Rivex Crane Hire Pty Ltd v Armquip Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2017 00142

RIVEX CRANE HIRE PTY LTD (ACN 609 411 261)

Plaintiff

ARMQUIP PTY LTD (ACN 102 364 634)

G L ARMSTRONG HOLDINGS PTY LTD (ACN 125 833 052)

GRAEME JOHN ARMSTRONG

LEON CHARLES ARMSTRONG

First Defendant

Second Defendant

Third Defendant

Fourth Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 11, 12, 13, 14 and 26 February 2019
DATE OF JUDGMENT:	22 March 2019
CASE MAY BE CITED AS:	Rivex Crane Hire Pty Ltd v Armquip Pty Ltd & ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 122

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CONTRACT – Agreement to purchase crane hire business – First right of refusal to purchase further business and assets – Proper construction of first right of refusal to purchase provisions – Whether obligation to offer on same terms as terms of ultimate sale to a third party – Nature of opportunity to purchase inherent in first right of refusal to purchase provisions – Norco Co-Operative Ltd v Parmalat Australia Ltd [2006] QSC 38 – Goldmaster Homes Pty Ltd v Johnson (2006) NSW ConvR ¶ 56-142; [2004] NSWCA 144 – Claim dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Ribbands with Mr A Campbell	Hibbert & Hodges
For the Defendants	Mr S R Horgan QC with Mr J Kohn	Sullivan Braham Pty Ltd

HIS HONOUR:

Introduction

The Plaintiff, Rivex Crane Hire Pty Ltd (ACN 609 411 261) (“Rivex”), claims damages for alleged breaches by the Defendants, Armquip Pty Ltd (ACN 102 364 634) and others (“Armquip”), of the terms of a Sale Agreement dated 21 March 2016 between Whiters Street Cranes Pty Ltd (ACN 102 364 634) and Sale Crane Hire Pty Ltd (ACN 125 833 052), as vendor, and Rivex, as purchaser, and Dallas George Witham, as guarantor (“the Sale Agreement”).

The Rivex case against Armquip has changed significantly since the proceedings initially filed and is now confined to allegations of two breaches of the terms of the Sale Agreement[1] and as to an alleged misrepresentation.[2]
[1]See Amended Statement of Claim (4 February 2019), [8(c)] and [8(d)].
[2]See Amended Statement of Claim (4 February 2019), [11].

Rivex alleges loss and damage “reduced so as to only claim”:[3]

(a)Loss of profits, both past and future, arising from the failure to sell the Peru borer business to the Plaintiff, which would have been derived from that business; and
(b)Loss of profits to the crane hire business from September 2016 onwards as a consequence of the failure to sell the Peru borer business to the Plaintiff, which arose as a consequence of the subsequent sale of the Peru borer business to a competitor which facilitated the competitors entry in to the region of the crane hire business which constituted the subject matter of the sale.

[3]Plaintiff’s Outline of Opening (1 February 2019), [3]; and see Amended Statement of Claim (4 February 2019), [10].

More particularly, Rivex, in its written closing submissions, sets out its position with respect to its claim and the distinct areas of damage said to arise from causes of action it relies upon, as follows:[4]
[4]Plaintiff’s Closing Submissions (22 February 2019), [2] and [3].

2.The causes of action pleaded in the Amended Statement of Claim dated 4 February 2019 (“ASC”) are:
(a)Breach of the Sale Agreement by failing to offer all of the Retained Assets to Rivex;[5]
[5]Amended Statement of Claim (4 February 2019), [8(ba)].
(b)Breach of the Sale Agreement by failing to provide Rivex the first opportunity to purchase some of the Retained Assets on the same terms as were provided to Southern Crane Hire (“SCH”);[6]
[6]Amended Statement of Claim (4 February 2019), [8(d)].
(c)Misleading and deceptive conduct arising from the representations made at the meeting on 21 March 2016 which induced Rivex to proceed with the purchase and execute the Sale Agreement;[7]
(d)Estoppel arising from the representations made at the meeting on 21 March 2016 which induced Rivex to proceed with the purchase and execute the Sale Agreement.[8]

3.Two distinct areas of damage then arise from those causes of action, namely;
(a)The loss of those profits (or the chance to earn those profits) which would have been derived from the conduct of the PERU business by the Plaintiff;
(b)The loss of profits arising from the introduction of a competitor to the region which would not otherwise have transpired were it not for the wrongful sale of the PERU business to SCH.

[7]Amended Statement of Claim (4 February 2019), [11]-[18].

[8]Amended Statement of Claim (4 February 2019), [19].

Although Rivex, in its outline of pleaded case, refers, in the material set out, to “loss of profits (or the chance to earn those profits) …”, its case, as put, does not address the issue of loss of chance damages. Moreover, the expert evidence relied upon by Rivex does not address the issue either — indeed, its expert, Mr Tony Natoli, did not know what a loss of chance case was.[9]
[9]See Transcript (Wednesday 13 February 2019), 199 and see below, [62].

Finally, for the sake of clarity, it is noted that the reference to “PERU” or “Peru” in these reasons is to the acronym used to describe a Pole Erection and Retrieval Unit.

Lay evidence

Rivex, in its closing submissions, engages in an assessment of the evidence of the lay witnesses, Messrs Dallas Witham, Ken White, Graeme Armstrong and Leon Armstrong.[10] Its adverse assessments are reserved for Ken White and Graeme Armstrong — though, as Armquip submitted, none of these adverse assessments were ever put to Ken White or Graeme Armstrong.[11]
[10]Plaintiff’s Closing Submissions (22 February 2019), [4]-[19].
[11]See Transcript (Tuesday 26 February 2019), 376–9.

In relation to Dallas Witham of Rivex, it is said, in summary, that he “was genuine in his attempt to assist the Court” and so did his best; thus concluding that the evidence of Dallas Witham should be accepted in the event of conflict with evidence of the Armquip witnesses.[12] I do accept that Dallas Witham did the best he was able as a witness in terms of his recollection of events some years ago and, in so doing, sought to answer the questions put to him. I do not accept, however, that there is any basis for simply preferring his evidence in the event of a conflict with other evidence, oral or documentary. Rather, the conflict must be resolved, as I have indicated in the reasons which follow, in light of the nature of the conflict and the nature and extent of any inconsistency. The same applies with respect to the evidence of Ken White which, on the one hand, Rivex says supports its position[13] then, almost in the same breath, casts doubt on this evidence.[14]
[12]Plaintiff’s Closing Submissions (22 February 2019), [4].
[13]Plaintiff’s Closing Submissions (22 February 2019), [5].
[14]Plaintiff’s Closing Submissions (22 February 2019), [6].

The criticisms of Graeme Armstrong, his demeanour, the manner in which he gave his evidence and adverse inferences that should be drawn with respect to his evidence are, in my view, all entirely unjustified.[15] Moreover, to suggest that although he “was seemingly genuine … presented as being relatively straightforward and honest. But that manner also served to expose conflict in other aspects of his evidence which stand out as being more in the nature of rehearsed lines that were intended to reinforce the Defendant’s case” is a serious allegation.[16] This position and the more particular matters raised in the Rivex submissions said to support this broader proposition in favour of the contention that when his evidence is in conflict with that of Dallas Witham or Ken White, he should not be believed is a serious matter and should have been put to him; both generally and in the course of evidence as to the particular matters relied upon. The injustice of the position contended for by Rivex, without each puttage, is explained and emphasised by Newton J in Bulstrode v Trimble (with reference to Browne v Dunn):[17]

The rule in Browne v Dunn has, in my opinion, two aspects.
In its first aspect the rule in Browne v Dunn is a rule of practice or procedure designed to achieve fairness to witnesses and a fair trial between the parties. In its second aspect it is a rule relating to weight or cogency of evidence.
The first aspect of the rule was emphasized by Lord Herschell and Lord Halsbury in Browne v Dunn itself. Thus Lord Herschell said (at pp 70, 71): “it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
And Lord Halsbury said (at pp 76, 77): “To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.”

Moreover, some of the specific matters raised are premised on a selective, erroneous or non-contextual view of aspects of the evidence which do, in fact, distort the position on the evidence, properly considered. The submissions with respect to the PERU borer trailers is a clear example.[18]

[15]See Plaintiff’s Closing Submissions (22 February 2019), [7]-[18].

[16]Plaintiff’s Closing Submissions (22 February 2019), [7]; and see [18].

[17][1970] VR 840 at 846-7.

[18]See Plaintiff’s Closing Submissions (22 February 2019), [15]-[17]; c.f. [35] below.

There was also a general attack on the veracity of Graeme Armstrong’s version of events, apparently on the basis that he downplayed the significance of Armquip’s position in the market for crane work in East Gippsland, hence what is said to be the justified concern of Dallas Witham of the effect of SCH purchasing the PERU business as a platform for entry into this East Gippsland market and so adversely affecting the profitability of the crane hire business.[19] On the evidence, there is no basis for these assertions as the evidence of both Graeme Armstrong and Ken White clearly shows.[20] Competition issues were discussed and both made the point of saying that there were no guarantees in the environment of competitive business. Moreover, in terms of evidentiary issues raised, there was nothing that needed to be put in this respect to Dallas Witham — and to focus on a comment that Dallas was thinking too much is to take this comment out of context and to elevate it to a plane and significance which is nonsensical. As to whether Simon Cox should have been called, that is a matter for Armquip. Given the state of the evidence, no Jones v Dunkel[21] inference arises as the Rivex case never reached the relevant threshold.[22]
[19]Plaintiff’s Closing Submissions (22 February 2019), [8]-[11].
[20]See below, [25], [26].
[21](1959) 101 CLR 298.
[22]Tenth Vandy Pty Ltd v Natwest Markets Australia [2012] VSCA 103, [154]–[156].

In any event, I find no basis for the general and particular criticisms made of the evidence of Graeme Armstrong. In my opinion, Graeme Armstrong was an honest and forthright witness who answered questions readily and clearly, and generally sought to assist the Court. Merely because his evidence was clear and consistent and did not support the Rivex case does not mean that it must be taken to be rehearsed in favour of the Armquip case. As to the particular matters raised, there is, in my view, no basis for the criticisms, as I have indicated in the reasons which follow in the discussion of the events or issues to which these criticisms go. In some instances, I have thought it appropriate to make some comment on a particular criticism in this context.

Background

Having introduced the issues between the parties in general terms, it is helpful to examine their position in more detail, and by reference to the pleaded cases, by way of background to what follows in these reasons.

Rivex alleges that Armquip, the first defendant to be precise, breached the Sale Agreement by failing to offer to sell “all of the Retained Assets” within the meaning of clause 24(a) of the Sale Agreement. According to the particulars of the allegation,[23] Rivex alleges that the following items were excluded from the sale offer:
[23]Amended Statement of Claim (4 February 2019), [8(ba)].

(a)Pole trailer – registration number V4206B.
(b)Pole trailer – registration number U81921.
(c)Pole trailer – registration number B65967.
(d)Pole trailer – registration number V13805.
(e)Pole trailer – registration number U56959.
(f)Nissan UD tilt tray truck with crane attached – registration number UIP477.
(g)Franna AT14 crane – registration SGS522.

Rivex also alleges that Armquip breached the Sale Agreement by failing to offer to sell the Retained Assets without first offering to sell those same Retained Assets to Rivex “on the same terms” or at all.[24] A further breach alleged is the sale of some of the Retained Assets to Southern Crane Hire (“SCH”).[25] However, there was no allegation of any corresponding terms of the Sale Agreement in this respect.
[24]Amended Statement of Claim (4 February 2019), [8(d)].
[25]Amended Statement of Claim (4 February 2019), [8(c)].

The misrepresentation claim by Rivex is based on alleged statements made during a meeting held at Armquip’s Gordon Street premises on 21 March 2016, prior to the execution of the Sale Agreement. Present at that meeting were Messrs Dallas Witham, Ken White, Graeme Armstrong, Leon Armstrong and Simon Cox. Rivex alleges that the Armstrongs, Graeme and Leon, misrepresented that the vendors had no current intention of selling, and would not in the future sell, the Retained Assets to SCH and that they would not do anything which would adversely impact upon the commercial interests of Rivex once Rivex took possession of the Business the subject of the sale agreement.[26]
[26]Amended Statement of Claim (4 February 2019), [11].

The Sale Agreement contains contractual obligations regarding the sale of the Retained Assets in clauses 21 and 24, as follows:

21.VENDORS ONGOING BUSINESS
The Parties acknowledge and agree;
a.the Vendor in addition to the Business the subject of this Agreement, conducts the activity of power pole replacement and maintenance with Perus vehicles (“the Ongoing Business”);
b.nothing in this Agreement, including without limitation condition 20, is intended to prevent, limit or otherwise restrain the Vendor from continuing to operate the Ongoing Business.

…
24.OPTION TO PURCHASE REMAINING PLANT & EQUIPMENT
a.For the purposes of conducting the Ongoing Business as defined in condition 21, the Vendor has retained ownership of certain vehicles, plant and equipment and goodwill, referred to collectively for the purposes of this Condition as the “Retained Assets”.
b.The Vendor shall not enter into a Contract for the sale of the Retained Assets without first offering to sell the Retained Assets to the purchaser, or its nominee. The offer shall be made by the Vendor to the Purchaser in writing and the Purchaser shall have 14 days in which to notify the Vendor in writing of their acceptance of the offer. In the event that written acceptance of the offer has not been received by the Vendor by the expiration of the said 14 day period, then the Vendor shall be free to sell the Retained Assets to any other party or parties.”

The Sale Agreement contains a number of definitions in the interpretation provisions of clause 1. The word “Business” is defined as “… the business of the type specified in Item 2 of the Schedule carried on by the Vendor until the Completion Date using the Business Assets”. The expression “Business Assets” is defined as “… the assets described in Item 3 of the Schedule”.

The parties had previously executed a similar agreement to the Sale Agreement on 22 December 2015 (“the December Contract”). After executing the December Contract and prior to executing the Sale Agreement on 21 March 2016, a meeting took place at Armquip’s premises regarding the sale of the Retained Assets. Clause 24 of the Sale Agreement did not prevent Armquip from selling the Retained Assets to SCH in the event Rivex chose not to exercise its right of first refusal. Nevertheless, Rivex did not seek to amend the terms of the Sale Agreement after the 21 March 2016 meeting. It is also observed that at this time, Rivex was already bound by the December Contract, the terms of which were identical to the relevant provisions of the Sale Agreement.

Armquip’s defence, as pleaded in the Defence to the Amended Statement of Claim,[27] is that all of the assets used to conduct the Ongoing Business as defined in clause 21(a) of the Sale of Business Agreement were offered to Rivex by letter dated 26 August 2016 from Mr White to Rivex. Moreover, Armquip’s position is that the breach alleged against it that it failed to offer to sell the Retained Assets “on the same terms” must fail because Rivex does not allege any term of the Sale Agreement that Armquip had to offer to sell the Retained Assets “on the same terms”.
[27]Defence to Amended Statement of Claim (6 February 2019), [8(a)].

Armquip does admit that at the meeting prior to the execution of the Sale Agreement, Graeme Armstrong said Armquip did not have a current intention to sell the Retained Assets.[28] This, it is contended, was a statement of fact and a statement of present intention, not a statement as to a future matter. Moreover, Graeme Armstrong and Ken White said that there were no guarantees in business regarding competition.[29] Thus, Armquip says that nothing said at the meeting was actionable as a misrepresentation. Moreover, it denies representing that it would not do anything which would adversely impact upon the commercial interests of Rivex once Rivex took possession of the vendor’s business. In any event, there is no evidence of such a statement. Armquip contends that if it was prevented from dealing with the Retained Assets in accordance with the alleged representation, such a restraint would be unreasonable and contrary to public policy and unenforceable. For the reasons which follow, this is not an issue which, in my view, arises in these proceedings. Additionally, Armquip contends that any representation that the Defendants would not ever sell the Retained Assets to SCH was not made. Additionally, it is said that had such a representation been made, it would not have been actionable as it was inconsistent with clause 22(b) of the Sale Agreement.[30]
[28]Transcript (13 February 2019), 221.
[29]Transcript (13 February 2019), 222.
[30]Equuscorp Pty Ltd & Ors v Glengallen Investments (2014) 218 CLR 471, [32]-[35].

Factual matters
Negotiation of crane business sale

It was late 2013 when Graeme Armstrong and Leon Armstrong decided to sell some or all of the businesses they were running.[31] At that time, they were running a crane business, a boring business, a concrete pumping business and a transport business. By 2015, they had already sold their concrete pumping business and were looking to sell the crane business.[32] The proposed sale of the crane business was discussed with their accountant, Ken White.[33] Ken White, who also acted as accountant for Dallas Witham, a director of Rivex, told the Armstrongs that Rivex may be interested in purchasing the crane business. In the meantime, Graeme and Leon Armstrong prepared a list of plant and equipment for sale as part of the crane business, and their prices were based on what they thought the various items were worth.
[31]Transcript (13 February 2019), 212.
[32]Transcript (13 February 2019), 214.
[33]Transcript (13 February 2019), 214–215.

By letter dated 5 September 2015, Ken White wrote to Dallas Witham with respect to the proposed sale, introducing the proposal, which involved two options, as follows:

I caught up with Garp [ie Graeme Armstrong] and Leon a week or so ago to run through your thoughts following our previous meeting.
Garp and Leon are motivated to work with you towards the outcome of you buying the crane business (and possibly the Perus also if that is of interest). For the moment I am focused on the cranes as you would be spreading yourself too thin to buy it all.
On the cranes, as I said there are basically two options:
1.Buy the existing fleet and business then changeover older cranes by two newer over time.
2.Buy the newer cranes [and] the business then purchase new machines immediately.

Obviously it is Garp and Leon’s preference to sell the existing machines as it saves them the hassle of selling them, also allows for a seamless transition of the business. Garp and Leon believe that they priced the machines pretty sharp for this purpose. In fact they are of the view they undervalued the new 95T crane which would now have a new price of $1.2M.
…

The letter then continued with a list of equipment and proposed pricing, broken down between the two options, followed by some further general comments and advice from Ken White. The total price for the first option (“buy existing fleet and business”) was $3,210,000. The second option (“buy newer cranes only and business”) was priced at $2,280,000.

On 10 November 2015, Ken White sent a letter to Graeme and Leon Armstrong confirming that Dallas Witham wished to purchase seven of the cranes for $3,150,000 on the basis of option two as put in the 5 September letter, namely, the purchase of all the existing fleet. The boring business and the transport business were not part of the sale.

On 13 November 2015, Ken White sent a letter to Dallas Witham outlining the terms of a counter-offer to sell seven cranes and goodwill for $3,305,000.[34] Following that letter, on 20 November 2015, Ken White sent a letter under cover of an email[35] of that date to Mr Rohan Hubbard of Warren, Graham & Murphy Solicitors, advising that “I have negotiated the sale of Garpy’s crane business. Details attached, I think I’ve covered most of it to draft contract. …”. Attached to that email was the letter containing details of the sale, also noting in the letter that “The Armstrongs currently two main aspects of their business: one, a wet-hire crane business; and two, live power work with Peru vehicles (power pole replacement). We have agreed on two terms on the sale of the crane hire business”. Then, on 23 November 2015, Graeme Armstrong delivered a list of peripheral equipment to Ken White. The list set out equipment that was not part of the contract of sale, but which was required for general crane operations.
[34]Letter from Ken White to Whiters Street Cranes Pty Ltd (13 November 2015).
[35]Email from Ken White to Rohan Hubbard (20 November 2015).

December Contract

Ken White visited Armquip’s Gordon Street premises on 22 December 2015 and handed a copy of the December contract to Graeme and Leon Armstrong. Ken White said that he explained the contract terms, and that Graeme and Leon Armstrong signed the contract and returned it to him.[36]
[36]Sale Agreement between Whiters Street Cranes Pty Ltd, Rivex Crane Hire Pty Ltd and Dallas Witham (22 December 2015).

Ken White also gave evidence that up to the time of the December Contract,[37] there had been discussions between Armquip and Rivex in which Armquip had said that it would keep its Peru business for a couple of years and then Rivex would have the first option to buy it.[38] At this stage, there was no discussion about anyone else being able to buy the Peru business.[39] Neither was there any discussion, according to Ken White, with the Armstrongs about keeping competitors out, with reference to the area in which the crane business operated.[40]
[37]Transcript (Monday 11 February 2019), 41.
[38]Transcript (Monday 11 February 2019), 39.
[39]Transcript (Monday 11 February 2019), 39.
[40]Transcript (Monday 11 February 2019), 40–41.

Recalling that Ken White also acted as accountant for Rivex, he gave evidence that at the time of purchasing the crane business, it was too much for Rivex to purchase the Peru business as well because of the operational management requirements that were imposed, in addition to requiring too much finance. Further, taking an option to purchase with a “two year window” suited Rivex from an operational and finance perspective.[41] Additionally, the two year window suited the Armstrongs because it allowed them time to divest themselves of other assets that were no longer needed as part of the business, such as property and peripheral assets, and to sell the Peru business at the end of its contract with SP Ausnet.[42] Clearly, the timing of the sale of the crane business and the likely future sale of the Peru business suited all parties and Rivex was not, at this time, placed in the position of having to make a final decision as to whether to purchase the Peru business, being protected by an option to purchase in the event of the Peru business being sold.
[41]Transcript (Monday 11 February 2019), 102.
[42]Transcript (Monday 11 February 2019), 103.

26 February 2016 was the scheduled settlement date under the December Contract, but settlement was delayed because Rivex failed to secure finance to purchase the crane business prior to that date. In any event, in anticipation of settlement of the sale of the crane business, Rivex agreed to purchase some essential peripheral equipment for $50,000 and, additionally, agreed to purchase a Toyota Hilux ute, two skips of outrigger timbers and Mr Cox’s work laptop.[43] In or about mid-March 2016, Ken White emailed that the December Contract had to be amended to include a 60 tonne crane which was owned by Sale Crane Hire Pty Ltd and not Armquip.[44]
[43]Tax Invoice to Rivex Crane Hire Pty Ltd from Armstrong Equipment Hire (18 March 2016).
[44]Email Correspondence between Ken White and Rohan Hubbard, 16–17 March 2016.

Meeting on 21 March 2016

Dallas Witham became concerned at the possibility of a sale of the Peru business to SCH during March 2016, seemingly triggered by a telephone call from Mr Ralph Einstein, who was a civil contractor and friends with SCH. As a result of that telephone call, Dallas Witham rang his friend, Simon Cox, who works for Whiters Street Cranes, straight after a phone call from Ralph Einstein.[45] The evidence of the telephone call with Simon Cox from Dallas Witham’s recollection is as follows:[46]

So you rang Mr Cox to say what?---I – I said, “I’ve just had a phone call. Um, have you – what’s going on? Have you heard anything about O’Loughlin’s Southern Cranes buying the PERUs?” And he said, “No, I haven’t. I haven’t heard anything.” And I said, “Are you sure?” And he said, “No, I haven’t heard anything.” And I said, “Well, that’s not good. This is a – this is a deal breaker. I’m really concerned. Don’t say anything to Graeme and Leon.”

Dallas Witham also gave evidence that he expressed similar concerns to Ken White, who replied that he had not heard anything either.[47]

[45]Transcript (Monday 11 February 2019, 43.

[46]Transcript (Monday 11 February 2019), 44.

[47]Transcript (Monday 11 February 2019), 44–45.

After these exchanges, on 21 March 2016, Ken White, Dallas Witham, Graeme Armstrong and Leon Armstrong, together with Simon Cox, had a meeting at Armquip’s premises in Gordon Street. Dallas Witham’s evidence is that the Armstrongs requested the meeting.[48] Graeme Armstrong’s evidence was that he wanted to have a meeting because he wanted to dispel Dallas Witham’s concern that Armquip might be selling the borers, and that he wanted to sort out the December Contract.[49]
[48]Transcript (Monday 11 February 2019), 43, 45.
[49]Transcript (Wednesday 13 February), 221.

The evidence showed, however, that Dallas Witham’s concerns had no factual basis. He gave evidence that when he raised his fear that SCH were purchasing the Armstrongs’ Peru business, he was reassured by Simon Cox, who worked for the Armstrongs and was, apparently, Dallas Witham’s best friend, and by Ken White, the accountant for both parties, that neither of them had heard anything about such a sale.[50]
[50]Transcript (Monday 11 February 2019), 44–45.

Having regard to the importance Rivex attaches to the 21 March 2016 meeting, it is desirable to examine the evidence with respect to this meeting in some detail. The substance of the meeting was the subject of extensive cross-examination. I accept that both Graeme and Leon Armstrong had a clear recollection of that meeting. For reasons which I have addressed and will address further in more detail in due course, I reject the attack on the evidence of both Graeme and Leon Armstrong made in submissions by Rivex and the adverse inferences which it would seek to have the Court draw with respect to this evidence. I turn now to consider the evidence with respect to the 21 March 2016 meeting as it now lies.

The critical evidence of Graeme Armstrong with respect to the meeting is as follows:[51]
[51]Transcript (Wednesday 13 February 2019), 221–222.

I said to, ah – Dallas was sitting opposite me, and I said to Dallas – I said, um, ‘Ken tells me that you’ve got some concerns that the boring – we might be going to sell the borers’.
And Dallas – ah, Dallas’ reply was, ‘Yeah, I been working on the excavator all weekend and been thinking about it. What if – what if you sold the borers and introduced someone else into the region or you sold the borers to Southern Cranes?’
And I said to Dallas – I said, ‘We’ve got no intentions to sell the borers to – and the transport business to Southern Cranes or anyone else at this stage. We’re going to run the – run the, ah, borers for a couple of years and then see where it goes from there’.
Yes?---Um, and then I continued to say that, ‘We can’t guarantee that no one is going to come into the region. It’s, um – you’ve just got to, um, work your business smarter to keep opposition out of the region. We’ve had people try, ah, coming into the region before, into the - into the region previously, but you’ve just got to work smarter and better to keep ahead of them.’
And at that point, Ken White said, ‘It’s like an accounting business that I’ve got’. He said, ‘There’s nothing to stop anyone from opening up an accounting business over the road’.
Um, ah, from there, Dallas said, ‘Okay. It is what it is. I’ll just – I think too much when I’m on the machine on the weekend.’
‘I think too much when I’m on the machine’?---Yeah. As in, Dallas had been working on the excavator on the weekend. He said, ‘I think too much when I’m working on the machine’.
And do you remember anything else being said at the meeting? – No. Dallas just said, ‘Oh, okay. That’s what – it is what it is, and we’ll move on from there’.

The evidence of Graeme Armstrong as to the meeting was substantially the same as Ken White’s recollection. As contended by Armquip, when cross-examined, the version put to Graeme Armstrong was not the pleaded version of the alleged representations.[52] In any event, the exchange in this respect went as follows:[53]
[52]Transcript (Thursday 14 February 2019), 266.
[53]Transcript (Thursday 14 February 2019), 266–267.

Well, let me put it another way. It was made clear to you that if you were going to sell the PERUs to Southern Crane Hire, he was going to walk away?‑‑‑He was going to walk away. We weren’t – we had an intentions of selling the PERUs.
I understand that?‑‑‑And that’s what I explained to Dallas.
All right. But listen to my question. It was made clear to you, you understood from what Dallas had said, that if there was to be a sale proceeding to Southern Crane Hire, he made it clear he was going to walk away?---Yes.
Yes. So in the context of wanting the settlement to proceed, you were able to assure him that that wasn’t the case?---Yes.
Yes. And you said to him words to the effect that we’re not going to – we’re not contemplating any sale to Southern Crane Hire or anyone else?---That’s correct.
Yes. And you made the point to him that having spent so much time building the business over the last 30-odd years that you wouldn’t do anything to harm that business, didn’t you?---No. What I said was there’s no guarantees in the region that no one else would come into that region.
I understand that?---I said we work harder at keeping people out of the region.
Yes. All right. What I’m asking – what I’m putting to you is this. That you also said words to the effect that because of the time and effort that you had put into building over the last 30 years, you weren’t going to do anything that would harm that business?---No.
Yes. And you said words to the effect that “I wouldn't do anything to harm you and Jaz” or “you and Jasmine”?---No.
Okay. But I’m right in saying, aren’t I, that you were nonetheless keen to assure him that his concerns were misguided or mis-founded?---Definitely.
Yes. So you said to him that this – these – “This won’t happen. We’re not contemplating any sale to Southern Crane Hire or anyone else”?---What I said is we’re not planning to sell the PERU business or – to Southern Cranes or anyone else in ‑ ‑ ‑“.
All right?‑‑‑We planned to run the PERU business for a couple of years.

Clearly on the basis of this evidence, any representation was a representation of the present intention and not in relation to future matters.

The evidence of Leon Armstrong in relation to this meeting was also consistent with the evidence of Graeme Armstrong. In some respects, his evidence is even clearer, in the same vein as Graeme Armstrong’s evidence and, again, in my view, making it perfectly clear that there was no present intention to sell the PERU business to anyone, but making no predictions or representations as to future matters. Leon’s critical evidence in this respect is as follows:[54]

Yes. And what happened at the meeting? Um, Graeme started off by saying, um, to Dallas, um, “I believe there’s a problem. Ken has informed me that we – we’ve got some sort of a problem, and we need to talk about it”. And, um, then Dallas replied and said, “Well, um” – that “I’ve, um, been sitting on my excavator most of the weekend, thinking about what’s going on with the deal” and that, um, “There’s nothing to stop, um, somebody else coming in and starting up in opposition to us, namely, ah, Southern Cranes”.
Yes? Um, Graeme then replied and said, um, “We have no intentions of, ah, selling the, um, ah, borers or that to anybody, um, besides, ah, Dallas or, ah, anybody else for that matter”. And, um, in saying that, then, ah, Graeme also said that, ah, “We’ve got two years left on our lease – on the contract to run, so, ah, we’ll be running it through till then at this time, and, um, if, ah, for some reason we decided to sell it beforehand, you’ve got first right of refusal”.
Yes? Um, and with that, then Dallas said, ah, “Okay” – or, sorry, actually, Ken – before – before Dallas said that, Ken actually said, “Well, it’s no different to a, um – another accountant coming in and starting up in our town just over the road from me, and it’s – that’s the way the business runs, so you’ve just got to be a little bit sharper”. Um, then Dallas said “okay” and left it at that. He accepted the fact that that’s the way business was.

Again, as was Graeme Armstrong, Leon was cross-examined on a version of the alleged representation which was inconsistent with that pleaded in the Amended Statement of Claim.[55]

[54]Transcript (Thursday 14 February 2019), 308–309.

[55]Transcript (Thursday 14 February 2019), 318.

Dallas Witham’s version of the meeting is that he said:[56]
[56]Transcript (Monday 11 February 2019), 46.

Oh, I’ve heard from a good source that you’ve been talking to Southern Cranes and you’re going to sell the Peru’s to them.

According to Dallas Witham, Graeme Armstrong said:[57]
[57]Transcript (Monday 11 February 2019), 46.
No, we would not do that. There’s no way in the world we would do that to you and Jasmine. Um, we built this business up and we – we wouldn’t do that to our business.
It’s our - more or less, our baby and we wouldn’t do that to you two.[58]
[58]Transcript (Monday 11 February 2019), 46.
Then there was a bit of backwards and forwards talking about it and how they wanted to keep it because they had nothing else to do.

In relation to Ken White, Dallas said:
Ken White said that they wouldn’t do that because they’ve got no other income.[59]
[59]Transcript (Monday 11 February 2019), 46.
… then they sort of assured me that it wouldn’t happen.[60]
[60]Transcript (Monday 11 February 2019), 46.
There’s no way we would do it. Simple as that.[61]
[61]Transcript (Monday 11 February 2019), 47.

Finally, he said that Graeme Armstrong said:[62]
[62]Transcript (Monday 11 February 2019), 48.
That there’s no way they would – they would sell to Southern Cranes.

However, in cross examination, Dallas Witham did seem to change his evidence and agree with the Armquip version of the events of that meeting.[63] Thus, as to the possibility of the PERU business being sold, he said, in cross-examination:[64]
[63]Transcript (Monday 11 February 2019), 79–81.
[64]Transcript (Monday 11 February 2019), 79–80.
What you said was, “What happens if Armquip sold the PERU borers to someone else such as Southern Cranes and they set up in the Bairnsdale area”. That’s what you said?---What if?
Yes?---That’s incorrect.
Okay. And Graeme Armstrong said to you, “We’ve got no intention of selling the borers to Southern Cranes or anyone else at this stage”?---Is that in the meeting.
Yes?---Yes.
That’s exactly what he said, isn’t it?---Not exactly, no.
He said, “We want to run the borers for two more years and then see what happens”?---Correct.
He said, “We can’t guarantee someone won’t come in at some time, but if we decide to sell the borers you’ve got the right of first refusal”?---They said we had the right of first refusal. Yes.
But do you also remember them saying, “We can’t guarantee that someone else wouldn’t come in at some time”?---They might have said that, but that wasn’t what the meeting was about.
No, no. They’ll say they did say that. Graeme Armstrong did say that. Do you remember it being said?---No.
And when Graeme said that Ken White said, “It’s the same for accountants. Anyone can open up across the road. There are no certainties in business”. Do you remember that?---He did mention that, but it’s – it wasn’t that simple. It wasn’t just them coming and setting across the road.

And shortly thereafter:[65]

They did never say they would never sell the business to Southern Cranes, did they?---That’s correct.
If you say that that was said, why didn't you ask for it there and then to be put into the contract?---Because it – the meeting was between people that I knew. I’d known the Armstrongs for 30 years. My best friend was there that worked for Armstrongs that was also best friends with the Armstrongs. My accountant was there who advises me. He was also best friends with Armstrongs. The meeting was – they convinced me that it was – it was – it was all good. I walked out of that meeting, um, very positive with what they said.
Did you understand that clause 24B allowed them to sell the PERU business to any purchaser if you don't want to buy it?---I did.
Any purchaser including Southern Cranes, Mr Witham?---That wasn’t discussed in the meeting though. It was particularly ‑ ‑ ‑
No, no?--- ‑ ‑ ‑ Southern Cranes.
I’m asking you about the effect of the contract. Did you understand that the contract allowed them to sell the PERU business ‑ ‑ ‑?---Yes.
‑ ‑ ‑ to Southern Cranes if you did not want to buy it?---Yes.

[65]Transcript (Monday 11 February 2019), 81–82.

Ken White’s recollection of the meeting in critical respects as appears in his evidence-in-chief is as follows. Dallas Witham said:[66]
[66]Transcript (Monday 11 February 2019), 79–81.

that he had heard this rumour, um, and that he was, um, very concerned about it, um, about its – about its validity, and that, basically, if it was true, that – um, that it would be a – deal breaker, that there’d be – he wouldn’t proceed any further.

Graeme and, or alternatively, Leon Armstrong responded:[67]
that wasn’t true, that – um, that they were committed to proceed with the crane business, and to try and work their hardest to protect the – Peru business, you know, for – to give them – you know, to give the Withams, you know, first go at it in the future.

Finally, Ken White commented:[68]
I personally don’t recall saying a great deal at the meeting.

Moreover, Ken White could not remember if Dallas Witham said anything in response.[69] Thus, the position is, in my view, as contended by Armquip, namely, that Ken White’s evidence contradicted the version of the meeting given by Dallas Witham in evidence-in-chief and is, in any event, inconsistent with the pleaded misrepresentation case. Moreover, in cross-examination, Ken White unreservedly embraced the version of the meeting advanced by Armquip.[70] This was not the only conflict in the evidence as between that of Dallas Witham and Ken White.[71]

[67]Transcript (Monday 11 February 2019), 108.

[68]Transcript (Monday 11 February 2019), 108.

[69]Transcript (Monday 11 February 2019), 109.

[70]Transcript (Monday 11 February 2019), 135–137.

[71]Compare Transcript (Monday 11 February 2019), 118 with Transcript (Monday 11 February 2019), 121 and Transcript (Monday 11 February 2019), 126.

After the meeting, the parties executed the Sale Agreement that included Sale Crane Hire Pty Ltd as a party and a lease between Sale Crane Hire Pty Ltd and Rivex for the premises at 7 Herberte Court, Wurruk.[72] The only amendment made to the Sale Agreement as compared to the December Contract was the inclusion of Sale Crane Hire Pty Ltd as a party to the contract to address the issue raised by the Bank with respect to the sale of a 60 tonne crane which was in fact owned by that company, which was, consequently, a necessary party to the Sale Agreement. On 24 March 2017, the full purchase price of $3,150,000 was paid.
[72]CB 297-344.

Deterioration in Graeme Armstrong’s health

In April 2016, Graeme Armstrong’s health began to deteriorate. He started to lose balance and fell down some stairs at home. He saw numerous specialists and had tests such as a CAT scan and an MRI. In June 2016, Graeme Armstrong consulted numerous surgeons regarding surgery and radiation therapy. The following month, in July 2016, Graeme Armstrong had a stereotactic irradiation procedure to shrink a tumour. The result of the treatment was that Graeme Armstrong lost the hearing in one ear.[73]
[73]Transcript (Wednesday 13 February 2019), 223.

Sale of the Retained Assets

Following his cancer treatment, Graeme Armstrong spoke again with Leon Armstrong and they decided to sell the PERU boring business.[74] In or around June or July 2016, around the same time as the Armstrongs had decided to sell the PERU boring business, David Morgan called Graeme Armstrong to inquire about his health and whether Armquip was interested in selling any of its borers. Graeme Armstrong told David Morgan that “… we can’t sell them without giving first option to Rivex. That was part of the contract”.[75] It appears that David Morgan, the person from whom, many years earlier, had sold the Armstrongs the first PERU, was interested in purchasing the borers if Rivex did not want them.[76] Also in July or August 2016, Graeme Armstrong received a telephone call from Tony O’Loughlin of SCH, who called to inquire after Graeme Armstrong’s health. In answer to the question, what did Tony O’Loughlin want, Graeme Armstrong said:[77]

Oh, he just – well, we’ve known each other for a lot of years. He just rang up, “Hey, buddy, what’s going on? You’re not travelling too good”, and I said, “No”, and he said, “What are you going to do”, and I said, “Oh, look, we – we’re thinking about maybe putting the borers on the market, and he – he said, um, “Oh, I might have an interest in them if you’re going to do that”, and I said, “Oh, we can’t, um, do anything. We’ve got to, um, give Rivex first right of, ah, refusal. They’ve got to have first offer on the machines as part of our contractual agreement, and he said, “Oh, well, just let me know what happens going forward”.

Again, it is significant that Graeme Armstrong, in both these conversations, reaffirmed the contractual right of Rivex to first refusal if the borers — that is the PERU business — was to be sold.

[74]Transcript (Monday 11 February 2019), 79–81.

[75]Transcript (Wednesday 13 February 2019), 225.

[76]Transcript (Wednesday 13 February 2019), 225.

[77]Transcript (Wednesday 13 February 2019), 225–226.

By the middle of August 2016, the Armstrongs’ consideration of the future of the PERU business reached the point that Graeme Armstrong told Ken White that Armquip was interested in selling its boring business. Graeme and Leon Armstrong worked out the value of the borers — that is, the PERU units — based on their knowledge of the machines and the industry over many years.[78] On this basis, Ken White prepared a proposal to sell the equipment and business to Rivex.[79] As part of the proposal, Ken White determined the goodwill and the final figure for the sale of the PERU business — the borers.[80] The proposal as put to Rivex the product of this process is contained in a letter dated 26 August 2016 from Ken White to Rivex[81] under cover of an email dated 29 August 2016 (“the 29 August 2016 offer”).[82] The letter offering to sell the Retained Assets listed six items of plant and equipment at prices totalling $830,000 plus peripheral plant — various dimension augers — prices at $25,000 plus goodwill priced at $130,000, making a total enterprise value as fixed in the letter as $985,000.[83] The goodwill figure of $130,000 was calculated by Ken White.[84]
[78]Transcript (Wednesday 13 February 2019), 226, 227–230.
[79]Letter from Ken White to Rivex Pty Ltd (26 August 2016).
[80]Transcript (Wednesday 13 February 2019), 230.
[81]Letter from Ken White to Rivex Pty Ltd (26 August 2016).
[82]Email from Ken White to Dallas Witham and Jasmine Witham (29 August 2016).
[83]Letter from Ken White to Rivex Pty Ltd (26 August 2016).
[84]Transcript (Monday 11 February 2019), 121.

The critical elements of the 29 August 2016 offer are set out in the 26 August 2016 letter as follows:[85]
[85]Letter from Ken White to Rivex Pty Ltd (26 August 2016).

As has been mentioned to you earlier this week, Graeme and Leon Armstrong have resolved that it is time for them to seek an exit on their Peru enterprise.
As per the conditions of the sale of business agreement between Armquip Pty Ltd (Formerly known as Whiters Street Cranes Pty Ltd) and Rivex Crane Hire – the Armstrong’s [sic] are obligated to providing first offer to you.
The sale of business agreement – Sections 24 A and B state:
…
So as per the conditions of the sale agreement, Armquip is offering to you the opportunity to purchase the Peru equipment division of their business.
The business elements for sale are:
Armquip Pty Ltd
Business Valuation
Unit
No.     Vehicle  Registration    KM        $
10       2014 Man 26.340/Proline Borer      1BW 3GP       59,019    150,000
11       2013 Man 26 340/Proline Borer      ZTJ 789         70,977    150,000
18       2007 Izusu [sic] FVZ 1400/
Proline Borer  ZPY 460        190,000 130,000

21       1996 UD/Proline Borer                   TEL 261        607,914 120,000
22       1999 UD/Proline Borer                   ZOI 582        471,155 130,000
24       2005 Isuzu FVZ 1400/Proline Borer 1AX 02Q        168,000 150,000
Subtotal Plant and Equipment  830,000
Peripheral Plant – Various dimension augers   25,000
Goodwill  130,000
Total Enterprise Value  985,000

The historical revenue of the machinery over the past 3 years is as follows:
Armquip Pty Ltd
Summary Turnover by Machine
…
A summary of the dry hire revenue is below:
Summary Dry Hire Revenue Machine
…
Contractual work
As you are aware, the majority of our work comes via a contract with Ausnet Services. This is a 3 year contract which has 2 years to run.
Other work comes from private subdivision and construction works however the bulk comes from Ausnet Services.
Major Expenses
Major expenses in this business are:
Wages and Oncosts
·Similar to the crane business

Vehicle Running Costs
·Fuel use is low as the vehicle [sic] do not do large km. The 2 newer models MAN’s are coming up 3 years old and have averaged a bit over 20,000km per annum.
·Fuel wold work on roughly 3km/litre for our newer trucks.
·Registrations are same as cranes – special purpose vehicles – approx. $500 per year

We are happy to provide further information should you require it. We believe the price of this business reflects the current market position of the machinery – which the secondary market for Peru’s is currently quiet. The goodwill reflects our long trading history with Ausnet Services, and the regular income and profits generated from it.
If you could please peruse this, and we need to be in a position to have done necessary due diligence and report back to the Armstrongs within 14 days.

As can be seen, the 29 August 2016 offer provided detail with respect to each of the units; with respect to the proposed sale price, revenue turnover and summary of dry hire revenue for each unit. Reference is also made to the bulk of the work coming from Ausnet Services and finally, and significantly, there is an invitation to seek further information and offer to provide the same.

Much was made by Rivex in relation to this proposal offering to sell the PERU business to it that it was not an offer to sell all the Retained Assets as “defined” in the Sale Agreement as, critically, it did not indicate that the pole trailers were being sold with the borers. It was quite clear from evidence presented by all parties that the pole trailers were detachable from the borer units but that, except in circumstances where pole retrieval was being arranged by another entity, such as Ausnet, was necessary to use a pole trailer for the purpose of transporting new poles for replacement and transporting replaced poles after replacement. Nevertheless, in relation to the proposal to sell the PERU business to Rivex, it is, in my view, quite clear from Graeme Armstrong’s evidence that the offer to Rivex for the PERU business included the pole trailers.[86] Looking at the proposal letter itself, it will be seen that the six borers listed are referred to by unit numbers. The evidence is that these unit numbers were applied and used by Armquip to describe a “unit” which included the borer and the pole trailer.[87] Rivex responds by saying that it was not to know this and that there is no actual reference to pole trailers in the proposal. This position does, however, not sit well in circumstances where Rivex made no inquiries in relation to the sale proposal and simply rejected it out of hand on the basis that it was both priced too high and, particularly, priced too high as the pole trailers were not included and, it would follow, would have to be purchased from somewhere else, if that were possible, at further expense. It is simply not to the point in all the circumstances that pole trailers are a separate piece of equipment and would not necessarily be included in a sale of a borer as one unit.[88] Moreover, the failure by Rivex to make even the most rudimentary enquiries with respect to the offer does not sit well with the nature and extent of the information provided in the 29 August 2016 offer — as highlighted above — not to mention the invitation to seek and offer to provide further information on the part of Armquip.
[86]Transcript (Wednesday 13 February 2019), 229; and see Transcript (Monday 11 February 2019), 129 (as to Ken White assuming this position).
[87]Transcript (Wednesday 13 February), 229.
[88]See Plaintiff’s Closing Submissions (22 February 2019), [23(k)]; and note the reference to Transcript (Wednesday 13 February 2019), 291 where the only “concession” made by Armquip was that it is not part of its case that a PERU borer could not be purchased alone, without a trailer. In context, this was an obvious “concession” in relation to the position generally and not with respect to the position as regards this particular offer: see also Plaintiff’s Closing Submissions (22 February 2019), [15]-[17].

In my view, it must be inferred from all the circumstances, particularly the knowledge that Rivex must be taken to have gained in relation to the Armquip business, having negotiated the Sale Agreement, that each numbered unit as so described was a borer and a pole trailer.[89] In any event, if Rivex was in doubt, there was the invitation to seek and offer to provide further information. It was also clear from the evidence that the Franna AT/4 and UD Tilt tray were not part of the Ongoing Business,[90] and were, consequently, not properly regarded as part of the Retained Assets under the provisions of clauses 21 and 24 of the Sale Agreement.
[89]Transcript (Monday 11 February 2019), 140.
[90]Transcript (Wednesday 13 February 2019), 238; a position accepted by Dallas Witham: see Transcript (Monday 11 February 2019), 88.

Ken White and Dallas Witham spoke about the 29 August 2016 offer. Dallas Witham’s evidence as to what Ken White said to him at the time of the offer of the PERU business was not supported by Ken White in his evidence. Dallas Witham said:[91]
[91]Transcript (Monday 11 February 2019), 60–61.

Okay. But in any event, you had a – after you’d received the offer ‑ ‑ ‑?---Yes.
You had a discussion with Mr White?---Yes.
Who said what to whom?---I said “It’s – it’s overinflated”. I said, “There’s no way I’m paying that amount of money for it.” And he agreed.
…
Well, sorry, Mr Witham. You were telling us how you'd had this discussion with Mr White and you said that they were obviously overinflated?---Yes.
What did Mr White say to you?---He agreed.
Did anything further take place in this discussion?---He basically said they’re – well, I said, “They’re overinflated. I can see what’s going on. There’s not a – you know, it’s ridiculous”. And he agreed and he said, “They’re not going to sell them to you anyway”.

Ken White did not, however, give any such evidence.

Dallas Witham’s evidence in cross-examination about the offer of the PERU business disclosed that he never complained about the 29 August 2016 offer, nor complained that it did not include the pole trailers.[92] Eventually, he admitted that he appreciated the offer included “the whole of their Peru business”.[93] He also admitted that the Nissan UD tilt-tray and the Franna AT14 crane were not part of the PERUS business.[94] These admissions are, in my view, as contended by Armquip, destructive of the breach of contract case put by Rivex.
[92]Transcript (Monday 11 February 2019), 86–88.
[93]Transcript (Monday 11 February 2019), 88.
[94]Transcript (Monday 11 February 2019), 88.

Ken White’s evidence-in-chief is that the prices — the “fair value assessments” — of what the Armstrongs wanted for the PERU machines were written on the corner of various pages at CB 430A-430W.[95] The Armstrongs wanted $250,000 for units 10 and 11, but Ken White thought that that was overinflated, but did not say anything to the Armstrongs about whether the prices were high or not.[96] The prices were then reduced to $150,000 and a value was put on goodwill.[97] Ken White did not recall if there was any discussion with Dallas or Jasmine Witham about the offer on 29 August 2016 offer beyond him saying that the offer was coming.[98] After the offer was received, Ken White’s evidence is that Dallas Witham said the values were too high. Ken White did say that the vendors were “… not prepared to negotiate”.[99] He also said that Dallas Witham said “Well, they don’t really want to do a deal basically”,[100] but that nothing else was said.[101] Thus, there was no evidence from Ken White that he said anything like “they’re not going to sell to you anyway” as Dallas Witham said in his evidence.[102]
[95]Transcript (Monday 11 February 2019), 118.
[96]Transcript (Monday 11 February 2019), 121.
[97]Transcript (Monday 11 February 2019), 121.
[98]Transcript (Monday 11 February 2019), 126.
[99]Transcript (Monday 11 February 2019), 128.
[100]Transcript (Monday 11 February 2019), 128.
[101]Transcript (Monday 11 February 2019), 129.
[102]Transcript (Monday 11 February 2019), 61.

Graeme and Leon Armstrong, on the other hand, deny telling Ken White they were not willing to negotiate.[103] On the contrary, Graeme and Leon Armstrong expected Dallas Witham would try to negotiate the purchase price.[104] Their expectations were consistent with what had occurred during the negotiations of the crane business. So whether Ken White was, in saying the vendors were not prepared to negotiate, part of a negotiating strategy he thought would assist the vendors is unclear. In any event, it is not of significance in the present circumstances having regard to the offer by Rivex and the failure to make even the most rudimentary enquiries, as the evidence shows.
[103]Transcript (Wednesday 13 February 2019), 230; and Transcript (Thursday 14 February 2019) 242, 315.
[104]Transcript (Wednesday 13 February 2019), 230; and Transcript (Thursday 14 February 2019) 311–312.

Dallas Witham asserted that the offer did not include the Peru trailers.[105] There was no basis for this assertion. Graeme Armstrong gave evidence that trailers were included in the offer.[106] Ken White gave evidence that he had assumed that the borer trailers were always part of the sale.[107] He agreed that all of the equipment was included within the unit number as an income earning entity.[108] Ken White conceded that neither the offer document to Rivex,[109] nor the offer document to Southern Cranes separately described the pole trailers[110] and that the pole trailers were later set out in the invoice to Southern Cranes[111] at the request of the finance broker for Southern Cranes.[112]
[105]Transcript (Monday 11 February 2019), 62.
[106]Transcript (Wednesday 13 February 2019), 229.
[107]Transcript (Monday 11 February 2019), 139.
[108]Transcript (Monday 11 February 2019), 140.
[109]Letter from Ken White to Rivex Pty Ltd (26 August 2016).
[110]Transcript (Monday 11 February 2019), 138.
[111]Email from Southern Cranes to Whiters Street Cranes (31 August 2016).
[112]Email from Ashley Peters to Graeme Armstrong (7 February 2016); Transcript (Monday 11 February 2019), 139.

On 30 August 2016, Dallas Witham sent an email to Ken White rejecting the opportunity to purchase the Peru borer equipment and business.[113]
[113]Email from Dallas Witham to Whiters Street Cranes Pty Ltd (30 August 2016).

After Rivex rejected the sale offer, on 31 August 2016 or 1 September 2016, Graeme Armstrong spoke to Tony O’Loughlin about the sale of the borers.[114] Graeme Armstrong’s evidence is that this was the first occasion that the sale of the PERU assets was discussed with SCH;[115] though such a sale would appear to have been a matter on which he had given some thought once the sale of the PERU assets was contemplated in general terms.[116] On 5 September 2016, Tony O’Loughlin and Brett from SCH visited Armquip’s Gordon Street yards to inspect and test each borer. The inspection and testing of the machines was carried out with Leon Armstrong. The testing took a few hours.[117] After the testing, Graeme Armstrong spoke to Tony O’Loughlin and Brett about the equipment. SCH made an offer to purchase some of the equipment for $670,000. Leon Armstrong knew that if Southern Cranes did not purchase the borers it would be difficult to find an alternate buyer.[118]
[114]Transcript (Wednesday 13 February 2019), 233–234.
[115]Transcript (Wednesday 13 February 2019), 233.
[116]Transcript (Monday 11 February 2019), 115 (where Ken White refers to a conversation with Graeme Armstrong in which he reminded Graeme Armstrong of the obligation to Rivex under the Sale Agreement).
[117]Transcript (Wednesday 13 February 2019), 234; and Transcript (Thursday 14 February 2019) 242, 313.
[118]Transcript (Thursday 14 February 2019), 328.

On 6 September 2016, Ken White sent an email to Tony O’Loughlin outlining the proposed terms to sell the Peru borers.[119] On 8 September 2016, Armquip sent a tax invoice to SCH for the sale of the borers and the tilt tray.[120]
[119]Email from Ken White to Southern Cranes (6 September 2016).
[120]Invoice from Armstrong Equipment Hire to Southern Cranes (8 September 2016).

In late September 2016, Tony O’Loughlin called Graeme Armstrong to see whether Armquip was interested in selling the Franna that was in Armquip’s yard. The Franna was out of certification and couldn’t be used. Tony O’Loughlin was still interested in purchasing the Franna.[121] On or about 27 September 2016, Graeme Armstrong agreed to sell the 14 tonne Franna crane registration SGS 522, two portable site huts and the augers for $60,000 to SCH.[122] On or about 16 January 2017, Armquip agreed to sell to SCH one Isuzu truck with a Proline borer for $85,000.[123]
[121]Transcript (Wednesday 13 February 2019), 232–233.
[122]Invoice from Armstrong Equipment Hire to Southern Cranes (28 September 2016).
[123]Invoice from Armstrong Equipment Hire to Southern Cranes (16 January 2017).

Tony O’Loughlin’s evidence of purchasing the Peru borers from the Armstrongs was clear.[124] The purchase was in three tranches. Tony O’Loughlin’s evidence of the conversations with Dallas Witham after he purchased the Peru business showed that SCH sought the same relationship with Rivex that they had previously enjoyed with the Armstrongs.[125] There was no cross-examination about those conversations.
[124]Transcript (Thursday 14 February 2019), 333–335.
[125]Transcript (Thursday 14 February 2019), 335–336.

Offer to repurchase the crane business

In October 2016, Dallas Witham left an abusive message on Graeme Armstrong’s phone regarding the sale of the uncertified Franna crane to SCH. The following day Graeme sent an email to Jasmine Witham (Dallas’s wife) offering to purchase the crane business back at an agreed price.[126] On 7 October 2016, Jasmine Witham sent an email rejecting the offer to buy back the business.[127]
[126]Email from Jasmine Witham to Whiters Street Cranes (7 October 2016).
[127]Email from Jasmine Witham to Whiters Street Cranes (7 October 2016).

Findings sought by Rivex

On the basis of the evidence as to the 21 March 2016 meeting and more generally, Rivex contends that a variety of findings should be made by the Court which would assist the Rivex case.[128] The particular aspects of the contentions advanced in support of the findings sought have been addressed in the preceding reasons. But to summarise, as to the particular matters raised: there is no basis for saying that Armquip had a “practical monopoly” or some inevitable consequence would flow from a sale to SCH;[129] Dallas Witham did make the “deal breaker” point, but was apparently reassured by the right of first refusal provision;[130] there was no representation as to a future matter by Armquip with respect to the possibility of a sale to SCH;[131] there is no evidence in support of the proposition that Armquip was sufficiently concerned that Dallas Witham might “walk away” that a representation as to a future matter was made, namely, that Armquip would not sell to SCH;[132] there is no basis for saying that Dallas Witham, in effect, was induced to take no steps to “firm up” his contractual position as a result of assurances in relation to SCH, he chose to rely on his right of first refusal;[133] the evidence does not indicate any conduct by Armquip at odds with previous assurances given to Dallas Witham or the provisions of the Sale Agreement with respect to the decision to sell the PERU business;[134] the evidence does not support the assertion that the offer to Rivex with respect to the PERU business omitted equipment that should, as required by clause 21 of the Sale Agreement, have been included;[135] and the description of the equipment in the offer could not, in all the circumstances, reasonably have been taken not to include the pole trailers.[136]
[128]Plaintiff’s Closing Submissions (22 February 2019), [23(a)-(k)].
[129]Plaintiff’s Closing Submissions (22 February 2019), [23(a)]; and see [32]-[34] above; and the evidence of Graeme Armstrong on the “monopoly” issue which goes no higher in the context of his evidence as a whole, and more particularly, where he said no more than: “We worked hard to keep our competitors out”: Transcript (Wednesday 13 February 2019), 217.
[130]Plaintiff’s Closing Submissions (22 February 2019), [23(b)]; and see [35] above.
[131]Plaintiff’s Closing Submissions (22 February 2019), [23(c)].
[132]Plaintiff’s Closing Submissions (22 February 2019), [23(d)].
[133]Plaintiff’s Closing Submissions (22 February 2019), [23(c)].
[134]Plaintiff’s Closing Submissions (22 February 2019), [23(f)-(i)].
[135]Plaintiff’s Closing Submissions (22 February 2019), [23(j)].
[136]Plaintiff’s Closing Submissions (22 February 2019), [23(k)].

In summary, the evidence does not support the findings contended for by Rivex. As this position and the consideration of the evidence in the preceding reasons, indicates, the Rivex claims fail in terms of liability issues.

Expert evidence

Rivex called Tony Natoli to give expert evidence as to the loss and damage suffered by reason of the alleged breaches of the contract and the misrepresentations. Rivex also called Ken White to give evidence about his segment analysis which formed the basis of Tony Natoli’s EBITDA calculations. He explained in his evidence in chief how revenue and some fixed costs were recorded against each machine, and the balance of costs were split up proportionate to the revenue from each division.[137] Ken White’s evidence was given after Gary Fettes report of 11 February 2019 criticised the use of the segment analysis.
[137]Transcript (Monday 11 February 2019), 151.

Mr Natoli did not understand the segment analysis in the way Ken White belatedly explained it. In his 1 February 2019 report he wrote:

I understand that Mr White has allocated operating expenses between the three income streams on a pro-rata basis, (ie, the proportion of each revenue stream to the total revenue). This approach assures that all expenses are variable or directly incurred as a result of the operating activity that has generated the revenue.

There was no mention of fixed costs distributed otherwise.

When cross-examined about the segmented analysis approach, Tony Natoli agreed:[138]

My understanding was at the time that the costs had been allocated based on revenue.

Later, he suggested that he had been told by Ken White in January that this was not so, but in the rush it was not included in his report.[139]

[138]Transcript (Wednesday 13 February 2019), 191.

[139]Transcript (Wednesday 13 February 2019), 193.

In my view, it is clear, as Armquip contends, that: first, the segment analysis did not set out the necessary information or “workings” upon which Mr Natoli’s opinion was based; and, secondly, the subsequent opinion failed to set out the facts or assumptions that formed the basis of that opinion; contrary to the requirements for admissibility of opinion evidence in accordance with s 79 of the Evidence Act 2008.[140]
[140]Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [37], [42].

It is trite law that damages for breach of contract are awarded to put the injured party in the same position as if the contract had been performed.[141]
[141]Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80, 98, 117.

Tony Natoli’s opinions were subject to myriad assumptions and instructions, such that even he could only indicate his opinion was “indicative”. In evidence he said it was “limited” or “indicative” and based on incomplete or limited information.[142] Moreover, Tony Natoli said he was not told how to calculate the loss[143] yet he was unable to answer why: the crane losses might be calculated by guaranteeing the purchaser the income as if the vendor had continued in the business;[144] and the breach of the right of first refusal might be calculated by giving the purchaser the profits that the vendor might make if it had continued in the Peru business for two or three years.[145]
[142]Transcript (Wednesday 13 February 2019), 194.
[143]Transcript (Wednesday 13 February 2019), 196.
[144]Transcript (Wednesday 13 February 2019), 197–199.
[145]Transcript (Wednesday 13 February 2019), 197–199.

Clearly, at best, Rivex would be entitled to damages reflecting the loss of the chance of earning additional profits in the crane and Peru businesses (depending on the contractual breaches proven).[146] However, Tony Natoli said he did not know what a loss of chance case was.[147]
[146]Sellars v Adelaide Petroleum NL (1994) 179 CLR 332.
[147]Transcript (Wednesday 13 February 2019), 199.

As a matter of logic the method of assessment of damages advanced by Tony Natoli was flawed and conceptually incorrect. It failed to account for differences in the operation of the vendor and purchaser businesses and its use of the EBITDA measure did not identify lost profit.[148]
[148]Transcript (Wednesday 13 February 2019), 199–202.

In summary, the criticisms of Tony Natoli’s approach identified by Gary Fettes in his 11 February 2019 report are all justified. An alternate method of assessing loss by utilising the ATO benchmark Gross Profit Margin for a Construction Machinery Hire with Operator shows no relevant losses. Rivex offers some criticism of the use of the ATO benchmark as a general average, not necessarily indicative of the position with respect to a particular business. Even if there is some justification for this criticism, I do not regard it as seriously detracting from the expert evidence of Gary Fettes — and it certainly does not “cure” the deficiencies in Tony Natoli’s approach, as has been discussed.

Gary Fettes was not generally cross examined about the content of his report and 13 February 2019 letter. The two matters to which attention was given were: first, whether he could have obtained accurate information from the purchaser’s accountant.[149] In his report Gary Fettes noted the purchaser’s accounts were unreliable.[150] This line of questioning ignores the fact that the burden of proving losses rests on the plaintiff. Furthermore, Gary Fettes was only requested to comment on Tony Natoli’s report; and, secondly, whether the PERU assets sold, and consequently the finance charge debited to the extrapolated Armquip profit, should be limited to $630,000. Plainly the PERU assets sold to SCH exceeded this figure.[151]
[149]Transcript (Thursday 14 February 2019), 356–367.
[150]Transcript (Thursday 14 February 2019), 366–367.
[151]See for example, the Invoice from Armstrong Equipment Hire to Southern Cranes (16 January 2017).

For the preceding reasons, I accept Armquip’s submission that the evidence given by Gary Fettes was more compelling and consistent with a more conventional assessment of damage and loss. It should, of course, be observed that in the view of Gary Fettes, the “loss” was “$Nil”.[152]
[152]See [7.48].

Causes of action and breach

Rivex relied on causes of action in contract and pursuant to the Australian Consumer Law.[153] Thus, it is necessary to turn to the wording of the Sale Agreement and the statements made by Armquip to Rivex at the meeting on 21 March 2016 to determine whether those claims made by Rivex are made out.
[153]See above, [4].

Contract claim

Rivex’s alleged breach that Armquip failed to offer to sell the Retained Assets “on the same terms” must fail. First, Rivex does not allege it was a term of the Sale Agreement that Armquip had to offer to sell the Retained Assets “on the same terms”. Secondly, whether Armquip was under a contractual obligation to sell the Retailed Assets “on the same terms” is a matter of construing the terms of the Sale Agreement.

The principles to apply when construing a commercial contract were summarised by Chesterman J in Norco Co-Operative Ltd v Paramalot Australia Ltd as follows:[154]

1.The court must first look at the words of the document which constitutes the contract between the parties. The whole of the document must be considered and a construction should be attempted which will make all clauses operate harmoniously. If the words are plain and unambiguous the court must give effect to them even though the result may appear one sided or even unreasonable. See Australian Broadcasting Commission v Australasian Performing Right Association Ltd[1973] HCA 36; (1973) 129 CLR 99 at 109.
2.If the language of the contract is ambiguous, or open to two constructions, or if the plain meaning of the clause renders it inconsistent with another, the court should resolve the ambiguity, or reconcile the inconsistency, by adopting a construction which accords with ‘business common sense’ or the commercial purpose of the agreement which appears from its terms and the knowledge, common to the parties, which formed the background to the formation of their agreement. See Australian Broadcasting Commission; Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd(1990) 20 NSWLR 310 at 313-4 per Kirby P.
3.If the words of a contract, while plain and unambiguous, lead to a result which is not only unreasonable but absurd, the court should construe the contract, if necessary by supplying, omitting, or correcting words to avoid the absurdity: Watson v Phipps(1985) 60 ALJR 1 at 3; Westpac Banking Corporation v Tanzone Pty Ltd[2000] NSWCA 25 paras [19] and [20]. Before this rule is put into operation it must, I think, be unmistakably clear that the parties cannot have meant what they said was their bargain.

[154][2006] QSC 38, [11].

Then principles were approved by Jerrard JA in Parmalat Australia Ltd & Ors v Norco Co-Operative Ltd,[155] who added the observations by Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Associate Ltd:[156]

If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust.

[155][2006] QCA 129, [43].

[156](1973) 126 CLR 99, 109.

Armquip contends that, in the present case, the wording of clause 24 of the Sale Agreement is plain and unambiguous. Thus it says the language of clause 24 is not open to alternate construction. More particularly, Armquip emphasises that the clause does not contain the words “on the same terms” or any such similar words with respect to any offer in compliance with its terms. Clause 24 simply requires Armquip to make an offer to sell the Retained Assets to Rivex; no more, no less.

Clause 24(b) of the Sale Contract prohibited Armquip from entering “into a contract for the sale of the Retained Assets without first offering to sell the Retained Assets to the Purchaser or his nominee”. The Retained Assets are identified by reference to a combination of clauses 21 and 24.[157]
[157]Clauses 21 and 24 of the Sale Agreement are set out above, [9].

In general terms, as Rivex contends, in construing the terms of a contract, ambiguity does not need to be self-evident on the face of the contract. Indeed, ambiguity in and of itself, is not necessarily a pre-requisite for intervention by the court. In construing a contract the court has power to supply and correct words so as to replace what might otherwise be an absurd and inconsistent meaning with the correct meaning which provides a more businesslike commercial outcome.[158] This is not, however, to say that a bad bargain may be displaced with a good bargain and it is not a charter for courts to rewrite contracts. Indeed, the position as stated and restated in the authorities is pithily stated in the proposition that “a court is not justified in disregarding unambiguous language simply because the contract would have a more commercial and business like operation if an interpretation different to that dictated by the language”.[159] Moreover, the court must have a “strong level of conviction”[160] that the literal meaning of the contractual words produces a repugnancy or inconsistency with the rest of the contract.
[158]Electricity Generation Corporation v Woodside Energy (2014) 251 CLR 640 at 656-7 [35].
[159]Jireh International Pty Ltd v Western Exports Services Inc. [2011] NSWCA 137, [55].
[160]National Australia Bank v Clowes [2013] NSWCA 179, [38].

In the present case, Rivex submits that whilst the initial words of clause 24(b) appear simple and uncontentious they can readily be demonstrated to be inconsistent with the rest of the contract, and in particular the objective commercial purpose which was to be obtained by the contract, by a consideration of differing factual situations. For example, on its face, Armquip would be compliant with the obligation contained in clause 24(b) if it provided an offer to purchase all of the retained assets for $100 million. The rejection of that offer would then seemingly entitle Armquip to sell all of the retained assets to a third party for $100. As Rivex concedes, this fact hypothesis is plainly absurd, though it is said that it highlights the absurdity which exists in the contract if the words of the clause are accepted on face value.[161] I do not, however, accept that this example establishes the point. In my view, the principles properly applicable to the construction of commercial contracts would readily accommodate the implication of reasonableness in the price and terms offered — or to put it another way, an offer at a price for which the offerors were genuinely prepared to sell, again incorporating reasonableness. So much is clear, in my view, from the decision of the New South Wales Court of Appeal in Goldmaster Homes Pty Ltd v Johnson in the passage set out below.[162]
[161]Plaintiff’s Closing Submissions (22 February 2019), [28].
[162](2006) NSW Conv R ¶ 56-142; [2004] NSWCA 144.

However, it does not follow from an implication or implications of this kind that the offer to sell all of the retained assets, in this case, must be made on reasonable commercial terms, terms which would be satisfied by not permitting a sale to a third party without first having offered the same terms of sale to Rivex. There is no warrant for, in effect, rewriting clause 24(b) in this manner.

Rivex then, in the course of its submissions on clause 24(b), makes what appear to me to be some observations which are uncontroversial on the evidence:[163]

30.The original transaction contemplated a sale of the entirety of the Crane Hire business but Rivex expressed an interest in the PERU business as well.[164] During the course of the negotiations it was agreed that the PERU business would be retained by the Vendors for their own use. It suited the Vendors as their AusNet contract had approximately 2 years to run. From the perspective of the Plaintiff, it avoided the risk of being stretched too thin on the sale and also made the process of effecting the transition into the new business with the existing civil construction business, an easier task. Simply put, the retention of the PERU business by the Vendors with a first right of refusal to sell to the purchaser at a later date, suited both parties.[165]
31.Critically, Dallas was keen to ensure that SCH, as the nearest neighbouring PERU operator, was not given the opportunity to purchase the PERU business without it first being offered to Dallas. The first right of refusal that was ultimately encapsulated within clause 24(b) was intended to provide that protection to Dallas which was merely consistent with the original proposal by Dallas of an acquisition of the entirety of the Vendors’ business including the PERU business.

[163]Plaintiff’s Closing Submissions (22 February 2019), [30], [31].

[164]Transcript (Thursday 14 February 2019), 258.

[165]Transcript (Thursday 14 February 2019), 258–259.

These observations form the basis of Rivex’s contentions with respect to the proper construction of clause 24(b):[166]

32.In circumstances where the Vendors have worked hard to preserve the integrity of their effective monopoly within the region the first right of refusal that was reserved to the Plaintiff was provided in circumstances which intended to respect that effective monopoly, and preserve it for the continuing benefit of the Plaintiff. In that context, we submit that upon its proper construction, Clause 24(b) obliges the Vendor to first offer to sell the Retained Assets to the purchaser on the same terms that it may otherwise contemplate to sell to a third party.
33.It would make a mockery of the benefit that is intended to be conferred upon the Plaintiff by clause 24(b) to permit the Vendor to make a plainly unrealistic offer solely for the purposes of purported compliance. The obligation is best characterised in our submission, as an obligation that prevents the Vendor from dealing with an alternative third party purchaser on terms less favourable than those which are/were offered to the Plaintiff.

[166]Plaintiff’s Closing Submissions (22 February 2019), [32], [33].

There are, however, a variety of difficulties with respect to Rivex’s contentions. First, there is no evidence of any, so called, monopoly which clause 24(b) might be said to be designed to protect. Secondly, the continuing benefit to Rivex, as is clear from the evidence, was to provide it with the possibility of purchasing both the crane hire business and PERU business from Armquip in stages — so that it was not too stretched, financially and otherwise. Thirdly, there is no basis, applying the usual principles of construction of commercial contracts, to write into clause 24(b) a “same terms” as may be offered to a third party requirement; either as a matter of language or on a commercial purpose basis.

Moreover, the positon of Rivex needs to be viewed against the realities of the circumstances of the present dispute and this litigation. First, there is no evidence, valuation or otherwise, that the price at which the assets were offered for sale to Rivex was other than a reasonable price at which and on the terms proposed Armquip was genuinely prepared to sell; and, indeed, Rivex conceded that there is no evidence as to the market value of those assets at the time the offer was made.[167] The fact that Armquip subsequently sold them for a lower price — even if it may be said to be a significantly lower price — does not assist Rivex in this respect. Much is sought to be made by Rivex of Graeme Armstrong’s evidence that Tony O’Loughlin “… knows what the vehicles are worth”.[168] In context of his evidence, this statement should, in my view, be taken to mean no more than that Graeme Armstrong knew that Tony O’Loughlin was very experienced in the industry and a hard bargainer. It does not provide any basis for the position put by Rivex that the offer price to it was other than reasonable when the offer was made or that the offer was not genuine. The evidence of Graeme Armstrong was that the view was formed by Armquip that if the sale to SCH did not proceed they may not be able to sell the assets — all in circumstances where Dallas Witham had previously been concerned to confirm the Rivex right of first refusal but had shown no interest in pursuing the offer — not even making rudimentary enquiries — and Armquip had decided it needed to sell the PERU business, following Graeme Armstrong’s health issues. Moreover, there is no evidence that the proposed sale the subject of the offer was other than genuine, as discussed in Goldmaster Homes. The submission by Rivex that this required an offer on the same terms as the sale to SCH must be rejected because, as discussed, it relies on implication of terms which do not appear in clause 24(b). Moreover, even if Ken White did inform Dallas Witham that Armquip was not prepared to negotiate the offer, which is contrary to the evidence of Graeme and Leon Armstrong,[169] this does not necessarily mean, and in the present circumstances would not mean, that the offer was not genuine in the relevant sense.[170]
[167]Transcript (Thursday 14 February 2019), 384, 391.
[168]Transcript (Thursday 14 February 2019), 397.
[169]See above, [38]-[39].
[170]c.f. Plaintiff’s Closing Submissions (22 February 2019), [42]-[46].

For these reasons, I am of the opinion that the obligation contained in clause 24 is relevantly similar to an obligation to provide a purchaser with a first right of refusal. In Goldmaster Homes Pty Ltd v Johnson,[171] it was contended that the obligation to give a first right of refusal is an obligation to make an offer to sell property not only at the same price but also on the same terms as some other proposing purchaser is prepared to agree. In that case, Bryson JA (with whom Mason P and Stein AJA agreed) observed that:[172]
[171](2006) NSW Conv R ¶ 56-142; [2004] NSWCA 144.
[172](2006) NSW Conv R ¶ 56-145 at 59-675.

35.… There is no reference to an option, to another purchaser, to the terms on which a sale is proposed, or to an offer to the purchaser or to an offer in writing. Nothing in the context sets the rights of the appellants in apposition to the rights of any other intending purchaser. The right conferred is a right of refusal, and the use of the word “refusal” invokes the question “refusal of what?”. In my opinion the answer suggested by the context is refusal of an opportunity to buy the Land. There is nothing in the context which requires the opportunity to be in a high state of definition.
36.In my opinion the alleged promise could have been performed in various ways, but was sufficiently performed by giving Mr Scarcella an opportunity, in the context of a list of prices at which the respondents were genuinely willing to sell the land, to say whether he refused to purchase, or whether he wished to purchase. The obligation was completely discharged when Mr Scarcella refused, and with that event no further performance of the obligation was required, or was possible. The course which the respondents would have had to follow if Mr Scarcella had not made a definitive refusal does not need to be considered. Perhaps they would have had to tender an opportunity to buy, defined in some full way, and allow a reasonable time for response, or, if there was no response, for a constructive refusal. Further examination of this hypothesis is not required.
37.In my opinion there is no need to follow any highly defined or definable procedure in order to accord the appellants the rights which the right of first refusal would give to them. The Court is required to address the parties' conduct and the events and come to a conclusion on whether the appellants were given a reasonable opportunity to refuse, or alternatively not to refuse but to indicate a wish to purchase the land; and whether the opportunity was an opportunity to make a first refusal, which it would be if no right to purchase by any third party had been created before the opportunity existed. A decision not to refuse but to purchase could conceivably be somewhat complex of expression, as it would be necessary to address what terms were involved; if the proposing vendor or for that matter the proposing purchaser put forward some terms in detail in addition to the price a close address to the facts might be required to ascertain when an agreement for sale came into existence. If the price is agreed, a bare contract incorporating the conditions of sale in Sched 3 of the Conveyancing Act 1919 by the operation of s 60 of that Act can come into operation very readily. However that may be, a refusal, the right to make which is the right expressly conferred, can come into existence readily and unmistakably without the need for any high definition of the terms which are being refused. The person making the refusal chooses the terms and the circumstances in which he or she refuses.
38.A passage in the judgment of Brightman J in Smith v Morgan furnishes an illustration of the manner in which, in my opinion, the right of first refusal operates, if contractually binding:
However, I reject the defendant's submission that the plaintiff, should she wish to sell, is bound to offer the property at market value or at such value as the court may determine, as suggested by the points of counter-claim. Paragraph 1 of the second schedule to the conveyance says nothing whatever about market value and nothing about a reference to the court, even if the court were willing to accept such a reference. In my view it is implicit in paragraph 1 of the second schedule that a purchase, if it results from an offer, should be at a price acceptable to both parties. On that basis it appears to me that paragraph 1 can only mean one thing; that the obligation on the vendor, should she wish to sell, is an obligation to make an offer to the purchaser at the price and at no more than the price at which she is, as a matter of fact, willing to sell. If that offer is accepted by the defendant, then there will be a purchase at a figure which has been agreed upon. If the offer is rejected, then cadit quaestio.

This is not a case where the right of first refusal is fashioned upon the existence of an offer by some other anticipated or identified party.[173] The evidence is, rather, that discussions with SCH with respect to the sale of PERU assets did not take place until after the time of the offer to Rivex.[174]
[173]c.f. Southern Region Ltd and Anor v Wallington Hardware & Timber Pty Ltd [2010] VSC 95.
[174]See above, [49].

Rivex also raises issues in relation to the extent of the vehicles, plant and equipment, the subject of the offer; noting that the “Retained Assets” are not the subject of a definition provision[175] in the usual sense or specifically listed in the Sale Agreement. It says that the obligation of Armquip under clauses 21 and 24 of the Sale Agreement was to first offer to Rivex those assets which were retained by Armquip for the operation of the ongoing business, namely, the PERU business. Those assets, it says, variously included at least eight PERU borers and seven pole trailers, together with sundry other items of peripheral equipment and vehicles.[176] What was plainly intended by the contract, Rivex contends, was that the then existing business operated by Armquip could be acquired by Rivex absolutely. Rivex, it says, had the first right of refusal to purchase the entirety of “the Retained Assets”, as defined in clauses 21 and 24. Rivex says, however, that it was never in fact offered all of them.
[175]As, for example, under clause 1(b) of the Sale Agreement.
[176]Plaintiff’s Closing Submissions (22 February 2019), [34].

Rivex submits that in order to properly construe what is referred to and described as the “Retained Assets” in clause 24(a) of the Sale Agreement, resort may be made to the surrounding circumstances that prevailed at the time of the entry into the agreement.[177] In addition, it is said that the text, context and purpose, including the commercial purpose or objects to be secured by the contract, should be considered.[178]
[177]Royal Botanical Gardens and Domain Trust v South SydneyCity Council (2002) 240 CLR 45.
[178]Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 at [46]-[51] (French CJ, Nettle and Gordon JJ).

On this basis, Rivex contends that no residual equipment was permitted to be retained, which is consistent with the restraint contained in the contract of sale which prohibited Armquip from continuing to engage in crane hire.[179] The sale of the PERU business required a complete divestment by Armquip of all of the vehicles and equipment used in the pursuit of the PERU business. Moreover, it is said that the precise items of vehicles, plant and equipment might change over the two years or so Armquip performed the Ausnet contract. The obligation was simply to sell everything that was used to conduct the “Ongoing Business”; and not to otherwise dispose of assets which would detract from the viability, and hence the value, of this business. A precise list was not required, nor was one compiled. Thus, Rivex submits that the obligation was squarely upon Armquip to sell the “Retained Assets”, which necessarily included an obligation on their part to honestly identify all of them. If they failed to do so, they breached the Sale Agreement. Then, it is said that Graeme Armstrong freely agreed that there were items of equipment including two PERU borers and two pole trailers that were used in the “Ongoing Business” that were not offered to Rivex. For this proposition, Rivex relies on his evidence in cross-examination (the precise passage relied upon identified in italics):[180]
[179]Clause 20 of the Sale Agreement.
[180]Transcript (Thursday 14 February 2019), 303–304 (with the passage relied upon by Rivex marked in italics).

And the ongoing business that you had with the PERUs wasn’t just working for Ausnet, was it?‑‑‑No.
No. The PERUs could be deployed in other jobs, couldn’t they?‑‑‑Um, yes.
Yes. And that was part of the work that you were retaining for yourself for the ongoing next two years or thereabouts; correct?‑‑‑Yes.
Yes. And those other items of equipment didn’t form any part of any offer to Rivex at any time, did they?‑‑‑The PERUs?
And all the other ancillary equipment?‑‑‑The other ancillary equipment was – the other ancillary equipment was offered to Rivex. The PERUs – the – the two PERUs or their trailers weren’t offered to Rivex.
No. Which ones were they? What unit numbers?‑‑‑Oh, 20, 17, I think.
Yes. Who did you sell them to?‑‑‑Ah, they both went to auction. One went to – to, ah – in October 2017 they went to auction, I think it was. One went to, ah, Wodonga Cranes and one went to Southern Cranes.

However, the passage relied upon by Rivex, read in its context, does not, except perhaps in a superficial and misleading sense, support the position put by Rivex. Rather, it is evidence that Armquip disposed of all the PERU business assets — and consistently with the purposive construction that Rivex would have the Court put on the provisions of clauses 20, 21 and 24 which it relies upon; there being no evidence that those assets continued to be used in any PERU or other business conducted by Armquip.

Moreover, on the construction of clauses 20, 21 and 24 of the Sale Agreement put by Rivex, Armquip would be entitled to sell vehicles, plant and equipment used to operate the “Ongoing Business” and, it follows, replace them or choose not to do so depending on the demands of that business and the extent to which Armquip proposed to meet those demands; otherwise, as was pointed out, it may risk insolvency[181] or miss out on other business opportunities. Additionally, it is not suggested that any particular time limit be placed on disposal of such assets, provided they were not used by Armquip to conduct business of the same nature as the “Ongoing Business” after an offer was made to Rivex under clause 24. Otherwise, it might be said that the “Ongoing Business” had not ceased and the restraint provisions of clause 20 would be enlivened. There is no evidence that any aspect of the “Ongoing Business” continued after the offer to Rivex or after the sale of assets to SCH; and nor is there any evidence that any assets were disposed of or not offered to the prejudice to the viability or value of this business. Consequently, there was no breach by Armquip of clauses 20, 21 or 24 of the Sale Agreement in this respect.
[181]Transcript (Tuesday 26 February 2019), 424.

Finally, in terms of the “Retained Assets”, there is the question whether the units that were offered included pole trailers. As to this, Rivex submits, the resolution of the question as to whether or not a reference to a unit number as relied upon by Armquip for their management of their vehicles, means and includes a truck together with a pole trailer, requires a correct construction of the terms of the offer made by Ken White on behalf of Armquip.[182] Thus, it is said, where a vehicle is described as Unit 10 2014 MAN26.340/proline borer, reference may be had to the surrounding circumstances objectively known to both parties to properly construe what is meant by that vehicle description.[183] As discussed in the preceding reasons, it is, in my view, quite clear that in all the circumstances, the offer must be taken to have included the pole trailers.[184]
[182]See above, [34].
[183]Royal Botanical Gardens and Domain Trust v South SydneyCity Council (2002) 240 CLR 45.
[184]See above, [42].

In light of the material facts outlined above and the legal principles, since Rivex rejected the offer outright it cannot now be alleged there has been a breach of clause 24 of the Sale Agreement. Moreover, it should be observed in this context that there is no evidence from Rivex that the offer was rejected because all the PERU’s or other assets claimed to be within the net of “Retained Assets” were not included.

Misleading and deceptive conduct claim

Rivex’s alleged misrepresentation claims must fail. First, Dallas Witham never gave evidence that Armquip represented “they would not do anything which would adversely impact upon the commercial interests of Rivex once Rivex took possession of the Business”. Secondly, the alleged misrepresentation that Armquip would not sell the Retained Assets to SCH is inconsistent with the express wording of clause 24(b) of the December Contract and the Sale Agreement. Both contracts contain limited restraint of trade clauses. Finally, if the Sale Agreement prevented Armquip from selling the Retained Assets to a particular entity or at all, I consider such a restraint would be unreasonable, contrary to public policy and unenforceable.

Loss and damage

Since Rivex has not made good its causes of action, Armquip contends it is unnecessary for the Court to consider whether Rivex has suffered any loss and damage. Armquip contends that Mr Fettes’s analysis is to be preferred compared with Mr Natoli’s analysis. Rivex has failed to prove it has suffered any loss.

Conclusion

For the preceding reasons, Rivex fails comprehensively in both its contract and misrepresentation claims, both in terms of liability and loss and damage.

The parties are to bring in orders to give effect to these reasons. I otherwise reserve the question of costs and will hear the parties further on this issue.

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[2019] VSC 122

22 March 2019