Jenkins v Jennings - [2010] QCAT 370

CITATION:

Jenkins v Jennings [2010] QCAT 370

PARTIES:	Bruce Jenkins
v
Nichole Jennings

APPLICATION NUMBER:

MCDO70097-09

MATTER TYPE:

Other minor civil disputes matters

HEARING DATE:

8 June 2010

HEARD AT:

Southport

DECISION OF:

Christine Trueman, Adjudicator

DELIVERED ON:

9 July 2010

DELIVERED AT:

Southport

ORDERS MADE:

1. THAT the Claim be dismissed.

CATCHWORDS:

CONTRACT – offer and acceptance – where terms of written agreement not signed – whether any action of either party created a contract –whether oral contract

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Bruce Jenkins
RESPONDENT:	Ms Nichole Jennings

REASONS FOR DECISION

The Application

This is an application brought by Mr Bruce Jenkins for payment of consulting fees for services provided during the period 24 April 2009 until 1 June 2009. The claim was initially filed in the Small Claims jurisdiction with a limit of claim being an amount of $7,500. The Applicant amended his claim allowing for the increase in the jurisdiction amount under the QCAT. The Applicant’s claim was particularised in Invoice number 125 prepared by the Applicant dated 17.6.2009 as follows:
Consulting fees from 24.4.09 – 24.5.09 plus 8 days pro rata$10,524.69
One Months Notice of Termination  $ 8,333.00
Disbursements – telephone  $      30.00
Parking 6 May Brisbane re: KPMG  $      35.00
Printing, binding & courier to Peter White   $     20.00
TOTAL  $ 18,942.69
On 3 December 2009 the Defendant filed a Defence admitting that the Applicant is self-employed as alleged in paragraph 2 of the Applicant’s Statement of Claim and denying all other allegations contained in paragraphs 1, 2, 3 and 4 of the Applicant’s Statement of Particulars of Claim. The Respondent alleges that at no time has the Defendant ever engaged or otherwise requested services for reward from the Applicant nor has entered into any agreement with the Applicant and the Applicant has not done work for the Respondent to which the Defendant might otherwise be liable to pay any money to the Applicant.

The Evidence

The Applicant deposes that he is a corporate finance consultant engaged in the provision of business advice in connection with capital raising and development and structuring of business projects.
The Applicant stated that he was introduced to the Respondent by a mutual friend who had recommended the Applicant as a suitable business advisor to assist the Defendant in the development and financing of a major integrated resort development in Sumbawa in Indonesia. (the “Ubantu project”). The Applicant provided to the tribunal voluminous evidence in a paginated bundle of documents attached to the claim. The bundle of documents contained 164 pages as evidence of some of the work the Applicant had performed for the Respondent. The bundle of documents contained a copy of the Agreement (unsigned), copy of UBANTU corporate structure, a submission dated 19 May 2009 regarding the UBANTU Resort as a Response to Request for Information by Avanti Commercial, various emails ,various invoices and accounts.
The Applicant contends that on or around 24 April 2009 the parties met and had a discussion about the Ubantu project. The Applicant contends that he discussed with the Respondent a role he could play in the project and he explained a strategy to bring the project to development that involved engaging expert consultants that were known to the Applicant. The Applicant contends that he was to bring discipline and structure to the proposed project. It was at this meeting that the Applicant contends he informed the Respondent that he did not “work for free” and a discussion then ensued regarding remuneration and the structure of the Applicant’s fee proposal and costs of the project. The Applicant contends at this meeting the Respondent made an offer for the Applicant to work with her and assist her and an offer was made to the Applicant that he could be considered for the role of CEO. This point was not disputed by the Respondent but she contends the offer was conditional on seeing how things went and whether the parties could get on and work together.
The Applicant contends that the discussed remuneration was that the Respondent would pay to the Applicant between $250,000 and $300,000 per annum plus incentives and bonuses. The Respondent disagrees with this evidence. The Applicant contended that he proposed a lower start-up fee structure whereby he would be paid $8,333 per calendar month with the amount increasing after initial financing was completed so as to receive $12,500 per calendar month together with costs of car allowance, telephone and other disbursements. The Applicant contends it was also agreed that the Defendant would pay to him a success fee of 1% of capital raised, sales revenue and any merger or acquisition. The Respondent disputes this evidence.
The Applicant relied upon the content of an Agreement that he had drafted. It was not disputed that the Agreement was not signed by either of the parties. The Applicant contended that he provided the Agreement to the Respondent on or around 6 May 2009 at a meeting of the parties. The Respondent disputes that.
The only evidence to support the contention of the Applicant that the Agreement was provided to the Respondent in written form is an email dated 5 June 2009 (Exhibit 1) from the Applicant to the Respondent enclosing an attached agreement. The email further notes that the Applicant states,
“after our discussion on Monday I make the following comments and proposal…. I do want to work with Ubantu… I am not in a position to work for no remuneration or only deferred reward…. I designed the consultancy agreement I presented…....I make the following amendments to my consultancy proposal for you and John to consider…”.
The email further states:
“please let me know your thoughts on this proposal , if acceptable to you and John, I would like to conclude an agreement on this today or tomorrow”.
The content of the email purports to support the evidence of the Respondent in that at no time did she agree to the terms and conditions of the consultancy agreement. Further, that the email from the Applicant to the Respondent acknowledges that the Respondent had not agreed to the terms and conditions of the first Agreement and the Applicant then amended the agreement and provided a further amended draft (‘second’ agreement) to the Respondent on 5 June 2009 for her consideration. The Respondent agreed that the first agreement was provided to her and it contained remuneration that included a monthly retainer fee of $12,500, provision of a BMW work vehicle and commission on the sale of any of the development property. I accept the Respondent received the first agreement and conveyed to the Applicant that she did not agree with the terms and conditions. The email of 5 June supports that contention. The Applicant then amended the Agreement and again presented it to the Respondent.
The Respondent contends she did not accept the terms and conditions of the ‘second’ agreement. The Respondent relies upon the email from the Applicant to the Respondent dated 6 June 2009 (Exhibit 2) to support her contention. The email from the Respondent states:
“I would like to get the matter of my remuneration resolved….I have done work…I have submitted a fee agreement that I understood was acceptable.”
It is clear from the evidence that as late as 6 June 2009 the issue of fees and remuneration was not resolved. The Respondent had not agreed to any of the terms and conditions of the Consultancy Agreement and communication by the Applicant to the Respondent supports that contention that no agreement had been reached.
Further evidence relied upon by the Respondent that she at no time had agreed to the terms and conditions of any Agreement drafted by the Applicant was an email from the Applicant to the Respondent dated 17 June 2009 (exhibit 3). That email states that the Respondent was aware at that time that the Applicant had no intention of engaging the Applicant as a Consultant nor agreed to his fee agreement. The content of the email does not correlate with the oral and sworn evidence of the Applicant. The Applicant filed an affidavit in these proceedings and sworn on the 13 November 2009. At paragraph 5 of that Affidavit is reference to Exhibit 1 whereby a bundle of documents were enclosed which included a copy of the Invoice that the Applicant deposes that had not been paid by the Respondent.
The evidence of the Applicant was that the Respondent repudiated the contract on 1 June 2009 when he first became advised that the Respondent did not agree to the terms and conditions of the Agreement. There is no independent evidence to support this contention. The Respondent contends there was never any agreement by her to accept the terms and conditions of the Agreement. The evidence of the emails and Exhibits 2, 3 and 4 supports the contention of the Respondent that as late as 17 June 2009 the parties were still in dispute regarding fees and costs the Applicant sought be paid by the Respondent.
The Applicant relies upon the decision of Empirical Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 to support his application and claim for works performed and services provided by him to the Respondent. In that case the facts are that a property developer retained a firm of architects to do work in connection with a property development. The architects were requested to undertake work as a project manager. The architects agreed to do the work. Further work was requested to be done. The architects requested a progress payment and the signing of a contract. The contract was provided. The architects were advised that the property developer ‘did not sign contracts’. After this advice, further work was done and the question arose as to whether there was a contract between the parties. The case held that while “silence is usually insufficient to create any contract the objective theory requires some external manifestation of consent…. silence is usually seen as rejection.” However, the case also held that ‘where an offeree, with a reasonable opportunity to reject the offer of goods or services, takes the benefit of them under circumstances which indicate they were to be paid for, the tribunal of fact may hold that the offer was accepted according to its terms.”
That case is distinguished on the facts of this case. In this matter the Applicant contends that after meeting the Respondent for the first time on or around 24 April 2009 that fees and remuneration was discussed and agreed at that point. The Respondent refutes that contention. I accept the evidence of the Respondent in that regard as the Respondent gave evidence that when the parties first met to discuss her project in Thailand the Respondent was wary as she had just met the Applicant and was non committal about their future working relationship.
The Respondent gave her evidence in a clear and consistent manner and her evidence appears in my view to have acted reasonably. The Respondent contends that she suggested that the Applicant and the Respondent travel to Indonesia to allow the Applicant to inspect the resort site and for the parties to ‘get to know one another’. The Respondent contends that while she had just met the Applicant on recommendation of a mutual friend the Respondent was more concerned as to whether the Applicant and her could get on and work well together. The Respondent’s evidence was that she arranged for the parties to travel to Indonesia aboard a private jet owned by the Respondent’s partner. The evidence of the Respondent was that the purpose of the trip was to show the Applicant the project site but also to socialise together and to get to know each other. It is agreed the parties attempted to travel to Indonesia between 11 and 14 May 2009 but were stranded in Broome in Western Australia as Indonesian air space clearance was not granted within sufficient time for the parties to travel. I accept that the parties waited in WA for three days before returning on the private jet to Coolangatta.
It is agreed by the parties that they again travelled to Indonesia departing from Coolangatta and boarding the private jet in Melbourne and flew via Darwin to Indonesia on or around 20 May 2009. The parties returned on or around 27 May 2009. I accept the evidence of the Respondent in that regard and the explanation contended by her for the reason the parties flew to Indonesia to inspect the site and to socialise together.
The evidence of the Respondent was that while in Indonesia the Respondent and her partner had concerns regarding the future working relationships with the Applicant. The Respondent’s partner, Mr John Trimble was a witness in the proceedings and gave evidence which supported the evidence of the Respondent. Mr Trimble’s evidence was that the parties stayed at the resort and all expenses for the Applicant were met by the Respondent and Mr Trimble. Both contended they did not request any payment for air fares, accommodation, food, alcohol or any expenses for the Applicant while they were in Indonesia. The evidence of the witness was that the purpose of the trip was for the Applicant to view the proposed project site and for the parties to get to know each other and to consider if a working relationship was possible.
The Applicant contends that the payment for his services included not only work for the Ubantu project but for attending to personal matters of the Respondent. The Respondent disputes that contention but did concede while giving evidence that the parties were socialising on one occasion when the Respondent did raise with the Applicant the difficulties she was having with her builder, sub contractors and interior designer while building her home at Hope Island. The Respondent gave evidence the problems related to issues of overcharging and poor workmanship.
The Respondent contends that the Applicant offered to help her out with those matters as a ‘friend would’ and that the Applicant said to the Respondent that “he had a lot of experience with builders and dealing with those type of matters”. The Respondent contends that the Applicant may have perceived a long term possible relationship with the Respondent and the Ubantu project and he appeared happy to “help her out.” The Respondent contended that she also believed the Applicant offered to help her with these problems as a gesture of good will and to perhaps thank her for picking up all expenses for the trip to Indonesia. The Applicant contends that the work he undertook by sorting out personal problems with builders and trades people was part of the work and fees covered under his Consultancy Agreement. The Respondent disputes that contention. I accept the evidence of the Respondent in that regard as the Respondent claims the amount of money in dispute with the builder and the interior designer was not a large amount and that she would not engage the services of the Applicant to sort out those matters if she believed she would have to pay for his services particularly in light of what she claims were his “excessive charges”.
The facts of the case of Empirical Holdings Pty Ltd v Machon Paull Partners Pty Ltd are distinguished from this case for the following reasons. In this case the Applicant contends that after the ‘first’ Agreement was given to the Respondent she continued to request him perform work for her and on that basis there was an inference that the Respondent had accepted the offer in the agreement regarding fees and remuneration. The Respondent contends that after the trip to Indonesia the Applicant was not involved any further with her project but merely assisted her with some personal matters. From the voluminous evidence provided by the Applicant the Respondent contends that the largest part of the evidence was that he prepared a Draft Proposal regarding the Resort that contained photos and information. The Respondent contends that the photos and information provided by the Applicant was material and information that the Respondent in fact had given to the Applicant herself. That fact was not disputed by the Applicant.
Further evidence provided by the Applicant included a voluminous bundle of email correspondence between the parties and various parties, including, a builder, Mr Danny Djordjevic, Aussie Cabinets, The Laminex group, 25 pages of specification and notes from Design & Procure – Interior Designer, with dates ranging from the 15 to the 18 and many on the 19 May 2009. A large number of the emails appear to be emails forwarded from the builder to the Applicant informing him of matters in dispute. The emails do not support the evidence of the Applicant that he undertook extensive work in dealing with these matters on behalf of the Respondent, other than an email on 18 May to the builder and cabinet maker raising issues of defects and payment. Further emails provided as evidence by the Applicant appear to be communications between the Applicant and financiers, dated around the end of April 2009 and emails from the Respondent to the Applicant forwarding to him contact details of communications between parties regarding financial models and reports for other similar projects.
The evidence provided by the Applicant as Annexure 1, while voluminous, does not support the contention of the Applicant that he undertook consultancy services including providing advice and consultancy regarding structuring , financing and development, marketing of the Ubantu report project, attended conferences with parties including Ms Jennings, Mr M Trimble, Mr Worcester, Mr Leighman, Mr White, Mr McDougall, Mr J Trimble, D Djordjevic, Ms Robinson, Ms Johns, Kents collections, Colliers Indonesia, Knight Frank Indonesia, Piesta Indonesia, Mr Toha and Mr Occy, Ms Lubis-Browne, Junarki Raharjo, Mr Pyke-Nott, Mr Ackerman, and Mr Andrew. The Applicant deposed in his Affidavit sworn on 13 November 2009 at paragraph 17 that as part of the work he did included preparing written advices, preparation of correspondences and writing of various reports. However, I note that none of the reports and advice the Applicant contends he drafted and prepared on behalf of the Respondent were tendered by the Applicant at the hearing to support his contention.
At paragraph 17 of the Applicant’s affidavit he deposes that annexure 1 page 135 contains proof of “discussions with various architects and instructions from the Defendant regarding the architect.” That annexed document is an email from the Defendant enclosing a resume of an architect in Indonesia and does not support the allegations deposed by the Applicant.
During the hearing the Respondent contended that the project is still some ‘2 years from getting off the ground’ and that at no time could she afford to pay the consultancy fee costs the Applicant had sought. The Respondent contended the resort is not making any money and that she was not in a position to be paying consultancy fees to any consultants at this stage of the development. The Applicant refuted that contention and stated that he was aware of other consultants that had been paid large sums for consultancy works.
When the hearing concluded on 25 May 2010 the Applicant sought leave to file further material in relation to the contention made by the Respondent that she had paid large sums to other consultants and could afford and had engaged and paid consultants to assist with this project. Leave was granted to both parties to file further affidavit material in relation to the evidence of the respondent and consultancy fees. An order was made that the Applicant could make file and serve within 14 days further affidavits from consultants involved with the respondent’s project specifically in relation to consultancy fees and that the Applicant could make file and serve an affidavit from Mr White from Evanti Commercial Services in relation to consulting fees paid to Mr White, Evanti Commercial Services or any related entities owned by Mr White.

The Applicant filed a further affidavit on 10 June 2010. The Respondent filed an affidavit in response sworn on the 15 June 2010. Both parties filed their affidavit material out of time but to be fair, just and equitable to both parties I will allow this material only to be filed late and therefore considered and taken into account.
The Applicant’s further affidavit of 10 June 2010 deposes that the Respondent has engaged a number of consultants in the development of the Ubantu resort. The Applicant states that the consultants have both been paid and unpaid. The Applicant annexed to his Affidavit letters from various alleged consultants. They include Worcester & Co Solicitors, Avanti Commercial, Jared Poole design, Townland Consultants Ltd, CMD Developments, the interior space (interior designers) and Anggia Lubis Browne & Partners Legal Consultants in Indonesia, and other proposed persons who could assist the Respondent in Indonesia.
The Applicant deposes that Avanti Commercial have been paid $27,500 for consultancy fees and the engagement of their services (exhibit ‘B’) and estimated costs of Jared Poole Design of $38,500.00, Townland Consultants estimating fees at (USA) $260,000.00, CMD Developments with proposed fees for consultancy services of $42,000 to oversee and supervise the master plan.
The Respondent in her affidavit of 15 June 2010 deposes that the invoice relied upon by the Applicant that particularises his claim purports that he undertook meetings and consultations with various persons. The Respondent has annexed to her Affidavit correspondence from Anggia Lubis Browne, Indonesian Lawyers, (Annexure “NJ-002”) in response to the Invoice raised by the Applicant in support to his claim. That correspondence confirms that at no time has the lawyer ever “had a working relationship with Mr Jenkins nor confer with him by telephone or otherwise in connection with Nichole Jennings during April to June 2009”. Further, correspondence from Avanti dated 2/6/2010 (annexure NJ-003) confirms that “the fees paid to Avanti Commercial and the related broker and to …. The US Program manager were… subsequently fully refunded”. The correspondence states that “the amount of $27,500 was fully refunded by Avanti Commercial” and that the LOI and Due Diligence Fee to Remington Financial Group Arizona USA being USD$15,000.00 which converted at the time to $18,750, was fully refunded by Avanti Commercial….and the total amount refunded by Avanti Commercial was $46,500 on 9 October 2009.”
Further correspondence annexed to the Respondent’s affidavit included correspondence from Max Leishman, the Managing Director of Eureka Blue dated 3 June 2010 (Exhibit NJ-004). That correspondence states that Mr Leishman was engaged to assist with funding for the project in Indonesia on a “success fee basis”. Further, Mr Leishman nor Eureka Blue “has ever had a consultancy agreement with the Respondent or the Respondents Company”. The correspondence provided further information regarding Mr Leishman’s involvement with the Applicant whereby he states that “I was introduced to Mr Jenkins via telephone… apart from some minor involvement by email, he participated in a 10-15 minute meeting where the proposal for finance was discussed, and he asked some questions by conference call in my presence of Peter White of Avanti Commercial Finance in Sydney….his involvement did not add value and was of no use in advancing funding for the project.”
The Respondent also seeks to rely on the content of correspondence annexed to her Affidavit from Mr Luke Butler dated 11 June 2010 (Annexure “NJ-005”). Mr Butler states that while he has acted for the Respondent regarding particular transactions relation to the Ubantu Resort project and met with the Applicant he has “declined to be involved in the funding of the project for the time being….has offered advice and been happy to answer questions and make suggestions…but confirms he is not owed any money from the Respondent.” He confirms “there is no commercial relationships between us, either as a result of Bruce Jenkins introduction or otherwise”.
I accept the evidence of Mr Leishman, Mr Butler and Mr White and accept that although the Respondent has engaged various consultants and experts to assist her and provide advice regarding her project there is no evidence to support the contention of the Applicant that fees have been paid to any retained consultants regarding the Ubantu project.
The Applicant contends that an oral agreement exists between the parties such terms and conditions as outlined in the first draft Consultancy Agreement prepared by the Applicant and presented to the Respondent. The Respondent contends that at no time had she ever agreed to the terms and conditions of any Agreement presented to her by the Applicant. The Respondent contends that after the parties visited Indonesia they returned to the Gold Coast. The Respondent gave evidence that the relationship between the parties broke down after the Respondent informed the Applicant they would not be working with him on the project in Indonesia and a position for him would not be forthcoming. I accept this would have been disappointing for the Applicant who had a desire to work on the Ubantu project as he believed it had enormous potential and financial gain for him (exhibit 1).
The Respondent provided evidence at the hearing that the reason for the falling out occurred when the Respondent discovered that the Applicant had spent time in prison for crimes of dishonesty or fraud and that meant it would be impossible for the Applicant to work with the Respondent in Indonesia. The Respondent contended the criminal history of the Applicant might jeopardise her relationship with the Indonesian government and therefore jeopardise the project. The Respondent deposed that she had worked on the project for the last 10 years and could not afford to risk employing the Applicant on the project because of his criminal history. The Applicant did not refute that contention of the Respondent but gave evidence that the mutual friend who had introduced them had advised the Respondent prior to the trip to Indonesia about his “past”.
The Applicant’s oral evidence was not supported by the exhibits and evidence annexed to his affidavit. The Applicant contended he had performed a lot of work for the Respondent but did not produce evidence of such work.
The Respondent gave her evidence in a calm, clear and responsive manner and could provide explanation and details regarding facts and circumstances raised by the Applicant but which the Respondent denied. The Applicant contended that upon meeting the Respondent for the first occasion there was a discussion and agreement about consultancy fees and remuneration. I do not accept that conversation or agreement occurred. The project in question is a project that was estimated to be required to raise investment capital of some UA$25 million. The Respondent contended that no such conversation or agreement was discussed regarding consultancy fees as the Respondent had just met the Applicant and wanted to determine firstly if she could work with him. I accept the evidence of the Respondent in that regard as the facts support the evidence that the Respondent did not discuss remuneration and would not do so until a mutually convenient working relationship had been identified and agreed. The Applicant also failed to produce any evidence of such agreement being reached and on his evidence he did not prepare any formal written Agreement until sometime in May 2009.
The Applicant contends that the first agreement was the same as the verbal agreement that had been previously agreed. The Respondent disputes that contention. It was consensual by the parties that the first agreement was not agreed too and a second agreement was drafted with amendments. That confirms the evidence of the Respondent in that she states that the Applicant drafted the first agreement making demands of a retainer of $12,500 per month, a BMW car, disbursements, bonus fees and commission on finance. Acknowledgement of the Respondent’s refusal of the terms and conditions of the Agreement is confirmed in the document marked as exhibit 1. As a consequence of the Respondent’s refusal to accept the terms and conditions of the first Agreement a second agreement was then prepared and forwarded to the Respondent on or around 17 June 2009. On 5 June and 17 June 2009 the evidence is unequivocal that the Respondent had not agreed to any terms and conditions the Applicant was seeking in his Agreement to be retained by the Respondent to work on the Ubantu project.
Where the evidence of the Respondent and the Applicant differed, on most occasions, I preferred the evidence of the Respondent. From the evidence I formed the view that the Applicant had a tendency to exaggerate his position including the amount of work he had performed for the Respondent compared to the evidence he supplied of the work actually performed. The Applicant made oral submissions and provided versions of events and facts that were not supported by the material he sought to rely upon.
On the evidence provided to this Tribunal I find that the Applicant has not proved that there was an oral agreement between the parties regarding consultancy fees and remuneration that would be paid by the Respondent to the Applicant. I distinguish this case on the facts from the decision of Empirical Holdings Pty Ltd v Machon Paull Partners Pty Ltd in that the Applicant did not present his written Consultancy Agreement to the Respondent and she then requested him to perform works and provide services to her. The Applicant claims payment for services provided from 24/4/2009 until 1/6/2009. The Applicant relies upon an oral agreement during this period. The only evidence the Applicant provided that he had provided a Consultancy Agreement in writing to the Respondent was on or around 5 June 2009.
As there is no contract in place I have also considered whether the Applicant can advance a claim for work done on a quantum merit basis. I am not satisfied that there was any such work performed by the Applicant on a consultancy basis for the Respondent relating to the Ubantu project as detailed in the previous reasons referred to herein.
I find that the Applicant has not made out his claim and it must therefore be dismissed.

Order

Claim is dismissed.