Toll Global Forwarding Pty Ltd v Theiss Pty Ltd - [2015] WASC 364

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TOLL GLOBAL FORWARDING PTY LTD -v- THEISS PTY LTD [2015] WASC 364

CORAM: KENNETH MARTIN J

HEARD: 4 - 7 & 11 MAY 2015

DELIVERED : 2 OCTOBER 2015

FILE NO/S: CIV 1666 of 2012

BETWEEN: TOLL GLOBAL FORWARDING PTY LTD
Plaintiff
AND
THEISS PTY LTD
First Defendant
DECMIL AUSTRALIA PTY LTD
Second Defendant
KENTZ PTY LTD
Third Defendant

Catchwords:

Contract - Freight - Sea carriage of goods from Thailand - Claim for additional freight remuneration - Fixed price contract - Schedule of rates for carried cargo - Quantum meruit - Contractual variation - Promissory estoppel - Misleading or deceptive conduct - Precontractual representations - Postcontractual representations - Unconscionable conduct

Legislation:

Trade Practices Act 1974 (Cth)

Result:

Judgment for the plaintiff in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr M J Colbran QC & Mr T D Best
First Defendant            :     Mr M H Zilko SC & Mr J Jacobson
Second Defendant        :     Mr M H Zilko SC & Mr J Jacobson
Third Defendant           :     Mr M H Zilko SC & Mr J Jacobson

Solicitors:

Plaintiff:     P A Martino
First Defendant            :     Tottle Partners
Second Defendant        :     Tottle Partners
Third Defendant           :     Tottle Partners

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

Austman Pty Ltd v Mount Gibson Mining Ltd [2012] WASC 202
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51
Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (1996) 12 BCL 317,
Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362
Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457
Decor Ceilings Pty Ltd v Cox Constructions Pty Ltd [2005] SASC 483
John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd [2006] NSWSC 798; (2006) 66 NSWLR 707
Lodder v Slowey [1904] AC 442
Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635
Pan Ocean Shipping Co Ltd v Credit Corp Ltd [1994] 1 WLR 161; [1994] 1 All ER 470
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221
Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516
Sopov v Kane Constructions Pty Ltd [No 2] [2009] VSCA 141; (2009) 24 VR 510
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Wormald Engineering v Resources Conservations Co International (1988) 8 BCL 158
KENNETH MARTIN J:

Introduction

In this five day commercial trial, the plaintiff corporation, Toll Global Forwarding Pty Ltd (TGF), pursues the defendants for increased remuneration, beyond the levels contractually stipulated under an elaborate written agreement for the provision of sea carriage services to a joint venture of the three defendant corporations (of which Thiess Pty Ltd is named on the writ as Theiss Pty Ltd), TDKJV. The claim for the extra money is strongly resisted.
TGF is part of a group of corporations. The group carries on business as a well‑known and respected international carrier and transporter of goods, including carriage assignments to and within Australia. The group includes Toll Transport Pty Ltd (ACN 006 604 191) (Toll).
Around 2009, the TDKJV corporations had been contractually engaged by the international oil and gas corporation Chevron, to deliver an array of services and outcomes linked to Chevron's development of the off‑shore Gorgon Natural Gas Project - located off the north‑west coast of Western Australia.
One small aspect of the massive Gorgon Project required the establishment of new accommodation units erected upon Barrow Island. The new accommodation units would be for workers engaged in working in the Gorgon Gas Field from time to time.
To that end, TDKJV entered a contractual relationship with a Thai corporation, Siam Steel, to manufacture and fabricate large numbers of accommodation modules destined, ultimately, for Barrow Island.
Once constructed in Thailand, the accommodation modules would need to be collected and transported to Western Australia by ship. More specifically, about 11 tranches of, all up, 2,012 accommodation modules, as well as containers of related materials, after being manufactured in Thailand, would need to be transported, batch by batch, from the port of Sriracha in Thailand by sea to the Port of Henderson, Western Australia ‑ just south of Fremantle.
Once they reached Henderson the accommodation modules were to be unloaded, then intensively worked upon by local contractors. Plumbing augmentations and sundry finishing works needed to be locally carried out. Also, the customs and quarantine clearance requirements for the accommodation modules needed to be satisfied at Henderson. Once that further work was completed the accommodation modules were, effectively, to be delivered over by TDKJV to the ownership of Chevron (or a Chevron related entity).
The accommodation modules then became the responsibility of Chevron to transport back north, up to Barrow Island for their overall on‑site assembly and installation.
These proceedings are concerned, essentially, with some problematic events surrounding the contractual sea carriage remuneration arrangements governing the shipping of TDKJV's accommodation modules from Sriracha, Thailand, by sea to Henderson, Western Australia, during 2010.
As I mentioned, TDKJV, following its own contractual engagement by Chevron, in effect, entered sub‑contractual arrangements with Siam Steel in Thailand, for the manufacture by fabrication of what were to be largely steel constituted accommodation modules. There was an early proposed production schedule, pursuant to which limited batches of, all up, 2,012 accommodation modules were planned to be produced, then made available for collection at Sriracha across a production period of approximately 10 months.
But Siam Steel was a Thai steel manufacturer. It was not a transporter or international carrier of goods by sea. TDKJV needed to arrange, somehow, to get the accommodation modules, once they were manufactured in Thailand in batches across 2010, from Sriracha by sea to Henderson, Western Australia.
The TDKJV itself was a dedicated and project oriented joint venture enterprise, contracted to Chevron. But the joint venturers were not experienced in, or for that matter equipped, to undertake, or even arrange the international sea transporting of goods manufactured in Thailand, such as the accommodation modules. Procuring and implementing such arrangements called for specialist international sea carriage expertise. Hence, TDKJV effectively sought the assistance of reputable contract carriers they could engage to perform that service for TDKJV - at a fixed fee.
The TDKJV joint venturers held no aspiration of becoming personally involved in undertaking a sea transportation exercise for the accommodation modules, from Sriracha to Henderson. This was to be a carriage task contractually performed for TDKJV by an experienced and professional international carrier. The TDKJV joint venturers themselves would simply pay for delivery outcomes to Henderson for the accommodation modules.
The TDKJV joint venturers, in the latter half of 2009, began making enquiries about finding an appropriate international sea carrier for the task. They issued a document called a request for quotation (RFQ) and eventually made contact with the Toll carrier group corporate organisation.
Ultimately, TDKJV ended up entering a written contract with a Toll group entity, ie, Toll. This was on 28 January 2010. Toll is a related corporation to the plaintiff, TGF. On 25 February 2010 this contract was assigned from Toll to the plaintiff, TGF. This assignment happened with the consent of the TDKJV defendants. From 2010, TGF has traded under the business name Toll Project Services (TPS) (see exhibit 1.6.328).
The comprehensive written agreement between Toll (as was later assigned to TGF) and the TDKJV corporations had taken months of drafting to negotiate and finalise. The agreement was negotiated back and forth over many months through multiple, evolving, enlarged drafts before finally there emerged an agreed freight contract. In this process, there were in‑house lawyers engaged and assisting on both sides of the transaction, in what had turned out to be the drawn out negotiations spreading across the latter months of 2009, into 2010.
Finally, the terms of a completed and acceptable freight agreement were settled upon. Toll and TDKJV's finalised and agreed written agreement of 28 January 2010 is referred to herein as their Freight Contract (FC).
Significantly, the FC (some clauses in which I will refer to in more detail later in these reasons) expressly provided for Toll to be remunerated for cargo delivery outcomes, on a USD rate per cargo module, for each of the accommodation modules as were delivered to Henderson (plus some other contractual entitlements allowing increased payments or upward adjustments in payment to Toll to cover sea carriage event contingencies, such as dead freight, demurrage, detention and other like interrupting events).
The way the remuneration provisions of the FC worked for Toll, in simplistic or interlocutory terms, was that had the whole of the envisaged 2,012 accommodation modules (plus some 190 containers of associated goods, totalling 2202 units) been carried and delivered to Henderson by Toll, then Toll would have been entitled to recover as remuneration from TDKJV (the legal consideration under the FC) for procuring that delivery outcome - payment of US$2,892 per accommodation module delivered to Henderson x 2,202 accommodation modules = US$6,368,184 (the total as specified in sch 2 of the FC being US$6,368,278). Associated goods to be carried along with the accommodation modules attracted the same specified rate in the FC, by sch 2 of the FC.
As mentioned, in February 2010, the TDKJV corporations were requested by Toll to consent to an assignment of the FC from Toll to TGF, its related corporate entity (this was completed on 25 February 2010 - see exhibit 1.3.99). This change was due to a restructure of the Toll corporate organisation. Consent was given by TDKJV to the requested assignment. Accordingly, from that point the contractual relationship under the FC was between the plaintiff, TGF, and the defendant corporations.
After six sea voyages carrying those goods to Henderson in 2010, the contractual relationship under the FC was unilaterally terminated by TDKJV. This was by a notice given under a termination for convenience clause, under FC cl 12.3.1. That FC clause allowed TDKJV, without cause, to terminate, on notice, all future obligations of performance under the FC, at TDKJV's election. There is no dispute over such a termination being validly effected.
Notice of unilateral termination of the FC was given by TDKJV on 16 August 2010 (exhibit 1.5.264). There is no dispute over that. The termination of the FC's future performance obligations took effect at the end of the sixth voyage of the 'Beluga Elegance' - the vessel which had carried all cargo to Henderson to that point. Schedule 5 of the FC made reference to 11 intended shipments to perfect a potential delivery of 2,012 accommodation modules (plus the associated goods). But only six voyages took place in the end - as between those parties under the FC before its performance was ended by TDKJV.
The dispute between the parties is over allegedly outstanding money for the carriage of the cargoes upon those six voyages to Henderson by the 'Beluga Elegance' from Sriracha.
TGF alleges it holds an entitlement to be remunerated or compensated by TDKJV for arranging the sea carriage to Henderson for what turned out to be only six voyages of transported accommodation modules. The sea carriage of TDKJV's cargo had been effected under subcontract shipping arrangements Toll or TGF had reached through contracting itself with an international shipping broker, Coli Shipping (Singapore) Pte Ltd (Coli). Coli, in turn, had entered (it is inferred, there being no documentation on this issue put before the Court) its own direct charter party arrangements with the owner(s) of vessels in the Beluga Fleet to secure an ocean going ship(s) to carry as cargo tranches of accommodation modules and accompanying materials from Sriracha to Henderson, as such goods became available for transport, in a period between March and September 2010.
Against that claim for extra money by TGF, the three TDKJV defendant corporations strongly contend that they have paid TGF every legitimate cent that is owed to TGF, applying the workings of the FC's remuneration clauses and schedule provisions of the FC - for six voyages of the 'Beluga Elegance' and the consequential deliveries of cargo to Henderson during 2010.
Nevertheless, TGF argues it is either owed more money, or holds other non-contractual causes of action against TDKJV, which entitles it to more remuneration or compensation for the delivery outcomes for the cargo delivery results procured for the TDKJV corporations by the six completed voyages of the 'Beluga Elegance' in 2010, before the further performance of the FC was terminated.
By written and oral submissions made at trial, TGF would appear to accept that in order to obtain any extra funds, damages or compensation from the TDKJV joint venture corporations, it needs to secure relief or remedies that are collateral to or beyond the textual scope of the express written terms and rate remuneration schedules of the FC.
Towards its fiscal objectives in this action, TGF advances at trial a diverse array of legal arguments - all, in the end, asserting TGF's entitlements to further moneys or damages, including an asserted contractual variation to the payment terms of the FC that was consensually reached subsequent to 28 January 2010. But TGF also pursues relief upon equitable, statutory or restitutionary claims - all of which are rejected by the TDKJV defendant corporations.
The defendants, in essence, say that the terms of the parties' relationship are and were always exclusively contractual - located nowhere else than within the four corners of the FC of 28 January 2010. They argue it is conceptually wrong and wholly unnecessary to look any further than the express terms of the FC, to resolve the present remuneration dispute in their favour.

Strategic weaknesses of TGF in seeking extra moneys

Before venturing upon a more detailed clause by clause examination of the parties' contractual relationship from within the FC, it may assist if I attempt to identify at the outset, in a somewhat summary fashion, some strategic problems or vulnerabilities suffered by TGF, arising in its assigned FC contractual relationship with the TDKJV joint venturers.
In brief terms these matters can be identified, as follows:
(a)An express basis for Toll's contractual remuneration entitlement under the FC is set down under sch 2 of the FC - by reference to a schedule of rates and prices. The basis of Toll's delivery remuneration entitlement is seen under item 2 of FC sch 2. This is expressed on the basis of a per unit remuneration of US$2,892 for each of the 2,012 anticipated delivered accommodation units (plus associated goods) - generating an aggregate potential reward for Toll of what is referred to as a contract value (exclusive of GST), specified in the amount of US$6,368,278. Remuneration arrangements under the FC are addressed by cl 2 of the formal instrument of agreement in the FC - which identifies the rates as are to be found set out in FC sch 2 - being the amounts TDKJV agrees to pay Toll. I mention also a pt D of the FC's conditions of contract, cl 10.1 and cl 10.2; and see sch 1. Page xiv of the FC shows a reference to a basis of payment (cl 10.1) and the 'schedule of rates having lump sum components'. See also sch 2, s 2.1 and s 2.2 and schedule item 2, at page xvi of the FC. These clear and elaborate FC remuneration terms need to be shown by TGF in this action to have been supplemented, replaced, or overtaken - under what it seeks to prove at trial as the parties' further agreement(s), allegedly reached subsequent to 28 January 2010.
(b)Shortly after the FC was executed on 28 January 2010, the key representatives of Toll look to be having concerns over the FC's agreed fixed basis of remuneration. That emerged in light of a then looming 'blow-out' in the likely delayed manufacture of goods at Thailand, thereby affecting the voyage departure dates for shipping the tranches of accommodation modules from Thailand ‑ due to delays in production at TDKJV's local Thai fabricator, Siam Steel. Correlative to what were looming product availability delays for shipping, was a projected reduction in the aggregate number of accommodation units projected as being available - at least for cargoes to comprise the proposed numbers of the early shipments under the FC. As seen from sch 5 to the FC (page xxii), the nominated handover dates for receiving accommodation modules at Sriracha had been estimated by that FC schedule to begin with the first shipment on 6 January 2010. But by the time the FC was finally executed, some twenty-two (22) days later (ie, on 28 January 2010), it was by then demonstrably apparent to all concerned that the first estimated shipment date had not been met. It had thoroughly blown out already, by 22 days. Likewise, the FC schedule's estimated aggregate number of accommodation modules (106) nominated for that first shipment were unlikely to be met. A much lesser cargo number of accommodation modules was likely for that voyage.
Moreover, some pre‑contractual assumptions about the (double) stackability of the loaded accommodation modules, on or within a particular ship, in transporting them from Thailand, were looking uncertain. The early tranches of manufactured accommodation modules were either not able to be double stacked, or at least seemed not to be doubly stackable. (In the end this concern proved not to be a problem, since the carrying vessel, 'Beluga Elegance', was not loaded to capacity. Consequently, the modules were able to be simply single stacked without any space issues.) It can be seen that sch 5, column A, page xxii of the FC, contemplated a series of eleven tranches of accommodation units as being available for transport from Sriracha as between 6 January 2010 and 15 October 2010 (constituting, if completed, the total carrying of 2,012 accommodation modules) and accompanied by flat racks (180). Beyond the first two shipment FC sch 5 estimated tranches, the FC's projection was for progressive voyages of increased numbers, ie, 212 accommodation modules (or thereabouts). But the 11th (last) tranche shipment, anticipated for mid‑October 2012, had the estimate of only 104 accommodation modules to complete the task.
(c)Toll was part of the international Toll Group of corporations. Hence it was a member of a very large corporate carrier organisation that specialised in international carriage of goods for reward, including by sea carriage. For this particular transaction the mode of proposed carriage sought by TDKJV was the carriage of goods by sea from Thailand to Western Australia. As will be seen from provisions of the FC, the TDKJV corporations effectively left it entirely to Toll (and later, TGF) to procure the delivery outcome result for 2,012 accommodation units and accompanying goods to Henderson. The reward for those delivery results services was a fixed sum remuneration payment, to be calculated under FC sch 2, upon a rate basis set in USD. All the underlying details, by which the cargo delivery end results to Henderson would be achieved, were essentially left open by the FC - just for Toll to progress using its carriage expertise. [How Toll would choose to go about bringing about the promised cargo delivery outcomes for 2,012 accommodation modules was essentially left up to it under the FC.]
To meet its sea carriage tasks, Toll effectively subcontracted. To that end, it chose to engage by, in effect, subcontracting the services of an international shipping agent, Coli. Very little was before the court at the trial concerning precise documentary details of Toll or TGF's sub‑contractual relationship(s), if there were any, with Coli. From what little emerged, it appears that Coli (or a Coli related entity) was left to itself to enter various international charter party arrangements with owners of ships to procure sea carriage availability and cargo hold space to collect and carry accommodation modules once they were manufactured and available to be collected as sea transportable cargo at the Port of Sriracha in Thailand, for voyages south to Henderson, Western Australia.
By reason of the ship procurement and chartering arrangements all being left to and entered by Coli, the consequence was Toll (TGF) was effectively rendered in its responsibility to TDKJV, as something of a contractual 'middleman' (vis-à-vis Coli and TDKJV).
Toll (later, TGF) by reason of its 'middleman' position, rendered itself consequentially vulnerable to cost 'blow outs' in terms of financial exposures - if it was exposed to personal payment obligations to Coli that, in the end, were numerically greater than the amount of the fixed sum reward remuneration Toll/TGF was able to claim back from the TDKJV corporations under the FC remuneration arrangements. A 'middleman' exposure in Toll (and TGF) to Coli, could have been avoided had Toll entered some form of a 'cost plus' remuneration deal with TDKJV. But the FC's terms of remuneration (sch 2) clearly did not specify any 'costs plus' basis of remuneration for Toll (TGF). The fixed sum schedule of rates remuneration provisions in the FC were wholly different conceptually from a 'cost plus' scenario. But they had been accepted by Toll, under the FC's express terms.
(d)Before the FC was perfected on 28 January 2010, it would have been open to Toll (TGF) to seek to re‑negotiate with TDKJV - in order to be remunerated under some sort of 'costs plus' deal - as regards any greater payment liability objections Toll may find itself exposed to from its sub‑contractual shipping agent, Coli. But the FC's terms, as perfected, never did come to specify a cost plus remuneration arrangement, as is accepted.
After 28 January 2010 Toll (TGF), by its officers, began to make approaches to TDKJV officers, seeking to alter the FC's sch 2 'lump sum' remuneration arrangements - in effect, by seeking to move towards a deal more akin to a 'costs' plus arrangement. This would be a pricing variation to the FC's express terms had it been accepted by TDKJV.
The forensic difficulty for Toll, and then TGF, is that there is nothing in writing from the TDKJV joint venture corporations which unequivocally accepts a pricing variation to the remuneration arrangements of the FC. To the contrary, there are several communications by email from TDKJV expressly rejecting any cost plus type of variation to the express remuneration arrangements of the FC (for instance, exhibit 1.3.135, page 1115 ‑ an email of 31 March 2010 and exhibit 1.4.185 page 1266 ‑ an email of 2 June 2010).
(e)Toll (and TGF) point to the delays and logistical carriage interruption difficulties encountered across 2010, to contend that the remuneration terms of the FC were inadequate - arising out of logistical sea carriage issues not attributable to Toll (TGF) from a fault perspective, especially ongoing manufacturing delays in Thailand by Siam Steel and consequent ongoing alterations in the anticipated cargo availability and delivery schedule, as initially estimated, under sch 5 of the FC. Consequently, Toll (TGF) argues that the original FC (sch 2) remuneration arrangements set after the pre‑FC consultations with Coli, came to be undermined. Toll says these pre‑FC assessments had been based upon what became, as the FC began to be performed, devalued estimates of likely international ship chartering rates in the global shipping market to secure ships to perform the Sriracha/Henderson cargo transportation work at estimated times - which in the end result were overtaken, all by reason of circumstances for which Toll (TGF) was not to be held responsible. In effect then, it is put by Toll (TGF) that there was a fundamental ground shift in the feasibility of the implementation of the sea carriage services for TDKJV, under the terms of the FC. Hence, in such circumstances, it is suggested that it is only 'fair' that Toll (TGF) receive additional remuneration or compensation - since the arrangements Toll or TGF entered with Coli (about which I was told almost nothing) had seen Toll's own exposures to its subcontractor blow out, such that Toll (TGF) ought be protected from carrying a financial exposure in those circumstances. This is a plenary unfairness of end financial outcome cry by the plaintiff, for which it is said the law, somehow, must provide a just response.
(f)A key difficulty responding to the globally put 'unfairness' of result theme of Toll's submissions (TGF) in seeking extra remuneration from TDKJV, is that it appears to be unequivocally accepted on both sides that the parties' written FC of 28 January 2010 always relevantly remained on foot as between the parties. The FC was, as we know, assigned with TDKJV's consent on 25 February 2010 from Toll to TGF. Performance of the FC was terminated for convenience by TDKJV, upon written notice given pursuant to cl 12.3.1 of the FC, on 16 August 2010, with the termination specified to become effective at completion of voyage number six (voyage and shipment six of the 'Beluga Elegance' appears to have been completed at Henderson towards the middle of September 2010). In other words, neither Toll nor TGF (to that point) had ever sought to end the binding contractual application of the terms of the FC (and hence its governing remuneration provisions) such as, for instance, on a basis of a serious, or anticipatory, breach of the FC by TDKJV, or possibly on the contractual frustration of the parties' FC relationship and underlying commercial bargain - by reason of asserted intruding and fundamentally altered, unanticipated performance circumstances impacting against the performance of the FC's terms. In short, the parties' contract (the FC) always remained binding and operative across all relevant periods under scrutiny during 2010.
(g)Some express terms in the FC, at face value, do provide some basis for Toll (TGF) to recover greater levels of remuneration from TDKJV - by reason of circumstances of delay in cargo availability - impacting against the FC's sch 5 estimated product availability or delivery schedules from Thailand, and the consequent (lesser) numbers of accommodation modules that were available for a particular voyage. For example, by the FC's conditions of contract, at pt F, it was open, via cl 14.5, for Toll (or later, TGF) as carrier (under the FC) to claim extra costs, loss, expense or damage from TDKJV - arising out of or in connection with delays that were not its fault. But to validly advance such a claim for more money under the FC, Toll (TGF) needed first to meet the machinery provisions of the FC by giving a written notice to TDKJV about such a delay issue and within a fixed period, otherwise the right to claim the extra money would be lost. Toll (TGF) never did lodge such a claim on time or at all. Provisions of the FC imposing such requirements for notice of delay claims are accepted as valid (see the series of cases cited under the defendant's written opening submissions, including Wormald Engineering v Resources Conservations Co International (1988) 8 BCL 158, 161; Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (1996) 12 BCL 317, 339; Decor Ceilings Pty Ltd v Cox Constructions Pty Ltd [2005] SASC 483 [69] - [72]; John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd [2006] NSWSC 798; (2006) 66 NSWLR 707 [80] - [81]). Clause 14.5.1 of the FC's conditions and sch 1 (page xiv), stipulates a time period for the notification of delays of seven days. It was candidly accepted by senior counsel for TGF that no notice by TGF of a delay and a consequent extra cost claim were ever submitted to TDKJV under cl 14.5 of the FC by Toll or TGF (see ts 35). No justification for that omission to exercise its contractual rights in its own interests was sought to be advanced by Toll/TGF. The failure of Toll (TGF) to provide the contractually required notice under what is a delay claim regime very elaborately set down by the FC conditions is a strategic weakness. In other words, there appears to have been, by the FC's terms, a wholly contractual solution available, if utilised with promptness, or at least part solution, for Toll (TGF) to address the encountered TDKJV delay problem or lesser cargo problem - but that contractual redress option was never availed of by TGF. As regards scenarios of not enough cargo being available at the time required for collection by the ship, another clause in the FC expressly addressed the issue of claims to a 'dead freight' payment (at 9.5%) (see 6.4.5). That redress was available to Toll (TGF) as well and appears to have been claimed at times by Toll/TGF.
(h)A further weakness for Toll (TGF) to be identified at the outset is that, insofar as it would now seem to ventilate a claim seeking reasonable remuneration that is based upon an asserted quantum meruit claim, this broad contention, as a matter of law, is seemingly irreconcilable with an allied subsistence of the binding and effective FC as between these parties - at least until such time as TDKJV took a step of terminating future performance of the FC for convenience. Subsistence of a binding and effective contract (the FC) governing the parties' relationship, in particular their remuneration arrangements, stands, as I would assess the current state of the law in Australia, as irreconcilable with valid quasi‑contractual pursuits of a claim to reasonable amounts ‑ outside the bounds of the FC contract remuneration arrangements, see Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635 [45], [47] (Gleeson CJ), [79] ‑ [80], [111] (Gummow, Hayne, Crennan and Kiefel JJ). Given the state of the law on that issue, it was no real surprise that in TGF's closing submissions by senior counsel (and in writing) its earlier quantum meruit/restitution arguments were but faintly raised.

I turn to the evidence adduced at this trial, commencing first with a consideration of the evidence adduced from trial witnesses.

Evidence from witnesses at the trial

The plaintiff's witness evidence

At the trial the witnesses called on behalf of the plaintiffs comprised:
1.Mr John Paul Crowley, General Manager of Project and Resource Logistics in the TGF division of the Toll Group;
2.Mr Timothy David Knox, previously the Australian General Manager of TPS; and
3.Mr Nicolaas Johannes Blignaut, State Manager at TPS at the time of the events the subject of dispute in 2009-2010.
The evidence-in-chief of each witness was principally provided under written witness statements (which respectively were tendered and became exhibits 3, 4 and 5A-5B). By leave Mr Crowley and Mr Knox were also led by counsel in some limited supplementary aspects, prior to being cross-examined.

The defendants' witness evidence

The defendants' non-documentary evidence was led from:
1.Mr William John Telfer, Procurement and Logistics Manager of TDKJV from around June 2009 to late August 2010, who was then extensively cross-examined;
2.Mr Brian Douglas Pulham, Project Director of TDKJV, who was only briefly cross‑examined (by reference to two documents);
3.Mr Joseph Patrick Sanzone, Procurement and Logistics Manager of TDKJV from late August 2010, whose witness statement was tendered into evidence without Mr Sanzone needing to be called.
Their statements became respectively exhibits 6, 7A and 8.
The overall thrust of the defendants' evidence, as is illustrated by their pleaded defence, is essentially to join issue with all the extra‑contractual relief and unfairness arguments of Toll and to insist upon the strict applicability of the express remuneration arrangements set down by the FC, particularly Schedule 2. It is more convenient, therefore, to assess and to deal with the essentially negative evidence of Mr Telfer and Mr Pulham, in the context of assessing the chronological trial documents.
I individually assess and comment upon trial documents in a discrete section of these reasons. In that section I shall provide my comments, giving particular attention to the defendants' refutation evidence from Mr Telfer and Mr Pulham.
It almost goes without saying that in a case of this kind, where the key events took place some years ago now, that I have been inclined, in the few areas of true factual dispute, to afford greater weight to the content of the parties' contemporaneous documents, rather than to witness testimony that is recalled about events years later. None of the many documents tendered at the trial were in dispute as between the parties. Obviously, their meaning and significance at various points is, at times, contentious. The trial documents are found across 2,006 pages of an agreed trial bundle, being lever arch volumes 1 to 6 (exhibit 1).
Before proceeding to consider those documents, it will be helpful if I attempt to synthesize the evidence that emerged from the parties' respective witness statements as the evidence‑in‑chief and then from cross-examination. Much of this evidence is uncontroversial, save for a few flashpoint areas concerning alleged oral agreements by persons acting for TDKJV to vary the remuneration provisions of the FC.

Consolidated summary of witness evidence

The evidence from trial witnesses surrounding relevant arrangements as between Toll and TDKJV, distils broadly as my findings of fact below.

Initial quote

In 2009, Toll was invited to submit a quote to TDKJV for the shipping of the accommodation modules [Knox [6]], stored in 'FEU containers' [Blignaut [10]] (the typically recognised shipping containers) from Sriracha to either Fremantle or Henderson. These modules were variously accommodation cabins and associated infrastructure [Blignaut [10]].
TDKJV provided a written request for quotation dated 19 August 2009 describing the scope of the transportation work required [Knox [6]]. That document included a delivery schedule [Blignaut [9]].
Messrs Knox and Blignaut, who were to manage the project for Toll [Knox [19]] met with TDKJV representatives, including Mr Telfer, to discuss the project [Knox [11]]. A meeting was held at TDKJV's office in Perth in late August or early September 2009 [Knox [11], Blignaut [11]]. [By the time of this meeting, Mr Knox and Mr Blignaut had an understanding of the route and general nature of the carriage tasks which Toll would perform, from TDKJV's written request for quotation.] Mr Telfer had explained that a company named Siam Steel, which was manufacturing the modules for TDKJV (under its arrangement with Chevron), would deliver the modules to the Port of Sriracha for loading on a vessel on the dates set out in the delivery schedule included in the request for quotation [Blignaut [13]]. Mr Telfer had explained the work the subject of the tender as being: loading the modules onto the vessel at Sriracha, transporting them to WA, obtaining domestic customs clearance, discharging the modules at Fremantle or Henderson, Western Australia, and delivering the modules to the Chevron Supply Base (CSB) at Henderson [Blignaut [12]]. After the modules were delivered to Henderson Toll's responsibility for them ended [Blignaut [13]]. After this point they would be worked upon at Henderson, then transported to Barrow Island by barge for installation on site.
Mr Blignaut and Mr Knox prepared Toll's pricing for the quote to TDKJV [Knox [15], Blignaut [14]]. TDKJV had requested lump sum, per module pricing [Blignaut [14]]. A lump sum cost could be determined on the basis of the delivery schedule and a per module price could be derived from the lump sum [Blignaut [14]].
As part of preparing Toll's quote, Mr Blignaut and Mr Knox approached the 'break-bulk shipping market', seeking quotations for chartering suitable vessels. They eventually selected Coli [Knox [14], Blignaut [16]] (ts 190). Mr Knox explained that break-bulk shipping refers to shipping of cargo which does not fit into standard sized containers (ts 190). Mr Blignaut provided Coli with the delivery schedule from TDKJV [Blignaut [32]]. In approximately September 2009, Mr Pat Evans of Coli provided Mr Blignaut with details of the 'Beluga Elegance' vessel [Blignaut [17]]. Mr Knox was told by Mr Evans that the 'Beluga Elegance' would be suitable for the scope of work expected to be performed given its cargo capacity, speed and other specifications [Knox [16]].
The 'Beluga Elegance' was not a vessel that Coli owned. Rather, Coli appears to have acted as a shipping broker [Blignaut [42]]. Mr Knox and Mr Blignaut worked with Mr Evans of Coli to plan for the use of this vessel for each of the shipments [Blignaut [17]]. The planned shipments would be either 'half' or 'full' 'cluster loads', with the first and last shipments planned as being roughly half the size of the mainstream shipments - on the basis of a delivery schedule included in the written request for quotation [Knox [14], Blignaut [19]].
Mr Knox's evidence was that the organisation of the vessels, vessel rotation and (cargo) space on vessels were important in planning the project. He proceeded on the basis that one carrier would handle all shipments (ts 190 - 191). His evidence also was that timing was of particular significance to pricing the project (ts 194). The rates quoted by Coli depended on TDKJV's schedule and the assumption that Coli would have the option to load other cargo to fill unused space on the vessel provided no delays were caused (ts 196). Mr Knox's evidence was that Toll considered the use of one or two vessels committed in advance to be most economical [Knox [14]] and that he had told Mr Telfer that the schedule was fundamentally important to the pricing of the project (ts 199 - 200).
Mr Blignaut sent a quote to Mr Telfer of TDKJV on 18 September 2009 [Knox [17], Blignaut [21]]. Accompanying the quote was a request for clarification from Mr Knox and Mr Blignaut about some specific matters [Knox [13], Blignaut [22]]. Following the responses from Mr Telfer, Mr Blignaut then caused Toll to provide a revised quote on 30 September 2009 [Knox [17], Blignaut [25]]. A further, final, revised quotation was provided on 16 October 2009. It specified a price per module transported of US$2,892 [Knox [18], Blignaut [30]]. Mr Knox and Blignaut's evidence was that the pricing in the quotes, and in the final freight contract, depended on the quantity and delivery dates as provided by TDKJV in the request for quotation [Knox [18], [32] Blignaut [30]]. Mr Knox also indicated that this pricing relied on the modules being able to be stacked a particular way on the transporting vessel (the emergence of the issue of double stacking is explored below) [Knox [18], [32]].
Mr Knox's evidence was that towards the end of 2009 Mr Telfer had advised Mr Knox, during a meeting at Toll's Welshpool office, that TDKJV had decided to award the freight contract to Toll. This was confirmed in multiple telephone calls from September through December 2009 [Blignaut [29]]. An email from Mr Telfer on 5 December 2009 attaching a letter regarding the first shipment, confirmed TDKJV proposed to commence shipments based on the pricing as quoted by Toll.
On 29 September 2009, the day prior to the first revised quote being supplied, Mr Telfer provided a first draft of the FC to Mr Knox and Mr Blignaut by email [Knox [23], Blignaut [26]]. Lengthy negotiations followed, including a number of meetings with Mr Telfer [Knox [20]]. Mr Blignaut suggested that these negotiations were run principally for Toll by Mr Knox [Blignaut [26]]. Mr Knox's evidence was that the 'day to day' negotiations were largely handled by Mr Blignaut [Knox [20]]. The discrepancy is immaterial.
Toll's in-house lawyers reviewed iterations of a draft contract while negotiations unfolded (although in cross examination Mr Knox seemed to indicate the legal team only had one lawyer: ts 210). Mr Knox was told by Mr Telfer that TDKJV's in-house lawyers were also working on the terms of the contract [Knox [23], [26], Blignaut [26]]. Costs for delays, and a need for demurrage and dead freight costs to be provided for, were also discussed in a meeting between Mr Knox, Mr Blignaut and TDKJV's lawyer Ms Ellen Burgess on 13 November 2009 [Knox [27], Blignaut [39]]. Mr Knox accepted that there was extended negotiation over the terms of the FC with Toll having the benefit of (in-house) legal input in the process (ts 210 - 211).
Mr Knox's evidence was that he had sought standard provisions from TDKJV to cover dead freight events and demurrage costs [Knox [28]]. During cross‑examination Mr Knox accepted that he was an expert concerning such arrangements, while Mr Telfer was a novice, and also that he (Mr Knox) had insisted on the dead freight and demurrage terms as standard to protect the carrier in the event of delays (ts 208 - 209). Mr Crowley also accepted that dead freight, demurrage and detention provisions are common in shipping contracts and were put in place to protect the carrier (Toll), which he also accepted was a specialist in that business (ts 179 - 181). Mr Crowley had not been aware (but was not surprised) Mr Knox would have insisted on a dead freight provision (ts 181). In re‑examination Mr Crowley commented that penalties usually applied for a complete cancellation of shipments. He believed that dead freight provisions were irrelevant when charging a lump sum for the whole vessel (ts 184 - 185).

Delays prior to executing the freight contract (FC)

While the FC was being negotiated, Mr Blignaut received a revised delivery schedule giving new (later) dates for the loading of modules from Sriracha, via Mr Telfer, on 16 November 2009, along with a revision of the draft freight contract [Blignaut [40]]. At this stage, an estimated 30 November 2009 shipment date was now pushed back to 6 January 2010. Mr Blignaut understood at this stage that subsequent shipments would also be delayed by a corresponding period [Blignaut [40]].
On 5 December 2009, Mr Blignaut received advice of a further delay to the first shipment via Mr Telfer. This was received through a Shipping Advice headed '091205 TDK 182 Toll Shipping Advice 01'. The document specified that delivery had been further postponed from 6 January 2010 to 21 January 2010 [Blignaut [42]].
Mr Blignaut discussed the impacts of these delays with Mr Evans of Coli at around this time [Blignaut [42]].
Mr Knox was told by Mr Blignaut of the further delays to the first shipment, on or about 29 December 2009 [Knox [35]].
After 29 December 2009, Mr Telfer advised Mr Blignaut of a likely reduction in the number of modules which would be ready for the second shipment and Mr Blignaut discussed this with Mr Knox around the same time [Blignaut [54]].
On 30 December 2009, Mr Blignaut emailed Mr Telfer, indicating that a detention cost of US$425,000 was now likely - due to the delays to the first shipment, and that additional dead freight costs would apply due to the shortfall in module numbers [Blignaut [55]].
On 12 January 2010, Mr Blignaut emailed Mr Telfer regarding the impact of potential delays upon pricing. He advised Mr Telfer of discussions with Coli which raised the issue of costs arising out of the delays [Blignaut [57]]. Mr Blignaut (and apparently also Mr Knox [Knox [35]]) met with Mr Evans and Mr Telfer together at TDKJV's office in Perth to discuss the delays [Blignaut [58]]. From this meeting Mr Blignaut had understood Mr Telfer to confirm that the first shipment had been even further delayed to mid-February 2010 [Blignaut [58]]. Mr Knox's evidence was that Mr Blignaut told him of the delay of the first shipment to mid-February 2010 on or about 29 December 2009 [Knox [35]]. Mr Blignaut and Mr Knox said that one of them had advised Mr Telfer of likely demurrage costs that would be caused by the delays during this meeting [Knox [35] Blignaut [58]].
Mr Blignaut did not receive finalised unit schedules from Mr Telfer until 27 January 2010 (the day before the FC was executed) [Blignaut [61]].
Mr Blignaut suggests by his witness statement that a delivery schedule, as is ultimately found in the FC as executed (as Schedule 5) was based on a TDKJV delivery schedule and negotiations with Mr Knox, and had been adopted prior to Mr Knox and Mr Blignaut being 'made aware of the extent of Siam Steel's fabrication delays' [Blignaut [62]]. However, when cross-examined, both Mr Knox and Mr Blignaut accepted (and so, I prefer to find) that Toll was very well aware of the delays and reductions in available cargo numbers by the end of 2009 and thus, in any event, well prior to the FC being executed (ts 211, 254, 276).
Mr Blignaut also said, despite delays, Toll was comfortable proceeding with arrangements in place (relying on demurrage, dead freight and detention provisions in the FC) (ts 254 - 256). Mr Knox said that at the time he did not consider the delays significant, as they would delay the contract but not delay the 'methodology' for delivering the services (ts 211).
Mr Knox's evidence was Mr Telfer repeatedly told him between December 2009 and March 2010 that supply (meaning the available accommodation modules for carriage) would 'pick up' to levels as seen in TDKJV's delivery schedule [Knox [37]]: see FC Schedule 5. Cross‑examined, he accepted that, in principle, there was potential for a shortfall in cargo (shipment) volumes prior to the FC being executed (ts 211). Pressed on why he did not just withdraw the quotes as Toll had provided prior to executing the FC, Mr Knox responded that he did not know that there would be continued delays with further shipments after Mr Telfer's advice to him that production would, in effect, likely catch up, as a result of which there was 'no need to panic' (ts 212).
Senior counsel for the defendants put to Mr Knox during cross‑examination that by the time the FC came to be executed, already three of the estimated delivery dates as seen in FC Schedule 5 (representing 20% of the cargo modules) had already passed - with a first shipment still to happen (ts 213 - 214). Mr Knox accepted that projected shipping dates changed many times - to a point that he said he had no clear idea about when the first shipment would take place (ts 214 - 215). But he also said that the changes in dates were 'not identified at that stage as a significant issue'. He was relying again on the impression that production (in Thailand) would 'catch up' (ts 215 - 216).
It was put to Mr Knox that he had taken comfort from the dead freight and demurrage provisions to be included in the FC (ts 216 - 217). He did not immediately accept that proposition. But my assessment is that Mr Knox appeared to accept that the delivery dates and volume numbers were themselves discussed and negotiated prior to the FC being signed (ts 217 - 218). Mr Knox's written evidence in chief was, in effect, that had he known 'up front' that the FC schedule (5) would not be met and that accommodation modules could not be double stacked, he would not have offered the pricing which was ultimately seen in the FC. Instead he says he would have 'negotiated an entirely different contract' based on a short term full or part charter of a vessel [Knox [56]]. However, pressed on this issue in cross-examination, Mr Knox now seemed to accept that despite knowing the dates were 'out of sync', he did not re‑quote as he was 'led to believe that [the schedule would be restored]' and now seemed to accept that he had relied on the dead freight and demurrage provisions of the FC (ts 223 - 224), albeit viewing them as more appropriate in their invocations, to smaller scale delay scenarios.

The executed contract of 28 January 2010

The finalised FC included provisions allowing claims arising from circumstances such as demurrage, delay, dead freight or vessel detention by Toll as carrier. Mr Blignaut accepted that demurrage provisions were a standard means of providing for the costs of delay during loading or discharging [Blignaut [39]].
Under cross-examination, Mr Knox appeared to accept these provisions would protect Toll from costs arising out of delays which beset a project (ts 224 ‑ 225).

Ongoing cargo availability delays at Sriracha, Thailand

On 2 February 2010, Mr Blignaut received by email from Mr Telfer TDKJV's 'Shipping Advice No 3', now specifying a delayed date for the proposed second shipment to 20 March 2010 [Blignaut [64]]. The same day, Mr Blignaut and Mr Knox also received a document, 'Toll Project Services: Long Term Forward Forecast (Rev 2)', from Mr Telfer. It set out a revised delivery schedule for the shipments [Blignaut [65]]. Mr Blignaut's evidence was that at this stage he was 'not worried' about the overall project pricing on the basis of this table [Blignaut [65]].
Mr Blignaut was taken back to this document in re-examination. He indicated that the revised forecast gave Toll 'reassurance' that the volumes for shipments would return to the schedule. On this basis Toll was prepared to continue working under the freight contract (which had been executed just days prior) (ts 286). Mr Blignaut's evidence was that, in his view, at that stage 'the contract pricing was still viable for the later shipments', although 'it had become clear that the pricing for the first 2 shipments needed to be revised due to the substantial delays and reduction in delivery numbers' [Blignaut [65]].
To address the issue of the delays and potential impact on costs, Mr Blignaut again met with Mr Telfer [Blignaut [66]]. Mr Blignaut says he began to raise the possibility of alternate chartering arrangements. He emailed Mr Telfer on 9 February 2010 [Blignaut [67]].
Ongoing delays occurred over the readiness of a first shipment of cargo from Sriracha.
Mr Blignaut's evidence was that he advised Mr Telfer of the progress of the 'Beluga Elegance', including on 23 February 2010 - by which time that ship had arrived at the port of Sriracha [Blignaut [76] - [78]]. He corresponded with a contractor at the port and with Mr Telfer regarding further delays to loading [Blignaut [80] - [81]].

Toll's proposals to TDKJV for a revised pricing structure

Notwithstanding the 'Long Term Forward Forecast' had 'reassured' Toll, Mr Blignaut and Mr Knox both said that by February 2010, Toll was broadly concerned about the cost implications of ongoing delays and reductions in module numbers, following the execution of the FC [Blignaut [70], Knox [38] ‑ [41]]. Mr Blignaut, Mr Knox, Mr Telfer and Mr Evans of Coli began discussing a charter of multiple vessels to address high costs that were likely to be caused by continuing delays [Knox [38]]. Mr Blignaut said that pricing (and 'stowage plans') for shipments beyond a first shipment required revision due to issues with 'double stacking' (the plaintiff's evidence regarding the double‑stacking non-issue in the trial is set out discretely below), although the timing of these issues was the subject of dispute [Blignaut [88]].
Mr Knox said the delays had created a need to renegotiate Coli's freight costs for 'the first two to three shipments' [Knox [38]]. He suggested that the first delay was less consequential at the time, as Coli had not locked in a time charter. But he said that the reduction in cargo unit numbers was starting to cause Coli losses, and if losses were too significant Coli would pull out of the project and, then, Toll would not have a vessel with which to transport the modules (ts 201 - 202).
Mr Knox sent an email to Mr Telfer on 11 February 2010 providing options and pricing for a charter of vessels, based on information received from Coli [Knox [40], [42]].
Mr Knox's evidence was that he and Mr Blignaut discussed options with Mr Telfer that day (ts 230) [Knox [41]]. But he said Mr Telfer had indicated that production would 'catch up' and so variance might be limited to the first 'few' shipments, as a result of which it was discussed that these early shipments could be treated in a 'different manner' on a 'full charter cost plus model', which was said to have been subsequently stated in writing (ts 204) [Knox [41]]. Mr Knox's evidence of the discussion was that when production returned to schedule the parties would revert to 'the means of pricing and handling the work' (apparently the contract per module pricing), after which this alternate arrangement would no longer apply (ts 204).
The most significantly disputed factual aspect of Toll's case has now emerged. Broadly, Toll's position is that it had reached agreement upon a further pricing arrangement with TDKJV, through Mr Telfer, to charge full charter costs for certain voyages (as they were charged to Toll by Coli), plus a 15% mark‑up, or a Toll management fee, thereby resulting in Toll providing TDKJV with Coli's services, in effect, on a 'cost-plus' basis. As this would involve a 'full charter' of a vessel, the varied pricing arrangements (ie, to the FC) as contended for would have the effect of Toll being responsible to Coli (and by argued extension, TDKJV to Toll) for the cost of the whole vessel, but holding out a prospect of possibly reducing or mitigating such (higher) costs by carrying additional third party commercial cargoes - in the event of there being some unused carrying capacity in the chartered vessel.
A revised or varied pricing agreement is contended to arise out of a meeting between Mr Knox and Mr Telfer in early February 2010. In consequence, it is said Toll would be entitled to recover all costs it incurred (through its own payments to Coli) as part of a new pricing arrangement, and so would no longer merely charge TDKJV the flat ocean freight fee at the unit price of US$2,892 per accommodation module, as per the FC. Mr Blignaut's evidence under his witness statement was that he held these crucial pricing variation discussions accompanied by his superior, Mr Knox, wherein Mr Telfer for TDKJV had agreed to the cost plus arrangement, including the 15% plus mark-up for Toll. This outcome was said to be the result of an apparently brief negotiation as between Mr Knox and Mr Telfer, during early February 2010 discussions [Blignaut [71]].
Features of this key verbal negotiation and alleged pricing consensus reached with Mr Telfer seemed to be recalled somewhat differently as between Mr Knox and Mr Blignaut. Cross‑examined, Mr Blignaut said Mr Knox 'tabled a suggestion' of an 'open book policy' (ie, providing Coli's invoice amounts to TDKJV) and a cost-plus markup (ts 258 - 259). This alone is too vague, on my assessment, to amount to anything of legal consequence. Mr Knox said that he and Mr Blignaut 'went in probably a little bit heavy handed, with cost plus 20', at which point Mr Telfer is alleged to have laughed, but then countered with a proposal of cost plus 10%, and then 'at some point during the meeting [all] agreed on cost plus 15' (ts 205).
Mr Blignaut related that 'we' (Toll) indicated a percentage, Mr Telfer sought a lower percentage and both parties 'eventually agreed' on 15%, which Mr Telfer 'said he would accept' (ts 260). Mr Knox accepted that this (pivotal) discussion, which allegedly took place at TDKJV's office, was never subsequently confirmed in writing (ts 205).
Mr Knox's evidence as to a subsequent implementation of this alleged variation agreement was that the mark-up would be applied upon Coli's invoices to Toll (ie, Toll's cost), consistent with a typical cost-plus arrangement (ts 205 ‑ 206).
The contended revised or varied pricing agreement of early February 2010 is heavily disputed by Mr Telfer and TDKJV. In the end, as I relate in the following context of considering the parties' documents, I am not left satisfied upon a contextual consideration of all of the trial evidence that there ever was perfected, via oral dialogue with Mr Telfer, any such revised or varied plenary costs plus 15% remuneration agreement favouring Toll, in the terms as contended for by Mr Knox and Mr Blignaut. Nevertheless, I am left satisfied, chiefly from the weight of documents and some concessions by TDKJV, that a pricing variation, increased beyond the levels provided for under the remuneration terms of the FC, was accepted by TDKJV, but that was only for the first voyage of the 'Beluga Elegance' to Henderson.
These considerations are canvassed in greater detail whilst examining the allied chronological documentary materials over the crucial February/March 2010 period.

Timing of the remuneration variation agreement

On the plaintiff's trial evidence the timing of the meeting(s) dealing with an alleged agreed remuneration change was uncertain. Mr Blignaut's written evidence was that he recalled being at TDKJV's office in Perth 'in late March 2010', after the first shipment, for a meeting with Mr Knox and Mr Telfer at which agreement was confirmed [Blignaut [123]]. However, under cross‑examination, it was demonstrable Mr Blignaut could not recall with any level of reliability when the meeting took place.
Mr Blignaut's cross‑examination as a whole exposed him as being unusually vague and unreliable as regards dates and happenings more generally. That was so notwithstanding that his witness statement read alone would have conveyed exactly the opposite impression, as regards a reliable remembering of dates and timings of events. That is not my finding. In short, I find Mr Blignaut's reliability as to timing of events to be very poor.
Mr Blignaut, after being pressed in cross-examination, eventually settled at suggesting that the meeting had occurred 'after the first voyage' (ts 257 - 258, 261). Mr Blignaut's witness statement was drawn so as to suggest that these discussions had taken place around 11 February 2010 ‑ but it did not identify any specific date [Blignaut [70] - [71], [123]]. Under cross‑examination he indicated a meeting at about 11 - 12 February 2010 (at which options over two or three vessel voyages, including an 'option A', were discussed) related to the first voyage, which was not the same meeting as a meeting at which a 15% mark-up for Toll was agreed (ts 263).
Confronted with his own email of 30 March 2010, in which he had indicated to Coli that he was 'in the process of reworking the costs for Will Telfer', Mr Blignaut was forced to accept that by that date no mark‑up had yet been agreed. He now indicated that the approach was being discussed at that earlier time (ts 262 - 263). None of this evidence is reliable. It will not be accepted. The trial documents I will come to are a safer repository for reliable fact finding around this sector.
Mr Blignaut emailed Mr Telfer on 31 March 2010 regarding revised costs for future shipments [Blignaut [103]], explaining that he was 'in the process of putting all the revised costs together to send through to you together with a justification/motivation to support this' (ts 278 - 279). Mr Telfer replied the same day [Blignaut [104]], in substance rejecting the revised costs set out, now expressly instructing Toll instead to 'continue with the contract scope of work without adjustment' (ts 280 - 281).
In his witness statement, Mr Blignaut indicated Mr Telfer's response had caused him concern as '[Toll] had previously advised [Mr Telfer] of the need to change the pricing in the contract based on TDKJV's changes to the Delivery Schedule and the scope of work' [Blignaut [105]]. Mr Blignaut was taken to this paragraph and to correspondence of 31 March 2010 in cross-examination (ts 278 - 283). Mr Blignaut could not satisfactorily explain why his evidence‑in‑chief was that changes in pricing had been 'previously advised', rather than 'previously agreed', especially given Toll's contention that at least a cost plus mark-up percentage charging scenario had been the subject of negotiation (ts 283).
Mr Blignaut would not accept that Mr Telfer's email was inconsistent with there having been agreed a 15% mark-up at this time (ts 281 - 282). Clearly it was. He instead described this correspondence as concerning an alternative solution to reduce TDKJV's costs (ts 281 - 282). Mr Blignaut responded to Mr Telfer on 1 April 2010 [Blignaut [105]]. Further correspondence ensued from 8 - 14 April 2010 [Blignaut [108] - [113]].

The 'scope' of the FC variation agreement

Whether or not a contended pricing variation agreement was concluded (which is an objective evaluation of law for the court), both Mr Blignaut (ts 260) and Mr Knox (ts 236) accepted in cross‑examination that it had not been reduced to writing. Nor could they point to a particular document or email under which a 15% (plus) mark‑up for Toll was said to be agreed. Mr Knox necessarily accepted that he understood the importance of agreements being reduced to writing. He could not explain why he did not talk to Mr Greg Steele, a Toll lawyer involved in arrangements with TDKJV, regarding drafting the written FC to properly record and document an (15%) altered pricing arrangement (ts 236).
Even Mr Crowley (who was much less directly involved in this carriage project, until the eruption of an almost inevitable invoice payment dispute much later in 2010) accepted, when cross-examined, that there was no correspondence agreeing to a 15% mark‑up for Toll. That was until his attention was drawn whilst in re‑examination to email correspondence passing between Toll and TDKJV later in the year and referring to a 'Toll margin' (ts 173 - 175, 184). That communication was well outside the relevant timeframe.
Mr Knox received a response from Mr Telfer to his email of 11 February 2010 described above (in which Mr Knox had set out vessel charter options A or B), with Mr Telfer specifying acceptance for TDKJV of the first of the options as set out by Mr Knox, labelled 'option A'. Cross‑examined, Mr Knox relied on this email to suggest Mr Telfer had thereby agreed to a cost plus arrangement. However, he was forced to accept the email exchange did not display any cost plus 15% mark‑up percentage (ts 227 ‑ 230).
Mr Knox accepted that the cost arrangements discussed in the email correspondence of 11 February 2010 only applied to the first shipment. But he said further that his 'understanding' was that this would apply for the second shipment as well, because the second shipment 'occurred in the same sort of manner in terms of a deviation from the schedule' (ts 229 ‑ 231). I do not accept that unconvincing rationalisation.
Mr Blignaut's evidence was that the full charter cost of the chosen vessel was US$535,000 per voyage (ie, from Coli to Toll) and that he had advised Mr Telfer of this cost as relating to future voyages - at least around 23 March 2010 [Blignaut [99]].
Under re‑examination Mr Blignaut identified different amounts, specified in the email correspondence, US$450,000 and US$535,000, as costs for the first voyage - depending on whether additional (third party) cargo could be secured (ts 289 - 291).
Mr Knox's evidence was that he and Mr Blignaut had (eventually) received advice from Mr Evans that Coli had been unable to secure any northbound cargo, due to late notice and delays from TDKJV. As a result, a full charter price of US$535,000 had to be charged to TDKJV [Knox [43]]. This was said to have been confirmed with Mr Telfer in correspondence of 11 - 12 February 2010 [Knox [43]].
Mr Blignaut further suggested, as was submitted for Toll, that acceptance of a 'full charter' arrangement, with a possible cost reduction through taking additional (third party) cargo, was accepted, in effect, by a TDKJV Shipping Advice (number 5), which he had received from Mr Telfer on 12 February 2010 (ts 291 - 292) [Knox [44] Blignaut [72]].

The inevitable invoice disputes

Mr Blignaut and Mr Knox received a letter to Toll from Mr Telfer dated 18 May 2010 (attached to an email with a timestamp of 17 May 2010 at 10.25 pm) expressing concerns that amounts invoiced to TDKJV had not been set out by reference to the pricing mechanism of the FC [Blignaut [118]]. This letter (given that it was clearly inconsistent with the TGF alleged pricing variation agreement) was the subject of detailed cross‑examination of TGF's witnesses (ts 231 - 233, 264 - 265). Mr Knox (ts 232) and Mr Blignaut (ts 264 - 265) accepted that the letter had not been responded to.
Mr Knox accepted it was greatly remiss of him to not respond to this letter despite its clear written contention that there was no general 'mark‑up margin' for Toll (TGF) ever agreed (ts 232 ‑ 233). He could not explain why Mr Blignaut did not respond (ts 235), despite Mr Blignaut allegedly having been heavily involved in the contended agreed to cost plus pricing. Mr Blignaut indicated that he could not recall being instructed by Mr Knox to respond (ts 265). But he said that, if instructed, he would have responded (ts 265). Mr Telfer's letter referred to a meeting between Mr Blignaut and Mr Telfer of 2.00 pm on 18 May 2010. Mr Blignaut accepted a meeting took place - but seeking to explain an absence of any reference to a 'mark-up' in his reply, suggested that only detention rates, rather than a cost plus mark‑up, were being discussed (ts 283).
Mr Blignaut and Mr Knox met with Mr Telfer and Mr Pulham on 24 May 2010 [Blignaut [120]]. Mr Blignaut's evidence was that Toll's invoices and full charter pricing of the vessel were discussed. The following day he sent an email to Mr Telfer and Mr Pulham setting out matters discussed [Blignaut [120]]. That email was explored during cross examination. Tellingly, Mr Blignaut could not explain why his email did not refer to a 15% mark‑up or seek to remind TDKJV of a previous agreement about the cost plus (15%) arrangement (ts 267 - 268). Mr Knox was also presented with Mr Blignaut's email under cross‑examination. He denied having seen it previously (ts 237). This evidence I assess as unconvincing.
Mr Blignaut identified in his witness statement an email he had sent to Mr Telfer and Mr Pulham on 2 June 2010, in which he had said, 'TPS proposes a Management Fee of 15%' [Blignaut [122]] (ts 269). That 'proposal' had been swiftly and bluntly rejected by Mr Pulham by his responsive email that day [Blignaut [122]]. Presented with this email exchange in cross‑examination, Mr Blignaut still insisted that the agreement for a 15% mark‑up had been reached, prior to the date of this email. He attempted to explain what was, for his contention, the very unhelpful above text within these emails, on the basis that 'Mr Pulham came into the communications right at the end' (ts 269 ‑ 270). But Mr Blignaut was forced to accept that if there was a perfected cost‑plus 15% arrangement, then he and Mr Knox would have known by that time of a misunderstanding as to the arrangement (ts 271 - 272).
Mr Blignaut had written his own responsive inline comments back into the email text of 2 June 2010, displaying Toll's view that an open book (cost-plus) approach was the 'easiest way to manage this'. Tellingly again, however, TDKJV's (inconsistent) comments were merely 'noted' by him, with Mr Blignaut acknowledging that he would resubmit pricing to TDKJV on a per module basis, using the freight costs as quoted (ie, meaning a use of the remuneration methodology of the FC and its schedules).
Mr Blignaut was taken back to this in re‑examination. But then he could not recall what 'freight costs' referred to (ts 288). Mr Blignaut appeared to accept he did not protest, as he might otherwise have been expected, if a 'cost plus' approach had already been agreed upon (ts 270 ‑ 273). This is another factor pointing against a contended plenary cost‑plus 15% variation agreement that TGF seeks to show.
In re‑examination, Mr Blignaut was also taken to correspondence of 18 August 2010 (following TDKJV's advice that the FC would be terminated after voyage six) at which Mr Telfer asked if a sum quoted for the final voyage was inclusive of Toll's 'margin'. Mr Blignaut had replied that it was referred to as demonstrating that the Toll cost‑plus mark‑up was openly understood as between the parties (ts 285). However, that communication explicitly refers to payment for a different vessel to the 'Beluga Elegance' (ie, the MV 'Mark C'), a possible chartering scenario which was never ultimately taken any further. It does not assist in advancing Toll's plenary contended cost plus 15% pricing variation to the FC agreement.

Scope and further discussion of alleged variation agreement

Mr Blignaut was shown his letter of 24 August 2010 to Mr Pulham seeking confirmation for voyage 6 at a 'revised Voyage Cost as advised to Will Telfer of USD 747,500.00'. He could not recall if that amount included a 15% mark‑up. He did not accept the 15% had been 'hidden' (as put to him by senior counsel for the defendants). Instead, he said that Coli's invoices were provided to TDKJV (ts 284).
Mr Blignaut's evidence also addressed issues that arose in loading and unloading the accommodation modules from the 'Beluga Elegance' vessel around the first shipment, and some associated discussions and correspondence with Mr Telfer and a contractor who had been handling the loading and unloading process [Blignaut [89], [93], [97] - [98]]. This seems to go only to the limited issue of detention costs which, in the end, I do not assess as being in contention as between the parties.

Double stacking of accommodation modules

Mr Blignaut said (prior to the FC) he had sought quotes from shipping lines and brokers based on advice by TDKJV that the accommodation modules could, as cargo, be 'double stacked' (ie, stowed on the vessel two‑high) [Blignaut [15]]. But as the project unfolded it became apparent that this was not possible, at least for the early modules to be transported.
Mr Knox's evidence was that he was not consulted by TDKJV over the design of the modules, and that the design of the accommodation modules was the responsibility of TDKJV and Siam Steel [Knox [46]]. Cross‑examined, Mr Blignaut affirmed - as formerly set out in his witness statement prior to objection - that double stacking issues were resolved for later shipments by modifications to the design following suggestions of London Offshore Consultants (a marine surveyor contractor of the shipping line handling stowage of cargo for Coli) (ts 278) [Blignaut [45]].

In his witness statement, Mr Blignaut indicated he had received advice from Coli regarding double stacking issues at the time that modules were being loaded for the first voyage, around 9 March 2010 [Blignaut [85]]. He contacted Mr Telfer about these issues on 10 March 2010 [Blignaut [93]]. However, under cross-examination Mr Blignaut accepted that Toll had been advised by Mr Geoff Leggatt of London Offshore Consultants on 21 January 2010 (ie, well prior to execution of the FC) that the accommodation modules could not be double stacked (at least without a modification to their design) (ts 275).
Under cross‑examination, Mr Knox said he only found out that the modules could not be double stacked after the FC had been executed. He could not remember at what point he was told, despite the email of Mr Leggatt (which had been sent to Mr Blignaut, not Mr Knox) (ts 242 ‑ 243).
In any event, Mr Blignaut had already noted in his witness statement, and both Mr Knox and Mr Blignaut accepted during cross‑examination, that the issue of double stacking (more correctly, the inability to double stack the accommodation module units in the holds of the 'Beluga Elegance') did not ultimately manifest as an issue of any real difficulty for the first voyage, due to the significant reduction in the number of accommodation modules as the cargo being shipped (ts 243 - 244, 277) [Blignaut [88]].
I would conclude, more broadly on the non-double stackability of modules issue, that the inability to double stack was never an issue of any inhibition to carriage at any point during the performance of the FC, across the six voyages of the 'Beluga Elegance', concluding in mid‑September 2010.

Assignment of the FC from Toll to TGF

The FC was initially entered between Toll and TDKJV. But it was assigned with the express consent of TDKJV to TGF. This happened as a result of a corporate restructure within the Toll organisation (ts 188) [Crowley pages 6 - 7, Knox [47] - [48]].
Mr Knox had emailed Mr Telfer about the assignment (which would require TDKJV's consent) on 22 February 2010 [Knox [48]]. It was accepted that in the following few days TDKJV's written consent to the assignment of the FC to TGF was signed off (by Mr Telfer for TDKJV) and returned to Toll.
Senior counsel for the defendants cross‑examined Mr Knox as to why, if (consensual) changes by way of deviation from the pricing structure under the FC had been perfected (ie, verbally with Mr Telfer) at around or before the time of the assignment, that such agreed changes to the FC's pricing arrangements were not formalised at the same time (ts 239). Mr Knox could not recall whether the Toll in-house lawyer involved in the assignment (Mr Greg Steele) had been involved in any discussions regarding the change to the pricing mechanism (ts 239). Mr Knox repeated that the assignment to TGF was purely for the purpose of giving effect to the Toll corporate restructure (ts 239 - 240). The response did not really blunt the force of the underlying proposition as put, which is powerful on my assessment.

Termination of the performance of the FC at the end of Voyage 6

Mr Blignaut said he attempted to follow up on issues, and held further discussions, with Mr Telfer from June to August 2010 [Blignaut [129] ‑ [137]]. Some of these discussions concerned (unpaid) invoices issued by TGF to TDKJV [Blignaut [129]]. As a result of these discussions Mr Blignaut arranged for replacement further (altered) invoices to be provided to TDKJV [Blignaut [130]].
The fresh invoices, which (save for voyage one) included a calculated and derived freight fee using the FC rate at US$2,892 per module freight charging methodology, as well as adding an 'ocean freight claim' extra component, were explored in trial evidence. For TGF, Mr Crowley explained that the total TGF invoice amounts to TDKJV (sometimes split across multiple invoices) represented a total cost to Toll, plus a 15% margin as claimed by Toll, on extra freight broken down by listing a calculated amount by the US$2,892 fee per module, but also claiming an extra freight amount balance, as a 'claim ocean freight amount' (ts 150 - 161, 169 - 171).
Mr Crowley's evidence was that he did not hold any immediate knowledge of the source of the module numbers which were used by TGF to determine the US$2,892 per-module fee as claimed. He was 'three levels away' from the TGF person who had actually created the invoices sent to TDKJV (ts 167 ‑ 168).
Mr Crowley denied that Mr Blignaut had said that TDKJV had requested invoices which conformed to the pricing methodology of the FC - although I find that to have been the case. Instead, Mr Crowley said that the TDKJV request, as communicated through to him, was only to show a unit rate (of US$2,892) in the invoices (ts 168). Pressed, Mr Crowley said that Toll had informed TDKJV 'in advance' this would be done (ts 171). He did not rely on the 'option A' February 2010 email from TDKJV (ts 173 - 175).
After further emails sent by Mr Blignaut to Mr Telfer, Mr Blignaut had received the TDKJV Shipping Advice (No 12) from Mr Telfer (dated 2 August 2010) in relation to the sixth (and last) shipment. But Mr Blignaut did not receive any communication from Mr Telfer regarding outstanding invoices until a phone call on 4 August 2010 [Blignaut [133] ‑ [137]].
Mr Knox's evidence was that he was not involved in invoicing issues until around July or August 2010 and that, overall, he was less involved in the TDKJV project (ie, than his state manager Mr Blignaut) after negotiating the first shipment (in early February 2010) [Knox [53]].
Mr Telfer sent a formal letter to Mr Knox and Mr Blignaut on 4 August 2010 in relation to the invoices [Blignaut [137]]. Much contentious invoice-related correspondence then ensued, without TGF's invoices ever being paid [Blignaut [138] - [141]]. Further TGF invoices relating to detention costs and bunker adjustment costs (which relate to fuel use by the vessel) were dispatched to Mr Telfer on 11 August 2010 [Blignaut [142]]. Mr Crowley said that the bunker adjustment factor was a fuel surcharge (ts 158).
Shortly after 13 August 2010, Mr Telfer advised Mr Blignaut that the sixth shipment would be the last under the FC. This was because TDKJV would be terminating the FC for convenience (as confirmed in writing on 16 August 2010) [Knox [49] Blignaut [144]]. Termination of the FC by TDKJV 'came as a shock' to Mr Blignaut [Blignaut [144]], and was a 'real shock' for Mr Knox, when so advised by Mr Blignaut [Knox [49]].
Mr Crowley learned of the FC's termination by another employee of a Toll group corporation [Crowley pages 7 ‑ 8]. He became involved in seeking the recovery of unpaid amounts, which ultimately have given rise to this litigation. Mr Crowley was shown, and commented upon, the disputed invoice correspondence of early September 2010 passing as between Toll and TDKJV [Crowley pages 8 - 9].

Global assessment of witness evidence

As now observed, this was a trial concerning a commercial dispute over money which has its genesis in events taking place some years ago now. Given that, in contentious factual areas, I prefer in the circumstances to afford a predominant weighting, from a reliability of evidence perspective, to contemporaneous and, here, plentiful, documentation that has emanated from the parties at the time - and which is not in dispute. The witnesses' evidence then is by and large of secondary weight as regards required findings of fact in truly contentious areas.
The chief area of dispute in the trial surrounds what is TGF's controversially alleged further agreement of 11 ‑ 12 February 2010, said to have been pleaded verbally between Mr Telfer for TDKJV and by Mr Knox (in the presence of Mr Blignaut) for Toll/TGF.
In this case I find that none of the trial witnesses gave evidence that I assessed as dishonest, deliberately misleading or deceitful. But nor was the submitted witness evidence uniformly reliable. Consequently, I have treated the evidence of Messrs Knox, Blignaut and Telfer with a good deal of caution in contentious areas. Those three witnesses I assessed as simply too 'rusted-on' over time to respective adverse positions for their controversial evidence to be accepted at face value. In disputed areas, the contemporaneous documents of the day provide a more reliable basis to resolve disputes of facts.
I assessed Mr Pulham's evidence for TDKJV as generally forthright and mostly reliable. He was only very faintly challenged under cross‑examination. Mr Sanzone's statement for TDKJV was admitted to evidence without need for him to be cross‑examined - but his brief evidence is of very marginal reliance.
Mr John Crowley was the first witness called for TGF. His seniority within the Toll group hierarchy distanced him from being in a position to render any real assistance towards the factually disputed areas of TGF's case. I would nevertheless accept the main area of his evidence at trial ‑ about which he was strongly challenged - to prove TGF did actually incur the expense of meeting Coli's invoices.
Coli's invoices issued to TPS were rendered in US dollar amounts. Mr Crowley explained, in effect, that arrangements were made for a corporation within the Toll organisation that enjoyed access to the use of a US dollar bank account to actually remit due funds to Coli, after its invoices had been internally approved for payment. The corporation remitting the funds was Toll - see exhibit 1.3.104. It is clear that Coli was paid in respect of all the invoices it rendered to TPS for the six voyages of the 'Beluga Elegance'. Toll had remitted the funds in US dollars to Coli. Toll needed in turn to be reimbursed by TGF, in Australian dollars. I find that it was. This process was achieved by using journal entries between Toll corporations. As an example, see exhibit 1.6.338 for the amount of AUD347,720.50 at 5 March 2010, as a debit amount.
I am satisfied that the journal entries Mr Crowley mentioned (headed TN‑Toll International Pty (OIX)) are those for the plaintiff, TGF. TGF, in effect, reimbursed a Toll corporate entity in return for remitting US dollar funds to Coli - to ultimately discharge TGF's underlying debt to Coli. A failure by TGF to produce at the trial the corresponding ledger or journal showing a receipt by Toll from TGF of the AUD reimbursement amount ‑ does not inhibit a conclusion, on the balance of probabilities, which is also based on accepting Mr Crowley's evidence in this collateral arena of controversy, to show TGF, in effect, suffered the expense of ultimately meeting all Coli's invoices, implemented via the Toll corporate group's internal processes for payment and reimbursement as between Toll Group corporate entities. I reject the defendants' arguments as to the alleged lack of sufficient proof upon this issue. The plaintiff's evidence satisfies me on the balance of probabilities in this area.
Before proceeding to examine the trial documents, it is necessary to divert to examine a few more specific contractual provisions in the FC. After that diversion, I will revert to discuss and assess the more significant documentary evidence found in the trial - adduced under six lever arch files, together representing the parties' bundle of agreed documents ‑ which became exhibit 1 (ie, exhibits 1.1 to 1.6 as per each lever arch volume).

The Freight Contract of 28 January 2010 as entered between Toll and TDKJV (exhibit 1.3.68)

The FC (found in the parties' agreed trial bundle, vol 3, tab 68, pages 846 - 869) bears the inserted date 28 January 2010 at its commencement. It is expressed as being entered between Thiess Pty Ltd, Decmil Australia Pty Ltd and Kentz Pty Ltd (as the Thiess Decmil Kentz Joint Venture) (referred to as 'Company') and Toll Transport Pty Ltd (trading as Toll Global Resources) - referred to in the agreement as 'Carrier'.
Two commencing recitals to the FC respectively provide:
A.(TDKJV) has entered into the head contract with the Principal (identified subsequently in Schedule 1 particulars of contract as Chevron Australia Pty Ltd on behalf of and as joint venture operator of the owner group comprising Chevron, ExxonMobil and Shell) to perform the works more particularly described in that contract. [The term 'head contract' is also defined in part A of the Conditions of Contract (see cl 1.1 re definitions and interpretations) as meaning 'the contract between the Principal and the Company described in schedule 1 particulars of contract. The third item identified under Schedule 1 'particulars of head contract', says 'design and construction of the Schedule 1 Gorgon construction village with associated infrastructure on Barrow Island WA'.]
B.(TDKJV) has purchased the Goods from the Supplier for the purposes of the Head Contract.
…
The term 'Head Contract' has already been identified. Likewise, the terms 'Goods' and 'Supplier' are respectively explained and identified under Part A of the Conditions of Contract. 'Goods' means 'the Accommodation Units and other related items in relation to which any part of any Services have been or are to be performed and any receptacle, container, package, packaging or item in or on which they are contained or with which they are stored or handled'. The term 'Supplier' is also identified by cl 1.1 of part A of the Conditions of Contract as 'the Company's contractor who has been contracted to supply the accommodation units'.
For completeness, the term 'Accommodation Units' is expressly defined as 'the accommodation building modules and containers supplied by the Company to the Carrier for the purposes of the performance of the Services, as more particularly described in Schedule 5 (Accommodation Units and Delivery Schedule)'.
The term 'Services' is also defined in the FC as 'the whole of the operations provided by the Carrier for the Company as more particularly set out in schedule 4 (scope of works)'.
Recital C to the FC then reads:
[TDKJV] and the Supplier entered a Supply Contract on a 'Free on Board' basis.
[The term Supply Contract is also defined in part A of the Conditions of Contract via par 1.1 as 'the contract between the Company and the Supplier for the supply of the Accommodation units'].
Recital D provides:
The Carrier [Toll] submitted to [TDKJV] an offer to perform the Services of the Contract.
The fifth (last) recital of the FC, provides:
[TDKJV] has accepted [Toll's] offer to perform the Services on the basis of the rates set out in Schedule 2 (Schedule of Prices) and the parties desire to evidence their agreement.
The five FC recitals provide some level of surrounding, introductory context to the substantive FC provisions of the parties' agreement, which follow.
As constituted, the substantive provisions of the FC as a contractual instrument consists of (as identified by cl 1.1) only three substantive clauses. The balance of the FC is appended.
The substantive clauses provide:
IT IS AGREED:
1.The Contract
1.1The following documents together comprise the Contract:
1.1.1this Instrument of Agreement;
1.1.2Schedule 3 - Special Conditions;
1.1.3the Conditions of Contract; and
1.1.4Schedule 1, 2, 4, 5, 6 and 7.
1.2If there is any ambiguity, inconsistency or conflict between the provisions of any of the documents referred to in clause 1.1 then unless otherwise stated, the documents take precedence in the above order except to the extent that any provision of the Contract imposes upon the Carrier a higher standard, quality, level of service or quantum than another provision of the Contract, in which case the higher standard, quality, level of service or quantum must apply.
1.3The Contract constitutes the entire, final and concluded agreement between the Parties. It supersedes any previous arrangements, correspondence, tenders, representations, proposals, understandings and communications, whether oral or written.
1.4Any word or expression used in this instrument of Agreement has the same meaning as defined or otherwise used in the Conditions of Contract.
2.The Contract Sum
In consideration of the due and proper performance of the Contract by the Carrier, the Company agrees to pay the Carrier the rates set out in Schedule 2 (Schedule of Prices) in accordance with the Contract.
3.The Company's Reliance
The Carrier has represented to the Company that it has the necessary skill, personnel and equipment to perform the Services under the Contract and acknowledges that the Company has relied upon this representation in entering into this Contract.
The separation of schedule 3 from the other FC schedules is explicable ‑ by cl 1.2 which provides for a hierarchy of precedent, as between the constituent components of the Contract - in the event of ambiguity and consistency or conflict as between various FC provisions.
Clearly, the whole of the FC is important. Uncontroversially, from an interpretation perspective, its individual clauses and components all need to be sensibly interpreted in their overall global commercial context.
For convenience of reference, I will append to these reasons schedules 2 and 5 of the FC which are found respectively at pages xxvi and xxxii (respectively pages 861 and 867 of the paginated exhibits).
At FC schedule 2 (Schedule of Prices) (referred to in recital E above), two critical pricing criteria can be identified. First, a rate for payment is seen stipulated under Item 2, for 'sea freight of modules and FEU containers'. This is the identified unit amount of 2,202 units, plus a per unit rate of US$2,892.00 - culminating in a contract value, exclusive of GST, of US$6,368,278.00 (ostensibly derived by the arithmetic multiplication).
The second key item to note is the level set as applicable for demurrage costs (Item 7) at a specified daily rate of US$17,500 per day, only.
[For completeness, I point out that there is an observable reference made to a so-called cl 26, which is to be found under the heading 'Schedule of Prices'. However, I could identify no cl 26 anywhere within the constituent components of the FC (see also ts 219 where senior counsel for the plaintiff faced a similar quandary). There is no cl 26 of the Conditions.]
The FC's Conditions of Contract Parts A through G encompass, together, some 22 clauses. TDKJV puts some emphasis upon the force of cl S2.1.1, found within schedule 2. This clause says that the 'description of quantities and rates in this Schedule do not form part of the contract', being 'included in the Schedule for the sole purpose of assisting in the valuation of progress payments under cl 10 of the Conditions of Contract'.
Likewise subcl S2.2.2 says 'quantities in this schedule do not form part of the contract. They are estimated only and are inserted in this schedule for the sole purpose of establishing the approximate value of the Services to be performed under the contract'.
The other schedule from the FC that I have appended to the reasons is schedule 5. It provides under the heading of 'Accommodation Units and Delivery Schedule', a series of four columns showing, respectively:
Column A - estimated date of handover of Goods to the Carrier at the Port of Departure.
Column B - estimated number of Building Modules (aggregate 2,012).
Column C - estimated number of Standard FEU Containers or Flat Racks (roofing materials, fixing, loose furnishings etc) (aggregate 180).
Column D - a cluster reference identifying some 10 clusters C1 through C10 with the breaking into two clusters of C1.
As will be seen from the schedule 5 column A, the estimated date for the commencement for what were to be 11 handovers of goods to the carrier at the port of departure, spanned the period commencing 6 January 2010 culminating with an 11th (ie, last) handover of goods (constituting the total estimated number of building modules) at 15 October 2010.
The two schedules (2 and 5) of the FC are particularly important as regards Toll's remuneration entitlements under the FC. Their constituents feed into the aggregate FC remuneration structure as agreed between Toll and TDKJV, by application of the provisions of the FC.

(a) Clause 2

By reason of their overall structural importance, I would specifically identify the nine particular clauses of the FC as mentioned below.
From within the formal instrument of agreement itself, under a heading 'The Contract Sum' cl 2 in terms says:
In consideration of the due and proper performance of the Contract by the Carrier, the company agrees to pay the Carrier the rates set out in Schedule 2 (Schedule of Prices) in accordance with the Contract.
I would make two observations about FC cl 2.
First, in terms of an overall hierarchy of importance, it is located within the formal instrument of agreement. Hence it is afforded a high priority, as designated by cl 1.2 in the event of ambiguity, inconsistency or conflict against provisions in other parts of the FC. Second, this is the second observed reference to FC Schedule 2 (following on after that schedule was referred to in Recital E) as mentioned above. It is apparent Schedule 2 itself receives an elevated importance within the overall structure of the parties' FC bargain.

(b) Clause 3

Also located within the formal instrument of agreement is cl 3. It appears under the heading 'The Company's Reliance' and says in terms:
The Carrier has represented to the Company that it has the necessary skill, personnel and equipment to perform the Services under the Contract and acknowledges that the Company has relied upon this representation in entering into this Contract.
Clause 3 is significant. It acknowledges as part of the parties' formal instrument of agreement the acknowledged expertise of Toll, effectively as an international sea carriage carrier - and noting the definition of 'Services' in part A of the conditions of contract by reference to the 'whole of the operations … set out in Schedule 4, which is the scope of works (see pages xx and xxi, pages 865 ‑ 866 of the trial book). In particular, see from page 866 under the heading 'Scope of Work - Generally' the following:
Transportation of prefabricated accommodation building modules and FEU containers (or FEU flat racks) from the Port of Sri Racha, Thailand to the Chevron Supply Base (CSB) in Henderson WA.
Co-ordinate and accompany the pre‑inspection of cargo by AQIS inspectors at both Siam Steel's fabrication yards and at the port.
Shipping of modules and associated sea‑containers to land at either Scenario A) Port of Fremantle or Scenario B) Australian Marine Complex in Henderson WA.
…
Trucking to laydown at the Chevron Supply Base (CSB) within the Australian Marine Complex (AMC).
76 modules (type E2). The Carrier is to transport these units to an alternate Henderson location for further works. Unloading is to be undertaken by the Carrier.
Access to vessel shall be provided for inspection of cargo placement and module securing by TDKJV Representatives (including our insurance representative as requested).
The sea carriage of goods expertise of the Toll Group of Companies as an international carrier was always accepted as uncontroversial in this trial. That is another pre‑existing surrounding circumstance providing context to the FC, at 28 January 2010. Mr Crowley, General Manager of Project and Resource Logistics, by his witness statement (which became exhibit 3), between pars 8 through 10 addressed this issue in terms I accept:
8.Within the Toll Group of Companies are six operating divisions and within those divisions are various businesses which specialise in the provision of logistics, transport and warehousing services.
9.The six operating divisions within the Toll Group of Companies are Toll Global Express, Toll Global Logistics, Toll Global Resources, Toll Domestic Forwarding, Toll Specialised and Domestic Freight and Toll Global Forwarding ('TGF Division').
10.Each operating division has a speciality in providing services. The TGF Division of which, as stated above I am the general manager of Project and Resource Logistics within the TGF Division, specialises in services for international freight forwarding.
Toll's unquestioned and widely known expertise as a carrier of goods may be accepted as one more relevant surrounding circumstance known to each party prior to the entry of their FC agreement. Toll was part of a large corporate group organisation specialising in providing the service of international freight forwarding.

(c) Key definitions in the Conditions of Contract of the FC

Third, I move to the second component of the FC, namely the Conditions of Contract (seen as third in the cl 1.1 hierarchy, ranking after the instrument of agreement and the FC's schedule 3 Special Conditions). Definitions provided under cl 1.1 of the Conditions of Contract are important. I have mentioned some already. Others of importance, but which I do not pause to elaborate over, include the definitions for 'Date for Delivery, 'Delivery', 'Goods', 'Gorgon Project', 'Handover Date', 'Law', 'Laycan Period', 'Port of Departure' and 'The Services'.

(d) Condition 4.1.3

The next clause I extract to highlight from part C of the Conditions of Contract as regards 'The Services', is cl 4.1.3. It provides:
The Carrier [Toll] warrants that it has and is deemed to have
4.1.3satisfied itself as to the accuracy and adequacy of its examination of the information it has been given and that Schedule 2 (Schedule of Prices) covers the cost of complying with all the obligations of this Contract and of all matters and things necessary for the due and proper performance and completion of the Services.
I pause to observe that there is now a further reference seen to Schedule 2 (Schedule of Prices), now in a context of Toll's warranty, that it satisfied itself about the adequacy of the prices stipulated under Schedule 2 in the schedule of prices. By this litigation, Toll/TGF would seek to distance itself somewhat from the force of that promise by warranty.

(e) Condition 6.4

The next clause of the FC to which I render a specific reference is found under Part C, as cl 6.4.
Its importance relates to the capacity of the FC carrier (Toll) to claim for payment what is known in shipping and carriage circles as 'dead freight'. In broad terms, that expression allows the carrier of goods to be substantially paid after properly presenting the ship at port for loading, even though the anticipated number of units of cargo presented has proven less than had been anticipated or nominated.
A dead freight scenario might see a shipper of goods rendered liable to pay the full transport costs for a cargo - when the cargo, in the end, is not actually carried. The commercial analogy to a 'take or pay' clause concerning the purchase of commodities is strong.
Condition 6.4 in the FC's Conditions of Contract presents here as an elaborately constructed clause. It was requested only by Toll's representatives before the FC was finalised and inserted into the parties' end FC agreement as an aspect of an elaborate negotiation of various FC draft iterations, which passed back and forth as between the parties and their lawyers over a period of about seven to eight months, before a culmination of negotiations at 28 January 2010, upon the execution of the last iteration of the FC.
From a contractual construction perspective, the significance of this dead freight clause finally emerging as a part of a long negotiating process over time leading up to final agreement, is zero. The FC's terms essentially speak for themselves. They are assessed (in context) objectively by the court. Subjective purposes of the parties underlying the reasons for such a clause are irrelevant to interpretation. However, this litigation is run on a basis of broader claims than relief in pure contract. Toll also invokes asserted misleading and deceptive conduct, alleged unconscionable conduct by TDKJV, and also raised various pre‑contractual misrepresentations. In a context of that wider relief, the emergence of the dead freight clause, which was asked for, bargained over and finally obtained by Toll, becomes relevant.
The presence of a (95%) dead freight clause in the parties' ultimate FC bargain afforded Toll, as carrier under the FC, the opportunity to claim a 95% payment from TDKJV for dead freight cargo scenarios (as appears to have arisen from time to time) - where the anticipated number of accommodation units made available as cargo for transport turned out, in the end, not to be at the quantum as had been anticipated under the Column B levels for the estimated number of building modules, or the Column C levels for ancillary carried materials.
Parts of FC subcl 6.4 provided:
The Parties acknowledge that the Goods are to be transported by the Carrier from the Port of Delivery in clusters as set out in Schedule 5 (Accommodation Units and Deliver [sic] schedule). The Parties agree that the process of transportation of the Goods from the Port of Delivery will be as follows:
6.4.1No later than 60 days prior to each Handover Date, the company must provide the carrier with an estimate of the number of Accommodation Units which will be provided with the Carrier in the relevant Laycan Period and an estimate of the commencement date and expiry date of the Laycan Period in relation to the relevant cluster of the Accommodation Units.
6.4.2No later than 30 days prior to the relevant Handover Date, the Company must provide the Carrier with the actual number of Accommodation Units (the 'Actual Units') which will be provided to the Carrier in the Laycan Period and the actual commencement date (the 'Laycan Start Date') and expiry date of the Laycan Period in relation to the cluster provided that
(a)the number of Actual Units must be no less than 95% (rounded up in the event of any part unit) by number of the number of units specified for the relevant shipment in Schedule 5 (the 'Specified Units'). In the event that the number of Actual Units is less than 95% of the Specified Units the shortfall in units will be treated as a dead freight event in accordance with clause 6.4.5;
(b)the number of Actual Units must be no greater than 272;
(c)the Laycan Start Date must be no earlier than the estimated commencement date of the Laycan Period specified in the relevant notice given under clause 6.4.1;
6.4.3The Carrier may commence loading of the Goods onto the vessel at any time during the Laycan Period.
6.4.4If the Company does not provide the Carrier with the Actual Units within a Laycan Period specified in clause 6.3.2, the Carrier may charge and invoice the Company on the basis that the services had been performed in relation to the estimated number of Accommodation Units specified in Columns A and B of Schedule 5 as well as any dead freight or overtime charges, losses, costs and expenses incurred by the Carrier.
6.4.5Should a dead freight event occur as specified in Clause 6.4.4, the valuation of the event shall be based on the net shortfall of Goods units not delivered multiplied by the sea freight rate (Payment Schedule Item 2).
The workings of this 95% dead freight clause, favouring Toll/TGF, were not a matter of dispute as between the parties at the trial.
In short, therefore, had there been the expectation by the carrier, by reference to FC Schedule 5, of a voyage cargo comprising of 212 accommodation units made available for shipping at a particular date within the specified period for their availability at the Port of Sriracha, but due to many factoring problems (again, hypothetically), no goods had been presented, the carrying vessel might nevertheless set sail from port without any cargo, but TDKJV nevertheless exposed to paying Toll for 95% of the units, at the rate under Schedule 2 Item 2, namely at US$2,892 per unit, under the workings of subcl 6.4.4 and subcl 6.4.5.
Mr Pulham, operations manager in WA for TDKJV, gave evidence about this issue at the trial. At par 71 of his witness statement (which became exhibit 7A) he referred to two annexures to his statement, BP1 and BP2 (BP2, significantly enlarged, became exhibit 7B).
Mr Pulham's attachment BP1 had identified dead freight amounts he calculated across six voyages of the 'Beluga Elegance', which transported building modules or containers. In BP1 it is asserted without elaboration that dead freight amounts had been levied by Toll to TDKJV in respect of all voyages. Mr Pulham was not cross‑examined at all about annexures BP1 and BP2 to his witness statement. I find BP2 to be a more comprehensive and intelligible working document. Whilst I am not able to completely reconcile the dead freight qualification amounts as seen in BP1 with BP2, nevertheless I conclude that TGF did exercise a contractual right to seek dead freight payments from TDKJV under the FC, for all six voyages.

(f) Condition 10

As regards the basis for remuneration of the FC's carrier (Toll), of some significance is the methodology upon which Part D of the FC's conditions of contract deals with the issue of payment to the carrier. This is by cl 10, in terms:
10.1The sum payable to the carrier for the provision of the Services will be determined on the basis as stated in Schedule 1 (Particulars of Contract).
10.2The carrier must execute the services and perform its obligations under the Contract and the Company must pay the Carrier:
10.2.1in relation to any lump sum component, the charges relating to the lump sum component (as set out in Schedule 2 (Schedule of Prices)) when the relevant part of the Services is completed; and
10.2.2in relation to any schedule of rates component, the sum ascertained by multiplying the measured quantity of each section or item of Services performed by the corresponding rate for the section or item (as set out in Schedule 2 (Schedule of Prices)).
The reference seen under subpar 10.1 to the amount payable that is determined as stated on the basis as stated in Schedule 1, calls attention to pages xiv and xv (pages 859 and 860 of the Trial Bundle) and to the item specified in the left‑hand column of that schedule as the 'basis of payment' (Clause 10.1), with reference to the following adjacent notation 'Schedule of Rates have lump sum components'. Reference to the schedule of rates appears to be a reference to Schedule 2 and its accompanying 'Schedule of Prices'. That displays a logical resonance with the ensuing content of subcl 10.2.1 - which explicitly refers to Schedule 2 as regards any lump sum component.
From Schedule 2 (which I have attached) it can then be seen by reference to the unit column that Items 1 and 4 designate a lump sum. By contrast, Items 2, 5 and 6 identify a per‑unit payment scenario with a designated unit rate. Note also the preface clause S2.2.
Item 3 under Schedule 2 identifies, by contrast, a (confined) cost‑plus percentage charging methodology. We have already seen that Item 7, as regards demurrage costs, specifies a rate of US$17,500 per day.
The basis for Toll's future payments as carrier under the FC's remuneration provisions, presents in structure therefore to be elaborately specified under cl 10 of Part D of the Conditions of Contract.
There is also an equally elaborate specified invoicing regime laid down in order for Toll to receive progress payments, culminating at subcl 10.7 - which would appear to replicate a scenario somewhat akin to that under a construction contract - open for readjustments in final payment obligations to be made at the end of a service provision period, albeit as submitted progress payment invoices may have been met in full prior to that. Such payments are effectively interim in nature until a finalised reckoning at the end of the performance period of the contract.

(g) Condition 12.3

Within Part E of the Conditions of Contract under a heading, 'Termination for Convenience', is cl 12.3.
It provides:
12.3Without prejudice to any of the Company's other rights, entitlements or powers under the Contract, the Company may at any time by written notice to the Carrier, effective 30 days from its receipt by the Carrier or such other time (being greater than 30 Days) as stated therein, terminate the Contract:
12.3.1for any reason stated in Schedule 1 (Particulars of Contract); or
12.3.2 …
and thereafter either itself or by a third party may complete the uncompleted part of the services.
By reference to FC Schedule 1, again see the Particulars of Contract under the item 'Reasons for termination (cl 12.7.1 [sic])', which is specified as 'for the Company's sole convenience'.
There is no dispute between the parties in this litigation that the future performance of the FC was the subject of a termination notice by TDKJV to TPS, on 16 August 2010 (exhibit 1.5.264). The FC under that notice was ended as to its future performance, as from TGF's completion of shipment number 6.

(h) Conditions 14.5 and 14.6

The next clauses I highlight from the FC appear under Part F of the Conditions of Contract (pages x and xi of the FC, under the heading 'Time').
Relevantly found, in this context, are subcl 14.5 and subcl 14.6, under the heading 'Extra costs'. In short, they provide scenarios pursuant to which the carrier could claim cost payments from TDKJV, arising by reason of delays.
In particular, cl 14.5 and cl 14.6 provided:
14.5If the Carrier has incurred or is reasonably likely to incur extra cost, loss, expense or damage arising out of or in connection with any delay, it must (in addition to any other notices and submissions required under clause 14):
14.5.1promptly but in any event not later than the period stated in Schedule 1 (Particulars of Contract) (or if no period is stated within 5 Days) after the Carrier becoming aware of the costs being incurred or being reasonably likely to be incurred give written notice to the Company of the delay together with an estimate of the amount of extra cost, loss, expense or damage likely to be incurred;
14.5.2not later than the period stated in Schedule 1 (Particulars of Contract) (or if no period is stated within 5 Days) after giving the notice required by clause 14.7.1 [sic], submit a written claim to the Company including detailed particulars of the cause, the extent of the delay (and the further length or expected length of the delay) and the amount of any cost loss expense or damage incurred up to the date of submitting such claim, all other facts on which its claim is based and such other information as the Company may request; and
14.5.3if the effects of the delay continue beyond the date of submitting the claim pursuant to clause 14.7.2 and the Carrier wishes to claim any cost, loss, expense or damage in respect of the further effects of the delay, submit a further written claim to the Company containing the information required by clause 14.7.2, every 28 Days after submitting the claim pursuant to clause 14.7.2, until the end of the effects of the delay.
14.6To the extent permitted by law, the Company will not be liable on any Claim for cost, loss expense or damage arising out of or in connection with any delay unless:
14.6.1the Carrier has strictly complied with all the requirements of clause 14.5;
14.6.2the delay has caused the Delivery to be delayed; and
14.6.3the Company has granted the Carrier an extension of time to the Date for Delivery in accordance with clause 14.3; and
14.6.4the delay is caused by:
14.6.4.1a breach of the Contract by the Company; or
14.6.4.2 …
14.6.4.3 any other cause of delay costs nominated in Schedule 1 (Particulars of Contract), which is beyond the control of the Carrier.

(i) Condition 16

By Part G of the Conditions, under a heading 'Non waiver and amendment', are subclauses 16.1 and 16.2. They provide:
16.1Any waiver or relaxation by the Company partly or wholly of any term or condition of the Contract is valid only if in writing and signed by the Company. Any such waiver or relaxation is restricted to its written terms and unless expressly stated otherwise applies to a particular occasion only, is not continuing and does not constitute a waiver or relaxation of any other term or condition.
16.2The Contract can only be amended, modified, varied, released or discharged by written agreement of the Parties.

This clause bears upon evaluating TGF's arguments about contractual variations or modifications to the FC payment arrangements. That prospect, as seen, had been elaborately specified for by the FC. It is not suggested that FC cl 16 would prevail against clear contrary evidence. Nevertheless, subcl 15.1 and 16.2 provide an indication of the formality that prima facie is required concerning a permitted departure by a contractual variation departing from or modifying the settled express terms of the FC.

(j) FC cl 1.3

The last FC clause I highlight is the entire agreement and no representation clause found within the FC, as a part of the instrument of agreement (subcl 1.3):
1.3The Contract constitutes the entire, final and concluded agreement between the Parties. It supersedes any previous arrangements, correspondence, tenders, representations, proposals, understandings and communications, whether oral or written.
This subclause, of course, does not provide any impenetrable barrier against claims, against all pre-contractual misrepresentations. That is particularly so, concerning claims are advanced under non‑excludable provisions of the enactment formerly titled the Trade Practices Act 1974 (Cth), part V, or its subsequent manifestations found within the Australian Consumer Law.
Nevertheless, the pervading objective sentiment of attempted finality of bargain limited to the four corners of the FC document is delivered by this clause. The FC, as is clear, was conceived in a context of an elaborately negotiated bargain, which took months of gestation to perfect. The parties were handsomely resourced corporations, one of which is a specialist in international carriage, assisted by legal advisers on both sides. That feature of these parties' commercial bargain is inescapable, and is to be properly acknowledged, in contrast, for instance, to a consumer contract or a pure contract of adhesion.
The FC, in excluding prior correspondence and representations and proposals prior to culmination, manifests another factor to be weighted, in terms of assessing TGF's arguments concerning levels of alleged unconscionable behaviour it puts against TDKJV, both prior to, and then after perfection of the FC.
At the conclusion in this section, it is convenient to mention again the uncontroversial fact that some time shortly after this FC was executed between the parties there was a request by Toll for the FC to be assigned to TGF: see exhibits 1.3.95 and 1.3.98. At 25 February 2010, TDKJV gave its consent to that assignment of the FC to TGF. There is significance in the fact that, viewed objectively, the FC remained on foot as between the parties, being recognised as the parties' governing instrument - to the point of requiring a formal assignment with TDKJV's consent at this time to TGF.
That needs to be evaluated to stand against TGF's contentions that, in effect, there had by then been a variation agreement or new arrangement, pursuant to which TDKJV had verbally agreed to depart from or vary the FC's remuneration arrangements, by verbal arrangements concluded with an individual employee acting for TDKJV. This variation is said to have been the work of Mr Telfer, some time during early February 2010.
Before I turn back to assess the parties' assembled trial documentation under the Trial Bundle I will briefly attempt at the next section to crystallise what has by now emerged as the key issue (and its sub‑issues) arising as between the parties, requiring the court's factual and legal evaluation. A focus upon that issue and associated sub‑issues will assist in my following examination of the parties' documentation.

The fundamental issue arising as between TGF and TDKJV and associated sub‑issues

There was a clear underlying contractual relationship, delivered by the FC on 28 January 2010, consummated as between Toll and TDKJV, then, assigned in February 2010 with TDKJV's consent to TGF. The FC governed the parties' relationship until terminated for convenience by TDKJV at the conclusion of the sixth shipment under notice given on 16 August 2010. None of that is in dispute.
The real issue of contention is whether or not TGF holds an entitlement to receive either further payments, compensation, remuneration or indemnification from TDKJV beyond the level or levels which TGF is otherwise contractually entitled - on a pure application of the text of the FC. If the answer to that question is 'No', then it is accepted that TGF's claim (framed in alternate ways for financial relief beyond or outside the remuneration provisions of the FC) must fail.
The key issue was candidly posed by senior counsel for TGF during opening submissions. Mr Colbran QC said (see ts 15):
What we say, your Honour, is this, that over the period of the six shipments that occurred before the contract was terminated, we did a lot of work that was quite different from that that was anticipated and we paid a lot of money to Coli for the ships that did the work, that carried the stuff that [TDKJV] continually said they wanted carried. The contract provisions, in the circumstances that have turned out, do not come close to providing proper payment for what was done. …
So what - just looking at what has been paid out by us to Coli compared to what has so far been paid, we're about 400,000 out of pocket, that's out of pocket. But actually Toll is - does this work in order to make something out of it - so we - not only did we not make anything, we are actually out of pocket on what we had to pay Coli …
…
Ultimately the only point that divides our learned friends and us, I think, is whether or not the contract provisions continued to apply. The contract provisions as to pricing continued to apply to what was done. If they did - if your Honour concludes that they did, then we lose. If your Honour concludes that the contract provisions as to pricing did not continue to apply, then I don't think our learned friends deny that we are entitled to additional remuneration, whether it's done on a quantum meruit basis or an unjust enrichment basis …
Hence, right from the opening of TGF's case there has been consensus, that unless TGF can somehow escape the regime of the FC's remuneration provisions, that TGF has, at this point, received all the remuneration it may legitimately extract from the FC's provisions, so that its quest by this action for further funds from TDKJV must fail.
In terms of sub‑issues which emerge from that key point of disputation between the parties, it is apparent that the emphasis of the plaintiff's opening submissions, both in writing (dated 13 April 2015) and by senior counsel on day 1 of the trial (4 May 2015), was to seek restitutionary relief.
I merely identify the emerged sub‑issues which arise very briefly as follows:
•Sub-issue 1:   Quantum meruit as restitutionary relief
•Sub-issue 2:   Pre-contractual representations allegedly made by TDKJV to Toll
•Sub-issue 3:   Alleged contractual variation to the FC concerning the basis of charging and remuneration for Toll/TGF, altering or alternatively a new freight contract being entered into (pars 65 and 69 of TGF's statement of claim)
•Sub-issue 4:   Breach of the Trade Practices Act by 'full charter representations', par 77 statement of claim
•Sub-issue 5:     A cause of action based on 'estoppel'
•Sub-issue 6:     Statutory unconscionable conduct (s 51AA of the Trade Practices Act 1974 (as amended)
I return to these sub‑issues at the end of these reasons to address their resolution in turn. At this point, however, I return to the parties' documentary evidence.

Findings of fact by reference to the trial documents considered chronologically

As now seen, the core underlying facts surrounding the litigation are established.
The FC was negotiated between well‑resourced, commercially astute and sophisticated parties over time with legal assistance on both sides.
The FC was finally consummated on 28 January 2010, between TDKJV (referred to as the Company) and Toll (which was referred to as the Carrier).
Schedule 5 to the FC specified, under column A, 'estimated' dates of handover of goods for carriage by sea at the port of departure. Eleven shipments can be seen to be contemplated across a period commencing 6 January 2010, culminating at an eleventh shipment, being estimated as ready for hand over at 15 October 2010.
From Schedule 5, there is an estimated number of building modules (accommodation units) across those 11 shipments amounting to some 2012 units.
Well before the FC was executed it was apparent that TDKJV's contracted Thai manufacturer of the accommodation modules was running significantly behind schedule, in terms of producing enough accommodation units for a load to be carried by a ship. It was said by TDKJV that after initial delays the shipping programme might then catch up. But there was significant uncertainty about a reliable shipping timetable and the availability of sufficient units to make up a load for a ship to transport from Sriracha to Henderson.
By the time the FC was signed off, on 28 January 2010, the first estimated date under column A for FC sch 5 (6 January 2010) was already well gone. That sch 5 FC timeline was known on all sides to be delayed. In fact, a first shipment of what apparently turned out to be only 81 units (46 modules, two containers, 29 packages and four ramps: see exhibit 1.3.110) only sailed aboard the 'Beluga Elegance' from Sriracha as late as 15 March 2010.
Shipments were, in the end, all made utilising the vessel, 'Beluga Elegance', which had been arranged for Toll (TGF) by its shipping agent, Coli.
On 25 February 2010 (see exhibit 1.3.98), the FC was assigned from Toll to TGF, with TDKJV's consent.
By early August 2010 a fifth shipment of modules departed Sriracha for Henderson. In contrast to the estimated handover dates under column A of sch 5 of the FC, by then, the eighth scheduled shipment ought to have been leaving.
Around May 2010, TGF began to render to TDKJV the first of its invoices seeking payment from TDKJV. That immediately resulted in issues being raised over pricing for the carriage service which had been provided.
On 16 August 2010 (see exhibit 1.5.264) notice was given by TDKJV of a unilateral termination for convenience of future performance of the FC. This cessation was to be implemented at completion of shipment number 6 (recalling that sch 5 column A contemplated a total of 11 shipments, over the period between 6 January and 15 October 2010). The termination would happen after barely half the number of voyages anticipated by sch 5.
What proved to be the last (sixth) shipment of accommodation units under the FC left Sriracha (shipment 6) on 4 September 2010.
Subsequently, the parties could not resolve all differences concerning the levels of TGF's claims for remuneration.
To proceed beyond that basic and uncontentious outline of facts as described, it is necessary to assess more specifically, in broadly chronological fashion, the parties underlying documentation, a lot of which was by passing emails.
None of this documentation is in dispute. It was all tendered by consent holus bolus, exhibits 1.1 through 1.6. That presents to the court 345 documents found across 2,006 pages of materials. Exhibit 2 is the parties' index to the trial bundle, identifying each of the agreed documents.
Many documents in the Trial Bundle were not referred to during the trial, either verbally or by writing. I have afforded them the same level of attention as the parties.
A number of TGF's witness statements contained elaborate, but largely impermissible commentaries upon the contents of the tendered documents. The parties accepted, in a context of sorting out evidentiary objections, that tendered documents speak for themselves, as they obviously do. I proceed on that basis.
What follows now is an examination of some of the more important documents that emerged during the trial. In particular, I need to closely assess documents around the period 11 and 12 February 2010 ‑ concerning what is a controversial, but key, underlying sub‑argument advanced by TGF - over the alleged oral perfecting of a pricing term variation to the FC, or even a fresh agreement by a senior TDKJV employee (Mr Telfer). This conduct by Mr Telfer is said to have resulted in TDKJV entering, or committing itself to, an altered payment regime to TGF. The new regime is significantly different to that laid down under the FC. A 'cost plus' remuneration arrangement (with the 'plus' alleged to be a 15% margin) is contended for Toll/TGF.
Working through the documentation, I have used, at times, components of the plaintiff's exchanged pre‑trial chronology, which was provided under pt B of its opening written submissions (pages 11 ‑ 15). At various points along the way in this section I will render my comments, findings, or elaborate upon some of the more important issues in dispute. I will also render some evidentiary determinations which are still required in the aftermath of the witnesses' trial evidence earlier discussed.
I address the documents adopting the format of the plaintiff's chronology.

Date	Event	Exhibit/Trial Bundle Reference
19 August 2009	TDKJV issues formal request for quotation for 'international freight transport'. The RFQ spans TB pages 176 ‑ 188. The request (page 185) was signed for TDKJV by Will Telfer, Procurement and Logistics Manager. At page 183 is a version of the delivery schedule which became sch 5 in the FC. See the notation 'dates may vary slightly but TDKJV seeks to minimise the number of units held in storage in Thailand'. [Comments: Clusters (1 ‑ 9) comprised 212 modules each. Cluster 10 only comprised 104 modules'. Also page 182 specifies 'Type of Contract' as 'Mixed - Lump Sum and Schedule of Rates components'.]	Exhibit 1.1.6 (ie, tab 6 in vol 1 of the six volume trial bundle)
16 October 2009	Mr Blignaut, WA State Manager for Toll Project Services (which is identified as Toll North Pty Ltd trading as Toll Project Services as a member of the Toll Group), submits a revised quotation. A meeting is requested with Mr Telfer.	Exhibit 1.1.17
23 October 2009	Mr Blignaut emails Mr Telfer a draft freight contract with marked up amendments for discussion. [Comment: I note the reference to 'respond back to our Legal Team'.]	Exhibit 1.1.22
25 November 2009	Mr Tim Knox, General Manager - Australia of Toll Project Services (TPS) emails Mr Telfer, copying in Mr Greg Steele (Toll's in house lawyer), Mr Brian Pulham, John Buttner (TDKJV's lawyer) and Mr Blignaut. The email attaches a further marked up version of proposed amendments to the FC. Mr Knox advises Mr Telfer 'attached is the latest version back from our legal guys'. [Comment: These amendments add subclauses 6.4.2(a), (b) and (c), addressing the issue of dead freight.]	Exhibit 1.2.31
5 December 2009	Mr Telfer emails Mr Knox (copying Mr Blignaut and others) the written document which he identifies as 'Toll Shipping Advice (01)'. The attached document TB 560 refers to Shipment 1 and 'date for delivery advice'. The date for delivery is now specified as Thursday, 21 January 2010. A nominated laycan period and a cargo quantity are identified. [Comment: Within the TDKJV organisation Mr Telfer and others appear to attribute considerable internal significance to the formality of TDKJV's Shipping Advices as somehow being reflective of a formal declaration of position or a request for services under a construction contract. This advice (the first) is issued even before the parties have signed off on the FC. Mr Telfer at a point in his evidence referred to these instruments as 'a formal document'. It would appear that they are invariably copied by email to senior members of the TDKJV organisation by Mr Telfer. As will be seen, the TDKJV written shipping advices concerning voyages and shipments are numerous and alter from time to time. From a contractual perspective these communications are interesting. But given the FC of 28 January 2010, TDKJV's shipping advices do not, on my assessment, amount to much more than a TDKJV request for the provision of a service. The first advice is issued to TPS, as may be seen. The TDKJV Shipping Advice communications do not appear to have an express linkage to any particular clause within the FC.]	Exhibit 1.2.32
8 December 2009	Mr Blignaut emails Mr Telfer acknowledging receipt of the first Shipping Advice and observing 'Pat of Coli (a reference to Mr Pat Evans) has requested that we obtain a Revised Proposed Delivery Schedule & Unit Quantity. He asks: 'Are you in a position to let me have this which I can on pass to Pat Evans?'	Exhibit 1.2.35
29 December 2009 11.21 am	Mr Telfer emails Mr Knox re discussions about the evolving revisions to the draft FC as the end of the calendar year approaches.	Exhibit 1.2.48
30 December 2009	Mr Blignaut at 8.02 am advises Mr Telfer: 'I spoke to Pat at Coli Shipping who has responded with the e-mail below. It is obvious from his communication that he is very keen to try and minimise losses but the reality is that the revised schedule of the 1st shipment will have a Financial Impact. The Detention will be around USD425k & the Dead Freight between the 112 x Units & 60 x Units. We can calculate the overall effect if we know the exact types and quantities to be shipped. Appreciate your return comments'. Mr Evans' attached email forwarded with that communication said: 'As it stands Coli have chartered 'Beluga Elegance' for 40-50 days to perform first two shipments of half-clusters. Vessel is showing delivery to Coli in Fangcheng (South China) 14/18 Jan but presently checking any change in this. We cannot shirk our contractual responsibility to Owners. 'On this basis we're looking to be in Sri Racha on/about 22nd Jan for loadout 112 units as nominated. In brief Toll/TDKJV are up for detention (waiting for cargo from 22nd until 15 Feb = 25 days x USD17,000 = USD425, --) and then dead freight for shortfall of cargo shipped at prevailing rate.'	Exhibit 1.2.51
30 December 2009	Mr Telfer now emails his TDKJV superiors Mr Lawrie Gibson (Thailand manager overseeing the manufacturing of the accommodation units) and Mr Pulham as to the subject, Shipping Detention Penalties ‑ Toll Project Services. He refers to the possible cost impact 'for the ship being detained' and continues to advise 'if we didn't change the shipping date (kept it at 15th Feb) and supplied only 40 modules rather than the planned 112 modules the dead freight component would be US$208K (less the half if we delayed the shipment) … in fact a complete no show of any units on the 15th Feb shipment date would incur US$324K in dead freight ‑ US$100 (thousand) less than actually delaying the shipment by three weeks. 'I wouldn't get completely alarmed yet. I'd be surprised if Toll/Coli don't find an alternate cargo etc. A few twists and turns will occur in over (sic) the next week or so before we get a clearer picture of a delay cost scenario …'	Exhibit 1.2.52
12 January 2010 2.59 pm	Two weeks before the FC is executed Mr Blignaut emails Mr Telfer advising that word has reached him through Mr Evans of Coli (who was in Thailand) that 'the factory is well behind and that only about 55 x Units will be ready come mid‑February 2010'. A meeting in Perth is suggested.	Exhibit 1.2.55
21 January 2010	Mr Geoff Leggatt of London Offshore Consultants (Australia) Pty Ltd emails Mr Telfer copying in Mr Blignaut and others on the issue of double stacking of the accommodation units aboard the transporting vessel. Previously anticipated double stacking is now proving problematic. Mr Leggatt says 'we wanted to send this email to recap items covered in yesterday morning's meeting regarding the shipping of the accommodation modules and clarify the agreed deliverables. It is understood that no modifications will be possible to the 1st shipment of modules as they are currently under construction. As such it is likely that the modules in the 1st shipment will not be able to be double stacked. It is also understood that it is potentially possible to modify future modules to facilitate double stacking'. [Comment: London Offshore Consultants had been engaged in regard to the cargo stowage and the securing (ie, lashing) of the accommodation modules stowed on board the transporting vessel. In the end, the lower numbers (than anticipated) of accommodation modules that were available for transporting meant that cargo hold space was never an issue from a deck stowage or hold stowage available space perspective. There was more than enough hold space for the single stacking of the modules aboard the ship. The significance of this communication, sent a week prior to signing off of the FC, is that prior to the parties' contract terms being finally resolved, the FC parties are seen to be very well aware of the issue arising concerning the inability to double stack the accommodation units. This bears strongly against any finding of alleged reliance by Toll/TGF in entering the FC upon alleged misrepresentations, or pre‑contractual misleading and deceptive conduct by reason of the inability to double stack. On my assessment, that double stacking misrepresentation contention of TGF ultimately goes nowhere.]	Exhibit 1.2.56
21 January 2010	By email to Mr Blignaut and Mr Knox, Mr Telfer advises, following the parties meeting, 'thanks for meeting with us yesterday and for your efforts in finding alternative cargo due to the delay in fabrication in Thailand - it is greatly appreciated. 'To follow up on the date proposed for mid February we do not believe that a 'quarter cluster' ‑ nominally 56 units plus ancillary containers could be fabricated by this date. 'Based on advice received yesterday and today the earliest possible date for this quantity would be early March. 'Our Project Director has travelled to Thailand today and he'll advise with greater confidence early next week on a realistic date …' [Comment: A week before the FC was signed off, the forecast of early March (2010) for the first cargo is looming as the earliest possible date for a smallish quantity of accommodation units to be made available to be transported from Thailand to Western Australia.]	Exhibit 1.2.57
22 January 2010	At 10.10 am Mr Evans of Coli emailed Mr Telfer, Mr Blignaut and Mr Knox (copying in Mr Fraser and Mr Pulham) in relation to the shipping dates for the first shipment. He said: 'Thanks yours and pursuant to my visit last week to Thailand cannot express too much surprise at the news. 'As stated, Coli perceive themselves to be a strategic partner to TDKJV, and we'll try to work solutions in order to minimise TDKJV exposure, but we do draw the line at taking a hit over this, and operating losses if any to be borne by TDKJV. 'From contractual standpoint, vessel ('Beluga Elegance') delivers into our charter at pilot station Fangchen (Southern China) 23rd Jan. Were we to run vessel directly to Sri Racha in order to meet the previously requested laycan 22 Jan/6 Feb, we would expect vessel to arrive circa 27th. Vessel could sit there on demurrage (USD17,000… per day) until cargo ready to load (up to 35‑40 days!!) and/or charge dead‑freight. 'Right, without prejudice that's not going to happen. ' … to this end suggest we agree that first shipment of half cluster will be load‑ready Monday 1^st March. (If 1st March already tentative then please advise cast iron date to which we'll try and work). 'Please pass breakdown of actual units that first quarter cluster will comprise in order that we can commence with stow plan'. [Comment: This communication was obviously received by all parties. It still preceded by six days the actual entry into of the FC by Toll and TDKJV.]	Exhibit 1.2.61
28 January 2010	Mr Telfer by email issued a revised TDKJV shipping advice for shipment number 1. The date for delivery is revised to 6 March 2010. A laycan period was specified as Sunday, 7 March 2010 to 22 March 2010. The cargo quantity was specified as '58 building modules and break bulk units (mixed sizes per attached table).' [Comment: Mr Telfer's covering email to Mr Blignaut, Mr Knox and Mr Evans referred to a discussion 'with Nic' (Blignaut) that day.]	Exhibit 1.3.70
28 January 2010	The FC is finally signed off by TDKJV and Toll.	Exhibit 1.3.68
2 February 2010	Mr Telfer, on behalf of TDKJV, despatches TDKJV's Shipping Advice number 3, applicable to the forthcoming shipment number 2. [Comment: This shipping advice specified a date for delivery of Saturday, 20 March 2010, with a laycan period between Sunday, 21 March 2010 and Monday, 5 April 2010. Again the cargo quantity was similar to shipment number 1, and included 58 building modules.]	Exhibits 1.3.72, 1.3.74
2 February 2010	At 8.24 am Mr Telfer by email to Mr Knox, Mr Blignaut and Mr Evans despatched a revised long-term forward forecast for the completion and availability of Siam Steel accommodation building modules. He advises Mr Knox, Mr Blignaut and Mr Evans, 'To assist with the longer term forecasting of shipping requirements please see a preliminary revised schedule for the overall project. 'We have attempted to get a definitive answer for the availability of Shipment 3 from Siam over the last few days but they're yet to commit to the date shown' (on the attachment headed 'Preliminary' the estimated date of 20 April 2010 was nominated). He continued, 'I'm aware gap between shipment 1 and 2 is tight (probably too tight for a single vessel to go on rotation). 'If you believe it's necessary, please give me a call to discuss solutions to reach an outcome which could work for both parties …' [Comment: Mr Telfer was closely cross-examined about this communication: see ts 327 - 329 and 353. The attached forward forecast document (revision 2) dated 2 February 2010 identifies estimated handover dates for goods to the carrier at the port of departure ranging between 6 March 2010 for the first shipment, up to (the now revised backwards date) 8 January 2011. Shipments 1 and 2 were nominated as quarter clusters, with shipment 3 being a half cluster (a full cluster being 212 accommodation units). This new forecast now envisaged 12 shipments over the contract period - rather than the 11 shipments as is estimated under schedule 5 of the FC. The concluding shipment date of January 2011 is also a significant extension to and push back on the FC schedule 5 last shipment date (for 104 modules), which had then been estimated for 15 October 2010.]	Exhibit 1.3.75
2 February 2010	At 11.57 am Mr Blignaut emailed Mr Telfer regarding the first quarter cluster 06/03/2010 in these terms: 'Will, I've received a communication from Coli Shipping confirming that they have managed to delay the arrival of the 'Beluga Enterprise' (sic) at Sri Racha until about 20th Feb 2010. Based on current declaration for first shipment as from 6 March 2010 this possibly leaves a Waiting Time of 14 Days (demurrage USD238,000) which is compounded by operational losses to them on the delayed voyage (circa USD150,000). Coupled with this there are the reduced quantities verses the original Tender Schedule. Coli is working on situation to reduce impact.'	Exhibit 1.3.76
9 February 2010 2:04:30 am	Concerning forthcoming shipments 1, 2 and 3, Mr Telfer emails his TDKJV superiors, Mr Drumm and Mr Pulham to update them. There appears to have been a meeting that day with Toll's representative, generally referred to as 'Toll'. This email dealt with multiple issues such as containers, 'KJVG logistics' (apparently a reference to the Kellogg Joint Venture Group: see ts 431), marine cargo, stacking and tiedowns and his forthcoming visit to Thailand. Mr Telfer advised under the heading 'Toll Dates': The outcome of my discussions with both yourself, Brian and Ric B (sic) today directed the discussions with Toll this afternoon. Attached is a revised DRAFT shipping advice ready to go out to Toll. It has SIGNIFICANT cost implications which I couldn't put a number on right now as it may take some twists over the next few weeks (ie Toll find a short journey for the vessel between the 20th Feb to 6th March etc). Could both yourself and Brian review and give the ok to send out.	Exhibit 1.3.77
9 February 2010 7.24 am	Mr Blignaut emails Mr Telfer with cost estimates concerning 'the extreme of Chartering this Vessel just for the 1st Quarter Cluster the Financial affect (sic) would be as follows … financial cost: 14 Days Demurrage USD 245,000* Expected Loss on Delaying Voyages (Estimated) USD 140,000* Sole Voyage with 58 x Camp Units USD 588,500** (total) USD 973,500' He completed his email: 'Coli Shipping will continue to keep looking for intermediate voyage to reduce both these line items but without prejudicing loading 6th March 2010. * At this distance there is a possible chance of finding suitable northbound cargo to defray some cost and not prejudice loading 5^th April 2010. Coli Shipping has indicated that they would be prepared to give back a percentage of net earnings on such a voyage up to a maximum of USD100,000.' [Comment: Clearly, as at 9 February 2010 the ongoing delays in the availability of cargo at Sriracha leading up to the first week of March 2010 were going to carry significant demurrage, delay and other cost implications. There was potential for ameliorating some of this cost by the chartered vessel taking on a northbound (third party) cargo for the return voyage from Australia back up to Thailand, with Coli indicating preparedness to 'give back a percentage of net earnings up to USD100,000'.]	Exhibit 1.3.78
11 February 2010 2.15 pm	The attached Shipping Advice (number 4) is dated 10 February albeit sent under cover of Mr Telfer's 11 February email. He refers to 'our meeting on Tuesday 9 February (Knox, Blignaut, Telfer)'. Mr Telfer advises 'TDKJV seeks the following arrangements be undertaken by Toll Project Services for Shipment 1'. The advice goes on to address future shipments 2 and 3, as well. As regards shipment 1, the date for commencement of loading is now identified as 'Saturday, 6 March 2010 (pending Sri-Racha port berth availability).' As regards a laycan period, the revised TDKJV specification is now 'not to apply for this shipment'. The cargo quantity is 58 building modules plus some 'FCUs' and 'break bulk frame bundles'. Under the notation 'Delivery to AMC Henderson' there is seen as specified 'Direct sail from Sri Racha - TDK to have a "last loaded, first off arrangement".' Shipping advice number 4 also says as regards shipment 2 that this was to commence loading on Saturday, 20 March 2010 and that shipment 3 would commence loading on Saturday, 3 April 2010. Advice 4 concludes: 'TDKJV seeks direct shipment from SriRacha to Henderson with either no additional cargo or alternate cargos held in lower and tween decks to enable TDKJV modules are 'first off'. TDKJV acknowledges that the turnaround between Shipment 1, 2 and 3 will require an alternate ship for Shipment 2. Please make arrangements with Coli Shipping or an alternate carrier to enable shipment as per the above. Please advise of any commercial implications for Toll to undertake the above by end of this week.' [Comment: Albeit sent under the ostensible formality of being TDKJV's Shipping Advice number 4, the communication is essentially no more than a request by TDKJV for certain services from 'Toll Project Services' to be provided. For instance, a unilateral right in TDKJV to excise any laycan period does not appear to be a contractual feature of the FC. A 'last loaded, first off' arrangement also does not appear to be specified under the FC at any particular place. Having said that, there is obviously nothing to inhibit TDKJV requesting service outcomes from Toll/TGF on a voluntary basis, even if the FC is silent on the issue, or even otherwise. Toll/TGF could always say 'No', if the TDKJV‑requested aspect of service was not acceptable. Plainly, Mr Telfer, as would be expected, anticipated at this time that there may be some potential commercial implications for TDKJV: see particularly, the last line of his communication.]	Exhibit 1.3.82
11 February 2010	By email Mr Telfer at 2.35 pm that day sent off a further TDKJV Shipping Advice number 4, which only addressed shipment number 1 with a heading, 'Revision'. [Comment: The information contained in this Shipping Advice, as regards shipment 1 appeared to be identical to the revision of 10 February 2010. More significantly, the covering email from Mr Telfer referred to discussions 'Tuesday and again today' (Thursday). The communication was directed to Mr Knox, rather than to Mr Blignaut, although Mr Blignaut was included in the emails circulation cohort. Mr Telfer was cross-examined about this document starting from ts 357].	Exhibit 1.3.83
11 February 2010 4.58 pm	This is a significant email communication sent at 4.58 pm from Mr Knox to Mr Telfer, with Mr Blignaut and Mr Pulham both copied in. The subject is 'Beluga Elegance'. Messrs Knox, Blignaut and Telfer were all cross-examined about this communication (re Mr Telfer see ts 359 - 363). The email from Mr Knox attached a prior communication from Mr Pat Evans of Coli to Toll regarding the 'Beluga Elegance'. Mr Evans had said: 'Assuming single tier throughout including full deck and optimum mix of units then would anticipate circa 100‑110. Of course if double stacking was anyway possible then this would increase to 115 ‑ 125, and if double stacking on desk then circa 150 - 170. Sub trim/stability etc.' Mr Knox forwarded the Coli email along with his own communication to Mr Telfer in the following terms. 'Will, Please see the message below from Pat with regards the maximum number of units that we could load on the theoretical second voyage with assumptions against the different number, if we send this vessel straight back to Sri Racha after discharging the first shipment. Sailing time ex AMC to Sri Racha would be 10 days. Mr Knox continued to Mr Telfer: Please can you let us know a decision as (sic) you can: 1. Option A: 1. 1st shipment: Beluga Elegance: 06/03: 58 x units + 10 x FCL + 5 x frames 2. 2nd shipment: Beluga Elegance: approx. 28‑30/03 plus laycan: 100‑170 pieces depending on configuration and whether 3 or 4 bedroom units (as per below). 2. Option B: 1. 1st shipment: Beluga Elegance: 06/03: 58 x units + 10 x FCL + 5 x frames 2. 2nd shipment: different vessel: 20/03: approx. 58 x units + frames. 3. 3rd shipment: Beluga Elegance: 04/04 + laycan: approx. 100 units, plus FCL, plus frames. Pat has reduced the $535,000 dedicated south/north bound voyage charge to $450,000. It is also highly likely that the $245,000 vessel detention (14 days x $17,500) will reduce since the Beluga Elegance is likely to be delayed in Port Hedland. However, Pat needs to know urgently which option TDK are going to pursue as he is in discussion on possible northbound cargo. If option A ‑ then he no longer has that option. If option B ‑ then he has to continue discussions. That being the case, TDK are up for the following costs on shipment 1: • Vessel detention: $245,000 (or less) • Late declaration: $140,000 • Full charter: $450,000 You agreed to the $245k and $140k. The $450k is not far off the number of $348k you believed payable for southbound cargo, plus the $245k number may reduce. It is TPS's sincere and humble recommendation that TDK accept the $450k charge in view of the bigger picture partnership on the contract - given the flexibility and limited cost impact to date, given the number of changes to the 1st, 2nd and 3rd shipment dates. Coli have supported us through the changing date - which has made it impossible for them to fix northbound cargo for the 1st shipment. Refusing to pay the $450k and exposing Coli to losses would impact on TPS's relationship with Coli and have serious consequences on our ability to deliver. TPS would recommend going for option A … since the cost impact is the same. We would eliminate the need to use an ad hoc vessel on shipment 2 with potential quarantine risk and sailing delays (through potentially calling other ports between Sri Racha and AMC). Option A would potentially get the shipment 2 and 3 cargo (under option B) to the AMC quicker than option B. That is - assuming that Siam can fulfil the order in time. Interested in your thoughts. Regards Tim' [Comments: Many questions and issues arose from this email relating to the first voyage. Numerous submissions were made about the content of this document over the course of the trial: see Mr Telfer's cross-examination at ts 359 - 367. Mr Blignaut was cross-examined about it as well: see from ts 259. As was Mr Knox: see from ts 228. The communication deals with a variety of subject matters. But, clearly, the most important issue is the requested choice from TDKJV, as between the designated options A or B. What was under discussion as between those two options was either using first one ship for the carriage of modules task (the 'Beluga Elegance') or, under option B, using two ships across three voyages. Mr Knox was recommending option A (ie, one ship). In the end, that was what TDKJV chose after input to Mr Telfer from higher up the TDKJV hierarchy, ie, Mr Pulham. But a second tier of issues arises out of this email concerning freight cost variations possibly binding TDKJV and whether, because of its content viewed alone or viewed with surrounding discussions at meetings either before or after this email, that this email can be construed as delivering a variation to the remuneration arrangements for Toll under the FC? The content of this email communication called for a response from TDKJV not just as between option A and option B - but also concerning the 'sincere' 'recommendation' that TDK accept the $450k charge. Mr Telfer, in evidence under cross-examination, was inclined to suggest that the three dot points in this email had been read on the basis that the last item full charter at $450,000 was to be read disjunctively with the preceding two items: see ts 364 - 366. I reject that approach as an unreasonable reading of a communication which, on my view, informed TDKJV of an increased transportation costs exposure for voyage one of US$835,000. This email communication is certainly less than perfect in terms of its overall clarity. But, objectively assessed, the disjunctive reading, as is advocated by Mr Telfer, presents to me as not being a sensible commercial reading. Hence, I do not accept his advocated disjunctive interpretation: see ts 367. Consequently, TDKJV was advised by this email of a US$835,000 exposure on voyage one. I also assess, however, that this communication gives no wider indication, by its terms, of any ongoing or plenary variation to the remuneration provisions of the FC and its schedules, such as would suggest their permanent replacement from then onwards by a revised cost plus 15% margin methodology of remuneration favouring Toll or TGF. In other words, this email, as I would assess its content, is a communication exclusively directed at arrangements governing voyage 1. It addressed increased costs for TDKJV of shipment number 1 - rather than suggesting a more generalised altered remuneration arrangement applicable to subsequent shipments favouring TGF.]	Exhibit 1.3.84
12 February 2010 2.07 pm (WA time)	The above Knox email communication appears to have been sent at 4.58 pm, at the close of that Thursday working day. It reached Mr Telfer and also Mr Pulham on Friday, 12 February. At 4.07 pm (read as 2.07 pm West Australian time, adjusting for the configuration of the Queensland‑based server of TDKJV). Mr Pulham advised Mr Telfer in succinct terms: Will, I confirm let's go with Option A. Regards, Brian Pulham, Project Director. That purely internal response to Telfer was unequivocal as regards choosing to have two shipments and using the 'Beluga Elegance', rather than three shipments and involving a different vessel for the second shipment. However, it must also have been appreciated that Option A carried increased cost implications, as regards shipment 1 upon the accepting of the 'sincere and humble' recommendation by Mr Knox to TDKJV.	Exhibit 1.3.86

There followed further email communications between Mr Blignaut of 24 February 2010 at 11.05 am concerning the 'Beluga Elegance' taking on extra cargo and thereby ultimately obtaining a reduction of around $120,000 in ocean freight on voyage 1. Mr Blignaut's request was initially sent to Mr Telfer who obviously forwarded it on to his superiors. Mr Pulham obtained assent to the 'other cargo' proposal from one of the directors of the joint venture, Mr James Moore, on Friday 26 February 2010. Consequently, Mr Pulham advised Mr Telfer to take up both proposed options. Mr Telfer did that under his formal advice of 27 February 2010 to Mr Knox, under the heading 'Shipping Advice No 6' (see exhibit 1.3.101). That process reflects a certain level of observable formality surrounding any arrangements which departed from the terms of a Shipping Advice as may have been earlier issued by Mr Telfer on behalf of TDKJV. Viewed from an objective perspective within a framework of a consummated FC as of 28 January 2010, then formally assigned from Toll to TGF requiring the consent of TDKJV, an orderly recording of such changes sits somewhat uncomfortably with the looseness of TGF's contended variation or new contract arrangements via par 19 and par 65.
There are further points. A contention as to the reaching of a new agreement, alternatively as to a variation to the pricing terms of the FC, are contentions which stand, as I would assess it, somewhat inconsistently with TGF's statement of claim (see par 31 and its particulars concerning TGF's advice to TDKJV of 1 April 2010 concerning the second voyage of the 'Beluga Elegance' and the particularised emails and communications, including a meeting at or about 25 March 2010). The contention also sits somewhat inconsistently with detecting a concluded variation or a new agreement, perfected as at 11 - 12 February 2010 (see also par 32 of the statement of claim and its particulars concerning emails of 7 and 8 April 2010 involving Mr Blignaut). Even more (negatively) significant is the meeting of 18 May 2010 between Blignaut and Telfer pleaded at par 43A. This paragraph pleads:
On or about 18 May 2010 Nic Blignaut of TPS met with Will Telfer of TDKJV at TDKJV's office to discuss how as a result of TDKJV's changes to the scope in the freight contract and in particular the delivery schedule, TPS had to charter a vessel on a per voyage basis rather than for the duration of the contract with the result that the full charter and detention costs incurred by TDKJV in respect of shipments 1 to 3 did not reflect the pricing set out in Schedule 2 to the Freight Contract.
See also par 43B, 43C and 43D concerning a further meeting between Knox, Blignaut, Pulham and Telfer on 24 May 2010.
It is apparent that by 24 May 2010, there had not been any invoicing by TGF to TDKJV for any of the 'Beluga Elegance' voyages. Hence, par 43D pleads:
On Monday, 24 May 2010, Tim Knox, Nic Blignaut of TPS met with Brian Pulham and Will Telfer of TDKJV at 8.30 am in TDKJV's office to discuss the invoicing for shipments 1 to 3, including the full charter and detention costs incurred by TDKJV together with the expected costs of the future shipments.
Particulars given to this plea read:
The issues discussed at the meeting are summarised in an email dated 25 May 2010 sent at 3.23 pm from Nic Blignaut of TPS to Brian Pulham and Will Telfer of TDKJV under the subject heading 'TDKJV/TPS MEETING - 24/05/2010'. The email notes that at the meeting TDKJV 'requested that TPS charge as per the contracted unit rate from voyage 3 onwards' and that 'Due to the changes in the scope of the contract, TPS have had to charter a vessel on a per voyage basis rather than for the duration of the contract'.
Even on the plaintiff's case there needed to be a meeting in terms as described on 24 May 2010 relating to the invoicing for shipments 1 to 3. Objectively, that signifies to me an absence of any concluded variation to the FC, or new freight contract, some three months earlier, at 11 - 12 February 2010.
The last point emerges plainly from this series of events. There is a conceptual disconnect between Toll or TGF's relationship with its agent, Coli, distinctly to the contractual relationship under the FC - between Toll (later TGF) and TDKJV.
There presents as something of a recurrent assumption by TGF underlying passing communications at the time, even under written submissions made in this trial, that because Toll or TGF incurred a liability to Coli, that it must necessarily follow, as night follows day, that amounts paid over to Coli by Toll/TGF were to be automatically reimbursed to Toll/TGF by TDKJV. Unfortunately for Toll/TGF, that is not so. That is not the payment regime provided for to Toll/TGF under the FC.
The root of the underlying problem here for Toll/TGF appears to be poor contract administration on the part of Toll/TGF personnel, in proceeding upon the basis of a series of assumptions that are directly inconsistent with the terms of the FC. When the problem came to be appreciated after the FC was entered, the issues were never directly confronted head on, to have TDKJV commit in clear terms from someone at a senior level of authority, to the varied or altered payment arrangements which TGF desired.
Subject to the observations which follow as regards voyage 1 at the end of the reasons, all these claims must fail.

Sub-issue 4: Breach of the Trade Practices Act by 'full charter representations', par 77 statement of claim

Paragraph 77 of the statement of claim of TGF, contends:
Further by directing TPS to provide the ocean freight services on a full charter basis in circumstances where TPS had advised TDKJV of the costs of those services and where TDKJV did not disclose that it did not agree to those freight costs TDKJV represented to TPS and the plaintiff that:
(a)it agreed to provide compensation for the ocean freight costs incurred by the plaintiff including:
(i)full charter ocean freight costs paid [presumably by TGF] to Coli Shipping; and
(ii)demurrage costs calculated at US$17,500 per day;
(b)it agreed to pay a 15% surcharge on all freight costs; and
(c)it would not insist upon any strict legal rights pursuant to the pricing terms set out in Schedule 2 or clause 6.4 of the Freight Contract
(together as the 'Full Charter Representations').
Paragraphs 78 - 82 then contend these 'full charter representations' were misleading and deceptive, contrary to s 52 of the Trade Practices Act 1974 (Cth) and, as a result, TGF has suffered loss and damage. Particulars of TGF's alleged losses are identified at par 79. Materials mostly canvassed earlier are repeated.
No specific written or oral submissions were directed towards advancing this statutory cause of action - either in the plaintiff's written opening submissions for trial of 13 April, or in its closing submissions. The claim is therefore something of a mysterious orphan.
At par 10.6 of its written opening submissions, TDKJV says:
Whilst not entirely clear, this appears to be a claim by Toll that it was misled by TDKJV's silence and, if so, it not only fails to meet the legal requirements of a claim for misleading and deceptive conduct by silence but it is also demonstrably contradicted by the contemporaneous emails passing between the parties.
By written closing submissions of 11 May 2015 (par 32) the defendant observes upon the misleading and deceptive alleged silence by TDKJV as being achieved by the workings of a double negative:
That is, that the plaintiff informed TDKJV of Coli Shipping's costs and that TDKJV did not tell the plaintiff that it did not agree with those costs.
Unlike other forms of misleading conduct under the TPA, misleading and deceptive conduct by silence must be intentional and deliberate. In this respect see the useful comments of McLure P in Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 at [41] - [67] where her Honour considers all of the relevant authorities at some length. There is no evidence here to establish this requirement. Knox and Blignaut had nothing to say on the issue and more importantly, neither Telfer nor Pulham were cross-examined on it. In any event, the oral and written evidence shows that TDKJV repeatedly informed the plaintiff that it did not accept its proposal of a pricing mechanism other than that set out in the Freight Contract, as to which see the above comments on the evidence. In the light of TDKJV's various items of correspondence and Pulham's advice to Blignaut at the meeting on 31 May (see paragraph 18 above) that it would not accept any mechanism based on full charter rates plus a 15% mark-up, the claims under s 52 of the TPA cannot be established.
The defendant's submissions at this juncture must be accepted. There is, as I would assess it, between the protagonists, nothing more or less than a clash of positions over the applicability of the remuneration provisions of the FC, or not. The defendants correctly criticise the formulation of this cause of action as an attempted undermining of the FC's contractual pricing provisions for securing Toll/TGF's ocean transport services, by the use of a double negative.
On my assessment, TGF's attempted invocation of this statutory remedy is misplaced and unwarranted. Within my analysis of the agreed trial documentation, I examined the evidence of Mr Telfer, as regards contentions put to him over time by Mr Blignaut, culminating in the involvement of Mr Pulham, up to what I assess as the (negatively for TGF) revealing exchange mentioned in Mr Crowley's witness statement (exhibit 3, par 21) referring to exhibits 1.5.296 and 1.5.299. I also assess it as being of some significance, see page 1594, that the response provided on behalf of TGF during early attempts to resolve this invoicing dispute during September 2010 sought to contend for a departure from the pricing terms of the FC. But the departure was then not advanced on the basis of a 'cost-plus' remuneration variation, but rather only then, on the basis of a 'voyage by voyage' replacement pricing mechanism. That position has changed very significantly over time and that change does not assist TGF's position.
TDKJV's position put via Mr Pulham in his letter dated 3 September 2010 under exhibit 1.5.296 (page 1589 - 1590) sets out what I assess on the evidence, as the more plausible position on behalf of TDKJV.
This aspect of the plaintiff's claims also fails.

Sub-issue 5: Plaintiff's cause of action based on 'estoppel'

This argument is an attempt by the plaintiff to secure substantive relief under the subheading Estoppel By Conduct (see par 5 of its pleading) in the following terms seen in the TGF statement of claim:
85.Further by reason of TDKJV's conduct in:
(a)failing to comply with the delivery schedule set out in Schedule 5 of the Freight Contract, in circumstances where it knew that the estimated delivery schedule was neither accurate nor reasonably achievable;
(b)directing TPS to provide the ocean freight services on a per voyage, full charter basis in circumstances where TDKJV was pre-advised by TPS as to the costs of those services;
(c)allowing the plaintiff to incur Coli Shipping's full charter costs for each of the six voyages carried out for and on behalf of TDKJV; and
(d)attempting to manipulate clause 6.4 [the dead freight clause] of the Freight Contract to its advantage in circumstances where the per unit pricing was no longer applicable.
TDKJV is estopped from relying upon its strict legal rights pursuant to the pricing terms set out in clause 6.4 and Schedule 2 of the Freight Contract.
That is a very curious plea of estoppel, at best.
It is not elaborated upon by the plaintiff's further particulars of June 2012 or April 2013.
As regards a failure to comply with the schedule 5 delivery timetable, the forensic difficulties with such an argument are plentiful. Not the least of these is the fact that column A of that schedule refers to an 'estimated' date of handover of goods to the carrier at the port of departure. Even the given total at the end summing up the 11 tranches of building modules and standard FEU containers generates only a description of an 'Estimated total'.
From a legal perspective it might be expected that if there was a contention that there was a failure to comply with the nominated timetable under schedule 5 for the handover of cargo, that this would be pleaded as a breach allegation by reference to a claim for damages for breach of the FC. But that is not the position.
The harsh reality for TGF is that there was a well-known blow-out in the estimates as to TDKJV's cargo availability, in terms of delays with Siam Steel being behind in manufacturing the quantum of cargo as goods for shipping from Thailand. This carried 'knock-on' consequences, in terms of arrangements to collect and transport those goods from Sriracha to Henderson. But the scenario of a blow‑up in cargo availability estimates hardly constitutes a representation, let alone a representation by conduct, for the purposes of establishing an estoppel. The more relevant question is whether the terms of the parties' FC contract addressed that scenario or not?
The balance of the plea in par 85 eschews the traditional estoppel argument methodology of identifying the required elements of reliance and detriment. As to those (missing) fundamentals to prove a promissory (equitable) estoppel, see Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, 428 - 429 (Brennan J) identifying the essential elements for an equitable estoppel. Those fundamentals are not expressly identified here as regards reliance and detriment, as they should have been.
Nor would an otherwise unexplained reference to the attempted manipulation of cl 6.4 of the FC (concerning TGF's 90% dead freight claim entitlements) present as being even arguably capable, without more, of constituting a representation by conduct.
For the purposes of invoking principles of equitable estoppel see also the observations made by Owen J in the The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1 first instance decision concerning this principle.
The estoppel claim fails.

Sub-issue 6: Statutory unconscionable conduct (s 51AA of the former Trade Practices Act 1974 (as amended))

Paragraph 83 of TGF's statement of claim contends that the conduct of TDKJV 'as referred to in paragraphs 43A - 43D, 56 - 64 and 71 - 80 above is unfair and unconscionable contrary to s 51AA of the TPA'.
In consequence (see par 84), the plaintiff claims damages or relief pursuant to s 87 of the TPA 'including orders for the payment of the amounts set out in paragraph 64 above'. No further detail concerning the unconscionability plea was provided by TGF under its particulars of June 2012 or April 2013.
Effectively then, the underlying facts raised by TGF in order to support this plea amount to a rehash of averments otherwise framed under chapeaux already considered.
Section 51AA (which now finds itself exported to the Australian Consumer Law - see s 20 of sch 2 to the Competition and Consumer Act 2010 (Cth)) provided:
(1)A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from, time to time of the States and Territories.
(2)This section does not apply to conduct that is prohibited by s 51AB or 51AC.
Again, there was no real development of any argument to advance this statutory cause of action by TGF under its written opening or written closing submissions.
TDKJV, on the other hand, contends that here, the plea of statutory unconscionability is fundamentally misconceived - on the basis that there is no plea or evidence that 'Toll was at a special disadvantage as required by 51AA'. The defendants refer to Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 [11] - [14].
In Berbatis, Gleeson CJ (who with Gummow, Hayne & Callinan JJ gave the majority judgments, Kirby J dissenting) had referred to the second reading speech introducing s 51AA (see [5]). At [7] he noted a distinction between use of the word 'unconscionable' in everyday speech and the 'more precise' legal meaning of the term. After referring to observations of Fullagar J in Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362, 405 Gleeson CJ said:
The common characteristic of such circumstances is that they place one party at a serious disadvantage in dealing with the other.
After discussing Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457, 485 Gleeson CJ said at [11]:
One thing is clear, and is illustrated by the decision in Samton Holdings itself ([2002] FCAFC 4; (2002) 117 FCR 301). A person is not in a position of relative disadvantage, constitutional, situational, or otherwise, simply because of inequality of bargaining power. Many, perhaps even most, contracts are made between parties of unequal bargaining power, and good conscience does not require parties to contractual negotiations to forfeit their advantages, or neglect their own interests.
The Chief Justice at [13] also endorsed the remarks of Kitto J in Blomley v Ryan at 415 in terms:
It applies whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired facilities, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands.
Gleeson CJ continued:
[14]Unconscientious exploitation of another's inability, or diminished ability, to conserve his or her own interests is not to be confused with taking advantage of a superior bargaining position. There may be cases where both elements are involved, but, in such cases, it is the first, not the second, element that is of legal consequence. It is neither the purpose nor the effect of s 51AA to treat people generally, when they deal with others in a stronger position, as though they were all expectant heirs in the nineteenth century, dealing with a usurer.
[15]In the present case, there was neither a special disadvantage on the part of the lessees, nor unconscientious conduct on the part of the lessors. All the people involved in the transaction were business people, concerned to advance or protect their own financial interests … They suffered from no lack of ability to judge or protect their financial interests. What they lacked was the commercial ability to pursue them both at the same time. (footnotes omitted)
See also Gummow and Hayne JJ at [46] and [58] and Callinan J at [184].
Here, there can be no dispute the parties to the FC were sophisticated, well-resourced corporations, with ready access to legal advice. There was no inequality of bargaining power as between the parties. Even if there had been, that would not be enough, as the discussion of the law in this area shows.
More relevantly, Toll and TGF were never at any relevant 'special disadvantage', vis-à-vis TDKJV.
Unconscionable conduct is not established by pointing to one party to a bargain insisting upon the bargain being strictly observed. Nor is it shown by pointing to one party to a binding contract who is being difficult, unresponsive or even high handed in making demands. Those are the day-to-day realities of commercial life. Being on the end of such conduct does not put a sophisticated, well-resourced corporation at any 'special disadvantage' - particularly an organisation that holds itself out as being expert in the provision of international carriage services.
The present litigation shows up no more and no less than a fairly typical commercial canvas upon which has unfolded the workings of a contractual relationship which was carefully bargained over, between sophisticated parties and then carefully reduced to numerous agreed written terms poured over by legally trained advisers before the FC was signed off on both sides.

There is no room at all in this commercially sophisticated environment for the intrusion of the statutory remedy by alleged unconscionable conduct, to disrupt or to reorder the carefully worked out parameters of these parties' commercial bargain.
No more need be said about this particular sub-issue cause of action other than that it is wholly devoid of merit.

Some significant aspects of the trial evidence concerning shipment number 1

Voyage 1 of the 'Beluga Elegance' - ocean freight claim

Working from attachment BP2 to Mr Pulham's written statement (about which he was not cross‑examined and which became exhibit 7B) ‑ it presents as we have now seen that TDKJV initially paid TGF the full amount of its rendered invoice amount of US$1,097,215.58.
Later however, as BP2 clearly shows, TDKJV assessed the amount of US$294,238 which it disputed and ultimately claimed and recovered it back.
TDKJV effectively reclaimed those funds for an amount of ocean freight back from TGF - by setting them off against other payments to TGF it otherwise would have paid TGF on subsequent invoices for subsequent 'Beluga Elegance' voyages (a procedure theoretically open to TDKJV under condition 10.7 'Effect of Payment' of the Conditions of Contract to the FC for circumstances where an overpayment had been made).
By reference to BP2 and voyage 1 of the 'Beluga Elegance' (see also ts 436 where Mr Pulham discusses this in chief) it presents that TDKJV argues, in effect, that only US$164,844, in the end, was properly payable for ocean freight on voyage one - out of the otherwise claimed global freight amount of US$459,082 - generating, in consequence, the freight amount of US$294,238 as being disputed for voyage 1.
The disputed amount of US$294,238 is the subject of BP2's rather unenlightening comment 'Assessment based on Contract'. [There is also a further disputed amount concerning voyage 1 of AUD20,625 - about which BP2's comment is 'no entitlement under contract'. From BP2 this presents as a claim for an amount due to 'Thailand Supervisor'. I have nothing before me out of the trial to support or allow me to evaluate the merits of a claim to that amount for a Thailand supervisor - or to amounts other than those claimed to be due to TGF for ocean freight. I confine myself, therefore, to an evaluation only of TGF's claims to extra monies based on an entitlement to a claim for a freight service provided to TDKJV on voyage 1.]
Working from BP2, for voyage 1, the derived freight amounts (by reference to the FC, sch 2 rate of US$2,892 per unit) are not in dispute. They have been paid by TDKJV in the amount of US$156,168.
The total TGF freight claim for voyage 1 therefore presents by TGF as follows:

US$133,032

Undisputed

                 US$5,784

Undisputed

               US$17,352

Undisputed

           =US$156,168

Paid

Plus the additional ocean freight claimed on voyage 1

             US$459,082

(US$294,238 of which is disputed)

= Aggregate USD freight claim on voyage 1

           =US$615,250

(This amount is US$535,000 + 15% being US$80,250)

[As I will explain, the amount I allow is US$535,000, per the passing emails of early February 2010 - but not the extra 15% mark up on that amount. The amount of US$294,238 is therefore reduced by $80,250 = US$214,188.]

Plus further ocean freight voyage 1	US$58,046	Paid
Total freight claimed on voyage 1	US$673,296

Absent how the trial came to be conducted, a basis in contract or otherwise for a claim by TGF for amounts beyond the calculated freight payable by the FC for freight remuneration under sch 2, plus the amounts for detention, dead freight, damage or delay, would not be proven to my satisfaction, on the balance of probabilities.
But just for voyage 1, the trial unfolded from the perspective of the TDKJV defendants, on a somewhat different basis than what is the strict state of the pleadings - as regards voyage 1.
To that end, I mention six extracts from the trial transcript going to show what was an end position clearly accepted for TDKJV by senior counsel.
I set out those transcript extracts:
1.Senior counsel for TDKJV, in opening:
ZILKO, MR: Well, we allowed them to, and they had a right to seek recovery, and they sought recovery of what they could, as far as I can understand, and there's no argument about the fact that they were paid significantly more than the contract provided for, in its simplest and straightforward terms, but they say they were entitled to more on top of that (ts 76). (emphasis added)
2.Cross‑examination of Mr Knox of TGF by Senior Counsel for TDKJV (concerning the voyage one invoice):
ZILKO, MR: Go to document 1356, which is in the same - sorry, it's volume 4, it's tab 206. Tab 206 at page 1356?---Yes, I have it.
And here the defendants, TDK, didn't ask you to confine yourself to the pricing mechanism in the contract, instead you gave one invoice and it was paid, wasn't it? It has got 'OK to pay, W. Telfer'; do you see that? Do you see that written there?---Yes, I do.
Yes. And they paid the full amount, didn't they?---They did, which states the ocean freight claim amount separately.
Yes. And they paid that because they agreed with you that you were entitled to delay costs. That's what you had asked for and that's what they paid.
…
You're aware, are you not, the TDK paid that bill because that was the amount that was agreed between TDK and Toll as the extra costs over and above the module costs that Toll would incur?‑‑‑I am not aware of that (ts 175). (emphasis added)
3.Further cross‑examination of Mr Knox:
ZILKO, MR: Now, in respect of the first shipment, because of the delays and the reduced numbers, ultimately, the amount that was charged was agreed upon and you were paid the full amount, were you not, for that shipment?---I don't recall.
You don't recall?
KENNETH MARTIN J: Shipment number 1?
ZILKO, MR: Shipment number 1, you Honour. Yes.
KENNETH MARTIN J: Yes.
ZILKO, MR: Just - I don't - you may not be able to comment on this because it may be outside your area, but go to tab 206 in volume 4?---Okay.
Mr Pulham will say in his evidence that that tax invoice was for the rate prescribed in the contract. It's 46 accommodation module units at 2892, 240 SOC containers at 2892, six spreader beams at 2892, 10 days detention and then ocean freight and loss on interim voyage. And those amounts, they were demurrage, events - delay events. You gave them the right information and they were paid. The full amount of that was paid. Do you - does that bring back any memory to you about this?---Not really.
…
KENNETH MARTIN J: So that was voyage number 1, Mr Zilko?
ZILKO, MR: That's right. Well, I will ask a further question. There's no argument about voyage number 1 in this case, is there?‑‑‑I don't know what's under dispute to be perfectly honest.
You don't know. All right. That will be the evidence (ts 238 ‑ 239). (emphasis added)
4.Cross‑examination of Mr Blignaut by Senior Counsel for TDKJV:
ZILKO, MR: And do you recall that TDK actually paid the full amount charged by you? Do you recall that at all?---I recall they paid the full invoice from the first shipment (ts 260 ‑ 261). (emphasis added)
5.Further cross‑examination of Mr Blignaut:
ZILKO, MR: Look at number 4, item 4. This is for shipment number 3. The second sentence says:
'TDKJV have requested that TPS charge as per the contracted unit rate from voyage 3 onwards. Due to the changes in the scope in the contract, TPS have had to charter vessel on a per voyage basis, rather than for the duration of the contract.'
See that?---I do.
Now, Mr Telfer will say that there was nothing about voyage 3 onwards; it was all voyages bar the first one (ts 266). (emphasis added)
6.Even further cross‑examination of Mr Blignaut:
ZILKO, MR: Your position is that this arrangement that you say was made with Mr Telfer, if I understand you correctly, that applied across the board then, did it, for the rest of all the shipments that might happen? Is that what you say it was?---With the exception of the first one that was a full charter - - -
Yes?--- - - - which was agreed by TDK.
Yes. That was agreed. And Mr Telfer will give evidence about that. After that, do you say that he - you say that the conversation which happened you say, firstly, you think it was after the first shipment and, secondly, do I understand you to say that you think it was to apply to all future shipments whenever they may occur? Is that correct?---That is correct, because that's how we declared the voyages so - - - (ts 273 - 274) (emphasis added)
I should, in contrast, also note the evidence from Mr Telfer under cross‑examination by senior counsel for TGF at ts 373 ‑ 375. Mr Telfer would not accept that passing email communications of 11 and 12 February 2010 had culminated in any acceptance by him of TDKJV of a 'full charter' rate exposure for voyage 1 of US$535,000 (see ts 374 - 375, 377). The election for option A at the culmination of those exchanges had been approved by Mr Telfer's superior, Mr Pulham.
Had I needed to, and had it been permissible on the pleadings, I would have, at the end, concluded that the 11 and 12 February 2010 exchanges, culminating in the election by TDKJV for proffered option A under Shipping Advice 5, had committed TDKJV in writing to pay the US$535,000 amount about which it was clearly notified it was exposed to on voyage 1, given delays to that point which was not attributed to Toll or to TGF. But the plaintiff's case, as I have earlier assessed it, is not pleaded on a voyage by voyage basis claiming increased freight discrete contractual variation to the FC remuneration sch 2 rates.
I have also rejected TGF's primary contentions as to its attempts to prove any 'cost plus' (15% mark up) variation to the FC, or a new freight agreement in such plenary terms.
But given the transcript exchanges concerning voyage 1, which I have collected, I would allow leave to the plaintiff to amend to claim extra freight of US$535,000, as regards a claim for US$535,000 on voyage 1.
As part of the plaintiff's closing submissions at trial, a number of documents were handed up. One of these documents was entitled 'Plaintiff's analysis of TPS invoices'. The document analysed each of the shipments in terms of the parties' positions as regards the plaintiff's claim to extra money for freight, and the rejection stance of the defendant. As regard shipment 1, the plaintiff explained the invoice for $1,097,215.58 with a note in these terms:
#$1,097,215.58 being $734,965 for Full Charter broken down as $459,082 + $156,168 (54 units x $2892 being 46 modules, 2 containers and 6 trusses) + 119,715 detention at SriRacha + $362,250 detention WA (not counted as not dispute). TPS Quote was $835k (see Option A email of 11 Feb) being $450k + $140k late declaration plus $245k detention (not disputed) leaving approx. $735k which was invoiced being $100k under quote in the Option A email.
What I extract from that analysis by the plaintiff is that it effectively allowed a US$100,000 deduction on the US$835,000 figure mentioned in the Option A email of 11 February 2010.
However, as the second page of that analysis of TPS invoices reveals, the aggregation of two freight amounts (US$459,082 plus US$156,168) generates US$615,250. That amounts to US$535,000 plus 15%.
When the figures of US$119,715 for origin detention and US$362,250 for destination detention are then added together, they generate the amount of the first invoice, namely $1,097,215.
Exhibit 1.4.206 at page 1356 shows TGF's invoice in respect of voyage 1, invoice no 00443474, of 14 July 2010. The discernible identified freight amounts claimed under that invoice (being an invoicing situation in which, unlike for the subsequent voyages, TGF did not ever actually issue dual split invoices claiming freight as a separate standalone global ocean freight claim amount) were: total ocean freight US$156,168 plus the further ocean freight claim amount of US$459,082.
Putting aside the other non‑disputed amounts seen on that invoice for voyage one, concerning 10 days' detention and the loss on interim voyage, the total amount of ocean freight claimed under that invoice was US$615,250, which amounts to US$535,000 (referred to in the option A email) plus 15%. On the evidence TDKJV has always firmly rejected a 15% costs plus mark up in very clear terms. For the first voyage however it has agreed to accept the extra US$535,000 freight amount.
By my assessment, TDKJV's defence has been openly run at trial, on the cross‑examination of the plaintiff's witnesses, on an explicit basis of TDKJV's acceptance of an entitlement of TGF to have its invoice for voyage 1 met as regards US$535,000. I will not allow TDKJV to, in effect, repudiate the acceptance of that position by the 'claw‑back' which BP2 shows of US$294,238 from what TGF had invoiced for voyage 1.
I would allow leave to TGF to amend in these limited terms and on that basis TGF is entitled to judgment in the amount of US$214,988 on these funds in USD, plus interest from the time that amount of US$214,988 was clawed‑back from TGF.
These reasons will be provided to the parties and I will then hear from them as to the appropriate orders, including as to interest and as to costs, either at a scheduled appointment or on the papers.

SCHEDULE 2
SCHEDULE OF PRICES
(Clause 26)

S2.1 If the basis for payment of a component of the Services is Lump Sum (refer clause 10.1) of the Conditions of Contract), the following will apply.

S2.1.1 The description of quantities and rates in this Schedule do not form part of the Contract. They are included in this Schedule for the sole purpose of assisting in the valuation of progress payments under clause 10 of the Conditions of Contract.

S2.2 If the basis for payment of a component of the Services is Schedule of Rates (refer clause 10.1 of the Conditions of Contract), the following will apply.

S2.2.1 Payment to the Carrier will be calculated using the unit rates contained in this Schedule and the measured quantities of Services actually performed in accordance with the Contract. The Contract Sum will be adjusted to accord with the final quantities of Services performed.
S2.2.2 Quantities in this Schedule do not form part of the Contract. They are estimated only and are inserted in this Schedule for the sole purpose of establishing the approximate value of the Services to be performed under this Contract.

Item No.	Description of Services	Unit	Currency	Unit Rate (GST-exclusive)	Value $ (GST-exclusive)
1	Preliminaries and commencement planning (Thailand)	Lump Sum	Australian Dollars	$37,750.00	$37,750.00
2	Sea Freight of Modules and FEU Containers	2,202	US Dollars	$2,892.00	$6,368,278.00
3	Site Attendance in Thailand by AQIS Inspection Personnel	Cost + %	Australian Dollars	Cost Plus 5% Mark-Up	Cost Plus 5% Mark-Up
4	Preparation, submission and management of approvals, exemptions etc for Australian Customs, Ports and other bodies * See Note Below	Lump Sum	Australian Dollars	$3,135.00	$3,135.00
5	Scenario A) Port Charges, Unloading and Transportation from Fremantle Port to CSB Henderson (note: 76 type E2 units to Henderson location)	2,202	Australian Dollars	$1,079.48	$2,377,013.00
6	Scenario B) Port Charges, Unloading and Transportation with AMC/CSB Henderson (note: 76 type E2 units to Henderson location)	2,202	Australian Dollars	$590.56	$1,300,425.00
7	Demurrage costs – For agreed delay events	Rate	US Dollars	$17,500 / day	Rate only

SCHEDULE 5

ACCOMMODATION UNITS AND DELIVERY SCHEDULE

Column A	Column B	Column C	Column D
Estimated date of handover of Goods to the Carrier at the Port of Departure	Estimated number of Building Modules	Estimated number of Standard FEU Containers or Flat Racks ** (Roofing Materials, Fixings, Loose Furnishings etc)	Cluster reference
06/01/10	106	10	First Half of C1
01/02/10	106	10	Balance of C1
28/02/10	212	20	C2
30/03/10	212	20	C3
30/04/10	212	20	C4
30/05/10	212	20	C5
30/06/10	212	20	C6
30/07/10	212	20	C7
30/08/10	206	20	C8
30/09/10	218	10	C9
15/10/10	104	10	C10
Estimated total	2012	180	--

** Standard FEU Containers or FEU flat racks will include ancillary roof materials and furnishings etc. Shipment of these units can be transported either through the same shipping system as the cluster modules or via alternate carrier solutions.

US$133,032	Undisputed
US$5,784	Undisputed
US$17,352	Undisputed
=US$156,168	Paid
Plus the additional ocean freight claimed on voyage 1	US$459,082	(US$294,238 of which is disputed)
= Aggregate USD freight claim on voyage 1	=US$615,250	(This amount is US$535,000 + 15% being US$80,250)