Stirling House (Guildford) Pty Ltd as Trustee for the Paul Nash Trust v Cash Converters Pty Ltd - [2020] WADC 4

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   STIRLING HOUSE (GUILDFORD) PTY LTD as Trustee for the PAUL NASH TRUST -v- CASH CONVERTERS PTY LTD [2020] WADC 4
CORAM:   SCOTT DCJ
HEARD:   26-29 AUGUST 2019
DELIVERED          :   17 JANUARY 2020
FILE NO/S:   CIV 3195 of 2018
BETWEEN:   STIRLING HOUSE (GUILDFORD) PTY LTD as Trustee for the PAUL NASH TRUST
First Plaintiff
CLO ENTERPRISES PTY LTD as Trustee for the OSPOVAT FAMILY TRUST
Second Plaintiff
AND
CASH CONVERTERS PTY LTD
Defendant

Catchwords:

Whether a binding agreement for services - Intention to be bound - Certainty and completeness of essential terms

Legislation:

Nil

Result:

Plaintiffs' claim dismissed

Representation:

Counsel:

First Plaintiff	:	Mr D H Solomon
Second Plaintiff	:	Mr D H Solomon
Defendant	:	Mr K De Kerloy

Solicitors:

First Plaintiff	:	Solomon Brothers
Second Plaintiff	:	Solomon Brothers
Defendant	:	Herbert Smith Freehills

Case(s) referred to in decision(s):

Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101
Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Australian Goldfields NL (in liq) v Northern Australian Diamonds NL (2009) 40 WAR 191
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Fazio v Fazio [2012] WASCA 72
Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd [1995] NSWCA 166; (1995) 7 BPR 97,578
Gissing v Gissing [1971] AC 886
Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503
Masters v Cameron (1954) 91 CLR 353
Meehan v Jones (1982) 149 CLR 571
Melreef Pty Ltd v Glenn [2015] WASCA 111
Prints for Pleasure Ltd v Oswald‑Sealy (Overseas) Ltd (1968) 88 WN (Pt 1) (NSW) 375
Terrex Resources NL v Magnet Petroleum Pty Ltd (1988) 1 WAR 144
Thorby v Goldberg (1964) 112 CLR 597
Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429
Uranium Equities Ltd v Fewster (2008) 36 WAR 97

SCOTT DCJ:

Background

The first and second plaintiffs together carried on business as Corporate Sports Australia (CSA) specialising (inter alia) in event management and player management of elite athletes.
The defendant (Cash Converters) carried on business as a retail network specialising in consumer lending and the sale of second‑hand goods.
At all material times Paul Nash was a director of the first plaintiff. At Cash Converters Mark Reid was the chief executive officer, Alice Manners was the chief of digital and marketing and Sam Budiselik was the chief operating officer.
In 2017 CSA developed a concept which it named the 'Great Aussie Garage Sale' (Garage Sale) which was to be held on 18 March 2018 at McCallum Park Perth. The concept was to create an opportunity for sellers and buyers to trade used items in the format of a garage sale.
In late 2017 Mr Nash, who had known Mr Reid in a previous business relationship, made contact with him to discuss whether Cash Converters would be interested in participating in the Garage Sale in return for an investment of $150,000 plus GST. For that investment CSA would provide access to its database and digital expertise coupled with its partnerships with traditional media companies which would result in marketing exposure for Cash Converters.
Cash Converters agreed to participate in the March 2018 Garage Sale which was a great success.
Thereafter discussions were entered into between Mr Nash and primarily Ms Manners and Mr Reid with respect to an expansion of the Garage Sale concept into other states, and the provision of marketing services involving influencers engaged by CSA. An influencer is generally an elite athlete who participates in marketing and promotion.
The issue which falls for determination in this case is whether, having regard to an objective consideration of the communications and conduct of the parties, a binding agreement was reached between them by which CSA was to provide marketing services to Cash Converters nationally and to operate Garage Sales in Perth and Melbourne for an annual fee payable in quarterly instalments of $312,500 plus GST.
CSA contends that a binding agreement was reached whereas Cash Converters denies that to be so.
On 28 June 2018 CSA rendered an invoice for $343,750 which Cash Converters has refused to pay.

Cases pleaded by the parties

By its statement of claim CSA alleges the following:
4.In the period from around early 2018 to mid 2018, CSA and Cash Converters made … an agreement (the Agreement) for CSA to provide various marketing and other services to Cash Converters for reward.
PARTICULARS OF AGREEMENT
A.The Agreement was partly oral, partly in writing and is partly to be inferred and partly implied.
B.To the extent that the Agreement was oral, it was made during the course of the following:
a.discussions between Paul Nash of CSA and Alice Manners, Cash Converters' chief of digital, marketing and product, at a meeting held on 26 March 2018;
b.discussions between Mr Nash, Ms Manners and Mark Reid, chief executive officer of Cash Converters, at a meeting held on 17 April 2018;
c.discussions between Mr Nash, Ms Manners, Mr Reid and Sam Budiselik, Chief Operating Officer of Cash Converters, at a meeting held on 3 May 2018;
d.a discussion between Mr Nash and Ms Manners on 22 May 2018;
e.a discussion between Mr Nash and Ms Manners on 5 June 2018;
f.a discussion between Mr Nash and Ms Manners on 12 June 2018;
g.a discussion between Mr Nash and Ms Manners on 13 June 2018;
h.… discussions between Mr Nash and Ms Manners at a private viewing of a TV show … [depicting the Garage Sale] … on 14 June 2018 (the Viewing), in the course of which Ms Manners said to Mr Nash words to the effect that no formal contract was required and that Cash Converters were good to go ahead with the Agreement;
i.a discussion between Mr Nash and Mr Reid at the Viewing;
j.a public announcement of the Agreement by Mr Reid at the Viewing; and
k.discussions between Mr Nash and Ms Manners at a work in progress [WIP] influencer and events program meeting held on 27 June 2018.
C.To the extent that the Agreement was in writing, it was constituted by:
a.an email sent by Mr Nash to Ms Manners, copied to Mr Reid and Mr Budiselik, dated 5 June 2018;
b.an email sent by Mr Nash to Ms Manners, copied to Mr Reid and Mr Budiselik, dated 7 June 2018;
c.an email sent by Mr Nash to Ms Manners, copied to Mr Reid, dated 12 June 2018;
d.an email sent by Ms Manners to Mr Nash, copied to Mr Reid, dated 13 June 2018;
e.an email sent by Mr Nash to Ms Manners, copied to Mr Reid, dated 14 June 2018; and
f.an email sent by Mr Nash to Ms Manners, copied to Mr Reid, dated 15 June 2018.
D.To the extent that the Agreement is to be inferred, the inference arises from:
a.negotiations between CSA and Cash Converters for CSA to provide Cash Converters with the CSA Services pleaded in paragraph 5.1 below, that had commenced in March 2018 and had reached a very advanced stage by June 2018, which included:
i.the oral discussions and documents pleaded in particulars B and C above; and
ii.the entry of CSA and Cash Converters into a non‑disclosure agreement dated 18 May 2018.
b.a waiver by Cash Converters of any requirement for a formal written document to be executed in respect of CSA's provision of the CSA services pleaded in paragraph 5.1 below, made orally by Ms Manners in a discussion with Mr Nash at the Viewing …; and
c.the matters pleaded in paragraphs 7 - 9 [of the statement of claim].
5.The Agreement contained, inter alia, express terms which, on their proper construction, were to the effect that:
5.1.Cash Converters engaged CSA to provide services that included the following (the CSA Services):
5.1.1.20 influencer in‑store appearances at Cash Converters stores per year;
5.1.2.a minimum of 125 influencer Instagram posts per year;
5.1.3.a local area influencer strategy;
5.1.4.an influencer integration strategy;
5.1.5.client and WIP meetings and management;
5.1.6.event activation and event management services;
5.1.7.complete management;
5.1.8.media and activation of the 'Great Aussie Garage Sale' in Perth and Melbourne;
5.1.9.community engagement through significant branding and event awareness at 2 large scale mass participation events; and
5.1.10.payroll and employment consulting.
5.2.CSA would provide Cash Converters with the CSA Services for a period of 2 years, commencing on 1 July 2018;
5.3.Cash Converters would pay CSA for the CSA Services the sum of $1.25 million per annum plus GST (the CSA Fees); and
5.4.CSA would invoice (Quarterly Invoice) Cash Converters for, and CSA would pay, the CSA Fees in advance, on a quarterly basis.
6.The Agreement contained an express or implied term to the effect that Cash Converters would pay to CSA the CSA fees the subject of each Quarterly Invoice within seven days of the date of the Quarterly Invoices, alternatively, within a reasonable period of time of the provision of each Quarterly Invoice to Cash Converters.
PARTICULARS
A.The term was agreed orally.
B.Alternatively, the term is implied in fact as it is necessary for the reasonable or effective operation of the Agreement.
Unpaid CSA Fees
7.In June 2018, CSA commenced providing the CSA Services to Cash Converters.
PARTICULARS
A.Between 15 June 2018 and 25 June 2018, Mr Nash liaised by email with Ms Manners and Mr Reid concerning the scheduling of WIP meetings.
B.On 27 June 2018, a WIP influencer and events program meeting (the Meeting) was held. The Meeting was attended by Mr Nash, James Corby of CSA, Chris Billings of CSA and Mr Reid.
C.Mr Nash prepared, and presented at the Meeting, a document styled 'Influencer Marketing & Customer Acquisition Program 2018/19 2019/20'.
D.CSA booked dates for the 'Great Aussie Garage Sale' in Perth and Melbourne, which booking was communicated to Cash Converters in an email sent by Mr Nash to Mr Reid dated 28 June 2018.
8.CSA is, and at all material times has been, ready willing and able to perform the CSA Services.
9.On 28 June 2018, CSA provided to Cash Converters an invoice … (the First Quarter CSA Fees Invoice) in the sum of $343,750 in respect of the CSA Fees for period 1 July 2018 to 30 September 2018 (the First Quarter CSA Fees) payable by 5 July 2018.
…
11.Cash Converters has failed to pay to CSA the First Quarter CSA Fees, or any part thereof …
By its defence, Cash Converters:
4.… denies each and every allegation contained in paragraph 4 of the Statement of Claim and says further that:
(a)no agreement was concluded between the parties in the terms alleged in paragraphs 5 and 6 of the Statement of Claim or any terms;
(b)in May and June 2018 there were discussions between Mr Nash, Ms Manners, Mr Reid and Mr Budiselik and exchanges of emails between Mr Nash and Ms Manners but no agreement between the parties was made by or contained in or is to be inferred from those discussions or e‑mails or any of them;
(c)in the course of their dealings in May and June the parties did not possess the requisite intention to create a legally binding agreement between them on the terms alleged or any terms;
(d)the parties dealt with each other at all material times on the basis that no binding agreement would be formed unless and until the parties had executed a written agreement in respect of the subject matter of the alleged agreement;
PARTICULARS
Email from Paul Nash to Alice Manners, copying Mark Reid, Sam Budiselik and '[email protected]', sent on 5 June 2018 at 10:58 pm (email C a. in statement of claim).
Email from Paul Nash to Alice Manners, copying Mark Reid, Sam Budiselik and '[email protected]', sent on 7 June 2018 at 12:34 pm (email C b. in statement of claim).
Email from Alice Manners to Paul Nash, sent on 11 July 2018 at 9:36 am.
(e)the parties have not executed any written agreement in respect of the subject matter of the alleged agreement.
5.… denies each and every allegation contained in paragraph 5 of the Statement of Claim.
6.… denies each and every allegation contained in paragraph 6 of the Statement of Claim.
7.… denies each and every allegation contained in paragraph 7 of the Statement of Claim.
8.… does not know, and therefore does not admit, the allegations in paragraph 8 of the Statement of Claim.
9.In answer to paragraph 9 of the Statement of Claim …:
(a)admits that it received an invoice …, in the sum of $343,750.00, from Mr Nash on 28 June 2018; and
(b)otherwise denies each and every allegation contained in that paragraph.

Law and issues

Law

The issue which primarily falls for determination in this case is whether the parties entered into a legally enforceable agreement. In determining that issue there is a need to consider:
(a)whether the parties intended to create contractual relations; and if so
(b)whether agreement was reached on the essential terms required for a sufficiently certain contract to be made.
There is some overlap between the requirements of intention to create legal relations and certainty. If a contract is legally uncertain, this might indicate that the parties did not intend to create legal relations. A contract can be uncertain in various ways, one of these being in completeness in the sense that the central terms are lacking. The overlap between intention and uncertainty is at its greatest in cases in which agreement on some matters is deliberately postponed. If what is postponed is essential to the agreement, itself a question that largely depends upon the intention of the parties, the agreement to the extent that it has been reached, will be void. The fact that essential terms have been left over for later agreement will militate against a finding that the parties intended to create contractual relations: Uranium Equities Ltd v Fewster (2008) 36 WAR 97 [127].
In Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd [1995] NSWCA 166; (1995) 7 BPR 97,578 Kirby P conveniently summarised the principles to be derived from the authorities as follows (14,569) ‑ (14,570):
1.The mere fact that the parties contemplate the execution of a formal contract, subsequent to an informal agreement, does not mean that the informal agreement is not presently binding;
2.The fact that the parties contemplate the drawing up and execution of a formal contract is a consideration which may point to the conclusion that no presently binding agreement was intended until that formal contract is executed.
3.The existence of matters of importance in which the parties have not reached consensus in their informal agreement will render it the less likely that they intended immediately to be bound before the execution of a formal document. Even where the parties have agreed on the 'major matters', their subsequent conduct may indicate that they did not intend to be bound until the other issues between them were resolved in a formal document (see in particular Masters v Cameron (1954) 91CLR 353 at 361; Barrier Wharfs Ltd v W Scott Fell and Co Ltd (1908) 5 CLR 647 at 666; and Marek v Australasian Conference Association Pty Ltd [1994] 2 Qd R 521 at 528).
4.In order to determine in what areas the parties were, and were not, in agreement, and what matters they considered necessary in order for an agreement to exist, it is legitimate to examine their subsequent conduct. Where correspondence between the parties after an informal agreement refers to important terms and conditions not mentioned during that informal discussion, it may more readily be inferred that the earlier discussion was simply a preliminary negotiation and not a binding agreement.
5.Depending on the size, importance and complexity of the subject matter, the less formal the initial agreement, the less likely it will be that it was intended to be legally binding and enforceable. Thus, an oral discussion which contemplates a subsequent formal written agreement is less likely to have been intended to have been immediately binding.
6.It is necessary in every case to consider the nature and importance of the transaction which the parties contemplate. Where the agreement concerns a large sum, or concerns a significant transaction, it is less likely to have been intended to be presently binding.
7.Depending on the subject matter, where the parties have not used solicitors but intended to do so for the drawing up of their informal agreement, that may also be a factor which will point to the non‑existence of a binding agreement until the contemplated formalities have been agreed.
8.Where a binding agreement is said to have been formed as a result of correspondence, it is necessary to look at that correspondence as a whole. It is wrong to isolate any part of the correspondence from the rest in order to prove or disprove the existence of a binding agreement. The same approach should be taken to the analysis of words and phrases within the correspondence. Reference to an 'agreement' having been reached does not necessarily prove the existence of a presently binding contract. Conversely, reference to a 'proposed' agreement, and similar expressions, will not necessarily mean that no agreement presently exists. It is a question of how the words are to be interpreted in their context, and in the light of the correspondence, viewed as a whole.

Intention to create contractual relations

In Uranium Equities Ltd v Fewster the court observed that traditionally courts have applied the three categories (identified in Masters v Cameron (1954) 91 CLR 353, 360) as follows [128]:
(a)the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect;
(b)the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document; and
(c)the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.
The court noted at [129] that a fourth category has since been added by McLelland J in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622, 628 which is essentially a variation of the first category in Masters v Cameron. That is one in which the parties intend to be bound immediately by the terms in which they have agreed upon, while expecting to make a further contract in substitution for the first contract containing, by consent, additional terms.
The parties' intention must be objectively ascertained. This requires the words used to be considered in the context in which they were used. The high value of the subject matter might be relevant in determining whether there was an intention to be bound immediately. Also, the complexity of the contemplated deal may make it less likely that the parties intended to commit to the contract by informal means although, in the end, the disclosed intention of the parties will be decisive: Uranium Equities Ltd [131].

Where intention to be bound is established, effect must be given to it no matter how big or complex the proposed transaction might be. However when the evidence concerning intention is equivocal, magnitude and complexity maybe a factor: Uranium Equities Ltd (224).
An agreement does not have to be worked out in meticulous detail. A bargain can be made containing certain terms, regarded as essentials, whilst the parties recognise that a formal document will eventually be drawn up in the full expectation that a number of additional terms will, by consent, be included in that document: Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101 [25] citing Terrex Resources NL v Magnet Petroleum Pty Ltd (1988) 1 WAR 144, 159 (Kennedy J).
In dealings between businesspeople there cannot always be certainty or predictability about the future course of events arising out of or in the performance of a business relationship which they desire to and may lawfully, create: Prints for Pleasure Ltd v Oswald‑Sealy (Overseas) Ltd (1968) 88 WN (Pt 1) (NSW) 375, 381 (McFarlan J).
The court in determining whether the parties intended to create legal relations may have regard to all the relevant circumstances to determine objectively, what the parties' intention was. 'Intention' in this sentence means intention to contract, not what the parties intended by the terms of the contract. The relevant circumstances may include prior negotiations and subsequent conduct however direct expressions of intent, made after the contract was arrived at, are not admissible: Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [26].
The context in which the contract is arrived at may be relevant to questions of incompleteness. In Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, 548 Gleeson CJ said:
In a case where a court is required to make a judgment concerning the intention of the parties in relation to what might broadly be described as a Masters v Cameron dispute, it will normally be of importance that the court have an understanding of the commercial context in which the dispute arises, and a most significant feature of that context will relate to the subject which the parties regard, or would ordinarily be expected to regard, as matters to be covered by their contract. In some cases such as transactions involving the sale and purchase of land, or leases, courts may properly feel well equipped to form a view on such matters without the need for much evidence. In many cases … there is a need for evidence in one form or another as to what subjects would be regarded as requiring agreement between the parties. …
Nevertheless in the ordinary case as a matter of fact and commonsense, other things being equal, the more numerous and significant the areas in respect of which the parties have failed to reach agreement, the slower a court will be to conclude that they had the requisite contractual intention.
The relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party's words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party: Gissing v Gissing [1971] AC 886, 906 (Lord Diplock) cited in Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd.
The common intention of the parties is determined on the basis of an impersonal test. It does not depend upon what the offeror himself thought he was promising, if the words and conduct by which he communicated his intention to the offeree would have led a reasonable man in the position of the offeree to a different belief as to the promise. Nor does it depend upon the actual belief of the offeree himself as to what the offeror's promise was unless that belief would have been shared by a reasonable person in the position of the offeree: see Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441, 502 cited with approval in Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (549 at F).
In considering the objective determination of the intention of the parties from a consideration of a series of communications exchanged by them in the context of their dealings over time it is proper to have regard to communications between the parties subsequent to the date of the alleged contract to the extent to which those communications throw light upon the meaning of the language which is being considered for the purpose of determining whether it expresses an intention one way or the other upon the critical matter: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (550 at B) and (550 at C).
Where an informal agreement (oral or inferred) is alleged to have been made on or by a certain date, the conduct of the parties, including conduct subsequent to the alleged date of the agreement may be considered in deciding whether a contract has been concluded. Whilst a court cannot have regard to the subsequent conduct of the parties as an aid in the interpretation of a term in a written contract, the court is not precluded from looking at the way the parties acted for the purpose of ascertaining what that term was. Commonsense suggests that their subsequent conduct is the best evidence of what they had agreed orally but not reduced to writing, though it is not evidence of what any written terms mean: Fazio v Fazio [2012] WASCA 72 [193].
A contract may be inferred from the acts and conduct of parties as well as or in the absence of their words, where the conduct of the parties, viewed in the light of surrounding circumstances, shows a tacit understanding or agreement. The question in such a case is whether, viewed as whole and objectively from the point of view of reasonable persons on both sides, the dealings show a concluded bargain: Melreef Pty Ltd v Glenn [2015] WASCA 111 [20].

Requirement for essential terms

If the requisite intention to create contractual relationships is present it is then necessary to consider whether the agreement is so incomplete or uncertain as to be void: Anaconda [28]. There can be no binding and enforceable obligation unless the terms of the bargain, or at least it's essential and critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by future agreement of the parties or where the language used is so obscure and incapable of any precise or definite meaning that the court is unable to attribute to the parties any particular contractual intentions: Thorby v Goldberg (1964) 112 CLR 597, 607.
In Australian Goldfields NL (in liq) v Northern Australian Diamonds NL (2009) 40 WAR 191 [6] McLure P with respect to contractual uncertainty said:
There are two limbs to the uncertainty doctrine. A contract (or a term thereof) is void for uncertainty if (1) all the essential and critical terms of the bargain have not been agreed upon or (2) the language used is so obscure and incapable of any precise or definite meaning that the court is unable to attribute to the parties any particular contractual intention: Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429, 436 437; Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101. Under the first limb, the contract is incomplete. Under the second limb, the court is unable to attribute a meaning to the language used by the parties. I refer to the latter as linguistic uncertainty. Both limbs apply only to essential terms.
A term is essential if, without it, the contract cannot be enforced. Beyond the requirement for essential terms to be agreed, it is for the parties to decide whether they wish to be bound and if so by what terms, whether they are important or unimportant and the parties may agree to be bound now while deferring important matters to be agreed later (Anaconda [29]) without working out an agreement in meticulous detail (Anaconda [25]).
If an essential term required to make an enforceable contract is missing, the contract is incomplete and unenforceable.
In Terrex Resources NL v Magnet Petroleum Pty Ltd Kennedy J quoted a number of applicable authorities including a passage from Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503 where the court made clear that where contractual intention is clear, the courts will imply a term that parties act reasonably where the contract is silent on some detail. Lord Wright said at (514) ‑ (515):
Thus in contract for future performance over a period, the parties may neither be able nor desire to specify matters of detail, but leave them to be adjusted in the working out of a contract. Save for the legal implication I have mentioned (the implication of what is just and reasonable to be ascertained by the court), such contracts might well be incomplete or uncertain; with that implication in reserve they are neither incomplete nor uncertain … such matters may require as the performance of the contract proceeds, some consultation and even concessions between the (parties), but there is no uncertainty involved because, if there eventually emerge difficulties between the parties, the standard of what is reasonable can, in the last resort, be applied by the law, which thus … makes precise what the parties in the contract have deliberately left undefined.
Ambiguity does not mean uncertainty. The approach to be adopted was expressed by Barwick CJ in Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429:
But a contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not therefore void for uncertainty. As long as it is capable of a meaning, it will ultimately bear that meaning which the courts … decides is its proper construction …
The fact that opinions may differ as to which of two possible meanings is to be given to the words of a clause in a contract does not mean that the clause is uncertain. It is only if the court is unable to put any definite meaning on the contract that it can be said to be uncertain: Meehan v Jones (1982) 149 CLR 571 (Gibbs CJ).
In determining whether contracts are void for uncertainty 'courts should be astute to adopt a construction which will preserve the liberty of the contract': Meehan v Jones (Mason J). Further 'courts should be the upholders of bargains and not their destroyers': Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (14,570) (Kirby P).
It is well recognised that parties may enter into a valid contract containing a limited number of terms comprising those terms essential to the bargain that they wish to conclude, in the expectation that at a later date a further contract will be arrived at containing additional terms that would facilitate and clarify the initial contract. That is to say, a binding contract may be arrived at even though it leaves unresolved many matters which might arise in the future: Anaconda [25].

Issues

The issues which fall to be determined in this case are:
1.Was there an intention by the parties to make a binding agreement?
2.Was agreement reached on the essential terms required for certainty?

Evidence

The parties compiled a trial bundle containing numerous documents a number of which were referred to during the course of the trial and, by agreement, tendered as exhibits. The parties in addition to oral closing submissions filed a written summary of events and documents upon which they principally relied.
Both during the trial and in closing submissions counsel referred to trial brief (TB) pages rather than exhibit numbers and for the sake of consistency I propose to do likewise.

Garage Sale - 18 March 2018

Mr Nash said that in 2017 CSA developed the Garage Sale concept and wanted sponsorship. He spoke to Mr Reid and then met with him at the Petition Restaurant at the Treasury Building where he presented the Garage Sale concept to him during which he showed him a document[1] which set out the marketing exposure for Cash Converters for an investment of $150,000 plus GST. Mr Reid told him that Mr Nash needed to meet with Ms Manners who was the chief of digital and communications at Cash Converters and said that it would be Ms Manners' decision as to whether Cash Converters would participate because it was her department.[2]
[1] TB 727 - TB 734.
[2] ts 133.
Mr Nash said that in mid‑December he met with Ms Manners and Mr Reid at the Petition and presented the concept to Ms Manners, showing her the same document, and said that Ms Manners was very supportive, she said it was a very good idea and that Cash Converters needed to re‑brand their organisation to get good company sentiment into the marketplace.
Mr Nash said that Mr Reid tried to beat him down in price but he told him he could not do so. Mr Reid asked whether for budgetary reasons Mr Nash could split the payment into three payments being 1 January, 1 February and 1 March 2018 with which Mr Nash said he agreed. Mr Nash said that he was told that no further documentation was necessary. As it transpired the payment by Cash Converters of $165,000 (inclusive of GST) was made in a lump sum on 5 March 2018.
Mr Nash said that on 25 January 2018 there was a work in progress meeting in Cash Converters' boardroom where from CSA he, James Corby (head of digital) and Chris Billings (commercial director) attended with a number of people from Cash Converters primarily their marketing team and operational personnel. At the meeting there was discussion concerning the logistics of the event. In addition Cash Converters wanted some AFL footballers to attend because it was thought that that would be good for the community brand.
There were then exchanges of email communications detailing actions, agreed outcomes and event details which, CSA contends, demonstrated the informal and gradual manner in which the details for that event were worked out and agreed between the parties.
Ms Manners gave evidence that Cash Converters had never run an event before the Garage Sale. She said Cash Converters at that time had a challenged reputation and it was endeavouring to re‑position itself by attracting non‑Cash Converters' customers to an event which would focus around community and particularly the core of their business, second‑hand goods.
It was put to her in cross‑examination that matters relating to the Garage Sale on 18 March 2018 were developed over time in a process which gradually refined details with which she agreed, but made the point that that was one simple event.
Mr Nash prepared a report following the Garage Sale.[3] It was common ground that the Garage Sale was a very successful event.

Subsequent discussions and correspondence towards further involvement by CSA

[3] TB 708 – TB 726.

By an email to Mr Nash on 21 March 2018 Ms Manners wrote:[4]
Hi Paul,
Thank you! It was a great team effort and we are looking forward to celebrating next week. I'd also like to follow up with you when convenient on rolling this out in other markets, particularly NSW. See you soon.
[4] TB 153 - TB 154.
A meeting was convened on 26 March 2018 in which Mr Nash said that Ms Manners asked him whether CSA would be prepared to do a lot more work with Cash Converters. He said Ms Manners told him that Cash Converters had engaged a digital company which was very slow and was based out of the Eastern States. She said Cash Converters would consider partnering with CSA not just on the Garage Sale but with respect to influencer type things, getting more of CSA's players involved, doing all Cash Converters' media buying, digital buying and taking over Cash Converters' entire marketing department apart from above the line traditional advertising - that is television or radio.
In cross‑examination Ms Manners agreed that she told Mr Nash words to the effect that Cash Converters' current digital marketing agency was not fast or nimble enough to deliver the results that Cash Converters needed and it was looking for a more nimble agency.
Mr Nash said that he told Ms Manners that he was not a digital expert and that CSA's digital person was James Corby.
On 17 April 2018 at a meeting attended by Mr Nash, Mr Reid and Ms Manners, Mr Nash said he presented a document titled 'Post Event Report 2018'. Ms Manners said that she would like to proceed and asked Mr Nash to meet with Mr Budiselik.
On 3 May 2018 Mr Nash attended a meeting with Mr Reid, Ms Manners and Mr Budiselik. Mr Nash confirmed the meeting to have been held on that date (rather than 2 May 2018 - to which other witnesses referred - after he had regard to TB 207 and 207A). Mr Reid said that he referred to some of the AFL players who CSA managed and explained what CSA could provide in regard to the influencers because that is what Mr Budiselik was interested in. Mr Nash said that after the meeting Mr Reid telephoned him and informed him that the meeting went extremely well, Mr Budiselik was on board, he was delighted and that Mr Nash had blown him away in the presentation.
Ms Manners in cross‑examination agreed that at that meeting there was discussion about the possibility of a national rollout of the Garage Sale concept and utilising AFL players as influencers for Cash Converters. She also said that Mr Reid told her after the meeting that the decision on whether or not to proceed with the concept with CSA was to be her decision but said that even though Mr Reid said that to her she did not have the authority to sign off large sums of money. Mr Nash said that Mr Reid did not tell him who would be making the decision.[5]
[5] ts 142.
On 14 May 2018 Mr Nash, Ms Manners and Mr Corby met. Mr Corby said at that meeting they discussed how CSA services would be relevant and how they would be managed based on CSA doing much broader marketing work with Cash Converters as opposed to simply delivering an influencer marketing campaign. It was contemplated that there would be further discussions about those matters.
By email of 18 May 2018 Ms Manners asked Mr Nash to provide the ABN for a non‑disclosure agreement (NDA) in response to which Mr Nash advised the ABN to be 600 532 479 17. On the same day the NDA was forwarded to Mr Nash. The parties to the NDA included 'the Ospovat Family Trust and the Paul Nash Trust t/as Corporate Sports Australia (ABN 600 532 479 17) and its related bodies corporate'. The NDA was executed and returned to Cash Converters. On that day Ms Manners forwarded information concerning Cash Converters' marketing budgets and targets in respect to which Mr Nash said in evidence that he did not understand some of the digital side of things so he went through it with Mr Corby and crunched the numbers. He said that he telephoned Ms Manners and advised her that he did not believe the figures which had been provided to them to which Ms Manners said 'Don't worry love, it's all good. That's why we were firing them and we're going with you'.
Ms Manners said in evidence that the documents contained Cash Converters' internal business targets for the personal finance business and what would be required from an advertising investment expected to achieve those targets. She said that Mr Nash was questioning Cash Converters' existing agency's capabilities and she told him that she had 100% confidence in the data.
By email dated 19 May 2018 from Mr Nash to Ms Manners, copied to Mr Reid,[6] Mr Nash said 'I am working out all costings to ensure the monthly budget is all inclusive and you have NOTHING extra to budget for moving forward'.
[6] TB 287.
On 31 May 2018 Mr Nash forwarded an email to Ms Manners in the following terms:[7]
[7] TB 325 - TB 326.
Hi Alice,
Thank you for providing the detailed and confidential marketing and financial information and data. I am excited about the journey we are about to embark on together and please be assured although our entire team will be available I will be personally responsible for ensuring that we deliver on both our promises and targets.
Without knowing your exact budgets I propose a monthly fee of $312k. This gives you everything we have discussed over the past four months with absolutely nothing more to pay.
This is the Rolls Royce version and I have even included that the influencers will attend the stores and do meet and greets when they make a purchase before they take their followers on a journey with Cash Converters.
I have also assumed that the original Garage Sale will take place in Melbourne in November with up to 6 of your key staff attending from Perth.
The reality of this monthly amount is that it is very heavily discounted as this type of ongoing influencer campaign would be cost prohibitive if we did not personally manage the influencers.
I have never been more excited about a marketing campaign in 20 years and I am only motivated by your success.
We will deliver!
Cheers from Melbourne.
Paul

By email from Ms Manners on the same day Ms Manners sought 'some detail on the scope of this proposal and projected achieved targets'.
In response Mr Nash sent an email informing Ms Manners that if she could outline exactly what she would like him to include he would have all of the information to her by the close of business on Tuesday.
On 4 June 2018 Ms Manners sent the following email to Mr Nash copied to Mr Reid and Mr Budiselik:[8]
[8] TB 334 - TB 335.
Hi Paul,
Hope you had a great long weekend.
If you have some time tomorrow I'd be happy to catch up to discuss in person.
The key priority is to determine the marketing spend that is required to achieve the FY19 business targets provided to you in a recent email.
In short, all our marketing investment is tied to business performance metrics:
•Cost per approved application for PFC (CPAA)
•Return on ad spend (ROAS)
•New to business customers
Current January to April averages are at:
•CPAA $42
•ROAS at $34
•NTB applications: 30% and NTB approved loans 18% with Online continuing to drive NTB at a higher rate.
We believe that these metrics can be improved with a greater focus on digital and with a nimble team like yours.
This also needs to be broken down by channel spend: SEM, SEO, Social paid media, Social Influencer, Events etc
I'm free tomorrow at 9am or 1.30am if that is convenient otherwise will give you a buzz to find a time that works.
Best
Alice
Ms Manners gave evidence that:
•MACC was Cash Converters' personal finance product being personal loans to $50k.
•SEM was search engine marketing.
•SEO was search engine optimisation.
On 4 June 2018 Mr Nash sent an email to Ms Manners copied to Mr Reid, Mr Budiselik and Mr Corby in the following terms:
Hi Alice,
As President John Kennedy said 'in order to know where we are going we need to know where we have been.'
As such, a few questions:
1Who currently manages your collection and reporting of data? Particularly for reportable performance measures?
2How is the CPA/CPA-A and ROAS currently being calculated and against what?
3What activities have contributed to the reduction in CPA and/or increase in ROAS online throughout the year?
There are some interesting numbers reported across the year for personal finance online metrics and SEM. It would be good to know what caused this?
4Have the FY19 targets been projected as percentage value increases (FY18 and FY19) and how do they compare against the past few FY increase targets?
Cheers and thanks.
Paul.
On 5 June 2018 Ms Manners responded to that email copied to Mr Reid, Mr Budiselik and Mr Corby by attaching a copy of Mr Nash's previous email and responding to each question by answers appearing below each question as follows:[9]
[9] TB 368.
Hi Alice,
As President John Kennedy said 'in order to know where we are going we need to know where we have been.'
As such, a few questions:
1Who currently manages your collection and reporting of data? Particularly for reportable performance measures?
Our media agency is provided closing the loop data from CC and then updates performance on a daily basis in a purpose built dashboard.
2How is the CPA/CPA-A and ROAS currently being calculated and against what?
The Cost per approved application is based on an approved PFC loans
The cost per application is based on a completed PFC application
The ROAS is based on total media spend Vs business performance
Retail & PB tracking is not yet fully 100% trackable as PFC is however we are currently rolling out a Single Customer View project to assist with this.
3What activities have contributed to the reduction in CPA and/or increase in ROAS online throughout the year?
We have completely changed the way in which we plan and buy media:
•Always on activity
•Launch of Get Sorted Campaign for PFC
•Dynamic Reason for Loan Creative
•Contextual Reason for Loan PMP
•Facebook Local Area Marketing Strategy
•Automated CTL Reporting Dashboard
•Restructured Doubleclick Accounts
•Digital & Paid Search Attribution
•Sign Up Improvement Work on the website application form
•TV Delivery within campaigns consistencies
There are some interesting numbers reported across the year for personal finance online metrics and SEM. It would be good to know what caused this?
As above
4Have the FY19 targets been projected as percentage value increases (FY18 and FY19) and how do they compare against the past few FY increase targets?
Will have Same feedback on this one
Cheers and thanks.
Paul.
(emphasis added)
By email 5 June 2018 Mr Nash requested from Ms Manners further information in the following terms:[10]
[10] TB 385.
Hi Alice,
Last question(s).
1Your MACC 2018 budget is $36m and the spreadsheet that you shared with me had MACC currently at $32.4m. How is this currently tracking and do you feel that you will achieve the $36m budget?
As the 2019 budget is $41.28m I just want to know if we will be close to the 2018 budget.
2Is the spreadsheet inc. or exc. gst?
Cheers
Paul
By email dated 5 June 2018 to Mr Nash, Ms Manners said:[11]
Hi Paul,
Just checked this one with Sam and yes on track for MACC targets (May was strong) & exc. GST.
Best
Alice
[11] TB 385.
Ms Manners said in evidence that in a telephone conversation with Mr Nash on 5 June 2018 she requested a scope of work.
By email of 5 June 2018 from Mr Nash to Ms Manners copied to Mr Reid, Mr Budiselik and Mr Corby, Mr Nash wrote:[12]
[12] TB 390.
Hi Alice,
Thank you for clarifying your current financial and marketing reports and spreadsheets.
The below statement of work will ensure that we meet and exceed your FY19 budgeted figures while remaining relevant and nimble in an every changing digital environment.
Services
˖ Digital planning and strategy.
˖ Media planning and buying.
˗ Search.
˗ Display.
˗ Video.
˗ Social.
˗ Independent/explored media.
˗ Media buying.
˖ Payroll and employment consulting.
˖ Data advisory services.
˖ Data collection and custom dashboard reporting.
˖ Campaign, competition and cost analysis.
˖ Data mapping and customer insight.
˖ Project management.
˖ Financial and budget reporting.
˖ Event management services.
˖ Local area influencer strategy.
˖ Content marketing services.
˖ Influencer integration strategy.
˖ Influencer marketing management.
˖ Search engine optimization services.
˖ Client and WIP meetings and management.
Service fees
All services listed above will incur a total monthly marketing cost of $312k.
This fee includes all services listed above except for any direct Cash Converters payroll costs. Any direct payroll costs will be invoiced separately however we will not charge any additional management fees to provide this service.
In addition we pride ourselves on getting the best media spend rates and, as such, we do not charge Cash Converters any commission on media spend.
I hope this statement of work reflects a true partnership where we work with you to deliver your desired outcomes in a nimble, professional and respectful manner.
If this is acceptable I will prepare a detailed services agreement for your review that will allow us to commence no later than July 1st.
I look forward to the journey together.
Cheers and thanks.
Paul.
In his evidence Mr Nash said that CSA did not have a standard form services agreement and it would be necessary to start from scratch. Because there were so many different components involved he was certainly going to prepare a detailed service agreement.
Mr Nash accepted that he attended a meeting with Ms Manners on 6 June 2018 in respect to which on 7 June 2018 Mr Nash sent an email to Ms Manners, copied to Mr Reid, Mr Budiselik and Mr Corby in the following terms:[13]
[13] TB 397 - TB 398.
Hi Alice,
Thank you for meeting with me yesterday.
Please find below clarification around our statement of work as discussed.
Services in scope
˖ Digital planning and strategy.
˖ Media planning and buying.
˗ Search.
˗ Display.
˗ Video.
˗ Social.
˗ Independent/explored media.
˗ Media buying.
˖ Payroll and employment consulting.
˖ Data advisory services.
˖ Data collection and custom dashboard reporting built to your exact requirements.
˖ Campaign, competition and cost analysis.
˖ Data mapping and customer insight.
˖ Project management.
˖ Financial and budget reporting.
˖ Event management services.
˖ Local area influencer strategy.
˖ Content marketing services.
˖ Influencer integration strategy.
˖ Experimental activations-in store & events.
˖ Influencer marketing management.
˖ Search engine optimization services.
˖ Client and WIP meetings and management.
˖ Ad serving.
˖ Tagging of sites.
Services notes and guarantees
˖ Access to Australia's largest sports influencer network.
˖ 25% discount on entire influencer network.
˖ 25% discount on all influencer and celebrity in store and activation costs.
˖ 25% discount on all event activation costs.
˖ Includes all ad serving and associated paid media management costs.
˖ Agency is guaranteed commission free on paid media.
˖ Project support-guaranteed 2-hour response time.
˖ Project team to prepare all necessary reports and attend weekly WIP meetings with client.
˖ Senior Project team to prepare all necessary reports and attend monthly business update meetings with client.
˖ Senior Project team to prepare all necessary reports and attend quarterly business review meetings with client.
˖ Client Director to attend all retail stores and share marketing strategy with relevant stakeholders as directed by client.
˖ All services listed above will deliver the required financial budgets and parameters as per the spreadsheet and targets provided by the client.
˖ The financial targets will be reviewed within three months of agreement and may be altered with the prior written approval of the client.
˖ All services listed above will incur a total monthly marketing cost of $312k.
˖ The agency agrees that 12.5% of the total marketing cost is 'at risk' against an annualised average Cost Per Application Approved of the financial budgeted figure as mutually agreed at the conclusion of the three month period.
˖ The agency is not entitled to any additional marketing impact fees unless mutually agreed with the client.
Staffing
Senior Project team
Paul Nash- Client Director, Client management, commercial strategy, influencer and event management( available 24 hours a day, 7 days a week with guaranteed 2 hour response time unless overseas or no phone reception).
James Corby- Strategy Digital Director, strategy development, paid media, data, client management( available 24 hours a day, 7 days a week with guaranteed 2 hour response time unless overseas or no phone reception).
Chris Billings- Project Director, project management, commercial & strategy support (available Mon-Fri, 8am-6pm with a guaranteed 2 hour response time unless on holidays).
Project team
Federica Marchesini-Social Media Manager, social media strategy, social paid media. 50% of all full time work with client. Guaranteed 2 hour response time during normal working hours.
Kirk O'Connor- Technical & Search Director, technologies, SEO, CRO. 33% of all full time work with client. Guaranteed 2 hour response time during normal working hours.
Brodie Owen- Data & Reporting, data, reporting, strategy support, paid media support. 50% of all full time work with client. Guaranteed 2 hour response time during normal working hours.
Sara Davey- Experimental & Events Manager, event and activations, experimental management. 25% of all full time work with client. Guaranteed 2 hour response time during normal working hours.
Claire Pearce- Graphic Design, graphic design support, influencer and event support. 25% of all full time work with client. Guaranteed 2 hour response time during normal working hours.
I hope this statement of work reflects a true partnership where we work with you to deliver your desired outcomes in a nimble, professional and respectful manner.
If this is acceptable I will prepare a detailed services agreement for your review that will allow us to commence no later than July 1st.
I look forward to the journey together.
Many thanks,
Paul
On 8 June 2018 Ms Manners sent an email to Mr Nash copied to Mr Reid, Mr Budiselik and Mr Corby in the following terms:[14]
[14] TB 404.
Hi Paul,
Thanks for sending this across.
As mentioned we need to break out the fixed costs Vs service fee so questions as follows:
•How many actual influencers will be working on the CC account? As mentioned, given that this will be paid activity we will need to be transparent in our social media posts. How do you recommend doing this? Additionally, could you please detail proposed influencers?
•Does this include any events? If so how many and in which states?
•SEM spend Vs SEO management fee
•Any media spend allocation estimates in the monthly cost broken down by channel
Thanks in advance
Alice
On 8 June 2018 Mr Nash sent an email to Ms Manners copied to Mr Reid, Mr Budiselik and Mr Corby in the following terms:[15]
[15] TB 411.
Hi Alice,
Thanks for your prompt response.
We manage about 160 of Australia's top sports and media influencers. You have access to all of them. Deciding which influencers will be utilised is all about finding out what markets will deliver you the best results.
It is not about the number of influencers but about the quality of influencers and the results that these influencers deliver. The project team will work closely with you and your team to identify the influencers that will deliver the best results.
The scope of work includes the Great Aussie Garage Sale presented by Cash Converters in both Perth and Melbourne. We chose Melbourne as you had previously stated this would be the market that would receive the greatest benefit from the event.
That said, happy to replace Melbourne with any market you feel would be a better fit.
At this stage there is no point in allocating monthly channel spends as we do not know what channels will deliver the best results.
The very reason, we are so successful is because we are nimble and make decisions based on analytics and data in real time. I will not break down channel allocations in advance as this will not deliver you the best results. I expect my team to analyse all the data as it comes to hand, review it with you and your team on a weekly basis and then allocate accordingly. We review the data on a daily basis.
In relation to SEM vs SEO typical splits are 85-90% and 10-15% respectively, but again, strategy will dictate the exact number based on:
1Size of commercially viable organic opportunity.
2Speed to ROI against market competition in key product areas.
3Existing SEO maturity in key areas like partners, web assets and content infrastructure to support SEO growth.
I hope this information along with the detailed scope of work and the community & customer acquisition strategy report I previously provided gives you a detailed plan, while still providing us the flexibility to analyse the data on a daily basis and react in a manner that will deliver you the best results possible.
As time is of the essence I am available all weekend to either meet with you or answer any other questions you may have.
Cheers and thanks.
Paul
On 9 June 2018 at Mr Nash sent an email to Ms Manners copied to Mr Reid, Mr Budiselik and Mr Corby in the following terms:[16]
Hi Alice
Sorry I forgot to answer your question around transparency of paid influencer advertising.
There are no strict guidelines however the accepted rule of brands and marketing agencies is if the Influencer created the content themselves then you do not disclose it.
If a third party, creates, writes and uploads the content then it should have the #spon hashtag at the end of the post.
As I am conservative by nature my recommendation is, if in any doubt, add the #spon hashtag to the post.
Have a great weekend.
Cheers
Paul.
[16] TB 417 - TB 419.
On 11 June 2018 Ms Manners sent an email to Mr Reid and Mr Budiselik in the following terms:[17]
[17] TB 421.
Gents,
Apologies for the long email but I think it is important to provide the detail.
•* As you know we have been working with Corporate Sports to develop a proposal and scope of work to work more closely together over the past few weeks and I have tried to assist Paul with this process as much as possible.
•* Based on the email below and the proposed annual retainer cost of $3,744,000 could I propose that we reduce the scope of work for Corporate Sports to cover Events + Influencer + SEO and exclude paid media and continue to work with the Dentsu Group until the end of the contract in November for paid media. We can pitch out the media in October and invite Corporate Sports to take part at that time.
•* This will enable us book July PFC media activity which we have been holding off on and continue to benefit from the media and Econ performance to date which is strong.
•* Moving the digital paid media at this time will cause disruption and potentially impact performance as there is a lot of behind the scenes set up required (tagging pages etc). Additionally, the event and influencer focus will not translate into immediate business results and the proposal below doesn't provide the transparency needed to drive our performance results.
•* To provide context on May performance and July planning:
•* Strong May media performance - achieving 90% of the PA target (this was the strongest month since December 2017 which achieved 94.65% of PA target but is historically a very strong month).

Confidential

May was also an extremely strong month across our other metrics; achieving a ROAS of $Confi and a CPA‑A of $Conf. As a comparison please see the ROAS figures by month for 2018.

Confidential

CPA-A has also dropped dramatically in May, down to Confi, comparison below.
•*Jan18 - $C
•*Feb18 - $C
•*Mar18 - $C
•*Apr18 - $C

Carat have added the CP-NTB-A (cost per new to business application) and the CP-NTB-AA (cost per new to business approved application) to the dashboards. Please see breakdown of each below -
May was again the strongest this year - $C (down from $C in April).

Confidential

Confidential

On 12 June 2018 in a telephone conversation between Mr Nash and Ms Manners, Mr Nash said that Ms Manners told him that Cash Converters did not want to proceed with the digital services proposed by CSA as legal had advised Cash Converters they are still under contract with another provider. Mr Nash said that Ms Manners asked him to send a simple scope of work for the influencers, event marketing and garage sales. Ms Manners in evidence said that Mr Reid made that decision. She said that she asked Mr Nash to send her an altered scope of work. She said she did not recall it being referred to as a 'simple email' to alter the scope of work.
On 12 June 2018 Mr Nash sent an email to Ms Manners copied to Mr Reid and Mr Corby in the following terms:[18]
[18] TB 435.
Hi Alice,
Thank you for taking the time to speak with me today.
As discussed I have altered your scope of work to focus on the influencer and event marketing.
It is widely accepted that 94% of elite marketers now use influencer marketing because it drives 11X more ROI than traditional marketing channels.
As such, I am excited to work with you on this project and have no doubt that the following will outperform all your other media combined!
Scope of work
Minimum 20 influencer in-store appearances at Cash Converters stores per year.
Minimum 125 influencer Instagram posts per year.
Local area influencer strategy.
Influencer integration strategy.
Influencer marketing management.
Client and WIP meetings and management.
Event activation and event management services.
Complete management, media and activation of the Great Aussie Garage sale presented by Cash Converters in Perth, Melbourne and Sydney.
Community engagement through significant branding and event awareness at three large scale mass participation events.
Payroll and employment consulting. Any direct payroll costs will be invoiced separately and CSA will not charge any additional management fees to provide this service.
All services listed above are for a 12 month period starting on July 1st and the total cost is $1.78m per annum with a three year term.
All services listed above are fully inclusive of all costs and will be invoiced in four equal quarterly instalments or 12 equal monthly payments each year.
Please note we pride ourselves on getting the best media spend rates and, as such, we do not charge Cash Converters any commission or receive any commission on any media spend.
I look forward to the journey together.
Cheers
Paul

This email did not include reference by Mr Nash to the preparation of a detailed services agreement. In cross‑examination he said that CSA needed a detailed services agreement to do all of the digital work for Cash Converters which was a very big deal. He said that if they were just including all of the influencers and things, Cash Converters does lots of influencer type and events without contracts. To that end he referred to Venues Live which operates Optus Stadium and the biggest being probably the AFL for which CSA did all the marketing services and had done for 21 years. He said that Cash Converters have no formal written agreement with the AFL. However he agreed that he had formal written agreements with a lot of other companies.
Mr Nash agreed that at no time did he inform Cash Converters that a detailed services agreement would not be prepared by him.
In cross‑examination Mr Nash was referred to the reference in the email from him to Ms Manners of 7 June 2018 under the heading of 'Services notes and guarantees' and was asked whether the 25% discount on the entire influencer network still applied or not to which he said that it did not because Cash Converters was not proceeding with that agreement. He agreed that it was not at any time made clear to Cash Converters that they would not get any of those services or guarantees which were listed in his email of 7 June 2018.[19]
[19] ts 215.
Mr Nash said that the detailed services agreement would have included all of the matters that are referred to under services, notes and guarantees – not only the digital component. He said that he would have expected Cash Converters to have made sure that the detailed services agreement included the services notes and guarantees so that they would know what they were going to get that had been promised. None of those matters had at that time been fleshed out but it would have been a process that would have occurred when drafting the detailed services agreement and finalising it.[20]
[20] ts 200.
He agreed that in a detailed services agreement the financial budgets and targets would be specifically identified so that there was no doubt on either side what that obligation meant. He would expect the services, notes and guarantees would be translated into a detailed contract where the details would be fleshed out however there had not been any discussion with Ms Manners or others at that time with respect to those matters.
With respect to the provision that the financial targets would be reviewed within three months of agreement and may be altered with the prior written approval of Cash Converters, it had not yet been fleshed out what would happen if Cash Converters did not agree to alter the financial targets and what would come of it. Again he had by then not had any discussions with Ms Manners with respect to that matter. All of those issues would have been ironed out in a detailed services agreement.
Mr Nash said that CSA managed about 160 of Australia's top sports and media influencers. He agreed that Cash Converters would have some rights in relation to choosing who they wanted. It would be impossible to include the names of any influencers in any agreement because much would depend, at the time they were chosen, whether for example an athlete was banned or had drug or other problems, but agreed that Cash Converters would have an entitlement to have input into choosing who they wanted.
On 13 June 2018 Mr Nash said that he spoke by telephone with Ms Manners who said that as to his offer of $1.78 million, that was not quite in the budget and could CSA do it for $1.25 million to which he responded that they could not. He said that Ms Manners then said that if they removed one of the garage sales, the one from New South Wales and the term was reduced from three years to two years, would CSA do it for $1.25 million. He said he told her he would be happy to accept those terms and do it for $1.25 million.
On 13 June 2018 Ms Manners sent an email to Ms Nash copied to Mr Reid and Mr Corby in the following terms:[21]
Hi Paul,
Thank you for the revised proposal.
As discussed earlier, we are keen to move forward with an influence and events based programme however our budget can only extend to $1.25m.
Given this we would be willing to reduce the scope of events (from 3 to 2 removing Sydney) to meet the budget.
We also look forward to the (award winning) journey.
Best
Alice
...
[21] TB 462.
On 14 June 2018 Mr Nash sent an email to Ms Manners copied to Mr Reid as follows:[22]
Hi Alice,
I am very happy to proceed as per your email and also agree to an initial two year term instead of a three year term as per our discussion yesterday.
Once again, thank you for your confidence in us and I look forward to working with you on this exciting project.
See you this afternoon at the garage sale viewing!
Cheers and thanks.
Paul

Viewing - 14 June 2018

[22] TB 468.

On 14 June 2018 there was a private screening for a number of people of a forthcoming TV show concerning the Garage Sale on 18 March 2018. Mr Nash, Mr Reid and Ms Manners attended.
Mr Nash said in evidence that when he arrived Ms Manners got a glass of champagne for both of them, they toasted and Ms Manners said she was looking forward to the journey for the next two years and hopefully many more years to come. He said he asked her whether there was anything else they needed to do and whether there was any documentation or could they proceed to which he said she responded 'no … love. We're all good to go. Just make me look very good so I can get the tourism job'.
He said that he heard Ms Manners talking about the Garage Sale to others in terms that they were going to roll out that on a national basis.
He said that he spoke to Mr Reid about 20 or 30 minutes after he had spoken with Ms Manners at which time Mr Reid came up to him and said words to the effect:
Congratulations. I have spoken to Alice. I hear the deal is all finalised. I am proud of you. I … know you'll over deliver like you always do. It was great … do you know it was a great success for Cash Converters and I am looking forward to … you continuing to do good work for Cash Converters and moving forward.
He said Mr Reid got up in front of everybody and thanked the Cash Converter's marketing team. He also thanked the CSA marketing team and announced that they had entered into a partnership with CSA and that they were going to roll out the national Garage Sale on a national level.
Ms Manners said in examination‑in‑chief[23] that everyone was very positive because the Garage Sale had been a good event and the TV program was a good program for the money that Cash Converters had spent on it.
[23] ts 328.
Following the screening she said she talked to Mr Nash about the CEO having spoken about future events and they did discuss future events being garage sales and also discussed the positive feedback from her board.
In cross‑examination[24] she said she recalled sharing a glass of champagne with Mr Nash. She was asked whether she recalled saying at the time of sharing a glass of champagne with Mr Nash that she was looking forward to the journey for the next two years and hopefully many more years to come to which she said not in those words but she could not recall what she said.
[24] ts 336.
She was asked whether after that discussion Mr Nash asked her whether there was anything else that needed to be done to move forward with the arrangement and she said he did not ask her that. She was asked whether Mr Nash asked her whether documentation was required before it could proceed and she said he did not. She said that she did not say and never would say 'No love we're all good to go. Just make me look very good so I can get the tourism job'.
She agreed that she had spoken to Mr Nash about a tourism job in a text[25] in the following terms:
Mon 16 April 9:41pm
Nash:On a strictly confidential basis (and they are probably your friends) but Tourism are no good! The figures speak for themselves.
Manners:It is such a shame! I would love to run that account. I knew that they would be calling a creative review (interstate doesn't work in my opinion) and Carat probably need a shake up too.
[25] TB 585.
She said that she saw Mr Nash speaking with Mr Reid but she did not know what was said between them. At the end of the presentation Mr Reid addressed those present, thanked his team at Cash Converters for the Garage Sale on 18 March 2018 and thanked the CSA marketing team and said that Cash Converters would be rolling out the Garage Sale on a national level and said something to the effect that CSA would be partnering with Cash Converters in that process.
Mr Billings attended the viewing and in his evidence he said that he had a discussion with Ms Manners who said that she was looking forward to the national roll out of the Garage Sale. He also said that Mr Reid addressed the persons present and said that he was looking forward to working with CSA on the future of the Great Aussie Garage Sale in Perth and Melbourne.
On 15 June 2018 Mr Nash sent an email to Ms Manners, copied to Mr Reid and Mr Corby in the following terms:[26]
Hi Alice,
I have informed the team of our long term partnership and they are excited and ready to deliver!
As such I suggest we schedule regular WIP meetings on a fortnightly basis to start with. If this is suitable are you available to schedule the first one for any time Tuesday 19 June?
We are happy to come to your office.
[26] TB 479 - TB 481.
In cross-examination Ms Manners agreed that she did not respond to Mr Nash informing him that there was no such long term partnership.
By email dated 18 June 2018 from Mr Nash to Ms Manners copied to Mr Reid, Mr Nash said:[27]
Ideally I would like to arrange WIP meetings on a weekly basis. Please let me know a suitable schedule for these meetings ASAP.
Please also advise if I should address the first invoice to yourself or Mark?
[27] TB 485.
In cross-examination Ms Manners said she could not recall being asked by Mr Nash to whom he should address the invoice and could not recall giving him an answer. She agreed that she did not go back to Mr Nash and say 'why are you asking to whom you should send an invoice because there is no agreement'. She agreed that she never said to Mr Nash after 18 June 2018 that it was inappropriate for an invoice to be sent because there was no agreement.
By email dated 18 June 2018[28] from Ms Manners to Mr Nash copied to Mr Reid and Megan Albin of Cash Converters, Ms Manners said:[29]
Hi Paul,
As mentioned, I will be out of the office this week so best to kick off meeting next week.
This activity is budgeted for next financial year so if you would like to start a bit later just let me know.
From my side there will be several attendees (including Jo Rao and Mark Wilson) so I have copied Megan to assist with scheduling.
[28] TB 494.
[29] TB 494.
By email dated 19 June 2018[30] from Mr Reid to Ms Manners copied to Mr Nash and Ms Albin, Mr Reid asked Ms Albin to include him in the weekly meets and to Mr Nash he asked if he could propose a plan for the influencers in Q1 and agreed dates for the garage sales.
[30] TB 495 - TB 496.
By email dated 19 June 2018[31] from Ms Manners to Mr Nash, Ms Manners, in referring to the results of the Garage Sale in March 2018, said:
Hi Paul,
Just landed in Sydney. I did see the results and have added them to my board report.
They will just get better with each event.
[31] TB 511.
By email dated 25 June 2018[32] from Mr Nash to Ms Manners copied to Mr Reid, Mr Nash wrote:
I am looking forward to our WIP meeting on Wednesday. Do you have any requirements for this meeting and do you have a certain structure that you would like us to follow at these meetings?
Can you also let me know if you would like the invoicing to be monthly or quarterly?
[32] TB 541 - TB 543.
On 27 June 2018 the first WIP meeting was held and was attended by Mr Nash, Mr Corby, Mr Billings, Ms Manners and Mr Reid. In evidence Mr Nash said at the meeting there was discussion about influencer campaigns. He said that they went through the number of states that CSA was going to do the influencer campaigns in some numbers but he did not recall the exact number of influencer campaigns. He said they confirmed that they would be able to do the Garage Sale in Melbourne and in Perth. The one in Melbourne was going to be 'in sort of 18 November 2018 and the Perth one would be the following year he thought on 17 March'.
Mr Reid took notes at the meeting which were condensed in an email of 27 June 2018[33] in the following terms:
[33] TB 549.
Notes from meet:
Influencer campaigns:
- two in Vic - one franchise one corporate
- two in Wa - one franchise one corporate
- one in Qld
- one in nsw
- one in SA
Dates tbc for above AM and story signed off by both.
Commence July - influencer campaign.
Paul to visit stores prior to talk campaign / purpose up
Garage sale dates:
- 18th November - Vic
- 17th March - Perth
Program to be shown in NSW and Vic
Three participation events - to aid community awareness QLD, WA and NSW. Paul to comeback with recommendations.
Engagement on going:
- meet fortnightly going forward - AM to organise
Mr Nash said at the meeting Ms Manners asked if CSA could invoice quarterly instead of monthly. In his evidence Mr Corby said that he recalled a discussion about the invoicing saying that:[34]
… Mark Reid actually discussed that because he actually asked Paul if it would be acceptable to us if they could invoice quarterly because it would be beneficial for their cash flow and Paul obviously said yes. But I do specifically recall the conversation cos Paul actually looked at me as if to say 'don't stress' cos I'm a small business owner and if it's quarterly, it'll be okay.
[34] ts 280.
Mr Nash said that there was discussion about influencer campaigns in which they went through the different states that the influencer campaigns could be undertaken and they talked about the players CSA had and that the parties would work together moving forward on choosing the right players in the right states for the right stores.[35] He said that in that quarter they would agree a certain number of instore appearances by players and then Instagram posts from those people. He gave an example of Mark Le Cras from the West Coast Eagles going to Cash Converters Midland to do an instore appearance. He would then buy a fishing rod and he would then say what a great deal it was and then he would post it to his Instagram. He said that he talked about the players and what stories they could create which had to be worked out who would do what and what was best for Cash Converters.
[35] ts 155.
Mr Nash said they talked about three participation events in Queensland, WA and New South Wales in respect to which he was to come back with recommendations because they had not decided exactly which ones they would be.
Mr Corby said that there were discussions about ongoing WIP meetings in respect to which Mr Manners suggested that they be held fortnightly because she had specific senior stakeholders, both at an agency level and at internal stakeholder level at Cash Converters that she was interested for Mr Corby to become familiar with and to start to form a working relationship with. He said that was in the context of him being told that CSA would have the opportunity to tender for the digital work at such time that the contract became available.[36] He said that there were digital components to the influencer campaigns and Garage Sales and he was at the meeting to provide digital input on those matters. He said there were a lot of things on the table which was why there was a need for future meetings.[37]
[36] ts 271.
[37] ts 285.

Invoice

By email dated 28 June 2018[38] from Mr Nash to Mr Reid copied to Ms Manners, Mr Nash said:
Hi Mark,
Thanks for catching up yesterday.
We have booked and secured the dates for the garage sale in both Perth and Melbourne.
I will wait for the proposed dates and stores for the instore activities from Alice.
Please find attached the first quarterly program invoice.
[38] TB 553 - TB 556.
Attached to that email was a tax invoice from CSA addressed to Ms Manners dated 28 June 2018, the description in which was:
July 1^st - September 30^th 2018. First quarter influencer and event marketing customer acquisition program for the sum of $312,500 plus GST of $31,250 making a total of $343,750.
Under the subheading 'Following payment schedule has been agreed' there appeared a due date of '5/07/2018'.
In cross-examination Ms Manners agreed that she did not respond to Mr Nash in terms that the invoice should be withdrawn and was not payable. She said that she sent an email on 28 June 2018 (16:48)[39] to Mr Reid copied to Ben Cox who was the head of stores at Cash Converters. That email was in the following terms:
Hi Mark,
Just looping Ben in as November may not work for Victoria.
Also, I'll need to ask Paul for a contract including a SOW - not just an invoice as attached.
[39] TB 559.
She said that she had a telephone call with Mr Nash on the same day in which she told him that they did not have confirmed dates for the events and that they would have to speak to their stores because there was a lot of work that goes into these events and the store people would be the ones running them. She said that she told him that they needed more detail on the influencers and that they needed a statement of work with all of the detail that would be required for a contract and that they would require a contract.[40]
[40] ts 330 and ts 331.
In his evidence Mr Nash said that he did not recall in the afternoon of 28 June 2018 Ms Manners calling him. He said he could recall her telling him that she would need a formal contract but thought that was about 5 or 6 July 2018. He said it was certainly not on 28 June 2018. He said the call he did recall from Ms Manners on or about 5 or 6 July 2018 was when she said that legal had requested a more formal document but there was nothing to worry about. He then told her that that was not what they had agreed but he was happy to consider it as long as it did not change any of the material matters which had been agreed.
There is a record of mobile national direct dialled calls from Mr Nash's mobile phone 0416 226 495.[41] At 5.57 pm on 28 June 2018 there is a call logged to 0408 107 399 which Ms Manners said was her personal number. The length of that call was 3 minutes and 5 seconds. That call was made just over an hour after the email of 28 June 2018 from Ms Manners to Mr Reid and Mr Cox.
[41] TB 613.
There is a record of text messages between Mr Nash, who was then overseas, and Ms Manners.[42] There were the following exchanges:
[42] TB 570.
6 July 2018:
Nash:Hey Alice, I am away but available 24/7 for you. Hope you are well. Cheers Paul
Manners:When are you back?
Nash:I am back next Friday as I am on my way back from an influencer discussion with Vayner media in New York and meeting the family in Singapore for a few days. Anything you need though I can arrange and am fully contactable. Is there anything you need from me? Hope you are well. Cheers Paul
Manners:I just wanted to catch up on the statement of work as my legal department have put together a very long document … I don't want it to impact the partnership spirit in any way and so wanted to grab a coffee with you and run through rather than send via email (a lot of it is standard but its not the 2 pager I was hoping for)
Nash:I completely understand. Lawyers generally try and negatively impact the partnership spirit! That said, if you email it to me I will not be offended and will only make any changes that fundamentally do not reflect our discussions or will alter our ability to deliver as promised. Cheers.
Manners:Thank you for understanding! I've just noticed some gaps so will email to you on Monday. Enjoy Singapore!
10 July 2018:
Nash:Hi Alice, hope you had a good weekend. How did the sales and marketing prevention officers (legal department) go with finalising the agreement? Cheers. Paul
Manners:LOL J Hi Paul, lots of questions for you but didn't want to bother you whilst on leave. Do you want me to send via email or wait till you are back?
Nash:No happy for you to send me an email. I am very keen to get going ASAP as there is a lot to do. Cheers Paul.
11 July 2018:
Nash:Hang up message 0416226495 (no answer from Manners)
13 July 2018:
Nash:Don't forget me! Hope you are well. Cheers Paul
Manners:Hi Paul, at a team off site today and it's sitting with legal now but will chase.

In his evidence Mr Budiselik said that he was familiar with Cash Converters' contract approval processes. Although there is no evidence that these processes were made known to Mr Nash, the evidence is relevant for the limited purpose of considering the veracity of Ms Manners' understanding as to her lack of authority to commit Cash Converters about which she gave evidence.
Mr Budiselik said that he was involved in the contracts approval process for Cash Converters. He oversaw the engagement of the company's suppliers. He said that initially an executive may be discussing a proposal with a potential supplier and would formulate an overview to bring to the leadership team to garner support. Often there are multiple stakeholders interested in the engagement or the outcome. Once there is a formal proposal or contract it would go through a legal review internally to ensure that the terms and conditions are favourable in terms of what Cash Converters can negotiate. That contract process would then move through the chief financial officer to confirm that they had the budget in place to engage and then go to the Board for review because two directors signed the contracts.
I am satisfied on the evidence that Ms Manners did not have nor did she hold herself out as having the authority to commit Cash Converters to a legally binding contract with respect to this proposed transaction. I find that she was well aware of her responsibilities and the extent of her authority. I am satisfied that she was at all times aware of the contract approval processes to which Mr Budiselik referred.

Essential terms

For there to be an intention by the parties to create contractual relations, the essential terms of that agreement must be agreed. It is for the parties to determine what matters are important and what matters are not. In my view having regard to the nature and importance of the contemplated transaction and its size and complexity, the essential terms requiring agreement before there could be an intention by the parties to create contractual relations would, at the very least, include the following:
(a)the identity of the parties;
(b)identification of the services to be rendered by CSA;
(c)identification of KPI's (ie, budgets and targets) which were linked to the services and the consequences for the parties in the event that any of those KPI's were not reached;
(d)the term of the agreement; and
(e)the price for the services.

Parties

I am not satisfied that there is any real uncertainty with respect to the parties comprising CSA. Whilst it is true that the NDA referred to the trusts not the trustees, it is sufficiently clear that the trustees of the respective trusts comprising CSA would be the contracting parties.

Identification of the services

In this case the statement of claim refers to a number of emails as a source of the written terms of the alleged agreement. Those emails include the emails of 5 June 2018[106] and 7 June 2018.[107] The case advanced by CSA is that the email of 12 June 2018[108] comprised the reduced scope of works for which CSA would be responsible and that the undertaking to provide a detailed service agreement which appeared in the two earlier emails of 5 June 2018 and 7 June 2018 was no longer applicable and nor were the services, notes and guarantees in the email of 7 June 2018. Mr Nash conceded that at no time was Cash Converters informed that the proposal of 12 June 2018 or any subsequent proposal did not include the undertaking to provide a detailed service agreement or any of the services, notes and guarantees.
[106] TB 390.
[107] TB 397 – TB 398.
[108] TB 435.
Mr Nash said that because of the exclusion of the digital component the reduced scope of works no longer required a detailed service agreement and the matters the subject of the services, notes and guarantees were not included in the proposal in the email of 12 June 2018.
It appears on its face that there are a number of items described in the services, notes and guarantees in the email of 7 June 2018 which are applicable to influencer and event marketing namely:
•Access to Australia's largest sports influencer network.
•25% discount on entire influencer network.
•25% discount on all influencer and celebrity instore and activation costs.
•25% discount on all event activation costs.
•Project team to prepare all necessary reports and attend weekly meetings with client.
•Client director (ie, CSA's director) to attend all retail stores and share marketing strategy with relevant stakeholders as directed by client (ie, Cash Converters).
•All services listed above will deliver the required financial budgets and parameters as per the spreadsheet and targets provided by the client.
•The financial targets will be reviewed within three months of agreement and may be altered with the prior written approval of the client.
In cross‑examination Mr Nash said that with respect to the proposal in his email of 7 June 2018 the services, notes and guarantees had not been discussed with Ms Manners and they would need to be 'fleshed out' for inclusion in a detailed service agreement to be negotiated. He said that the detailed services agreement would be mainly for the digital work but agreed that it would also include in that proposal, the influencer work as well as the details of the influencer integration strategies, influencer marketing management and project management.
For example, with respect to the choice of influencers, Mr Nash said that CSA manages about 160 of Australia's top sports and media influencers. Cash Converters would have access to all of them in respect to which Cash Converters would have some say as to which influencer it could access for a particular location and those rights would have been fleshed out in the detailed services agreement.
He said that in a detailed services agreement the financial budgets and targets included in the services, notes and guarantees would be specifically identified and included in that agreement. As to the reference to the financial targets being reviewed within three months of agreement and altered with the prior written approval of Cash Converters, he said that if Cash Converters did not agree to alter the targets that would again be a matter which would have been fleshed out in a detailed services agreement.
Mr Nash said that when he was told by Ms Manners that CSA could not do the digital work and a proposal was sought by her including the influencer and event marketing services, a new proposal was called for which he said was not intended to carry with it the services, notes and guarantees.
In the email of 12 June 2018[109] Mr Nash says 'as discussed I have altered your scope of work to focus on the influencer and event marketing'. He then listed a number of items under the heading 'scope of work'. The description of a number of services described in the scope of work are very general, for example:
(a)local area influencer strategy;
(b)influencer integration strategy;
(c)influencer marketing management services;
(d)community engagement through significant branding; and event awareness at three large scale mass participation events; and
(e)payroll and employment consulting.
[109] TB 435.
Between 12 June 2018 and 14 June 2018 Mr Nash and Ms Manners:
(a)negotiated the price of $1.78 million down to $1.25 million;
(b)reduced the number of garage sales down from three to two by removing New South Wales; and
(c)reduced the term of any agreement from three years to two years.
During the course of arranging the date for the first work in progress meeting, Ms Manners sent an email to Mr Nash on 18 June 2018[110] in which she told Mr Nash that she would be out of the office that week so it would be best to kick off the work in progress meeting the next week, that the activity was budgeted for the next financial year so if he would like to start a bit later he could let her know. The first work in progress meeting was arranged for 27 June 2018.
[110] TB 494.
On 28 June 2018 Mr Nash sent an email[111] to Mr Reid copied to Ms Manners in which Mr Nash confirmed that CSA had booked and secured the dates for the garage sale in both Perth and Melbourne and attached the first quarterly program invoice addressed to Ms Manners which was an invoice for the period 1 July – 30 September 2018 for $312,500 plus GST of $31,250 making a total of $343,750. I accept that the invoice was addressed to Ms Manners having regard to the email from Mr Nash to her on 18 June 2018.[112] Although Ms Manners could not recall responding to Mr Nash in that regard I infer that she did.
[111] TB 553 – TB 556.
[112] TB 485.
Ms Manners agreed in evidence that she did not, after receiving the email of 18 June 2018, say to Mr Nash that it was inappropriate for an invoice to be sent because there was no agreement. Nor did she tell Mr Nash after receiving the invoice that it should have been withdrawn and was not payable because there was no agreement. CSA says that as a consequence of that conduct an inference ought be drawn that Ms Manners knew that a binding agreement had been reached between the parties.
I have found in par 119 and par 120 that on the same day following receipt of the invoice on 28 June 2018 Ms Manners sent an email[113] to Mr Reid copied to Ben Cox who was the head of stores at Cash Converters in which she said that she would need to ask Mr Nash for a contract including a scope of works, not just an invoice as attached. And that later that day she had a telephone conversation with Mr Nash in which, I am satisfied, she told him that Cash Converters would have to speak to their stores with respect to confirmed dates for the Garage Sales, Cash Converters would need more detail on the influencers and would need a statement of work with all of the detail that would be required for a contract and that they would require a contract.
[113] TB 559.
This telephone conversation is important. It amounts to conduct immediately subsequent to 27 June 2018 being the date by which CSA contends a binding agreement had been reached by the parties. This telephone conversation demonstrates, in my view, that Cash Converters was still dissatisfied with the details of the description of the services to be rendered by CSA and confirmed a requirement that a contract be executed.
CSA says that there was no evidence that Ms Manners and Mr Reid did not understand what each item in the scope of works entailed. That is so – however the evidence demonstrates that Cash Converters had from at least 5 June 2018 expressed concerns to CSA about the need to provide detail of the services to be provided by CSA.
From this telephone conversation on 28 June 2018, the inference can readily be drawn that Cash Converters were still not satisfied as to the detail of the services to be provided by CSA and required a contract before any binding agreement was made.
Objectively that is not consistent with the parties having reached any binding agreement. In coming to that view I have taken into account the fact that after the email from Mr Nash of 18 June 2018 and after receiving the invoice, Ms Manners did not protest that there was no agreement and that the invoice was not payable. Those facts are relevant in considering, with other evidence, what inference ought be drawn. To that end the email of 18 June 2018 was received at a time when the parties were progressing towards the first work in progress meeting. Having regard to the reaction of Ms Manners to the invoice which was consistent with her email to Mr Reid and Mr Cox shortly beforehand, I am satisfied that in all the circumstances this is the only reasonable inference to be drawn. That view is fortified by the email from Ms Manners to Mr Nash on 11 July 2018.
I do not accept CSA's assertion that the conduct of Cash Converters after 9 or 10 July 2018 constituted a ploy to fabricate a reason to enable it to resile from its obligations under a binding agreement reached by 27 June 2018. In my view the conduct of Cash Converters subsequent to 27 June 2018 was consistent with the contract processes to which Mr Budiselik gave evidence.
There was then an exchange of communications between Mr Nash, when he was overseas and Ms Manners between 6 July 2018 - 13 July 2018 which I have recited at par 123 and an email from Ms Manners to Mr Nash on 11 July 2018[114] which Ms Manners confirmed had been drafted by Peter Waddell who was part of the Cash Converters' legal team.
[114] TB 574.
When he received that email Mr Nash spoke to Ms Manners informing her that he was extremely unhappy because the substance of that email was completely the opposite of what had been agreed between him and her but said in the interests of their relationship and the work CSA had done to date he was willing to consider an agreement as long as it did not change any of the material facts that had already been agreed.
Mr Nash responded to that email on the same day.[115] Thereafter Mr Nash was unable to contact Ms Manners and was not getting any response from her or the Cash Converters' marketing team as a consequence of which he had a discussion with Mr Reid which resulted in Mr Reid's email to Ms Manners of 19 July 2018[116] and her response to Mr Reid on 21 July 2018.[117] When Mr Nash was able to speak to Ms Manners she told him that he needed to speak to Mr Budiselik.
[115] TB 576 – TB 577.
[116] TB 587.
[117] TB 589.
Mr Budiselik said that on 23 July 2018 Mr Reid, Ms Manners and he agreed that they would cease any further contact or discussions with CSA and Mr Reid requested Mr Budiselik to contact Mr Nash to notify him of that decision.
Mr Budiselik said that he spoke to Mr Nash by telephone the next day and told him they were not proceeding with any further discussions and that the commitment of the dollar amount was not possible with Cash Converters' current marketing budget.
This was a proposed transaction where performance rested with CSA. By that I mean all of the services were to be undertaken by CSA over a period of two years during which it was to be paid a significant quarterly fee. As such the scope of works was an essential element to ensure that Cash Converters knew what it was getting for its money and, as had been made known to CSA so that the business performance metrics such as cost per approved application, return on ad spend and new to business customers could be assessed during the term.
In evidence, Mr Nash agreed that the items in the scope of works were expressed in very general terms but said that the detail would be fleshed out in work in progress meetings as had been the case with respect to the March 2018 Garage Sale. He also agreed that the items relating to influencer marketing referred to in the services notes and guarantees in the email of 7 June 2018 would, with respect to that proposal have been required to have been agreed and included in a service agreement. That being the case, from an objective assessment one would reasonably assume that they would be no less important with respect to the services the subject of the reduced scope of works. The matters which were referred to in the services, notes and guarantees which were referable to items in the reduced scope of works had not been discussed by the parties before or after 27 June 2018. As such there was an uncertainty as to whether all or any of them would be applicable.
I am of the view that the work in progress items to which I have referred in the reduced scope of works are uncertain and incomplete and in most cases had not been the subject of discussion by 27 June 2018. It is one thing to flesh out details in future work in progress meetings with respect to services that are identified with precision. But another where the services are, as these services were, expressed in such a general way. Rhetorically one must ask what is the consequence if agreement cannot be reached between the parties at a work in progress meeting? What then happens?
This is not a case where an essential term has been agreed resulting in an implied term that the parties will act reasonably to agree the detail of that service as expressed in Hillas & Co Ltd v Arcos Ltd. In this case it is the specifics of the proposed service itself which is sought to be ironed out at work in progress meetings.

Identification of targets and consequences if not met

I have already dealt with this term. This was the first occasion upon which Cash Converters had been involved in influencer marketing. Given the length of the term and the sum total of quarterly payments, one would reasonably expect that there would be, for both parties, the need for targets to be set against which performance could be progressively measured and the consequences of any failure to reach those targets, made clear.

Viewing - 14 June 2018

CSA places significant importance on the discussion between Mr Nash and Ms Manners and the utterances of Ms Manners and Mr Reid at the Viewing. Firstly, it is submitted that the conversation between Mr Nash and Ms Manners resulted in there being a waiver on the part of Cash Converters relying on the requirement for the execution of a formal contract before there was any binding agreement between it and Cash Converters. And secondly, that the words spoken by Mr Reid during the Viewing could only be construed as there having been, from Cash Converters' standpoint, a binding agreement between the parties which then existed.
As to the conversation between Mr Nash and Ms Manners there is a dispute between them in their evidence as to what was said. Mr Nash said that he and Ms Manners toasted with a glass of champagne and Ms Manners said that she was looking forward to the journey for the next two years and hopefully many more years to come. He asked her whether there was anything else they needed to do and whether there was any documentation or could they proceed, to which he said she responded 'no … love we're all good to go'.
On the other hand Ms Manners said that everyone at the Viewing was very positive because the Garage Sale in March 2018 had been a good event. She denied that Mr Nash asked her whether there was anything else that needed to be done to move forward with the arrangement and that he asked her whether documentation was required before it could proceed. She said that he did not ask her that and nor did she say 'no … love we're all good to go'.
In my view, it is not necessary for me to resolve the dispute as to which version of the conversation was more likely than the other. Even if I was to accept the evidence of Mr Nash, the question asked by him and the response said to have been given by Ms Manners could not amount to a waiver on the part of Cash Converters to any entitlement to insist upon the execution of a formal contract before any legally binding agreement came into effect. This was a social occasion to celebrate the Garage Sale in March 2018 at which those present including Mr Nash and Ms Manners were celebrating the mutual success of that event. Reference to 'documentation before they could proceed' did not refer to a written contract or any specific documentation and the expression could reasonably have any variety of connotations not related to any formal contract.
It is common ground that at the Viewing Mr Reid was very positive in his remarks in announcing that Cash Converters had entered into a partnership with CSA and that they were going to roll out the national Garage Sale on a national level and that he was looking forward to working with CSA on the future of the Great Aussie Garage Sale in Perth and Melbourne.
In addition Mr Nash said that he spoke to Mr Reid who said 'Congratulations I've spoken to Alice. I hear the deal is all finalised. I'm proud of you. I know you'll over deliver like you always do'. There was no dispute about this conversation given that Mr Reid did not give evidence.

This is a circumstance which, together with other circumstances, needs to be taken into account in determining whether the parties had by then evinced an intention to make a concluded bargain. To that end, Mr Nash and Ms Manners had between 12 June 2018 and 14 June 2018 negotiated a figure of $1.25 million, the number of Garage Sales and the term and they may well have considered it unlikely that there would be any difficulty in coming to terms on other matters which would be the subject of future discussions as to detail. These circumstances need to be considered in light of all the surrounding circumstances and subsequent communications between the parties: for example see Australian Broadcasting v XIVth Commonwealth Games (547 at G) ‑ (547 at F).
In my view it can be inferred from an objective standpoint that Cash Converters had not by 14 June 2018 made any binding agreement with CSA.

Price

The sum of $1.25 million per annum was an agreed figure. However the question arises as to whether the parties were in agreement as to whether:
(a)it was inclusive or exclusive of GST; and
(b)whether the quarterly instalments were payable in advance or in arrears.
As to the GST I am not satisfied that from an objective standpoint, any agreement was reached with respect to this matter. It is clear from the invoice of 28 June 2018 that CSA understood that the price was exclusive of GST for the reasons advanced by CSA's counsel in his submissions. In business transactions it is not necessary to specify that a price is exclusive of GST.
On the other hand, given the emails to which counsel for Cash Converters referred and the fact that in respect to the March 2018 Garage Sale, the only previous commercial dealing between the parties, the price was specified by CSA as $150,000 plus GST it is open to draw the inference that Cash Converters understood that apart from the $1.25 million, there was nothing else to pay such that the sum was inclusive of GST.
In the premises I am left with competing inferences each of which is equally compelling, there being no direct evidence on point. Consequently I am left with the view that agreement was not reached by the parties with respect to this issue.

Quarterly instalments – in advance or in arrears

It is not controversial that at the first work in progress meeting on 27 June 2018, Ms Manners and/or Mr Reid asked that the instalments be paid quarterly for Cash Converters' budgetary reasons and for its cashflow with which Mr Nash agreed.
I do not consider the manner in which Cash Converters made payments with respect to the Garage Sale in March 2018 to be of any relevant assistance with respect to this matter – that being a single event in respect to which there was a short lead up to payment.
The fact that the invoice of 28 June 2018 was rendered quarterly in advance gives rise to the inference that that was CSA's understanding. On the other hand, from a commonsense perspective, it would be hardly advantageous to Cash Converters' budget or cashflow for the quarterly instalments to be paid in advance because that would be less advantageous than for them to be paid monthly which was the other option available to it. The inference which can reasonably be drawn is that Cash Converters' understanding was that the quarterly instalments would be payable in arrears.
There may be commercial reasons why the parties had differing understandings. From CSA's position it may have had moneys to outlay as a consequence of which payment in advance was preferable. On the other hand Cash Converters may have considered payment in arrears to facilitate its cashflow because it was not paying for services that might by then not have been rendered in addition to which there was a longer period for payment.
On an objective assessment neither inference is in my view more likely than the other. As a result I find that the parties were not in agreement with respect to this issue.
Each of these two matters was individually and collectively of substance with respect to price. As a consequence I am satisfied that the price was not a matter about which the parties were in agreement.
In the premises I am not satisfied that by 27 June 2018 or any later date CSA and Cash Converters had intended to create legal relations there being no agreement reached between them on the essential terms required for certainty.
The claim is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
IG
Associate to Judge Lonsdale
17 JANUARY 2020