Coyne v GSC Contracting Pty Ltd - [2022] WADC 115

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   COYNE -v- GSC CONTRACTING PTY LTD [2022] WADC 115
CORAM:   GETHING DCJ
HEARD:   5 DECEMBER 2022
DELIVERED          :   22 DECEMBER 2022
FILE NO/S:   CIV 2783 of 2020
BETWEEN:   MARC COYNE
Plaintiff
AND
GSC CONTRACTING PTY LTD
Defendant

Catchwords:

Contract - Whether oral contracts made - Whether handing over of an agreement containing an electronic signature of a party objectively signifies an intention to be bound by the agreement - Turns on own facts

Legislation:

Nil

Result:

Judgment for the plaintiff against the defendant

Representation:

Counsel:

Plaintiff	:	Mr M J Keating
Defendant	:	Mr P Lafferty

Solicitors:

Plaintiff	:	Williams & Hughes
Defendant	:	Butcher Paull & Calder

Cases referred to in decision:

Ailakis v Olivero [No 2] [2014] WASCA 127
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101
Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424
Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2017] FCA 507
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Chou v AWAP SGT 26 Investment Ltd [No 3] [2018] WASC 383
Conlan v Registrar of Titles [2001] WASC 201
Cumace v Ioppolo [2022] WASCA 171
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Hamilton v Pharmacy Board of Australia [No 2] [2022] WASCA 155
Helton v Allen [1940] HCA 20; (1940) 63 CLR 691
Howard F Hudson Pty Ltd v Ronayne (1972) 126 CLR 449
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
King v Adams [2016] NSWSC 1798
La Mela v Franklexis Pty Ltd [2020] WASCA 83
Leonard v Booth (1954) 91 CLR 452
Metaxas v Legal Profession Complaints Committee [2020] WASCA 27
MKP Management Pty Ltd v Shire of Kalamunda [2020] WASCA 130
Netglory Pty Ltd v Caratti [2013] WASC 364
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222
Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159
Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34; (1929) 43 CLR 310
Thorby v Goldberg (1964) 112 CLR 597
Trackem Pty Ltd (ACN 168 532 269) v Revenue Partners (A Partnership) [2021] WASC 245
Trimat Holdings Pty Ltd v Investment Club Pty Ltd [2022] WASCA 29
Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21
Williams Group Australia Pty Ltd v Crocker [2016] NSWCA 265

GETHING DCJ:

Introduction

The plaintiff, Marc Coyne, is a civil engineer who at the time relevant to this action was working in the field of providing contracting services to the major Western Australian mining companies. He says that between July 2018 and October 2019 he entered into a series of agreements with the defendant, GSC Contracting Pty Ltd (GSC), pursuant to which he was to be paid certain amounts out of the profits which GSC was going to make decommissioning a number of mining camps for BHP Billiton Iron Ore Pty Ltd (BHP). Mr Coyne says that he introduced this opportunity to GSC, which is why it entered into the agreements with him.
The final agreement was set out in a document which Mr Coyne says the sole director of GSC, Geoffrey Curtis, agreed to be bound by, evidenced by Mr Curtis handing him a thumb drive containing an electronic version of the agreement with Mr Curtis' electronic signature embedded in the signature clause. This agreement so executed was referred to at the trial as the '2019 Deed', a description which I will adopt.
In this action, Mr Coyne claims an amount of $346,818.40 said to be the outstanding money due to him under the 2019 Deed.
GSC denies that there was any agreement between it and Mr Coyne as pleaded. Rather, GSC paid Mr Coyne $528,462.85 pursuant to a separate contract in which he would act as its construction manager for the decommissioning of the mining camps for BHP.
For the reasons which follow, I accept that the 2019 Deed was entered into as Mr Coyne asserts and find that it is legally binding. Accordingly, I find in favour of Mr Coyne and award him judgment in the amount of $346,818.40.

The trial

At the trial, Mr Coyne gave evidence.
For GSC, Mr Curtis gave evidence. It was not in issue that Mr Curtis was the directing mind and will of GSC.[1]
[1] See generally: MKP Management Pty Ltd v Shire of Kalamunda [2020] WASCA 130 [74] ‑ [81] (judgment of the court); Trimat Holdings Pty Ltd v Investment Club Pty Ltd [2022] WASCA 29 [147] (judgment of the court).
GSC also called Hannah Forrest. At the times material to the action, Ms Forrest was employed as a lawyer with Williams + Hughes, who were acting for Mr Coyne. In his discovery affidavit Mr Coyne had discovered communications between himself and Williams + Hughes relating to the drafting of the 2019 Deed. In doing so he waived legal professional privilege.[2] This in turn allowed Ms Forrest to be asked about her interactions with Mr Coyne as regards the drafting of the 2019 Deed.
[2] ts 119.
The final witness called by GSC was Kelly Te Brinke, an administration assistant who does work for GSC.
Each party tendered a book of documents at the commencement of the trial.[3] With the approval of counsel, I have also made findings on the basis of inferences which are capable of being drawn from the face of a document.[4]
[3] The plaintiff's book is exhibit 1 and the defendant's book is exhibit 2.
[4] ts 23.
Much of the factual context is not in dispute and is dealt with in Part 3.
The central legal issue in dispute is whether GSC is bound by the 2019 Deed. Mr Coyne's alternate case is that he had the benefit of each of the three oral agreements which preceded the 2019 Deed. This is dealt with in Part 4.
The appropriate final orders are addressed in Part 5.

Factual context

3.1 Approach

Much of the factual context in this action is not in dispute. Mostly, this is because it is derived from the documents in evidence at the trial. It also derives from the evidence of the witnesses, primarily Mr Coyne and Mr Curtis, that was not challenged in cross‑examination. It is instructive to set out the facts as a full chronology of the relevant events. At points in time there are factual disputes. I identify these by referring to the evidence instead of making a factual finding. I will deal with the factual disputes in Part 4. Otherwise, I make the factual findings as set out in this part.

3.2 Events at the beginning of 2018

At the beginning of 2018, Mr Coyne was working for Laing O'Rourke (LOR) doing estimation work. LOR's primary clients were BHP and Rio Tinto.[5]
[5] ts 24 (Coyne).
Around late 2017 or early 2018, Mr Coyne became aware that BHP wanted to decommission a number of its mining accommodation camps and expand an existing camp in Port Hedland (Camps Project). BHP's contract practice at that time was to only seek tenders from a closed panel of 'Tier 1' contractors. LOR was one contractor on the panel. Another was CPB Contractors Pty Ltd (CPB). A third had gone into liquidation during the time of this tender process. Mr Coyne formed the view that the Camps Project was not really LOR's core work. LOR was going to put in a tender because it had to and was going to essentially put in an uncompetitive tender so that it did not get the work. He also became aware the CPB were 'keen on the job'.[6]
[6] ts 23 - ts 26; ts 89; ts 93 - ts 96; ts 209 - ts 210 (Coyne).
Mr Coyne also formed the view that there was an opportunity for a subcontractor to make a significant amount of money by selling the buildings which would become available as a result of the decommissioning process.[7]
[7] ts 24 - ts 25 (Coyne).
Mr Coyne and Mr Curtis knew each other through mutual acquaintances in the mining industry.[8]
[8] ts 25 (Coyne); ts 213 (Coyne).
As I have mentioned, Mr Curtis is the sole director of GSC. GSC is a duly incorporated company. During the period relevant to this action, it was a mining services contractor whose services included concrete pipelines, camp construction and roadworks.[9]
[9] ts 213 (Curtis).
In May or June 2018 Mr Coyne spoke to Mr Curtis and told him about the Camps Project, which Mr Curtis had not then been aware of.[10]
[10] ts 96 (Coyne); ts 214; ts 295 (Curtis).
Mr Coyne gave evidence that he contacted Mr Curtis to discuss Mr Curtis becoming a subcontractor on the Camps Project in order to gain the opportunity to make a profit on the sale of the buildings. At the initial stage, Mr Coyne did not know the name of the company which Mr Curtis was then using, so the conversation was with Mr Curtis personally.[11] He only found out about GSC later.[12] As to the agreement made, in Mr Coyne's words:[13]
… so I proposed to Geoff that I win the job, you execute the job and then we'll split the - split the profits of the job fifty-fifty and we'll split the assets of the job fifty-fifty to which he was more than agreed - agreeable with.
What do you mean, to which he was more than agreeable?‑‑‑Yeah. I mean he was happy. He saw the numbers. He knew what value was in it. He knew that it wouldn't be a big job to execute so he was - he wanted to engage with me in the process. And it was something that we were talking regular about. It was an exciting opportunity so it was something that we were engaged with.
[11] ts 133, ts 211 (Coyne).
[12] ts 133 - ts 134 (Coyne).
[13] ts 26 - ts 27 (Coyne). See also: ts 96 - ts107 (Coyne).
And in cross-examination:[14]
So what I'm saying to you, Mr Coyne, is that this idea of progress payments was something that was discussed, from your version of events, sometime in 2019, is that correct?‑‑‑Yeah. So again, the original conversation and the original - it was always going to be that there'd be no moneys disbursed until there was assets sold and there was some money to disburse. So - and then prior to any invoice being issued by me there would be a conversation between me and Mr Curtis and he would let me know how much I would be able to invoice.
[14] ts 154 (Coyne).
Mr Coyne could not recall the date of his conversation with Mr Curtis.[15]
[15] ts 96 - ts 100 (Coyne).
Mr Coyne gave evidence that he and Mr Curtis would from time to time meet for coffee near where Mr Coyne worked at LOR in Victoria Park. Occasionally they would have their coffee sitting in Mr Curtis' car. They would talk about potential opportunities. Mr Coyne thought the initial profit sharing agreement was made in one of these conversations, sitting in Mr Curtis' car. Mr Coyne told Mr Curtis that he had a contact at CPB whom he could put Mr Curtis in touch with.[16]
[16] ts 27; ts 101 - ts 106 (Coyne).
Mr Curtis gave evidence that there was no agreement or arrangement between him and Mr Coyne to share fifty‑fifty in the net profits of the Camps Project and/or fifty-fifty in the net profits and the sale of any assets acquired in that project.[17]
[17] ts 228; ts 295 (Curtis).
Mr Curtis gave evidence that he did have a conversation with Mr Coyne to the effect that Mr Coyne would help GSC with a view to it eventually coming onto the Camps Project. Mr Curtis recalls Mr Coyne saying to him: 'If there's an opportunity for me to come onto the project, I would like to'. Mr Curtis could not recall the exact date of this conversation but said that it was not in his initial conversation with Mr Coyne. He thought that the conversation probably took place over the phone.[18]
[18] ts 284 - ts 285; ts 295 (Curtis).
After his conversation with Mr Coyne, Mr Curtis contacted a Brian Keeler at LOR, who was the bid leader for the Camps Project. GSC ended up preparing a formal tender to LOR for the Camps Project.[19]

3.3 Events of June to December 2018

[19] ts 214 - ts 215 (Curtis).

On 28 June 2018 Mr Curtis sent an email to '[email protected]'.[20] This was an address which Mr Coyne had made up and which he had asked Mr Curtis to direct his correspondence to. It is not in issue that all emails sent to this address were in fact sent to, and received by, Mr Coyne. Mr Coyne adopted this approach as he was still working at LOR at the time, so could not use his work email address.[21]
[20] Exhibit 1, page 4.
[21] ts 28 (Coyne).
The 28 June 2018 email annexed a document which on its face is a proposal from GSC to LOR in relation to 'BHP Camps; Buildings Removal'. The email has a subject 'Please Review' and no other text. Mr Curtis had sent through this document to see what Mr Coyne thought of it before it was submitted to LOR.
Mr Curtis gave evidence that he had been requested by Mr Coyne to use the 'John Gall' email address while Mr Coyne was working at LOR. He had no recollection of the email in [28].[22] Mr Curtis could not recall why Mr Coyne asked him to use this email address.[23]
[22] ts 233 (Curtis).
[23] ts 28 (Coyne).
On 8 July 2018 Mr Curtis sent Mr Coyne an email using the address to '[email protected]'.[24] This email attaches a document with the reference: 'Attachment B - Pricing Schedule - Camp Closures.xlsx'. This document is a spreadsheet containing information about the closures of the BHP's Kurra Camp, Redmont Camp, South Flank Camp, Jocelyn Camp and Yandi Camp. The subject reference in the email is 'Camps Demo' and the text 'Please review'. This document was sent to Mr Coyne for him to check.[25]
[24] Exhibit 1, pages 7 - 34.
[25] ts 29 (Coyne).
On 25 July 2018, Mr Curtis sent Mr Coyne an email using the address to '[email protected]'.[26] The subject reference is 'Camps Meeting'. It reads:
[26] Exhibit 1, page 35.
HV Contractors Approved : Fenton Cable Jointing Services, National Grid Link.
.All Transportable buildings regardless of conditions, will be stored and re purposed
.Damaged and Fire Damaged units will have the Recyclables removed, ie: Steel, cabling etc, any excess materials will be disposed of, he actual waste will be minimal.
.All waste Concrete from, Kurra, Kalgans, Whaleback will be Crushed and reused as Basecourse Material.
.All waste PVC, Poly pipe material from, Kurra, Kalgans, Whaleback will be Shredded and Recycled.
.All waste Ferrous and Non Ferrous Material from each Location will be Processed for Recycling.
.The impact on the Newman Land Fill will be very minimal.
.All of the other sites will have disposable areas provided within.
Again, this email was sent to Mr Coyne for him to check. Mr Coyne would respond verbally to Mr Curtis.[27]
[27] ts 29 (Coyne).
Mr Curtis gave evidence that he had no real recollection of the emails in [31] and [32], though he may have asked Mr Coyne to review the documents before they were submitted to LOR, to make sure the rates were market relevant and to understand how to prepare a submission in line with what LOR was looking for.[28]
[28] ts 234 - ts 238; ts 243 - ts 244; ts 281 - ts 284 (Curtis).
On 1 August 2018, Mr Curtis sent Mr Coyne an email using the address to '[email protected]'.[29] The subject reference is 'BHP Camps Closure Equipment Standby Rates'. The text is 'Please review'. It annexes a copy of a document which on its face is a proposal by GSC to LOR dated 1 August 2018. Among other things, it sets out a list of standby rates for various types of earthmoving equipment. This information was sent to Mr Coyne for him to review before it was submitted.[30]
[29] Exhibit 1, pages 36 - 38.
[30] ts 30 (Coyne).
Mr Curtis gave evidence that the reason why he was getting Mr Coyne to check his rates was to ensure that they were market relevant and 'totally competitive'.[31]
[31] ts 215 (Curtis).
Mr Curtis gave evidence that Mr Coyne did not expect to be paid for any work checking his rates.[32]
[32] ts 216 (Curtis).
On 9 August 2018 Mr Curtis sent Mr Coyne an email to the address '[email protected]'.[33] There is no subject matter reference or text in the email. It simply attaches a document which on its face is a proposal by GSC to LOR in relation to a project 'BHP Low level Bridges Demolition'. This information was sent to Mr Coyne for him to review before it was submitted.[34]
[33] Exhibit 1, pages 39 - 41.
[34] ts 30 (Coyne).
On 18 September 2018, Mr Curtis sent Mr Coyne an email to the address '[email protected]'.[35] The subject matter reference is 'Commercials for Discussion'. The text is:
[35] Exhibit 1, page 42.
.Preferred terms 30 days / 45 days agreeable in lieu of Prelims paid up front, across all four jobs amounts to $893k, GSC would be prepared to accept $446k ?
.No Retentions allowed for.
.All materials, buildings and plant and equipment recovered would belong to GSC
.All Cranage and or lifting provided by LO
.Letter of intent to facilitate Crushing permit application (lead time is approximately six weeks)
.Roster allowance 2 & 1 all in all out
.No Allowance for dust control
Plus the Clarifications outlined in the initial offer
let me know your thoughts
Again, this information was sent to Mr Coyne for him to review.[36]
[36] ts 31 (Coyne).
This email relates to the same 'BHP Low level Bridges Demolition' project referred to in [37]. Mr Coyne reviewed the information in this email.[37] GSC did not win this tender. LOR performed the work in house rather than contracting the work out. [38]
[37] ts 30 (Coyne).
[38] ts 30 - ts 31; ts 91 (Coyne).
On 25 September 2018, Mr Curtis sent Mr Coyne an email using the address to '[email protected]'.[39] The subject matter reference is 'Equip Rates'. It attaches a document which on its face is a list of equipment, with some handwritten annotations as to rates, and some more general handwritten annotations. Mr Curtis could not recall this email and said that the handwriting was not his.[40]
[39] Exhibit 1, pages 43 - 44.
[40] ts 243 (Curtis).
Mr Coyne gave evidence that he had told Mr Curtis that at the time he came to engage with CPB, he would assist Mr Curtis with the pricing schedules.[41]
[41] ts 27 (Coyne).
By around September 2018, LOR had not won the tender for the Camps Project and was no longer involved with it. Rather, it was CPB who was engaging with BHP.[42]
[42] ts 92 (Coyne).
Mr Curtis found out that LOR had not won the tender for the Camps Project from an inquiry with LOR. He found out that CPB had won the tender from a contract within BHP. He then contacted CPB and submitted to them the same pricing and works schedule he had submitted to LOR. He had a meeting with people from CPB and then proceeded into negotiations with them.[43]
[43] ts 215 - ts 217; ts 286 - ts 287 (Curtis).
On 8 November 2018 at 10.18 am, Mr Curtis sent Mr Coyne an email.[44] The recipient email address is not shown, only 'Marc Coyne'. The subject reference is 'Camps Pricing Schedule'. This email attaches a document with the reference: 'Attachment B - Pricing Schedule - Campy Closures.xlsx'. This document is a spreadsheet containing information about the closures of the BHP's Kurra Camp, Redmont Camp, South Flank Camp, Jocelyn Camp and Yandi Camp. It appears to be substantially the same document as that in [31].
[44] Exhibit 1, pages 45 - 71.
On 8 November 2018 at 11.34 am, Mr Coyne sent Mr Curtis an email.[45] The email address used by Mr Coyne was '[email protected]'. Mr Coyne's name does not appear in the signature block, only: 'Estimating, Hawthorn Construction Services'.
[45] Exhibit 1, pages 72 - 99.
As at the beginning of November 2018, Mr Coyne was still working for LOR. However, he had set up a business by the name of Hawthorn Construction Services (HCS), with a business partner one Mason Woods. Each of them 'were doing work in the background whilst both doing a fulltime job'.[46] The business name Hawthorn Construction Services was registered on 18 October 2017 and cancelled on 4 September 2018. During that period it was registered to Mason Woods. The business name was then renewed on 18 October 2020.[47] Notwithstanding this, Mr Coyne gave evidence that HCS was a business name registered to Forrest Civil Pty Ltd.[48] This company was incorporated on 1 August 2018. Mr Coyne was a director of this company at all material times, as was Mr Woods.[49]
[46] ts 33 (Coyne); exhibit 6.
[47] ts 110 (Coyne); exhibit 6.
[48] ts 33 - ts 34; ts 110 (Coyne).
[49] Exhibit 5.

Mr Coyne had set up the email address '[email protected]' so he had another email he could use other than his work email at LOR. He was the only person who had access to this email.[50]
[50] ts 33; ts 35 (Coyne).
The 8 November 2018 email ([44]) attaches a document with the reference: 'GCS_Draft_Attachment B - Pricing Schedule - Camp Closures.xlsx'.[51] The attachment appears to be a version of the document in [31] with some annotations marked up. The text of the email reads:
Geoff,
As discussed please see attached updated sheet with discount included,
Just change the percentage of the summary page and that will run through the entire document.
Once you have landed on a discount you want to apply, send it back and I will change it ready for submission.
Regards
Estimating
[51] Exhibit 1, page 72.
On 8 November 2018 at 1.40 pm, Mr Coyne sent Mr Curtis an email using the email address '[email protected]'.[52] The email attached a document with the reference: 'GCS_Draft_Attachment B - Pricing Schedule - Camp Closures.xlsx'. The text reads: 'As discussed please see attached Camps Pricing Schedule for submission'.
[52] Exhibit 1, page 100.
On 9 November 2018, Mr Curtis sent an email to a Paul Dyson of CPB, in which he said:[53]
Hi Paul,
As discussed, please see the attached pricing for the BHP Camos Demolition Project. Please do not hesitate to call me if you have any questions.
Regards,
Geoff Curtis.
[53] Exhibit 1, page 128.
On 29 November 2018 at 5.23 pm, a Simon Marks, whose title is 'Senior Contracts Administrator' with CPB, sent Mr Curtis an email.[54] The email reads:
Geoff,
Thank you for coming in for our meeting which was very constructive.
Please find an initial pricing schedule for the demolition works at the Newman Camp refurbishment portion, not priced previously. Can you please provide option prices using the schedule whist you are reviewing your initial price below. I will send out a formal ITT shortly. Could you please provide an indication of when you can provide this?
Please note that I will be on holiday tomorrow (Friday) only.
If you have any questions, please contact Mark Faulkner.
Many thanks
Simon
[54] Exhibit 1, pages 127 - 128.
At 5.33 pm, Mr Curtis forwarded the email in [51] to Mr Coyne, simply saying 'Regards, Geoff Curtis'.[55]
[55] Exhibit 1, page 127.
Mr Coyne responded by email the same day at 10.50 pm, using the email '[email protected]', saying: 'Give me a call in the morning, reviewing the additional scope they want you to price'.[56]
[56] Exhibit 1, page 176.
On 30 November 2018 at 8.49 am Mr Coyne sent Mr Curtis an email using the email '[email protected]'.[57] The subject reference is 'Re: W1025-040; BHP Camps Demolition'. It attached eight documents. The text reads: 'What would you do without me?'.
[57] Exhibit 1, pages 176 - 188.
On 30 November 2018 at 3.41 pm Mr Coyne sent Mr Curtis an email using the email '[email protected]'.[58] The subject reference is 'Camps'. It attached three documents. The text read: 'As discussed please see attached cost plan estimate and additional plant information'. Mr Coyne then sent a second email at 3.42 pm, attaching a further four documents.[59]
[58] Exhibit 1, pages 189 - 240.
[59] Exhibit 1, pages 241 - 271.
Mr Coyne gave evidence that the work he was doing with Mr Curtis at that time was not work being done by HCS. Rather, it was being done by him personally.[60]
[60] ts 34 (Coyne).
Mr Curtis initially gave evidence that all aspects of the pricing of GSC was entirely his own work, and that Mr Coyne had no input into the tenders or pricing.[61] In cross-examination he was taken to the emails in [48] ‑ [55]. He accepted that Mr Coyne has some input into a second version of pricing submitted to CPB.[62] Mr Curtis gave evidence that the work was being done by HCS. He could not recall whether he was dealing with Mr Coyne or his business partner, Mr Woods.[63]
[61] ts 287; ts 293 (Curtis).
[62] ts 294 (Curtis).
[63] ts 247; ts 288; ts 292; ts 296; ts 298 (Curtis).
Given Mr Coyne's definite recollection that it was him who was dealing with Mr Curtis, and not Mr Woods, I prefer his evidence on this issue and find this to be the case. Also, given Mr Curtis' poor recollection of the events of this time, I also prefer Mr Coyne's evidence and find that it was him personally whom Mr Curtis was dealing with, not HCS. This finding is consistent with the earlier emails of a similar kind between Mr Curtis and Mr Coyne personally.
The evidence which I have set out in this section leads me to find that during the period June 2018 to December 2018, Mr Coyne was assisting Mr Curtis with his negotiations with both LOR and CPB by reviewing pricing information provided to him by Mr Curtis.[64]
[64] ts 35 - ts 39 (Coyne); ts 247 - ts 253 (Curtis).

In late December 2018, Mr Curtis was informed by CPB that GSC was successful with its tender in relation to the Camps Project, and that a letter of intent to go forward would be issued to GSC.[65]

3.4 Events of January 2019

[65] ts 217 - ts 218 (Curtis).

On 8 January 2019, Mr Curtis sent Mr Coyne (his name appears) an email, with a subject reference: 'BHP Camps FINAL Price Submission'.[66] It attaches a document with a reference: 'Final Price Check SP 1245 08.01.19.xlsx'. The text reads:
Hi Marc,
Could you please adjust the cashflow based on the revised pricing. - Cheers
Regards,
Geoff Curtis
[66] Exhibit 1, pages 372 - 379.
In relation to this email, Mr Coyne gave the following evidence:[67]
Could you please explain what this is that Mr Curtis … wants you to do with it?‑‑‑Yes, so I mean as part of our agreement is that in the background I would look at the cash flow with the job and make sure you know just understand when - when the job is going to become cash positive from - from the way it's done. So this looks like the revised pricing schedule that's been sent back to him. And then he's sent it to me to say, 'FYI, this is where we're at now. And can you update the cash flow to effect the most up‑to‑date version?'.
[67] ts 40 (Coyne).
On 14 January 2019, Mr Coyne sent Mr Curtis an email from his HCS email.[68] The subject reference is 'Cash Flow/Forecast'. It attaches a document with the reference: 'GSC - FY19 CashFlowRev2.xlsx'.
[68] Exhibit 1, pages 380 - 387.
Mr Coyne gave evidence that GSC was not paying anyone, person, company or trustee, for the work he was doing for GSC during the period 28 June 2018 to 14 January 2019.[69]
[69] ts 45 (Coyne).
On 28 February 2019, CPB and GSC entered into a contract for the provision of demolition and deconstruction services in relation to 'Camp Closures'. It was given the contract number W01025‑040.[70]
[70] ts 218; ts 232; ts 256 - ts 257 (Curtis); exhibit 11.
Some on site work had taken place before this contract was formally executed.[71]
[71] ts 131 - ts 132 (Coyne); ts 257 (Curtis).
Mr Coyne ceased employment with LOR in around April 2019, though he could not be sure of the date.[72]
[72] ts 89 (Coyne).
It is common ground that HCS provided, using Mr Curtis' terms, 'white collar labour hire' services to GSC in relation to the Camps Project, as well as other projects. The labour hire services were provided across the period from 1 December 2018 through to 20 May 2020. In total, GSC paid HCS just under $1.5 million for labour hire services. This includes the provision of services by Mr Coyne over a number of months, which totalled some $136,628.59.[73] It is instructive to set out the details of the invoices rendered by HCS to GSC:[74]
[73] ts 41- ts 42 (Coyne); ts 218 - ts 219; ts 223 - ts 224; ts 245 - ts 246; ts 257 (Curtis); exhibit 15.
[74] Exhibit 15.

Invoice

Date
Amount Coyne Invoice Description Portion of invoice for MC

31/03/19 161,991.05 - Labour Hire period 01/12/18 to 24/03/19 (MW, ML, MD, Cleaner) and Expense Reimbursements

26/04/19 9,791.10 - Labour Hire period 01/04/19 to 14/04/19 (MF)

29/04/19 5,959.80 - Labour Hire period 15/04/19 to 28/04/19 (MF)

30/04/19 111,887.68 22,820.00 Labour Hire period 01/04/19 to 30/04/19 (MC, ML, MD, SG, Cleaner) and Expense Reimbursements GSC: Camp Project: Marc Coyne - Normal time Marc Coyne April 19, 163 hours @

14/05/19 8,584.95 - Labour Hire period 29/04/19 to 12/05/19 (MF)

27/05/19 9,365.40 - Labour Hire period 13/05/19 to 26/05/19 (MF)

31/05/19 143,402.67 26,460.00 Labour Hire period 01/05/19 to 31/05/19 (MC, ML, MD, SG, Cleaner) and Expense Reimbursements GSC: Camp Project: Marc Coyne - Normal time Marc Coyne May 19, 189 hours @

30/06/19 77,005.84 12,800.50 Labour Hire period June 2019 (Goldsworthy) (MC, SG, CE, ML) and reimbursable June Goldsworthy - Marc Coyne - 0.5 @ $25,601 per month 0065 GST = 12800.50

30/06/19 83,835.52 12,800.50 Labour Hire period June 2019 (BHP Camps) (MC, SG, CE, ML) and reimbursable June BHP Camps - Marc Coyne - 0.5 @ $25,601 per month GST = 12800.50

31/07/19 88,081.04 12,800.50 Labour Hire period July 2019 (BHP Camps) (MC, SG, CE, ML) and reimbursable July Goldsworthy - Marc Coyne - 0.5 @ $25,601 per month 0065 GST = 12800.50

31/07/19 83,384.23 12,800.50 Labour Hire period July 2019 (Goldsworthy) (SG, CE, ML, MC) and reimbursable, and AA Monthly Perth? July Goldsworthy - Marc Coyne - 0.5 @ $25,601 per month 0065 GST = 12800.50

31/08/19 92,124.37 6,606.59 Labour Hire period August 2019 (BHP Camps) (MD, MF, ML, MC) and reimbursable August BHP Camps - Marc Coyne - 0.26 @ $25,601 per month 0065 GST = $6,606.59

30/09/19 66,871.00 - Labour Hire period September 2019 (BHP Camps) (MD, MF)

31/10/19 69,833.78 22,820.00 Labour Hire period October 2019 (BHP Camps) (MD, MF, MC) GSC Marc Coyne Oct 19, 20 hours @ 140.00 per hour ex GST = $22,820

28/11/19 69,753.78 - Labour Hire period November 2019 (BHP Camps) (MD, MF)

8/01/20 79,594.38 6,720.00 Labour Hire period December 2019 (BHP Camps) (MD, MF, MC) and reimbursable GSC Marc Coyne Dec 19, 48 hours @ 140.00 per hour ex GST = $6,720

31/01/20 66,753.78 - Labour Hire period January 2020 (BHP Camps) (MD, MF)

27/02/20 66,871.00 - Labour Hire period February 2020 (BHP Camps) (MD, MF)

31/03/20 68,842.76 - Labour Hire period March 2020 (BHP Camps) (MD, MF)

30/04/20 66,753.78 - Labour Hire period April 2020 (BHP Camps) (MD, MF)

20/05/20 42,272.22 - Labour Hire period 01/05/20 to 20/05/20 (BHP Camps) (MD, MF)

1,467,959.16 136,628.59

Mr Coyne received a salary from HCS.[75]
[75] ts 158 (Coyne).
In about April 2019, Mr Curtis gave Mr Coyne the title of 'Construction Manager' for GSC, and a GSC email address. His email signature block contained this information.[76] He was given this title to allow him to have 'effective contact with the client'.[77] He was given limited online access to GSC's MYOB accounting system.[78]
[76] ts 139 - ts 144 (Coyne); ts 220 - ts 221 (Curtis).
[77] ts 221 (Curtis).
[78] ts 221 - ts 222 (Curtis).
Mr Coyne gave evidence that throughout 2019 he and Mr Mason performed a role of managing the engineers and supervisors which had been employed through HCS. These management services were billed through HCS.[79] Mr Coyne also gave evidence that the profit sharing arrangement was separate to the work for HCS, to the extent that he did not, at the time, tell Mr Woods about the arrangement, and only did so much later.[80]
[79] ts 53; ts 139 - ts 156 (Coyne).
[80] ts 157 (Coyne).
Mr Curtis gave evidence that he entered into an arrangement with Mr Coyne in around March or April 2019:[81]
All right. And when you came to - to speak with him about him helping you in some way, was there a - a formal arrangement entered into with you - with him?---No, because CPB didn't know the full extent of the work themselves, and BHP was still reaching into the project with their requirements on keeping some infrastructure and putting some infrastructure on hold. So it was hard to predict where the project would go in the first couple of months.
All right. So what did you want Mr Coyne to specifically do for you?‑‑‑To manage subcontractors, in particular the class 1 demolition contractor, liaise with the - with the client on program and progress and assist in the compilation of the monthly claim for our costs.
And what was discussed with Mr Coyne about payment for such services to be rendered? What - what was the discussion then?‑‑‑Well, there would be a fee monthly to do that type of - that type of work.
And was that discussed with Mr Coyne?‑‑‑Yes.
And can you tell us what - what was discussed?‑‑‑We basically discussed what it should cost and what the market rate would be for that type of work.
Yes?‑‑‑And that's where we got to.
[81] ts 218 - ts 220 (Curtis).
As to the role Mr Coyne was performing, Mr Curtis gave evidence:[82]
All right. It's - so in - in terms of the service he was - services he was providing to GSC, what were they specifically? Can you be more - more exact as to what he was actually doing for GSC?‑‑‑Yeah. So he was responsible for daily supervision and programming of the sub‑contractor activities and ensuring that they were meeting their timelines and their safety requirements.
[82] ts 222 (Curtis).
The first invoice which Mr Coyne submitted to GSC was dated 15 April 2019. It was in the name of 'El Raco Australia'.[83] El Raco Australia is a business name registered to Leanne Margaret Coyne, Mr Coyne's wife.[84] It is not in issue that all amounts paid by GSC to El Raco Australia were paid at the direction of, and for the benefit of, Mr Coyne.[85] Mr Coyne used El Raco Australia to keep these dealing with GSC separate from the dealings which HCS was having with GSC.[86] The invoice was for $25,093.75, comprising the following amounts (plus GST):
[83] Exhibit 2, page 87.
[84] ts 48 - ts 49; ts 108 - ts 110 (Coyne); exhibit 4.
[85] ts 44 (counsel); ts 136 (Coyne); ts 223 (Curtis).
[86] ts 48 (Coyne).

Quantity Surveyor Services - Monthly

$20,833,33

Quantity Surveyor Services - SUP

$ 1,979.17

Mr Coyne gave evidence that the amount of the figures and description in each invoice, including the requirement to add GST, were as directed by Mr Curtis.[87] In particular, Mr Coyne gave evidence that he was asked by Mr Curtis to use the description of quantity surveying'.[88]
[87] ts 48; ts 147 - ts 148; ts 186 - ts 187 (Coyne); ts 278 (Curtis).
[88] ts 51 (Coyne).
In cross-examination, Mr Coyne denied that the invoices he rendered for payment to El Raco were for management services he provided to GSC through HCS.[89]
[89] ts 147 (Coyne).
Mr Coyne gave evidence that the work he was doing for GSC was part of what he says was his initial agreement with Mr Curtis:[90]
Relating to pricing and ancillary aspects of their tender to CPB, why were you doing this work?‑‑‑So I was doing the initial work, the estimating work on the provision that there was an agreement that we would split the profits of the jobs that we won, and specifically around that BHP camps project is that I would do the tender work, I would get the price right, I would win the job on the provision that we agreed that we would split the profits of the job and the profits of the assets at the end of the project. So there was no ‑ ‑ ‑
And that was the only reason, I take it, from what you're telling me?‑‑‑Check. There was no promise of pricing- of being paid for that. If the project wasn't won then I wasn't expecting to be paid anything in any way.
[90] ts 44 - ts 45 (Coyne). See also: ts 148 - ts 150 (Coyne).
As to the timing of the first invoice, Mr Coyne gave evidence that this was by agreement with Mr Curtis:[91]
Can you explain - can you explain the background to preparing this invoice?‑‑‑So yeah. So once the job had commenced and there was some money in the job, it was always ‑ ‑ ‑
Sorry, what do you mean by the job?‑‑‑Sorry, the - once BHP camps had started going, there was always an agreement that Geoff would start to pay me some money, which is what happened at - at this point. The job had - had been going. I believed that some assets were potentially sold at that time and Geoff started to pay me some of the money owed.
So you were - you were telling me previously that - that the contract would have started in or around the period 31 January 2019 to 14 February 2019?‑‑‑Yep.
This is a bit later than that. This is dated 15 April 2019. Can you explain that delay?‑‑‑Yeah. I mean, because you know, a start of a - of a job is - costs money and it takes a time period for - to get paid from the main contractor. So you know, the job had to get going and the - and - and get a bit of money in it before Geoff could pay basically. I don't believe that GSC had any of the projects at all at that time so there would have been no cash flow coming through the business in order to - to pay (indistinct).
Okay, so did you decide to wait a bit of time until they had cash flow before issuing your first invoice?‑‑‑Yeah, I was - it was a fully agreed thing between myself and Geoff that once the job started to make money that we would dispense some of that money to ourselves. Geoff had full control over that because he was the sole director and the - and the - you know in charge of the accounts. So it was - it was fully dictated to by Geoff of how that was going to happen.
So there was an understanding, on your evidence, that he would start to pay you some money when money started flowing?‑‑‑Correct.
[91] ts 49 - ts 50; ts 138 (Coyne).
Mr Coyne gave evidence that he was having regular conversations with Mr Curtis about when to put in an invoice and in what amount, based on cashflow.[92]
[92] ts 50; ts 52; ts 154 - ts 155 (Coyne).
Mr Curtis gave evidence denying that he directed Mr Coyne to raise invoices or works as his share of the profit from the project. There was no agreement in April or May 2019 for Mr Coyne to pay progress payments based on an oral profit sharing agreement. Rather, the invoices were 'for management services and including business development and marketing opportunities'.[93] Mr Coyne would issue an invoice for the work he did the previous month. Mr Curtis would then 'make a call' as to whether he thought that the invoice was fair value or reasonable for the work done and, if so, pay it. The decision to pay was also based on the performance of the project and GSC's cashflow.[94] He thought that Mr Coyne was, around this time, doing roughly between 60 and 70 hours a month for GSC in his personal capacity.[95]
[93] ts 222; ts 229 (Curtis).
[94] ts 277; ts 301; ts 307 (Curtis).
[95] ts 279 (Curtis).
Mr Coyne submitted to GSC a second invoice dated 15 April 2019.[96] It was again in the name of 'El Raco Australia'. The invoice was for $55,000, plus GST, totalling $60,500. It is said to be for 'Quantity Surveyor Services - DEP'.

3.5 Events in May 2019

[96] Exhibit 2, page 88.

By May 2020 there had been sales of some of the assets acquired by GSC as part of the Camps Project.[97]
[97] ts 137 (Coyne).
Mr Coyne submitted to GSC an invoice dated 9 May 2019. It was in the name of 'El Raco Australia'.[98] The invoice was for $25,093.75, comprising the following amounts (plus GST):

Quantity Surveyor Services – Monthly $20,833.33

Quantity Surveyor Services – SUP $ 1,979.17
[98] Exhibit 2, page 89.

On 9 May 2019, GSC paid Mr Coyne the amount of $25,093.75.[99]
[99] DSASC, par 16(d).
As set out at [68], HCS billed GSC $143,402.67 for the month of May 2019, including $26,460 for work done by Mr Coyne (comprising 189 hours).[100]

3.6 Events in June 2019

[100] Exhibit 15.

On 11 June 2019, GSC paid Mr Coyne the amount of $25,093.75.[101]
[101] DSASC, par 16(d).
Mr Coyne submitted to GSC an invoice dated 9 June 2019. It is in the name of 'El Raco Australia'.[102] The invoice was for $25,093.75, comprising the following amounts (plus GST):
[102] Exhibit 2, page 90.

Quantity Surveyor Services - Monthly $20,833,33

Quantity Surveyor Services - SUP $ 1,979.17

3.7 Events in July 2019

On 18 July 2019, GSC paid Mr Coyne the amount of $25,093.75.[103]

3.8 Events in August 2019

[103] DSASC, par 16(d).

Mr Coyne submitted to GSC an invoice dated 9 August 2019. It was in the name of 'El Raco Australia'.[104] The invoice was for $25,093.75, comprising the following amounts (plus GST):

Quantity Surveyor Services - Monthly $20,833,33

Quantity Surveyor Services - SUP $ 1,979.17
[104] Exhibit 2, page 91.

Mr Coyne gave evidence that around this time the payments stopped, and he began to get concerned about how the job was going. He only had limited viewing access to the MYOB accounts of GSC. He raised his concerns with Mr Curtis. They had a conversation, which Mr Coyne thought was at Caffissimo in Victoria Park, near HCS's office, or it may have been in Mr Curtis' car, near the same place. Mr Curtis told him that the job was not going the best, and that he had not sold as many assets as he thought he would. As a result, he needed to stop making payments to Mr Coyne.[105] What happened next is best put in Mr Coyne's words (my emphasis in italics):[106]
Yes?‑‑‑So I - I - I could sense there was a change in what was going on and that - I'm pretty sure that's when I, you know, I thought my best out here with - with some of the - the initial value was to - to come up with an agreement that took less of the portion of the profits that was acceptable to him and - but, you know, I got (indistinct). So that was - yeah, that was the conversation.
So when you said, 'Come up with an agreement,' you - you've proposed ‑ ‑ ‑?‑‑‑Yeah, so I - I - I outlined what I thought was - and it was - it was a two‑way conversation but I outlined with him in that conversation that, you know, at the time I was also in the midst of - of building - buying land and - and building a house, so I'd sort of come up in - in me head of what I needed to make that happen.
Yes?‑‑‑So, I - I proposed that to - you know, that value and in that conversation, I told him about the house and he knew about the house. So, we had - we had the conversation and he - he thought it was fair and, yeah, I think he -he - he said something along the lines of, you know, 'Put it on - put it on paper. Let me review it and we'll - we'll take it from there.
Okay. And - and what was it that he told you to put on paper and he said he - he thought was fair? What were the terms?‑‑‑It - yeah, without having it right in front of me, I - it was around $800,000 was - was the - was the - was the value that was talked. I mean, it was significantly less than what the original profit was.
[105] ts 54 - ts 57; ts 155 - ts 156; ts 161 - ts 163 (Coyne).
[106] ts 56 - ts 57 (Coyne).
On 26 August 2019, at 4.04 pm, Mr Coyne sent an email to Chris Bailey, a lawyer from Williams + Hughes.[107] It reads as follows:
[107] Exhibit 2, page 100.
Chris
Background
I (Marc Coyne) provided Geoff Curtis of GSC an opportunity to tender a Project called BHP Camps Deconstruction. I then was successful in winning the project for GSC and he has since commenced work on this project. The original agreement was that myself and Geoff Curtis would be 50/50 on all profits from this project and any assets gained as part of the project. The project is worth around $6.5M and originally had a profit of around $3M. This profit margin has since been reduced to approximately $1.5M. As part of the project GSC received a large qty Camp building with an approximate value of $6M. I do not feel I have sufficient control of the project to guarantee the future success of the project so I decided to re-negotiate my agreement to take a smaller profit for a reduced risk.
Proposed Agreement - The following verbal agreement was discussed on 26/08/2019 at approximately 1:00PM
•The finders fee due to Marc Coyne is a total of $790,000.00.
•Monthly payments of $25,000.00 to be paid up until the full $790,000.00 has been paid to Marc Coyne.
•30% of the total building sales (less costs) to be paid to Marc Coyne until the total amount owed of $790,000.00 is paid in full.
•All costs to date and building sales to be provided to Marc Coyne.
•Marc Coyne to assist in the management of ongoing and future costs related to the buildings.
•Payments to Marc Coyne from the building sales are to be paid within 14 days of sale of building.
•Marc Coyne to have access to building dales information and to assist in the sale of all buildings.
•Marc Coyne will work on behalf of GSC to get the maximum value for all buildings.
•August's monthly payment of $25,000.00 to be paid prior to end of the month on Saturday 31^st August.
I made it clear that this was the absolute minimum I would accept and it is major reduction in what was originally agreed. Geoff has been paying me the $25,000.00 / month for the past 3 months, he is currently 20 days overdue on the August payment.
Please let me know if you require any further information, I would like to get something back to ASAP whilst the verbal agreement is fresh.
Regards
Marc Coyne
Mr Coyne gave evidence that what he put in the email reflected his conversation with Mr Curtis. He confirmed that the meeting took place on 26 August 2019.[108] He said that he wrote the email the same day as the meeting.[109] Having refreshed his memory from the email, he gave the following evidence:[110]
Now, based on your refreshed recollection from that document, talk us through what the terms of the agreement were?‑‑‑Yep, okay. So it was - it was - it was basically - 790,000 was the - was the - the fee, the finder's fee, that the - the agreed payout, if you like, for - for - for being in the job. I'd agreed to waiver the - any profit due to me under the original verbal agreement and essentially agree the figure to get - get out without any - any risk on myself on - on the (indistinct) job or - or anything else. So the terms were to - 790,000 to be paid monthly and then as - essentially as the assets were - were sold, I would get a percentage of those assets until the - the - the fee was complete.
So how much were you going to be paid a month?‑‑‑And so the monthly payments were 25,000.
And what percentage of the total building sales were you going to get?‑‑‑Thirty per cent. Sorry, I - I couldn't see that.
So - so as I understand it, you – you'd get a monthly payment and then you'd get - the 25,000. You'd then get 30 per cent of the building sales that come from, each, basically, until in aggregate, you got 790,000?‑‑‑Correct, yes.
Okay. And then the last five - the last sort of six dot points, they're all things - are they all things that you discussed with Mr Curtis?‑‑‑Yeah, so I would assist in finding the sales to the buildings. I agreed with that. I agreed to - there was an agreement that I'd have access to the sales so I'd know what be - be sold so that, you know, I could actually know when there's an asset been sold and then, yeah, also claim the - the money due to me. Yeah, and I - basically, I said that I'd work on behalf of - of (Indistinct) to - to gain the maximum value for the - for the outstanding building. So not just what was owed to me but I would continue to - to then sell the assets through the contacts that I had.
[108] ts 161 (Coyne).
[109] ts 57; ts 60 - ts 61(Coyne).
[110] ts 61 (Coyne).
And in cross-examination (my emphasis in italics):[111]
All right. Now, did you tell him that you were going to contact Williams + Hughes?‑‑‑I didn't specifically say who I was going to contact. I - I believe I said that I was going to put an agreement together, which is what I did.
So had you decided following the meeting that - that you were going to seek legal advice?‑‑‑I - I decided before the meeting that I would need to pull a contract together so - yeah.
All right. So are you saying that those matters under the heading 'Proposed agreement' were what you discussed with him that day?‑‑‑Yeah. Seems that way.
And you've used the word 'proposed agreement'. So that wasn't suggesting that an agreement had been reached. You were proposing something to - to him, weren't you?‑‑‑Again the conversation was, 'These are the - this is the - this is the framework of what it'll be', and he said, 'Get it on paper, send it to me, and then we can discuss it', which is what we did.
So that was your wish list, in effect, wasn't it?‑‑‑That was - - -
That's - that's what you wanted to happen?‑‑‑Yeah. I mean, I was the - the one who was wanting to get out of the original agreement, so I was the one who's suggesting what the terms should be.
All right. And you're not suggesting that - that there was an agreement reached in the car park, are you?‑‑‑In principle, yes. The - the - the principle foundation of what we discussed was there, and I put them together to then put it into some formal document to then - to then agree it. So there was - there was - there was always going to be some kind of back and forwards, which is always the case with any contract.
[111] ts 164 - ts 165 (Coyne).
And (my emphasis in italics):[112]
But - but you say that it had been agreed in principle in the car park?‑‑‑Yeah. But agreed in principle and when it's on a piece of paper is two different things. That's just my interpretation. That's just my - what I thought would happen.
I'm - what I'm - I'm suggesting here is that there was no final agreement arrived at this so-called meeting in the car park?‑‑‑Again I think I said before that the - the - the framework of what we discussed was to be put on paper to be finalised - to be reviewed and then signed-off. That - that was the purpose of the meeting.
[112] ts 168 - ts 169 (Coyne).
Mr Curtis gave evidence that there was no meeting at which Mr Coyne suggested that in lieu of taking a profit share, GSC would pay him a fixed sum of money by instalments. There was no meeting at which there was a discussion along the lines of the email set out at [91]. Nor was there any earlier agreement along the lines set out in that email.[113]
[113] ts 229; ts 259 - ts 260; ts 265 (Curtis).
Mr Bailey arranged for his colleague Ms Forrest to draft the document.[114] There are some discussions and emails between Mr Coyne, Mr Bailey and Ms Forrest over the next few days.[115] Of particular significance, is the following comment by Mr Coyne which appears in an email to Mr Bailey on 27 August 2019:[116]
Hi Chris
Thanks for your prompt response, if we could finalise the agreement over the phone that would be great. I think we will need to catch up when we get his response. I'm expecting there will be some push back on the terms around information on sales of the camps. Its important that I am at the minimum covered to receive all of the agreed finders fee. We should also include a pay no later date of 21/03/2020. (End date of Project and his cash flow)
Do you think this agreement should also be sent to his solicitor?
Kind Regards
Marc Coyne
[114] ts 120 (Forrest).
[115] ts 61; ts 167 - ts 170 (Coyne); ts 120 - ts 121 (Forrest); exhibit 2, pages 100 - 111.
[116] Exhibit 2, page 120.
The communications resulted in Ms Forrest emailing a draft of a deed to Mr Coyne on 28 August 2019.[117] Mr Coyne marked up some changes and on 29 August 2019 emailed it back to Ms Forrest, along with some further information in a subsequent email that day.[118] Later that day, Ms Forrest sent Mr Coyne a further draft of the deed.[119]

3.9 Events in September 2019

[117] Exhibit 2, page 112.

[118] Exhibit 2, pages 116 - 126.

[119] Exhibit 2, pages 127 - 129.

On 2 September 2019, Mr Coyne sent Mr Curtis an email in the following terms:[120]
Geoff,
As discussed please see attached a draft copy of the Deed relating to the BHP Deconstruction Project for your review,
If you have any comments or changes please let me know.
Thanks
Marc Coyne
The email attached a draft of the deed, which I will refer to as the '2 September draft'.[121]
[120] Exhibit 1, page 562.
[121] Exhibit 1, pages 562 - 574; exhibit 2, pages 63 - 74.
In relation to this email, Mr Coyne gave the following evidence (my emphasis in italics):[122]
Yeah, so this is the - this - once I've gotten these agreements put together, I then sent Geoff a copy for review which was - the - the conversation that we'd had previously was, 'Put something together and then we'll have a look at it and - and review it'.
[122] ts 62 (Coyne).
The 2 September draft is a deed between Mr Coyne and GSC. The recitals are in the following terms:[123]
RECITALS
(A)In June 2018, Coyne presented GSC with the opportunity to tender for the Project.
(B)Coyne prepared, presented and won the tender for the Project for GSC.
(C)In consideration of Coyne winning the tender for the Project for GSC, Coyne and GSC agreed to share the Net Profit equally (Original Agreement).
(D)Under the Original Agreement, GSC is required to pay Coyne an amount equal to 50% of the Net Profit (Profit Share).
(E)In lieu of GSC paying the Profit Share to Coyne, the Parties have agreed that Coyne will be paid the Project Payment on the terms of this Deed.
[123] Exhibit 2, pages 63 - 74.
Clause 1.1 relevantly defines the following terms:
(a)'Net Sales Proceeds' means the 'net sale proceeds derived from the sale of the Project Assets after payment of all reasonable selling costs;
(b)'Original Agreement' has 'the meaning in Recital (C)';
(c)'Profit Share' has 'the meaning in Recital (D)';
(d)'Project Payment' means 'the sum of $790,000';
(e)'Project' means 'the refurbishment, repair, replacement, demolition, deconstruction and demobilisation of accommodation camps in various locations including Newman, Kurra, Redmont, South Flank, Jocelyn and Yandi as part of the BHP Camp Closures programme pursuant to a Works Contract (Contract Number: W01025-040) between CPB Contractors Pty Limited and GSC';
(f)'Project Assets' means 'all assets acquired by GSC as part of the project, including camp buildings and copper'; and
(g)'Released Matters' means:
… any Claim or matter arising directly or indirectly out of, or in any way connected with:
(a)the Project, including the tender for the Project; or
(b)the Original Agreement, including Coyne's entitlement to the Profit Share.
Clause 2 contains an acknowledgement:
2.ACKNOWLEDGEMENT
The Parties acknowledged that:
(a)as at the date of this Deed, GSC has paid $75,000.00 to Coyne under the Original Agreement in part payment of the Profit Share (Profit Share Payment);
(b)Coyne is entitled to retain the Profit Share Payment; and
(c)GSC must pay the Project Payment to Coyne in addition to the Profit Share Payment.
The main operative clauses are cl 3.1 and cl 3.2, which are as follows:
3.PROJECT PAYMENT
3.1Project Payment
GSC agreed to pay the Project Payment to Coyne, and Coyne agreed to accept payment of the Project Payment in lieu of any further payment of the Profit Share, on the terms of this Deed.
3.2Payment of Project Payment
(a) GSC must pay the Project Payment to Coyne as follows:
(i)by seven (7) equal monthly instalments of $25,000.00 payable on the last day of each month commencing on 31 August 2019;
(ii)by paying an amount equal to 30% of the Net Sale Proceeds received by GSC in respect of the sale of each Project Asset within 14 days of the date of sale; and
(iii)the balance of the Project Payment (if any) on 31 March 2020.
(b)For the avoidance of doubt, the Parties acknowledge and agree that the payments due to Coyne under clause 3.2(a) must not exceed the amount of the Project Payment.
Clause 6 contains mutual releases:
6.RELEASE
6.1Release of GSC
Subject to clause 6.3, Coyne releases GSC from all Claims of any kind whatsoever which in any way arise directly or indirectly out of the Released Matters which he has had, or at any time might, but for this Deed, have and this Deed may be pleaded in bar by GSC to any such Claim by Coyne.
6.2Release of Coyne
Subject to clause 6.3, GSC releases Coyne from all Claims of any kind whatsoever which in any way arise directly or indirectly out of the Released Matters which it has had, or at any time might, but for this Deed, have and this Deed may be pleaded in bar by Coyne to any such Claim by GSC.
6.3Limit of Releases
Clause 6.1 and 6.2 do not release a Party from that Party's express obligations and liabilities under this Deed.
Clause 7 provides that by executing the deed, each party makes no admission of liability in relation to any of the Release Matters.
Clause 8 contains mutual covenants not to sue:
8COVENANT NOT TO SUE
8.1Coyne Covenant
Coyne covenants with GSC not to claim, sue or take any action against GSC in respect of the matters released by Coyne under clause 6.1.
8.2GSC Covenant
GSC covenants with Coyne not to claim, sue or take any action against Coyne in respect of the matters released by GSC under clause 6.2.
The balance of the terms of the 2 September draft contains other terms set out in Mr Coyne's email to Mr Bailey on 26 August 2019, with the addition of common boilerplate clauses for a deed of this type.
Mr Curtis gave evidence that he received the email of 2 September 2019 but did not read the deed or respond to the email. His response was that he was not interested in any deed or contract arrangement. He does not recall suggesting any changes to such a deed.[124]
[124] ts 226; ts 229 - ts 230; ts 271 (Curtis).
Mr Coyne then gave evidence of a phone conversation between him and Mr Curtis:[125]
Do you recall receiving a response in any form from Mr Curtis?‑‑‑Yeah, so not long after that, probably the same day, I got a phone call from Mr Curtis. He was a little bit upset by the content of the - or the way that it was put together. He said it was - there no need for me to engage with a lawyer and that it would be better to just put it on a piece of paper myself and then we both sign it, to which I said, 'You know, with this amount of money, I can't afford not to engage with a professional to put something together so you know, this is the way that it would have to - have to be'. And in that conversation, he said, 'All right. We'll have a look at it and we'll set up another meeting to - to - to run through it'.
[125] ts 63; also ts 174 - ts 176 (Coyne).
Mr Curtis' evidence of this phone call is slightly different:[126]
He had called me on the phone and said he was sending me a draft deed. And I asked him what it was for. And I said to him, 'Don't bother. I'm not interested.'
Do you know when that conversation was?‑‑‑I don't know exactly.
He does not recall suggesting any changes to such a deed.[127]
[126] ts 268 - ts 269 (Curtis).
[127] ts 271 (Curtis).
As to why he was not interested, Mr Curtis gave this evidence:[128]
Yes, but of course, that's not a reason to not be interested, that's a reason to refer it to a lawyer?‑‑‑And also, I wasn't interested because if you're asking me why I wasn't interested, it's because Mr Coyne had not delivered on his commitments to us as an employee. I didn't wish to go any further.
When you say, "Interested," do you mean you had no desire to enter into a formal legal arrangement with Mr Coyne or it did not pique your interest?‑‑‑I had no desire to enter into a formal arrangement with - with Mr Coyne
[128] ts 303 (Curtis)
On 5 September 2019, Mr Coyne sent Ms Forrest an email in the following terms:[129]
Hi Hanna,
Please see attached revised Deed with GSC's verbal changes, could you please take a look at the changes and make sure they work.
The main change is that i have now found a buyer for one of the camps which will be sold for $900,000.00. I have changed the conditions to allow me to receive 50% of any sales made directly by me.
Also GSC has requested that some of the information around the original agreement be removed. I have no problem with this, as long as this deed covers me for the agreed amount.
Do i also need to put an exclusivity agreement in place with my buyer to cover me?
Thanks
Marc
[129] Exhibit 2, page 130.

On 6 September 2019, Ms Forrest sent Mr Coyne a further draft of the deed, and raised some queries with him.[130]
[130] ts 176 - ts 177 (Coyne); ts 122 (Forrest); exhibit 2, page 130; exhibit 7.
Mr Coyne gave evidence that by this time, he was concerned to get the deed signed:[131]
Yeah, so I - I mean, so at this point, I'm obviously concerned and wanting to get something locked in. I think his reaction to the deed made me get something locked in even more so I was - I was keen to - to finalise it. And at a similar time, one of the reasons that I - I had some leverage on him at the time was that a previous - a previous colleague of mine had put me onto somebody who was looking to buy a significant amount of the buildings and I knew it was - it was a deal within the region of about a million dollars. So that was really my leverage to get the - the document signed.
[131] ts 63 (Coyne).
On 9 September 2019, Mr Coyne sent Mr Curtis an email in the following terms:[132]
Geoff,
Can you let me know if we are catching up today to finalise the Deed between myself and GSC.
Regards
Marc Coyne
[132] Exhibit 1, page 575.
Mr Coyne gave evidence that he did have a meeting with Mr Curtis, which he thought was again at Caffissimo. He did not have a good recollection as to the date. He did recall that at this meeting Mr Curtis had a hard copy of the draft deed which he had brought with him. On the hard copy Mr Curtis had marked some clauses he wanted removed, in particular in the recital.[133]
[133] ts 63 - ts 64; ts 171 - ts 174 (Coyne).
Mr Curtis gave evidence that he could not recall receiving the email of 9 September 2019 from Mr Coyne and could not recall responding to it. He does not recall a meeting with Mr Coyne on 9 September, though he was meeting with Mr Coyne from time to time.[134]
[134] ts 269 - ts 270; ts 303 (Curtis).
Mr Coyne submitted to GSC an invoice dated 10 September 2019.[135] It was again in the name of 'El Raco Australia'. The invoice was for $100,000, plus GST, totalling $110,000. It is said to be for 'Management Services'.
[135] Exhibit 2, page 92.
Mr Coyne submitted to GSC an invoice dated 12 September 2019.[136] It was in the name of the 'Coyne Family Trust'. The Coyne Family Trust was created on 12 September 2019. The trustee is Mr Coyne's wife, Leanne Coyne. The two of them are the primary beneficiaries.[137] It was registered for GST from 16 September 2019.[138] It is not in issue that all amounts paid by GSC to the Coyne Family Trust were paid at the direction of, and for the benefit of, Mr Coyne.[139] The invoice was for $89,256 plus GST, totalling $98,181.60. It is said to be for 'Management Services'.
[136] Exhibit 2, page 93; ts 67 (Coyne).
[137] ts 67; ts 107 - ts 108; ts 130 (Coyne); exhibit 9.
[138] Exhibit 3.
[139] ts 69; ts 136 (Coyne); ts 223, ts 278 (Curtis).
Around this time, Mr Coyne and his wife were in the process of purchasing a block of land on which to build a house. He was in communication with his finance broker as to the source of the funds with which he was to complete the purchase of the land. Those communications refer to a deed relating to a 'previous business deal' pursuant to which he was owed $800,000, which was to be paid overtime. He had extended the time for finance approval for purchase of the land to 23 September 2019.[140] Settlement of the purchase of the block of land ultimately took place on 15 October 2019.[141]
[140] See generally: ts 67 - ts 68; exhibit 1, pages 576, 578 - 588; exhibit 2, pages 22 - 27.
[141] Exhibit 1, page 591.
Mr Coyne gave evidence that the somewhat odd amount of $89,256 was the amount of money he needed in order to complete the purchase of the block of land, 'to the last cent'.[142]
[142] ts 67; ts 69 - ts 70 (Coyne).
Mr Curtis gave evidence that the amount of $89,256 had no special significance to him, and that to him it was just the amount which Mr Coyne invoiced GSC for the work which he had done. Mr Curtis was 'happy enough with the amount' so paid it. He could not recall a conversation with Mr Coyne to the effect that Mr Coyne had requested to be paid the amount of $89,256 because he needed this amount to purchase a block of land.[143] And:[144]
GETHING DCJ:   I think one - one germane question would be why was the amount of $89,256 struck?
KEATING, MR:   Why did you see that as reasonable?
GETHING DCJ:   What - what's - what's the - it's a very specific number. Where does it come from?‑‑‑Well, that's a - that's an amount he invoiced me for for the work that he'd performed.
It's - it's just an odd number because all the rest of them are nice, round numbers?‑‑‑Yes, it is.
Does it have any significance to you?‑‑‑It doesn't have any significance to me other than at that time he was carrying out several tasks for us. I can't throw much more light on it than that.
[143] ts 308 - ts 309 (Curtis).
[144] ts 308 (Coyne).
Mr Coyne submitted to GSC a second invoice dated 12 September 2019.[145] It was again in the name of the 'Coyne Family Trust'. The invoice was for $100,000 plus GST, totalling $110,000. It is said to be for 'Management Services'.
[145] Exhibit 2, page 94.
At around this time, Mr Coyne had introduced Ground Constructions Pty Ltd (Grounded) to GSC. Grounded were interested in purchasing approximately 60 buildings from the Kurra Village campsite, which was one of the camp sites which GSC was in the process of decommissioning.[146]
[146] ts 225 - ts 226 (Curtis)
Mr Curtis gave evidence that he told Mr Coyne if he was able to secure the sale to Grounded, he would receive a fee of about 10% of the sale value. However, the fee was reduced, in Mr Curtis' words, 'because the client reached in and charged me for the buildings'. This conversation took place in September or October 2019.[147] In cross‑examination, Mr Curtis' position shifted, something I will return to in detail later ([208]):[148]
[147] ts 226 - ts 227; ts 265 - ts 266 (Curtis).
[148] ts 320 (Curtis).
As to the dynamics of what was occurring at this time, Mr Coyne gave evidence that he had some leverage over Mr Curtis:[149]
Can you just take the - explain the circumstances by which that - or the conversations between you and Mr Curtis by which firstly that amount was agreed, set and then agreed to pay it? I mean how do we - because we've got a gap. At the moment we've got you meeting on the 9th?‑‑‑Yeah.
And then we've got this being paid on the - on the 12th I think. So - so take us through how we get from that meeting to this amount being paid?‑‑‑Yeah, so I like I said I had the - had the leverage on Mr Curtis of the building sale that he wanted.
Yes?‑‑‑So my conversations were with him is that I wanted to settle this deal, cause a deal with you and in order to make that happen I also need a - a substantial payment upfront rather than being drip-fed in order to make my commitment to it with the house build.
And - and where did you discuss - where and when did you discuss that with Mr Curtis?‑‑‑So that was at the cafe sort of in Vic Park.
And was - and when did you tell him the amount?‑‑‑I believe after that we actually went back to - to my office in Vic Park and I actually brought a spreadsheet up on the computer and showed him what I needed and when I needed.
[149] ts 68 (Coyne).
On 18 September 2019, GSC paid Mr Coyne the amount of $98,181.60, being $89,256 plus GST.[150]
[150] Exhibit 1, page 589; DSASC, par 16(d).
On 19 September 2021, Mr Coyne sent an email to Mr Curtis stating:[151]
Geoff,
Please see attached updated Deed, with everything we discussed removed,
We will back date this to 17/09/2019 as you have already made the initial payment, let me know if you are happy with this as is or if you require any further changes.
Thanks
Marc Coyne
It contained a further draft of the deed, which I will refer to as the '19 September Draft'.[152]
[151] ts 179 - ts 181 (Coyne); exhibit 1, page 592.
[152] Exhibit 1 pages 593 - 604; Exhibit 2, pages 75 - 86.
Mr Coyne gave evidence that he, and not Ms Forrest, made this last suite of alterations to the draft deed. He did so as 'engaging with lawyers is an expensive process'. The amendments he made were based on the 'conversations and mark-ups' from Mr Curtis.[153]
[153] ts 180 - 186 (Coyne).
The Williams + Hughes watermark on the front page has been removed from the front page.[154]
[154] ts 125 (Forrest); exhibit 1, page 593.
The recitals have been amended to read:
RECITALS
(A)Under the Original Agreement, GSC is required to pay Coyne an amount equal to 50% of the Net Profit (Profit Share).
(B)In lieu of GSC paying the Profit Share to Coyne, the Parties have agreed that Coyne will be paid the Project Payment on the terms pf this Deed.
The term 'Project Payment' is defined in cl 1.1 to mean 'the sum of $800,000'. The definition of 'Profit Share' has been removed. The definition of 'Original Agreement' is 'has the meaning in Recital Error! Reference source not found'. The definition of 'Released Matters' was amended to read:
Released Matters means any Claim or matter arising directly or indirectly out of, or in any way connected with:
(a) the Original Agreement, including Coyne's entitlement to the Profit Share.
The other definitions set out in [101] are the same.
Clause 2 is as set out at [102]. Clause 3.1 is the same as set out at [103]. Clause 3.2 has been amended:
3.2Payment of Project Payment
(a) GSC must pay the Project Payment to Coyne as follows:
(i) by an initial payment of $89,256.00
(ii) by seven (7) equal monthly instalments of $25,000.00 payable on the last day of each month commencing on 31 October 2019;
(iii) by paying an amount equal to 30% of the Net Sale Proceeds received by GSC in respect of the sale of each Project Asset within 14 days of the date of sale; and
(iv) the balance of the Project Payment (if any) on 31 February 2020.
(b)For the avoidance of doubt, the Parties acknowledge and agree that the payments due to Coyne under clause 3.2(a) must not exceed the amount of the Project Payment.
The balance of the deed is unchanged from the 2 September draft.
As to what happened next:[155]
[155] ts 70 - ts 71 (Coyne).
What happened next?‑‑‑So we - after that there was a verbal conversation between me and Geoff that he was happy with ‑ with those terms and happy with the - the backdating of - based on the fact he'd made the payments.
Do you remember where that conversation occurred?‑‑‑Yeah, I believe that was over the phone.
Sorry, I missed that?‑‑‑I believe that was over - over the phone.
Over the phone?‑‑‑Yeah.
Thank you. And so what happened after that phone conversation?‑‑‑So I believe after that phone conversation I think that was where we were close to or I was close to bringing a deal in with [Gounded] Construction for the… land sale. But I was - so I was in discussion with… Mr Curtis about that deal but I also was withholding the deal from going through until I had a signed contract. So between that time and the point where we met again to - to - to establish the … signed deed was basically me trying to push that and get that done.
Did you say that expressly to Mr Curtis?‑‑‑Yeah, there would have been a lot of conversations between that time and the time that…we met in order to - so there was ‑ there was a lot of toing and froing, it was a bit of a, you know, there was - there was more talk about the actual ‑ him wanting to make sure that the deal I had on the table was - was - was firm. So there was a lot of talk about that deal.
The deal you had in - on the table, referring to?‑‑‑The [Grounded] Construction sale which they were interested in buying a large amount of buildings.
Okay. So [Grounded] Construction were interested in buying?‑‑‑Yes.
A large number of the dongas?‑‑‑Yeah, from Geoff.
Part of the camps project?‑‑‑Yeah.
Mr Coyne gave evidence that after 19 September 2019 he was regularly talking to Mr Curtis, including discussions about the deed. In these conversations, among other things, Mr Coyne had requested Mr Curtis sign the deed. At that point, there was no reason for him to think that Mr Curtis was not going to honour the deed.[156]
[156] ts 197 - ts 199 (Coyne).
As to the email at [128], Mr Curtis' evidence was:[157]
Do you recall having received a further email in which he said that you had made changes to the draft and that he was now sending you a final draft?‑‑‑He may have sent the email to me but I certainly didn't make any changes to any document.
[157] ts 230 (Curtis).
In cross-examination, Mr Curtis gave evidence that he did not recall ever receiving the 19 September 2019 email.[158]

3.10 Events in October 2019

[158] ts 304 - ts 305 (Curits).

The next significant event is where Mr Coyne asserts Mr Curtis agreed to be bound by the 2019 Deed. The way this occurred is best expressed in the evidence given by Mr Coyne:[159]
Okay?‑‑‑So yeah, so after that I'm not sure exactly the date, but sometime within days or weeks after that I finally pinned down Mr Curtis to a - another meeting which I believe happened in - in our office in the meeting room ‑ ‑ ‑
So, "Our office," meaning?‑‑‑In Hawthorn Construction Services Office. So, we had a meeting and that was really the - the - the tipping point of, you know, I need a signed document or this deal's not going to happen and after some toing and froing and conversations, he eventually - he eventually handed a - a USB stick with the signed deed to me.
…
Did he say anything to you while handing over that USB?‑‑‑Yeah. I can't remember the exact words but it was along the lines of - of "Here's the signed deed that" - yeah, there was - there was a bit more, I - I can't - yeah, I can't remember the actual conversation around that time but it was - yeah, the - we both (indistinct) at that point, he - he was doing everything he - he could not to execute the deed. We didn't need to do that but then eventually I'd - I pushed that much, I said I'm not going to - I'm not going to continue with the deal then, we'll just have to say goodbye to the deal…
So, there was - he was a - there was a conversation there and there - there was some - in that conversation there was - there was some pushback from Geoff to - to hand over the signed deed but like I said, the - the biggest thing that I had in my favour at that point was that - was that deal which was a significant deal, it was - it was around a million dollars. So, yeah, eventually he - he - he put the stick in, he - I don't know what he did but - and then he handed it over to me.
And then - and then handed the stick over to me‑ ‑
I recognised the thumb drive because a lot of the time we passed information via thumb drive and it was actually one of my thumb drives that I'd previously given to him so I recognised it, so he - he pulled his laptop bag out, opened his laptop, pulled the thumb drive out, put it into his laptop, switched his laptop on, I - I don't know how - it would have been a couple of minutes that passed during that - that time and then he said, "Here you go. Here's your signed contract." And that was - that was it. I - I immediately put it in my laptop…
At the meeting I had my laptop there, yeah. I plugged it in my laptop, give it a quick check that it was signed. I was happy that it was signed and everything was - was - was hunky‑dory, I was - I was happy. I mean, and to be honest with you, the - the relationship at that point was still good, like it wasn't a bad relationship, it was still a good relationship. I just had a feeling that he didn't want to honour what we'd - what - what we'd agreed. So, there was a lot of - like there was, you know, it's - there was a big deal on the table of a million dollar sale, so it was in his interests to - to keep a good relationship.
[159] ts 71 - ts 73; also ts 200 - ts 205 (Coyne).
Mr Coyne gave evidence that he copied the deed he received onto his laptop.[160]
[160] ts 73 (Coyne).
Mr Coyne gave evidence that he cannot recall the precise date on which the meeting with Mr Curtis took place at which he was handed the executed deed.[161]
[161] ts 75 - ts 76 (Coyne).
On 8 November 2019 Mr Coyne sent a copy of the deed to his wife's email address, being the version which Mr Curtis gave to him (his evidence on this point was not challenged in cross‑examination).[162] Mr Coyne did this so he had another copy of the deed. It is this version of the deed which he seeks to enforce, and which I have referred to as to 2019 Deed. This document is in the same terms as the 19 September draft, save that it has been executed.
[162] ts 73 - ts 74; ts 200(Coyne); exhibit 1, pages 605 - 608; exhibit 2, page 1; exhibit 8 (colour copy).
The 2019 Deed on its face purports to be executed by Mr Coyne, witnessed by his wife. Mr Coyne gave unchallenged evidence that he executed the 2019 Deed, and that was it witnessed by his wife.[163] There is then a signature block in the usual terms for GSC. It contains an electronic signature purporting to be that of Mr Curtis, on a line above the words 'Signature of *Director/Sole Director and Sole Secretary (*strike out as applicable)'. The words 'Geoffrey Curtis' are typed in a different font above the words in the document 'Full Name (please print)'.
[163] ts 74; ts 199 - ts 200 (Coyne).
Mr Curtis gave evidence that what the events Mr Coyne described did not take place. He said that he does not have the computer skills to have done the type of operation described. He does have an electronic signature, but the only person who is authorised to attach it to a document was his office manager, Ms Te Brinke. He has never personally attached an electronic signature to a document, as he does not know how to. He did say that the signature looks like his signature, but he did not authorise anyone to affix his signature to this document. In fact, the first time he saw his signature on this document was at his lawyer's office, once it had been provided to them by Williams + Hughes.[164]
[164] ts 230 - ts 231; ts 272 - ts 276; ts 309 - ts 312 (Curtis).
I return to this factual dispute issue in section 4.8.
Mr Coyne submitted to GSC an invoice dated 12 October 2019.[165] It was again in the name of the 'Coyne Family Trust'. The invoice was for $50,000 plus GST, totalling $55,000. It is said to be for 'Management Services'.
[165] Exhibit 2, page 95.
On 28 October 2019, GSC paid Mr Coyne $55,000.[166]

3.11 Events in November 2019

[166] DSASC, par 16(d).

As mentioned, on 8 November 2019, Mr Coyne sent a copy of the 2019 Deed to his wife's email.[167]
[167] Exhibit 1, pages 605 - 608; exhibit 2, page 1; exhibit 8 (colour copy).
The negotiations between Mr Coyne and Grounded appear to have continued through into November and December of 2019. In evidence there are email communications between Mr Coyne, a Mr Natoli of Grounded and Mr Curtis around the middle of November 2019 dealing with this transaction.[168]

3.12 Events of December 2019

[168] ts 77 - ts 79 (Coyne); exhibit 1, pages 618 - 624.

By email dated 9 December 2019 to Mr Curtis, Mr Coyne submitted invoices for November and December.[169] The November invoice was dated 1 November 2019.[170] It was in the name of the 'Coyne Family Trust'. The invoice was for $50,000 plus GST, totalling $55,000. It is said to be for 'Management Services'. The December invoice was dated 1 December 2019.[171] It was in the name of the 'Coyne Family Trust'. The invoice was for $50,000 plus GST, totalling $55,000. It was said to be for 'Management Services'.
[169] ts 79 - ts 80 (Coyne); exhibit 1, pages 625, 638.
[170] Exhibit 1, page 640; exhibit 2, page 96.
[171] Exhibit 1, page 639; exhibit 2, page 97.
On 18 December 2019, Mr Coyne sent Mr Curtis an email in the following terms:[172]
Geoff,
As discussed today payment of my November and December invoices are critical now. I will also prepare an invoice for 30% of the sale of the building sale with Grounded, the full payment from Grounded should be by the end of this month. These payments and the Jan/Feb invoices are critical to me in order to meet my commitments on 15/2/2020. The remaining balance can then be spread over smaller payments in order to ease cash flow.
Give me a call or we can discuss further on Monday
Thanks
Marc Coyne
[172] Exhibit 1, page 625; ts 79 (Coyne).

Mr Coyne's case is pleaded on the basis of cascading alternatives:[219]
5A.By reason of the matters pleaded at [3I] and [4] above, the 2019 Deed is binding upon GSC Contracting.
5B.In the alternative to [5A], by reason of the matters pleaded at [3E] to [3G], the Revised Fixed Payment Agreement is binding upon GSC Contracting.
5C.In the alternative to [5A] and [5B], by reason of the matters pleaded at [3B], the First Fixed Payment Agreement is binding upon GSC Contracting.
5D.In the alternative to [5A], [5B] and [5C], by reason of the matters pleaded at [2] to [3A], the Profit Share Agreement is binding upon GSC Contracting.
Performance and breach of the 2019 Deed, alternatively the Revised Fixed Payment Agreement, alternatively the First Fixed Payment Agreement (whichever is found to apply being the 'Applicable Fixed Payment Agreement')
6.Between around late August 2019 and February 2020, Mr Coyne assisted GSC Contracting in selling the Project Assets, in accordance with clause 4(a) of the Applicable Fixed Payment Agreement.
[219] SASC, pars 5A - 6.
PARTICULARS
(a)Mr Coyne introduced the deal to sell certain of the Project Assets for $1,002,100.00 to Grounded Construction Group Pty Ltd;
(b)GSC Contracting received the following payments from Grounded Construction Group Pty Ltd from the sale of the Project Assets:
(i)$50,000 on 14 November 2019;
(ii)$50,000 on 18 November 2019;
(iii)$700,000 on 10 January 2020.
(c)Further particulars may be provided following discovery.

4.3 GSC's pleaded position

GSC's pleaded position is that it denies that any of the Profit Share Agreement, the First Fixed Payment Agreement, the Revised Fixed Payment Agreement or the 2019 Deed were entered into by GSC.[220]
[220] DSASC, pars 8.10 and 13.
Rather, its position is that GSC entered into an oral contract with Mr Coyne pursuant to which he would act as GSC's construction manager and provide related services (GSC Agreement). This is set out in the Defence to the Second Amended Statement of Claim filed 11 November 2021 (DSASC), pars 15 and 16:
15.The parties entered into an oral agreement prior to the Defendant's execution of Contract W01025-040 on a date the Defendant does not recall (Oral Agreement). The Oral Agreement was made between the Plaintiff and Mr Curtis on behalf of the Defendant.
16.Pursuant to the Oral agreement:
(a)the Plaintiff would act as the Defendant's construction manager and provide related services such as estimating and pricing as and when requested by Mr Curtis on behalf of the Defendant;
(b)the Plaintiff's services and remuneration pursuant to the Oral Agreement would be subject to assessment by the Defendant with regard to the work performed by the Plaintiff, and:
(i)rates generally applying within the industry;
(ii)ongoing agreement between the parties from time to time including on the issue of invoices from the Plaintiff;
(iii)commence on a monthly payment equivalent to $250,000 per annum plus 9.5% per annum inclusive of GST;
(c)the Plaintiff introduced Grounded Construction Group Pty Ltd (GCG) to the Defendant;
(d)the Plaintiff invoiced the Defendant who made the following payments in consideration for all of the services provided by the Plaintiff pursuant to the Oral Agreement:

Date of Payment Amount

09/05/2019 $ 25,093.75

11/06/2019 $   25,093.75

08/07/2019 $   25,093.75

18/09/2019 $ 98,181.60

28/10/2019 $ 55,000. 00

27/12/2019 $ 50,000.00

20/01/2020 $   25,000.00

31/01/2020 $ 100,000.00

10/02/2020 $ 100,000.00

04/03/2020 $ 25,000.00

$ 528,462.85

4.4 Findings on credibility

I have no hesitation in finding that the evidence of both Ms Forrest and Ms Te Brinke was honest, accurate and, to the extent of their recollection, reliable. Each gave evidence to the best of their recollection, and was quite willing to tell the court when they could not recall specific facts.
It is readily apparent that there is a direct conflict in the evidence of Mr Coyne and Mr Curtis, in particular as to whether there was:
(a) a meeting between Mr Coyne and Mr Curtis on 26 August 2019 at which a profit sharing agreement was at least discussed, if not agreed; and
(b)a subsequent meeting between 19 September 2019 and 9 November 2019 at which Mr Curtis handed Mr Coyne an electronic copy of the 2019 Deed with his electronic signature inserted in the signature block.
This conflict needs to be resolved in the context of the evidence as a whole.
More generally, it was readily apparent that both Mr Coyne and Mr Curtis were poor historians.
Mr Coyne, for example, could not recall the date on which the meeting in [190(b)] is said to have occurred.[221] As counsel for Mr Curtis pointed out in cross-examination, Mr Coyne gave three different dates to his lawyers as reflected in the amendments to his pleaded case.[222]
[221] ts 71; ts 196 (Coyne).
[222] ts 196 (Coyne).
However, there are seven aspects of Mr Curtis' evidence which cause me to have some concerns as to the honesty, accuracy and reliability of his evidence as a whole.
The first aspect of concern in Mr Curtis' evidence was the recurring theme in his evidence seeking to minimise his involvement with Mr Coyne. He initially said that he did not receive any assistance from Mr Coyne in preparing the pricing submissions by GSC to LOR or CPB.[223] However, the emails in evidence are clearly to the effect that he did, and that it was provided by Mr Coyne. Mr Curtis then gave evidence that in relation to the emails he sent to '[email protected]', he did not recall whether he was dealing with Mr Coyne or his business partner Mr Woods. As set out at [58], I do not accept his evidence in this regard.
[223] ts 215; ts 287 (Curtis).
The second aspect of concern in Mr Curtis' evidence is that he did not give evidence to the effect that the agreement he had with Mr Coyne was based on a monthly equivalent payment to '$250,000 plus 9.5% per annum inclusive of GST', as pleaded ([188]). Rather, Mr Curtis' evidence was the amounts were to be based on the work done at the time and his assessment of whether the amount was fair and reasonable ([80]). (Though I do note that the base monthly figure claimed in the invoices at [74], [83], [87] and [89] of $20,833.33 (ex GST) multiplied by 12 equals $250,000, and the 'SUP' figure of $1,979.17 is 9.5% of the monthly amount, consistent with the pleaded position, but not Mr Curtis' evidence).
A third aspect of concern with Mr Curtis' evidence is that he was not able to adequately explain the difference between: [224]
(a)the basis on which work being done by Mr Coyne was being paid for by GSC through HCS; and
(b)the basis on which GSC was regularly paying Mr Coyne personally significant sums of money.
[224] ts 279 - ts 280 (Curtis).
This is most acute in mid‑2019. In May 2019, GSC paid Mr Coyne (through El Raco) directly $22,812.50 (ex GST) and paid HCS $26,460 for the 189 hours performed that month by Mr Coyne, allocated to 'BHP Camps'. In June 2019, GSC paid Mr Coyne directly $22,812.50 (ex GST) and paid HCS $12,800.50 for the services of Mr Coyne that month, allocated to 'BHP Camps'. In July 2019, GSC paid Mr Coyne directly $22,812.50 (ex GST) and HCS $25,601 (ex GST) for Mr Coyne's services that month, allocated equally between 'BHP Camps' and another project referred to as 'Goldsworthy'.[225] In cross‑examination, Mr Curtis said that he did not think it was implausible that during May 2019 Mr Coyne did 189 hours work for GSC through HCS and another 50 to 70 hours in his personal capacity.[226] His explanation is implausible to me. On the other hand, the evidence of Mr Curtis provides an adequate and plausible explanation for this series of events.
[225] See [68] above.
[226] ts 280 (Curtis).
A fourth aspect of concern in Mr Curtis' evidence is that, in my view, his explanation as to why he did not respond to the emails from Mr Coyne concerning the negotiation of the proposed deed is implausible. A recurring answer was that he did not read what was in an email because he was 'not interested' in what it said, and that he just ignored it.[227] Given the detailed and ongoing interactions between Mr Curtis and Mr Coyne over the period from August 2019 to January 2020, and the amount of money GSC paid out to Mr Coyne, I do not regard a response of 'not being interested' to be a plausible explanation as to Mr Curtis' apparent lack of response; acquiescence is a far more likely explanation.
[227] See for example: ts 230; ts 268; ts 302 - ts 303; ts 305 - ts 306; ts 324 - ts 325 (Curtis).
A fifth aspect of concern in Mr Curtis' evidence is his explanation as to the payment to Mr Coyne of the amount of $89,256 (ex GST) on 18 September 2019. Mr Curtis said this amount had no special significance ([122]), yet it was significantly in excess of what he had paid to that date and in a peculiar and specific amount. Mr Coyne's evidence is much more plausible, being that the amount was the precise amount he needed to settle the block on land he was purchasing ([121]).
A sixth aspect of concern in Mr Curtis' evidence is what he said about the performance of Mr Coyne. On Mr Curtis' evidence, the payments GSC made to Mr Coyne were based on the work he did and his performance ([72], [80]). However, as early as September 2019, Mr Curtis was saying that he was having issues with Mr Coyne's performance. In response to a question as to why he was not interested in any formal agreement with Mr Coyne, he said:[228]
And also, I wasn't interested because if you're asking me why I wasn't interested, it's because Mr Coyne had not delivered on his commitments to us as an employee. I didn't wish to go any further.
[228] ts 303 (Coyne).
Yet, on 28 October 2018, GSC paid Mr Coyne $55,000. As to why he authorised this payment, Mr Curtis said: 'I don't recall exactly but he was working hard enough and I was happy enough with his invoice'.[229]
[229] ts 313 (Curtis).

By November 2019, Mr Curtis gave evidence that the relationship had deteriorated further:[230]
All right. Can you tell us - because the evidence is that obviously you are sued by Marc Coyne so I - I'm presuming there must have been a part in ways. Can you recall why you and he parted ways?‑‑‑Yes. In his role as construction manager with us he was becoming less and less effective, less and less committed. So I basically asked him to remove himself from the project. And I stepped up my site superintendent to project manager role.
And when was that?‑‑‑That was approximately November, November, December '19.
[230] ts 231 - ts 232; also ts 267 (Curtis).
Yet again, on 27 December 2019, GSC paid Mr Coyne a further $50,000 ([152]). When asked why, his evidence was:[231]
Why did you pay that?‑‑‑Once again I was happy enough with his performance and what he was achieving.
So you were happy with Mr Coyne's performance in - on 27 December 2019?‑‑‑For work that he'd performed, yes.
[231] ts 314 (Curtis).
In total, in the period on and after 27 December 2019, CSG still paid Mr Coyne some $300,000.
Mr Curtis' explanation as to why is at odds with his evidence as to the reduced role Mr Coyne was undertaking and his lack of performance:[232]
It's your evidence that all of these payments were not money that you owed to Mr Coyne, but money that you were prepared to pay to him because just in good faith you assessed the invoices he rendered as reasonable for the work that he was doing?‑‑‑Yes.
Mr Curtis went on in his evidence to attempt to explain this inconsistency but did not do so in any convincing manner.[233] The inconsistency in the aspect of Mr Curtis' evidence is of concern.
[232] ts 325 (Curtis).
[233] ts 314 - ts 315 (Curtis).
The seventh aspect of concern in Mr Curtis' evidence is what he said about the agreement between GSC and Mr Coyne as to the payment of commission on the sale of buildings to Grounded. In evidence‑in‑chief, Mr Curtis said that in September or October 2019 he agreed to pay Mr Coyne a fee of 10% of the sale value for introducing Grounded to GSC. This amount was then reduced:[234]
Was there any discussion with you - with Mr Coyne about the sale of certain units to Grounded Pty Ltd?‑‑‑Yes, there was.
And can you tell us what that was?‑‑‑I said to Mr Coyne that if - if he was to secure the sale, then there would be a fee applicable to that sale.
…
What was the fee?‑‑‑Dependent on the quantity, the fee was around about 10 per cent of the sale value. However, that got changed because the client reached in and charged me for the buildings. So the fee became a reduction to the initial agreement.
[234] ts 227 (Curtis).
In cross-examination, this fee of 10% became 30%:[235]
I see. Now, you have previously said that all of these payments from GSC to I'll say Mr Coyne to refer to both El Raco and the Coyne Family Trust together, were - were paid on an invoice-by-invoice basis when you assessed the assessed the invoice and determined whether it was reasonable, based on the work that Mr Coyne had done. You've also given evidence that there was an arrangement, if I could call it that, that Mr Coyne would have some - would receive some commission from the sale of assets to Grounded. Can you remind me what the commission was?‑‑‑Depended on the ‑ the - the value of the sale. Somewhere between 10 and 30 per cent, just it depended on what the ultimate value was and also the fact that we had been hit with an impost from our client for the cost of buildings which weren't previously aware of.
So you had previously given evidence of it being 10 per cent and that being subject to a reduction or about 10 per cent. You've added a figure of 30 at the upper limit of the range today. Can I ask why you've now added that to your evidence?‑‑‑Well, that's because I think - that's what I think it is.
But why do you think it is that now when you didn't mention that yesterday?‑‑‑Well, I didn't recall it yesterday.
You didn't recall it yesterday. Have you refreshed your memory?‑‑‑A little.
How did you refresh your memory?‑‑‑I thought about it.
So overnight you thought about your evidence where previously you hadn't?‑‑‑Yeah.
[235] ts 319 - ts 320 (Curtis).
This change in evidence is significant given the terms of the 11 January 2020 email and attached invoice which specifically refers to a '30% fee' ([154]). Mr Curtis' refreshed memory has the hallmarks of a reconstruction to better align his evidence to the objective facts.
Having made these general points, I have taken the view that the appropriate starting point to resolve the factual disputes is to begin with the contemporaneous documents, and then assess the oral evidence against that, giving greater weight to the oral evidence corroborated by those documents.[236]

4.5 Was there a legally binding agreement in terms of the Profit Share Agreement?

[236] See for example: Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2017] FCA 507 [46] (Perry J).

Although Mr Coyne's pleaded case is based primarily on the 2019 Deed, as a matter of logic, it is necessary to work through each alleged agreement in chronological order.
I have already found that during the period June 2018 to December 2018, Mr Coyne was assisting Mr Curtis with his negotiations with both LOR and CPB by reviewing pricing information provided to him by Mr Curtis ([59]). This was in relation to the initial negotiations by GSC to LOR and the subsequent negotiations by GSC with CPB. This was not done on a one-off or isolated basis but was rather a continuing practice over this six‑month period. It is unlikely that Mr Coyne was doing this merely as part of his work for LOR. The use of the pseudonym email while he was working at LOR, and the fact that his assistance continued even after LOR had dropped out of the tender process with BHP, precludes this finding. Rather, I find that it is more likely than not that the assistance which Mr Coyne was providing was done pursuant to some personal arrangement with Mr Curtis.
Common sense dictates that there would need to be something in such an arrangement for Mr Coyne. Consequently, I find that it is more likely than not that the arrangement between Mr Coyne and Mr Curtis was at least in the terms described by Mr Curtis ([26]). This is that if GSC entered into a contract with CPB in relation to the Camps Project, Mr Coyne would like the opportunity to be considered to be involved with the project.
There are three reasons why I am not persuaded that the arrangement went any higher than this.
The first reason is that there is a level of vagueness in Mr Coyne's evidence. As I have set out at [21], Mr Coyne did not know the name of the company which Mr Curtis was then using, so the conversation was Mr Curtis personally. He only found out about GSC later.
The second reason is that the objective facts derived from the documentary record does not unequivocally point to the existence of a legally binding agreement in terms of the Profit Share Agreement. They are equally consistent with an informal arrangement in the terms described by Mr Curtis. This observation extends to the payment of the amounts in May, June and July 2019 which are equally explicable by an informal arrangement as a formal legally binding one.
The third reason is that, in the context of the first two reasons, on the evidence given by Mr Coyne as to the conversation at which he says the Profit Share Agreement was made I do not 'feel an actual persuasion of its occurrence or existence'. Put slightly differently but to the same effect, in my view, a reasonable observer to the conversation described by Mr Coyne would not have formed the view that the parties intended to immediately create a legally binding relationship.
For these reasons, Mr Coyne has not satisfied me on the balance of probabilities that he and Mr Curtis entered into the Profit Share Agreement as pleaded.

4.6 Was there a legally binding agreement in terms of the First Fixed Payment Agreement?

Counsel for Mr Curtis did not assert at trial that the emails set out in sections 3.8 and 3.9 were fabricated. Nor was there any basis in the evidence for such an assertion. There was no challenge in cross‑examination to the evidence of Mr Coyne and Ms Forrest that each email between them was in fact sent and received. Mr Curtis accepted that he received the email of 2 September 2019 ([108]) but could not recall receiving the emails of 9 September 2019 ([117]) and 19 September 2019 ([136]).
In my view, it is most implausible that Mr Coyne would have:
(a)sent to Williams + Hughes the 26 August 2019 email and instructed that firm to prepare a draft deed ([91]);
(b)liaised with Ms Forrest as to the terms of the draft deed ([96] ‑ [97]);
(c)emailed a draft of the deed to Mr Curtis on 2 September 2019 ([98]);
(d)had a telephone conversation with Mr Curtis after sending the 2 September 2019 email, a conversation which Mr Curtis accepts occurred and only disputes what was said ([110] ‑ [111]);
(e)discussed with Ms Forrest amendments to the draft deed proposed by Mr Curtis ([112] ‑ [113]);
(f)sent Mr Curtis the email of 9 September 2019 ([115]); and
(g)sent Mr Curtis a further draft of the deed by email on 19 September 2019 ([128]),
unless there was a meeting on 26 August 2019 between Mr Coyne and Mr Curtis substantially in terms in which he gave evidence ([90], [92] ‑ [94]).
However, on Mr Coyne's evidence, I am not satisfied on the balance of probabilities that at the conclusion of the 26 August 2019 meeting he and Mr Curtis had made an agreement that each intended to be immediately legally binding. This is because on four occasions when giving evidence Mr Coyne said words to the effect that the meeting concluded on the basis that Mr Curtis told him to put something on paper, send it to him, Mr Curtis would review it and they would have further discussions ([93], [94], and [99] ‑ italicised portions). On Mr Coyne's evidence, that is what in fact occurred: there were subsequent discussions and the provision of drafts as the negotiation of the terms of the draft deed progressed. For this reason, the evidence given by Mr Coyne as to the 26 August 2019 meeting does not lead me to feel an actual persuasion of the occurrence or existence of the First Fixed Payment Agreement. Put slightly differently but to the same effect, in my view, a reasonable observer to the interaction described by Mr Coyne at the end of the 26 August 2019 meeting would not have formed the view that the parties intended to immediately create a legally binding relationship.

For the same reasons, I do not accept the submission by counsel for Mr Coyne that the conversation between Mr Coyne and Mr Curtis on 26 August 2019 led to an oral agreement 'in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms'.[237] The factual basis for this conclusion is not there.
[237] Citing Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622, 628 (McLelland J). See also: Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21 [87] ‑ [94] (Buss JA, with whom McLure & Newnes JJA agreed); Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34; (1929) 43 CLR 310, 317 (Knox CJ, Rich & Dixon JJ).
For these reasons, Mr Coyne has not satisfied me on the balance of probabilities that he and Mr Curtis entered into the First Fixed Payment Agreement as pleaded.

4.7 Was there a legally binding agreement in terms of the Revised Payment Agreement?

The revised Fixed Payment Agreement is pleaded to have been made on 9 September 2019, orally, and at Caffissimo in Victoria Park.
Mr Coyne only had a limited recollection of this meeting. His key recollection is that Mr Curtis had a copy of the draft deed which he had brought with him and which he had marked some clauses he wanted removed, in particular in the recital ([116]). In my view, Mr Coyne's evidence is to the effect that this was another discussion about the terms of the draft deed. I am not satisfied that it went any higher than that. Specifically, even accepting Mr Coyne's evidence, I do not feel an actual persuasion of the occurrence or existence of the revised Fixed Payment Agreement. Again, put slightly differently but to the same effect, in my view, a reasonable observer to the interaction described by Mr Coyne at the meeting on or shortly after 9 September 2019 would not have formed the view that the parties intended to immediately create a legally binding relationship. Rather, the reasonable observer would have seen this as another meeting at which the parties were negotiating the terms of the yet to be concluded agreement.
For these reasons, Mr Coyne has not satisfied me on the balance of probabilities that he and Mr Curtis entered into the Revised Fixed Payment Agreement as pleaded.

4.8 Was there a legally binding agreement in terms of the 2019 Deed?

It is not in issue that during the period from May 2019 to March 2020 GSC paid Mr Coyne (to entities at his direction) the sum of $528,462.85. This is in addition to the $1,467,959.16 paid by GSC to HCS, which included $136,628.59 for the work of Mr Coyne.
Common sense and commercial reality strongly suggests that there was some arrangement between Mr Coyne and GSC pursuant to which this was done. The case was fought on the premise that there are two bases on which this occurred:
(a)Mr Coyne's case that it occurred pursuant to the terms of the 2019 Deed, and the Profit Share Agreement which preceded it; and
(b)GSC's case that it occurred pursuant to either the GSC Agreement as pleaded ([188]) or the more flexible version of it described by Mr Curtis ([72], [80]).
To succeed in the action, GSC does not have to persuade the court on the balance of probabilities that the legal relationship between it Mr Coyne was in terms of the GSC Agreement or some variation of it. Rather, all it has to do is to present evidence and submissions to the effect that the court should not be persuaded on the balance of probabilities that GSC and Mr Coyne entered into the 2019 Deed as pleaded.
There are six reasons from which I conclude that Mr Coyne has proven on the balance of probabilities that he and GSC entered into the 2019 Deed as pleaded.
The first reason is that Mr Coyne has in his evidence provided a plausible explanation as to how he came to be in possession of a version of the 2019 Deed with Mr Curtis' electronic signature embedded in it. It is not in dispute that Mr Coyne sent a copy of the 2019 Deed with an electronic signature purporting to be that of Mr Curtis embedded in it to his wife's email address on 8 November 2019. Indeed, Ms Te Brinke found it on GSC's email system in the process of preparing discovery.[238] Moreover, Mr Curtis accepted that the signature looked like his.[239] So the issue becomes how Mr Coyne came to be in possession of it. As I have said, his explanation is plausible.
[238] ts 336 (Te Brinke).
[239] ts 273 - ts 274 (Curtis).
Mr Curtis gave evidence that he does not know how to insert an electronic signature into a document [143]. However, the version of the 2019 Deed sent to him on 19 September 2019 was in 'docx' form. As Ms Te Brinke acknowledged when giving evidence, one can use a clipping tool to take an electronic signature from document and copy and paste it into a MS Word document.[240] Ultimately, Mr Curtis' evidence that he did not know how to insert an electronic signature into a document is tied up with this evidence that the events as described by Mr Coyne did not in fact occur.
[240] ts 340 (Te Brinke).
The second reason is that there is no other plausible explanation as to how Mr Coyne came to be in possession of a version of the 2019 Deed with Mr Curtis' electronic signature embedded in it. The only evidence that someone other than Mr Curtis within GSC had the authority and capability to insert his electronic signature into a document was that in relation to Ms Te Brinke. Both she and Mr Curtis gave evidence that she had the authority to insert Mr Curtis' electronic signature into a document.[241] Ms Te Brinke described how this would occur, both in terms of obtaining Mr Curtis' authority and technical steps involved. However, her evidence was in relation to 'pdf' documents using an Adobe Pro program, which is not of immediate relevance given that the 2019 Deed receive by Mr Curtis was on 'docx' format. I accept Ms Te Brinke's evidence which was to the effect that she did not insert Mr Curtis' electronic signature into the 2019 Deed.[242]
[241] ts 231 (Curtis); ts 329 - ts 342 (Te Brinke).
[242] ts 337 - ts 338 (Te Brinke).
There is no basis in the evidence for any finding that someone else within GSC may have inserted Mr Curtis' electronic signature into the 2019 Deed by mistake or without his authority.[243]
[243] As was discussed in Williams Group Australia Pty Ltd v Crocker [2016] NSWCA 265.
Nor is there any basis in the evidence for a finding that Mr Coyne inserted Mr Curtis' electronic signature into the 2019 Deed fraudulently or as an electronic forgery. In the absence of any such evidence, quite properly this allegation was not asserted by GSC in its pleaded case, written submissions or at trial.[244]
[244] See generally: Metaxas v Legal Profession Complaints Committee [2020] WASCA 27 [65] ‑ [69] (Quinlan CJ & Pritchard JA), [161] (Mitchell JA); Trackem Pty Ltd (ACN 168 532 269) v Revenue Partners (A Partnership) [2021] WASC 245 [36].
The third reason is that the objective facts derived from the documentary record prior to finalisation of the 2019 Deed are consistent with Mr Coyne's evidence as to the circumstances leading up to the finalisation of the 2019 Deed. As set out in sections 3.8 and 3.9, and summarised at [220], this record is consistent with an initial meeting between Mr Coyne and Mr Curtis on 26 August 2019, and the subsequent discussion and provision of drafts as the negotiation of the terms of the draft deed progresses. This conclusion is consistent with, and not undermined by, my findings that there were no legally binding agreement in terms of the First Fixed Payment Agreement and the revised Fixed Payment Agreement. As I have found, Mr Coyne was providing drafts of the proposed deed to Mr Curtis to see if an agreement could be reached.
The fourth reason is that evidence of Mr Coyne as to the commercial dynamic at the time provides an explanation as to why Mr Curtis ultimately agreed to execute the 2019 Deed. This is set out at [134].
The fifth reason is that there are seven aspects of the evidence of Mr Curtis which cause me some concern, which I set out in section 4.4.
The sixth reason is that Mr Coyne's evidence is consistent with the evidence derived from the documentary record from October 2019 to March 2020, after the 2019 Deed is said to have been executed.
Parts of the documentary record are equivocal. The descriptions on the invoices rendered in October ([145]), November ([149]) and December ([149]) is 'Management Services', referable to either agreement set out at [190]. The timing of payments does not specifically match that set out in cl 3.2 of the 2019 Deed, though cl 3.4 provides that 'GSC may pay all or any part of the Project Payment at any time'.
However, three aspects of the documentary record are, in my view, more unequivocal. The first is that in cl 3.2(a)(i) of the 2019 Deed there is a specific reference to the 'initial payment of $89,256.00'. This amount was inserted into the draft provided by Mr Coyne to Mr Curtis in the email of 19 September 2019, the amount having been paid by GSC the day before. This sequence of events, in the commercial context which I have referred to at [134], point to Mr Curtis having finally agreed to GSC entering into a deed with Mr Coyne, and make a significant payment to Mr Coyne, once he formed the view that proposed agreement with Grounded was sufficiently firm to warrant moving forward in this manner.
The second is the description in the invoice attached to the email of 11 January 2020 for the asset sale. This specifically refers to a 30% fee ([154]). As set out at [206] ‑ [208], I do not regard Mr Curtis' explanation of this fee as being satisfactory.
The third is that the email of 23 January 2020 which attaches a payment schedule. The payment schedule does not match the amounts then owing under the 2019 Deed, then being $480,744 ($800,000 less the amounts paid of $89,256 ([127]), $55,000 ([146]), $50,000 ([152]) and $125,000 ([158]). However, it is consistent with there being the sort of payment agreement in place which Mr Coyne asserts and is not consistent with the type of agreement Mr Curtis said was in place between GSC and Mr Coyne.
Significantly, there is no email communication in evidence by Mr Curtis to Mr Coyne in which he disputes an obligation to pay Mr Coyne the amounts he is claiming.
For these reasons taken together, I prefer and accept Mr Coyne's evidence of what occurred at the meeting with Mr Curtis. I find that at this meeting, Mr Curtis handed to Mr Coyne a thumb drive containing an electronic copy of the 2019 Deed with his signature embedded in it. I do not accept Mr Curtis' evidence to the contrary. Nor do I accept his evidence that he did not have the technical ability to insert an electronic signature into a document. That is a sufficient finding to determine the case, and I do not need to make any stronger finding as to his evidence.[245]
[245] As to which, see: Hamilton v Pharmacy Board of Australia [No 2] [2022] WASCA 155 [34] - [35] (Fraser AJA, with whom Buss P & Mazza JA agreed).
Moreover specifically, I feel an actual persuasion of the occurrence or existence of the parties agreeing to be bound by the 2019 Deed as a result of what occurred between Mr Coyne and Mr Curtis. Again, put slightly differently but to the same effect, in my view, a reasonable observer to this interaction at the meeting would have formed the view that the parties intended from that point in time to immediately create a legally binding relationship. Or using the framework expressed by Martin CJ in Ailakis, having regard to all relevant circumstances, I objectively infer that the parties intended to create a legally enforceable contract from that point in time.
There are then two legal issues I need to address. Although described as a 'Deed', counsel for Mr Coyne was content to assert that it was legally binding as a simple contract.[246] The conclusion I have reached in [246] is sufficient for there to be a simple contract between the parties. There is thus no need for me to consider the circumstances in which a deed may be entered into by the parties affixing their signatures to it electronically.
[246] ts 348 - ts 349.
The second legal issue is the submission made by counsel for GSC that on the face of the 2019 Deed there is no consideration passing from Mr Coyne to GSC in return for the promises made by GSC. The issue here is that there are some clauses missing from the 2019 Deed. The release given by Mr Coyne in cl 6.1 is in the terms set out at [104]. The parallel covenant to not sue in cl 8.1 is tied back to the matters released in cl 6.1 ([106]).
The term 'Claim' is defined in cl 1.1 in broad boilerplate terms. The term 'Released Matters' is also defined in cl 1.1 ([132]). The term 'Profit Share' is defined in Recital A (set out at [131]). However, the term 'Net Profit' is not defined. As I have noted at [101] and [132], while the term 'Original Agreement' was defined in the 2 September draft, it was removed from the recitals and definitions in the 19 September draft and the executed version.
In my view, notwithstanding the drafting issues, applying the well‑established principles relating to the construction of a commercial contract,[247] the 2019 Deed makes it sufficiently clear that Mr Coyne has released GSC from any claim which may arise directly or indirectly out of the agreement in Recital A in which GSC was required to pay Mr Coyne certain amounts. That release is made without admission of liability by GSC (cl 7). As I have mentioned, an agreement to settle a claim is sufficient consideration. The fact that some three years later I have concluded that the claim settled was not sufficient to give rise to a legally enforceable contract does not undermine that conclusion.
[247] Cumace v Ioppolo [2022] WASCA 171 [29] (judgment of the court).
For these reasons, Mr Coyne has satisfied me on the balance of probabilities that he and Mr Curtis, on behalf of GSC, entered into the 2019 Deed, and that it was a legally enforceable contract.

What formal orders are appropriate?

As Mr Coyne has satisfied me on the balance of probabilities that he and Mr Curtis entered into the 2019 Deed, and that it was a legally enforceable contract, he is entitled to judgment in the action.
As to the amount, cl 3.1 of the 2019 Deed has the effect that the agreement is in relation to 'further payment' of the claim for a profit share. On its face, the payments are thus in addition to payments made prior to the execution of the 2019 Deed, with the exception of the amount of $89,256.00 which is specifically mentioned as the 'initial payment'. The amounts paid on 9 May 2019, 11 June 2019 and 8 July 2019 are thus excluded.
The 2019 Deed is silent as to GST. This means that the obligation on GSC is simply to pay the amounts identified in the 2019 Deed, and any GST payable on moneys received is an issue for Mr Coyne. This has the effect that the full amount of $98,181.60 paid on 18 September 2019 must be deducted from the amount which GSC is obligated to pay under 2019 Deed. In total $453,181.60 has been paid. This leaves a balance of $346,818.40. Mr Coyne is entitled to judgment in this amount.
I will hear from counsel as to interest and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LL
Associate
22 DECEMBER 2022

Invoice Date	Amount	Coyne	Invoice Description	Portion of invoice for MC
31/03/19	161,991.05	-	Labour Hire period 01/12/18 to 24/03/19 (MW, ML, MD, Cleaner) and Expense Reimbursements
26/04/19	9,791.10	-	Labour Hire period 01/04/19 to 14/04/19 (MF)
29/04/19	5,959.80	-	Labour Hire period 15/04/19 to 28/04/19 (MF)
30/04/19	111,887.68	22,820.00	Labour Hire period 01/04/19 to 30/04/19 (MC, ML, MD, SG, Cleaner) and Expense Reimbursements	GSC: Camp Project: Marc Coyne - Normal time Marc Coyne April 19, 163 hours @
14/05/19	8,584.95	-	Labour Hire period 29/04/19 to 12/05/19 (MF)
27/05/19	9,365.40	-	Labour Hire period 13/05/19 to 26/05/19 (MF)
31/05/19	143,402.67	26,460.00	Labour Hire period 01/05/19 to 31/05/19 (MC, ML, MD, SG, Cleaner) and Expense Reimbursements	GSC: Camp Project: Marc Coyne - Normal time Marc Coyne May 19, 189 hours @
30/06/19	77,005.84	12,800.50	Labour Hire period June 2019 (Goldsworthy) (MC, SG, CE, ML) and reimbursable	June Goldsworthy - Marc Coyne - 0.5 @ $25,601 per month 0065 GST = 12800.50
30/06/19	83,835.52	12,800.50	Labour Hire period June 2019 (BHP Camps) (MC, SG, CE, ML) and reimbursable	June BHP Camps - Marc Coyne - 0.5 @ $25,601 per month GST = 12800.50
31/07/19	88,081.04	12,800.50	Labour Hire period July 2019 (BHP Camps) (MC, SG, CE, ML) and reimbursable	July Goldsworthy - Marc Coyne - 0.5 @ $25,601 per month 0065 GST = 12800.50
31/07/19	83,384.23	12,800.50	Labour Hire period July 2019 (Goldsworthy) (SG, CE, ML, MC) and reimbursable, and AA Monthly Perth?	July Goldsworthy - Marc Coyne - 0.5 @ $25,601 per month 0065 GST = 12800.50
31/08/19	92,124.37	6,606.59	Labour Hire period August 2019 (BHP Camps) (MD, MF, ML, MC) and reimbursable	August BHP Camps - Marc Coyne - 0.26 @ $25,601 per month 0065 GST = $6,606.59
30/09/19	66,871.00	-	Labour Hire period September 2019 (BHP Camps) (MD, MF)
31/10/19	69,833.78	22,820.00	Labour Hire period October 2019 (BHP Camps) (MD, MF, MC)	GSC Marc Coyne Oct 19, 20 hours @ 140.00 per hour ex GST = $22,820
28/11/19	69,753.78	-	Labour Hire period November 2019 (BHP Camps) (MD, MF)
8/01/20	79,594.38	6,720.00	Labour Hire period December 2019 (BHP Camps) (MD, MF, MC) and reimbursable	GSC Marc Coyne Dec 19, 48 hours @ 140.00 per hour ex GST = $6,720
31/01/20	66,753.78	-	Labour Hire period January 2020 (BHP Camps) (MD, MF)
27/02/20	66,871.00	-	Labour Hire period February 2020 (BHP Camps) (MD, MF)
31/03/20	68,842.76	-	Labour Hire period March 2020 (BHP Camps) (MD, MF)
30/04/20	66,753.78	-	Labour Hire period April 2020 (BHP Camps) (MD, MF)
20/05/20	42,272.22	-	Labour Hire period 01/05/20 to 20/05/20 (BHP Camps) (MD, MF)
1,467,959.16	136,628.59

Quantity Surveyor Services - Monthly	$20,833,33
Quantity Surveyor Services - SUP	$ 1,979.17

Quantity Surveyor Services – Monthly	$20,833.33
Quantity Surveyor Services – SUP	$ 1,979.17

Date of Payment	Amount
09/05/2019	$ 25,093.75
11/06/2019	$ 25,093.75
08/07/2019	$ 25,093.75
18/09/2019	$ 98,181.60
28/10/2019	$ 55,000. 00
27/12/2019	$ 50,000.00
20/01/2020	$ 25,000.00
31/01/2020	$ 100,000.00
10/02/2020	$ 100,000.00
04/03/2020	$ 25,000.00
$ 528,462.85