Rodger Constructions Pty Ltd v Woolcorp Pty Ltd - [2016] VCC 86

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

COMMERCIAL DIVISON
GENERAL LIST

Case No. CI-14-01002

RODGER CONSTRUCTIONS PTY LTD	Plaintiff
v.
WOOLCORP PTY LTD	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	9 – 12 and 15 February 2016
DATE OF JUDGMENT:	18 March 2016
CASE MAY BE CITED AS:	Rodger Constructions Pty Ltd v. Woolcorp Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 86

REASONS FOR JUDGMENT

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Catchwords: Contract – Alleged agreement between developers of adjoining land – Contribution to be made by one developer towards the costs of the other constructing a sub-divisional road on the common boundary – Whether agreement established – If no agreement made out, whether the developer obtaining the benefit of the road should contribute to the cost of construction – Lumbers v. W Cook Builders Pty Ltd (in liq.) (2008) 232 CLR 635 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Peters of Counsel	Maddens Lawyers
For the Defendant	Mr C R Northrop of Counsel	Whyte Just & Moore

HIS HONOUR:

1Prior to 2004, the Warrnambool City Council had identified an area of land to the north-east of Warrnambool as suitable for future residential development. The land, which was known as Cell D, comprised 21.35ha and was “used for intermittent grazing and cropping”. Cell D included a number of separate titles held by six different owners. Attached as Schedule 1 is a plan showing the ownership of the land.
2The major holding, the northern half of Cell D, was owned by Trevor Martin (“the Martin land”). On 17 September 2004, Mr Martin entered into a “Development Agreement” with the plaintiff in this proceeding, Rodger Constructions Pty Ltd (“Rodger Constructions”) who agreed, on Mr Martin’s behalf, “to undertake the planning, subdivision and development of [his land] for residential purposes”. The driving force behind Rodger Constructions was its principal director, Mr Graeme Rodger.
3To the south, the major landholder was the defendant in this proceeding, Woolcorp Pty Ltd (“Woolcorp”). Woolcorp owned the south-east portion of Cell D, apart from a small parcel owned by Evans. The balance of the southern land was owned by Cook, Smart, Lanigan and Owen. In 2009, Woolcorp also purchased the Smart land, a substantial holding to the west, separated from Woolcorp’s eastern parcel by the Owen land. Woolcorp’s principal director was Mr Leon Gleeson.
4After many years of negotiation, the subdivision of Cell D proceeded, initially in the northern half by Rodger Constructions on behalf of Mr Martin and later in the south-east by Woolcorp. As part of the Martin development to the north, an east-west road (“Quarry Road”) was constructed on the southern boundary of the Martin land, from the eastern boundary for about three quarters of the distance towards Aberline Road on the western boundary.
5Rodger Constructions claims that Woolcorp agreed to contribute to the cost of the construction of Quarry Road for the length that it abutted Woolcorp’s land. Woolcorp’s contribution was to be 50% of the construction costs as estimated by Rodger Constructions’ engineer, Mr Stuart Titmus. The contribution claimed is $218,565.56.
6Alternatively, Rodger Constructions claims that Woolcorp should be required to make a reasonable contribution towards the construction costs of Quarry Road commensurate with the benefit received by Woolcorp at the expense of Rodger Constructions.
7The issues for determination in the proceeding are:
1. Whether Woolcorp agreed with Rodger Constructions to contribute to the cost of constructing Quarry Road –
a. calculated at 50% of the estimate of costs prepared by Rodger Constructions’ engineer Mr Titmus;
b. alternatively, in any other sum which can be calculated and recovered from Woolcorp?

2. Whether Woolcorp derived a benefit from the construction of Quarry Road at the expense of Rodger Constructions, in respect of which it should make a reasonable contribution, and if so, in what sum?

Whether Woolcorp agreed to contribute to the cost of constructing Quarry Road?
8Rodger Constructions alleges in the amended statement of claim dated 11 November 2015 that the agreement between the parties “in or about August 2008” (“the Agreement”) was constituted by the following matters:
a.conversations from “shortly before August 2008 and in or about November 2008” between Mr Rodger on the one hand and separately with Mr Gleeson and Mr Matthews on the other;
b.an email dated 27 August 2008 from Mr Matthews to Mr Rodger enclosing an email from Mr Matthews to the Warrnambool City Council dated 25 August 2008;
c.the conduct of the parties, including each party’s participation in the process of rezoning, subdivision and development of substantial parts of Cell D for residential purposes, which involved the relocation of Quarry Road to the southern boundary of the Martin land.

9Rodger Constructions further alleges that the Agreement was varied “in about early 2010” in a conversation between Mr Rodger and Mr Gleeson at the Martin land. It is alleged that the parties agreed “that the reasonable share of the costs of construction of the road to be paid by [Woolcorp] was half the cost of the road as determined by [Rodger Constructions’] engineers” (“the Varied Agreement”).
10During his final submissions, Rodger Constructions’ counsel, Mr Peters, made application to further amend the statement of claim to allege that the Agreement had been made “between about August 2008 and July 2009”, rather than “in or about August 2008”. Mr Peters submitted that the amendment accorded with the way he had opened the case and the evidence that had been led.
11Woolcorp’s counsel, Mr Northrop opposed the amendment, referring to the major revision of the statement of claim in late 2015, his reference to the state of the pleading in his opening remarks and the delay by Woolcorp in making the application to amend.
12I consider, for the reasons I discuss further below, that it is likely that by about November 2008, Rodger Constructions had incorporated in its development plan the relocation of Quarry Road to the southern boundary of the Martin land and, by mid-2009, had commenced the construction of the infrastructure works for its subdivision.
13Insofar as it is necessary for Rodger Constructions to rely upon these two matters in its contractual claims, I consider that the amendment should be allowed. I do not consider that Woolcorp has been prejudiced by the lateness of the application for amendment to this limited degree.
14The issue of whether or not the parties reached an agreement or Varied Agreement can only be determined after a careful examination of the oral evidence of the witnesses and the contemporaneous documents. This analysis will also be important in the consideration of the restitutionary claim.
15Credibility of witnesses: Each party called two principal witnesses; Rodger Constructions called Mr Rodger and an engineer from Brian Consulting Pty Ltd, Mr Stuart Titmus and Woolcorp called Mr Gleeson and Mr Paul Matthews, Woolcorp’s architect and planner. Mr Sam Stevens also gave evidence for Rodger Constructions although his evidence was inconsequential.
16Mr Northrop criticised the failure by Rodger Constructions to call Ms Justine Jenkins (later Williams) to give evidence. Ms Jenkins was a planner from SM Urban Pty Ltd (“SM Urban”) who had the principal dealings with the Warrnambool City Council and with Mr Matthews, particularly during critical periods in 2008 and 2009.
17The chronology of events was generally uncontroversial, largely because the correspondence between the parties, the diaries of Mr Gleeson and Mr Matthews and the documents produced on subpoena from the Council had set the parameters. There were, however, a number of significant meetings and conversations which were highly contentious, either as to whether they occurred at all or as to what had been discussed between the participants.
18The contentious meetings and conversations included the following:
a.the meeting on 4 July 2008 between Mr Rodger and Mr Matthews;
b.a telephone call a few days before 27 August 2008 from Mr Matthews to Mr Rodger;
c.a meeting on 5 November 2009 between Mr Rodger, Mr Gleeson and Mr Matthews at the premises of Rodger Constructions;
d.a meeting on 18 March 2010 between Mr Rodger and Mr Gleeson at Ritchie Bros. Auctioneers in Geelong;
e.a meeting in about early May 2010 between Mr Rodger and Mr Gleeson on the Martin land;
f.a conversation on 14 May 2010 between Mr Rodger and Mr Gleeson after a meeting at the Council offices.

19The veracity of the witnesses, principally Mr Rodger, Mr Gleeson and Mr Matthews was therefore in issue. The parties’ counsel tested this evidence by reference to contemporaneous documents which helped to determine whether events had occurred. Mr Northrop also compared the articulation of Rodger Constructions’ claim in the pleadings and the evidence of Mr Rodger, with inconsistent assertions in earlier correspondence.
20Both counsel in final submissions suggested that I should, in a case where witnesses’ recollections were being taken back many years, assess their evidence not only by reference to their demeanour but also in the light of the consistency of that testimony with the written record.
21I am not prepared to make general adverse comments about any of the witnesses. However, each of them, at times, confidently related their recollection of a meeting or conversation about 7 or 8 years ago and yet had little or no memory of events which would ordinarily have had a similar importance or lack of significance. In the circumstances, I have carefully considered such evidence, and at times I have determined matters by indicating that, on the evidence I heard, I did not accept particular evidence of a witness or could not be satisfied on the probabilities as to what had occurred.
22Chronology of events to July 2008: Although Rodger Constructions entered into the Development Agreement with Mr Martin in September 2004, the progress of the negotiations with the Council was slow. In December 2007, planning scheme amendment request C61 was lodged with the Council on behalf of Rodger Constructions.
23On 29 January 2008, there was a meeting at the Council offices attended by the interested landowners in the area for the proposed residential development known as Cell D. Mr Gleeson and Mr Matthews were at the meeting. Mr Rodger and Ms Jenkins made a presentation to the meeting and Mr Rodger told the meeting that Rodger Constructions (through SM Urban) would prepare a development plan for the whole of the land.
24A draft concept plan was sent to Woolcorp by SM Urban on 1 May 2008 (“the first plan”). This plan showed the east-west road, that was to become Quarry Road, some distance to the north of the southern boundary of the Martin land. Comments on the first plan were made on behalf of Mr Gleeson and another landowner. Woolcorp was informed by SM Urban on 24 June 2008 that a revised plan had been prepared which was enclosed (“the second plan”). The second plan was incorporated in a development plan submitted to the Council by SM Urban on 27 June 2008. The location of Quarry Road was unchanged.
25Meeting on 4 July 2008 between Mr Rodger and Mr Matthews: When the meeting with Mr Matthews and the alleged discussion at the meeting was put to Mr Rodger in cross-examination, he said that he could not recall the meeting. Also, Mr Rodger could not recall Mr Gleeson and Mr Matthews having been at the meeting at the Council offices involving the Cell D landowners in January 2008. Mr Rodger thought that his first contact with Mr Matthews was when Mr Matthews phoned him in August 2008.
26In final submissions, Mr Peters conceded that the meeting on 4 July 2008 must have taken place. When Mr Matthews gave evidence he produced his diaries. These documents had not been discovered by Woolcorp and were only seen for the first time by Rodger Constructions after the Court adjourned the day Mr Matthews commenced his evidence. The diaries apparently record that Mr Matthews met Mr Rodger at the Rodger Constructions offices on 4 July 2008, in accordance with an appointment made between them in a telephone conversation on 30 June 2008.
27At the meeting, Mr Matthews said that they discussed SM Urban’s draft proposal and that he showed Mr Rodger “a schematic design which showed how [Mr Gleeson] could better develop his land if he was able to gain some changes in the development plan that SM Urban had proposed”. He said that Mr Rodger told him to liaise directly with SM Urban.
28On 18 July 2008, Mr Matthews sent by email a “revised concept development plan as per my discussion with Graeme” and expressed the hope that “the proposed changes can be accommodated into your concept development plan”. Mr Matthews’ plan showed Quarry Road in the same position as on the first plan and the second plan prepared by SM Urban. SM Urban reviewed Mr Matthews’ concept plan and Ms Jenkins in an email to Rodger Constructions on 21 July 2008 stated, “I assume that we should respond to Paul [Mr Matthews] in some format but I’m not sure what Graeme [Mr Rodger] had indicated to Paul”.
29Mr Rodger had given evidence that “one day” he had a phone call from Mr Matthews. Mr Rodger said that, “I seem to remember a matter of days later I was copied in on a report he sent the Council”. Mr Rodger identified the report as the document attached to an email from Mr Matthews dated 27 August 2008.
30It is possible that Mr Rodger was confused about the timing of the conversation with Mr Matthews and it had in fact been a face to face meeting in the Rodger Constructions offices in early July 2008, rather than a telephone conversation in mid to late August 2008 to which Mr Rodger referred in his evidence. However, there were significant discrepancies in the evidence Mr Rodger gave of what was discussed in the conversation and the version given by Mr Matthews.
31Mr Rodger gave evidence of the following matters in relation to what he said was discussed in the telephone conversation in August 2008:
a.Mr Matthews was seeking his support for an alteration to the development plan prepared by SM Urban;
b.the “alteration was to move the east-west road to the south onto the boundary of the property owned by Mr Gleeson”;
c.this alteration would enable Mr Matthews to “change his internal roads to get a better layout for their subdivision in respect of the amount of lots, the east-west orientation of the blocks that were in there”;
d.Mr Rodger indicated that he had no objection provided:
i.“SM Urban had no objections to it and supported what [Mr Matthews] wanted to do”; and
ii.Rodgers Constructions “got compensated for it and paid for what we had to do because I recognised it was considerable”;

e.Mr Matthews “responded to that in a positive manner and said yes, there would be no problem about compensation for anything that we did”.

32Mr Rodger’s evidence of the conversation is difficult to accept, even if Mr Rodger’s recollection of the date and circumstances of the discussion was put down to faulty memory. The email to SM Urban from Mr Matthews dated 18 July 2008 attached a “revised concept development plan” which did not alter the location of Quarry Road as it had been shown on the first plan and the second plan prepared by SM Urban.
33The evidence of Mr Rodger, perhaps too conveniently, fits in with two critical features of Mr Matthews’ email to the Council dated 25 August 2008 which was copied to SM Urban two days later, namely:
a.the email attached a “revised SM Urban concept development plan” prepared by Mr Matthews which showed Quarry Road located on the southern boundary of the Martin land;
b.the email stated that, “Woolcorp offer to contribute to the construction costs for this road where it runs between their east and west boundary”.

34In the circumstances, I do not consider that I should accept the version given by Mr Rodger of the conversation with Mr Matthews said to have occurred in August 2008. I do accept Mr Matthews’ evidence that, at a meeting with Mr Rodger on 4 July 2008, he showed Mr Rodger a schematic design which demonstrated how Woolcorp’s land might be better developed, that the plan did not show Quarry Road on the southern boundary of the Martin land and that Mr Rodger told Mr Matthews to take it up with SM Urban.
35Perhaps if Ms Jenkins had been called as a witness she might have thrown some light on this and other matters. Ms Jenkins was a contractor engaged by Rodger Constructions and I consider that she should be regarded as a person in its “camp” and one that it would be expected to call as a witness if there were evidence that might have been given which would have advanced the company’s case. In the absence of the witness, without explanation, I am entitled to assume that Ms Jenkins would not have given any assistance by her evidence to Rodger Constructions on this issue. It also reinforces my preference for the evidence given by Mr Matthews.
36Chronology of events – July 2008 to November 2009: SM Urban reviewed Mr Matthews’ concept plan and informed Rodger Constructions that whilst “not opposed to Paul’s plan”, they had “some concerns [which] need further clarification on some elements”. Ms Jenkins responded to Mr Matthews on 23 July 2008 in a lengthy email discussing the changes proposed by Mr Matthews’ plan but concluded that, “at this time, we do not intend to make any revision to the lodged DP [development plan]”.
37On 25 August 2008, Mr Matthews wrote to the Council noting that Woolcorp “would like to express partial support for the proposed Development Plan for ... Cell D ... prepared and submitted by SM Urban on behalf of Rodger Constructions and seek to include some justifiable amendments to strengthen the development opportunities of Woolcorp without adversely impacting on adjoining landowners”. One of two “key changes” to the submitted development plan was “to move the location of the east-west roads in the property of Rodger Constructions south with a key east-west linkage road to adjoin the title boundaries of landowners in the centre of the site”.
38In the commentary on the proposal in his email, Mr Matthews included the reference to the “offer to contribute to the construction costs for this road”, which I have quoted above. This “offer to contribute” is a critical matter relied upon by Rodger Constructions in its claim that the parties reached an agreement for Woolcorp to contribute to the cost of constructing the road.
39Mr Gleeson and Mr Matthews were questioned about this statement in Mr Matthews’ email to the Council dated 25 August 2008, which was copied to Rodger Constructions on 27 August 2008. Mr Gleeson said in examination in chief that Mr Matthews sent the email dated 25 August 2008 to him. Mr Gleeson thought that this was “when he [Mr Matthews] forwarded it on”. Mr Gleeson said that in relation to the “offer to contribute” that, “I do remember reading it, yes”. When asked about his reaction, he said, “My reaction was surprise that Paul had put it in writing. I didn’t expect it”.
40Mr Gleeson was asked whether the offer to contribute had “been discussed between you and Paul [Matthews]”. Mr Gleeson replied, “It may have, but I can’t recall it”. Mr Gleeson was asked, “How did you see that contribution being made”. Mr Gleeson responded by indicating that, “if there was a contribution negotiated, we would be doing that with our own earthmoving equipment and helping in this way”.

41Mr Gleeson added, “when I seen it in writing I thought, ‘Well, if it does come to the situation where we are contributing to the road, well, I’m an earthmoving contractor, and myself and Graeme [Rodger] would work together to an outcome”. Mr Northrop asked, “So no money, just equipment and services?”, to which Mr Gleeson responded, “Well, when I seen it, I thought we would negotiate and talk about it, how it would come about. You know, I could use trucks or excavators or whatever. I thought we’d be working in together”.
42In cross-examination, Mr Gleeson was asked whether Mr Matthews had told him of the benefits of “moving the southern road on the Martin land down to the boundary”. Mr Gleeson said he remembered Mr Matthews phoning and saying “that he’s come up with a better outcome and he’s really excited about it because it’s going to achieve a better outcome for everyone and he wanted to put it off to SM Urban to see what they thought about it”. When asked what was the “change” made to the plan by Mr Matthews that would result in a better outcome for everyone, Mr Gleeson said that Mr Matthews “was bringing the road down lower, so it was down onto the boundary line”.
43Mr Gleeson was asked whether he knew about the “offer to contribute” before receiving a copy of Mr Matthews’ letter to the Council dated 25 August 2008. He replied, “I don’t recall talking to Paul about it, actually, no”. Mr Gleeson said he thought of raising with Mr Matthews whether he should have made the offer but decided not to as “at that time we had two lots that were facing the road [Quarry Road] and I thought, ‘We’ll negotiate what my contribution will be when we’re in the development process’”.
44Mr Northrop did not, until I prompted him, take Mr Matthews to this issue in examination in chief. Mr Matthews said that he had emailed Mr Gleeson “on the Friday suggesting that there were significant benefits in shifting that road and he should consider contributing if it was to be undertaken, agreed. I know Leon and I discussed it and he was certainly open to that proposition should it be agreed”.
45When Mr Matthews, on 27 August 2008, forwarded to Mr Rodger a copy of his email to the Council dated 25 August 2008, the email commenced, “Hi Graeme, Leon spoke to me about emailing you the submission made last Monday in relation to the development at Dales Road [Cell D]. Please find attached written and drawing submission. I look forward to your comments and hopefully the proposed amendments are to everyone’s benefit”.
46I consider it more likely than not that Mr Matthews had discussed the contents of the email to the Council dated 25 August 2008 with Mr Gleeson before Mr Matthews sent the email to the Council and that Mr Gleeson had read the email and was aware of its contents, including the “offer to contribute”, before it was sent to Council and later to Rodger Constructions. Mr Matthews said in evidence that he spoke to Mr Gleeson “on the Friday”, and the discussion included the topics of the “benefits in shifting [Quarry] road” and “contributing if it was to be undertaken [or] agreed”. The “Friday” referred to is likely to be 22 August 2008, prior to the email being sent to the Council on Monday 25 August 2008.
47I consider that, particularly as Mr Gleeson was largely unable to recall the discussion, his evidence that he thought the “offer to contribute” referred to the provision of excavating equipment and the like rather than a monetary contribution, is unlikely. I consider that Mr Matthews’ recollection of his discussion with Mr Gleeson is more probable and that Mr Gleeson had agreed to the contents of the letter to the Council before it was sent. I also consider that the plain meaning of the words used, and therefore the more likely meaning intended at that time by both Mr Matthews and Mr Gleeson, was that the offer was referring to a monetary contribution.
48Mr Matthews’ actions in first obtaining Mr Gleeson’s instructions is consistent with the approach taken by him in September 2011 when, in reply to a request by Rodger Constructions to contribute to the cost of constructing Quarry Road, Mr Matthews said he was “not in a position of authority to be making any response” and suggested Mr Gleeson be contacted directly.
49Mr Peters submitted that the acceptance of Woolcorp’s offer to contribute might be inferred from the parts of the Agreement which were not in writing; that is, the conversations and the circumstances pleaded from which the Agreement was to be implied. It seems that Rodger Constructions relied upon the following matters:
a.the conversation alleged in August 2008, during which Mr Matthews agreed on behalf of Woolcorp that “there would be no problem about compensation” if Rodger Constructions adopted the changes to the internal roads on the Martin land suggested by Mr Matthews;
b.the email to the Council dated 25 August 2008, in which Mr Matthews proposed a change to the location of Quarry Road and made an “offer to contribute to the construction costs”;
c.the Agreement by Rodger Constructions to the change to the location of Quarry Road and the incorporation of the location change into its development plan.

50Until at least mid-November 2008, there was no evidence of any formal adoption by Rodger Constructions of Woolcorp’s suggested change to the location of Quarry Road. A Council planning officer, Mr Matt Kirby had on 1 September 2008, written to Rodger Constructions urging the company to consider amending its plans to accord with suggestions made by other landowners, including Woolcorp. Ms Jenkins’ response the following day to Mr Kirby was that, “We are generally accepting of the revised plan in principle, in particular the east-west amenity link located in the centre of the site”.
51Although this appears to be a reference to Quarry Road, an internal email within SM Urban written by Ms Jenkins on 1 September 2008 stated that, “we are still unchanged in our opinion of Paul’s plan”. Mr Rodger said that at some time after August and before November he discussed with Ms Jenkins “the cost of moving the southern road” [Quarry Road] and he “told her that Woolcorp had offered to contribute to it”. He also said that he “discussed the costs” with Ms Jenkins as there were “a lot of issues she had to redo”.
52Mr Northrop submitted that Mr Rodger’s evidence suggested that, at that time, there was simply an offer, rather than a binding agreement to contribute. It is perhaps also surprising that Mr Rodger would need to tell Ms Jenkins about the offer as she had been copied into Mr Matthews email to Rodger Constructions on 27 August 2008. I therefore consider that Mr Rodger’s evidence of what he discussed with Ms Jenkins at that time, particular as it is not independently supported (for example from Ms Jenkins herself), should not be accepted.
53On 18 November 2008, there was a meeting at the Council offices. The previous day, Ms Jenkins had sent an email to Mr Kirby at the Council with a “list of things we wish to discuss”, including at a meeting to consider the Cell D development plan. Ms Jenkins anticipated that, apart from Council officers, the meeting would be attended by Mr Gleeson and Mr Matthews and that one of the matters for discussion was, “Moved east-west linkage on joint boundary – discuss an agreement with Gleeson for 50/50 contribution amounts”. This email suggests, as Mr Northrop submitted, and the email suggests, that at least until the meeting, there had been no agreement regarding the contribution by Woolcorp.
54On 4 December 2008, Ms Jenkins in an email to Mr Matthews wrote, “Just wondering how you were progressing on the revised plan for your client’s land? Any word from your client?” Mr Matthews responded on 8 December 2008 attaching a “drawing of revised development plan specific to the property of Woolcorp”. The revised drawing showed the north-south road from the Woolcorp land, which had previously intersected with Quarry Road, terminating before that road to form a court.
55Mr Matthews, in the email also wrote, “As discussed in our recent meeting at WCC [the Council] a court bowl has been added eliminating the need to intersect roads between the properties of Gleeson and Rodger”. Mr Matthews said in evidence that, by reference to his diary, he identified the meeting at the Council offices as having occurred on “18 November” and that he had only recorded two Council officers as having been present with Mr Matthews and Mr Arnold Brian from Brian Consulting. It is likely that, in view of the reference to a discussion with Ms Jenkins at the “recent meeting” at the Council in the email dated 4 December 2008, that Mr Matthews’ diary entry for 18 November 2008 was incomplete.
56Mr Matthews had no recollection of the “particular details, specifics” of the meeting apart from being “aware that Matt Kirby was very keen to broker or bring about some sort of agreement or compromise where the development plan that SM Urban had lodged could proceed to be considered”. Mr Matthews said that he did not recall Ms Jenkins being at the 18 November 2008 meeting. Despite some initial confusion, Mr Matthews confirmed that the plan the participants at the meeting on 18 November 2008 were using “as the basis of discussion” was the revised plan submitted by Mr Matthews to the Council on 25 August 2008. This plan showed Quarry Road on the title boundary with the north-south road from the Woolcorp land intersecting at Quarry Road slightly offset from the north-south road intersecting from the Martin land.
57With assistance from Mr Matthews, who supplied a CAD version of the amended plan on 8 December 2008, Ms Jenkins prepared a “Cell D Outline Development Plan” the following day. This was sent by email on 10 December 2008 by Ms Jenkins to Mr Kirby at the Council and copied to Mr Matthews. The email attached “the revised Cell D Development Plan for the North East area” and noted that the plan, “Added in a pedestrian connection from the northern court bowl to the east-west road on common boundary between Rodger and Gleeson’s land (as discussed during our meeting on 19/11/2008)”. This may have been meant as a reference to the meeting planned for the 18th, or a replacement or follow-up meeting. Evidence from Ms Jenkins would have clarified this matter.
58Perhaps this point is of little significance as it is obvious that in early December, if it had not been in mid-November 2008 or even earlier, that Rodger Constructions had adopted the suggestion from Mr Matthews to move Quarry Road to the title boundary, which would provide the flexibility Mr Matthews wanted so that the Woolcorp land could be developed optimally.
59On 15 December 2008, the Council passed a resolution that, “The Development Plan as submitted by SM Urban for the North East Warrnambool Cell D area be endorsed as ‘approved’ in accordance with the requirements of... the Warrnambool Planning Scheme”. The report to the Council by Council’s planners noted that, “The submission of Paul Matthews on behalf of Woolcorp P/L has been addressed by the submission of an amended layout plan”. This was the plan prepared by Ms Jenkins on 9 December 2008 using Mr Matthews’ CAD drawing and forwarded by her to the Council on 10 December 2008.
60Following the approval by the Council of the development plan, SM Urban’s attention moved to the next stage – obtaining planning approval for the subdivision of the Martin land. A letter from SM Urban to the Council dated 19 December 2008 was received by the Council’s Planning Office on 2 January 2008. Further correspondence followed between the Council and SM Urban.
61In late April 2009, Ms Jenkins and Mr Matthews swapped concept plans for the subdivisional layout they proposed for their respective client’s land and Ms Jenkins sent a revised development plan dated 29 April 2008 to the Council, on a date that was probably 6 May 2009, showing “the road configuration and connection between Rodger Constructions and Woolcorp land”.
62Chronology of events – May to November 2009: In early May 2009, SM Urban, Woolcorp, Mr and Mrs Owen and Mr Lanigan all withdrew the submissions they had lodged with the Council the previous year in relation to the development plan. Mr Matthews said that he withdrew the submission at the request of a Council officer but he could not recall the reason given for the request. In my view, it is likely that all parties withdrew their submissions because, as Mr and Mrs Owen said, “our concerns have been met”, and by Mr Lanigan that, “all my concerns have been addressed to my satisfaction”.
63Mr Northrop submitted that the withdrawal of the submissions indicated that from that time “the parties were beginning to move apart”. In my view, Woolcorp withdrew its submission because Rodger Constructions had accommodated its wish to have Quarry Road moved. It does not appear that the landowners other than Mr Martin had the intention or capacity to immediately take advantage of the development opportunities. Woolcorp had been prepared to let Rodger Constructions make the running whilst ensuring that its long term development interests were protected.
64Once the development plan had been approved by the Council in December 2008, the basis for the future development of the whole of Cell D was clarified. During 2009, Rodger Constructions was anxious to commence developing the Martin land as soon as possible. On 31 July 2009, the company executed a deed of variation with Mr Martin which made their agreement “unconditional” so that they could “proceed with the development of the land”.
65An amended plan of subdivision had been submitted by SM Urban to the Council on 6 July 2009 with changes which had “resulted following negotiations” with Woolcorp. The one specific change referred to was, “the alignment of the internal road in the east portion of the subject site [which] has been altered to give separation to the intersection with the southern land”. This created what was later described as a “dog leg” or “kink” and which was designed to address what had earlier been identified as a potential problem because of the proximity of the intersection with Quarry Road of the north-south roads from both the Martin land and the Woolcorp land.
66Mr Rodger said the physical work on the Martin land started in about May to July 2009. This involved the removal of the house and trees and “boxing the roadwork out”. Mr Rodger said that “it was more like work started in 2010”. However, Mr Rodger said that, “There was a lot of things happened in that middle part of June-July”. These included the presale of allotments, “probably 50 off in the first 3 or 4 months”.
67Mr Rodger said that, at this time, Rodger Constructions was “negotiating very hard on the 173 agreements”. This was a reference to section 173 of the Planning and Environment Act 1987 (Vic). The negotiations were with the Council and were “mainly about the costings” for the provision of services or infrastructure for the development and “the contributions each of the landowners in Cell D would have to make”.
68As time went on, it became apparent to Council officers that it was unlikely that all the landowners in Cell D would enter section 173 agreements with the Council. On 29 August 2009, Ms Kirsty Miller, a manager with the Council, wrote to Mr Rodger and Ms Jenkins following a meeting between them and Council officers on 25 August 2009. The email noted that, “It is now unlikely that such agreements [under section 173] will be signed within the immediate future with the exception of the Woolcorp land to the south of your holding”. The email suggested that, “provided the Agreements are signed by both yourself and Woolcorp, a revised resolution can be put to Council to seek a rezoning of those two parcels only (ie split the amendment)”.
69Ms Jenkins responded by email to Ms Miller on 1 September 2009 noting that, “The last dealings I had with Woolcorp was through the architect Paul Matthews in April this year, when we were liaising on the internal north south connection between RCON [Rodger Constructions’] and Woolcorp’s land. Since this road connection has been resolved, there has been no need to contact them... I believe that the previous consultations with Woolcorp ensure that together we have been mindful of each other’s subdivision designs, but there is no further need to combine this work... In light of this, it is my intention to forward our revised DP documentation for Martins Place [the name given to the Martin land] to Council in the next few weeks, once drainage drawings are finalised”.
70On 29 October 2009, Mr Matthews said that he had sent an email to Mr Rodger because Mr Rodger had phoned him “entirely out of the blue” and asked Mr Matthews to “prepare something for him to describe the situation Woolcorp were in with [the] Council in regard to getting the land rezoned and the 173 agreements”. Mr Matthews’ diary for that day records, “Spoke to Graeme. Wants to meet. Spoke to Leon”. Mr Matthews said that he had sent an email to Mr Rodger the same day. The email outlined the problems Woolcorp had encountered and concluded by wishing Mr Rodger “luck” in “furthering the rezoning of Cell D”. Mr Matthews said that he had got Mr Gleeson’s permission to write the letter.
71Meeting on 5 November 2009 between Mr Rodger and Mr Gleeson: Mr Gleeson’s diary for 5 November 2009 records, “Paul and I met Graeme Rodger at his shed”. Mr Gleeson said, “I believe that was the first time that I’d ever met Graeme... I think it was an introductory meeting just to meet one another”. Mr Gleeson had been at the meeting at the Council offices in January 2008 at which Mr Rodger made a presentation but, before the November meeting, Mr Gleeson said he had “never met him or spoke[n] to him”.
72Mr Gleeson said that the meeting was at the offices of Rodger Constructions and Mr Matthews was with him. Mr Gleeson said that he did not “recall what was discussed”. He said, “It couldn’t have been anything of any significance at all because I didn’t write anything down”. He said, “I thought we started to talk about... some equipment he had there in the shed but I don’t remember too much more detail”.
73Mr Matthews said that his diary recorded the meeting on 5 November 2009 and the meeting was in response to the phone call from Mr Rodger on 29 October 2009. That the meeting was in response to the phone call on 29 October 2009 is not obvious, and is perhaps unlikely, given the contents of the email Mr Matthews sent to Mr Rodger that day. Mr Matthews said that he recalled being present with Mr Gleeson and Mr Rodger at the meeting on 5 November 2009 and that the discussion “got sidetracked talking about old earthmoving equipment and how good it was”. Mr Matthews said that he was “very unsure about the particulars of that meeting”.
74Mr Rodger could not recall a meeting in November 2009 with Mr Gleeson and Mr Matthews, when it was put to him in cross-examination. When asked whether he recalled “talking with Mr Gleeson about earthmoving equipment”, Mr Rodger replied that, “We spoke about earthmoving equipment in what I believe to be the first meeting which was had on the Martin’s land”. Mr Rodger was referring to a meeting he said he had with Mr Gleeson in about early May 2010. Mr Rodger was not referred to Mr Gleeson’s diary note.
75The significance of the evidence of the meeting on 5 November 2009 is that:
a.Mr Gleeson said that it was the first time he had met and spoken with Mr Rodger;
b.both Mr Gleeson and Mr Matthews recalled the three of them meeting;
c.the meeting was said to be at the Rodger Constructions offices.

76These matters, if correct, distinguish the meeting from the meeting which Mr Rodger said he had in early May 2010, where:
a.the meeting occurred on the Martin land;
b.Mr Matthews was not present;
c.significant matters were discussed and agreement was reached on how Woolcorp’s contribution to the cost of constructing Quarry Road would be quantified.

77It seems surprising, particularly from the contents of Mr Matthews’ diary entry on 29 October 2009, his email to Mr Rodger later that day and the fact that a meeting between those three persons was such an unusual occurrence particularly having regard to the change to the location of Quarry Road which followed Woolcorp’s request that Quarry Road be relocated and its offer to contribute to construction costs, that the meeting was not recalled in any better detail by any of the three participants.
78No challenge was made by Mr Peters to the veracity of Mr Gleeson’s and Mr Matthews’ diaries and Mr Matthews was not challenged about his summary of the diary entry on 5 November 2009. It is possible that all the participants are mistaken about some aspect of their recollection, or that their memories have conflated recollections of separate meetings. To a degree, the Agreement that earthmoving equipment was discussed might support that conclusion. However, it is apparent that there is no evidence from which to conclude that Woolcorp’s contribution to the cost of constructing Quarry Road was a matter discussed at that time, or if it was, whether anything was decided.
79Chronology of events – November 2009 to May 2010: During this period, both Rodger Constructions and Woolcorp proceeded with their separate subdivisions. On 14 December 2009, the Council rescinded the resolution from 15 December 2008 and adopted “Amendment C61 Part A” to rezone only the parts of Cell D constituted by the Martin land and the Woolcorp land. The amendment to the Planning Scheme was approved and gazetted on 1 April 2010.
80On 18 December 2009, Mr Martin entered into a section 173 agreement with the Council which obliged him to pay a “development contribution” and to carry out works on his land including drainage works and road works. A procedure was provided for the Council to accept Mr Martin’s (actually Rodger Constructions’) quotation to carry out the works. A quotation for the works was submitted by Rodger Constructions to the Council on 14 January 2010, but was apparently never accepted.
81Rodger Constructions continued to perform construction works on the Martin land. In November 2009, it made its first progress claim under the Development Agreement with Mr Martin. In January 2010, the Council and Mr Rodger exchanged correspondence about the extent of the work being carried out in advance of the rezoning of the land.
82In March 2010, the Council wrote to Ms Jenkins requiring the “dog-leg” or “kink” in the north-south road to be modified so that it interconnected with the north-south road from the Woolcorp land by means of a roundabout or traffic island. This matter was not resolved until 31 May 2010 when Rodger Constructions accepted the Council’s requirement. In earlier correspondence, Rodger Constructions had threatened the Council that it would take the issue to VCAT.
83Mr Gleeson said that the only time he saw Mr Rodger between the meeting he attended on 5 November 2009 at Rodger Constructions office and the conversation after the meeting they had at the Council offices on 14 May 2010, was when he met Mr Rodger at a Ritchie Bros. auction of earthmoving equipment on 18 March 2010.
84Mr Gleeson said that, after Woolcorp purchased the Smart land in 2009, he worked at that site de-silting the dam which was apparently the result of the earlier use of the land as a quarry. Mr Gleeson said that in 19 January 2010 he signed a document giving written permission for Rodger Constructions to come onto the Smart land to carry out infrastructure works. Mr Gleeson said that at some time in 2010 he “accepted some of the fill that [Rodger Constructions] wanted to get rid of”. The material was trucked down to the Smart land and Mr Gleeson compacted “the material back into my dam”.
85Meeting in about March to May 2010 on the Martin land between Mr Rodger and Mr Gleeson: Mr Rodger gave evidence about a conversation he had with Mr Gleeson on the Martin land on a date he first identified as “mid-early May” in 2010. This is a critical conversation as the amended statement of claim asserts that at the meeting it was agreed to vary the Agreement such that Woolcorp’s “reasonable share of the costs of construction of [Quarry] Road [was to be] half the cost of the Road as determined by [Rodger Constructions’] engineers”. The Varied Agreement is denied in the defence to the amended statement of claim.
86Mr Rodger dated the conversation by reference to sewerage works that were being undertaken along Aberline Road and which had “reached the southern boundary of Martin’s land in the southern western corner”. Mr Rodger said that in “mid-early May I met Mr Gleeson on site ... Mr Gleeson approached me. To the best of my knowledge, I hadn’t met him before that. He introduced himself to me and we had a small discussion...”.
87Mr Rodger said Mr Gleeson commented “that I was laying a sewer. He [Mr Gleeson] then went on to ask me if I would consider doing works for him in the way of civil works, mainly sewerage. He mentioned to me that he hadn’t had a lot of experience in sewerage and he’d been looking for somebody locally to do it. I said I’m quite happy to work in with people. However, we would have to come to an arrangement financially on how much it was worth to do it. I said, ‘Whilst we’re on the subject of payment and costs, we need to finalise your contribution to the realignment of the east-west road’. He said, ‘Okay’. I discussed that day about a fifty-fifty option with my engineers... Mr Gleeson said, ‘That’s okay’. We then parted”.
88Mr Rodger revised the date of the meeting to “between March and May”. He said the sewerage work had commenced in early January and “we had probably laid 250 metres by the point I got to the conversation with Mr Gleeson”. Mr Rodger said that usually they laid “an average of 20 metres a day” but on this site they encountered rock which slowed progress.
89In cross-examination, Mr Northrop principally addressed this issue by taking Mr Rodger through the later correspondence to demonstrate that it was not until the statement of claim was amended in 2015 that the conversation on-site with Mr Gleeson in 2010 was raised. The amendment was permitted by order made 23 October 2015 although a draft of the pleading had been served some time earlier.
90I will refer to the relevant correspondence in its chronological sequence. There is no doubt that Mr Northrop established the proposition he put to Mr Rodger. Mr Rodger’s explanation for no mention having been made earlier of this meeting was that, until he reviewed the documents in the Court Book, he had mistakenly believed that the meeting was in 2008.
91It is possible that Mr Gleeson had forgotten meeting Mr Rodger at the Martin land. It is unlikely, however, that he would have forgotten a meeting at which he agreed that Woolcorp’s contribution to the cost of constructing Quarry Road was to be 50% of an assessment made by Rodger Constructions’ engineers.
92It is possible that Mr Rodger may have been mistaken about the date of the 2010 meeting or its location as being on the Martin land or he was mistakenly recalling matters discussed with Mr Gleeson, and probably Mr Matthews, at the Rodger Constructions’ offices in November 2009.
93There is, however, no proper basis for the Court to be satisfied that a conversation took place in early 2010 in the terms outlined by Mr Rodger in his evidence or that the denial by Mr Gleeson, that there was such a conversation, was made falsely.
94Meeting 14 May 2010 between Mr Rodger and Mr Gleeson at the Council offices: At the Council meeting on 10 May 2010, the Council resolved to accept and endorse SM Urban’s development plan for the Martin land. The decision was, however, subject to “the north south road running parallel to the Gateway Road [the dog-leg road] be[ing] altered to have a straight alignment”. The Council’s resolution was passed notwithstanding last minute written representations to all councillors by Rodger Constructions requesting that they “delete the conditional requirement”.
95The condition also affected Woolcorp. Mr Gleeson recorded in his diary on 11 May 2010, “Paul Matthews rang, said he had a meeting with the Council and Glen Reddick said he was sorry but the Council had rejected our subdivision plan, they want to join our road and Rodger’s to put in a roundabout. Paul said that we would lose 4 blocks”.
96On 12 May 2010, Mr Gleeson recorded in his diary, “Paul rang and said I should ring Graham Roger (sic). I rang Graham, he wants to take the council to VCAT if they don’t change their minds about the changes they want to do to both our subdivisions, he asked if I would go and share costs in legal costs, I said yes”. Mr Gleeson’s oral evidence on this matter simply confirmed the matters in his diary note. Mr Peters suggested to Mr Gleeson in cross-examination he had conceded that, “in preparing to give evidence, you read your diary notes and you learned them”. As I said at the time, Mr Gleeson had not said that, but that, “it seemed more that he was going back to the diary notes so he could recollect what had happened”. Nevertheless, on the two occasions Mr Gleeson referred in his oral evidence to the telephone conversation with Mr Matthews on 12 May 2010, he went no further than the matters recorded in the diary note.
97On 14 May 2010, there was a meeting at the Council offices attended by both Mr Rodger and Mr Gleeson. A letter from the Council on 18 May 2010 noted that the matters discussed at the meeting related to concerns about the additional condition requiring “straightening the north/south road” and “the implications for the development south of Martin Place”.
98Mr Rodger in his evidence referred to a meeting at the Council offices at the time Rodger Constructions was having difficulty with Council “in their attitude to the intersection of one of my north-south roads over on my property”. He thought the meeting was “in the next couple of weeks” after his submission to councillors dated 10 May 2010. At the meeting, Mr Rodger said that he and Mr Sam Stevens from Rodger Constructions were there “to push that we don’t go on with the inclined road”.
99After the meeting concluded, Mr Rodger said that, “at the entrance to the foyer” on the ground floor, he went over to Mr Gleeson who was standing on his own and “took up a conversation with him”. Mr Rodger stated, “I said to Mr Gleeson, ‘We’ll have to work together on this to get a result’. He said to me that, ‘That’s fine’. I said, ‘We’ve done it before’, and he said he had too. We then discussed – I mentioned to him that, Whilst I’ve got you, I’ll get on to Stuart Titmus to come up with the costings for our shared east-west road’. He said that was okay by him”.
100When he was cross-examined, Mr Rodger repeated his earlier evidence about his conversation with Mr Gleeson. He said he believed that, “we did speak about the road and who pays for it after that meeting”. Mr Rodger said, “I was just reinforcing the agreement we had because at that stage I hadn’t engaged Stuey Titmus to do the costings and that was his opportunity to say to me, ‘No, no, I don’t want Stuart Titmus to do them’”. The reference to “the agreement” in this answer, Mr Rodger said, was to the discussion he had with Mr Gleeson on the Martin land, which he “guessed” had been “two or three months” earlier.
101Mr Rodger was asked by Mr Northrop whether after the Council meeting he “said to Mr Gleeson words to the effect, ‘Would he contribute to the road?’” Mr Rodger responded, “Not, ‘would he?’, reinforce that he was”. Mr Northrop asked, “And Mr Gleeson said, ‘I suppose’?” Mr Rodger said, “Yes”, but when asked whether he remembered Mr Gleeson saying ‘I suppose’ said, “Well, he didn’t give a negative indication that he wouldn’t pay for it”.
102Mr Gleeson in his evidence said that “after a council meeting” which he thought was “in 2010”, Mr Rodger “come and asked – asked me would I contribute to this road construction”. Mr Gleeson continued, “I was taken aback a bit and I said, ‘Well, I suppose’, and I left it at that and there was nothing more discussed about it”.
103In answer to questions from Mr Peters in cross-examination, Mr Gleeson said that, “to remember how and what happened when, I went back to my diary notes to try and understand it all”. Mr Peters asked, “If a matter occurred and it’s not in your diary, you won’t have a recollection of it?” Mr Gleeson replied, “not at all. If something of significance happens, like me contributing to or making an agreement, I remember those things very, very well”.
104The evidence by Mr Rodger, Mr Gleeson and Mr Matthews of the conversations in November 2009 and in about May 2010 was generally unsatisfactory. The evidence of Mr Gleeson and Mr Matthews of the meeting on 5 November 2009 was surprising because of the lack of any meaningful recollection of what was clearly a significant meeting. Mr Rodger’s evidence of the meeting between March and May 2010 is also unconvincing. Mr Rodger and Mr Gleeson agree that after the meeting at the Council offices on 14 May 2010, Mr Gleeson agreed that he would contribute to the cost of Quarry Road, although the detail of their evidence is different.
105I consider that it is probable that, in the conversation on 14 May 2010, Mr Gleeson indicated positively and without equivocation that Woolcorp would contribute to the construction costs of the road. It would be unlikely that Mr Rodger would have accepted an ambiguous or half-hearted response. I otherwise reject the explanations or amplifications given by both Mr Rodger and Mr Gleeson.
106I am unable to determine whether Mr Rodger referred to Mr Titmus. The fact that Mr Titmus did not produce costings until April 2011 suggests that Mr Rodger was reconstructing or embellishing his evidence. Similarly, I am unconvinced by Mr Gleeson’s evidence that he was “taken back” and his response was somehow not to be taken seriously. I accept that the conversation was an acknowledgement by Mr Gleeson that Woolcorp had agreed to contribute to the construction costs of Quarry Road once Rodger Constructions had agreed to move the road in accordance with Woolcorp’s wishes.
107Chronology of events – May 2010 to November 2015: Once Rodger Constructions on 31 May 2010 accepted the condition imposed by the Council to remove the “kink” in the north-south road, the development proceeded more smoothly. On 20 August 2010, the Council granted a planning permit for the Martin land subdivision. Condition 4 of the permit provided that, “all road and drainage works shown on the approved construction plans must be undertaken at full cost to the owner or applicant”.
108On 4 March 2011, Rodger Constructions’ and Mr Martin’s solicitors, Maddens Lawyers, wrote to the Council noting that “the roadway constructed on the southern boundary of our client’s property will, in future, provide benefit to the landowners contiguous with the property on the southern boundary... Messrs Gleeson, Cook and Owen. Please advise the mechanism by which Council will obtain contributions from these owners and reimburse our clients”.
109The Council responded on 22 March 2011 that, “The road located on the southern boundary of your client’s land is an internal road and is required to service your client’s subdivision. It is therefore not included in any Council development contribution plan or similar funding mechanism”. The letter noted that the planning permit condition required construction of all internal roads at the applicant’s cost.
110This correspondence:
a.suggested that the solicitors were looking for a means to obtain a contribution from Woolcorp, without asserting any pre-existing agreement;
b.contemplated that, in some circumstances, there may have been a statutory right to a contribution from landowners who might benefit from the construction of Quarry Road.

111In relation to these matters, Mr Rodger said in evidence:
a.he had “not at that stage” instructed the solicitors that Rodger Constructions “had an agreement with Mr Gleeson that he would pay 50 per cent of the cost as fixed by Mr Titmus”;
b.“a council under the Environmental Planning Act can go and create what’s known as a private street scheme. That doesn’t alleviate the person that is getting the benefit of it from paying it, but it allows the council to get in and get involved in the payment of it and then charge them extra on their rates over a period of time”.

112On 18 May 2011, a letter from Rodger Constructions to Woolcorp with attached documents was sent to Mr Matthews with a request that the letter be forwarded to Mr Gleeson. The letter referred to Mr Matthews having indicated in late 2008 that Woolcorp “would contribute to its reasonable share of construction costs for [Quarry] road, given that your development will benefit from that road”.
113The letter enclosed an extract form Mr Matthews’ submission to the Council dated 27 August 2008 with the “offer to contribute” and a “construction cost estimate for road #4 prepared by Brian Consulting” and noted, “Your company’s contribution to the road construction costs is calculated to be in the sum of $218,565.56”.
114The letter continued, “We appreciate that you will not have immediate benefit of the road and therefore would suggest that your contribution be payable upon the earlier of: 1 May, 2016; any settlement date resulting from your sale of all or substantial part of your land holding to a third party; or the date upon which your subdivision of the land is registered in the Land Titles Office”. The letter included a place for a director of Woolcorp to sign above the words, “Woolcorp Pty Ltd hereby acknowledge and agree to contribute to the counterclaim of the above road on the terms set out in this letter”.
115The Construction Cost Estimate for “road #4” [Quarry Road] for the “Gleeson Development Frontage” was $218,565.56. The overall length of the frontage along the southern boundary was 306.3 metres, of which 166 metres abutted the Woolcorp land. The “total construction cost for road #4” was $652,853 of which Rodger Constructions said it would bear 50 percent and the remaining 50 percent was to be borne by the landowners to the south. Woolcorp’s share was $326,426 x (166÷306.3) = $176,907.60.
116The cost of acquiring land in Gateway Road and Aberline Road which was necessary for the construction of Quarry Road was calculated at $300,000 per hectare or $30 per square metre. The total value of the land required for road #4 was $153,735. Woolcorp’s share was 50 percent or $76,867.50 x (166÷306.3) = $41,658.52.
117No response was received from Mr Matthews or Mr Gleeson. On 28 September 2011, Mr Stevens at Rodger Constructions sent a further email to Mr Matthews attaching the earlier email dated 18 May 2011 and stating, “we are still seeking a commitment from Leon for his contribution to the common road shared between Martins and Woolcorp land”.
118Mr Matthews responded on 28 September 2011 that, “Your previous correspondence was forwarded to Leon for his consideration on Wednesday 18th May, I immediately forwarded your email message (today) to Leon. Please understand I am not in a position of authority to be making any response to your request and should you wish to pursue further communication with him on this matter I advise you to try contacting him directly by phone or email, details as follows...”.

119Mr Stevens responded the following day, “I understand and appreciate your position and in the past have used you as a conduit to Leon, therefore I did again this time whilst never anticipating you would be able to commit Leon to anything. Thank you for providing the direct contact details, we will be happy to deal with Leon directly for this matter”.
120A plan of subdivision for the Woolcorp land dated 9 March 2012 was prepared showing 7 allotments fronting the southern side of Quarry Road and 1 allotment with its side boundary to that road. Construction of the infrastructure for the Woolcorp subdivision proceeded in 2013.
121On 11 April 2012, Maddens Lawyers on behalf of Mr Martin and Rodger Constructions wrote to Mr Gleeson enclosing the emails to Mr Matthews dated 18 May and 28 September 2011. The letter concluded, “It would be appreciated if you would sign and return the above letter to acknowledge your company’s agreement to contribute its pro-rata share to the costs of construction of the road, of which your company of course has received benefit”.
122A response from Woolcorp’s lawyers on 18 April 2012 noted their instructions that, “there is no basis that there was a contract between our client and your client in relation to the construction of the road”, and asking Maddens Lawyers to “provide a description of how that contract came about”.
123On 8 June 2012, Maddens Lawyers’ reply included the following statements:
“3. the relocation of the subject road was only agreed to by our clients after an express oral understanding by your client’s Mr Leon Gleeson to both Mr Graeme Rodger and Mr Sam Stevens of Rodger Constructions Pty Ltd that he would contribute his company’s proportionate share to the construction of the east/west road contiguous with his boundary. This was on the grounds that his company would receive additional benefit from that road being relocated in accordance with his company’s wishes.
4.Mr Gleeson’s oral undertaking was made to our client on at least two occasions. On at least one occasion his undertaking was witnessed by planning officers of Warrnambool City Council”.

124This letter contains a number of statements which are either incorrect, or inconsistent with the way the case was put at trial:
a.Mr Stevens was not involved in discussions between Mr Rodger and Mr Gleeson about Woolcorp contributing a share of the road costs;
b.no discussions were witnessed by the Council’s planning officers.

125In a further letter on 17 December 2013, Maddens Lawyers asserted that Rodger Constructions “maintains that there was an agreement for your client to contribute to the cost of the works. To the extent that the agreement is not explicit about how the amount is to be calculated, the Court would have no difficulty implying a term that the contribution was to be a ‘reasonable’ amount and assess the quantum accordingly”.
126The statement of claim issued with the writ on 7 March 2014 alleged a conversation between Mr Rodger and Mr Gleeson in August 2008 but did not, at that time, allege any relevant discussions with Mr Matthews, or with Mr Gleeson, in 2010. Further particulars of the pleading in April 2014 did not refer to a discussion between Mr Rodger and Mr Gleeson on the Martin land.
127The amended statement of claim filed 11 November 2015 first made the allegations of the conversations comprising the alleged agreement as presented by Rodger Constructions at the trial. A draft of this pleading had been served on Woolcorp’s lawyers some months prior to the filing of the amended statement of claim.
128Conclusion on whether there was an “agreement” to contribute: In my view there is no credible evidence to support the conclusion that Rodger Constructions and Woolcorp entered into the “Varied Agreement”, pleaded in the amended statement of claim, for Woolcorp to contribute to the cost of constructing Quarry Road by paying 50% of the amount estimated by Mr Titmus.
129There is evidence, however, that:
a.the email to the Council dated 25 August 2008, Mr Matthews on behalf of Woolcorp offered to contribute to the construction costs of Quarry Road, if the road were relocated to the southern boundary of the Martin land so that Woolcorp’s subdivisional opportunities would be enhanced;
b.by about November 2008, Rodger Constructions had agreed to relocate Quarry Road as requested and on 15 December 2008, the Council approved its development plan with the relocated road;
c.in 2009, Rodger Constructions proceeded to construct Quarry Road on the southern boundary with adjacent services;
d.after the meeting at the Council offices on 14 May 2010, Mr Gleeson reaffirmed Woolcorp’s offer to contribute to the construction costs of the road;
e.Woolcorp later constructed its own subdivision with allotments facing Quarry Road and connected to the adjacent services earlier installed by Rodger Constructions.

130For the reasons I have already referred to, I am not satisfied with the evidence given by Mr Rodger of the following conversations:
a.the telephone conversation a few days before 27 August 2008 between Mr Matthews and Mr Rodger;
b.the meeting in about early May 2010 between Mr Rodger and Mr Gleeson on the Martin land;
c.the further matters stated by Mr Rodger to have been said in the conversation he had with Mr Gleeson after the meeting at the Council offices on 14 May 2010.

131Accordingly, Rodger Constructions has not made out its case based upon the “Varied Agreement”. The question remains whether Rodger Constructions has made out an enforceable agreement pursuant to which it is entitled to recover from Woolcorp a reasonable contribution to the cost of constructing the road. This matter will be determined by an application of contract law, free from the “implied contract theory of quasi-contract” rejected by the High Court in Pavey & Matthews Pty Ltd v. Paul (1987) 162 CLR 221 at 227 (“Pavey”), and affirmed in later cases.
132In the present case, Mr Peters relied on:
a.the offer by Woolcorp in the letter of Mr Matthews dated 25 August 2008, copied to Rodger Constructions two days later, containing “an offer to contribute to the construction costs for [Quarry Road] where it runs between [Woolcorp’s] east and west boundary”, if Rodger Constructions were prepared to relocate the road to the southern boundary of the Martin land;
b.the acceptance of that offer, by at least November 2008, by the agreement of Rodger Constructions that it would relocate the road as requested and the later lodging of a revised development plan with the changed location of the road;
c.consideration was present as there were perceived benefits to Woolcorp by the relocation of the road. These were stated by Mr Matthews in his email to Mr Rodger on 27 August 2008 as being that the alteration “certainly will achieve a stronger plan of subdivision for Leon [Gleeson] and yield lots on average of 700m2 without compromising your proposal”;
d.insofar as there was any uncertainty in the terms of the Agreement, it related to the lack of any mechanism to determine the contribution Woolcorp would make to the construction costs of the road.

133In regard to the question of the extent of the contribution Woolcorp might make, Mr Peters submitted that the matter might be resolved by the implication of a term that Woolcorp would make a “reasonable” contribution. Such an implication, as Kaye JA said in P’Auer Ag v. Polybuild Technologies International Pty Ltd [2015] VSCA 42 (“P’Auer”) at paragraph 110, involves the Court “inferring the actual unspoken intentions of the parties”.
134Kaye JA said that it was not that such a term was implied by application of “the five fold test, specified by the Privy Council in BP Refinery (Westernport) Pty Ltd v. Shire of Hastings (1979) 180 CLR 266, in its full rigour. Rather, in such a case, inquiries, such as whether the postulated implied term is ‘reasonable’, or ‘ necessary to give business efficacy to the contract’, or ‘so obvious that it goes without saying’, are considered to be helpful guides as to whether or not a particular term should be implied in such a contract”.
135In P’Auer, Whelan JA referred at paragraphs 10 and 12 to two previous decisions which affirmed the view that the relevant test is “whether, viewed as a whole and objectively from the point of view of reasonable persons on both sides, the dealings show a concluded bargain” (see Vroon BV v. Fosters Brewing Group Ltd [1994] 2 VR 32 at 82 per Ormiston J and PRA Electrical Pty Ltd v. Perseverance Exploration Pty Ltd (2007) 20 VR 487 at paragraph 6, per Nettle JA).
136Pavey is an example of a case where an oral contract for building works “contained an express promise to pay a reasonable sum calculated by reference to prevailing rates of payment in the building industry”. However, the contract was ineffective because, not being in writing, there was a statutory prohibition which prevented the contract being enforced.
137The majority of the judges in Pavey accepted (at page 227) that “an action on a quantum meruit, such as that brought by the appellant, rests, not on implied contract, but on a claim to restitution or one based on unjust enrichment, arising from the respondent’s acceptance of the benefits accruing to the respondent from the appellant’s performance of the unenforceable oral contract…We are therefore now justified in recognising…as Deane J has done, that the true foundation of the right to recover on a quantum meruit does not depend on the existence of an implied contract”.
138Originally, as the learned authors of Mason & Carter’s, Restitution Law in Australia (2^nd edn), state at paragraph 118, “‘quantum meruit’ was a claim to recover the reasonable price of services. The expression means so much money as the plaintiff ‘therefore reasonably deserved to have’, of such sum as the court considers just. This was superseded by the indebitatus count, available for works done and materials supplied by the plaintiff to the defendant at the defendant’s request”.
139The courts have always found little difficulty assessing what was, in the circumstances of a particular case, a “reasonable” or “just” sum. What was done previously on the basis of an implied or quasi-contract has, since Pavey, been generally granted as restitutionary relief based on circumstances constituting unjust enrichment and where there was no enforceable contract.
140If, however, there was an enforceable contract, restitution would not be an appropriate remedy and the claim in contract would need to be pursued. In the present case, it is necessary to determine whether there was an enforceable contract, or if there were not, whether restitution is appropriate relief.
141I consider that in the present case, I should infer from the parties’ conduct that it was agreed that Woolcorp would make a “reasonable contribution” to the cost of constructing Quarry Road. The conduct of the parties which leads me to that conclusion was as follows:
a.Rodger Constructions took the lead in submitting through SM Urban a development plan to Council which was likely to govern the future development options for Woolcorp;
b.Mr Matthews on behalf of Woolcorp, submitted variations to the SM Urban plan on 25 August 2008. The change of location to Quarry Road was recognised as being for the benefit of Woolcorp, and Woolcorp therefore offered to “contribute to the construction costs for this road”;
c.Rodger Constructions, SM Urban and all other Cell D landowners, including Woolcorp, knew that:
i.the process of obtaining approval for any development would be assisted by all parties reaching general agreement on a development plan for the whole or a substantial part, of Cell D;
ii.Rodger Constructions was inevitably going to proceed with the infrastructure development on the Martin land before any of the other landowners, including Woolcorp, developed their own parcels of land;

d.Rodger Constructions, by at least November 2008, had agreed to amend its development plan to accommodate the changed location of Quarry Road;
e.the contribution by Woolcorp was a matter which SM Urban wished to be discussed at a meeting with Council’s and Woolcorp’s representatives on 18 November 2008;
f.Mr Matthews on 8 December 2008 facilitated SM Urban’s preparation and submission to Council of a revised development plan with the changed location of Quarry Road;
g.on 15 December 2008, the Council by resolution at its meeting endorsed the revised development plan;
h.this enabled SM Urban to progress the planning process and for Rodger Constructions by mid-2009 to commence works on site which made provision for allotments on Woolcorp’s proposed subdivision to abut Quarry Road, and to connect with services provided adjacent to the road.

142In these circumstances, I consider that it is appropriate for the Court to conclude that the parties had agreed that Woolcorp would make a “reasonable contribution” to the construction costs of Quarry Road. Mr Gleeson confirmed that Woolcorp had agreed to contribute, in the conversation with Mr Rodger outside the Council offices on 14 May 2010.
143This “post-contractual conduct is admissible on the question of whether a contract was formed”, although it “is not admissible on the question of what a contract means” (see Lederberger v. Mediterranean Olives Financial Pty Ltd [2012] VSCA 262 at paragraph 26 and the cases referred to by Nettle, Redlich JJA and Beach AJA).
144In my view, for the reasons given earlier, the conversation on 14 May 2010 was confirmation that Woolcorp had agreed to contribute to the construction costs of Quarry Road, once Rodger Constructions has acceded to Woolcorp’s request to change the location of the road to Woolcorp’s advantage.
145Further, I consider that the fact that the parties had not specifically agreed as to the method by which Woolcorp’s contribution was to be calculated is not fatal to the claim. I am satisfied that the parties had by their conduct indicated their intention that Woolcorp’s contribution to the construction costs of the road was to be in a reasonable sum, which the Court could assess on the basis of all relevant circumstances in the event of dispute.

Whether the alternative restitutionary claim should succeed?
146The alternative restitutionary claim is only relevant if the claim in contract were unsuccessful. This would be the position if I were wrong in the conclusion I have reached that the parties agreement included a term to be implied that Woolcorp’s contribution to the construction costs was to be a “reasonable” contribution.
147If the parties were not to be regarded as having reached agreement that Woolcorp were to pay a reasonable contribution to the construction costs, there would be uncertainty as to an essential term and the purported contract would be inherently ineffective and unenforceable.
148In Equuscorp Pty Ltd v. Haxton (2012) 246 CLR 498, the judgment of French CJ, Crennan and Kiefel JJ referred at paragraph 30 to the explanation given by the High Court in David Securities Pty Ltd v. Commonwealth Bank of Australia (1992) 175 CLR 353 of “the part played by unjust enrichment in a claim for money had and received (in that case for recovery of a payment made under mistake of law)”.
149The judgment gave the following summary:
“• recovery depends upon enrichment of the defendant by reason of one or more recognised classes of ‘qualifying or vitiating’ factors;
• the category of case must involve a qualifying or vitiating factor such as mistake, duress, illegality or failure of consideration, by reason of which the enrichment of the defendant is treated by the law as unjust;
• unjust enrichment so identified gives rise to a prima facie obligation to make restitution;
• the prima facie liability can be displaced by circumstances which the law recognises would make an order for restitution unjust”.
150That a contract is inherently ineffective, including because there was uncertainty of an essential term (in this case the basis for calculating the contribution Woolcorp was to make to the construction costs of the road), would be a “recognised class of qualifying or vitiating factors”.
151Further qualifying or vitiating factors similar to recognised classes would include:
a.work performed “at the request of” a defendant;
b.“acquiescence in the provision of services by builders knowing that the services were not being rendered gratuitously”;
c.a defendant who “did not take a reasonable opportunity open to him to reject the performed services”;
d.a “contract which fails to materialise”.

See Lumbers v. W Cook Builders Pty Ltd (in liq.) [2008] HCA 27;(2008), 232 CLR 635 (“Lumbers case”) at paragraphs 39 and 53 per Gleeson CJ.
152In my view, the law when applied to the facts of this case would treat as “unjust” the “enrichment”, or benefits, Woolcorp gained from the construction of Quarry Road at the expense of Rodger Constructions in circumstances where the undertaking to contribute to the construction costs of the relocated road could not be enforced as a contractual obligation. Woolcorp’s promise may be unenforceable because any “contract” would be void for uncertainty, if it were considered that the parties had not evinced a sufficiently clear intention as to the appropriate contribution by Woolcorp or the method of calculating the contribution.
153The relevant facts which would lead to the conclusion that Woolcorp had been unjustly enriched are as follows:
a.Woolcorp’s promised to contribute to the construction costs if Rodger Constructions relocated Quarry Road. It made the promise because it perceived that this would benefit Woolcorp’s development opportunities;
b.Rodger Constructions relocated the road on its development plan and later constructed the road and installed necessary services;
c.although Woolcorp did not redevelop its own land to the south of the Martin land immediately, when it did so, the relocated road was likely to have:
i.enhanced Woolcorp’s development on its own land;
ii.saved it from needing to construct a further east-west road to service its own sub-division;
iii.facilitated Woolcorp’s connections to services including drainage, reticulated water and electricity, which were installed adjacent to Quarry Road and were available for Woolcorp to make connections.

154Mr Northrop submitted that the decisions of Lumbers case and Progressive Pod Properties Pty Ltd v. A x M Green Investments Pty Ltd [2012] NSWCA 225 (“Progressive”), when applied to the facts of the present case, would mean that the restitutionary claim cannot succeed.
155In Lumberscase, Matthew Lumbers and Warwick Lumbers (“Lumbers”) entered into a building contract for the construction of a residential dwelling with W Cook & Sons Pty Ltd (“Sons”). Sons entered into an agreement with the respondent (“Builders”), an associated company, to carry out the building works. Lumbers at all times dealt with Sons, paid Sons all progress claims requested and was not aware of the arrangement Sons had with Builders.
156Builders sought to recover the benefit it said Lumbers had derived from the work Builders had performed in the construction of Lumbers’ dwelling. Builders’ claim failed on the basis that, “It had no claim because it had no contract with the owners and it had not performed the work or made the payments to the subcontractors at their request”.

157Mr Northrop submitted that the facts in Lumbers were similar to the present case as:
a.Woolcorp was not contractually bound to contribute to the cost of constructing Quarry Road;
b.Woolcorp had not requested Rodger Constructions to construct Quarry Road;
c.Rodger Constructions was obliged pursuant to a separate contract, the Development Agreement with Mr Martin, to construct the road.

158In my view, the cases are not similar. I have attempted to apply the principles set out in the judgments in Lumbers case. In determining whether Woolcorp was contractually bound to contribute to the cost of constructing Quarry Road, or had “requested” Rodger Constructions to construct the road, I have noted the following statement by Gummow, Hayne, Crennan and Kiefel JJ at paragraph 89 that, “It would matter not at all whether the request [to do the work and to pay money to other contractors] was made expressly, or its making was to be implied from the actions of the parties in the circumstances of the case”. Whelan and Kaye JJA each made comments in P’Auer to similar effect.
159In Lumbers, the relevance of the contract between Lumbers and Sons was as follows:
a.the contract had been specifically negotiated between Lumbers and Sons;
b.the personal relationship between Lumbers and a director of Sons was significant;
c.Sons had engaged Builders to carry out the construction work;
d.Builders, although a related company of Sons, did not have identical directors and shareholders;
e.Lumbers were unaware of the arrangement between Sons and Builders;
f.during the construction of the dwelling, Sons made requests for progress payments, all of which Lumbers made;
g.Builders may have had legal recourse against Sons. It had chosen not to pursue its action against Sons.

160Gleeson CJ at page 656 discussed the legal position that a sub-contractor would not, in the absence of a specific request or “other facts than the mere taking the benefit of the work” be entitled to an order for restitution.
161In the present case, the facts are very different:
a.Woolcorp had requested that Rodger Constructions change the design of its subdivision so that the redesign would improve Woolcorp’s developmental prospects;
b.Woolcorp had no dealings or relationship with Mr Martin;
c.in the Development Agreement, although Mr Martin was described as “the owner” and Rodger Constructions as “the contractor”, clause 15 of the Agreement provided for the contractor to be paid “by the sharing of the proceeds of sale of the lots created by the development works”. The “proceeds of sale” were to be apportioned; for Mr Martin the land value of $2m and for Rodger Constructions the total of its certified claims and sale costs, each divided by the relevant numbers of lots in the total subdivision (Martin) or in the subdivisional stage (Rodger Constructions). Once the land value and the certified development costs had been paid, the parties were to share the balance equally;
d.Mr Martin and Rodger Constructions were essentially joint venturers who would share the profit from the development of the land, after taking account of the land value (contributed by Mr Martin) and the construction and sale costs (contributed by Rodger Constructions). In these circumstances, Rodger Constructions would be obliged to account to Mr Martin in respect of any contribution made by Woolcorp (or any other landowner) towards the development costs.

162In Progressive, the facts had more similarity, on their face, to the present case. Two landowners were developing land on opposite sides of Old Sydney Road. The local council required, as a condition of the developments, that “entry to the properties from Old Sydney Road, being from points opposite to each other, be facilitated by a roundabout to be constructed on Old Sydney Road, with the cost of the roundabout to be shared between them”.
163At trial, the plaintiff “succeeded only upon a cause of action pleaded under the heading ‘unjust enrichment’”. The trial judge found that the defendant “had impliedly requested [the plaintiff] to construct the roundabout for their joint benefit and at their mutual cost”. On appeal, this finding was set aside as “the evidence did not establish that [the defendant] requested [the plaintiff] to construct the roundabout or that, if there was a request, [the plaintiff] relied on it in deciding to proceed”.
164The critical facts were as follows:
a.“the parties at first contemplated that the Council would construct the roundabout and charge the cost to them”;
b.when the plaintiff “formed the view that the Council would not be likely to do this quickly enough for [its] purposes, it constructed the roundabout itself and claimed half of the cost from” the defendant. The plaintiff “proceeded with the construction rather than waiting for the Council to do the work, in order to expedite its own development”;
c.the plaintiff “did not seek [the defendant’s] agreement to pay half the cost, nor act on any request from [the defendant] to do the work when it did”;
d.when the plaintiff told the defendant that, rather than the Council, “I think we’ll have to do it” [construct the roundabout], the response from the defendant “was non-committal and did not constitute a request to [the plaintiff] to take that course”;
e.if the plaintiff “had sought confirmation from [the defendant] that it would pay half of [the plaintiff’s] construction costs…[the defendant] might have responded that it did not want the work done and did not wish to incur the costs at that stage”;
f.at that time the defendant “had no plans for any immediate development of its land” and “soon after”, the defendant “sold most of its land in an undeveloped state”, although “it can be assumed that [the defendant’s] sale price was to some extent enhanced”. Whether this was “in an amount equivalent to half of [the plaintiff’s] construction cost, on some part of it, is a matter of speculation”.

165Macfarlan JA (with whom Barrett JA and Young AJA agreed), referred at paragraph 24 to the reasoning of the trial judge (which was not challenged on appeal) “that in light of the High Court’s decision in Lumbers v. W Cook Builders Pty Ltd it was not open to him to find that acceptance of the benefit of work done and materials provided was sufficient, in the absence of a request by [the defendant] for the work to be done, to justify a claim for restitution”.
166Macfarlan JA said further at paragraph 36 that the trial judge’s alternative justification for his conclusion on the basis of the defendant’s “acquiescence in the work and…acceptance of the benefit of the work”, was not “applicable” as the defendant “did not have ‘notice of the payment being made for’” it, by the plaintiff.
167Macfarlan JA said at paragraph 39 that, “even if (contrary to my view) [the defendant] impliedly requested [the plaintiff] to construct the roundabout, there was no evidence that this request had any impact on [the plaintiff’s] decision to construct the roundabout when it did”. For this reason, the plaintiff’s “restitutionary claim must therefore fail”.
168In the present case, the relevant facts are very different than in Progressive:
a.the first approach to change the location of Quarry Road was made by Woolcorp to Rodger Constructions on 27 August 2008;
b.the change was suggested because there were benefits to Woolcorp in the development of its own land;
c.the offer was made on the basis that a contribution would be made by Woolcorp to the construction costs of the road;
d.Rodger Constructions, at a meeting with Woolcorp on 18 November 2008, apparently intended to discuss the extent of Woolcorp’s contribution;
e.in early December 2008, Rodger Constructions with the cooperation of Mr Matthews, adopted the suggested change of location of the road;
f.Rodger Constructions later proceeded with the construction of Quarry Road in the changed location;
g.in a conversation on 14 May 2010, Mr Gleeson reaffirmed Woolcorp’s commitment to contribute to the cost of Quarry Road;
h.when Woolcorp proceeded with the development of its own land in about 2013, it abutted its allotments to Quarry Road and connected to services provided by Rodger Constructions.

169In my view, there was ample basis to infer that Rodger Constructions changed the location of Quarry Road as a result of Woolcorp’s submission to the Council dated 25 August 2008 and that the offer to contribute to the construction costs of the road was a relevant inducement. Mr Peters referred me to the discussion by the Court of Appeal in Lord Buddha Pty Ltd v. Harpur [2013] VSCA 101 at paragraph 159, of the principles enunciated by the High Court in Gould v. Vaggelas (1985) 157 CLR 215, as to when an inference of reliance might properly be drawn.

Should restitutionary relief be denied?
170It was submitted by Mr Northrop that restitution was inappropriate in any event, because:
a.Rodger Constructions was obliged pursuant to condition 4 of the planning permit dated 20 August 2010 that, “all road and drainage works shown on the approved construction plans must be undertaken at full cost to the owner or applicant”;
b.Rodger Constructions was responsible under the Development Agreement with Mr Martin for “the construction of all the roads and drains”, and to be paid for the construction work by Mr Martin by progress claims made under the Development Agreement.

171I consider that there is no basis for these submissions. The obligations Rodger Constructions had pursuant to the conditions of its planning permit or under the terms of the Development Agreement did not, in any way, affect the ability of Rodger Constructions to enforce the promise by Woolcorp to contribute to the construction costs of Quarry Road or to claim restitutionary relief.
172I have also considered whether Rodger Constructions should be denied relief because of my failure to accept certain evidence of Mr Rodger which formed the basis of the varied contract claim made by Rodger Constructions.
173I have not, however, made a finding that Mr Rodger’s evidence generally lacked credibility. On certain critical matters, I have not accepted Mr Rodger’s evidence, or the sufficiency of the evidence to establish the matters pleaded.
174The relevant events occurred many years ago. Not only Mr Rodger, but also Mr Gleeson and Mr Matthews had difficulties with their recollection which tendered to be better when the matters they recalled supported their respective cases. I do not believe, however, that in Mr Rodger’s case, the manner in which he gave his evidence had the elements of deliberate dishonesty which might have affected the Court’s willingness to grant restitutionary relief.

Calculation of Woolcorp’s “reasonable” contribution
175Rodger Constructions claim that the “Construction Cost Estimate Road #4” prepared in April 2011 by Mr Stuart Titmus of Brian Consulting Civil Engineers, which assessed Woolcorp’s contribution at $218,565.56, was the “reasonable” contribution Woolcorp should make towards the cost of constructing Quarry Road.
176Mr Titmus assessed the “total recoverable cost” at $806,588 as follows:
Road and Services Construction $652,853
plus Land acquisition $153,735
$806,588

177The total length of Quarry Road was 306.3 metres. The northern side of the road was fronted by the Martin land and Mr Titmus considered that Rodger Constructions should pay 50% of the total cost of construction. The contributions he assessed for the landowners on the southern side of Quarry Road were:
Woolcorp                  166 m. frontage                 $218,565.56
Owen  90 m. frontage                   $118,499.40
Cook  50.3 m. frontage                   $66,228.00
$403,292.96

178My Titmus said that he was not able to prepare the document until the construction work was completed. In August 2010, he had prepared an estimate for submission to the Council as the cost at which Rodger Constructions was prepared the carry out the work. Mr Titmus said that Brian Consulting had in the case of both the August 2010 and April 2011 estimates prepared the quantities, and the rates had also predominately come from his consultancy. The estimate had been certified by Mr Titmus as “market rates”.
179Mr Titmus said that he had prepared similar estimates for a large number of subdivisional developments. Brian Consulting had an extensive “knowledge base” which was constantly updated as the firm had access to tenders. Mr Titmus said that the rates represented “market value”.
180Mr Titmus said that he was aware of his obligations as an independent expert. Leon Gleeson was also a client of Brian Consulting, and Mr Brian had done some work for Woolcorp in relation to the subdivision of its own land in Cell D.
181During cross-examination, Mr Northrop challenged Mr Titmus on various aspects of his assessment:
a.the inclusion of land acquisition costs in the total sum of $153,735;
b.various rates used for certain items of work which rates varied from those included in the later estimate after the work was completed.

182Mr Titmus had not originally included land acquisition costs in his calculations. In early April 2011, at the suggestion of Mr Rodger, Mr Titmus made enquiries from the Council of the area of land the Council had acquired for the purposes of the Council constructing roads on the boundaries of the Martin land. This included adding 5 metres width to Aberline Road (1,313m² of land) and 20 metres for Gateway Road (5,199m² of land). These roads were apparently constructed by Rodger Constructions on behalf of the Council and were included in the section 173 agreement with the Council in relation to the Martin land.
183Mr Titmus used the figure of $300,000 per hectare or $30 per square metre as the acquisition cost of the land. The total area of land acquired for Aberline Road and Gateway Road was 6,512m², although Mr Titmus used the figure of 5,124.5m² as the “total area of land for road #4”. Applying the rate of $30 per m² to the area of 5,124.5m², he calculated the “total value of land required for road #4” at $153,735. Based on the metre frontage to Quarry Road, Woolcorp’s share was $41,658.52.
184Mr Titmus conceded that the acquisition cost of $300,000 per hectare was a matter outside his expertise as a civil engineer. He had, however, sought advice and had been referred to the section 173 agreement. In addition Mr Peters tendered an expert report of a valuer, Mr Roger Cussen dated 21 December 2015 which provided a valuation of the land acquired at $460,000 per hectare in April 2014. The defendant did not lead any evidence contrary to the evidence of Mr Titmus or Mr Cussen, and Mr Cussen was not cross-examined.
185Mr Titmus’ calculations, and the discussion of the logic he used in the inclusion and calculation of the land acquisition costs, are clearly set out in the “Construction Cost Estimate” and in the correspondence in April 2011 between Mr Titmus, Mr Rodger and the Council.
186In the circumstances, I consider that I should accept that it was appropriate:
a.to include road acquisition costs as part of the construction costs of Quarry Road;
b.to use the figure of $300,000 per hectare and the total area of 5,124m² derived from the section 173 agreement in relation to the construction of Gateway Road and Aberline Road, to calculate the cost of land acquisition;
c.to apportion that cost to individual landowners by the proportion their frontage to Quarry Road related to the total length of the road.

187Mr Northrop referred to a number of rates used by Mr Titmus in the “Construction Cost Estimate” which were different to the rates used in a document in the Court book which was apparently a costing of Quarry Road. Although the document was undated, Mr Titmus said that the document seemed to have been prepared at the end of the project (“End of Project Estimates”).
188The inconsistencies between the two estimates highlighted by Mr Northrop were:
a.“filling”
item 4 – Construction Cost Estimate:   $12 per m³
item 5 – End of Project Estimate:   $6 per m³
b.“supply, deliver and place…fine crushed rock”
item 7 – Construction Cost Estimate:   $26.40 per m²
item 8 – End of Project Estimate:   $25.00 per m²
c.“triple graded entry pits 3/900x600”
item 13 (c) – Construction Cost Estimate:                     $5,000
item 16 (d) – End of Project Estimate:   $2,400

189Mr Titmus was not able to explain the difference in the cost of each of these items. No evidence was led by the defendant in relation to the rates or quantities used by Mr Titmus in the Construction Cost Estimates. In final submissions, Mr Peters produced as an aide memoire a document which comprehensively compared the Construction Cost Estimates and the End of Project Estimates and which demonstrated discrepancies, but not that Mr Titmus’ Construction Cost Estimates were unfair.
190In my view, there was no sound basis to challenge the appropriateness of the calculations prepared by Mr Titmus. I consider that his evidence was measured and fair and that his calculations in the Construction Cost Estimates represents the reasonable contribution by Woolcorp towards the cost of Quarry Road.

Proposed Orders
191I consider that, in the circumstances, there should be Judgment for the plaintiff against the defendant that the defendant pay to the plaintiff the sum of $218,565.56.
192I will hear further from the parties in relation to questions of interest and costs.

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Certificate

I certify that the preceding 39 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 18 March 2016.

Dated: 18 March 2016

Mi-Lin Chen Yi Mei
Associate to His Honour Judge Anderson