Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa - [2007] NSWSC 228

No judgment structure available for this case.

Reported Decision:
(2007) Aust Contract Reports 90-250

New South Wales

Supreme Court

CITATION: Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa [2007] NSWSC 228

HEARING DATE(S): 29, 30, 31 January 2007, 1, 5, 6 February 2007

JUDGMENT DATE :
21 March 2007

JURISDICTION: Equity - Commercial List

JUDGMENT OF: Bergin J

DECISION: No binding contract. Plaintiff entitled to recover expenses. Plaintiff's claim against the defendants for misleading or deceptive conduct fails.

CATCHWORDS: [CONTRACT] - Whether the parties had reached oral agreement on all essential terms with the intention of entering into a written contract no different from those terms - [QUANTUM MERUIT/EQUITABLE ESTOPPEL] - Whether, having regard to various aspects of the defendants' conduct, it was reasonable to assume a written contract would be entered into - Whether plaintiff entitled to recovery of expenditure incurred based on that assumption - [MISLEADING OR DECEPTIVE CONDUCT] - Whether the defendants represented that the first defendant would perform at the Concerts - Whether misleading or deceptive - Whether plaintiff relied on misrepresentation

LEGISLATION CITED: Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)

CASES CITED: Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221
Brewer Street Investments Ltd v Barclays Woollen Co Ltd [1954] 1 QB 428
Cadorange Pty Ltd (in liq) v Tanga Holdings Pty Ltd (1990) 20 NSWLR 26
Countrywide Communications Ltd v ICL Pathway Ltd [2000] CLC 324
E K Nominees Pty Ltd v Woolworths Ltd [2006] NSWSC 1172
Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072
Independent Grocers Co-operative Ltd v Noble Lowndes Superannuation Consultants Ltd (1993) 60 SASR 525
Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11,110
Gissing v Gissing [1971] AC 886
Masters v Cameron (1954) 91 CLR 353
POS Media Online Ltd v Queensland Investment Corporation [2001] FCA 809
Regalian Properties plc v London Dockland Development Corp [1995] 1 WLR 212
Sabemo Pty Ltd v North Sydney Municipal Council [1977] 2 NSWLR 880
Sinclair v Rankin (No 2) (1908) 10 WALR 126
Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
William Lacey (Hounslow) Ltd v Davis [1957] 1 WLR 932

PARTIES: Leading Edge Events Australia Pty Ltd (plaintiff)
Kiri Te Kanawa (first defendant)
Nick Grace Management Ltd (second defendant)
Nick Grace (third defendant)
Mittane Ltd (fourth defendant)

FILE NUMBER(S): SC 50161/2005

COUNSEL: RW Evans (plaintiff)
AS McGrath/KE Day (first and fourth defendants)
R Cobden SC (second and third defendants)

SOLICITORS: Vizzone Ruggero & Associates (plaintiff)
Henry Davis York (first and fourth defendants)
TressCox (second and third defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

BERGIN J

21 MARCH 2007

50161/05 LEADING EDGE EVENTS AUSTRALIA PTY LTD v KIRI TE KANAWA & ORS

Introduction

1 The plaintiff, Leading Edge Events Australia Pty Limited, is a company incorporated in Victoria and describes itself as a “promoter of events in the entertainment industry”. The plaintiff brings these proceedings against the first defendant, Kiri Te Kanawa (Dame Kiri), a renowned opera singer, the second defendant, Nick Grace Management Limited (NGM), a company carrying on the business of theatrical agent, the third defendant, Nick Grace (Mr Grace), a director of NGM, and the fourth defendant, Mittane Limited (Mittane), a company incorporated in Jersey, Channel Islands, through which the services of Dame Kiri are provided.

2 The plaintiff claims damages for breach of a contract allegedly entered into between it and a company known as Mitani Limited (Mitani), a company incorporated in Switzerland, later replaced by Mittane. It is alleged that Mitani agreed to provide the services of Dame Kiri to perform at concerts with John Farnham (Mr Farnham), a renowned Australian popular singer, in Sydney on 5 February 2005 and in Melbourne on 12 and 13 February 2005 (the Concerts); and that in breach of that agreement, Mittane refused to provide the services of Dame Kiri to perform at the Concerts. The plaintiff also claims that Dame Kiri warranted that she would perform at the Concerts, and in breach of that warranty failed to perform at the Concerts. The plaintiff also makes a claim for the expenditure it incurred on a quantum meruit basis, although not pleaded, and for restitution in relation to that expenditure based on an equitable estoppel claim. There are also claims against Dame Kiri for breach of s 42 of the Fair Trading Act 1987 (NSW) (FTA) and against NGM and Mittane for breach of s 52 of the Trade Practices Act 1974 (Cth) (TPA), in relation to alleged representations that Dame Kiri would perform at the Concerts. Finally, there are claims against Dame Kiri and Mr Grace that within the meaning of s 75B of the TPA they were knowingly involved respectively in Mittane’s and NGM’s breaches of s 52 of the TPA.

3 The plaintiff conceded that it was “difficult” to ascertain the time at which the alleged contract was made in this case (tr 428). It was submitted that such ascertainment was heavily dependent upon a detailed analysis of the communications, both oral and written, between the parties and others during the period June 2003 to April 2004. The majority of that analysis is in any event necessary for the determination of the plaintiff’s other claims in estoppel and for misleading or deceptive conduct. In these circumstances it is appropriate to describe the parties and others who were part of or party to those communications and events over that period.

The parties and others

4 The directors of the plaintiff are Frank Lee Williams (Mr Williams) and Eileen Rosalind Newbury (Ms Newbury). Mr Williams and Ms Newbury became joint directors of the plaintiff in 2002, when they decided to pursue together the business of promoting events in the entertainment industry. Mr Williams’ experience had been mainly in the promotion of golfing events whilst employed as the General Manager of International Management Group (IMG) between 1988 and 1994. From 1994 to 1999 he lived in Florida, USA, working as the personal agent of the Australian champion golfer, Greg Norman. After returning to Australia in 1999 Mr Williams continued to look after Mr Norman’s Australian affairs until 2001 and was also a consultant to entities in the golfing industry. Ms Newbury’s experience was as an events co-ordinator in the 1980s and early 1990s. In 1996 Ms Newbury commenced operating under the business name “Leading Edge Events”, promoting various large events in which she had particular experience with the preparation of budgets and obtaining sponsorships.

5 Whilst Mr Williams was employed at IMG it promoted some of Dame Kiri’s concert performances. At that time Mr Williams’ role was to source and screen potential performances for Dame Kiri, to negotiate the terms on which she would appear and to liaise with her and her then husband, in relation to the detail of those performances. Mr Williams’ evidence was that he “put the deals together”, organised sponsorship and ticket sales to the general public, selected and secured venues and supervised the merchandising, advertising and marketing in respect of Dame Kiri’s performances. In his role as the General Manager of IMG, Mr Williams was involved in projects for three of Dame Kiri’s performances: one at Mitchelton Winery (in Victoria) in 1989; another at the Melbourne Concert Hall in 1990; and a further concert at Werribee Park in Victoria in 1993.

6 Dame Kiri is a classically trained lyric soprano and has been singing since three years of age. She has been a full time opera singer since 1969 and in 1982 was made a Dame of the British Empire by Her Majesty Queen Elizabeth II. In 1990 Dame Kiri was invested with the Companion Order of Australia and was awarded the Order of New Zealand in the 1995 Queen’s Birthday Honours List. Dame Kiri has received numerous honorary degrees and doctorates from universities around the world and is an honorary fellow at the Royal Academy of Music in London and a visiting professor at the Royal College of Music in London. Dame Kiri performs an average of 20-30 concerts around the world every year, including orchestral concerts, piano recitals, charity concerts, private engagements and concerts for the Kiri Te Kanawa Foundation (the Foundation). Dame Kiri’s musical director is Julian Reynolds.

7 Dame Kiri spends the majority of her time in the United Kingdom and New Zealand when not performing in other countries. One of her residences is in the Bay of Islands on the north east coast of the north island of New Zealand and is some hours by road from Auckland. Dame Kiri’s 60th birthday was on 6 March 2004, and she had planned to celebrate it at a party with guests, some of whom had travelled from other parts of the world, at her Bay of Islands residence on 1 March 2004. That celebration and the arrival of guests prior to it, impacted on the time Dame Kiri had available for a planned meeting with Mr Farnham in Auckland on Sunday 29 February 2004.

8 Dame Kiri was an “employee” of Mitani up to 31 December 2003, and from 1 January 2004 became an “employee” of Mittane. Although Mittane was registered as a private company in Jersey in the Channel Islands on 1 October 2003, it did not commence operations until 1 January 2004. Since that date it has been Dame Kiri’s employer in respect of her activities in all parts of the world other than the United Kingdom and the Irish Republic. Dame Kiri is the sole employee of Mittane and is not and never has been a shareholder or director of Mittane. Mittane performs numerous activities including liaising with financial and taxation advisers, musical assistants, musical directors or promoters and others who assist in arranging concerts for Dame Kiri. Andrew Quentin Schofield Green (Mr Green) has been a director of Mittane since 7 October 2003. Mr Neil Grainger of Stellar Financial Partners (Stellar), was described by Dame Kiri as her “financial person in England (tr 338).

9 Mr Grace completed his studies at the Guildhall School of Music and Drama in London in 1981 and then worked as Production Manager for the London City Ballet until 1984 when he started his own production company, NGM, to provide tour, production management and consultancy services. From 1991 to 1993 Mr Grace worked for IMG in London, producing special events for that company. Mr Grace left IMG in 1993 to focus on producing his own projects with NGM. Since then, NGM has produced many successful concerts and musicals. In 2002 Mr Grace created a dance company called “Bounce”, referred to as a “streetdance” company, which has toured the UK, Europe and South Africa. Mr Grace is presently the Associate Producer and General Manager of the International Tour of the successful musical “Mamma Mia!”.

10 NGM and Mr Grace were contracted to Mitani and another company, Impresario AG, between 1995 and 1998, to provide services to assist their employee, Dame Kiri, in relation to her performances in the United Kingdom. Between 1998 and 31 December 2003 NGM was engaged by Mitani to provide the services of Mr Grace to support and assist Dame Kiri outside of the United Kingdom, such services included: dealing with producers and promoters; acting as Dame Kiri’s representative as required; and performing such other functions as Mitani may have reasonably required from time to time. Between 1 January 2004 and 16 November 2005, NGM was engaged by Mittane to provide the services of Mr Grace to support and assist Dame Kiri, pursuant to an agreement for services dated 23 December 2003 between Mittane, NGM and Mr Grace. Those services were to include the same range of services referred to above in the Mitani agreement. NGM and Mr Grace were responsible for finding commercial opportunities to recommend to Mitani, and later to Mittane, for Dame Kiri. NGM and Mr Grace liaised with the directors of those companies about his dealings with producers and promoters on production management issues, in particular the selection and approval of performance venues and orchestras. The respective agreements with Mitani and Mittane provided that nothing in those agreements rendered NGM or Mr Grace an employee, agent or partner of Mitani/Mittane and also provided that NGM and Mr Grace would indemnify Mitani/Mittane for all liabilities resulting from their acts or omissions whilst providing their services (cl 8 & cl 9).

11 Paul Duke Gleeson is the managing director of Paul Gleeson Associates and describes himself as a sports and entertainment management and marketing consultant, based in Auckland, New Zealand. He has been involved in the management, promotion and marketing of many high-profile sports and arts events over the past 30 years. Mr Gleeson first met Dame Kiri in 1982 and since 1983 has been involved in the organisation of all of Dame Kiri’s concerts and endorsements in New Zealand, including television commercials and sponsorship arrangements, as well as being involved in the organisation of similar concerts in Australia.

12 Mr Gleeson’s usual practice in relation to arrangements for Dame Kiri’s performances, at least since 2002, has been to make contact with one or more of the directors of Mitani and later Mittane, to advise them of a promoter’s interest. Those directors would then advise Mr Gleeson of whether or not any proposal suggested by the promoter was agreed to in principle. In the event that Mitani/Mittane agreed to the proposal in principle, Mr Gleeson would draw up a draft agreement for Mitani/Mittane’s approval and either Mitani/Mittane or Mr Gleeson would send that agreement to the promoter for negotiation and execution, and then return it to him.

13 These arrangements were obviously aimed at, inter alia, protecting Dame Kiri from having to deal directly with promoters who wished to secure her agreement for performances. The arrangements were also structured to protect Dame Kiri from having to contract personally with promoters for such performances. It was the companies that employed Dame Kiri (Mitani/Mittane) that entered into those contracts with promoters, in which they promised to procure the performance of their employee at the proposed performances.

14 Mr Farnham, a recipient of the Order of Australia, was not a witness in these proceedings. His career has spanned over thirty years and at the time of the events the subject of this litigation, he was lauded in the promotional material for the Concerts as Australia’s top performing artist. He was inducted into the Australian Recording Industry Association (ARIA) Hall of Fame in 2003. Mr Farnham’s musical director is Chong Lim. Glenn Dawson Wheatley (Mr Wheatley) is the managing director of Talentworks Pty Ltd (Talentworks), Mr Farnham’s manager. Mr Wheatley has been involved in the entertainment industry for forty years and has been involved, personally and later through Talentworks, in the management of Mr Farnham since approximately 1982. In addition to managing Mr Farnham, Talentworks is also a concert promoter and artists’ agent and has been involved in the entertainment industry since approximately 1994.

15 Adrian Lloyd Bohm is a concert promoter and theatrical producer who has been promoting concert tours and theatre productions in Australia and New Zealand over the past 26 years. Mr Bohm established the company Adrian Bohm Presents Pty Limited (ABP), of which he is the only director and shareholder, in the late 1980’s and it is that company that promotes and produces the concerts and theatre productions. Mr Bohm promoted concerts for Dame Kiri in 2003 and for Mr Farnham in 2004. He also promoted a series of piano recitals for Dame Kiri in June 2006 in Brisbane, Sydney and Melbourne. Notwithstanding his prior involvement with Dame Kiri, no objection was taken to Mr Bohm purporting to give evidence as an expert. Mr Bohm gave some lay evidence of the reasons why Dame Kiri’s 2003 concerts, of which ABP was the promoter, were less successful than anticipated (tr 385) to which I will refer later.

16 There are also references, in the communications and events referred to below, to officers of the Sydney Festival, the Botanical Gardens Trust/the Domain and the Werribee Park Mansion in Victoria in respect of the arrangements that were being put in place to secure the Domain and the Werribee Park Mansion, as venues for the Concerts on the planned dates in February 2005.

Entertainment industry

17 The evidence in this case establishes that the business of promoters operating in the entertainment industry is in many respects like any other entrepreneurial commercial enterprise where commercial risks are taken in the pursuit of profit. However a distinguishing feature of the risk in the entertainment industry is that in many instances there is heavy reliance on the performance of one person to achieve that profit. It is common for the performing artist to be “managed” by an agent with whom the promoter must negotiate and contract for the services of the performer. In this way the commercial matters are left to the agents and/or managers whilst the performer is more focused on creativity. That is not to say that the performer is disinterested in the pursuit of profit. As Dame Kiri admitted in her evidence, sensibly in my view, the fact that a fee may be $50,000 or $200,000 would “make a difference” to a willingness to perform (tr 304).

18 Mr Bohm’s evidence provided a little insight into some of the risks for the promoter in the entertainment industry. His evidence was that there are many costs that are incurred in relation to promoting a concert that cannot be recouped until significant amounts of tickets are sold for the concert. He said it is common practice within the concert promotions industry for the performance contract to provide that 50% of the performance fee is to be paid to the artist (or the artist’s employer or management company) at the time that the performance contract is signed with the balance being paid just prior to the concert. It is common for that fee to be non-refundable if the concert is cancelled because the ticket sales are not meeting expectations. Mr Bohm also gave evidence that the promoter needs to be able to have the funds available to it to meet such expenses and to take the risk of loss of those funds. He said that a large concert for an established artist, such as one of the concerts that he had promoted at a winery, will cost somewhere between $500,000 and $700,000 in upfront expenses to stage.

19 There was an unsuccessful attempt to elicit evidence from Mr Bohm of a so-called industry practice in relation to the promoter’s risk prior to a contract being signed. However Mr Bohm did give evidence that prior to a contract being signed, he limits ABP’s expenditure in relation to a proposed concert to no more than $5,000 to $10,000 because he takes the view that he carries the risk prior to that time. That approach seems to me to be commercially sound, however much will depend upon the particular negotiations and the particular contract.

20 The process of determining whether an agreement was reached between the plaintiff and Mittane to procure the services of its employee, Dame Kiri, to perform at the Concerts, has not been assisted by the plaintiff’s approach at trial. I will make further reference to that approach later, but at this stage I merely record that it has made it necessary to adopt the following rather lengthy recitation of the detail of the events and communications between the parties between June 2003 and June 2004. The first period is between June 2003 and December 2003, during which it is alleged that agreement had been reached between the plaintiff and Mittane. The second period is between January 2004 and June 2004 during which the plaintiff relies upon the events and communications in support of its claim that a contract was entered into in December 2003. The plaintiff also relies upon the events and communications in both periods in support of its equitable estoppel case and its claims of misleading or deceptive conduct.

June 2003 to December 2003

21 It was in 2003 that Mr Williams had the idea of replicating the 1993 Werribee Park concert. In June 2003 he made contact with Paul Gleeson in New Zealand to find out how to contact Dame Kiri. On 18 June 2003 Mr Williams wrote to Dame Kiri, via Mr Gleeson, in the following terms:

Long time no speak – trust you are well!

I was thinking I would like to duplicate a concert next year similar to the one we held at Werribee Park some years ago. Obviously we would structure a deal based on ticket sales but I have an idea where we could do a vast concert for the masses with sponsorship from a major company, similar to when I did the Nissan deal.

22 The “Nissan deal” in that email is a reference to the concert at the Melbourne Concert Hall in 1990 that Mr Williams claimed was a one-off concert for one of IMG’s major corporate clients, Nissan, for it to provide corporate hospitality for its customer base.

23 On 24 June 2003 Mr Grace responded to Mr Williams’ email, advising that he had passed it on to Dame Kiri and would be speaking to her about it in the following week. On 2 July 2003, Mr Williams sent a further email to Dame Kiri, via Mr Grace, in the following terms:

Further to our enquiry, we have now found two locations, one in Sydney, one in Melbourne that would be ideal for a Kiri Concert. However, before proceeding further, I need to know:

(a) Your level of interest
(b) Appropriate dates when you are in this part of the world
(c) How you would like me to structure the deal

Therefore, could you let me know the answers to the above.

I personally believe that we should structure the deal with a guarantee to you, plus a percentage of the gate receipts after budgeted expenses. Thereby, maximizing your income for the concerts.

24 On 3 July 2003 Mr Grace responded to Mr Williams by email in the following terms:

[M]any thanks for your email. I saw Kiri yesterday to discuss this and she sends her kindest regards. To be perfectly honest, the level of interest will be dependant upon the financial offer. We would be happy to work on the structure you are proposing. Bearing in mind that Kiri performed three concerts in Australia in March of this year, what dates would you propose? I don’t think it would work with less than two engagements.

I’m with Kiri all day tomorrow (she’s launching a ship on the Thames!) and will talk to her again if you can get back to me tonight! (Kiri is away on holiday for two weeks).

I am copying this email to Paul Gleeson who, as you know, looks after Kiri’s interests in NZ and Australia.

25 On 4 July 2003 Mr Williams wrote again by email to Mr Grace in the following terms:

We have spoken to the venues concerned and the perfect timing for us would be late January, early February 2005, or late 2004. One would be to launch a winery in the southern highlands of New South Wales and the other would be a venue in Melbourne. We would be willing to look at a third engagement, perhaps doing a joint venture with Paul in New Zealand. Obviously we will fit into your schedule when you feel it is a convenient time, but a long lead up time is very important.

We could guarantee $200,000 fee per concert x 3 concerts, plus expenses or a 50/50 split of profits whichever is the greater.

To maximise income we would need a commitment to the date, preferably as soon as possible to enable us to build the hype and advertising necessary to make each concert a blockbuster.

26 On 7 July 2003 Mr Gleeson had a telephone conversation with Mr Williams in which Mr Williams spoke to him about the two concerts for Dame Kiri in Australia. Mr Williams asked Mr Gleeson whether he could identify a third concert venue in New Zealand with a capacity of 20,000. Mr Gleeson informed Mr Williams that he had been working for some time on two New Zealand piano recitals for Dame Kiri during January/February 2005 and suggested that Mr Williams perhaps consider Perth as a viable third option because of previous successful concerts previously held in that city. Mr Gleeson gave evidence that he said to Mr Williams:

You should also seriously consider a support artist to sing with Kiri – preferably an Australian male which would increase the local interest. Anthony Warlow is a good possibility because there would be good duet programming possibilities.

27 On 8 July 2003 Mr Grace responded to Mr Williams’ 4 July 2003 email in the following terms:

[M]any thanks for your quick reply.

Late January, early February 2005 would be ideal (late 2004 is impossible).

I’m not sure if Kiri wants to do anything in NZ for 2005 as she will be quite active there in February/March 2004 – but lets speak to Paul first to see what he thinks.

Our first preference would be to consider three Australian engagements to help amortise the costs (maybe one of these could be a private engagement – which could be a piano recital or an orchestral concert – what do you think?)

Thankyou for the financial offer – we are happy to work on a guarantee (and expenses) against a 50/50 split of profits, whichever is greater. One question – would you act as sole promoter or will you have promoting partners?

28 On the same day Mr Williams responded to Mr Grace’s email in the following terms:

Ive spoken to Paul and he is looking into something for New Zealand but feels that as Kiri is doing something for her foundation early 2005 it might not be appropriate. Anyhow lets see what he comes back with Ive offered to co-produce with him if he wants to. At this moment in time I would prefer to be the sole promoter in Australia as it eliminates conflicts but if a major sponsor wants to co-produce I don’t have a problem with that as most of the major companies have huge resources to promote as well as guaranteeing large ticket sales. Can you please confirm dates in Jan Feb 2005 one for Melbourne and one for Sydney. I will also approach private individuals (Richard Pratt) to see if we can do a private recital for his company. I would also appreciate receiving Kiri’s contract and rider details so that there are no surprises when we come to draw up the legals. I am going to approach the Melbourne Symphony and the Sydney Symphony I presume that Kiri still has a personal preference as to her conductor. Anyhow this is all details down the track at this stage I just need a commitment and dates.

29 Mr Grace responded to Mr Williams on 9 July 2003 in the following terms:

I’m out of the office today but I will arrange for Claudia to email you a standard draft contract and rider for your reference. Regarding dates, we are reasonably flexible, so please advise on your preferred dates. Please bear in mind that Kiri needs three days off between engagements (although one of these days could be a travel day).

30 On 9 July 2003 an employee of NGM (Claudia Wood) sent an email to Mr Williams in the following terms:

Further to Nick’s email, I am attaching a sample contract together with riders, for your reference.

Please note that the services of the conductor and sound engineer would need to be contracted separately. An indication of the type of costs involved:

Conductor: for approx. GB ₤ 3,500 per concert plus a per diem to be negotiated, plus business class flight & hotel Sound Engineer: Fee of approx. GB ₤ 2,000 per concert plus a per diem to be negotiated, plus business class flight & hotel.

Please could I also emphasise the rehearsal requirements. If we assume that it would be a different orchestra per venue, we would need nine hours of rehearsal on the two days before the concert day, plus a morning rehearsal (10am to 1pm) on stage on the day of the concert.

I am attaching an generic orchestral line-up for Kiri’s big concert programmes, to give you an idea of the numbers involved.

31 The “standard draft contract” that was attached to that email was in the form of a letter on Mitani letterhead (the Mitani Letter), with provision for a signature for Mitani. At the last page after the section for Mitani’s signature, there was a heading “Memorandum of Agreement”, under which there appeared the words: “We hereby agree to the above terms and conditions which we confirm constitute a legally binding agreement between us” with provision for the date and the signature of the proposed contracting party.

32 The Mitani Letter dealt with a number of topics and under the heading ”The Concerts”, provided relevantly that: Mitani would procure Dame Kiri to perform at the Concerts (cl 1.1); the works to be performed at the Concert and the running order would be decided by “mutual agreement as soon as practicable” (cl 1.3); Mitani would procure Dame Kiri to attend “post-Concert sponsor’s receptions” subject to the provisions set out in the Rider (cl 1.10); and that Dame Kiri was entitled to have collaborative input and be fully consulted on all creative aspects of the Concerts (cl 1.11).

33 Clause 4 provided as follows:

4. Financial Arrangements

Fee: Subject to Negotiation

The Performance Fee shall be non-refundable in any circumstances (including the cancellation of the Concerts due to KTK’s illness or injury) other than cancellation of the Concerts due to the default of Mitani.

Time shall be of the essence in making all payments under this Agreement. Failure to make any payment by the due date shall be deemed a material breach of the Company’s obligations entitling Mitani to terminate this Agreement forthwith on notice without prejudice to any other right to damages Mitani may have.

34 Although there was reference in clause 4 to time being of the essence, there was no provision stipulating the time at or by which the “Fee” had to be paid, nor was there any provision stipulating the method by which payment was to be made. Clause 7 provided:

7. Sponsorship

The involvement of any sponsor in the Concerts (including the display of signage) shall be subject to the approval of KTK (not to be unreasonably withheld or delayed) and the Company agrees that the involvement of any sponsors shall not imply in any way that KTK endorses any product.

35 Clause 11 provided relevantly:

11. General

If requested by the Company, Mitani agrees that KTK will complete a medical affidavit in the form required by the Company. The Company undertakes to keep the contents of such affidavit confidential and only disclose it to insurers for the purpose of arranging insurance in connection with the Concerts.

11.2 Mitani hereby warrants and confirms that Mitani has the right to enter into this Agreement. Mitani also warrants and confirms that KTK has read and understands the foregoing agreement between the Company and Mitani and agrees to perform all of the services required to be performed by her hereunder and otherwise to comply with all obligations undertaken by the Company pursuant to the foregoing agreement sofar as they concern her. KTK shall look solely to Mitani for any and all moneys payable to her in connection with such services. In the event that Mitani is unable or fails to provide KTK’s services under the foregoing agreement, KTK will be bound by and perform all the outstanding terms and conditions of this agreement requiring performance or compliance on her part.

…

11.5 This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous discussions or correspondence in relation to its subject matter.

36 On 16 July 2003 Mr Williams sent the following email to Mr Grace:

sic

37 Mr Grace had advised Mr Williams that one reservation that both he and Dame Kiri had about performing in Australia again, was that the concerts promoted by Mr Bohm’s company ABP in early 2003 were not very successful. Mr Williams claimed that in a conversation with Dame Kiri in July 2003, Dame Kiri advised him that her last experience in Australia was not a good one and that she and Mr Grace had said that it was the last time that she would tour Australia. In cross-examination, Dame Kiri agreed that she had a telephone conversation with Mr Williams in about July 2003, and gave evidence that the “reservations” about returning to Australia at that time which were “not musical”. Although Dame Kiri could not recall informing Mr Williams that her last experience in Australia was not a good one, she recalled saying words to the effect of “I don’t think I need to go back there” (tr 304).

38 On 16 July 2003 Mr Gleeson wrote by email to Mr Williams asking him to ensure that future messages were copied to him directly saving Mr Grace from the need to forward them to him. Mr Gleeson advised that Dame Kiri’s concerts in 2003 had been produced by Mr Bohm in the Hunter Valley, Tandunda in the Barossa Valley and the Myer Music Bowl in Melbourne; and expressed some opinions as to why the ticket sales were not up to expectations.

39 On 18 July 2003 Mr Williams wrote to Mr Grace in the following terms:

I have been doing some research re Kiri’s last concerts in Australia and the following has come to light.

(a) Concerts badly promoted and marketed.
(b) Advertising cut back dramatically.
(c) TV and radio interviews (local only) not in the right programmes.
(d) Kiri did very little in the way of quality interviews.
(e) Promotion and marketing non existent.
(f) Non of the special tour operators were given the opportunity to put packages together.
(g) Tourism industry did not participate or sponsor.
(h) Sponsor packages were not offered into the market place.

40 Mr Grace responded to Mr Williams’ email on 18 July 2003 advising that he thought Mr Williams was “absolutely correct”. Mr Bohm accepted in evidence that the concerts were not particularly successful and proffered a reason that he probably misjudged the level of business that he expected it to do (tr 385). He analysed the concerts afterwards and claimed each one had its own case: three different cities, three different venues, three different circumstances (tr 385). He described each one as follows (tr 386-387):

The South Australian one was an event that I produced. Previously Dame Kiri had been to Adelaide for an outdoor concert in the - about four or five hours drive from Adelaide, which was not successful, and I believe that affected my event. There were a lot of things around that. The person who did it, produced it, went into bankruptcy and there was a lot of bad publicity that surrounded that event.

The second one was the Hunter Valley. Again, the Hunter event actually covered the costs, so I wasn’t concerned about it too much.

41 Mr Grace wrote to Mr Williams on 17 July 2003 in the following terms:

I will be seeing Kiri w/c 4th August and will go through the venues and dates with her just to make sure she is OK to proceed prior to draft contracts.

However, I should advise you that it is unlike[ly] she will accept the Australian Philharmonic who were very mediocre for all of Kiri’s recent three concerts in Australia. Also, with hindsight, Adrian would have preferred to have had a different orchestra in each city, due to the costs of moving the Australian Philharmonic around. We don’t mind either way (as long as they are top orchestras), but obviously different orchestras mean more rehearsals.

42 Mr Williams responded on 18 July 2003 in the following terms:

Strange as it may seem logistically it is considerable ( sic ) cheaper to stick with the one orchestra as it saves on rehearsal time. Also the Sydney Philharmonic is considerable ( sic ) more expensive almost twice as much for rehearsals. Im surprised that the orchestra was not up to scratch as they are acknowledge ( sic ) as the best in Australia. Could there have been a clash with the promoter or perhaps costs cutting due to ticket sales, who knows I can only speak as I find, and they have been excellent in all past concerts.

43 On 11 August 2003 Mr Williams wrote to Mr Grace in the following terms:

Pre planning now underway for concerts. Venues secured. Need to sign contracts soon. Please confirm dates of 5th and 12th February, 2003 in Melbourne and Sydney confirmed.

44 On 11 August 2003 Mr Grace responded by email in the following terms:

As already explained, I need to reassure Kiri regarding the choice(s) of orchestra(s) for the two engagements prior to any contractual commitment – please advise as soon as possible.

As the contract will refer to a possible profit-share, I would also be grateful if you could send me, when possible, copies of the draft budgets which will eventually be attached to the agreement.

45 That evening Mr Williams sent a further email to Mr Grace in the following terms:

We would be happy for either yourself or Kiri to choose the orchestra if you have any preferences, but it is essential that we obtain that choice now to secure the appropriate dates. It seems apparent that the Melbourne Philharmonic Orchestra is a no-no for you. That leaves us with the following orchestras:

1. Sydney Symphony Orchestra
2. Melbourne Symphony Orchestra
3. Orchestra Victoria

All three have worked with Kiri previously. Does Kiri have a preference from the above list?

We cannot understand the concern regarding The Australian Philharmonic Orchestra as they have accompanied the three tenors and Pavarotti on two occasions, both highly successful. If you can be more explicit about your problem, perhaps we can solve it, but once again whatever Kiri wants in the way of an orchestra is fine by us.

We will be glad to send a finalised budget when all other factors are put into place i.e. orchestra, rehearsal times, etc.

My mobile phone number for Kiri is out of date, if she wants to ring me the number is (number provided). Although it would appear we have a long lead up time, it is imperative we now get moving and put the venues and orchestra in place.

In my opinion, as I mentioned previously, the reason Kiri’s previous concerts were not the success they should have been was

(a) inexperience of the promoter
(b) a short lead up time.

Rest assured that this will not happen in our case.

46 Mr Williams telephoned Mr Gleeson on about 19 or 20 August 2003 and advised him that Anthony Warlow was not available, and that Mr Farnham “might be a possibility” to strengthen the appeal of the Concerts. Mr Farnham had just completed a very successful concert tour and Mr Williams was also aware of concerts that had been held overseas which had jointly featured opera and “pop” singers.

47 Mr Williams telephoned Mr Wheatley and put the proposal to him. Mr Wheatley agreed that the proposal sounded good and that he would speak to Mr Farnham. Mr Wheatley subsequently telephoned Mr Williams and advised that he had spoken to Mr Farnham, and claimed that he was interested. Mr Wheatley asked Mr Williams whether it could be a “joint venture”. Mr Williams advised Mr Wheatley that he was thinking it could be a four way split, and that he had offered Dame Kiri $200,000 per concert plus a share of the profits. He suggested offering Mr Farnham the same fee and that after the fees and expenses were paid the profits could be split four ways between the plaintiff, Mr Wheatley, Dame Kiri and Mr Farnham.

48 Mr Williams informed Mr Grace of the proposal to have a joint concert with Dame Kiri and Mr Farnham. Mr Grace said that he knew of Mr Farnham and Mr Williams claimed Mr Grace said that he thought it was a “great safety valve financially” and that he would talk to Dame Kiri.

49 On 22 August 2003 Mr Grace wrote to Mr Williams in the following terms:

[M]any thanks for the chat today – it would be great to make all this happen (including a recording)!

Kiri has actually just called (4.00am NZ time!) so I talked to her about John Farnham. She’s very interested of course but, like all singers, is concerned there is enough suitable material for them to sing duets. She asked me for some of John’s cds so I have asked Paul to do this for me as he will be seeing her later today in Auckland. I can’t believe this will be a problem.

You should receive a letter of intent from Mitani either later today or tomorrow latest.

50 By letter dated 21 August 2003 Mitani wrote to Mr Williams in the following terms:

With regard to the services of KIRI TE KANAWA, I can confirm that we are provisionally holding the dates of 5th & 12th February 2005 for possible concerts in Australia (Melbourne & Sydney) featuring Kiri Te Kanawa and John Farnham.

51 By email dated 27 August 2003 Mr Grace advised Mr Williams that he had spoken to Dame Kiri who had listened to some of Mr Farnham’s CDs and was “particularly interested as to the type of songs (duets)” both Mr Williams and Mr Wheatley had in mind for Dame Kiri and Mr Farnham. Mr Grace advised that any ideas would be most appreciated.

52 During September 2003 Mr Williams had further discussions with Mr Gleeson in New Zealand in relation to the prospect of having a joint concert in New Zealand following the Australian Concerts. Mr Williams also worked with Ms Newbury to work up a financial model for the Concerts with a view to producing an initial draft budget. He also had a number of meetings with Mr Wheatley in relation to the proposed arrangements between Talentworks and the plaintiff in respect of the Concerts.

53 Mr Williams had been hopeful of securing Government House for the Sydney concert, but the venue was too small to accommodate the anticipated numbers at the concert. Mr Williams and Ms Newbury then organised for an alternate site, the Domain, for the Sydney concert.

54 On 14 September 2003 Mr Williams again asked Mr Gleeson about a third venue in New Zealand, this time with a capacity of 25,000. Mr Gleeson claimed that the following conversation took place:

Gleeson: I am still working on the two piano recitals in New Zealand during the same period.

Williams: Don’t confirm anything on those recitals until we have a better idea about an outdoor venue in New Zealand for a possible concert with Kiri and John Farnham.

55 On 24 September 2003 Mr Wheatley sent an email to Mr Williams stating “We are in!”. On 30 September 2003 Mr Grace sent an email to Mr Williams advising that he was pleased to confirm that Dame Kiri “would be happy to work with Orchestra Victoria for both engagements”. Mr Grace also advised that he was looking forward to receiving the draft budgets. On the same day Mr Williams sent an email to Mr Grace in the following terms:

Everything progressing well, Farnham now confirmed in writing venues looking good. John and Glen; now working out possible programme and song suggestions two that I personally think could be appropriate would be Simply the Best (Tina Turner song) and for establishing rapport Anything you can do. (Annie Oakley). just suggestions from a layman who cant sing a note. I have asked Glen to send KiriDVD of Johns last concert (75,000 sold to date) can u give me an address to send. The deal I have struck with Farnhams company that this will be a joint production between Leading Edge Events (me) and Talent Works (Glen Wheatley) with guarantees of $200,000 per performance for Kiri and John. Then I will split 50/50 profits with Kiri and Glen will do the same with John. I will send budgets withinthe next week or so the bottom line is looking really good especially if we sell all the corporate sponsorships. There are also revenue streams that I am working on with Glen that at this time are not in the budget. ie. event cable television, memorabilia etc. Glen has asked who is Kiris recording company and thinking of a possible record prior to xmas 2004. John is with BMG and believes they would jump at the chance to record with both artists. How does Kiri feel about a third concert in WA or QLD we are currently looking for suitable sites in these areas. If you would like to draft a suitable contract based on what we have discussed please do so. I will keep you updated as and when things develop.

56 On 1 October 2003 Megan Smith, an employee of the plaintiff, sent a draft budget to Mr Grace. That email advised Mr Grace that the budget was in draft, but that it would give him an indication of “expected revenue”. Ms Smith also advised that she had organised for the requested DVD to be sent to his office. The draft budget included a performance fee for Dame Kiri and Mr Farnham of $200,000 per concert “guaranteed against profits”. It also included an amount for “Administration” of $100,000 and an amount for “Project Management” of $200,000 for each concert. The administration amount was to be paid to Talentworks and the project management amount was to be paid to the plaintiff. Mr Williams was cross-examined about these two amounts and it was suggested to him that he did not inform Mr Grace or Dame Kiri that those amounts were to be paid respectively to Talentworks and to the plaintiff. Mr Williams agreed that he did not identify the recipients of the payments but it seems to me that such an omission does not have a significant impact on the outcome of this case. It would have been obvious to any commercial operator that the administration/project management amount would have to paid to the entity or entities administering and/or managing the project.

57 Mr Gleeson was provided with copies of emails between the plaintiff and Mr Grace in which draft budgets were forwarded to NGM and Mr Grace. On 12 October 2003, Mr Gleeson sent an email to Mr Grace with his comments on the draft budget. Those comments related to 15 matters. Mr Gleeson suggested that the budget did not contain costs for accommodation and air fares of the two other people travelling with Dame Kiri. He suggested that there would be an additional $6,000 per concert in relation to power connections and an additional $4,000 per venue for catering for the crew. He highlighted the fact that there had been no reference to backstage facilities for the conductor, orchestra, etc., and that the autocue seemed too cheap and could be closer to $5,000. Mr Gleeson also made similar observations in relation to generators, lighting, plant hire, the Superscreen and the merchandise. He also noted his presumption that the production/management/admin figure was the equivalent of a facilitation fee and if so, expressed the view that it was “high”. He observed that there was no reference to per diems for the conductor and the sound engineer, and there was no reference to travel required for the sound engineer. He also suggested that there could be an additional cost of at least $15,000 for fencing barriers and that there had been no reference to deductions from income for credit card and GST charges. Notwithstanding all of this detail, Mr Gleeson gave evidence that he did not review the draft budget “in great detail” but only with a view to providing his comments “on the most obvious matters” which occurred to him as he read it. Although Mr Gleeson may analyse budgets in far more depth than this analysis it was still a rather detailed response.

58 On 18 October 2003 Mr Williams sent an email to Mr Grace in the following terms:

Everything proceeding on schedule we are in the process of refineing the budgets obviously there are some additional costings associated with “John ie his band etc”. How is the contract progressing? When can I expect to receive? Also can u give an indication if Kiri is free to do a joint recording for John for release late next year. Or if in fact she wants to do anything else with him. He is by far the biggest entertainer from Australia. From the feedback Im getting from market research these special events are going to be highly successful. Give Kiri my best I will be in touch again soon with updates. We are having budget meetings with Talent Works this week and drawing up time lines for all concerned parties.

59 On 20 October 2005 Mr Grace wrote to Mr Williams by email apologising for taking so long to come back to him with the comments on the budget. Mr Grace made the following comments, quite a deal of which appeared to incorporate Mr Gleeson’s suggestions:

KTK [Dame Kiri] Hotels – as you know, Kiri always travel with two people – budget needs suite (Kiri) plus 2 executive singles.

Airfares – similarly, Kiri needs: international (2 x first class, 1 x business class) and 3 x domestic.

Orchestra – would like to check that orchestra cost includes:

Full symphonic line-up including rhythm section (keyboards, electric bass and drums) – final line-up to be determined once programme has been agreed – have you agreed a minimum number of musicians?
3 x 3 hour studio rehearsals (over two days immediately prior to first concerts) plus one 3 hour sound check in each venue, preferably the night before – for your reference, if the sound checks had to be on the day of the concert they would need to be in the mornings as Kiri doesn’t rehearse on the afternoon of a concert day.

Do orchestra costs also include rehearsal studio hire, instrument hire, librarian, additional studio (with pianist) for piano rehearsals with John and Kiri and conductor prior to orchestra rehearsals?

Please confirm orchestra availability as:
2 February - rehearsals
3 February - rehearsals
4 February – evening sound, lighting (and camera) check
5 February - concert
11 February – evening sound, lighting (and camera) check
12 February - concert

Conductor airfare seems low (need to be business class) if he is coming from UK
Does conductor incidentals include a per diem?

…

Production Management/Admin – seems rather expensive? -please explain.

…

Sound engineer – Kiri will definitely want her sound engineer to be part of this – he normally charges ₤2,000 per concert plus business class airfare, hotel and per diems. He mixes the live sound but is not a sound designer – you need a separate approved sound designer which I presume will be part of the sound ‘package’.

…

Project Management – please could you explain.

…

I can’t see a line item for:

1. plant hire (could be $3,000?)
2. fencing barriers (could be at least $15,000?).
3. Superscreen – I would imagine we would require at least one outdoor screen with 20,000 capacities – (could easily be $40,000+)?
4. Cancellation insurance
5. Trucking
6. Crew catering
7. Misc. production costs
8. Musical arrangements – sure we will need some songs rearranged for both Kiri and John and for full orchestra?
9. Legal fees.
10. Third party accountancy fees.

CONTRACT
Draft contract will follow as soon as possible for your comments.

60 On 22 October 2003 Mr Williams sent an email to Mr Grace advising that he would send the latest “and hopefully the final” budget the following Monday. That email responded to Mr Grace’s comments on the draft budget and included the following:

Regarding your question re production management/administration seeming expensive – when you consider there is a 14 month lead up time and we already have a team of 6 working on this, you will realize it isn’t

…

Response inside and outside the industry has been nothing short of extreme enthusiasm. And without exception they think the blend of Kiri and John together with the orchestra and settings will make these events memorable experiences.

61 On 24 October 2003 Mr Grace sent an email to Mr Williams in the following terms:

[T]hankyou for your email. I look forward to a final budget!

62 On 24 October 2003 Mr Williams arranged for a further email to be sent to Mr Grace in the following terms:

After further production meetings with Talentworks we believe that we have now nailed down the estimated budget. Obviously after the coming months the budget will evolve but this gives us a reasonable indication for the events.
Please find budget attached. Once you have had a chance to digest perhaps we should speak over the weekend?

A couple of questions that have come out of our meetings with Talentworks

- Will Kiri want to use John Farnham’s band? Or will she just use the orchestra?

- When is Kiri in NZ or Australia over the next 18 months-

- will there be any promotional opportunities for the concerts when she is in this part of the world

63 The enclosed budget anticipated three concerts: one in Sydney, one in Melbourne and one in either Brisbane or Perth. The performance fees for each artist remained at $200,000 per concert, “guaranteed against profits”. The administration amount remained at $100,000 for each of the concerts and the project management amount remained at $200,000 for each of the concerts. The estimated profit in that budget for the three concerts was $3,423,407.

64 On 24 October 2003 Mr Grace wrote by email to Mr Williams thanking him for the revised budget and advising that due to production commitments in Stockholm, he would not be able to respond by the weekend but would do so “asap”. That email included the following:

John’s band – I think it would be great if Kiri used both the orchestra and the band – we need to discuss this in a programme meeting.

65 On 7 November 2003 Mr Grace sent an email to Mr Williams advising that he was at that time in Copenhagen with Dame Kiri and he had spoken to her about “Australia 2005”. It is apparent that Mr Williams had obtained a photograph of Dame Kiri on a Harley Davidson motorbike and had discussed with Mr Grace the use of such an image in promotional material. That email included the following:

She’s happy in principle to consider a second consecutive concert in Melbourne if there is a demand in ticket sales – which is good news!

Bike photo: a little more complicated – Kiri has held onto this photo image for 10 years (I produced her 50th concert at the Royal Albert Hall and tried, unsuccessfully, to persuade her to let me use it as a ‘centre-fold’ in the souvenir programme as nobody at that time was aware of the image! – it would have been amazing! – she declined). I’m not sure if she will allow it – but have persuaded her to look at some mock-ups from you if you wish to proceed on the basis that it may be rejected?? Personally, I think it could be a great image with John.

66 The invitation in the last paragraph of this email was not referred to again in the evidence. In any event it appears that Mr Farnham would not have been able to accept it because he was performing in a concert in Napier, New Zealand, that same evening.

67 On 24 November 2003, Ms Newbury wrote to Mr Grace in the following terms:

Frank and I have been discussing the Dame Kiri/John Farnham events. Could you please advise when we can expect the contract for Dame Kiri to be emailed to us. As discussed with Frank and yourself, we are looking at three events to be held in Australia. We need the contract to be signed as soon as possible to enable us to proceed further. We would like all contracts to be finalized and signed off by 1st December as we will be launching to the corporate market in February 2004.

68 On about 5 December 2003 Mr Grace sent the following email to Mr Williams:

[F]ollowing discussions with Kiri, I can confirm the following:

SYDNEY - I advised Kiri that the venue will be the Botanical Gardens with a capacity of 15,000. Kiri approves an option for a second concert on the Sunday night.

MELBOURNE
Kiri has already approved an option for a second concert on the Sunday night.

PRESS CONFERENCE
Kiri has a full diary in February due to the launch of her Foundation – the only availability for press conferences would be:

SUNDAY 8 FEB – FLY AUCKLAND – AUSTRALIA
MONDAY 9 FEBRUARY – PRESS CONFERENCE & FLY TO SECOND CITY
TUESDAY 10 FEB – PRESS CONFERENCE & FLY AUCKLAND

69 On the same day Mr Williams wrote back to Mr Grace by email in the following terms:

Would Kiri be available to attend launches/ press conferences in Australia in early March? John Farnham is not available in Feb and to organise the launches for the start of Feb would be pushing it time wise. Tentative dates for early March would be Melbourne launch on Wed 3rd March and Sydney launch on Thurs 4th March. How would these dates be for Kiri?

…

70 On 8 December 2003 Mr Grace wrote by email to Mr Grainger at Stellar attaching a copy of a form of contract referred to as his “draft for Australia” (the Mittane Letter) and stated that he was “basically happy” with it. He asked Mr Grainger to let him know if there were any comments that he may have in relation to it, and advised him not to worry about the schedules “too much”, noting that he needed to send it to Mr Williams that week. Mr Grainger responded promptly to Mr Grace providing to him handwritten notations.

71 Mr Grace had also forwarded a copy of the Mittane Letter to Mr Gleeson by email on 7 December 2003, asking him to let him know whether he thought it was “ok”. On 8 December 2003, Mr Gleeson responded by email advising that it looked “excellent (very thorough)”, and made only three comments on minor matters.

72 Dame Kiri gave evidence that on 24 November 2003 she viewed the DVD of one of Mr Farnham’s performances and observed that he had a very relaxed conversational style that was of some concern, because her performances of classical pieces do not lend themselves to continuous dialogue with the audience. Worse still, she observed that women’s lingerie was thrown on to the stage and Mr Farnham collected it and held it during the performance, she thought, as some sort of “trophy”. Dame Kiri claimed that she found that “embarrassing” and “disrespectful” to her (tr 313-314). In addition Dame Kiri had previously appeared with a pop singer in a concert that was an “uncomfortable” experience, and she was concerned not to repeat that experience.

73 It was not until 9 December 2003 that Dame Kiri raised this matter with Mr Grace, when they were both staying in the same hotel in Norwich in relation to one of her concerts. Mr Grace gave evidence that after informing him about her observations of the DVD, Dame Kiri said: “I would never want to be part of that kind of entertainment”. Mr Grace suggested that Dame Kiri telephone Mr Williams and “let him know about your concerns and seek some reassurance”. Dame Kiri then telephoned Mr Williams in Mr Grace’s presence. Dame Kiri claimed that the following conversation took place:

Dame Kiri: Frank, this is Kiri. I’m very concerned. I’ve watched the DVDs of John Farnham. They’re absolutely horrendous. Undies were being thrown at him. He talks endlessly and it’s not even funny.
Williams: Don’t worry. We’ll script it. I’ve got complete control of John. There won’t be a problem.

74 Mr Williams’ recollection of the conversation was different. He claimed that Dame Kiri advised him that it bothered her that “knickers” were thrown onto the stage and said “that cannot happen”. Mr Williams advised Dame Kiri that there would be security at stage front and that it would not happen. He claimed that Dame Kiri also said that Mr Farnham seemed “a bit chatty”, and asked him whether he could “script” Mr Farnham and stop him chatting. Mr Williams claimed that Mr Farnham advised Dame Kiri that he could not stop Mr Farnham from relating to his audience and that Dame Kiri suggested that he might desist if she spoke to him. Mr Grace recalls hearing Dame Kiri say that she was only prepared to work with Mr Farnham if he could be controlled and have any dialogue “scripted”. I prefer Mr Williams’ recollection of this conversation. It is difficult to accept that Mr Williams, a promoter, would have said, as Dame Kiri claimed, that he had “complete control of John”, a performing artist, or indeed that Dame Kiri would accept that Mr Williams could exercise such control. Not surprisingly, in her cross-examination, Dame Kiri diluted this claim to one of Mr Williams saying, “I can control it”.

75 Dame Kiri’s evidence was that despite Mr Williams’ assurance, she remained concerned about the “clash of different musical styles” and thought it was imperative that she meet Mr Farnham, establish a rapport with him and agree on an artistic programme. Dame Kiri did not give evidence in her first statement of her conversation with Mr Grace immediately after her conversation with Mr Williams on 9 December 2003. However, Mr Grace did give evidence of that conversation. That evidence was tendered at a time in the trial when Dame Kiri and Mittane were pursuing a cross-claim against NGM and Mr Grace. Although the cross-claim was abandoned during the trial, this evidence was not withdrawn. Mr Grace gave evidence that the conversation was as follows:

Dame Kiri: Frank tried his best to reassure me but I’m still worried about this and I still have no idea what we can sing together.

Grace: If you really are concerned about performing with John, now is the time to stop the negotiations (which I’m quite happy to do if you want me to). If you are not sure about continuing, I should stop the negotiations with Frank as he is probably starting to incur costs.

Dame Kiri: What kind of costs?

Grace: Maybe he isn’t, I don’t know – he hasn’t mentioned any costs, but he could be. Maybe deposits on venues, hotels and orchestras – I don’t know.

Dame Kiri: How much do you think that might be?

Grace: I’ve got no idea how much maybe around one hundred thousand dollars, maybe less.

76 Dame Kiri made a second statement and denied that this conversation took place. I will return to this conflict in the evidence later.

77 On 10 December 2003 Mr Gleeson wrote to Mr Williams advising that he would be in Sydney for the following few days for a family wedding and that Mr Grace had suggested that he look at the concert venue. Mr Williams made arrangements for Mr Gleeson to be provided with a diagram/map of the Domain and Mr Gleeson visited the venue whilst he was in Sydney.

78 On 15 December 2003, Ms Newbury sent a facetious email in Mr Williams’ name to Mr Grace stating: “No flowers. No chocolates. No contract. You don’t love us any more! PS we are still at the same address!!”. On 16 December 2003, Mr Grace sent the following email to Mr Williams:

[O]n behalf of Mittane Ltd, please find enclosed first draft for the services of Kiri Te Kenawa with regard to the 2005 concerts in Australia with John Farnham.
Please do not hesitate to call if you have any queries or comments.

Once agreed, AJB Sports Management will provide you with a letter confirming that the GST will be “reversed charged (under S83 of GST legislation) and therefore tax invoices will not be required. This has the effect of saving you cashflow implications of the GST and saves Mittane registering for GST. AJB will also provide you with an indemnity from AJB covering the tax Mittane will pay.

79 The Mittane Letter attached to the email was in the following terms:

KIRI TE KANAWA – AUSTRALIA – FEBRUARY 2005

The purpose of this letter is to set out the arrangements agreed between our Promoter, Mittane Limited (“Mittane”) and your company, Leading Edge Events (“the Promoter”) pursuant to which Mittane has agreed to provide the services of Dame Kiri Te Kanawa (“KTK”) in connection with concerts and optional concerts to be given by KTK as set out in Schedule A attached (“the Concerts”). The terms of our agreement are as follows:

1. The Concerts

1.1 Mittane will procure that KTK will perform at the Concerts, in a shared performance with John Farnham (“JFarnham”).

a) the conductor (“Conductor”), to be mutually agreed and final approval to be given by KTK (such approval not to be unreasonably withheld or delayed).

b) the Victoria State Opera Orchestra (“Orchestra”), line-up as per Schedule C attached.

c) J Farnham and the John Farnham Band (“Band”), line-up as per Schedule D attached.

1.3 The works to be performed at the Concerts and the running order shall be decided by mutual agreement as soon as practicable. It is agreed that KTK and JFarnham will share the programme content equally.

Friday 4th February evening 3 hour Lighting and Sound Check

Friday 11th February evening 3 hour Lighting and Sound Check

The Promoter will ensure that all rehearsals and the sound checks are closed to anyone not working on the Concerts.

1.5 The Promoter agrees to comply with the terms of the Rider annexed as Schedule B in connection with the Concerts. Where there is any conflict between the terms of the Rider and the terms of this Agreement, this Agreement shall take precedence.

1.6 The Promoter shall contract the services of KTK’s approved UK-based Sound Designer, Martin Atkinson (Sound Designer). The lighting designer for the Concerts (who shall be contracted separately by the Promoter) and the sound and lighting specification will be subject to the approval of Mittane (such approval not to be unreasonably withheld or delayed).

1.7 The Promoter will be responsible for all music costs (including, without limitation, music hire and courier charges if applicable) and will provide all necessary music for the Concerts.

1.8 The Promoter shall arrange and pay for all related costs to obtain necessary visas and work permits for KTK, and her staff, as required in connection with the Concerts.

1.9 Mittane shall be entitled to twelve complimentary top price tickets for each of the Concerts.

1.10 Mittane shall procure that KTK attends one post-Concert sponsor’s reception per Concert (if held) during which time KTK will circulate and meet the sponsor’s important guests only, but KTK will not sit at a formal meal at such reception. Any such reception must be non-smoking until such time as KTK leaves the reception.

1.11 The Promoter confirms that both Mittane and KTK shall be entitled to have collaborative input and be fully consulted on all creative aspects of the Concerts.

2. Publicity

2.1 The Promoter shall ensure that KTK and JFarnham share equally top billing for the Concerts. The Promoter agrees there will be no other featured performer(s) participating in the Concerts.

2.2 The Promoter shall be entitled to use the approved name and likeness of KTK in connection with the advertising and promotion of the Concerts. Any photographs used for advertising or promotion shall be provided by Mittane. All artwork and all materials in any marketing or promotional materials which relate to the Concerts (including without limitation any photographs, profiles, biographies and running order) shall be subject to Mittane’s prior approval (such approval not to be unreasonably withheld or delayed).

2.3 Mittane will procure that KTK participates in media interviews and associated promotional activities in connection with the Concerts, subject to KTK’s availability and prior agreement on each occasion.

3. Merchandise

3.1 All use of KTK’s name or likeness in merchandising relating to the Concerts shall be subject to approval by Mittane.

3.2 The Promoter will produce and sell, or arrange for other authorised parties to produce and sell, only authorised Concert related merchandise with regard to these Concerts, such merchandise to be approved in advance in writing by Mittane prior to production.

4. Liability/Inclement Weather

Any decision to cancel any of the Concerts due to inclement weather shall be taken by the Promoter in consultation with Mittane. In the event of the cancellation of any of the Concerts due to inclement weather, the Promoter shall nonetheless pay the full remuneration due to Mittane under this agreement.

5. Optional Concerts

The decision to confirm the Optional Concerts (“Optional Concerts”) referred to in Schedule A will be made by mutual agreement. The Promoter must confirm the Optional Concert for Sydney no later than six weeks before the date of the Sydney concert, and confirm the Optional Concert for Melbourne no later than six weeks before the date of the Melbourne Concert. Neither Optional Concert may be confirmed until the preceding Concert has reached a minimum of 75% capacity of tickets sold.

6. Financial Arrangement – Performance Fees

In consideration of Mittane fulfilling its obligations under this Agreement, and subject to clause 14 below, the Promoter agree to pay to Mittane’s Australian agent, AJB Sports Management Pty Limited ABN 980 97708 524 (“AJB”) at Suite 303, 370 Pitt Street, Sydney 2000:

a guaranteed performance fee of A$ 400,000 (four hundred thousand Australian dollars) (“the Performance Fee”), calculated on the basis of two hundred thousand Australian dollars (A$200,000) per concert with regard to the concerts of 5th and 12th February 2005;

Payment of the Performance Fee will be due for payment in the following instalments subject to receipt of invoice:

Payments will be made by way of an irrevocable bank letter of credit in a form acceptable to Mittane and AJB and sent to Mittane with a copy to AJB within seven (7) days of signature of this Agreement. AJB’s designated bank account details are as follows: [provided]

7. Financial Arrangement – Optional Concerts

Should one or both of the Optional Concerts be confirmed in writing by the Promoter to Mittane, the Promoter agrees to pay to Mittane’s Australian agent,AJB:

a guaranteed performance fee of A$ 200,000 (two hundred thousand Australian dollars) (“the Optional Concert Fee”) per Optional Concert.

Payment of the Optional Concert Fee will be due for payment in the following instalments subject to receipt of invoice:

07 February 2005 A$ 200,000 payable if the Optional Concert on 6 February is confirmed

14 February 2005 A$ 200,000 payable if the Optional Concert on 13 February is confirmed

Payments will be made by way of an irrevocable bank letter of credit in a form acceptable to Mittane and AJB and sent to Mittane with a copy of AJB within seven (7) days of the Promoter written confirmation of Optional Concert(s). AJB’s designated bank account details as above.

8. Financial Arrangement – Profit Share

a profit share (“Profit Share”) of 25% of Net Profits of the Concerts.

8.2 Both parties agree the outline budget attached as Schedule E which is THE PROMOTER’s bona fide estimate of the costs of the Concerts (“the Budget”). Both parties acknowledge that the Budget may change and that they shall consult each other about any increase in the Budget as soon as practicable and shall each use all their reasonable endeavours to ensure that the Budget does not increase nor is exceeded.

8.3 THE PROMOTER agrees to be responsible for the security and collection of all revenue received in connection with the Concerts by way of a separate designated trust account whereby such funds will not be used or commingled by THE PROMOTER with any other funds.

“Net Profits” shall mean the amount by which Revenue exceeds Expenses.

“Net Losses” shall mean the amount by which Expenses exceed Revenue.

“Revenue” shall mean all gross income derived from the Concerts, including but not limited to all box-office, sponsorship, television rights, catering and drinks rights, corporate hospitality sales, public hospitality sales, merchandise and printed programme revenue.

“Expenses” shall mean all running costs and costs of Concerts as set out in the Budget.

8.5 THE PROMOTER shall be solely responsible for the Net Losses (if any).

8.6 Throughout the entire period of this Agreement the Promoter will regularly notify Mittane of any and all Revenue received and any and all Expenses incurred in connection with the Concerts.

8.7 As soon as practicable following the Concerts and not later than thirty days thereafter Mittane and the Promoter will agree a statement of settlement showing of all Revenue received and all Expenses incurred in connection with the Concerts together with Mittane’s share of the Net Profits, if any, in relation to the Concerts, such statement to be prepared by Mittane’s and the Promoter’s nominated independent chartered accountant, (add name and address)

8.8 Final settlement will be made not more than seven days after agreement of the statement referred to in Clause 8.7.

8.9 Mittane shall be entitled on giving reasonable notice to inspect the Promoter’s books, records and bank statements in relation to the Concerts in order to verify the statement of settlement referred to in Clause 8.7.

8.10 Promoter will provide Mittane with weekly advance ticket sales information and sales to date both in total and by concert.

8.11 The Promoter agrees to limit the number of non-paying tickets to a maximum of 150 per Concert.

9. Financial Arrangement – Misc.

9.1 If for the purposes of the Goods and Services Tax legislation (“GST”), GST is payable in respect of the remuneration payable to Mittane under this agreement, such GST shall be in addition and payable by the Promoter.

9.2 AJB as agent for Mittane will be responsible for the deduction of any withholding tax or any other amount required to be deducted from the remuneration payable to Mittane under this agreement if required by any local law or regulation.

9.3 Time shall be of the essence in making all payments under this Agreement. Failure to make any payment by the due date shall be deemed a material breach of the Promoter’s obligations entitling Mittane to terminate this Agreement forthwith on notice without prejudice to any other right to damages Mittane may have.

9.4 The Promoter confirm and warrant that no other artist performing at the Concerts will receive a greater fee or remuneration package than is payable pursuant to this Agreement. If, subsequent to signing this Agreement, agreement is reached with any other artist(s) to pay a greater fee or remuneration package than set out in this Agreement, the Promoter shall forthwith notify Mittane and the remuneration payable pursuant to this Agreement shall be increased to the level of the most highly remunerated artist.

266 In her witness statement Dame Kiri denied that Mr Grace had informed her that Frank was “probably starting to incur costs“. However, as can be seen from the above evidence, Dame Kiri claimed to remember that Mr Grace had said that Mr Williams “may be incurring costs”. That was the first time that such a suggestion was made by Dame Kiri, notwithstanding that she had addressed the conversation in her witness statement. I do not accept Dame Kiri’s denial of the conversation with Mr Grace. I accept that Mr Grace did have a conversation with Dame Kiri on 9 December 2003, in which he suggested to her that if she wished to stop negotiations she should do so at that point, because Mr Williams was “probably starting to incur costs”. I accept that Mr Grace particularised those costs as being “maybe around $100,000, maybe less”. I also accept that Dame Kiri said in the face of that warning “let’s see how far you can go with it”. I have no doubt that at least from 9 December 2003 Dame Kiri well knew that the plaintiff was incurring costs in the planning of the proposed Concerts and that such costs could be around the $100,000 figure. Certainly Mittane was well aware of the expenditure having regard to the fact that Mr Grace and NGM were well aware of the expenditure. After the cross claim was abandoned there was no issue that Mr Grace and/or NGM were acting outside their authority and it is clear that Mr Grace and NGM held themselves out to the plaintiff as having authority to deal with the plaintiff on Mittane’s behalf, except when Mr Grace expressly stated otherwise.

267 Dame Kiri has chosen to set up a contractual structure with Mittane, NGM, Mr Grace and Mr Gleeson that enables her to distance herself from the financial aspects of the provision of her services should she wish to do so. However I have no doubt that with all her experience over the years as a performing artist in the commercial world she is a reasonably astute businesswoman. A small but instructive example of Dame Kiri’s approach in this regard was her requirement that Mr Williams and Ms Newbury could only have tickets to the Gala Concert in Auckland if they made a donation to her Foundation. I also have no doubt that when Dame Kiri saw the promotional material in the form of the boxed champagne glass she knew that the plaintiff had incurred costs in its production. In those circumstances I find Dame Kiri’s evidence that if someone was going to spend her money then they should have a letter saying they were justified in doing so rather unhelpful. This is particularly so when Dame Kiri obviously demanded to be flown to the Bay of Islands in a helicopter and I have no doubt that she knew that the plaintiff was paying for that trip.

268 There was a joint assumption that a contract would be concluded however there was also an understanding that until a contract was signed one party may withdraw but not for any reason pertaining to its own position. The facts of this case are different to those in Regalian. In this case when the plaintiff was in the earlier stages of planning the promotional material Mr Williams wanted to utilise the Harley Davidson motorcycle photograph to promote the Concerts. He raised this idea with Mr Grace. Mr Grace advised Mr Williams that he was not sure if Dame Kiri would “allow it” but that the plaintiff could proceed with it to the “mock up” stage on the basis that the plaintiff understood “it may be rejected”. This was an indication that the expenses the plaintiff would incur if it proceeded with those “mock ups” would be at its own risk. No such warning was ever given to the plaintiff in respect of any other aspect of the promotional material or other services its provided of the kind referred to above. On the contrary, they were services that were not usually provided gratuitously and in any event were either expressly approved or requested by Mittane through Mr Grace/NGM.

269 I should now consider the question of “benefit” to Mittane from the plaintiff’s services. I am satisfied that if there was benefit to Dame Kiri as Mittane’s employee then Mittane was the recipient of that benefit. There is no doubt that the services provided by the plaintiff were beneficial for the project as a whole for the reasons I have given in relation to the launch. If Dame Kiri had not changed her mind about going to the launch and performing at the Concerts, the services provided by the plaintiff would have done what Dame Kiri’s own agent, Mr Gleeson, had suggested should be done, that is, increased the local, and perhaps wider, interest in Dame Kiri’s performances. On the basis that benefit should be ascertained for the services taking into account the fact that the Concerts did not go ahead, I agree with Byrne J’s observation that “benefit” should be seen from the perspective of the recipient: Brenner at 258. The mere fact that services are expressly approved or requested by the person to be charged may in some cases evidence a perceived benefit in the person who made the request. I am of the view that in this case the express approval of the material and the requests to attend the meeting in Auckland and to fund air tickets and the helicopter flight fall into that category. Additionally there is evidence that the ‘end product’ of the plaintiff’s services were used. I am of the view that Dame Kiri was extremely impressed by the artwork and promotional material, notwithstanding that she restricted her admission in evidence to having said that it was “nice”. Dame Kiri displayed it to her guests at her 60th birthday celebration and that suggests that she thought it was a little more than “nice”. Mr Gleeson informed Mr Williams that he had observed Dame Kiri showing it off to her guests and that she appeared quite “happy” with the material. Although it may be “idiosyncratic”, to use Byrne J’s description in Brenner, I am satisfied that the plaintiff’s services in this regard were of some “benefit” to Dame Kiri and although it was at a “private” party, the showing off of the material was beneficial to Dame Kiri and Mittane in allowing Dame Kiri’s profile to expand into a different genre in association with Mr Farnham. It also obviously gave Dame Kiri enjoyment to be able to show the materials off. Although this may present as a lesser benefit than that which was perceived in Brenner, it does not mean it fails to satisfy the test. The assessment of the perception of the recipient will mean that there will be different levels of benefit in different cases.

270 Mittane/Mr Grace/NGM could have rejected these services in January 2004, at the time the plaintiff was seeking approval to proceed. That did not happen. There is no doubt that the trip in the helicopter was to Dame Kiri’s benefit in being conveyed in a comfortable and expedient manner to her home in the Bay of Islands. The plaintiff attended the planning meetings for the launch in Auckland at the express request of the defendants.

271 It seems to me that there was an expectation that the plaintiff would be paid for its services in this regard, evidenced in part by Mr Grace’s warning to Mr Williams about the risk in using the motorcycle images and the lack of such warning in relation to the services now in question. It is also evidenced in part by the warning to Dame Kiri on 9 December 2003 that the plaintiff was probably incurring costs. I am satisfied that the plaintiff is entitled on a quantum meruit basis to be paid a reasonable amount for the work that I will detail below by reference to the Schedule of Wasted Expenditure (Ex AA).

272 I should turn now to the defendants’ claim that the plaintiff did not satisfy the prerequisites for equitable estoppel. The plaintiff’s estoppel case was limited to seeking recovery of the wasted expenditure. The defendant relied upon Brennan J’s judgment in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 to submit that the plaintiff had not satisfied the six elements identified as necessary to establish an equitable estoppel. Brennan J said at 428-9:

In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.

273 As to the first element, I have found that there was an expectation that a contract would be entered into, however the plaintiff is not able to establish an expectation that the defendant would not be free to withdraw from the expected legal relationship. The parties were still in negotiations and either party could have withdrawn. The qualification to that position is where there has been expenditure and a Sabemo type of claim is made the expectation is that party A would not withdraw for reasons that have nothing to do with party B. However Mittane could have withdrawn for other reasons and thus the second limb of the expectation referred to in the first element referred to by Brennan J has not been established. That really puts an end to this alternative aspect of the plaintiff’s claim for its expenses. However I will address the other elements in deference to the detailed submissions put by counsel for Dame Kiri and Mittane.

274 As to the second element, I am satisfied that the conduct referred to above including: the approval of the promotional materials and the expenditure thereon; the express requests to attend the meeting in Auckland; the express requests for expenditure to fund Dame Kiri’s travel; together with the letter of intent induced the plaintiff into the expectation that a contract would materialise.

275 Mr Williams regarded Dame Kiri as a “friend”. Dame Kiri would not concede that her relationship with Mr Williams could appropriately be described as a friendship. Whether one describes another person as an acquaintance, a friend or a business associate can sometimes be a rather complex excuse. Mr Williams’ wife, Melissa Geralyn Williams, gave evidence of having a “few drinks” with Dame Kiri after her performance at the Mitchelton Winery in 1990. She recalled a holiday in the early 1990s when Dame Kiri and Mr Williams played golf together and Dame Kiri visited their home. Mrs Williams recalled a lengthy discussion with Dame Kiri about the planned refurbishment of their home. On this occasion Mrs Williams observed Dame Kiri rocking her son, Damian, to sleep whilst she sang to him. Mrs Williams recalled other instances of being present in Dame Kiri’s company and also receiving an invitation to her 50th birthday party in New Zealand in about 1994. The last contact Mrs Williams could recall with Dame Kiri was in 1999 when she and her husband had a drink with her after her performance at a concert in Sydney. Mrs Williams also claimed that in the 1990s she and her husband had dinners with Dame Kiri and her then husband. Although Dame Kiri was not able to recall a number of these instances I accept that they occurred. It may be that Dame Kiri’s approach to promoters has changed over the years and it is clear that she prefers to have Mr Grace/NGM and Mittane negotiate on her behalf, however, in this instance, it is clear that she was willing at least on some occasions to deal directly with Mr Williams. In particular she was willing to ring him directly, albeit in Mr Grace’s presence, on 9 December 2003 to obtain some reassurance. Although they are now opposing litigants, it seems to me that it was probably reasonable for Mr Williams to describe the relationship with Dame Kiri, at least in the 1990s as friendship.

276 It was submitted that in relation to the third element identified by Brennan J the plaintiff did not act on the expectation so induced but rather on the “friendship” factor. It was submitted that Mr Williams had assumed that the Concerts would go ahead because he had dealt with Dame Kiri before and he believed that his “friendship” with her played an important part in that understanding. It is true that Mr Williams, very unwisely in my view, did think that his relationship with Dame Kiri would assist the plaintiff but that was not the only factor at play in this rather complicated setting. As I have said above I am satisfied for the reasons stated above, it was reasonable for the plaintiff to assume that Mittane would not cease negotiations on a basis that had nothing to do with the plaintiff. Although the friendship factor may have played a part in Mr Williams initial approaches to this project I am satisfied that the plaintiff acted in reliance upon the expectation that a contract would be entered into.

277 As to the fourth element, I have no doubt that all defendants knew that the plaintiff was incurring expenditure and made express requests for it do so. As for the fifth element, it is clear to me that on the assumption that a contract would be concluded the plaintiff altered its position by incurring expenditure in the absence of a written contract. Things were moving at a pace in February 2004 which required work to be done to prepare for the launch, notwithstanding that the parties had agreed to put to one side the question of an essential feature of the contract, the irrevocable letter of credit, until Mr Grace could deal directly with Mittane.

278 As to the final element I am not satisfied that the plaintiff failed to avoid its detriment. Mr Grace had to communicate with Mittane and was not in a position to do so prior to the time that the plaintiff had to incur further expenditure for the preparation of the launch. It was suggested that the plaintiff could have avoided its detriment if it had attended to the finalisation of the contract prior to incurring the expenditure. There are a number of factors that intervened preventing that outcome. They included the Christmas holidays, Mr Farnham and Mr Wheatley going on holidays, Mr Grace failing to communicate with Dame Kiri in the first two weeks of February because he wanted to wait until he was with her later in the month and the pressure of putting the launch together at a time to suit Dame Kiri’s commitments in the United Kingdom. As I have said above the plaintiff’s alternative claim in estoppel for its expenses is not made out.

279 The next question is the amount to be awarded on the quantum meruit claim. The plaintiff relied upon a schedule entitled “wasted expenditure”. It is clear beyond any doubt that some of the claims made in that schedule are unsustainable and are really business overheads of a promoter pursuing the prospect of securing a production. I am satisfied however that the items of expenditure for the preparation of the promotional material for sponsorship is recoverable together with costs associated with delivering that material to prospective sponsors and for the time of the plaintiff’s officers and employees in dealing with the planning for and ultimate cancellation of the launch. I am satisfied that the plaintiff is entitled to the costs for the concept development and staff wages in respect of that material and launch. That would also include merchandising materials such as t-shirts. The plaintiff is also entitled to recover the cost of the helicopter transfer on 29 February 2004 and the travel and accommodation costs incurred for both Mr Williams and Ms Newbury in attending the Auckland meetings.

280 The plaintiff is entitled to recover the amounts of the “Spark” invoices in respect of the launch. They amount to $102,364.27. The plaintiff is also entitled to recover the amounts for the staff wages between 5 February and 30 April 2004. In those circumstances the plaintiff is entitled to an amount of $13, 668.71 (that calculation halves the staff wages for Tyrell Russell in Ex AA). The plaintiff is also entitled to recover the cost of copyrighting, work for the invitations and merchandising but not for the purchase of Quickbooks. The plaintiff no longer claims any amount for the work on the motorcycle portrait. The total in this regard in Ex AA is $2,810.28. The plaintiff is entitled to recover the bookkeeping cost in March and April 2004 for $231 and the cost of couriers in the amount of $2,424.36. The plaintiff is also entitled to recover cost of the helicopter transfer in New Zealand for Dame Kiri in the amount of $3,212.01. The plaintiff is also entitled to recover the amount expended in arranging for Dame Kiri’s alternative ticket to London to the extent that such refund did not reimburse it in the amount of $1,170.

281 The plaintiff claimed $3,568.50 for the purchase of lists of potential sponsors. That does not seem to me to be a cost that ought reasonably be paid by Mittane. Although there was no expert evidence in relation to what one may expect of a promoter in gathering together suitable sponsors, it does not seem to me that in this instance Mittane should have to pay for the plaintiff purchasing those lists. There is also the capacity for the plaintiff to utilise such lists for prospective clients other than Mittane. Accordingly, I do not intend to allow for the purchase of those lists.

282 The plaintiff is entitled to recover costs of Mr Williams’ and Ms Newbury’s trip to New Zealand which includes airfares, accommodation, parking and taxi transfers totalling $2,182.58.

283 I am satisfied that in the circumstances of the paucity of evidence in relation to the other expenses in the Schedule (Ex AA), I should not allow any other expenses. The total amount recoverable by the plaintiff is $128,063.21.

Misleading or deceptive conduct

284 The plaintiff made a number of claims of misleading or deceptive conduct. It claimed that Dame Kiri had breached s 42 of the FTA; that NGM and Mittane breached s 52 of the TPA; and that Mr Grace and Dame Kiri were accessorily liable under s 75B of the TPA in respect of the alleged breaches of s 52 of the TPA by NGM and Mittane.

285 The Commercial List Statement does not enable the ascertainment with any precision of the true basis upon which it is claimed the representation alleged to have been made by Dame Kiri arose or was made. The Commercial List Statement alleges that Dame Kiri represented to the plaintiff that “she would perform at the Concerts”. The particulars to that claim by reference to earlier parts of the ‘pleading’ rely upon the broad claims of telephone calls, emails and/or letters over an eight month period without any particular detail. The schedule (Ex Z) was equally unhelpful. It is apparent that the plaintiff claims that from the quagmire of emails, letters and conversations, one could extract the representation that Dame Kiri “would perform at the Concerts”. Even in final address, counsel for the plaintiff did not point to any particular document or conversation that amounts to such a representation. Certainly there were emails and conversations in which the parties discussed the venues, the fee, the launch, the accommodation and the various arrangement for air tickets and helicopter trips but the claim that Dame Kiri “would perform”, if made, was always subject to the finalisation of the contract between Mittane and the plaintiff.

286 The plaintiff also claimed that Dame Kiri was under a duty to inform it that she would not be performing at the Concerts and that her silence until after the Auckland meeting was misleading or deceptive. In this regard, the plaintiff relied upon an email from Mr Gleeson to Mr Grace on 19 February 2004 referred to earlier in this judgment which included the statement, “For your ears only – Kiri is still making negative sounds about the concerts with Farnham”. The plaintiff claims that as at 19 February 2004, Dame Kiri had obviously been having discussions with Mr Gleeson in which she had expressed a negative attitude to performing at the Concerts and that she had a duty to advise the plaintiff that she was not going to perform at the Concerts.

287 Dame Kiri was far from silent about her concerns with Mr Farnham’s style. As I have already said she raised them directly with Mr Williams on 9 December 2003 when she telephoned him in Mr Grace’s presence. Mr Williams knew from that date, if not earlier, that Dame Kiri wanted to meet with Mr Farnham and establish whether a rapport was possible and to plan the musical programme. It is obvious that two highly successful performing artists would need careful management so that their respective needs were met. Mr Williams knew that there was a possibility that Dame Kiri and Mr Farnham may not have the necessary rapport to assuage Dame Kiri’s concerns.

288 The plaintiff relied upon the same conduct referred to in relation to the claim for expenses to allege that Dame Kiri breached s 42 of the FTA. It is important to distinguish this claim from the claim that it was reasonable to assume that a contract would be entered into. A major problem for the plaintiff, even if the representation had been made, is that I am not satisfied that it can establish the requisite reliance upon such a representation for the purposes of the breach of s 42 of the FTA. The plaintiff requested that Mittane and/or Mr Grace/NGM have Dame Kiri confirm that she would be bound to perform at the Concerts by signing the agreement between Mittane and the plaintiff. When the plaintiff was advised that Mittane would not allow Dame Kiri to sign the agreement, it then requested that Dame Kiri sign a “side letter”. Far from relying upon any alleged representation it seems to me that the plaintiff was concerned that it did not have a promise that Dame Kiri would perform at the Concerts.

289 I am not satisfied that the plaintiff has established that Dame Kiri has breached s 42 of the FTA.

290 The claim against Mittane for misleading or deceptive conduct seems to me to be quite hopeless. The claim as pleaded is that by sending the Contract (the Mittane Letter) on 16 December 2003 Mittane represented that it “could, and would, procure” that Dame Kiri “would perform at the Concerts”. As I have already said, this was a draft contract that was subject to further negotiations. The mere sending of the document to the plaintiff did not amount to such a representation.

291 There is also a claim against Mittane that it had a duty to inform the plaintiff if Dame Kiri “was not to perform at the Concerts”. It is alleged that its “silence” following the representation was misleading or deceptive. Even if the representation had been made, by sending the draft contract, Mittane did not remain silent. When it was instructed that Dame Kiri did not wish to perform at the Concerts it ceased negotiations. It is true that Mittane did not expressly state that Dame Kiri did not want to perform at the Concerts, however the cessation of negotiations meant that she would not do so. The plaintiff’s claims that Mittane was in breach of s 52 of the TPA fails. It follows that the plaintiff’s claim against Dame Kiri for accessorial liability must also fail.

292 The plaintiff claims that NGM breached s 52 of the TPA by representing to the plaintiff that Dame Kiri “would perform at the Concerts”. Mr Cobden submitted that if there is a representation at all to be extracted from the “great morass” of emails and conversations as pleaded over the eight month period, then it could only be along the lines of a representation that “if agreement on all other issues is reached, these are suitable dates, and a suitable fee, for Dame Kiri to perform”. It was submitted that such a representation was never made untrue until the withdrawal from negotiations. I agree with these submissions.

293 The plaintiff claimed that NGM had a duty to advise the plaintiff that Dame Kiri was making “negative sounds” about the Concerts and that NGM’s silence in this regard was misleading or deceptive. Mr Grace was cross-examined about the email from Mr Gleeson and agreed that he had not disclosed to the plaintiff that Dame Kiri had apparently discussed her negativity about the Concerts with Mr Gleeson. He gave the following evidence in cross-examination (tr 402):

294 Even if NGM had a duty to inform the plaintiff that Dame Kiri would not perform at the Concerts, that point had not been reached at the time that Mr Gleeson informed Mr Grace of Dame Kiri’s “negative sounds”. It must be remembered that this was only six days after Dame Kiri had penned her fax to Mr Grace requesting information about the launch. It is clear that some of her “concerns” had probably been caused by the lack of communication with Mr Grace in the first two weeks of February. The plaintiff has not established that Dame Kiri had decided not to perform at the Concerts prior to 23 March 2004.

295 The plaintiff relied upon NGM/Mr Grace’s approval of the artwork for the launch as conduct amounting to a representation that Dame Kiri “would perform” at the Concerts. The plaintiff assumed that a contract would be entered into with Mittane and I have found that this assumption was reasonable. That finding does not amount to a finding that NGM/Mr Grace represented that Dame Kiri “would perform” at the Concerts. There is a distinction between those two positions. Even if the approval of the artwork were to amount to such a representation the plaintiff has the difficulty that it did not rely upon this representation, rather it wanted the side letter so that it did have representation or promise that Dame Kiri would perform at the Concerts.

296 The plaintiff’s claim against NGM in respect of a breach of s 52 of the TPA fails. Accordingly the plaintiffs’ case against Mr Grace for accessorial liability pursuant to s 75B of the TPA fails.

Conclusion

297 The plaintiff has failed to establish: (1) the claim against Mittane for breach of contract; (2) the claim against Dame Kiri for breach of collateral warranty; (3) the claim against Dame Kiri for breach of s 42 of the Fair Trading Act; (4) the claims against NGM and Mittane for breaches of s 52 of the Trade Practices Act; and (5) the claims against Dame Kiri and Mr Grace for accessorial liability under s 75B of the Trade Practices Act. All of those claims will be dismissed. The plaintiff has succeeded in establishing an entitlement to recover from Mittane its reasonable costs in the amount of $128,063.21. Before entering judgment in the plaintiff’s favour in respect of that claim I will hear submissions on the award of interest.

298 The parties are to bring in short minutes of order together with an agreed order for costs. If the parties are unable to agree on a costs order I will hear argument when the matter is fixed for the filing of short minutes and submissions on interest. The parties should make contact with my Associate to re-list the proceedings for finalising these aspects of the matter. Such contact should be made by no later than 20 April 2007.

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Citations

Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa [2007] NSWSC 228

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CITATION:	Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa [2007] NSWSC 228
HEARING DATE(S):	29, 30, 31 January 2007, 1, 5, 6 February 2007
JUDGMENT DATE :	21 March 2007
JURISDICTION:	Equity - Commercial List
JUDGMENT OF:	Bergin J
DECISION:	No binding contract. Plaintiff entitled to recover expenses. Plaintiff's claim against the defendants for misleading or deceptive conduct fails.
CATCHWORDS:	[CONTRACT] - Whether the parties had reached oral agreement on all essential terms with the intention of entering into a written contract no different from those terms - [QUANTUM MERUIT/EQUITABLE ESTOPPEL] - Whether, having regard to various aspects of the defendants' conduct, it was reasonable to assume a written contract would be entered into - Whether plaintiff entitled to recovery of expenditure incurred based on that assumption - [MISLEADING OR DECEPTIVE CONDUCT] - Whether the defendants represented that the first defendant would perform at the Concerts - Whether misleading or deceptive - Whether plaintiff relied on misrepresentation
LEGISLATION CITED:	Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth)
CASES CITED:	Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221 Brewer Street Investments Ltd v Barclays Woollen Co Ltd [1954] 1 QB 428 Cadorange Pty Ltd (in liq) v Tanga Holdings Pty Ltd (1990) 20 NSWLR 26 Countrywide Communications Ltd v ICL Pathway Ltd [2000] CLC 324 E K Nominees Pty Ltd v Woolworths Ltd [2006] NSWSC 1172 Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 Independent Grocers Co-operative Ltd v Noble Lowndes Superannuation Consultants Ltd (1993) 60 SASR 525 Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11,110 Gissing v Gissing [1971] AC 886 Masters v Cameron (1954) 91 CLR 353 POS Media Online Ltd v Queensland Investment Corporation [2001] FCA 809 Regalian Properties plc v London Dockland Development Corp [1995] 1 WLR 212 Sabemo Pty Ltd v North Sydney Municipal Council [1977] 2 NSWLR 880 Sinclair v Rankin (No 2) (1908) 10 WALR 126 Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 William Lacey (Hounslow) Ltd v Davis [1957] 1 WLR 932
PARTIES:	Leading Edge Events Australia Pty Ltd (plaintiff) Kiri Te Kanawa (first defendant) Nick Grace Management Ltd (second defendant) Nick Grace (third defendant) Mittane Ltd (fourth defendant)
FILE NUMBER(S):	SC 50161/2005
COUNSEL:	RW Evans (plaintiff) AS McGrath/KE Day (first and fourth defendants) R Cobden SC (second and third defendants)
SOLICITORS:	Vizzone Ruggero & Associates (plaintiff) Henry Davis York (first and fourth defendants) TressCox (second and third defendants)