Home Loan Centre Australia Pty Ltd v Investloan Pty Ltd
[2012] VCC 760
•15 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-09-05241
| HOME LOAN CENTRE AUSTRALIA PTY LTD | Plaintiff |
| v | |
| INVESTLOAN PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE ANDERSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 -17, 21-23, 25, 28-30 May 2012 | |
DATE OF JUDGMENT: | 15 June 2012 | |
CASE MAY BE CITED AS: | Home Loan Centre Australia Pty Ltd v Investloan Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 760 | |
REASONS FOR JUDGMENT
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Catchwords: Contract – Mortgage brokers – Trailing commissions and introduction fees – Monthly payments made over many years otherwise than in accordance with the terms of a written agreement – Whether payments made “voluntarily” or by “mistake” – Whether restitution otherwise inappropriate – Whether agreement terminated – Whether “performance criteria” should not be enforced by reason of facts said to create an estoppel or because the clause was a “penalty” - David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Schlicht | Logie-Smith Lanyon |
| For the Defendant | Mr M. Clarke | HWL Ebsworth Lawyers |
HIS HONOUR:
1 The home mortgage industry includes a large number of bodies which interpose themselves between the lender and the borrower. The plaintiff (Home Loan Centre) and the defendant (Investloan) are two of those bodies.
2 Home Loan Centre describes itself as “a mortgage originator for certain bank and non-bank mortgage manager loan programs” and Investloan’s business as including the “introduction of mortgage loan applications” from borrowers. Both are reimbursed for their services by margins and commissions that are generally added to the costs paid by the borrower.
3 The present disputes relate to whether certain fees and commissions were owing to Investloan. The disputes arise as follows:
a.In its claim, Home Loan Centre alleges that for a number of years prior to 2009 it mistakenly paid commissions and introduction fees to Investloan which it says should be repaid. These payments were for:
i.trailing commissions on fixed interest loans at an agreed quantum of $365,000 including GST.
ii.introduction fees on construction loan draw downs subsequent to the initial draw down at an agreed quantum of $1,103,287 including GST ($660,566.00 for Origin loans and $502,721 for ING loans)
b.In its counterclaim, Investloan alleges that after March 2009 Home Loan Centre failed to pay it commissions, the quantum of which has been agreed, as at 14 May 2012, at $1,015,000 including GST.
Further claims by Home Loan Centre for losses allegedly resulting from the “churning” of existing loans by Investloan were withdrawn during the course of the trial.
4 The parties’ relationship was governed by a written agreement executed by both parties and any variations of the written agreement. No original of the document is apparently available. Two photocopies were produced in evidence which were in the same terms except for two critical provisions relating to the calculation of Investloan’s commissions. Each party relied upon a different version. It was agreed by the parties that one of the copies was probably a forgery. There was disagreement about which document this was. Expert handwriting evidence about this matter was agreed to be inconclusive.
5 The issues for determination in the case are:
a.What were the contractual terms determinative of Investloan’s entitlement to trailing commissions on fixed interest loans and fees upon subsequent draw downs on construction loans.
b.Whether these contractual terms, as properly interpreted or as they were varied by subsequent agreement between the parties, provided for the payment to Investloan of trailing commissions on fixed interest loans or introduction fees on subsequent draw downs of construction loans.
c.Whether the payments made by Home Loan Centre to Investloan in respect of trailing commissions on fixed interest loans and on subsequent draw downs of construction loans after 2005 were recoverable as monies paid by mistake, or as an amount by which Investloan had been unjustly enriched.
d.Whether restitution in respect of the alleged overpayments should not be ordered because the payments were made voluntarily, for consideration as, Home Loan Centre had received a benefit in respect of the payments, because Investloan had changed its position or by reason of an estoppel.
e.Whether Home Loan Centre was obliged to pay Investloan trailing commissions in respect of loans in place after March 2009, either upon the basis of the agreement between the parties or an estoppel arising from the circumstances in which previous payments had been made.
f.Whether the agreement between the parties had been validly terminated by Home Loan Centre in November 2009 or at a subsequent date, and what effect this had on Investloan’s entitlement to commissions and fees.
g.Whether a provision in the agreement denying Investloan its commissions if the agreement were terminated constitutes a “penalty” and is therefore unenforceable.
Agreement
6 The parties apparently executed a written agreement in about November 2000. No original copy of the document was produced in evidence. Two copies of the agreement are in evidence. One copy is probably a fabrication, although the determination of the issues in the case are essentially unaffected by the lack of certainty about the identity of the parties’ agreement as both surviving copies are similar in most respects.
7 The issue does however make more difficult the task of fact finding and the assessment of the credibility of witnesses. The written agreement was executed on behalf of the plaintiff and the defendant by the two individuals who effectively controlled the companies, Mr Paul Carter of the plaintiff and Mr John Fitzgerald of the defendant.
8 Mr Carter had negotiated the agreement with Mr Graeme Currie on behalf of the defendant. Although the written agreement is a relatively short document of four pages which sets out the rights and obligations of the parties, each of the relevant plaintiff’s and defendant’s witnesses expressed ignorance of its terms and denied having either seen or read a copy essentially until disputes developed in 2009.
9 For the plaintiff’s part, the witnesses said that they relied upon the practices and procedures they inherited from the person previously responsible for calculating the commission entitlements of the defendant and had not referred to the actual contractual provisions. The procedures had been established in the plaintiff’s Brisbane office by an employee who left suddenly when she was sentenced to imprisonment for fraud offences.
10 The defendant’s witnesses on the other hand said that they assumed that the calculations the plaintiff sent each month were accurate as they appeared to be in line with “industry standards” even though the witnesses had no idea of the actual terms of the parties’ agreement.
11 The plaintiff claims that it paid commissions to the defendant by “mistake”. It points to the terms of the agreement and asserts that where payments were made in excess of the defendant’s entitlement, that the plaintiff should be repaid those amounts.
12 The defendant submits that, even though its relevant employees were ignorant of the defendant’s contractual entitlements, the defendant should be entitled to retain the payments made by the plaintiff as they were made “voluntarily” and further, that it would be unfair in the circumstances to require restitution.
13 The defendant claims to be entitled to further payments of commission accruing after May 2009. Those amounts are claimed pursuant to the defendant’s contractual rights. However, the defendant says that those entitlements should not be constrained by a further contractual provision imposing a performance criteria as a pre-condition of payment because of an estoppel or because the relevant provision should be regarded as a penalty and should not be enforced.
14 The determination of these issues depends to a significant extent upon the acceptance of oral evidence from the parties’ witnesses. However, this is not a case where there are disputed facts, the resolution of which would depend upon an acceptance of the evidence of particular witnesses.
15 The areas of dispute concern matters involving one particular party, for example whether a “mistake” was made or whether a payment was made in circumstances where the defendant had established a basis for relieving it from an obligation to make restitution or to be bound by the strict terms of the agreement. These are matters which will depend upon the general credibility of the witnesses for each party and an examination of the objective (largely documentary) evidence and the inferences and conclusions to be drawn from that evidence.
16 In general terms I found the oral evidence less than convincing particularly the evidence of both parties regarding the following matters:
a. the execution of the original agreement, how copies were subsequently stored and retrieved and the failure to consult the document to determine the rights of the parties during the course of their long relationship;
b. the mechanics of how the parties agreed on commission rates variations, the recording of their agreement and the procedures by which any agreement was reflected in the monthly accounting;
c. the willingness of witnesses to volunteer specific evidence of events including conversations which might enhance their employer’s (or former employer’s) case, and to have no recall of matters that might damage that case or would elucidate areas of the evidence which otherwise remained unclear.
Mistake
17 During the course of their relationship, the plaintiff paid amounts (agreed as to their quantum) to which it says the defendant was not entitled under the agreement:
a. $365,000 (including GST) as trailing commissions on fixed interest loans;
b. $1,103,287 (including GST) as an introduction fee on draw downs on constructions loans subsequent to the initial draw down.
18 With regard to fixed interest rate loans, the agreement (in both of the copy documents) provided in the schedule that “trailing commission is not payable during any honeymoon or discounted interest rate period or for fixed interest rate loans”. Clause 6.3 of the agreement provided that “HLCA [the plaintiff] shall pay to the Introducer [the defendant] a trailing commission on such loans settled…Unless otherwise agreed the amount of the trailing commission payable to the Introducer will be at the rate set out in the schedule hereto on the total of the outstanding loan balances of all such settled loan transactions introduced to HLCA by the Introducer”.
19 It was agreed that the loans in question had initially been taken out at a variable interest rate and had later been converted to a fixed interest rate loan. In those circumstances, the defendant submitted that as a question of construction the schedule should be restricted to loans originally taken out as fixed interest rate loans and not apply to loans taken out as variable rate loans which, for a period of time, incurred interest at a fixed rate.
20 Defendant’s counsel, Mr Clarke, pointed to the words used in the schedule and the exclusion of commissions during “any honeymoon or discounted interest rate period” (emphasis added) and the further exclusion “for fixed interest rate loans”. Mr Clarke suggested that the position might have been different if the exclusion for fixed interest rate loans had been expressed as applying to loans for the period during which a fixed interest rate was payable.
21 In my view, this construction should not be adopted for the following reasons:
a. the note in the schedule refers to three exclusions. Each exclusion relates to a loan carrying a particular interest rate;
b. the reference to “period” seems naturally applicable to loans which have a special rate – during the period a honeymoon or discounted rate applies;
c. a “fixed interest rate loan” is a specific description of a type of loan and appears to be a term of art, to be distinguished from a “variable interest rate loan”. A loan that is (or is changed to) a fixed interest rate loan will apparently bear a certain interest rate regardless of any change in external circumstances;
d. accordingly, there seems no basis for describing a loan which bears a fixed interest rate as, for example a variable interest rate loan, although it may have commenced as such.
22 Alternatively, the defendant contended that the present case was an example of where the parties had “otherwise agreed the amount of the trailing commission” under clause 6.3, and the exclusion in the schedule should therefore not apply. The defendant submitted that the variation was constituted by the submission of the monthly recipient created tax invoice (RCTI) by the plaintiff setting out the trailing commissions and how they were calculated and the defendant’s acceptance of the payment proffered in accordance with those calculations. I will consider this matter further below when dealing with the defences raised to the claim for restitution of payments made by mistake.
23 With regard to “introduction fees”, the agreement (in both of the copy documents) provided in clause 6.2 that the plaintiff shall “pay to the Introducer [the defendant] an Introduction Fee on the amount first drawn down as set out in the schedule hereto”. The schedule sets out the rate which the introduction fee is to be paid – either .60% or .70% depending on the volume of loans settled overall by the defendant during the relevant period.
24 This aspect of the schedule is contentious because different figures appear in the two versions of the agreement. However, the matter is not relevant in the determination of the dispute as the issue of quantum has been agreed between the parties for the purposes of these claims in the proceeding.
25 The plaintiff’s contention is that the agreement provided that no trailing commissions were payable to the defendant on fixed interest rate loans and that no introduction fees were payable to the defendant on anything other than “the amount first drawn down”. Insofar as the payments totalling $365,000 for trailing commissions and $1,103,287 for introduction fees were made, they were paid to the defendant by mistake and should be repaid.
26 The first question for determination is how the alleged “mistake” arose. Initially the accounting was done by Ms Heather Munn in the plaintiff’s Brisbane office. An email dated 20 June 2001 to Ms Munn from Mr Tony Buchanan, a lending assistant employed by the plaintiff in Melbourne, asked Ms Munn, in respect of a loan to R & F Cutri, to “confirm that no trails will be paid to Investloan due to change to fixed rate”. This email was relied on by the plaintiff as evidence that the plaintiff’s system of accounting to Investloan for trailing commissions and introduction fees was established by Ms Munn in accordance with the entitlements as set out in the written agreement. Ms Munn left the plaintiff’s employment without the opportunity for a replacement to be trained. She did not give evidence at the trial.
27 Mr Garry Skelton from the Melbourne office took over responsibility for preparing the RCTIs for a period of 12 months from 2002 when Ms Munn left. He said that “basically I took over the same procedure that she had been doing”. Mr Skelton was “not sure”, although he “may have”, seen the written agreement when he prepared the RCTIs. He said he was not aware of any “specific instructions” in respect of fixed interest rate loans or construction draw downs.
28 Ms Tracey Thompson prepared the RCTIs between about 2003 and early 2008. She was trained by Garry Skelton. She said that the RCTIs were based on the upfront and trailing commissions in the “reports from the lenders each month”, which would be allocated to the introducing broker. She used spreadsheets which were “already set up” and added to her own workbook as new loans were established. She did not see the written agreement with Investloan and received no specific instructions in relation to fixed interest rate loans or construction loan draw downs.
29 Ms Susan O’Neill performed the role from early 2008 to about September 2010, taking over from Tracey Thompson. She was trained by Ms Thompson and gave similar evidence about the processes.
30 After the RCTIs were prepared, they were given to Mr Paul Carter for checking and so that he could sign the cheques payable to Investloan. It seems obvious, however, that any checking by Mr Carter was perfunctory. Each RCTI had a summary sheet or sheets and extensive details of the transactions which made up the various payments to be made that month. The fact that trailing commissions were included for fixed interest rate loans would not have been obvious from the summaries or calculations. However, from September 2004, the monthly summaries referred specifically to “draw downs” and from the attached calculations it might have been ascertained from the “settlement date” that the payments were not restricted to the “first draw down” as required by the agreement.
31 Mr Carter was unable to offer any explanation for the “mistaken” payments. He said that he only became aware that the trailing commissions had been paid on fixed interest rate loans in about April or May 2009, and of the overpayment in respect of subsequent draw downs in 2011, as a consequence of which the Statement of Claim was amended.
Relevant legal principles
32 The principal authority cited by the parties in relation to the issue of mistake was David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353. The relevant discussion in the majority judgment of Mason CJ, Deane, Toohey, Gaudron and McHugh JJ commenced at page 369 with consideration of the “nature of the mistake” alleged to have been made. The judgment noted a statement of principle by Winfield that, “Mistake not only signifies a positive belief in the existence of something which does not exist but also may include sheer ignorance of something relevant to the transaction in hand”.
33 Of particular importance to the present case was the discussion in the decision between a mistaken payment on the one hand and “voluntariness or election” on the other. At page 373, the majority judges said: “The payment is voluntary or there is an election if the plaintiff chooses to make the payment even though he or she believes a particular rule or contractual provision requiring the payment is, or may be, invalid, or is not concerned to query whether payment is legally required; he or she is prepared to assume the validity of the obligation, or is prepared to make the payment irrespective of the validity or invalidity of the obligation, rather than contest the claim for payment. We use the term ‘voluntary’ therefore to refer to a payment made in satisfaction of an honest claim, rather than a payment not made under any form of compulsion or undue influence”.
34 Dawson J at page 405 stated that the enquiry to be made is as follows: “The first question should be whether the appellants turned their minds to the question of their legal obligation at the time they made the relevant payments or whether they made those payments merely because the contract provided they should do so, that is to say, voluntarily and not because of any mistaken belief in the law”.
35 David Securities was a very significant case. It recognised, as the majority recorded at page 376, that: “The rule precluding recovery of monies paid under a mistake of law should be held not to form part of the law in Australia”. The critical issue determined was whether a payment by a customer to its bank, which included an additional amount to cover the taxation obligation of the bank (and therefore involving a breach of Australian taxation legislation), was a payment made by mistake and therefore reimbursable. This issue was remitted to the trial judge for further consideration including on the question of, “Whether the appellants paid the additional amounts because of their mistaken belief that their contractual arrangements with the respondent required the payments”.
36 The High Court analysed how the law which, prior to the nineteenth century, had permitted restitution to persons who had paid money to another because of a mistake regardless of whether it was a mistake of fact or law, had changed. In this context the Court considered a series of nineteenth century cases which decided that a payment made with full knowledge of the facts upon which the money was demanded and paid was “voluntarily paid” and was not recoverable.
37 The High Court quoted with approval at page 380 the formulation by Goff J in Barclays Bank Ltd v WJ Simms Son & Cooke (Southern) Ltd [1980] QB 677 at 695 that:
“(1)If a person pays money to another under a mistake of fact which causes him to make the payment, he is prima facie entitled to recover it as money paid under a mistake of fact.
(2)His claim may however fail if –
(a)the payer intends that the payee shall have the money at all events, whether the fact be true or false, or is deemed in law so to intend…”
38 This involves a process of fact finding from the evidence on the critical matters identified by Goff J, being:
a. whether the payer made a mistake;
b. whether the mistake was causative of the payment;
c. whether the payer intended the payee to have the payment regardless of the mistake.
39 The High Court in David Securities remitted the case to the trial judge because it was not satisfied “the primary judge nor the Full Court [of the Federal Court] has identified the evidence which sustains the finding [of payment under mistake of law] or gives rise to the inference [that] without the mistake being made on their part, by regarding clause (8)(d) as valid rather than void [the appellants] would have made no payment but that which they regarded themselves legally obliged to make pursuant to their contractual and security arrangements with the bank” (page 368).
40 The parties in their submissions have referred to a number of more recent Australian authorities where these critical issues have been considered. These cases include: Halgido Pty Ltd v DG Capital Company Ltd (1996) 97 ATC 4060; Duncan v Prudential Assurance Co Ltd (1999) 10 ANZ Ins Cas 61-433; Hookway v. Racing Victoria Ltd (2005) 13 VR 444; Magarey Farlam Lawyers Trust Accounts (No.3) [2007] SASC 9; Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42; Salib v Gakas [2010] NSWSC 505; Lahoud v Lahoud [2010] NSWSC 1297 and CGU Workers Compensation v Panoy Pty Ltd [2012] NTSC 26.
41 In Hookway v Racing Victoria Ltd (2005) 13 VR 444, the Court of Appeal upheld the decision of the trial judge that restitution should be made in circumstances where prize money was paid to the second place getter in a horse race after the winner was disqualified. The payment was made in ignorance that the original winner had a right of appeal against the disqualification. That right of appeal was successfully exercised and restitution of the prize money was sought from the second place getter.
42 Ormiston JA delivered a judgment with which the other members of the Court of Appeal agreed. The critical issue for determination was whether the payment of prize money to the second place getter “was voluntary in the sense comprehended by the authorities especially David Securities” (para 22). At paragraph 31, Ormiston JA noted that: “What was said in David Securities about ‘voluntary’ payments in the context of restitutionary claims has, unfortunately, not been (to my knowledge) the subject of any significant exposition by the High Court or indeed by any intermediate appellate court in this country in the period of nearly 13 years since it was decided”.
43 At paragraph 42, Ormiston JA, after a careful review of the authorities, stated: “Nevertheless, in the absence of binding or compelling authority subsequently on the issue, it is difficult to be confident precisely how the test of voluntariness should continue to be applied. One cannot doubt that if a payment is truly voluntary, in the precise sense of the term, then it is unlikely to have been actuated by a mistake of any kind, let alone a mistake of law. It is preferable in my opinion to regard the test of voluntariness as having been unduly emphasised in the past in order to deny recovery for payments caused by a mistake of law”.
44 At paragraph 44 he continued: “There have been cases in the past where mere acquiescence in a party’s liability to pay has led to the payment being characterised as voluntary, but the desire in the present case [David Securities] was to produce a coherent statement relevant to all mistakes. Moreover, their Honours clearly wished to include within a class of mistaken payments, even if they had not been thought to have been included in the past, payments made in simple ignorance of a relevant legal proposition or of a conclusion as to legal liability based on the relevant facts. To achieve this, a principle had to be worked out, as it was, in a way which nevertheless allowed bargains to be upheld and compromises to be enforced. The term ‘voluntary’ payment had been defined in terms of one made in ‘satisfaction’ of an honest claim which connoted, beyond mere payment, an effective closure of the transaction…In my opinion, as worked out by the majority in David Securities, it was not intended that a person, who makes a payment in ignorance of a basis of invalidity for denying liability, can thereby be treated, without more, as having intended voluntarily to pay the sum regardless of what might be shown to have been a mistake of law. It was intended only to restrict claims by those who consciously decided to pay regardless of what might arise in the future, as well as those who were otherwise bound by accord and satisfaction or any other compromise, or by submission to judgment, each of which will amount to satisfaction of the payee’s claim”.
45 The decisions of Lahoud v Lahoud; Salib v Gakas and CGU Workers Compensation v Panoy Pty Ltd appear to have adopted similar reasoning whereas other recent decisions, including some referred to by Mr Clarke, may go beyond what was intended by the statements about “voluntary” payments in David Securities. In Salib v Gakas, Ward J considered the distinction between a “voluntary” payment and one made by “mistake”. Although Ward J does not appear to have been referred to Hookway v Racing Victoria Ltd, his approach was similar. Ward J was concerned with a series of payments of commission made during the course of the business relationship between the plaintiff and the defendant. Ward J considered that a final payment made in settlement of an ongoing dispute had been made “voluntarily”. He held, however, that a series of earlier payments made in response to invoices prepared by the defendant had been made by mistake and the plaintiff was entitled to restitution in respect of them.
46 At paragraph 327, Ward J stated in reliance upon David Securities and other cases that: “A plaintiff may be relevantly mistaken and entitled to restitution even where the mistaken belief is his or her own fault, ‘provided’ that payment was made as a result of the mistake”. Ward J inferred “from the High Court’s rejection [in David Securities] of the requirement of fundamentality the question would turn on whether the mistake was a ‘significant’ or ‘dominant’ cause of the relevant payment [that] the test was whether the mistake was a reason for the enrichment” (para 328).
47 Ward J at paragraph 329 noted that in David Securities the majority “addressed the question of the voluntariness of the payment or election by the payer”. In relation to the earlier payments, Ward J was prepared to accept that the plaintiff “made those payments in reliance upon a belief as to the accuracy of Ms Salib’s [the defendant’s] calculations” (para 330). Ward J distinguished the final payment where he said the plaintiff “was prepared to proceed in the knowledge that there was a risk that the figures might not be accurate [and the plaintiff] chose to make the payment…in order to achieve a final resolution of her [the defendant’s] claims” (para 333).
Determination of the issue of mistake
48 In the present case, the plaintiff claims that it intended each month to pay the defendant its contractual entitlement to trailing commissions and introduction fees. Each month the plaintiff prepared the relevant RCTI and the attached calculation. It was not a case where the plaintiff was induced by the presentation of a false or inaccurate account prepared by the defendant to make the payment. The plaintiff’s employees who prepared the RCTIs, and Mr Carter when he signed the cheques in accordance with the RCTIs, apparently believed that the accounts reflected the defendant’s contractual entitlement. If they held that belief, they were mistaken because the payments included trailing commissions for fixed interest rate loans and introduction fees in respect of subsequent draw downs of construction loans. Both these matters were excluded from the payments to which the defendant would be entitled after Mr Carter and Mr Currie negotiated the parties’ agreement in 2001.
49 If, when preparing the monthly calculations, the relevant plaintiff’s employees had, in error, added a number of noughts to a calculation resulting in an overpayment of some thousands of dollars, the plaintiff would ordinarily be entitled to be reimbursed the overpayment as it would clearly be unconscionable for the payee to retain this amount. At this stage of the analysis it is only appropriate to consider whether the overpayment by the plaintiff to the defendant was caused by mistake. As the majority said in David Securities at page 379: “The fact that the payment has been caused by a mistake is sufficient to give rise to a prime facie obligation on the part of the respondent to make restitution. Before that prima facie liability is displaced, the respondent must point to circumstances which the law recognises would make an order for restitution unjust”. The consideration of such circumstances only is necessary if a mistake which is causative of the relevant payments has been established.
50 In the present case, the parties had agreed to regulate their relationship by entering into a written agreement which set out the basis for the defendant’s entitlement to be paid commissions and fees. The plaintiff calculated the commissions and fees other than in accordance with the parties’ agreement in respect of trailing commissions on fixed interest rate loans and introduction fees on subsequent draw downs. The gist of the evidence of the plaintiff’s witnesses who prepared the relevant RCTIs was that they believed that the payments reflected the plaintiff’s entitlement. This belief seemed to have been based upon the fact that:
a. the plaintiff had itself received commissions and fees from the relevant lenders;
b. the plaintiff had followed its processes and made similar payments to the defendant in previous months.
51 These employees, and Mr Carter when he authorised and made the payments, were mistaken, although the mistake was reflective of what the majority said in David Securities at page 374 when they referred to cases of “sheer ignorance as well as cases of positive but incorrect belief”.
52 The defendant submits however that there were other factors operating:
a. the plaintiff was prepared to pay the defendant in excess of its contractual entitlement in order to foster the “longstanding relationship” between the parties;
b. the RCTIs also incorporated day-to-day variations to the agreed fees and commissions negotiated between the sales staff of the plaintiff and the defendant.
53 In support of the first matter, the defendant referred to the concluding words of an email dated 23 February 2009 from Mr Brad Dunn of the plaintiff’s Brisbane office to Mr Jonothan Bryant of the defendant as follows: “I can only reiterate that Paul has continued to pay you at the higher rate in good faith and in view of our longstanding relationship”. It is clear however, from the balance of the email and from Mr Dunn’s oral evidence, that the concluding words of the email referred to the plaintiff “continuing to pay Investloan despite them falling below their volume requirement”.
54 In support of the second matter, the defendant referred to a chain of emails between the parties between 2 and 15 December 2008. The emails commenced with a communication dated 2 December 2008 from the defendant’s National Manager, Mr Peter Boussounis to Mr Brad Dunn. The email examined some of the transactions in the November RCTI and complained that the trailing commission calculations were inaccurate and that the defendant had been underpaid. Mr Boussounis illustrated his complaints by noting up a photocopy of the RCTI with the alleged discrepancies.
55 On 11 December 2008, Mr Dunn responded stating that, “There are many reasons for the variations in commission payments” and purported to “explain just three of the major reasons as to why there are variations in commission payments over the various loans”. These reasons included specific cases where borrowers had negotiated reduced interest rates which were achieved by the plaintiff and defendant agreeing to reduce their commissions, in the defendant’s case below the rate that had been agreed by the parties in their initial written agreement, and any subsequent variations thereto.
56 In Mr Bryant’s response on 15 December 2008, he stated his acceptance of Mr Dunn’s explanation as “fine” and referred to the defendant’s previous “somewhat ‘loose’ level of contract or meeting record retention”. In his oral evidence, Mr Bryant said that he wrote his reply without investigating the actual contractual position between the parties.
57 In the circumstances, I consider that the plaintiff has established that it overpaid the defendant for a number of years in respect of trailing commissions and introduction fees. The payments were made because the plaintiff mistakenly believed that they reflected the defendant’s contractual entitlement whereas through “sheer ignorance” of those entitlements, trailing commissions were also paid on fixed interest rate loans and introduction fees for draw downs on constructions loans subsequent to the first draw down.
58 Analysis of certain of the RCTIs, tendered in evidence at the trial, showed that there appeared to be some inconsistency in the rate at which commissions were calculated and paid. In many instances they bore little relationship to the rates set out in the schedule to the parties’ agreement. When these matters were pointed out to Mr Carter during cross-examination, he expressed his “surprise”. I have considered this evidence in assessing whether the plaintiff has established that payments were made by mistake.
59 However, the evidence has only limited relevance as the parties resolved issues of quantum in relation to the payments claimed to have been made by mistake. The Court was only informed of one matter apparently taken into account in the settlement of the quantum of the plaintiff’s claims, as it resulted in the defendant amending its defence to withdraw a statute of limitations defence.
Defences to the plaintiff’s claim for restitution
60 Accordingly, the defendant is prima facie obliged to make restitution in respect of these overpayments as otherwise the defendant would be unjustly enriched. To displace that liability the defendant “must point to circumstances which the law recognises would make an order for restitution unjust”. In this regard the defendant relies upon the following matters:
a. the defendant provided consideration for the payments and the plaintiff received a benefit in respect of the payments;
b. the defendant had changed its position as a result of having received the payments;
c. by reason of an estoppel.
61 Mr Clarke submitted that the consideration the defendant provided as its part of the bargain was “to introduce to HLCA loan applications by suitable borrowers for the mortgages” (clause 3.1 of the parties’ agreement). Mr Clarke submitted that the defendant had introduced borrowers who had obtained loans from the lenders and as a consequence the plaintiff had itself received commissions and introduction fees in respect of those loans from the lenders.
62 Mr Clarke referred to a passage from the Judgment of Nettle JA in Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6. At paragraph 27, whilst discussing the circumstances in which an order for restitution would be considered “unjust”, Nettle JA said: “Traditionally, those circumstances have included cases in which a claimant receives some part of the ‘benefit’ provided for in the bargain, be the bargain contractual or of another kind. In that sense, a claim for money had and received lies only as upon a total failure of consideration”.
63 Nettle JA made the statement in the context of a discussion of a number of High Court authorities including David Securities and, relevantly, Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 in which, as Chernov JA noted in Ovideo: “The respondent’s defence that it had provided good consideration in the form of provision of tobacco products, or an agreement to do so, was rejected by the majority of the court” (para 17).
64 At paragraph 28, Nettle JA continued: “‘Total failure of consideration’ is, however, a complex conception, since the idea of consideration is used in the law in more than one sense. Where a plaintiff’s cause of action is for the recovery of money paid under a mistake of fact or law, the relevant conception of ‘consideration’ is in effect limited to the matter considered in forming the decision to make the payment; the state of affairs contemplated as the basis or reason for payment. Therefore as Gummow, J. explained in Roxborough v Rothmans of Pall Mall, in the present context ‘total failure of consideration’ looks to the benefit bargained for by the payer rather than any benefit which might have been received in fact”.
65 Chernov JA also noted (at para 17), that the majority in Roxborough held “in the appellants’ favour, principally on the basis that there was a failure of consideration for the money that was paid by the retailers to the respondent so that, in the result, the appellants had the superior claim to the money. Their Honours explained that, in the context of a claim for money had and received, although failure of consideration is not limited to non-performance of the contractual obligation, it does ‘embrace’ the failure of the purpose for which the money has been paid. Their Honours concluded that in the case before them no relevant consideration moved from the payee given that, because ‘the state of affairs, which was within the contemplation of the parties as a basis for their dealings, concerning tax liability [had] altered’, the purpose for which the money was paid had failed”.
66 At paragraph 20, Chernov JA reiterated that: “It is for the respondent to demonstrate, for example, that it has given good consideration for the payment. Whether it had done so is to be judged from the perspective of the payer”.
67 In the case before the Court of Appeal, a tenant of retail premises had not been given a relevant disclosure statement. This failure would have entitled it (under s.8(2) of the Retail Tenancies Reform Act 1998) to withhold payment of rent. The tenant sought restitution of the rental that had been paid. This was refused, Chernov JA stating at paragraph 21: “Unlike the position of the payers in David Securities and Roxborough, the tenant here has received good consideration for the money it paid, namely, exclusive possession of the premises that were obviously of use and benefit to it…and, thus, from its point of view, it received good consideration for its payments”.
Determination of the defences to restitution
68 In the present case, I do not consider that it is any answer to the plaintiff’s claim for restitution to point to the general benefit to the plaintiff from the defendant having introduced borrowers to it. No such benefit was obtained by the plaintiff in respect of the payments it made to the defendant and it was not the “basis or reason for payment”.
69 I also reject the defendant’s submission that the plaintiff received some form of ongoing goodwill inherent in the maintenance of the parties’ “longstanding relationship”. The payments were made by the plaintiff in the belief that they represented the defendant’s contractual entitlements, save in certain circumstances referred to in correspondence where there may have been a belief on the part of the plaintiff’s representatives that payments were being made where an increased “performance criteria” or “volume requirement” was being ignored.
70 The defendant also contended that it had changed its position following receipt of the payments. The defendant tendered in evidence a series of employment contracts. Whilst many of the contracts showed that in part certain employees’ remuneration was based upon the business they generated, there was generally no correlation between the basis for this part of the employees’ remuneration and the entitlements of the defendant to trailing commissions and introduction fees pursuant to its agreement with the plaintiff. Further, most of the employment contracts tendered in evidence were entered into outside the period during which the plaintiff and defendant pursued their business relationship.
71 The defendant also led evidence from a number of its employees or former employees to the effect that if those employees had been aware that no trailing commissions would be paid on fixed interest rate loans and that no introduction fees would be paid on subsequent draw downs for construction loans, then the business would have been placed with another mortgage originator such as National Mortgage Company, with whom the defendant also dealt.
72 I do not accept that this evidence is sufficient to displace the prima facie liability of the payee to make restitution by establishing “some adverse change of position by the recipient in good faith and in reliance upon the payment, which the law recognises would make an order for restitution unjust” (ANZ Banking Group Ltd v Westpac Banking Corporation (1987) 164 CLR 662 at 673 quoted by Chernov JA in Ovidio at para 12).
73 Each of the relevant defendant’s witnesses were asked in evidence-in-chief a series of questions as to their “assumptions” when they introduced mortgage business to the plaintiff and what they would have done if the defendant were to be paid trailing commissions and introduction fees in accordance with the agreement between the parties. Each of the witnesses gave evidence to the effect that:
a. they were ignorant of the contractual arrangement as to the defendant’s entitlements for introducing customers;
b. they made no attempt to ascertain the terms of the agreement;
c. they assumed that the entitlements would be in line with “industry standards”. Evidence of the appropriate industry standards was given by reference to the defendant’s agreement with National Mortgage Company, entered into apparently in 2006;
d. if they had been aware that trailing commissions were not payable in respect of fixed interest rate loans or introduction fees for subsequent draw downs for construction loans, they would not have introduced the potential borrowers to the plaintiff.
74 I am not satisfied by this evidence for the following reasons:
a. my general concern with the evidence of all witnesses on critical issues concerning the execution, safekeeping, retrieval and reference to the parties’ written agreement;
b. for the defendant, the evidence in this regard of Mr Currie (who originally negotiated the contract with Mr Carter), Mr Bryant (who became involved in correspondence with the plaintiff in October 2007 which would have likely resulted in him taking steps to “revisit our agreements” in more than a theoretical sense) and Mr Scott Watson (a lawyer and the person with responsibility between October 2006 and mid 2007 for the management of the defendant’s business relationship with the plaintiff) was particularly unconvincing;
c. discussions between the parties about the defendant’s contractual entitlements reflected in correspondence from May to September 2006 concluded with an email dated 30 August 2006 from Wayne Hamburger of the defendant to Russell Henshaw of the plaintiff stating that “we will continue with the current arrangement”;
d. on apparently the only occasion, in December 2008, when the defendant queried what were described by Mr Boussounis as “discrepancies in the payments” noted in the RCTI report, the defendant readily accepted the explanation offered by Mr Dunn on behalf of the plaintiff.
75 Finally, the defendant has asserted it should not be obliged to make restitution by reason of an estoppel. Mr Clarke, in written submissions, stated that, “For over 10 years loans were referred to HLCA assuming that, in accordance with the norm in the industry, commissions were payable on fixed loans and on construction draw downs (which is clearly set out on RCTIs from 2002 onwards)…Generally each witness has said they would have referred loans to other managers and not HCLA had they known commission would not be paid”. The estoppel claim rests upon “assumptions” which I have already discussed and rejected based on the evidence relied upon by the defendant. In the circumstances, I consider that no basis has been established by the defendant which would make it unjust to order restitution to the plaintiff of the payments it made by mistake to the defendant. An order will accordingly be made in the amount of the quantum agreed by the parties.
Counterclaim
76 The last payment made by the plaintiff to the defendant was in March 2009. The payment was intended to cover the defendant’s entitlement to trailing commissions and introduction fees up to February 2009. No further payments have been made since that time. The defendant alleged that “as at 31 March 2009 there were at least 860 loans still in place on which trailing commissions were payable”. The parties have agreed the quantum of these commissions at the sum of $1,015,000 (including GST) up to 14 May 2012.
77 In its defence to counterclaim, the plaintiff “admits it stopped paying the defendant trailing commissions [and] says further it was entitled to do so pursuant to clause 7 of the agreement and by the fact that the agreement was terminated”. Clause 7 of the agreement is headed “Performance Criteria” and provides that: “The introducer [the defendant] agrees that before it is entitled to trailing commission set out in clause 6 hereof it shall introduce to HLCA [the plaintiff] not less than [$9/$3 million] of loan applications under all loan programs that proceed to settlement during a quarter”. Clause 8.3 of the agreement provides that: “If, at any time, HLCA is no longer entitled to its trailing commission or the loan is repaid or this agreement is terminated, then HLCA may terminate any or all entitlements the Introducer [the defendant] might otherwise have to any ongoing fees and trailing commissions pursuant to this agreement”.
78 In clause 7, the version of the agreement proffered by the plaintiff has the figure of $9 million. The other version of the agreement refers to $3 million. This discrepancy was carried forward to the table under the heading “Fee Structure” in the schedule to each copy of the agreement. Further, Mr Carter said in evidence that the fee structure should have been changed from quarterly to monthly payments, although through his oversight this was not done.
79 It was also suggested in the evidence of the plaintiff’s witnesses that in about April 2006 the parties had agreed that the performance criteria was varied to “$15 million per quarter”. It was not clear from the evidence whether this was intended as an increase from the previous level of $9 million or a decrease from a previous requirement of $27 million ($9 million per month). The discrepancy between the figures in the two copies of the agreement and the assertion that the performance criteria had been varied is, however, of little consequence in the proceeding and particularly in the determination of the counterclaim.
80 In its defence, the defendant “admits that…Investloan did not introduce any mortgage business from June 2009 onwards”. The evidence suggested that from at least May 2009 only a minimal amount of business may have been introduced. A reason for the cessation of the referrals by the defendant appears to have been the suspension of the plaintiff from Origin’s panel of mortgage brokers entitled to introduce new business to the lender, which it was said made it unattractive for Investloan to continue to refer borrowers to the plaintiff.
81 The plaintiff relies upon the defendant’s failure to meet the performance criteria after May 2009 as good reason for it to have ceased the payment of trailing commissions. Alternatively, it submits that the defendant’s decision not to refer further business to the plaintiff was a repudiation of the agreement which had been accepted by the plaintiff, bringing the agreement to an end. The agreement provided that upon termination of the agreement, no further payments need be made to the defendant.
82 The defendant submitted that the plaintiff was not, as a matter of construction, “entitled under clause 7 and/or clause 8.3 of the agreement to cease paying commissions” as the performance criteria had no application in the circumstances which had arisen, and particularly the plaintiff’s inability to process new loans with Origin. Alternatively, the defendant relied upon an estoppel which it said prevented the plaintiff from denying that the defendant should be paid “commissions on loans [introduced by Investloan] for as long as the loans remained on foot”. Accordingly, it was said the plaintiff was obliged “to pay Investloan the trailing commission on loans made to clients referred to HLCA by Investloan and still in place as at 31 March 2009”.
83 The defendant also asserted that:
a. the parties’ agreement “was not terminated before 15 May 2012 and was affirmed by letter dated 3 July 2009 from the plaintiff’s solicitors” to the defendant;
b. if clause 7 or clause 8.3 affected the defendant’s entitlement to be paid if the agreement were terminated, the clauses were “void as constituting a penalty”.
84 By clause 3.1 of the agreement, the defendant’s primary obligation was “to introduce to HLCA loan applications by suitable borrowers”. As part of that obligation the defendant was to “assist potential borrowers in the completion of appropriate application forms” (clause 3.2), was “not to misrepresent or misdescribe the loan monies available” (clause 3.3) and was to “disclose to the borrower that if the loan proceeds, the introducer may receive from HLCA a fee” (clause 3.5).
85 By clause 6.3, the plaintiff had an obligation to pay to the defendant “a trailing commission on such loans settled under the Adelaide Bank, ING and Origin Loan Programs…The entitlement to the trailing commission shall commence from the month after settlement of the loan and be payable monthly in arrears within 21 days after the end of each month”. Clause 6.3 also provided that, “The trailing commission shall be payable subject to the provisions of this agreement”.
86 The defendant submitted that the “performance criteria” introduced by clause 7 had no application “if a loan had previously been settled, and clause 6.3 triggered during a prior quarter in which the minimum performance criteria had been met”. In support of this submission reference was made to the defendant’s “primary obligation under the agreement”, to make the introduction of a borrower, and to clause 8.3 which permitted the plaintiff to “terminate any or all entitlements the introducer [the defendant] might otherwise have to any ongoing fees and trailing commissions pursuant to this agreement” in circumstances where the plaintiff is “no longer entitled to its trailing commissions or the loan is repaid or this agreement is terminated”.
87 I accept the defendant’s submissions regarding the application of clause 7. I consider that once trailing commissions have become payable pursuant to clause 6.3, in circumstances where the defendant has met the performance criteria in the relevant period when “the entitlement to the trailing commissions shall commence”, payment of the commissions should only be terminated by the plaintiff in the circumstances set out in clause 8.3. The only relevant circumstance might be if the agreement had been terminated.
88 I am not satisfied that the agreement was terminated by the plaintiff in May 2009. It is clear that by May 2009 Investloan was not meeting the performance criteria and was apparently not using “its best endeavours to introduce to HLCA loan applications”. Since December 2008, the plaintiff had been highlighting the defendant’s failure to meet the performance criteria:
a. in an email dated 11 December 2008 from Brad Dunn to Peter Boussounis, Mr Dunn referred to “the fact that the minimum volume requirement has not always been met [and] it is unlikely the volume requirement will be met in this December quarter”. This communication, however, referred to a minimum volume of $15 million per quarter;
b. in an email dated 1 April 2009 from Mr Boussounis to Mr Matt Carter, Mr Boussounis offered for his part to “ensure that volume started to get back to consistently strong levels”;
c. in an email dated 4 May 2009 from Paul Carter to Jonothan Bryant, Mr Carter noted, following a meeting the previous week, “As we agreed it is in neither of our interests to cancel the relationship because settlement volumes are currently below those in our agreement”;
d. in an email dated 14 May 2009 from Jonothan Bryant to Paul Carter, Mr Bryant stated: “In essence Paul, we don’t want to have a minimum volume requirement at all. We haven’t effectively operated with one with HLCA for a while anyway, but more importantly it is not a requirement of either of our other funders”.
89 Following the email dated 14 May 2009 from Mr Bryant, Mr Carter responded on 15 May 2009 stating: “Whilst I understand your reasons for wishing to do away with the $5 million [per month] performance criteria these ongoing commitments [to the plaintiff’s Brisbane office] make it something that HLCA cannot agree to in the current market…If we are not able to reach an agreement with a substantial performance criteria sufficient to make the Brisbane office profitable, one clear option I would have to consider is to terminate the existing agreement”.
90 The subsequent correspondence did not in my view constitute the steps necessary to terminate the agreement but rather indicated the plaintiff’s intention that the agreement remain on foot:
a. in an email dated 4 June 2009 from Paul Carter to Scott Watson, Mr Carter noted that “as a commercial settlement no longer appears possible we will act accordingly”;
b. in a letter dated 22 June 2009 from the plaintiff’s solicitors to the defendant, it was alleged that the defendant had breached the parties’ agreement by having “temporarily ceased lodging new application[s] with HLCA”. The letter required the defendant “to remedy this breach within the next 14 days, failing which our client reserves its rights to terminate the agreement”;
c. in a letter dated 3 July 2009 from the plaintiff’s solicitors to the defendant it was stated that “our client intends to continue to comply with the terms of the agreement”.
91 In its Statement of Claim the plaintiff refers to a number of other matters which it says lead to the conclusion that, “By November 2009 both HLCA and Investloan treated the agreement as at an end and the agreement was terminated”. The matters referred to included a failed mediation in August 2009 and the commencement of this proceeding on 5 November 2009. However, the plaintiff did not, until an amendment to the Statement of Claim at the commencement of the trial, allege that the agreement had been terminated.
92 On 15 May 2012, the plaintiff, by letter to the defendant, purported to terminate the agreement. The letter was in the following terms: “We refer to the above agreement and advise that we consider that the agreement was terminated in mid to late 2009 after the failure to resolve disputes between us which led to the issuing of the current court proceedings. This is based on, inter alia, the fact that business relations ceased completely and that subsequent to the mediation there has been no intent or intention shown by either party to continue the agreement. If this is not to be the case, which we deny, then we give formal written notice that Home Loan Centre terminates this agreement”.
93 In the circumstances, I am not satisfied that until the letter dated 15 May 2012 the plaintiff took the appropriate steps to terminate the agreement. In its final submissions, the defendant conceded that “HLCA terminated the agreement with Investloan by letter…dated 15 May 2012…and that any termination is effective from 15 May 2012 but not from any earlier date”. Until that time, it is my view that the plaintiff remained liable to pay to the defendant its entitlements in respect of trailing commissions for the loans it had introduced to the plaintiff. The defendant would therefore appear to be entitled to judgment on the counterclaim at the agreed quantum, to 14 May 2012, of $1,015,000 (including GST).
94 There are further matters raised by the defendant which, in view of my conclusions, can be dealt with fairly briefly. The first is a plea based estoppel. However, I would only need to consider the issue if I were satisfied that the terms of the agreement had otherwise meant that the defendant had no entitlement to be paid trailing commissions after May 2009 because of the terms of clauses 7 and 8(3) of the agreement. I have, however, reached that conclusion that clauses 7 and 8(3) would not have that effect. Further, when earlier considering the issue of estoppel, in relation to the claim for restitution based on a mistake, I was critical of the evidence concerning this issue.
95 There is, however, one significant matter relevant to the plaintiff’s enforcement of the contractual terms relating to the “performance criteria”. In February 2009, discussions between Mr Carter, Mr Bryant and Mr Dunn “also covered the minimum volume requirements required to receive the increase trailing commission”. It was accepted in Mr Dunn’s email dated 23 February 2009 that notwithstanding what was described as the defendant’s failure to meet the performance criteria, the plaintiff “has continued to pay you at the higher rate in good faith and in view of our longstanding relationship”.
96 It is clear from the email, however, that the “minimum volume” referred to was $15 million per quarter. There is no clear evidence that this sum was accepted by the parties in April or May 2006 as a variation to the performance criteria specified in the parties’ agreement. The allegation in the Statement of Claim of such a variation was specifically denied by the defendant. I am not satisfied that an estoppel would arise if a different construction were given to clauses 7 and 8(3) of the agreement.
97 The defendant also raised the issue that clause 8.3 constitutes a “penalty” and is therefore ineffective to terminate the defendant’s entitlement to trailing commissions. I am not satisfied that the parties’ agreement was terminated prior to 15 May 2012. Further, I consider that there is support for the view that the defendant had fully earned the commissions when they first became payable under clause 6.3 and that the present case can be distinguished from the decision of Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd (2008) 257 ALR 292.
98 In that case, the entitlement to the originator’s fees had not “fully accrued” as “the originator had ongoing obligations to manage and service settled loans [clause 5.2]” (para 35). As Alsop P said (in a judgment with which the other members of the Court of Appeal agreed) at paragraph 79: “The fee was not earned until the consideration for it – both origination and management – was undertaken. An element of accrual of one aspect of the entitlement to receive it can be recognised and accepted: the origination. To state, as the primary judge did in of his reasons, that the fate of the Originator’s Fee upon the operation of clause 20(3) was loss or forfeiture, treated the sums as fully earned. What was “accrued” before termination was the completion of only one aspect of the consideration (the origination). The Originator’s Fee was not earned or fully accrued at the date of termination” (para 79).
99 Accordingly, in that case the relevant clause in the agreements, which provided for the cessation of the payments upon termination, was not (as the trial judge had found) a penalty, and therefore, because of the termination, the originator was not entitled to continue to receive the commissions. The present case is different because the defendant had done all that was required of it by clause 3 of the agreement, by introducing the borrowers to the plaintiff, completing application forms and informing borrowers that the defendant would receive a fee from the plaintiff.
100 In the circumstances, I consider that the plaintiff has an ongoing obligation to pay trailing commissions to which the defendant would otherwise be entitled, notwithstanding the termination of the agreement by the plaintiff on 15 May 2012. Insofar as clause 8.3 provides to the contrary, it would constitute a penalty and be ineffective as a bar to the payments following termination of the agreement.
Orders
101 Subject to any submissions by the parties as to the form of the orders:
a. on the claim, there will be judgment for the plaintiff against the defendant for $365,000 (including GST) and $1,103,287 (including GST), a total of $1,468,287 (including GST);
b. on the counterclaim, there will be judgment for the defendant against the plaintiff for $1,015,000 (including GST) as at 14 May 2012 and for the continued payment of trailing commissions for so long as the defendant is entitled to receive them under the agreement.
102 I will also hear further from the parties in relation to the quantification of the defendant’s counterclaim beyond 14 May 2012 and on questions of interest and costs.
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Certificate
I certify that these 31 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 15 June 2012.
Dated: 15 June 2012
Hannah Christensen
Associate to His Honour Judge Anderson
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