Collappor8 Pty Ltd v City of Liverpool Chamber of Commerce & Industry Incorporated

[2025] NSWDC 294

District Court

New South Wales

Medium Neutral Citation:

Collappor8 Pty Ltd v City of Liverpool Chamber of Commerce & Industry Incorporated [2025] NSWDC 294

Hearing dates:

19 – 20 March 2025

Date of orders:

07 August 2025

Decision date:

07 August 2025

Jurisdiction:

Civil

Before:

Cole DCJ

Decision:

(1) Judgment for the defendant.

(2) The Further Amended Statement of Claim is dismissed.

Catchwords:

CONTRACTS — Construction — Interpretation – contract with local Chamber of Commerce & Industry for the provision of accounting and management consulting services – scope of services – provisions regarding fees

Cases Cited:

Bell IXL Investments Pty Ltd v Life Therapeutics Ltd (2008) 68 ACSR 154

Realestate.com.au Pty Ltd v Hardingham and Others; RP Data Pty Ltd v Hardingham and Others (‘Realestate.com.au’) [2022] HCA 39

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165

Category:

Principal judgment

Parties:

Collappor8 Pty Ltd (Plaintiff)
City of Liverpool Chamber of Commerce & Industry Incorporated (Defendant)

Representation:

Counsel:
M D Swanson (Plaintiff)
M Bennett (Defendant)

Solicitors:
NexGen Legal (Plaintiff)
Marsdens Law Group (Defendant)

File Number(s):

2023/254722

Publication restriction:

Nil

JUDGMENT

1. By Amended Statement of Claim filed on 19 July 2024, Collappor8 Pty Ltd (‘C8’) sought damages, interest and costs against the City of Liverpool Chamber of Commerce & Industry Incorporated (‘the Chamber’).

2. C8 carries on the business of providing “management services”. The Chamber is a not-for-profit local Chamber of Commerce.

3. On 27 May 2022, C8 and the Chamber entered into a contract under which C8 was to provide specified services to the Chamber in exchange for payment (“the contract”). C8 alleges in the Statement of Claim that the contract was partly written and partly oral, but, in the course of the trial, submitted that there were, in fact, no terms agreed orally so that the written contract contains all of the terms. The Chamber agreed with this, in the course of the hearing.

4. C8 says that it has complied with all of its obligations under the contract and alleges that the Chamber has refused or neglected to pay C8 in accordance with the terms of the contract.

5. C8 alleges that the Chamber owes it, under the contract, a further $108,310.14 for work which has been the subject of various invoices, and a further sum of $55,500 (excluding GST) representing 50% of the grants obtained by the Chamber, which is the subject of invoice Inv-2269 issued by C8 to the Chamber. The total claim is $163,810.14.

6. The Chamber and C8 differ as to the basis upon which it was agreed that C8 would be paid.

7. The Chamber denies that C8 is entitled to the further payments sought.

8. It is common ground that the Chamber has paid C8 the sum of $69,795 under the contract.

9. At the trial, documentary evidence was tendered. Oral evidence was given in C8’s case by Ms Johnston, a director of C8, and Ms Ostermeyer, who is also a director of C8. Oral evidence was given in the Chamber’s case by Mr Karam, the President of the Chamber, and Ms Hume, a former director and accountant of the Chamber.

The terms of the contract

Sources of the terms of the contract

10. It is now agreed between the parties that the sole source of the terms of the contract is contained in the document executed on 7 June 2022, which provides for a commencement date of 27 May 2022 (see CB p 72 – 77). The contract provides that it is constituted by the “General Terms and Conditions” together with the Schedule.

Services to be performed by C8

11. The contract sets out the following list of services to be provided by C8 to the Council in clause 4 of the Schedule:

Services

Management Consultant Services

Accounting & Bookkeeping (including audit liaison, annual report and social impact report)

Strategy & Corporate Finance

Customers and Marketing (including Newsletter, Website Management)

Operations (including Grant writing)

People & Culture

Event Management

Management of member listings

The term of the contract

12. The commencement date of the contract was 27 May 2022, under clause 5 of the Schedule and clause 4 of the General Terms and Conditions. Clause 6 of the Schedule says that the term of the contract was:

ongoing (minimum 24 months)

Payments to be made to C8 by the Chamber

13. The contract provided as follows, in the Schedule, in relation to payments to C8:

10. Fee (excluding GST)

Accounting: $500 per month

Other as per condition as per section 12

11. Payment Terms

7 Days

Out-of-pockets are COD

12. Special Conditions

(if any)

We will require a $5,000 commitment fee, to be paid upfront, before we begin work.

$500 per month fee for Accounting begins 1^st July 2022 and excludes audit fees when required.

You must change your system to Zoho and appoint us as Accountants.

All board members must perform their respective duties to acquit grants and hold events, workshops, and develop new programs. If we are required to cover any additional service, we can claim up to 100% of the Grant.

We are permitted to apply for any grant we deem you eligible for without Board consultation (provided we operate within the strategic objectives of the Chamber which we will be allowed to be heard on within 60 days). Fees will be calculated and charged to the Chamber and we will fund marketing activities from approved grant funds.

We receive 50% of all Grants Approved in the name of the Chamber, but not necessarily from the proceeds of grants as sometimes, writing is not an eligible expense.

Any grant written survives our termination.

We will provide a quote on any major projects.

We receive complimentary Corporate Partnership (elevations from silver membership $199), and 5 complimentary silver memberships for our charities.

A member of Collappor8 or nominee to “Moderate” one event per year at your discretion.

We can run education workshops in your name (and split ticket fees 50/50 with the workshop provider), such as:

- FREE: Be connected for digital literacy for over 50’s by Good things Foundation Australia and funded by the Australian Federal Government

- Ticketed: Ask me what I need for emergency response for people with Autism currently funded by NAB

14. “COS” is defined in clause 2 of the Terms and Conditions as follows:

“Charter of Success” or COS means a written statement of work agreed by or on behalf of the Client.

“Client” is defined to mean the Chamber.

15. The contract provides, in clause 4 of the Terms and Conditions:

Term

4.1   This agreement begins on the Commencement Date and will continue until terminated (the “term”).

4.2   Unless the parties expressly agree otherwise in writing, each COS shall create a distinct contract under these Terms and Conditions.

4.3   This agreement will automatically renew at the end of each term for a further term of 1 year unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term.

16. The contract provides, relevantly, in clauses 9 and 10 of the Terms and Conditions:

9.   Fees Payable to the Consultant

9.1.   The Client shall pay the Fee in the manner specified in the Contract. Unless otherwise agreed in advance, and in writing, the Fee is the total consideration payable.

…

9.3.   Invoices are due by the Client 7 days after the invoice date, unless otherwise agreed in writing.

,,,

9.5.   Subscription Fees are payable each month upon invoice in advance in accordance with this agreement, or any subsequent Charter of Success. If terminated early, on a fixed term, the full term must be paid in whole due to front loading of work unless otherwise agreed in writing.

…

9.8.   The client shall pay the required fees under each COS in accordance with the payment terms.

The client shall pay a non-refundable sale transaction fee to the Consultant, which will be a percentage (%) of the transaction value, and outlined in any COS, but will still be subject to these terms and conditions.

9.9   If the Client does not pay any amount properly due to the Consultant under these Terms and Conditions, the Consultant may (a) charge the Client interest on the overdue amount at the rate of 8% per annum, which interest will accrue daily until the date of actual payment and be compounded at the end of each named calendar month. [sic]

9.10   Fees may be review annually from the date of this Agreement where the consultant will provide 30 days written notice. [sic]   

10.   GST

…

10.2.   The Consultant shall provide the Client with a proper Tax invoice in relation to the fee/charges.

Termination

17. In addition to clause 4.3 of the Terms and Conditions, set out at [15] above, the contract provided, in clauses 14, 15 and 16 of the Terms and Conditions:

14.   Termination for Convenience

Either Party may also terminate for convenience at any time by 14 days’ notice to the Consultant even in the absence of breach by the Consultant. In such event and in the absence of any evidence of breach by the Consultant, the Client will remunerate the Consultant for its Services performed to the date of that termination and also reimburse the Consultant for any costs reasonably incurred by it as at the termination date in anticipation of having to complete the Services under the Contract. The Client will not be liable to pay any other compensation.

15.   Termination

15.1.   On completion of the Services or on termination or frustration of the Contract, the Consultant shall promptly return all the Client’s documents and materials and other information provided to the Consultant by the Client.

15.2   Without prejudice to any other rights, remedies or liabilities, the Contract may be terminated by either party upon written notice if:

15.2.1.   the other party becomes incapable of continuing by reason of death, bankruptcy or insolvency (as defined by the Corporations Act); or

15.2.2.   The other party is in breach of this Contract and fails to remedy the breach within 7 days of notice requiring it to do so.

16.   Survival

The parties’ rights and obligations under this agreement will survive the termination of this agreement.

Interpretation of the Contract

18. Parties are bound by the terms of the contract they sign. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [47] (‘Toll’), the High Court said:

47. … Legal instruments of various kinds take their efficacy from signature or execution. Such instruments are often signed by people who have not read and understood all their terms, but who are nevertheless committed to those terms by the act of signature or execution. It is that commitment which enables third parties to assume the legal efficacy of the instrument. To undermine that assumption would cause serious mischief.

19. The law is clear that a contract is to be interpreted objectively and not by reference to the subjective intentions of the parties. In Realestate.com.au Pty Ltd v Hardingham and Others; RP Data Pty Ltd v Hardingham and Others (‘Realestate.com.au’) [2022] HCA 39, Gordon J said, at [43] – [44]:

43    The rights and liabilities of parties under a contract – whether oral, in writing, or partly oral and partly in writing – are determined objectively41 . The concern is "not with the real intentions of the parties, but with the outward manifestations of those intentions"42. As this Court said in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd:

"It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean."

And where the contract is commercial, it is necessary to ask what reasonable persons engaged in the respective businesses of the parties would have understood the words and conduct to mean.

44    As this Court held in Toll, a person who signs a contractual document conveys a representation to a reasonable reader of that document that the person has read and approved its terms or is willing to take the chance of being bound by its contents45. If the document on its face appears to be a complete contract, it will contain the whole of the contractual terms46. Extrinsic evidence cannot be adduced to subtract from, add to, vary or contradict those terms, except in limited circumstances47. And a term will be implied only if, among other things, it is necessary to make the contract work.

The Plaintiff’s claim under the contract

20. The contract was terminated by the Chamber under clause 14, effective on 30 March 2023. The contract was in operation for approximately 10 months.

21. In its Amended Statement of Claim, C8 claimed that it had rendered invoices “for its Services” to the Chamber in the sum of $178,105.14.

22. Thirty one individual invoices allegedly issued between May 2022 and April 2023 were referred to in the Statement of Claim. Fourteen of these have been paid by the Chamber, in the amount of $69,795. C8 claims that the Chamber is liable to pay the balance, which is $108,310.14.

23. The amount of a further invoice issued by C8 in the sum of $55,000 (excluding GST) is also claimed from the Chamber. This invoice is for “the balance of the 50% grant free [presumably fee] for each grant”. This has not been paid. The invoice was not sent directly to the Chamber but was sent to the Chamber’s solicitor.

24. The total claimed with respect to work for which an invoice has been raised is $163,310.14. C8 also claims interest and costs.

C8’s evidence

Ms Johnston

25. Ms Johnston provided an affidavit sworn on 12 March 2025 and gave oral evidence. Ms Johnston is a director of C8 and was one of the two founding members of C8, with Ms Ostermeyer. Ms Johnston holds a Bachelor of Economics.

26. Ms Johnston said, in her affidavit:

11.   The initial proposal valued C8’s services at $10,000 per month, reflecting the expertise required to overhaul the LCC’s operations, increase event revenue, and improve stakeholder engagement.

12.   The proposal was rejected due to the financial situation of the LCC.

27. In her affidavit, Ms Johnston gave evidence of her understanding of the objectives of the contract and the risks to C8 of the financial provisions of the contract.

28. In her affidavit, Ms Johnston says:

16.   Based on my experience with grant writing, any grant monies received were effectively to be used to generate sponsorship and membership fees, which is how the chamber would create its revenue.

17.   I understood that if the LCC [the Chamber] appropriately used the grant funds for its intended purpose, this would enable the LCC to generate revenue and become profitable by way of sponsorship and membership fees.

29. In oral evidence, Ms Johnston clarified that, C8 provided only “management consulting”, such as “strategy, project implementation, building capacity and helping them grow” and bookkeeping, and not the services of a professional accountant, such as tax advice.

30. Ms Johston was asked, in cross-examination, what it was that she thought that C8 was being paid for, under the contract, by reference to 50% of the amount of the successful grants. After considerable confusion, she said:

A.   The digital – digital project, bookkeeping, memberships for $500. I thought for nine events and three cornerstones we would do an EDM. We would do – sorry, an electronic mailout to the members or the mailout list, to alert them to our events. That would be done on software called Canva and emailed out through Zoho, which is the system that we were implementing.

We thought that we would create a newsletter. A newsletter that would go out also to the same mailing thing around your current issues – any member within the community or the business community – we thought that that would – that we would communicate with the members, so that they could put, you know, the new members or a corporate sponsorship that – that the newsletter would become, you know, a – a portal of communication between the members in the Chamber we thought that we would do the grant writing so that –

Q.   So, again, you’re talking about what you thought you would do. Is this what you thought you were being paid for when you were being paid as a matter of reality?

A.   We were only being paid $500. So for that we were being paid – we did the bookkeeping and the account members management. The other payment of services would be derived on a performance KPI, so we would only get it if we were approved for a grant. We gambled on ourselves to provide specific services with specific time commitments and results, and hoped we’d get a grant.

31. Ms Johnston was referred to the list of services set out in clause 4 of the Schedule to the contract (see [11] above). The following exchange took place:

Q.   Now you said a minute ago – the last answer was, we backed ourselves to provide services – certain services at certain times for the grant money.

A.   Yep.

Q.   It’s the case, isn’t it, that what’s listed at point 4, Services, that’s what you’re talking about. Those are the services you were providing in exchange for grant money?

A.   No. The services I just mentioned, so.

…

Q.   Can you point to anywhere in the agreement that goes from p 72 to 77, where everything that you spoke about a minute ago is set out?

A.   No, but I can’t –

Q.   That’s because, item 4, “Services” was what was being required of the plaintiff in exchange for a commission of 50% of the grant. Correct?

A.   No.

Q.   You agree, don’t you, that the services had to be provided for the term of the agreement?

A.    No.

32. In cross-examination, Ms Johnston said that it was her understanding that, regardless of the conditions subject to which a grant was awarded to the Chamber, C8 was entitled to be paid 50% of the total amount of the grant within seven days of the approval of the grant by the funder of the grant (transcript p 46-47). The following exchange took place:

Q.   Can I suggest to you that it is a commercial nonsense to suggest that the defendant was obliged to pay the plaintiff 50% of money that would be coming down the line at some time.

A.   No.

Q.   And I suggest it’s a commercial nonsense that the defendant would pay the plaintiff 50% of money when the entirety of that 100% grant has to be discharged for grant purposes.

A.   No.

Q.   It’s the case, isn’t it, that the plaintiff was performing the services over a two-year period, to be paid pro rata from the grant funds?

A.   No.

33. It was clear from Ms Johnston’s evidence that she understood that many of the grants awarded to the Chamber would be awarded on the condition that the funds provided under the grant would not be used for administration of the Chamber. For that reason, that part of clause 12 of the Schedule to the contract provided that C8’s payment of 50% of grant monies would not necessarily be paid “from the proceeds of the grant”.

34. Ms Johnston accepted, in cross-examination, that C8 was paid $69,795 by the Chamber under the contract.

35. In re-examination, Ms Johnston said (in summary) that she understood that the income of the Chamber came from annual membership fees, ticket sales and sponsorship money. She said that the Chamber had $60,000 in its bank account when C8 started working with it. She said (transcript p 54):

A. … Our goal was to increase the membership, and then we have a program that we call Membership Elevation. We show them value. They can sponsor events to help bring money in. Now, the idea behind grants – it’s not about grant money. Grant money is, like, a start-up capital. Start-up capital. So, if I get $10,000 I need to spend $10,000 and if I can raise $10,000 we call that a “one time ROI”. Money for money and that $10,000 goes into the account and it can pay us.

36. Ms Johnston said that the Chamber was not C8’s only client. She added:

A.   No, but coming out of COVID, your Honour, this was a deal to help rebuild us. I lost 80% of my clients.

37. Ms Johnston fundamentally misconceived the nature of the Chamber, overlooking the fact that it is a not-for-profit entity. She also fundamentally misconceived the purpose of the kind of grant funding likely to be awarded to the Chamber. Grant funding to a local Chamber of Commerce has no function as “start-up capital”. Its purpose is the purpose stated in the grant deed, which will be for the benefit of the local business community in the case of the Chamber.

38. Ms Johnston confused C8’s initial proposal to the Chamber, which pre-dated the negotiations which resulted in the contract (see [41], below), with the terms of the contract. The pre-contract proposal was rejected by the Chamber.

Ms Ostermeyer

39. Ms Ostermeyer provided two affidavits, one sworn on 2 September 2024 (‘first affidavit’) and the other sworn on 12 March 2025 (‘second affidavit’).

40. Ms Ostermeyer is a chartered accountant and a member of the Institute of Public Accountants. She has been a director of C8 since its incorporation on 1 July 2021. It was her evidence that, together with Ms Johnston, she is responsible for the day to day operations of C8.

41. Ms Ostermeyer provided, in exhibit LO-1 to her affidavit, the proposal C8 put to the Chamber on 24 May 2022 which was called #EST-000204. The proposal listed the work C8 proposed that it do for the Chamber, including “Zoho One Subscription (All Employees)”, “Zoho set-up”, “Zoho customisations”, “Accountant (charged by the hour)”, “Bookkeeping (charged by the hour)”, “Grant Writing (charged by the hour)”, “Event Management (per event)”, “Website Monthly Management – Standard”, “Canva Subscription (Up to 5 employees)”, “Zoom subscription (Basic)” and “Monthly Standard Newsletter”. The total quote, including GST, was $6,150.09. Some of the items quoted for were one-off tasks, others were tasks recurring monthly or at random intervals and annual subscriptions were included, so the precise meaning of the figure quoted is obscure.

42. The email from C8 which accompanied the proposal was also provided in LO-1 (at p 164 of the Court Book). The letter lists grants that, C8 suggested, the Chamber might apply for. The letter also said:

While we are aware that you are in need of funding to support the Chamber activities, our upfront payment of $5,000 (excl GST), attached, is still due. $2,000 of this payment will be prepayment for the above-mentioned grant applications, while the remaining $3,000 will go towards the purchase of Zoho One and customising it for your organisation.

43. In her affidavit, Ms Ostermeyer says that, subsequent to providing #EST–000204, she and Ms Johnston engaged in discussions with Mr Karam, the President of the Chamber, with respect to the scope of the services to be provided by C8. The contract was executed on 6 and 7 June 2022, with a commencement date of 27 May 2022. The terms of the contract do not reflect the proposed terms of #EST-000204. In cross-examination, Ms Ostermeyer said that she was aware that the Chamber had told Ms Johnston that it could not pay C8 $10,000 per month.

44. Ms Ostermeyer listed eight events on which, she said, C8 and the Chamber worked together which occurred in the period from 16 November 2022 to 6 March 2023.

45. On 21 December 2022, Ms Ostermeyer said Ms Johnston emailed a notice to the Chamber that C8’s hourly rates would be increasing from 1 February 2023. The parties now agree that there is no provision under the contract for a unilateral increase in hourly rates to be imposed.

46. In her first affidavit, Ms Ostermeyer provided information about work performed by C8 in relation to the event on 6 March 2023 for Women’s Week. The event was the subject of a grant. Ms Ostermeyer listed the following work performed by C8, which, she said, was “separate from applying for grants”:

36.   There was a significant amount of work performed by C8 for this event, including:

(a)   preparation of supplier and sponsorship agreements and liaising with the Chamber to ensure these were signed;

(b)   attending the event, running the slideshow and preparing the speakers and moderator;

(c)   coordinating the panel, including the speakers and moderator,

(d)   sending invitations to potential members;

(e)   preparation of talking points; and

(f)   running a promotional giveaway.

47. The Women’s Week event is the subject of the following invoices rendered to the Chamber by C8 and unpaid:

Invoice 1645 for $550 dated 1 March 2023

Invoice 1704 for $11,754.88 dated 20 April 2023

Invoice 2269 for $61,050 dated 26 June 2024

48. Invoice 1704 and Invoice 2269 were both rendered after the termination date of the contract, which was 28 March 2023. Invoice 2269 was rendered about 15 months after the end of the contract.

49. In her first affidavit, Ms Ostermeyer addressed the Small Business Month event on 16 November 2022. She said that C8 had applied for a grant from the NSW Small Business Commission and performed “marketing and social media services” in relation to the event.

50. Ms Ostermeyer said that C8 rendered two invoices in relation to the event:

Invoice 1476 for $2,750.00 dated 26 September 2022

Invoice 1709 for $2,750.00 dated 24 April 2023

51. Ms Ostermeyer said that the Chamber paid Invoice 1476. Invoice 1709 was for 50% of the grant received by the Chamber for the event and has not been paid. It was rendered about five months after the event and about a month after the effective date of termination of the contract.

52. Ms Ostermeyer said, in her first affidavit, that C8 applied for thirty-one grants on behalf of the Chamber. Six of the applications were successful in obtaining funding, C8 “terminated 14 grants” and C8 “submitted 4 grants and were awaiting an outcome regarding these grants” and C8 “withdrew 7” grant applications.

53. Ms Ostermeyer said, in her first affidavit, that “On or around November 2022, the Defendant requested the Plaintiff to perform services in relation to the Disaster Risk Reduction Fund”. The services “involved the Plaintiff consulting with the Defendant to develop Greater Sydney Build Business Continuity Plans for Greater Disaster Preparedness”.

54. Ms Ostermeyer said that to the date of her first affidavit, the total amount of outstanding invoices rendered to the Chamber was $49,225.

55. Ms Ostermeyer engaged in discussions with Mr Karam with respect to the outstanding invoices in November 2022. It was her understanding that a verbal agreement was reached with Mr Karam for the payment of outstanding invoices at $10,000 per month.

56. Ms Ostermeyer issued a letter of demand to the Chamber on 13 March 2023 requiring “payment in full” of $49,225 in respect of the following invoices:

Invoice 001645 issued on 1 March 2023 (Balance due of $550.00)

Invoice 001647 issued on 1 March 2023 (Balance due of $11,000.00)

Invoice 001654 issued on 9 March 2023 (Balance due of $37,675.00)

57. Ms Ostermeyer says that the Chamber’s lawyers issued a Notice of Termination under clause 14 of the Services Agreement seeking to terminate the contract with 14 days’ notice.

58. Ms Ostermeyer issued “a quote for additional work require to meet milestone 1 of the Disaster Risk Reduction Fund grant” [sic]. The quote was for $27,108.40.

59. On 14 April 2023, Ms Ostermeyer received a Tax Invoice from the Chamber claiming a refund for overcharges in the sum of $8,452.02 in relation to the Disaster Risk Reduction Fund grant.

60. In cross-examination, Ms Ostermeyer agreed that the $5,000 “commitment fee” provided for in clause 12 of the Schedule to the contract was partly for “the software work” and “the systems” and also a commitment fee.

61. Ms Ostermeyer said, in summary, that she believed that C8 was entitled, under the contract, to 50% of any grant upon approval of the grant. She said that the reason that C8 did not render invoices consistent with that belief was that she was aware of the Chamber’s financial position and “wanted to give them every opportunity to perform the activities under the grant…” (transcript p 65).

62. In cross-examination, Ms Ostermeyer was taken to Invoice 001476 dated 26 September 2022 in the sum of $2,750 for “Event Project Management, Marketing and Promotions – November 2022 Small Business Month”. It was put to Ms Ostermeyer that these items were covered in clause 4 of the Schedule to the contract, under “Customers and Marketing” and “Operations” and “Event Management” and “Management of Member Listings”. The inference was that the services the subject of Invoice 001476 were included in the “50% of all Grants Approved in the name of the Chamber” provided for in clause 12 of the Schedule. Ms Ostermeyer agreed “that it’s part of services but did not agree that it was included in the 50% “commission” (transcript p 67). Ms Ostermeyer indicated that she did not believe that C8 was required under the contract to “do all the grant activities as well as what we already agreed to do” (transcript p 68 lines 4-5). The following exchange took place:

Q.   … Your evidence a minute ago was commission of 50% of the grant ties into clause 4 but that invoice does not fall within clause 4 because it relates to a grant.

A.   Correct.

Q.   So, despite the fact that the 50% being calculated from a grant – as soon as the work relates to a grant it falls outside of the 50% and you charge for it on top.

A.   It does, otherwise, I am using my money out of my commission that I’ve earned to do the work required under the grant. So, I’m not in a good position to use my commission to do this work because that’s what you’re telling me I need to do.

Q.   You’re in a less amazing position but you’re not in a bad position. As I understand it, you are saying that plaintiff gets 50% of the grant which the Chamber has to use to acquit the grant and the second you lift a finger other than writing a grant you get to charge for it.

…

A.   …Yeah. So if we write a grant – okay. If we write a grant application, okay, we don’t charge for the grant writing services. So, we could have spent hundreds of hours writing grant applications that the Chamber never paid a dollar for. Now, when a grant is approved grant activities need to be undertaken. So, if we are then being asked to complete the activities under the grant but get no more than our 50% commission we’re in a lost [loss] position constantly. Had we have got no grant this would not have been work required by the Chamber but because we did get a grant they now need to do the work. They’ve asked us to do the work so we should be entitled to be paid for that work and not being paid 50% commission to then spend the exact same amount completing the services of the grant because we’re in a constant loss position.

63. Ms Ostermeyer was taken to Invoice 001706, for $2,615.25, which was issued on 24 April 2023, after the termination of the contract effective on 28 March 2023. The work described was:

Strategy & Corporate Finance

Reviewing various constitutions provided by various current and previous board members to ensure the AGM is run correctly. Request a copy of the current constitution from Fair Trade NSW. Review and provide a copy to Dimitri.

Prepare all board nomination and endorser forms. Collate all nominations received and provide the list to Dimitri prior to AGM.

Preparing ballot papers and attending AGM.

Director (5.5 hrs)

Consultant (1 hr)

Administration (18.75 hrs)

64. Ms Ostermeyer agreed that “Strategic and Corporate Finance” was included in the services listed in clause 4 of the Schedule to the contract, and said that C8 expected to be paid for the work described separate from the 50% commission on grants.

65. Ms Ostermeyer was taken to Invoice 001709 for $2,750 dated 24 April 2023, after the termination of the contract effective on 28 March 2023. The invoice describes the work it relates to as:

Grant Fee

Small Business Month 2022

66. Ms Ostermeyer said that Invoice 001709 was for the commission for the Small Business Month grant. She indicated that any other work to be done in relation to that grant would be invoiced separately by C8.

67. In re-examination, Ms Ostermeyer was asked what she meant by the term “do the work of the grant”. She said:

A.   See the grant, when we write them, they’ll have conditions or activities and milestones that we need to achieve. Someone needs to achieve those milestones, whether it be to hold an event or like whatever that may be. So, if someone’s going to hold an event, they need to arrange a location and speakers, and sell tickets, and get people there, and get sponsors. If the board don’t do that, and we’re asked to do every activity under a grant, we’re not getting paid for that.

So, we’ve already – our commission was to write the grant, to do their normal business after five marketing, to do their newsletters, to manage their magazine, like their membership listings. And then they want us to succeed in getting them a grant, and then also do all of the grant activities for zero fee. That just was not the agreement. They were meant to do their part. The board had to do something.

The Chamber’s evidence

Mr Karam

68. Mr Karam, who has been the President of the Chamber since 2018, provided an affidavit sworn on 20 December 2024 and gave oral evidence. Mr Karam holds a Bachelor of Commerce and has worked in senior roles in hotel management.

69. In his affidavit, Mr Karam described the Chamber in the following way:

15.   The Chamber is an independent not-for-profit organisation supported by NSW Business Chamber. The Chamber is dedicated to helping businesses of all sizes in the local Liverpool area to maximise their potential. The Chamber is a passionate advocate for business in the Liverpool region.

70. Mr Karam said, in his affidavit, that, prior to mid-2022, Ms Gillion Robertson undertook bookkeeping and member administration services, including organising the Chamber’s annual general meeting for around $500 per month, and Ms Milita Valsic of Envious Solutions undertook work for the Chamber which included social media marketing, overseeing memberships and running the website for about $800 per month.

71. Mr Karam said that the Covid 19 pandemic caused some board members to resign from the Chamber, so that there were five vacant positions by early 2022, creating a heavier workload for the remaining board members. Membership also dropped, presumably on account of the financial impacts of the pandemic. Discussions took place within the board of the Chamber about how to manage the increased workload on the board members and the drop in membership, and the engagement of a management consultant was discussed, as was the making of applications for grants.

72. Mr Karam was referred to Ms Johnston by an associate of his at the Canterbury Bankstown Chamber of Commerce, which had used C8’s services. He discussed the Chamber’s needs with Ms Johnston in a telephone conversation in which he informed her that the Chamber “had a limited budget” and that the Chamber was presently spending about $1,300 per month on marketing and bookkeeping.

73. The Council received the email dated 25 May 2022 and attached proposal from C8 and Mr Karam reviewed it and had a telephone conversation with Ms Johnston the same day. Mr Karam says, in his affidavit, that he told Ms Johnston that the Chamber could not afford to pay the proposed hourly rates. He told Ms Johnston that the maximum the Chamber could afford would be $5,000 per month and he reiterated that, at the time, the Chamber was paying $1,300 per month.

74. Mr Karam says, in his affidavit, that, on 3 June 2022, he received an email from C8 with the Schedule and the General Terms and Conditions which became the contract.

75. Mr Karam says that the Chamber received $3,500 in respect of the Small Business Month Grant.

76. The Chamber received the following invoices from C8 in relation to the Small Business Month Grant (see [50] above):

Invoice 001476 dated 26 September 2022 for $2,750

Invoice 001709 dated 24 April 2023 for $2,750

The total amount billed by C8 with respect to the Small Business Month Grant is $5,500.

77. Mr Karam says that a NAB Foundation Grant in the sum of $20,000 was awarded to the Chamber in October 2022. The terms of the NAB Foundation Grant required that the grant be used exclusively for the program applied for which was to support local businesses with building capacity and strategic advice on disaster recovery.

78. C8 rendered the following invoices to the Chamber in relation to the NAB Foundation Grant:

Invoice 001711 dated 24 April 2023 for $720.50

Invoice 002269 dated 26 June 2024 for $5,000 (among charges for other grants)

79. The Chamber was awarded a Disaster Recovery Grant from the NSW Government on 23 November 2022. The total amount of the grant was $150,000, but payment of the grant was to occur in tranches, contingent upon the Chamber meeting specified milestones which are documented in detail. The terms of the Disaster Recovery Grant prevented the Chamber from using the grant funds for (among other things) (see DK1 Court Book p 532):

- Day to day activities, including supplementing, increasing or continuing ongoing service delivery that is the core business of the organisation

- Retrospective activities, such as work already undertaken, part completed or that will commence by the applicant before the funding decision is made

- Projects and/or activities that do not meet and address the program criteria

80. C8 rendered the following invoices to the Chamber in relation to the Disaster Recovery Grant:

Invoice 001724 dated 27 April 2023 for $10,983.50

Invoice 002269 dated 26 June 2024 for $40,000 (among charges for other grants)

Invoice 001531 dated 7 November 2022 for $5,500

Invoice 001532 dated 7 November 2022 for $11,000

Invoice 001589 dated 19 January 2023 for $11,000

Invoice 001612 dated 7 February 2023 for $11,000

Invoice 001647 dated 1 March 2023 for $11,000

Invoice 001720 dated 27 April 2023 for $825

The total amount billed by C8 in relation to the Disaster Recovery Grants was $101,308.50

81. Mr Karam says, in his affidavit, that he noticed, in late 2022 that milestone one of the Disaster Recovery Grant had not been undertaken. On 13 March 2023, he sent an email to Ms Ostermeyer and Ms Johnston asking for an urgent update on milestone one. On 14 March 2023, he sent a further email to Ms Johnston asking whether milestone one had been achieved. Mr Karam said that C8 had not undertaken the work to achieve milestone one. Mr Karam and Ms Hume undertook the work for all stages of the grant. Mr Karam included the documents/reports generated by him and Ms Hume with respect to the acquittal of the grant.

82. The Chamber ultimately received $150,000 by way of Disaster Recovery Grant monies.

83. The Chamber was awarded a grant from the Minister for Multiculturalism called the Multicultural Stronger Together Grant in November 2022. The total amount of the grant was $20,000.

84. Mr Karam said that the terms of the Multicultural Stronger Together Grant said that the Chamber could not use grant funds for:

(a)   Supplementing, increasing or continuing ongoing service delivery or for funding the core business of the Chamber; or

(b)   Auditing, bookkeeping or insurance requirements.

85. C8 rendered the following invoices to the Chamber in relation to the Multicultural Stronger Together Grant:

Invoice 001609 dated 5 February 2023 for $11,000

Invoice 002269 dated 26 June 2024 for $10,000 (among charges for other grants)

The total amount billed by C8 in relation to the Multicultural Stronger Together Grant was $21,000.

86. The Chamber received $20,000 by way of Multicultural Stronger Together Grant monies.

87. The Chamber was awarded an Australia Day Grant through the National Australia Day Council in February 2023. The amount of the grant was $16,000.

88. C8 rendered the following invoices to the Chamber in relation to the Australia Day Grant:

Invoice 001705 dated 24 April 2023 for $4,677.75

Invoice 001708 dated 24 April 2023 for $11,000

The total amount billed by C8 in relation to the Australia Day Grant was $15,677.75.

89. The Chamber was paid the sum of $16,000 for this grant.

90. The Chamber was awarded an International Women’s Day Grant in February 2023. The amount of the grant was $1,000.

91. Mr Karam pointed out that the terms of the International Women’s Day Grant say that the funds could only be used for the purpose for which they were requested, being those set out in the grant application (the holding of a ticketed sit-down meal for 100 people with speakers) (see Court Book p 634 and 636).

92. C8 rendered the following invoices to the Chamber in relation to the International Women’s Day Grant:

Invoice 001704 dated 20 April 2023 for $11,754.88

Invoice 002269 dated 26 June 2024 for $500 (among charges for other grants)

Invoice 001645 dated 1 March 2023 for $550

The total amount billed by C8 in relation to the International Women’s Day Grant was $12,804.88.

93. Mr Karam says, in his affidavit, that the only quote in existence for work outside of the services provided for in the contract received by the Chamber from C8 was the quote of 25 May 2022, which preceded the contract and was not accepted by the Chamber. In cross-examination, Mr Karam agreed that the Chamber had never asked C8 to provide a quote for work on a major project.

94. On 7 November 2022, Ms Ostermeyer sent an email to Mr Karam in which she sought repayment of all of C8’s outstanding invoices and in which she said, among other things:

In the meantime, we are placing our services on hold until the matter is clarified (we have made several attempts to collect our fees).

95. Mr Karam says, in his affidavit, that he had a telephone conference with Ms Ostermeyer and Ms Johnston on about 11 November 2022 in which he told them that the Chamber could not afford to pay their invoices and that the charges needed to be amortised over the two year period of the contract as the amount of 50% of the grants achieved “was in exchange for services over that period”. Mr Karam’s evidence is that Ms Ostermeyer agreed to invoice the Chamber pro rata over the 24 month period of the contract in the course of that telephone conference.

96. On 8 November 2022, Ms Johnston sent an email to Mr Karam, in the context of the ongoing discussion about billing and payment, saying, among other things:

…we have ceased all work on the Liverpool Chamber

Ms Johnston said that she required payment of invoices 1424, 1478 and 1497, totalling $5,060 “before we commence”.

97. On 2 March 2023, Ms Ostermeyer sent an email to Mr Karam which addressed the on-going disagreement between C8 and the Chamber about billing and payment. In that context, Ms Ostermeyer wrote, among other things:

Our $10,000 per month has already been occurring and therefore deemed acceptable by you.

In his affidavit, Mr Karam says that the Chamber never agreed to pay C8 $10,000 per month.

98. On 13 March 2023, Ms Ostermeyer sent Mr Karam a letter entitled LETTER OF DEMAND which said, in part:

We are writing in relation to the amount of $49,225.00 that relates to the charges on the following invoices (copies attached):

1.   Invoice INV-001645 issued on 1 March 2023 (Balance due of $550.00)

2.   Invoice INV-001647 issued on 1 March 2023 (Balance due of $11,000.00)

3.   Invoice INV-001654 issued on 9 March 2023 (Balance due of $37,675.00)

Despite our requests for payment, negotiations and offers of payment arrangement, the amount remains outstanding. We note that as per our Consultant Services Master Agreement, Item 11, our terms of payment are 7 days. It is with great regret that the terms of our agreement have not been upheld on your end, and we now demand payment in full. The total amount now due is $49,225.00.

…

Please make payment within seven days of the date of this letter. If payment is not received within 7 days, we will commence legal proceedings without further notice to you.

…

99. Correspondence concerning the different interpretations of the billing and payment terms continued past the termination of the contract on 28 March 2023.

Ms Hume

100. Ms Hume provided an affidavit, sworn on 15 January 2025, and gave oral evidence.

101. Ms Hume was a director of the Chamber from 23 November 2022 to 26 November 2024 and was the accountant for the Chamber during her term. She holds a Masters of Commerce (Tax Practitioner) Professional Accounting and a Diploma of Financial Planning.

102. Ms Hume said, in her affidavit that she attended a board meeting in December 2022 at which she was shown the contract. Following the meeting, Ms Hume reviewed the Chamber’s accounting records for the benefit of the board and began collating a spreadsheet which tracked invoices from C8, payments to C8 by the Chamber, the value of grants obtained and the value of payments received by the Chamber in respect of the grants. The spreadsheet enabled Ms Hume to track the Chamber’s cashflow.

103. Ms Hume’s evidence regarding the Small Business Month Grant was the same as Mr Karam’s evidence. The duplication of clauses of Mr Karam’s evidence in Ms Hume’s affidavit was the subject of adverse comment, and it was submitted that I should reject the evidence on the basis of the duplication. I reject that submission. Mr Karam and Ms Hume worked closely together at the relevant times and were preparing their evidence from the Chamber’s records. It is not surprising that some of their evidence is the same.

104. In relation to the NAB Foundation Grant, Ms Hume’s affidavit evidence was the same as Mr Karam’s with respect to the receipt of grant money and the invoices rendered by C8. Ms Hume also said, with respect to the NAB Foundation Grant:

31.   I undertook the following work in respect of the NAB Grant:

(a)   management of the grant money expenditure to ensure it was spent in accordance with the grant;

(b)   grant acquittal documentation on completion; and

(c)   budgeting.

105. Ms Hume’s evidence with respect to the Disaster Recovery Grant, the Multicultural Stronger Together Grant, the Australia Day Grant and the International Women’s Day Grant was also the same as Mr Karam’s evidence with respect to the receipt of grant money and the invoices rendered by C8.

106. In addition, Ms Hume said that she and Mr Karam did all of the work to acquit the Disaster Recovery Grant.

107. Further, Ms Hume said that she “was responsible for the management and acquittal of the Multicultural Stronger Together Grant in accordance with the grant documentation and requirements”.

108. In her affidavit, Ms Hume said that she and Mr Estephen had to join online meetings with C8 from late December 2022 to early January 2023 with respect to the Australia Day Grant, and recalled that Ms McGilvray assisted in organising the picking up of banners and the sourcing of suppliers for the event.

109. Ms Hume reviewed the records of the Chamber and found that C8 had rendered invoices to the Chamber between 20 May 2022 and 26 June 2024 for work alleged to have been undertaken between June 2022 and 30 March 2023 which totalled $239,155.14, $169,360.14 of which was said to be outstanding.

110. Ms Hume sought to engage with Ms Johnston and Ms Ostermeyer with respect to the billing and payment dispute between the Chamber and C8, but they were not willing to meet with her.

111. Ms Hume referred to Invoice 6553 sent by the Chamber to C8 in the amount of $8,452.02 in relation to an alleged overpayment to C8 for services in relation to the Disaster Recovery Grant. Ms Hume said:

81.   The Overpayment Refund was calculated based on the total amount the Chamber had paid C8 at the time less 50% of the grant funds which had been received by the Chamber. This was to ensure that the amounts paid to C8 aligned with grant funds received as a receipt of the grant funds was conditional on compliance with the terms of the grant. There were other amounts which continued to be in dispute.

112. Ms Hume’s schedule of invoices shows that the invoices issued by C8 subsequent to the termination of the contract were in the total sum of $120,135.14.

113. Ms Hume said, in her affidavit, that the solicitors for the Chamber received a letter from the solicitors for C8 on 27 April 2023 alleging that the sum of $98,463.75 was owed to C8 by the Chamber. Invoices in the sum of $59,085.14 were attached.

C8’s submissions

114. C8 conceded that no increase in the fee rates charged by it had occurred during the course of the contract, so that all work that was chargeable on an hourly rate could only be charged at the rate agreed at the outset of the contract.

115. It was acknowledged that each of the parties had widely differing beliefs as to the meaning of the contract and it was submitted that it was the task of the Court to ascertain the objective meaning of the terms of the contract and apply them.

116. It was submitted that Mr Karam’s belief that the contract provided for the amortisation of the payment of 50% of the grants approved to C8 over the 24 month term of the contract could not be the objective interpretation of the contract. Mr Karam relied on clause 6 of the Schedule, which simply says “Term ongoing (minimum 24 months)”. It was submitted that there is no reason to link this with the provision in clause 12 of the Schedule for the payment of 50% of the grant money to C8. There is no express mention of amortisation or monthly invoices for the share of the grant money.

117. The contract says, in clauses 9.2 – 9.4 of the General Terms and Conditions:

9.2   Retainer Fees. The Client shall pay the Consultant a monthly retainer fee (the “Retainer Fee”).

9.3   Invoices are due by the Client 7 days after the invoice date, unless otherwise agreed in writing.

9.4   Retainer Fee Credited against Fees. The Retainer Fee amount will be credited against any Fees that may be payable under this Agreement.

118. The term “Retainer Fees” is defined in clause 2 of the General Terms and Conditions:

2.12.   “Retainer Fees” means the upfront cost incurred by the client in order to pay for the services of the Consultant, to ensure payment for future services or work to be rendered,

119. It was C8’s case that there was no Retainer Fee and that subclauses 9.2 and 9.4 had no work to do.

120. It was submitted, in effect, that the expectation was that C8 would be entitled to be paid by the Chamber an amount equivalent to 50% of each grant approved, at the time of approval, and that the Chamber would pay that amount from membership fees, it being accepted that most or all of the grants prohibited the use of grant funds to pay for work which was not work in furtherance of the tasks itemised in the grant.

121. In clause 12 of the Schedule to the contract, the sentence “Any grant written survives our termination” appears. It was submitted that this means that C8’s entitlement to be paid 50% of any grant written during the period of their engagement as a consultant to the Chamber endures after the termination of their contract with the Chamber. In its submissions, when C8 referred to “any grant written” or the “writing” of a grant, it meant the preparation of the documents which were submitted to the grantor to apply for the grant.

122. Also in clause 12 of the Schedule to the contract, is the sentence “We receive 50% of all Grants Approved in the name of the Chamber, but not necessarily from the proceeds of grants as sometimes, writing is not an eligible expense”. It was argued that this means that C8 was to be paid, by the Chamber, a fee equivalent to 50% of the grant money awarded, and, where the terms of the grant did not permit that fee to be paid from grant money, it was to be paid from the other funds of the Chamber.

123. It was submitted that the contract contemplated that C8 might perform two kinds of work outside of the work listed in clause 4 of the Schedule.

124. The first is “major projects”. Clause 12 of the Schedule to the contract provides, in the eighth paragraph, “We will provide a quote on any major projects”. It was argued that this was C8’s only obligation to provide a quote under the contract.

125. The second is “additional services”, and its source is the fourth paragraph of Clause 12 of the Schedule to the contract, which says:

All board members must perform their respective duties to acquit grants and hold events, workshops, and develop new programs. If we are required to cover any additional services, we can claim up to 100% of the Grant.

126. It was argued that this paragraph imposed an obligation upon board members to acquit grants. It was further argued that “additional services” should be read to mean services additional to the work to acquit grants, hold events, workshops and develop new programs, because those are tasks assigned to the board members by the contract.

127. Clause 10 of the Terms and Conditions to the contract says:

10.   GST

10.1   Unless otherwise stated, all amounts payable under this Contract are expressed to be exclusive of , but maybe subject to, GST and both parties acknowledge that where GST is applied to any payment the amount payable shall be increased by multiplying the GST exclusive amount by the then applicable rate of GST.

10.2   The Consultant shall provide the Client with a proper Tax invoice in relation to the fee/charges.

128. C8 argued that clause 10 did not mean that an obligation to pay a fee did not arise until an invoice was raised by C8.

129. It was accepted that C8 needed to prove, on the balance of probabilities, that it had performed the work in relation to which payment is claimed. C8 relied upon the “Clockify” time recording system entries which were provided as part of Annexure A to Ms Johnston’s affidavit (see Court Book p 354 – 391) as evidence that work was done, although some deficiencies in the Clockify record were acknowledged; some time entries do not specify a task, some are duplicated and some are blank.

130. It was submitted that the “Services” set out in clause 4 of the Schedule to the contract did not include work required for the acquittal of any grant, and that the board was required to do the work to acquit grants. It was submitted that the words “Operations (including grant writing)” in clause 4 mean the general operations of the Chamber. It was conceded that there might be some overlap between the Services set out in clause 4 of the Schedule and the tasks required for grant acquittal.

131. It was submitted that C8 was entitled to an amount equal to 50% of the grant fees awarded plus the amount of the invoices rendered by C8.

The Chamber’s submissions

132. The Chamber submitted that it is a not-for-profit local chamber of commerce, which sought, in 2022, to replace existing services for which it was then paying $4,000 per month.

133. C8 was retained under the contract signed on 7 June 2022. The contract was terminated, effective on 28 March 2023. C8 was therefore retained for ten months, and C8 “suspended” work for several of those months.

134. The Chamber submitted that C8 now claims, in its Amended Statement of Claim, to be entitled to a payment of $163,810.14 from the Chamber, comprising $108,310.14 in unpaid invoices and $55,500 for the balance of 50% of the grant fees. This contrasts with Ms Ostermeyer’s letter of demand of 13 March 2023 to the Chamber, set out, in part, above at [98], which claimed that the Chamber owed C8 $49,225.00 at the date of that letter, which was fifteen days prior to the end of the contract.

135. The Chamber pointed to its Defence, in which it pleaded that the fees agreed are those set out in the contract, unless the work done was outside the scope of clause 4 of the contract, in which case a quote for that work had to be provided and approved by the Chamber. It further pleaded that that work claimed on some of C8’s invoices was not done by C8, and, even if the work was done, invoices with sufficient detail to satisfy clause 10.2 of the contract have not been provided.

136. The Chamber submitted that C8 had failed to prove its case and asked that the proceedings be dismissed with costs.

137. The Chamber submitted that the contract provided for payment to C8 for its work to come from the fee calculated by reference to the grants, and that Ms Johnston’s evidence made it clear that she understood that. In her affidavit, Ms Johnston said that she “understood that in exchange for not being paid directly for these abovementioned fees, C8 would be entitled to a fee equal to 50% of grants approved”. Ms Johnston gave evidence of her understanding that this posed a risk to C8, as grants applied for may not be granted.

138. The Chamber submitted that the Services specified in clause 4 of the Schedule to the contract for C8 to perform are very broad.

139. The Chamber said that C8 never quoted for works outside of the clause 4 Services, and that no such services were provided. It was submitted that all of the contested invoices were for clause 4 work.

140. It was pointed out that C8 submitted an invoice for 50% of each of the six grants awarded to the Chamber.

141. Within the approximately ten months of the life of the contract, C8 was unable to perform its work for the Chamber from time to time and expressly suspended the performance of services from 7 November 2022 and from 14 March 2023 to the end of the contract. There is no evidence that services resumed after 7 November 2022.

142. The Chamber provided the following table of grant money received during the operation of the contract:

Provider	Value	Collappor8’s Bill for the grant
NSW Small Business Month Grant from the Department of Customer Services	$3,500	$5,500
NAB Foundation Grant	$10,000	$5,720.50
Disaster Recovery Grant from Resilience NSW	$60,000	$101,308.50
Multicultural Stronger Together	$20,000	$21,000
National Australia Day Council	$16,000	$15,677.75
International Women’s Day	$1,000	$12,804.88

143. The total amounts received by way of grants during the life of the contract was $116,000 and C8’s bills that were referable to a grant were $162,011.63.

144. The Chamber has paid $69,795 to C8.

145. It was pointed out, in the Chamber’s submissions, that many of C8’s “Clockify” time records, used in charging the Chamber, do not describe the work they relate to, are very vague about that work, record the same person’s time being charged for doing two separate tasks at the same time or record duplicate charges. The Chamber’s written submissions include Annexure B, which lists 62 instances, in Clockify records, of the “Task” column, used for the description of the work performed, being left blank, Annexure C, which listed 89 instances, in Clockify records, of the description in the “Task” column being too vague to underpin an invoice (“call”, “Eventbrite”, “Review”, “Complimentary tickets” etc), Annexure D, which listed 72 instances, in Clockify records, of two time recordings for work completed at the same time by the same person and Annexure E which listed 50 examples of duplicate charges. The Chamber submitted, in effect, that there must be doubt as to whether the Clockify time recordings were made contemporaneously with the performance of work, or were authentic, given the extent of the obvious flaws in the records generated.

146. The Chamber submitted that, in cross-examination, Ms Johnson said, of C8 “… we’re only five people” (transcript, p 20). Later, in cross-examination, Ms Johnston said “One thousand and ninety-five hours were spent on this client across seven staff members…” (transcript, p 49). The Clockify reports relied upon by C8 record the time of ten individuals.

147. The Chamber submitted that the Clockify reports are inconsistent with emails sent by C8. In an email to the Chamber on 24 January 2023, Ms Ostermeyer said that 187 hours of work had been performed from 1 December 2022 to the date of the email, and that 633 hours of work had been performed since commencement, which I take to mean the commencement of the contract. The Clockify reports purport to record 768.25 hours of work, of which 250.5 was designated as billable as at 24 January 2023. On 8 November 2022, Ms Johnston sent an email to Mr Karam which said “… we have upheld our side of the arrangement and invested 430 hours in your chamber”. However, the Clockify reports at Annexure A to Ms Johnston’s affidavit record a total of 406.75 hours of work, 122.75 of which is designated as billable.

143. The Chamber also submitted that the Clockify time reports were not provided by C8 to the Chamber until 13 March 2025, purportedly as evidence in reply. The Chamber requested further information about the work charged in C8’s invoices on 4 May 2023 and 14 August 2023. C8 declined both requests.

144. The Chamber does not accept that the work the subject of the Clockify reports or the invoices was necessarily performed. The majority of C8’s invoices were issued after the termination of the contract, rather than contemporaneously with the alleged work or on a regular basis.

145. The Chamber submitted that any finding by the Court, based upon the existence of the Clockify record, that the work described was done and related to the contract, would amount to impermissible speculation on the part of the Court, contrary to the decision of Middleton J in Bell IXL Investments Pty Ltd v Life Therapeutics Ltd (2008) 68 ACSR 154 at [14]:

[14]  In considering the material before the court, the trier of fact must be careful to distinguish between inference and conjecture. A conjecture may be plausible, but it is effectively still a mere guess. An inference is a deduction from the evidence, and if reasonable can be treated as part of the legal proof to be considered in making a factual determination in any particular proceeding. While sometimes it may be difficult to distinguish between conjecture and inference, nevertheless the distinction is an important one. In this proceeding, some contentions made by Bell IXL were mere conjecture, and were either otherwise explicable or could not be a basis for a determination in favour of finding an improper purpose.

151. As to the construction of the contract, the Chamber’s case was that the whole agreement between the parties was contained in the contract.

152. The contract does not set out rates at which work is to be charged. The Chamber’s case is that the contract provides for C8 to claim an amount equal to 50% of the grants approved, and that this was the basis for the remuneration of C8 for work performed under clause 4 of the Schedule to the contract.

153. The Chamber pointed to evidence given by Ms Johnston in cross-examination as showing that she understood that C8’s remuneration under the contract was by way of an amount equal to 50% of the grants approved (transcript p 50):

Q.   One of the things you were particularly conscious of was putting a clause in the agreement that allowed the plaintiff to see suitable grants. That is, you didn’t have to go back to the board and –

A.   As my only way of – or my major way of earning on this contract was grants. So, without a single grant I would go bust.

154. It was submitted that commercial sense required the interpretation of the contract argued for by the Chamber because, otherwise, C8 would be paid 50% of the grants approved merely for generating the grant applications.

155. The Chamber argued that it is clear that both parties understood, at all relevant times, that the Chamber’s capacity to pay was critical to the arrangement. It was argued that, in that context, the contract ought to be interpreted as requiring the amortisation of C8’s fees over the whole of the term of the contract.

156. It was pointed out that C8 was, in fact, invoicing from time to time on a basis other than 50% of the grant fee up until the contract was terminated, at which time invoicing was “ramped up”. In other words, during the operation of the contract, C8 did not act consistently with what it says was its interpretation of the contract with respect to payment.

157. The Chamber illustrated its argument by reference to the Disaster Recovery Grant. The entire grant was $150,000, but it was payable in stages. The initial payment was $60,000, upon the signing of the deed, which would occur after the approval of the grant. Had the Chamber been liable to pay 50% of the grant upon approval, as C8 asserts, then the Chamber would have been liable to pay C8 $75,000 prior to receiving any payment under the grant. That, it was said, would have immediately rendered the Chamber insolvent. The Chamber points out that C8 did not issue an invoice at the time of the approval of the grant, implicitly recognising that the contract did not provide for that.

158. The Chamber submitted that it could be inferred from Ms Ostermeyer’s evidence that she believed that C8 could determine what work it needed to do for the Chamber and could perform that work and bill the Chamber for it at any future time, up to the value of 100% of the grants. It was submitted, in effect, that this construction of the contract was so unlikely and so contrary to good commercial practice that it should be discounted.

159. The Chamber argued that the contract provided for a process whereby, if the Chamber required C8 to perform services in addition to the services in clause 4 of the Schedule to the contract, an agreement in writing would be raised between the parties as contemplated in clause 9.1 of the General Terms and Conditions of the Contract, which says:

9.1   The Client shall pay the Fee in the manner specified in the Contract. Unless otherwise agreed in advance, and in writing, the Fee is the total consideration payable.

160. Clause 12 of the Schedule to the contract also says:

We will provide a quote on any major projects.

It is clear from the context that “We” refers to C8.

161. No quote and no written agreement under clause 9.1 is in evidence.

162. Ms Johnston sent an email to the Chamber on 14 March 2023 in which she said, among other things (Court book p 1230-1231):

We will provide a quote on any major projects. I think if anything constituted a major project DRR and events do.

From the context of this extract, it is clear that DRR is short for Disaster Risk Reduction and refers to the activities required to acquit the Disaster Risk Reduction Grant.

163. The Chamber submitted that C8’s evidence does not include any direct evidence of work actually being performed. The Chamber submitted that, if thousands of hours were spent by C8 on work for the Chamber it should be possible to demonstrate the product of those efforts. It was submitted that no product of any work had been provided in evidence. C8 relied on the Clockify time reports, a request in a whatsapp message to collect directors’ IDs, which request was refused by C8 and a request in emails that C8 carry out work for the Disaster Relief Grant, which request C8 also refused.

164. There is, however, evidence of work that was not done. Mr Karam gave evidence of C8 refusing to manage a Business After 5 Event (see Mr Karam’s affidavit at [109] – [111]) and also said that C8 had posted nothing on the Chamber’s Instagram until 12 October 2022 and had not posted on the Chamber’s LinkedIn page (Mr Karam’s affidavit [113] – [114]). Mr Karam and Ms Hume both gave evidence of C8’s refusal to perform work on milestone one of the Disaster Risk Relief grant.

165. The Chamber submitted that, where the invoices claimed for work performed, it was invariably work within the purview of clause 4 of the Schedule to the contract. It was submitted that this was not surprising, given that the fee was to be calculated by reference to the amount of the grant to which the work was referable. It was pointed out that the work description on the invoices often used the work descriptions in clause 4 of the Schedule to the contract.

166. The Chamber argued that if, as C8 submitted, all of the work in the invoices was outside the purview of clause 4 of the Schedule to the contract, then there is no evidence of any work being done for the clause 4 services. Given that both parties say that the purpose of the agreement was for the Chamber to obtain those services, C8’s interpretation should be rejected. It was pointed out, again, in this context, that there is no evidence of the Chamber requesting that C8 perform any work outside of the scope of clause 4 of the Schedule to the contract.

167. It was submitted that there is no evidence before the Court upon which C8’s claim could succeed.

Consideration

168. The pleadings define the ambit of the claim. C8 seeks an order for the payment to it of $163,310.14, which is the sum total of all of the invoices listed in the Amended Statement of Claim and issued by it to the Chamber, including invoices issued after the termination of the contract, some of which were calculated by reference to the amount of a grant.

Interpretation of the contract

The services and the fee

169. The Chamber is a local, not-for-profit Chamber of Commerce. It exists to promote and advance local businesses. The Board members are volunteers. When considering “what reasonable persons engaged in the respective businesses of the parties would have understood the words and conduct to mean” (see Gordon J in Realestate.com.au quoted at [19] above), the “reasonable person" is someone who understands the local, not-for-profit sector and the role of a Chamber of Commerce within it.

170. It is fundamental to the contract that C8 promises to provide specified services to the Chamber in exchange for a specified fee.

171. The services that C8 promises to provide to the Chamber are listed in clause 4 of the Schedule to the contract and are set out at [11] above.

172. The fee that the Chamber promises to pay C8 is (Schedule to the contract, clauses 10 and 12):

- Accounting: $500 per month.

- $5,000 commitment fee.

- 50% of all Grants Approved in the name of the Chamber, but not necessarily from the proceeds of grants as sometimes, writing is not an eligible expense.

- Complimentary Corporate Partnership and 5 complimentary silver memberships for C8's charities.

173. No other fee was agreed in the contract or in any other way.

174. An invoice for the $5,000 commitment fee, plus GST, was rendered and paid (see Invoice 1331 dated 3 June 2022 Court Book p 172 and paragraph 11 of the Amended Statement of Claim).

175. The monthly accounting fee has not been put in issue by the Amended Statement of Claim.

176. Clause 9.1 of the General Terms and Conditions says:

9.1   The Client shall pay the Fee in the manner specified in the Contract. Unless otherwise agreed in advance, and in writing, the Fee is the total consideration payable.

177. The reference in clause 9.1 to “the Fee” is a reference to clause 10 of the Schedule to the contact, which is entitled “Fee (excluding GST)”.

178. A reasonable person with knowledge of the context of this contract, including the not-for-profit character of the Chamber, would understand that the reference to grants in the contract is a reference to grants awarded to the Chamber by State and Federal Governments, or philanthropic entities, for the benefit of the local community.

179. I find that, on the proper interpretation of the contract, C8 was to provide the services listed in clause 4 of the contract to the Chamber. Those services were to be provided in exchange for a fee equal to 50% of the grants approved in the name of the Chamber. The services set out in clause 4 of the Schedule are sufficiently broad to include all of the activities necessary to acquit any grant. “Grant writing” is expressly included under “Operations”, which is a very broad term. The linking of the quantum of the fee to a large percentage of the grant money indicates that the services provided were largely to be referable to the grants. The proper interpretation of the contract is that C8 was required to perform such of the clause 4 services as were necessary to acquit the grants, together with the other specified services, in exchange for a fee equivalent to 50% of the grant fees. The balance of the grant fee would be used for the activities for which the grant had been awarded, which might involve the engagement of speakers, the production of materials, the leasing of premises, the hiring of tables, chairs and equipment and catering, for example.

180. Clause 12 of the Schedule to the contract says (among other things):

All board members must perform their respective duties to acquit grants and hold events, workshops, and develop new programs. If we are required to cover any additional service, we can claim up to 100% of the Grant.

181. Ms Johnston gave evidence that she believed that this clause imposed a duty on board members to acquit grants, hold events, workshops and develop new programs. It does not. The “respective duties” of the board members referred to in clause 12 are the duties inherent in their position as board members of the Chamber, or undertaken by them, expressly, by agreement, as part of a grant application. The contract cannot bind individual board members to perform any additional duties because board members are not parties to the contract.

182. I reject Ms Johnston’s interpretation of the contract with respect to the obligations undertaken by C8 and the fee to be paid by the Chamber to C8. Ms Johnston fundamentally misunderstood the Chamber’s role as a not-for-profit entity. Ms Johnston was also mistaken as to the purpose of grant funding, which, broadly, is for the benefit of a section of the community and is not for the generation of sponsorship and membership fees, although that may be a collateral consequence of a well-administered grant.

183. I also reject Ms Ostermeyer’s interpretation of the contract, which was that the fee of 50% of the value of each grant represented a “commission” for C8 which C8 “earned” by writing the grant application, and that any other work performed by C8 was to be paid for separately. It is contrary to the terms of the contract.

184. The contract provides for a process by which additional work may be the subject of an agreement between the parties as contemplated in clause 9.1 of the General Terms and Conditions. Clause 2 of the General Terms and Conditions defines “Charter of Success” as follows:

2.2   “Charter of Success” or COS means a written statement of work agreed by or on behalf of the Client.

185. The contract provides, in clause 9.8 of the General Terms and Conditions:

9.8   The client shall pay the required fees under each COS in accordance with the payment terms.

…

186. There is no evidence of any Charter of Success being entered into by the parties.

187. C8 argued, in effect, that it was entitled to payment from the Chamber equal to 50% of all grants approved, plus payment of all invoices it raised for hours purportedly spent on any matter in relation to the Chamber, including work required to acquit the grants at rates set unilaterally by C8. A reasonable person familiar with the sector would reject that interpretation of the contract. It would result in C8 being paid twice in relation to work undertaken to acquit the grants. A fee calculated with reference to the quantum of grant funds awarded would be expected to relate, substantially, to work performed in relation to the grant.

The payment of the fee

188. C8 argued that the fee was payable upon the approval of the grant.

189. The precise basis upon which it was asserted that the fee was payable upon approval of the grant was not articulated.

190. I reject the contention that the contract provides that the fee was payable upon the approval of the grant. At the point of the award of a grant, no funds are received by the Chamber. Funds may be received upon the signing of the deed conferring the grant, but the deed may also provide for the funds to be given to the Chamber at a later time. As I have discussed above, the Disaster Risk Recovery Grant was structured so that there was an initial payment followed by a series of milestones to be met at specified deadlines before further payments were made. Payment of the tranches of the grant beyond the first payment was conditional upon the meeting of the milestones.

191. A reasonable person familiar with the sector, which would include an understanding of the likely budgetary position of a body such as the Chamber, would not interpret the contract as requiring the disbursement of substantial grant funds prior to the receipt of those funds without there being, in the contract, a clear provision evidencing that intention. The contract does not contain such a provision. Bearing in mind the nature of the Chamber, funds accumulated from membership fees, ticket fees and sponsorships are unlikely to be sufficient to cover such payments.

192. The contract provides, in clause 10.2 of the General Terms and Conditions:

10.2   The Consultant shall provide the Client with a proper Tax invoice in relation to the fee/charges.

193. Clause 9.3 provides:

9.3   Invoices are due by the Client 7 days after the invoice date, unless otherwise agreed in writing.

194. The contract provides for a process by which C8, having performed services of the type set out in clause 4 of the Schedule to the contract towards the acquittal of a grant, or towards the achievement of a milestone provided for in a grant deed, and having, therefore, earned its fee, may issue an invoice to the Chamber under clause 10.2. The Chamber is then obliged to pay the invoice within seven days.

195. If the grant provides for tranches of the grant funds to be paid to the Chamber upon the achievement of milestones, then C8’s invoice, if provided upon the achievement of a milestone, may invoice to the value of 50% of the grant fee referable to that milestone. Otherwise, C8 would be claiming a fee for work it had not yet performed. The only fee which is required to be paid “upfront” in the contract is the $5,000 commitment fee.

196. Clause 12 of the Schedule to the contract includes the words “If we are required to cover any additional service, we can claim up to 100% of the Grant”. A reasonable person familiar with the sector would know that the acquittal of a grant may involve, for example, the engagement of speakers or educators, the hire of premises, chairs, tables and equipment and the preparation of written material of various kinds. For that reason, the interpretation of the words quoted necessarily involves the assumption that, in order to be entitled to 100% of the grant, C8 would need to show that it had performed services under clause 4 of the contract equal to the work required to acquit the grant.

197. Clause 12 of the Schedule to the contract includes the words “Any grant written survives our termination”. This is a statement of fact. The termination of the contract between C8 and the Chamber would not have any impact upon the continuation of any grant already approved. C8 argued, in effect, that these words mean that C8 is entitled, after the termination of the contract, to receive an amount equal to 50% of all grant funds given to the Chamber in relation to any grant C8 was involved in applying for and in relation to which C8 had not yet been paid. I reject that argument. No reasonable person familiar with the sector would expect a contract to provide for a consultant to be paid an amount equal to 50% of a grant fee without performing the services necessary to earn that fee. C8’s interpretation is also contrary to the express words of clause 14, under which the contract was terminated, which, after providing for termination on 14 days’ notice, says:

In such event [ie termination] and in the absence of any evidence of breach by the Consultant, the Client will remunerate the Consultant for its Services performed to the date of that termination and also reimburse the Consultant for any costs reasonably incurred by it as at the termination date in anticipation of having to complete the Services under the Contract. The Client will not be liable to pay any other compensation.

198. C8 received payment in the sum of $69,795 in relation to the contract.

199. I accept the evidence of Mr Karam and Ms Hume that C8 did not perform the services to acquit the first milestone, or any subsequent milestone, of the Disaster Risk Recovery Grant. Consequently, the only part of the grant fee relevant to C8 is the $60,000 up front payment, which is included in the Chamber’s calculation of the figure of $116,000 of grant fees relevant to the operation of clause 12 of the Schedule to the contract. 50% of $116,000 is $58,000, and that is the maximum amount that C8 was entitled to be paid for under the contract.

198. The invoices which are based upon time allegedly recorded by staff or directors of C8 multiplied by the rate chosen unilaterally by C8 are not relevant to the fees payable to C8 under the contract. Under the terms of the contract, invoices for work beyond the services set out in Schedule 4 of the contract needed either to be the subject of a written quote, in the case of a major project, or the subject of a Charter of Success under the contract, or both. There is no evidence of either.

199. Had the invoices been relevant, I would not have relied upon the records generated by C8, including the “Clockify” records, or other methods of time and task recording as proof of work performed for the reasons put forward by the Chamber and set out above. Those records are patently unreliable for the reasons advanced on behalf of the Chamber and could not, by themselves, constitute proof on the balance of probabilities that work under the contract was performed. C8 has not adduced evidence upon which I could find that any substantial work was done by C8 under the contract, except for grant writing.

Conclusion and Orders

202. C8 has not proven on the balance of probabilities that the Chamber is in breach of the contract.

203. C8 has not succeeded in establishing its claim to be entitled to be paid the amounts set out in the invoices listed in clauses 11 and 12 of the Statement of Claim, or any of them.

204. The following orders will issue:

1. Judgment for the defendant.

2. The Further Amended Statement of Claim is dismissed.

205. I will hear the parties as to costs.

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Decision last updated: 07 August 2025