3. Final Subcontract Value $1,192,561.59 4. Payments Made To Date (up to 09.11.17) $1,072,561.59 5. Final Payment Due $120,000.00
I/We herewith agree that the agreed value of work carried out &/or supply of materials by Me/Us on the above project has been completed.
I/We hereby declare that all entitlements and wages due to workmen employed by us in connection with the agreement have been paid and there are no wages due or owing to any such workmen.
I/We hereby declare that subcontractors and suppliers have been paid all monies due and payable to them for the performance and supply of materials.
Any entitlement not claimed prior to the date of this deed is hereby waived and not recoverable. I/We have no further claim for payment in respect of the agreement, (including any contra charges deducted from progress payments to date) and hereby release Fine Touch Pty Ltd and its employees from all claims and suits of whatever nature arising out of or in consequence of the above project/supply/trade works.
This deed does not relieve the Subcontractor of any of its obligations included in the Agreement, nor does it restrict any of the rights of Fine Touch Pty Ltd.
I/We agree that the Final Payment Due is $120,000.00 including GST and that this is in accordance with the terms of the Agreement (or as otherwise agreed between the Parties) and is the final amount to which the Subcontractor is entitled.
EXECUTED AS A DEED
FOR AND ON BEHALF OF:
Company: Classic Deco Pty Ltd
[Signature and name of director]
[Date]
[Signature and name of witness]
[Date]
As will be apparent, the deed was a deed poll. (As to the derivation of the expression “deed poll” see Butterworth, Halsbury’s Laws of England, 3rd ed, vol 11 at 339.) It was executed by Mr Edvard Farhad as the director of the plaintiff company. It was witnessed by Mr Philip Makrys, the contracts manager of the defendant company.
Each of the claims made by the plaintiff fall within the scope of the clause releasing the defendant in the relevant deed. That is because each claim is a claim “arising out of or in consequence of the above project/supply/trade works”. No submission to the contrary was made.
If the deeds in question are not set aside then the plaintiff’s most significant claims must fail. It is therefore appropriate to consider whether or not the plaintiff’s contentions that each of the deeds is voidable for duress is made out.
The test for economic duress
The principles to be applied in relation to a claim of economic duress were not in dispute.
Economic duress is a sub-category of duress. This category of duress is explained in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 (Crescendo) at 45-46. The decision in Crescendo has been applied by the ACT Court of Appeal in Anozira Pty Ltd v Hunt [2002] ACTCA 10 and Davey v Herbst [2012] ACTCA 31.
The reasons of McHugh JA in Crescendo (with whom Samuels and Mahoney JJA agreed) identify (at 45-46) the following propositions:
(a)The rationale of the doctrine of economic duress is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate.
(b)In such circumstances the consent is treated as revocable unless accepted as valid either expressly or by implication after the illegitimate pressure has ceased to operate on the person’s mind.
(c)It is necessary to ask whether any pressure applied induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate.
(d)Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct, but the categories are not closed.
(e)Even overwhelming pressure not amounting to unconscionable or unlawful conduct will not necessarily constitute economic duress.
(f)It is not necessary that the illegitimate pressure be the sole reason for the victim entering into the contract. It is sufficient that the illegitimate pressure was one of the reasons for the person to enter that agreement.
(g)Once the evidence establishes that the pressure exerted on the victim was illegitimate, the onus lies on the person applying the pressure to show that it made no contribution to the victim entering into the agreement.
The distinction between legitimate and illegitimate pressure has been described as “beg[ging] the question which needs to be answered in characterising particular conduct as impermissible economic duress (on the one hand) or the permissible (even necessary) operation of the market economy (on the other)”: Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 106. Notwithstanding that courts’ attempts to distinguish between pressure which is legitimate and pressure which is illegitimate has “at almost every stage generated murk”: J D Heydon, Heydon on Contract (Lawbook, 2019) at [16.260], the articulation of the test by McHugh JA in Crescendo remains the accepted test.
Doggett v Commonwealth Bank of Australia [2015] VSCA 351; 47 VR 302 provides an example of a claim of economic duress in the context of the signing of a compromise agreement. In that case, borrowers from a bank had claimed that the bank had failed to properly assess the application for a loan and made a loan to them which was unaffordable. At that time, the bank agreed to refund certain charges and to extend financial facilities on the basis that the borrowers would take no further action in relation to their claims and that it would be in full and final satisfaction of any such claims. This was found, as a matter of construction, to extend to the claim of a breach of clause 25.1 of the Code of Banking Practice which was implied into the guarantors’ contracts with the bank.
The Victorian Court of Appeal upheld the trial judge’s decision that the agreement constituted by the acceptance of the offer made by the bank was not vitiated by economic duress. On the issue of duress, the judgment of Whelan JA was agreed to by McLeish JA and Garde AJA. At [79]-[82] Whelan JA reasoned as follows:
(a)The guarantors were under considerable commercial pressure.
(b)One of the relevant guarantors was aware of the limited choices that the guarantors had to make. He knew that if he agreed to the proposal then the guarantors would be giving up their rights to sue and this made him angry.
(c)The guarantors had to decide whether to sue the bank on the claims they had made with the consequence that the bank would take steps to execute its securities or take the breathing space that was offered in the hope that asset realisations would solve their problems.
(d)The bank did not threaten to take any illegal course of action. It indicated that it would defend any proceedings that the guarantors might institute and possibly proceed with the enforcement of its security. Whelan JA said “I do not consider that the Bank procured the appellants’ agreement by illegitimate means or that its conduct was unconscionable.”
(e)He rejected the contention that the bank’s conduct could be characterised as illegitimate because it had subsequently been demonstrated that a claim relating to the breach of clause 25.1 would otherwise have succeeded, saying:
82. The Bank’s conduct cannot become illegitimate merely because it can subsequently be demonstrated that a claim under cl 25.1 would otherwise have succeeded. The essence of all settlements is the resolution of uncertainty. Meritorious claims and unmeritorious claims are compromised. The merits of a compromised claim might be relevant to a duress argument but it cannot be determinative of the issue.
NAPF and P&N Deeds
It is convenient to first deal with the claim by the plaintiff for declarations that the NAPF Deed and the P&N Deed were “signed by the Plaintiff under duress of the financial constraint exercised by the Defendant and [are] therefore … invalid”.
NAPF Deed
In relation to the NAPF Deed, the plaintiff’s Statement of Claim does not expressly assert duress. Rather, it simply asserts that if it was not signed no payment would be received and that the plaintiff was not afforded an opportunity to check the accuracy of the calculations. However, it is clear that relief based upon duress is claimed.
The NAPF Deed was executed on 7 June 2017. Mr Farhad’s first affidavit made no reference to the circumstances surrounding the execution of the NAPF Deed or, indeed, any reference to the execution of that deed at all. The affidavit evidence of Mr Makrys specifically dealt with the NAPF Contract and the execution of the NAPF Deed. The affidavit of Mr Farhad in reply did not say anything in reply to those paragraphs of Mr Makrys’ affidavit which addressed the NAPF Contract or the NAPF Deed, leaving those paragraphs uncontradicted. Similarly, Mr Farhad gave no evidence in cross-examination in relation to the NAPF Contract or the NAPF Deed. The evidence of Mr Makrys in cross-examination was consistent with his affidavit evidence.
Therefore, the evidence about the circumstances in which the NAPF Deed was signed is that in Mr Makrys’ affidavit. His evidence was that included amongst the invoices rendered by the plaintiff were claims for work that either:
(a)had not been performed at the date of the invoice;
(b)were not performed to a satisfactory standard;
(c)where unapproved variations; or
(d)were listed as variations when, in fact, they fell under the Scope of Works for the NAPF project.
He said that the head contractor, Bloc, refused to approve payment of “substantial parts” of the invoices submitted by the plaintiff. This evidence was at a very high level of generality but that is understandable having regard to the failure of the plaintiff’s evidence to address the issue at all. A detailed breakdown of the payments made in response to the invoices under the contract and for variations was included in his affidavit. The total payments made were $207,271.90. (This is consistent with what appears in the NAPF Deed.)
He said that he had several conversations with Mr Farhad where Mr Farhad asserted that his invoices had not been paid and Mr Makrys said that the variations had not been approved by the head contractor, Bloc.
On 17 May 2017 Bloc still had not approved a number of variations and Mr Makrys agreed to pay for the time of the plaintiff’s employees in documenting certain work done for the purposes of assisting with the defendant’s final claim from the head contractor.
On 9 May 2017 Mr Makrys sent an email to the plaintiff advising that the defendant’s assessment of the amount payable was $39,629 plus GST, namely, $43,591.90. That email concludes “Thank you again for being extremely patient with this project as I know this one was a very difficult job.”
Mr Makrys said that between 9 May 2017 and 7 June 2017 he had discussions with Mr Farhad in relation to the amount owing by the defendant under the NAPF Contract. He said that he agreed with Mr Farhad that $52,000 was a fair and reasonable amount for the defendant to pay for the balance of the plaintiff’s invoices for that project. Plainly enough, that was an increase on the amount said to be payable in the email of 9 May 2017.
On 7 June 2017 Mr Makrys met with Mr Farhad and his wife at the defendant’s office in Sydney. Mr Nick Bouras of the defendant was also present. Mr Makrys presented Mr Farhad with the NAPF Deed which Mr Makrys had drafted. Mr Farhad signed the document and Mr Makrys provided him with a cheque for $52,000 in accordance with the deed. Mr Makrys’ unchallenged evidence was that the meeting was amicable and it appeared to him that the plaintiff and the defendant had a good working relationship.
The most that can be said in relation to the NAPF Contract was that there was some level of dispute in relation to some of the claims for variations made by the plaintiff. Contrary to the plaintiff’s pleaded case, the evidence does not establish:
(a)that the defendant said that if the document was not signed then no payment would be received;
(b)that the plaintiff was denied an opportunity to check the calculations; or
(c)that the plaintiff was denied the opportunity to receive any source document that might have been necessary in the circumstances.
The evidence does not establish a contractual entitlement on the plaintiff’s part to the additional $33,160 claimed.
There is simply no evidence that would support the plaintiff’s claim for a declaration that the NAPF Deed was obtained by duress because there is no evidence that would support the proposition that the defendant exerted illegitimate pressure upon the plaintiff to execute the NAPF Deed.
P&N Deed
The P&N Deed is expressly asserted by the plaintiff to have been signed under duress. However, the evidence led by the plaintiff was insufficient to support that allegation. Mr Farhad’s first affidavit refers to negotiations being conducted on 8 November 2017 but makes no specific reference to the P&N Contract or P&N Deed in that context. The evidence of Mr Makrys specifically addresses the project and its settlement by way of the P&N Deed. Mr Farhad’s affidavit in reply does not contest any aspect of Mr Makrys’ affidavit evidence. Once again, the evidence of Mr Makrys about the P&N Contract and the P&N Deed was largely uncontradicted.
Mr Makrys’ evidence was that, unlike the other projects, the plaintiff did not provide a quote for the Palko and Nibu project. Rather, the basis of the contract was an email that he sent to the plaintiff identifying the contract amount and various conditions and including a six page statement from the head contractor about the scope of work. This Scope of Works document was required to be signed and returned to Mr Makrys. The evidence did not disclose whether this was done. His evidence was that the scope of works changed during the course of the project. It rose from $275,110 in February 2017 to $317,876.63 at some stage prior to 19 July 2017.
Mr Makrys identified that some of the claims in the invoices submitted by the plaintiff were not claimable for the same reasons as identified in relation to the NAPF Contract. He said that the head contractor, Bloc, refused to approve payment of “substantial parts” of those invoices. He said that the plaintiff failed to meet deadlines set by Bloc and that prior to engaging additional labour or purchasing materials on the plaintiff’s behalf, he had conversations with Mr Farhad in which Mr Farhad agreed that the defendant would arrange that labour and material and would adjust those expenses when the project was finalised.
His evidence was that the defendant paid $388,771.33 in relation to the invoices submitted by the plaintiff and that the defendant incurred $115,571.33 in relation to labour or materials to complete the required work. A schedule in relation to those “back charges” identifies it as involving 369.37 days of labour engaged between May and August 2017.
Mr Makrys said that between September and October 2017 he and Mr Farhad had numerous conversations in relation to the invoices submitted by the plaintiff that had not been approved in their totality by the head contractor and the adjustments to be made in favour of the defendant due to the labour engaged and materials purchased for the project. He could not recall the details of those conversations but did recall that a final variation list was provided by the plaintiff in late October or early November 2017. An email from Mr Farhad demonstrates that it was only after 11 October 2017 that he provided his final variation list. As at this date the email correspondence indicates that Mr Farhad is asserting anxiety about being paid, saying:
As I mentioned to you today I really need to get paid for Palko-Nibu and CSIRO job by latest end of next week!
Otherwise I am in big trouble I have got around $200,000 bills, wages, Taxes, Dulux, Super etc sitting around waiting to be paid which are well overdue and some to be paid by latest end of this month!!
No attempt was made by the plaintiff to prove the actual financial position of the plaintiff or Mr Farhad at any relevant time.
Mr Makrys denied making any representation that the defendant would be receiving $550,000 from Bloc (as the plaintiff had alleged in its Statement of Claim – see [24] above). On 3 November 2017 he sent the plaintiff a proposed “Subcontractor Agreement Deed of Release & Waiver” in relation to the P&N Contract that suggested a total sum payable of $454,576.93. It also provided a screenshot of the deed of release between Bloc and the defendant so that the plaintiff was aware of the payments made to the defendant.
This produced a response from the Mr Farhad later that day in which he asserted that he had been told that Bloc had approved $550,000 and that the defendant would pay that amount to him in full. He said that his final figure to settle the account was $550,000. He recorded that he was “getting very frustrated and angry”.
A revised version of the proposed deed was sent to the plaintiff on 6 November 2017. It was this document that was ultimately signed by the plaintiff and became the P&N Deed. It recorded the final subcontract value as being $487,300, an increase on the earlier figure. The document was signed by Mr Farhad on 8 November 2017. In his oral evidence Mr Farhad described the negotiations at the meeting on 8 November as “In friendly terms of harsh negotiations” and “One way negotiations”. When the document was signed Mr Makrys handed him the check for $54,228.67, which was recorded on the deed as the amount being owed to the plaintiff.
The plaintiff has not established:
(a)that it was owed all the amounts that it claimed;
(b)that it had exhausted all its reserves as referred to in the pleadings set out at [31] above;
(c)that there was any oral agreement (ie the P&N Oral Agreement) supplemental to, or in substitution of, the P&N Contract or the terms of the P&N Deed; or
(d)that the plaintiff was denied the opportunity to check the accuracy of the calculations in the P&N Deed or denied any source document that might have been necessary in the circumstances.
There is no basis for the contention that the P&N Deed was executed under duress. Rather, the evidence that there is indicates an unexceptional course of negotiations arising out of a poorly documented contract for construction-related work and a settlement which reflected an agreed compromise of legal entitlements.
CSIRO and UC Deeds
The claims relating to the CSIRO Deed and the UC Deed may be dealt with together. Both deeds were executed on 14 November 2017. The evidence of Mr Farhad and Mr William Browne, his site manager and supervisor, did address the circumstances that existed at the time of the execution of those deeds. Further, Mr Farhad’s evidence in reply did take issue with some of Mr Makrys’ evidence about what occurred.
UC Deed
In his evidence in chief, Mr Farhad referred to the CSIRO Deed and UC Deed and said:
13. I believed the “Deeds” to be an accurate reflection of the amounts due to the Plaintiff by the Defendant and had no reason to believe there would be any errors as to the numbers contained therein.
…
15. I felt compelled to sign the “Deeds” so that I could get paid and in turn I could pay the workers to complete the works, as I was being told by the Defendant that I needed to sign the documents without delay.
During the course of his oral evidence, what he said about the circumstances in which he executed the deeds went further than and was different to his affidavit evidence. He said:
I was forced to sign it, and Mr Nick [Bouros] said, ‘If you don’t sign this, you’re not going to get paid anything else.’
…
Mr Nick, in that club told me, ‘If you do not sign this, you’re not gunna get any money.’
…
[In relation to the UC Deed] They put me in a corner and say, ‘If you sign this, you’re getting 120,000, 60, no more. If you don’t sign it, I’m going to Sydney, I’m not going to come back.’ … I was under so much pressure, I had to sign it.
Mr Makrys’ evidence was considerably more detailed. In relation to the UC project, his evidence demonstrates that there were matters that gave rise to disputes between the parties as to the amount which the plaintiff was entitled to be paid. In particular, he refers to the refusal by the head contractor, Multiplex, to approve payment for matters said by the plaintiff to constitute variations and included in the invoices sent by the plaintiff to the defendant. This was one source of dispute. Another was the engagement by the defendant of additional labour and the purchasing of materials required to complete works. His evidence was that Mr Farhad agreed that such labour should be engaged and those costs would be adjusted for in any final amount due to the plaintiff. This was contested in a minor way by Mr Farhad who said that the defendant had not set any deadlines that he had missed. Mr Makrys said that the defendant incurred expenses of $708,423.12 of this nature. The contention was supported by way of a Payment Schedule in response to a payment claim (which was not in evidence) which is identified as having been made by the plaintiff under the Building and Construction Industry Security of Payment Act 1999 (NSW) and dated 25 October 2017 (whether there was in fact a statutory payment claim made and whether it was made under the New South Wales or ACT legislation is not a matter which needs to be resolved). That Payment Schedule addresses each of the variations alleged by the plaintiff and identifies the back charges alleged by the defendant to be claimable from the plaintiff totalling $708,423.12 exclusive of GST ($779,265.43 inclusive of GST). The most significant item in those back charges is for 1595 days of labour costing $537,098.75 exclusive of GST ($590,808.62 inclusive of GST).
It is clear that, at this stage, there were detailed negotiations between the parties about the merits of their contentions in relation to the claims for variations and the extent of back charges permissible. The evidence discloses that a Payment Schedule was initially provided on 3 November 2017, and that Mr Farhad responded in detail to the position taken in that Payment Schedule later that day. It is notable that Mr Farhad appeared to accept, in principle, that substantial back charges were able to be taken into account, although on his figures that quantum was $644,944. Upon his calculations Mr Farhad asserted that the defendant was liable to pay to the plaintiff “around $329,379”.
On 6 November 2017 a revised Payment Schedule making some adjustments was provided. This showed an amount owing by the plaintiff to the defendant of $99,575.69. That such an amount was owing was largely due to the set off of the very substantial back charges that were claimed by the defendant to be payable. However, in the correspondence on 3 November 2017 it appears that the position adopted by the defendant was to not require any amount to be repaid.
Mr Makrys agreed that on 27 October 2017 and 9 November 2017 at the UC worksite there was a stoppage of work by the plaintiff’s workers and that, on the first occasion, he arranged a transfer of $20,000 to the plaintiff to ensure that unpaid wages could be paid. On the second occasion he arranged for payments totalling $40,786 to be made directly by electronic funds transfer to the workers in question.
On 8 November 2017 there was the meeting in Sydney between representatives of the plaintiff and the defendant at which the P&N Deed was executed. There was also discussion at that meeting of the figures for the settlement of the CSIRO Contract and the UC Contract. (Mr Farhad disputed that there was discussion of the UC Contract because that project was not completed. I am satisfied that there was at least some discussion of that contract.) Those discussions on 8 November took place in light of the detailed communication and contention about the figures which is disclosed in the correspondence that took place between 3 and 6 November. A week later in Canberra there was another meeting at which the CSIRO Deed and UC Deed was signed.
As set out above, Mr Farhad asserted in his oral evidence that he was told by Mr Bouras that if he did not sign the two deeds then he would be paid nothing. This was a proposition which did not appear in his affidavit or affidavit in reply. It is a proposition which is inconsistent with the evidence of Mr Makrys who described the meeting on 14 November 2017 as being “pleasant and amicable”. It was not put to Mr Makrys in cross-examination. I do not accept Mr Farhad’s oral evidence that such a threat was made at that meeting.
I, however, accept that there is a contemporaneous record of a conversation on 16 November in which Mr Bouras threatened to stop the cheque that had been given to the plaintiff on 14 November 2017. That is what is asserted in an email from Mr Farhad to Mr Makrys and Mr Bouras on 17 November 2017. The circumstances in which that occurred and the reason that it might have been said are not made clear either by the email or the other evidence. However, in that email Mr Farhad asserted that the basis of the agreement that led to the UC Deed was that the parties would share equally the profit on the job, taking out the costs of labour and materials. He asserted that the $120,000 figure arrived at was wrongly based upon subtracting GST inclusive expenses from a GST exclusive income from the contract. He asserted that if GST inclusive figures were used for both income and expenses then the total amount payable to the plaintiff was $190,500. He therefore asserted that he had been short paid by $70,500.
What is significant for present purposes is that there is no pleaded claim made by the plaintiff based upon misrepresentation or unilateral mistake in relation to the figures adopted in the UC Deed. Further, so far as the claim of duress is concerned, there is no assertion in that contemporaneous email consistent with illegitimate pressure being applied in order to compel the plaintiff to execute the UC Deed.
The evidence establishes that towards the conclusion of the University of Canberra Hospital project the plaintiff did not pay its workers and that there were two occasions prior to the execution of the UC Deed that those workers ceased to work because of their concerns about the plaintiff’s failure to pay. The evidence was not sufficient to establish that any inability to pay on the part of the plaintiff was as a result of the defendant’s failure to pay invoices that had been submitted. The evidence was completely inadequate to establish what the financial position of the plaintiff or of Mr Farhad was in fact and why any inability to pay had arisen. In any event, the evidence is that the defendant did make payments to the plaintiff so as to permit it to pay wages, and made payments of wages directly to the plaintiff’s workers prior to the execution of the UC Deed.
The plaintiff has not established the extent of any delays in making payment in relation to any particular invoice issued by it. The invoices were not put into evidence. The only evidence of their contents is the Payment Schedule provided by the defendant on 6 November 2017. That indicates a dispute about a number of the variations claimed. In relation to a number of variations there was clearly a dispute about the scope of the contract.
There is no evidence that the defendant knew that the position that it was adopting was contrary to its contractual obligations. On the contrary, the evidence of Mr Makrys was that he considered that the Scope of Works defined the scope of the plaintiff’s contract.
On the evidence before the court it is not possible to determine whether each of the variations contended for by the plaintiff were in fact payable. That is because the invoices making the claim were not in evidence, the documents that made up the contract were not in evidence, there was no evidence to explain the relationship between each of the claimed variations and the Bill of Quantities and/or Scope of Works, and there was no evidence about the transactions between the plaintiff, the defendant and the head contractor in relation to the subject matter of the claimed variations.
I accept that, for reasons which have not been established, the plaintiff was under financial pressure which led to the failure to pay employees towards the end of the project the subject of the UC Contract. Mr Farhad had a choice which must have been very familiar to him as a businessman operating in the construction industry for in excess of 20 years. That was to either resolve by negotiation his claims with the defendant or take steps to resolve those claims by legal means. As it happens, those legal means included making use of the provisions of the Building and Construction Industry (Security of Payment Act) 2009 (ACT) which is designed to, and does, significantly reduce the financial pressure on subcontractors in relation to construction contracts.
In any event, nothing in the evidence supports the proposition that any pressure brought to bear upon the plaintiff in the lead up to the execution of the UC Deed was illegitimate in the sense explained in the authorities. Whether or not the position taken by the defendant in relation to each of the variations or the extent of the back charges applied would ultimately, if litigated, be determined to be correct, it has not been established that the defendant acted in knowing defiance of the legal entitlements of the plaintiff. There is nothing to indicate that the conduct should otherwise be characterised as illegitimate in the sense that is described in Crescendo. This is not a case in which any concerns about the uncertain scope of legitimate pressure in the articulation of the test for economic duress has any traction. Rather, it appears to be a case well within the outer boundaries of an ordinary commercial transaction in order to finalise a building contract where, on any view, there was significant uncertainties which the parties needed to resolve because of the basic level of contractual documentation and the high level of variations and back charges in proportion to the primary scope of the contract.
I am therefore not satisfied that the evidence establishes that the UC Deed was executed under duress.
The claim based upon the alleged UC Oral Agreement is dealt with below.
CSIRO Deed
In relation to the CSIRO Deed, the evidence discloses payments towards the contract price between July 2016 and February 2017, and payments towards variations between December 2016 and November 2017. The evidence of Mr Makrys established that there were issues between the parties about amounts claimed in invoices (arising from work not having been performed, not being at a satisfactory standard, being unapproved variations or already within the existing contractual scope of works). He said that the head contractor refused to approve payment for items claimed in the invoices, although the reason for that being of significance was not explained in relation to any particular claim. He gave evidence of an agreement that the defendant would arrange additional labour and materials to “keep the project moving” and adjust for those expenses when the project was finalised. Some issue was taken with this evidence in Mr Farhad’s affidavit in reply but that evidence was not so clear as to demonstrate that there were not genuine issues about the scope of the plaintiff’s entitlements at the time.
In contrast to the position that existed in relation to the UC Contract, there was no evidence of particular financial difficulties, such as existed in relation to the payment of staff at the UC site, in relation to the CSIRO Contract. Mr Farhad did not give evidence of any particular circumstances relating to the CSIRO Contract.
To the extent that the CSIRO Deed is alleged to have been executed under economic duress, the evidence does not establish circumstances going beyond that established in relation to the UC Contract. For the reasons given above, I cannot find that the CSIRO Deed was voidable as a result of economic duress.
In any event, I could not, on the evidence, find that in the absence of the CSIRO Deed an additional sum of $86,745 was owed to the plaintiff.
Claim for account in relation to UC Contract
There is also a claim seeking an account in relation to the UC Contract. This is alleged to have arisen by reason of the UC Oral Agreement that the profits on the project would be shared 50-50 between the plaintiff and the defendant.
I accept, in light of the relatively contemporaneous emails of Mr Farhad on 15 and 17 November 2017, that the concept of sharing the profits of the project on a 50-50 basis was discussed as part of the settlement negotiations either on 8 or 14 November 2017. I am not, however, satisfied that there was any agreement that, either in substitution for or in addition to the amount payable under the UC Deed, some other amount was payable in order to share the net profit of the project between plaintiff and defendant. Rather, I consider that the only concluded agreement between the parties was that which is recorded in the UC Deed. The UC Deed was itself sufficient to preclude any such additional agreement.
As pointed out above, if there was any mistake made by the plaintiff or any misrepresentation made by the defendant concerning the basis for the figures recorded in the UC Deed, then that mistake or misrepresentation is not the subject of a claim for relief made in these proceedings.
Orders
The orders of the Court are:
1. Judgment be entered in favour of the defendant.
2. The plaintiff is to pay the defendant’s costs.
3. Order 2 does not take effect for a period of seven days and if, within that period, either party notifies my associate by email (copied to the other party) that it wishes to be further heard in relation to costs, it does not take effect until further order.
| I certify that the preceding one hundred and twenty-one [121] numbered paragraphs are a true copy of the Judgment of his Honour Justice Mossop. Associate: Date: 7 August 2020 |