Trinity Point Hotel Pty Ltd v State of Queensland

[1993] QCA 421

IN THE COURT OF APPEAL

[1993] QCA 421

SUPREME COURT OF QUEENSLAND

Appeal No. 36 of 1993

Before The President
Mr Justice Pincus
Mr Justice McPherson

[Trinity Point Hotel Pty. Ltd. v. Qld.]

BETWEEN:

TRINITY POINT HOTEL PTY. LTD.

(Plaintiff) Respondent

- and -

STATE OF QUEENSLAND

(Defendant) Appellant

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 21/10/93

This is an appeal from a judgment in the Trial Division in
an action commenced by the respondent by a writ issued on 22
December 1989. On 5 and 23 February 1993 it was ordered
that an agreement in writing between the respondent
(plaintiff) and appellant (defendant) comprised in a letter
dated 30 November 1989 from the appellant to the respondent
and a letter in reply dated 1 December 1989 be specifically
performed and carried into execution, and various ancillary

orders were made.

The appellant's main ground of appeal is that it

terminated the agreement for the respondent's repudiation on
or about 13 December 1989. If that ground of appeal fails,
other matters are raised concerning the construction of the

parties' agreement and the form of the orders.

It was not disputed that the appellant wrote a letter

to the respondent on 13 December 1989 which was effective to terminate the agreement between the parties if, by then, the agreement had been repudiated by the respondent. The sole
issue in relation to the main ground of appeal was whether
or not the respondent repudiated the agreement by its
assertions, demands and threats on 7 and 13 December. It is
necessary to refer to earlier events to place the
respondent's conduct on those days in their proper
perspective.

In 1982, the appellant called for expressions of

interest in "The Development of a Boat Harbour and Tourist
Resort Complex on Part of the Foreshore of Cairns". After a
successful tender, the respondent was granted a Special
Lease for three years from 1 July 1985 for an "Impact
Assessment Study". In 1988, a further Special Lease in
respect of a slightly reduced area was granted for one year
from 1 April 1988 for "Investigation". One of the
conditions of that Special lease envisaged that the
respondent might, in due course, be granted a further lease
to develop all or some of the subject land. Another
condition required the respondent to carry out
investigations and studies and to provide the results to the
appellant, which it did by about 22 March 1989. However, on
12 October 1989, the then Premier informed the respondent
that the appellant proposed to reject the respondent's
proposal to develop the land. At that time, an election for
the Queensland Parliament was in the offing and the
respondent's proposed development had attracted considerable

public interest and opposition.

Commencing on 16 October 1989, discussions were held

and correspondence was exchanged concerning the respondent's
request for "reimbursement for funds expended" and
compensation.

On 15 November 1989, a Cabinet Submission was signed by

the then Ministers for Land Management and for Water
Resources and Maritime Services. The submission stated that
"... the material contained in the study reports has
significant value, particularly in respect of the management
of Trinity Inlet and it is considered to be of importance
that this material be retained in public ownership". A
minute of a decision by Cabinet on 20 November 1989
contained the following:

"That an offer to purchase the material in the study
reports, on the basis of reimbursement of actual costs
and expenses (at 1989 prices) be made to the
[respondent], subject to the amount of such offer not
exceeding $5 million".

Shortly afterwards, on 22 November 1989, that decision

was publicly criticised by the then Leader of the
Opposition, who was shortly afterwards voted into office as
Premier following the State election on 2 December 1989. In
his statement, he described the acquisition of the reports
as "a very thin smoke screen", and asserted that the
respondent "should bear its own loss".

Meanwhile discussions had continued and further letters

had been exchanged between representatives of the appellant
and the respondent. A sufficient indication of the course
of the negotiations can be obtained by reference to the
correspondence.

On 22 November 1989, the following letter was sent from

the Director-General of the Premier's Department to the
appellant:

"I refer to your discussions with the Honourable

the Premier in Cairns on 19th November, 1989.

You will recall that the Honourable the Premier
indicated a preparedness for the Government to
purchase the information collected for and
generated through the studies undertaken by your
Company in addressing the requirements of Special

Leases Nos. 09/47886 and 09/49764.

That matter has been considered by the Government
and it has been approved that an offer be made for
the acquisition of the sole and exclusive rights

to that information.

It will be appreciated that any such offer will
have regard to the costs incurred by your Company
in the collection and generation of that
information from the date of issue of Special

Lease No. 09/67886 to date.

In order that I may make an assessment for the
purposes of making a special offer in written
terms, please advise details of those costs, such
costs to be calculated in October 1989 prices.
In addition, incidental costs arising from
transfer to the State Government of data held by
your Company and consultants but not fully
documented in the study reports should be
detailed.
In providing details as to costs, please identify
the actual materials which are the subject of
those costs and which would be available and

appropriate for purchase."

On 23 November, an employee of the respondent's

engineer, Connell Wagner (Qld) Pty Ltd (formerly Macdonald

Wagner Pty Ltd), sent the following letter to the appellant:

"RE: TRINITY POINT PROJECT

TECHNICAL REPORTS AND INFORMATION

Further to your enquiry regarding reports and
other information obtained by us during the
Trinity Point research project, we advise the
following:

1     Formal Reports

All final versions of formal reports prepared
either by us or our sub-consultants during the
research project were included in either the Phase
A submission to Cabinet (April 1987) or the
development Lease Application (March 1989).
Schedules 1 and 2 respectively provide details of
these reports which were superseded by the final
versions which were submitted as described above
and which have been retained purely in the
interests of maintaining complete records. These
contain no information which is not included in
the formal reports.

2     Progress Reports

Regular reports detailing the progress of the
study were submitted to Trinity Point Hotel Pty
Ltd and copies were forwarded to Premier's
Department for circulation to the relevant
authorities. Schedule 3 includes details of these
reports.

3     Internal Reports

In addition to the above items, several reports
have been produced for internal use. Details of

these are set out in Schedule 4.

4 Computer Data Files
The coastal modelling work involved the use of
three proprietry (sic) computer programs as listed
below:
(a) Longwave - two-dimensional model.
(b) Estry - two-dimensional model
(c) Rubicon - one-dimensional mode;.

Of these programs, licences for (a) and (c) are owned by Connell Wagner while (b) was used on a bureau basis from CEANET.

Data files using the basic data contained in
Coastal Processes Volumes 1 and 2 are archived in
our Brisbane office and can be retrieved, collated

and copied onto magnetic media if required.

In addition to this data we have obtained and
collated records associated with wind and waves
and can provide this if required.

5     Outstanding Reports

As detailed in the Development Lease Application,
a commitment was made to continue research into

the following three areas:

(a) migratory waders
(b) seagrass transplants and artificial reefs

(c) mangrove revegetation.

Field work associated with all the above studies
are now complete and a report has been received
for Item 9(c). Reports for Items (a) and (b) are
currently under preparation and are expected to be
available by the end of the year. Details are
given in Schedule 5.

6     Estimate of Cost to Transfer Data

We estimate the cost to process the outstanding
reports [(a) and (b) under Item 5] and supply a
copy of each report and other items detail with in
Schedule 4 and Item 4 above will be of the order

of $10,000.

As is the usual practice, originals of reports and
drawings and other items will reside with Connell

Wagner.

Reproducible drawings or prints and copies of
other material can be supplied at commercial rates

on request.

The five Schedules attached to that letter were:-

Schedule 1

"TRINITY POINT HOTEL PTY LTD
SCHEDULE NO. 1

FORMAL REPORTS - PHASE A STUDY

TITLE AUTHOR DATE COMMENTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

EXECUTIVE STUDY-PHASE A STUDY

MACDONALD WAGNER APR 1987 SUBMITTED TO PREMIER'S DEPT 3/4/87

PROJECT MANAGEMENT & STUDY MACDONALD WAGNER FEB 1987
BRIEF

GEOTECHNICAL FEASIBILITY	HOLLINGSWORTH SEP 1986	"
STUDY	CONSULTANTS
incl SOURCES OF FILL	HOLLINGSWORTH JAN 1987	"

CONSULTANTS

PRELIMINARY CONCEPT HOLLINGSWORTH FEB 1987 "

EVALUATION REPORT	CONSULTANTS
incl LEGAL OPINION	WILLIAMS GRAHAM SEP 1986 "
AND CARMEN (sic)
incl PLANNING ASPECTS	HOLLINGSWORTH SEP 1986 "
CONSULTANTS
incl ENGINEERING	MACDONALD WAGNER SEP 1986 "
CONSIDERATIONS
incl ENVIRONMENTAL ASPECTS	HOLLINGSWORTH SEP 1986 "

NO 1 CONSULTANTS

ENVIRONMENTAL ASPECTS NO 2 HOLLINGSWORTH SEP 1986 "

CONSULTANTS

LANDSCAPE REPORT	TROPIC	NOV 1986	"
ENVIRONMENT SERVICES"

Schedule 2

"TRINITY POINT HOTEL PTY LTD
SCHEDULE NO. 2

DEVELOPMENT LEASE APPLICATION

TITLE AUTHOR COMMENTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

COASTAL PROCESSES VOL 1 MACDONALD WAGNER SUBMITTED TO PREMIER'S DEPT

incl CURRENT AND WATER LEVEL MAPPING AND HYDROGRAPHIC	"
RECORDING	SERVICES
COASTAL PROCESSES VOL 2	MACDONALD WAGNER "
COASTAL PROCESSES VOL 3	MACDONALD WAGNER "
incl FREQUENCY OF CYCLONE- JAMES COOK UNIVERSITY	"
INDUCED WATER LEVELS
ENVIRONMENTAL ASSESSMENT

VOL 1	DEPT PRIMARY INDUSTRIES	"
ENVIRONMENTAL ASSESSMENT
VOL 2	ENVIRONMENT SCIENCE AND	"
SERVICES
ENVIRONMENTAL ASSESSMENT
VOL 3	ENVIRONMENT SCIENCE AND	"
SERVICES
ENVIRONMENTAL ASSESSMENT
VOL 4	DR J S BUNT	"
GEOTECHNICAL INVESTIGATION	MACDONALD WAGNER	"
VOL 1

GEOTECHNICAL INVESTIGATION MACDONALD WAGNER	"
VOL 2
GEOTECHNICAL INVESTIGATION MACDONALD WAGNER	"
VOL 3
GEOTECHNICAL INVESTIGATION MACDONALD WAGNER	"
VOL 4

incl GEOTECHNICAL DESIGN	HOLLINGSWORTH CONSULTANTS	"
STUDIES
incl MARINA REPORT	WILKINS AND DAVIES	"
PUBLIC CONSULTATION	MACDONALD WAGNER	"
ECONOMIC ASSESSMENT	PLANT LOCATION INTERNATIONAL	"
incl MARKET ASSESSMENT	SHAW SERVICES	"
TRAFFIC ASSESSMENT	EPPELL CONSULTING	"

INFRASTRUCTURE	"
SOURCES OF FILL VOL 1	"
SOURCES OF FILL VOL 2	"

incl GEOTECHNICAL REPORT	HOLLINGSWORTH CONSULTANTS	"
incl DREDGING ADVICE	NEUMANN DREDGING	"
incl SLURRY TRANSPORT	SLURRY SYSTEMS	"
ADVICE
incl BARRON RIVER SAND	UNIVERSITY OF QUEENSLAND	"
QUARRY - HYDRAULICS
incl BIRDSTRIKE ISSUES	ENVIRONMENT SCIENCE AND	"
SERVICES
incl CHEMICAL TESTING	CHEMTEST LABORATORIES	"
incl OVERVIEW OF SAND	MACDONALD WAGNER	"
AND MUD HANDLING"

Schedule 3

"TRINITY POINT HOTEL PTY LTD
SCHEDULE NO. 3

PROGRESS REPORTS - PHASE B STUDY

TITLE AUTHOR DATE SUB.COMMENTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

PHASE B PROGRESS REPORT MACDONALD WAGNER NOV 1987 SUBMITTED TO PREMIER'S DEPT

PROGRESS REPORT - NOV 1987 MACDONALD WAGNER	DEC 1987	"
PROGRESS REPORT - DEC 1987 MACDONALD WAGNER	DEC 1987	"
PROGRESS REPORT - JAN 1988 MACDONALD WAGNER	FEB 1988	"
PROGRESS REPORT - FEB 1988 MACDONALD WAGNER	MAR 1988	"
PROGRESS REPORT - MAR 1988 MACDONALD WAGNER	APR 1988	"
PROGRESS REPORT - APR 1988 MACDONALD WAGNER	MAY 1988	"
PROGRESS REPORT - MAY 1988 MACDONALD WAGNER	JUN 1988	"
PROGRESS REPORT - JUN/JUL
1988	MACDONALD WAGNER AUG 1988	"
PROGRESS REPORT - AUG 1988 MACDONALD WAGNER	SEP 1988	"
PROGRESS REPORT - SEP 1988 MACDONALD WAGNER	OCT 1988	"
PROGRESS REPORT - OCT 1988 MACDONALD WAGNER	DEC 1988	"
PROGRESS REPORT - NOV 1988 MACDONALD WAGNER	DEC 1988	"

Schedule 4

"TRINITY POINT HOTEL PTY LTD
SCHEDULE NO. 4

UNISSUED REPORTS - PHASE A

TITLE AUTHOR COMMENTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

PROJECT MANAGER'S TECHNICAL	MACDONALD WAGNER - MARCH 1987	FOR INTERNAL USE
REPORT"

Schedule 5

"TRINITY POINT HOTEL PTY LTD
SCHEDULE NO. 5

OUTSTANDING REPORTS

TITLE AUTHOR COMMENTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

MIGRATORY WADERS - ADDENDUM	ENVIRONMENT SCIENCE AND	DUE DECEMBER 1989
SERVICES
SEAGRASS TRANSPLANTS &	DEPT PRIMARY INDUSTRIES	DUE DECEMBER 1989
ARTIFICIAL REEFS	- FISHERIES
MANGROVE REVEGETATION -	DEPT PRIMARY INDUSTRIES	JUNE 1989
SMART'S FARM	- BOTANY

Further, on the same day the respondent's accountants,

Shaw White and Associates, wrote to the appellant as follows:

"TRINITY POINT HOTEL PTY LTD

Special Leases: 09/47886

: 09/49764

_____________________________

We refer to your letter dated 22 November, 1989
addressed to Mr J.A. Dowson, a director of Trinity
Point Hotel Pty Ltd, lessee named in the Special
Leases granted by the Government of Queensland for
the purpose of enabling studies to be made of the
leased area. The purpose of such studies being
principally to determine the physical, financial
and ecological feasibility of undertaking

commercial development of the leased area.

The lessee has instructed us to prepare a
statement of costs incurred in the collection and
generation of information through those studies
and to submit same to you preparatory to the
making of an offer by the Government for the

purchase of that information.

We have accordingly reviewed the records submitted
to us for consideration and calculate the costs
incurred at a $3,390,359. The basis of
calculation of this sum is set out on the attached

schedules.

We understand that Connell Wagner Pty Ltd will be
providing separately details of the actual

material which will be available.

Should you require any further information from us
in this regard, please do not hesitate to contact

us."

[The schedules attached included details of
accounts from Macdonald Wagner and Connell Wagner
and payments thereof (both actual and indexed to
30 September 1989 C.P.I.) and details of "OTHER
COSTS" (actual and similarly indexed).]

Both letters and associated documents were delivered by

representatives of the respondent to employees of the
appellant at a meeting on 24 November 1989. A file note of
the events at that meeting indicates that the more senior of
the appellant's employees who were present said that he
would arrange for the material provided by the respondent to
be examined and would advise the respondent or its
accountant "if further material was required to substantiate
costs". The respondent's accountant, Mr Shaw, who was also
present, "... agreed to arrange for copies of all accounts
not already provided for amounts over $10,000 to be faxed
..." that day.

On 30 November 1989, at its last meeting prior to the

election, the Executive Council made a decision in
accordance with the following minute:

"That approval be granted to expenditure of $3,280,000
for acquisition from Trinity Point Hotel Pty Ltd of
technical data collected in relation to the Trinity
Point Development Studies".

Later that day, the following letter was sent from the appellant to the respondent:

"I refer to my letter of 22nd November, 1989 and
to information subsequently supplied to me in
letters dated 23rd November, 1989 from Shaw White
and Associates and Connell Wagner, and to
additional information supplied by Shaw White and
Associates in facsimiles dated 24th November, 1989

and 27th November, 1989.

On the basis of the information provided it is
assessed that expenditures related to information
collected for and generated through the studies
undertaken by and for your Company in addressing
the requirements of Special Leases No. 09/47886
and 09/49764 is $3,262,631 and it has been
approved that an offer be made to your Company for
that acquisition of the sole and exclusive rights

to that information by the State for this amount.

This amount has been assessed on the basis of
exclusion of some costs directly related to the
public affairs programme undertaken by your
Company.

Upon receipt of your written acceptance of this offer, I will arrange for a deed to be drawn up transferring the sole and exclusive rights in this

information to the State Government.
The deed would be subject to the following conditions:

(a)  a warranty by the Company that it is the lawful owner of all rights in the information and has the capacity to transfer the sole and exclusive rights in the information to the State;

(b)  completion on a specified date some 30 days from the date of acceptance;

(c)	that prior to completion, the Company must satisfy the State by such documentary or other evidence as the State may require, that it is the legal owner of all the information and in the event that the Company is shown to be not the legal owner of any item of information, the Company will obtain assignment of the rights in that information to it so that the Company is in a position to transfer all the rights in the information to the State at completion;
(d)	where information in the custody of any third party is yet to be documented, the Company will, at the cost of the State, do all acts and execute all agreements necessary to bring the information into documented form so that the rights in the information are able to be transferred to the State on date of complete (sic) or such later date as the parties may agree;
(e)	where data is held by third party in computer compatible form that data will be transferred to the State at date of completion and the Company will do all acts and enter into all agreements necessary for that purpose; and
(f)	where the Company fails to obtain all rights in the information before date for completion or fails to fulfil its obligations under the agreement, the State may terminate and neither party will have any claim against the other in respect of any matter arising thereunder.

I note from the correspondence referred to in the
first paragraph of this letter that your project
managers, Connell Wagner, are the custodians of
all project related information that has yet to be
documented and also of some data held in computer

compatible form.

The State will require an undertaking from Connell
Wagner that all such information, save such
proprietary computer programs as identified in
paragraph 4 of that Company's letter to you of
23rd November, 1989 (Reference DDR:FH MCK20600)

will be made available upon request to agencies
nominated by this Department, subject only to the
payment of that Company's current rates for
copying and collation of information.
The deed will contain a schedule of the
information the subject of the agreement between
the parties and the schedule will include the
information currently in the custody of Connell
Wagner that has yet to be documented and also the
data held in computer compatible form."

On the following day, the last day before the election,

the offer contained in that letter was accepted by the
following letter sent by the respondent to the appellant:

"We acknowledge receipt of your letter of the 30th

November 1989.

The company accepts the offer and the conditions

as set out therein.

We look forward to receiving the Deed reflecting
the Agreement constituted by the correspondence
and accordingly settlement will be on or before
the 31st December 1989."

On the same day, there was considerable activity on the

part of the respondent, encouraged by a senior officer in
the Premier's Department, who told the respondent that
Executive Council had approved payment and wanted to pay the
respondent as quickly as possible. Steps taken that day,

Friday 1 December 1989, included the following:

(i) a letter from the respondent to Connell Wagner in

the following terms:

"Re: Trinity Point Hotel Pty. Ltd."

I advise that the Company has today entered into an Agreement with the State Government for the sale of its proprietary rights to the

technical reports and information accumulated

during the Trinity Point research project.

It will transfer its legal ownership to the
information on or before the 31st December

1989.

As Project Manager and Principal Consultant
we would request that you notify all sub-
consultants of this agreed assignment . . . .
. ."

(ii) Connell Wagner wrote the following letter to the

sub-consultants listed below:

"RE: TRINITY POINT"

TECHNICAL REPORT AND INFORMATION

We wish to advise that, further to recent
decisions regarding Trinity Point, Trinity Point
Hotel has entered into an agreement with the
Queensland Government to sell its proprietary
rights to reports and information accumulated

during the Trinity Point research project.

A copy of Trinity Point Hotel's letter of
even date to us to that effect is attached

for your information.

As from the date of completion of the
assignment, the proprietary rights to that
information will reside with the Queensland
Government who will be deemed to be the
Principal and be deemed to have all rights in
respect of the subject reports and other
information as if it had commissioned and

paid for that material.

You will be further notified following

completion of the assignment.

We wish to thank you for your efforts in
contributing to this research project and
advise you of Trinity Point Hotel's
appreciation."
Tropical Environment Services
B & M Public Affairs
Queensland Water Resources Commission
Wilkins and Davies
Professor C. Apelt Department of Civil

Engineering,

University of Queensland, St. Lucia

Neumann Dredging, Currumbin
Slurry Systems
Chemtest Laboratories
Eppell Consulting
Professor E. Bird, Geostudies, Black Rock
Plant Location International
Dr R.R. Noakes, RAAN Consulting Service
Dr J. Bunt
Dr R. Dowling, Botany Branch, Department of
Primary

Industries, Brisbane

B.R. Pollock, Fisheries Branch, Department of
Primary Industries, Brisbane

T. Hardy, Department of Civil and Systems

Engineering,

James Cook University, Townsville
Dr R. Foott, Foott and Associates, San Francisco,
U.S.A.
Environment Science and Services
Hollingsworth Consultants, Cairns

Bligh Robinson, Brisbane

(iii) Connell Wagner sent the following letter to the

respondent:

"RE: TRINITY POINT PROJECT

TECHNICAL REPORTS AND INFORMATION

We acknowledge receipt of your facsimile
letter dated 1 December advising of your
intended sale of proprietary rights as

Principal.

As requested we have advised all our
subconsultants of the above and will forward
a copy of the relevant letter and

distribution list in due course.

. . . . . ."

(iv) Connell Wagner wrote to the respondent attaching
copies of letters which it had sent to "all sub-
consultants as requested".

(v)  Connell Wagner wrote to the appellant as follows:

"RE: TRINITY POINT

TECHNICAL REPORTS AND INFORMATION

We attach a copy of a letter received from
Trinity Point Hotel Pty Ltd notifying us of
an agreement reached for the sale of that
company's proprietary rights to information
and reports prepared during the Trinity Point
research project.
We acknowledge that as from the date of
completion of the assignment, the proprietary
rights to that information will reside with
the Queensland Government who will be deemed
to be the Principal and be deemed to have all
rights in respect of those reports as if they

had commissioned and paid for that material.

When the outstanding technical reports as set
out in Schedule 5 of our letter dated 23
November 1989 are received, they will be
processed and copies forwarded to Premier's
Department as Principal. We understand that
the cost for the above work will be met by

the Queensland Government.

We undertake that all such information, save
such proprietary computer programs as
identified in paragraph 4 of our letter to
Trinity Point Hotel of 23 November 1989
(reference DRR:FH MCK20600 - copy attached)
will be made available upon request to
agencies nominated by Premier's Department,
subject only to the payment of our current
rates for copying and collation of

information.

We advise that letters have been sent to all
sub-consultants advising them of the above
state of affairs. Copies of the Trinity
Point Hotel's letter referred to above have

also been forwarded to sub-consultants."

(vi) Although the appellant's offer to the respondent
of 30 November 1989 stated that the appellant would
arrange for a deed to be drawn up upon receipt of the
respondent's written acceptance of the offer, an
arrangement was made between a director of the
respondent and an employee of the appellant for the
respondent to prepare the deed to hasten the process.
(vii) The respondent prepared and executed a deed in

the following terms:

"This Deed is made this day of 1989
BETWEEN THE GOVERNMENT OF THE STATE OF QUEENSLAND
in right of the Crown ("the Government") of the
first part
AND TRINITY POINT HOTEL PTY LIMITED of 107 The
Esplanade, Cairns ("the Company") of the second
part
WHEREAS:-

1.    The Government has agreed to purchase and

acquire from the Company its proprietary rights to
the technical information and the reports
accumulated by or on behalf of the Company during
the Trinity Point research project commencing from
the issue of Special Lease No. 09/47886 and
thereafter during Special lease No. 09/49764
(hereinafter collectively called "the
information"); and whereas

2.    The Company has agreed to assign to the

Government all its proprietary right in and to
that information and to those reports which are
more particularly set out in the first schedule
hereto for the price and subject to the terms,

covenants and conditions as hereinafter set out.

NOW THIS DEED WITNESSETH AS FOLLOWS:-

1.	The Company is the lawful owner of the information and reports more particularly set out in the first schedule hereto and warrants that it has the proprietary rights to the information and further that it has the unencumbered and unfettered rights to transfer the sole and exclusive rights to that information as it deems fit.
2.	In consideration of these presents and in consideration of payment of the sum of $3,262,631.00 (being the cost to the Company of compiling the information) by the Government to the Company the Company shall assign and transfer to the Government the whole of its right title and interest in and to the information for the sole and exclusive use of the Government as the Government may in its absolute discretion deem fit so to use and it is acknowledged by the parties hereto that upon payment of the said sum all proprietary right to the information shall thereupon vest in the Crown absolutely.
3.	The Company shall give notice or shall cause to be given notice of that assignment to all authors of any report and all consultants or sub-consultants associated with the preparation and compilation of any report, material or study herein referred to such notice to be given within seven (7) days of the date of completion.

4.    Completion of this assignment shall be effected on or before 31st December 1989.

5.	On or before the date of completion the Company shall satisfy the Government by such documentary or other evidence as the Government may require that it is the legal owner of the information and if it is not the owner of any such information then it will cause the proprietary rights of that information to be assigned ultimately to the Crown on the date of completion.
6.	It is acknowledged by the parties that where information is in custody of any third party and that information is yet to be documented then the company shall do all such acts and execute any agreements which may be necessary to cause that information to be documented at the cost and expense of the Government so that the information is capable of being assigned to the Government on the date of completion or on such other date as the parties may agree and for that purpose notice of the assignment of the Companys proprietary rights to any documented information shall be given by the Company to that third party in writing and such notice shall be sufficient to evidence the assignment by the Company to the Government of the proprietary right to the information.
7.	The parties acknowledge that certain computer data files exist and that the proprietary rights to those computer programs noted as (a) Longwave - 2 dimensional model and (b) Estry - 2 dimensional model are held by and are the property of Connell Wagner and the computer program known as Ribicon - 1 dimensional model is owned by and is the property of CEANET and it is acknowledged by the parties that the Company has no proprietary interest in these programs.
8.	It is acknowledged by the parties that the Company has no proprietary rights to data files relating to collated records of wind and waves and contained in Coastal Processing Volumes 1 and 2 but the Government may in its discretion seek at its own cost the retrieval collation or copying of that data onto magnetic media from Connell Wagner.
9.	The Company shall assign or cause to be assigned to the Crown all other computer data in a compatible form where proprietary right is held by the Company and the Company will upon receipt of a notice directed to it by the Government do all such things and sign all such agreements as may be necessary to effect such an assignment.
10.	The parties acknowledge that certain information is in the custody of third parties in respect of completion of certain ongoing studies and reports relating to:- (a) Migatory Waders; (b) Seagrass transplants and artificial reefs; (c) Mangrove revegetation. AND further the parties agree that the Company will at the cost of the Government do all such acts and things and execute all or any such agreements as may be necessary to cause those studies and information to be documented and further the parties acknowledge that the proprietary rights in respect of such studies and information when completed shall be the Agreement vest in the Crown absolutely whether such reports are documented at the date of settlement or not.
11.	The Company shall on or before the date of completion obtain a written undertaking from Connell Wagner that all the information shall be delivered or made available immediately upon request of any Government Department, Agency or any other person, company or association whatsoever as may be nominated by the Crown such delivery shall be unconditional save and accept for any payment to Connell Wagner of its then current rates for copying and collating the information.
12.	If the Company should fail to obtain all proprietary rights to the information before the date of completion or should fail to comply and fulfil its obligations under the agreement then the Government may terminate this agreement by notice in writing and neither party shall have any claim against the other in respect of any matter arising thereunder.
THE COMMON SEAL of TRINITY	)
POINT HOTEL PTY LTD was hereunto	)
affixed by authority of a	)
resolution of the Board of	)
Directors in the presence of	)

JOHN ANTHONY DOWSON the Secretary a Director

)

and IGNAZIO SCIACCA a Director	)
in the presence of:-	)
A Justice of the Peace/Solicitor
SIGNED FOR AND ON BEHALF OF"

)

(viii) The respondent transmitted by facsimile to the
appellant a copy of that deed, copies of the letters
referred to above in (i), (iii) and (v), and a further
letter which concluded:

"We would refer to all the correspondence of
Connell Wagner (Qld) Pty. Ltd., including the
recent correspondence and the letter of 23
November 1989 in support of our warranty of
proprietorship in the information and believe this
constitutes satisfactory ownership and evidence of
our entitlement to assign that information

pursuant to the Agreement reached."

(ix) The respondent executed a second deed in the

following terms:

"This Deed Poll is made this 1st day of December 1989
BY TRINITY POINT HOTEL PTY. LIMITED of 107 The

Esplanade, Cairns ("the Company")

WHEREAS:-
1. The Government of the State of Queensland ("the

Government") has agreed to purchase and acquire from
the Company its proprietary rights to the technical
information and the reports accumulated by or on behalf
of the Company during the Trinity Point research
project commencing from the issue of Special Lease
No.09/478886 and thereafter during Special Lease No.
09/49764 (hereinafter collectively called `the
information'); and whereas

2. The Company has agreed to assign to the Government

all its proprietary right in and to that information
and to those reports which are more particularly set
out in the first schedule hereto for the price and
subject to the terms, covenants and conditions as
hereinafter set out.

NOW THIS DEED WITNESSETH AS FOLLOWS:-
1. The Company is the lawful owner of the information
and reports more particularly set out in the first
schedule hereto and warrants that it has the
proprietary rights to the information and further that
it has the unencumbered and unfettered rights to
transfer the sole and exclusive rights to that
information as it deems fit.
2. In consideration of payment of the sum of
$3,262,631.00 (being the cost to the Company of
compiling the information) by the Government to the
Company the Company shall assign and transfer to the
Government the whole of its right title and interest in
and to the information for the sole and exclusive use
of the Government as the Government may in its absolute
discretion deem fit so to use and it is acknowledged by
the parties hereto that upon payment of the said sum
all proprietary right to the information shall
thereupon vest in the Crown absolutely.
3. The Company shall give notice or shall cause to be
given notice of that assignment to all author is of any
report and all consultants or sub-consultants
associated with the preparation and compilation of any
report, material or study herein referred to such
notice to be given within seven (7) days of the date of
completion.
4. Completion of the assignment has been agreed to be
effected on or before 31st December 1989.
5. On or before the date of completion the company
shall satisfy the Government by such documentary or
other evidence as the Government may require that it
is the legal owner of the information and if it is not
the owner of any such information then it will cause
the proprietary rights of that information to be
assigned ultimately to the Crown on the date of
completion.
6. Where information is in custody of any third party
and that information is yet to be documented then the
company shall do all such acts and execute any
agreements which may be necessary to cause that
information to be documented at the cost and expense of
the government so that the information is capable of
being assigned to the Government on the date of
completion or on such other date as the parties may
agree and for that purpose notice of the assignment of
the Companys proprietary rights to any documented
information shall be given by the Company to that third

party in writing and such notice shall be sufficient

to evidence the assignment by the Company to the
government of the proprietary right to the information.
7. Certain computer data files exist and that the
proprietary rights to those computer programs noted as
(a) Longwave - 2 dimensional model and (b) Estry - 2
dimensional model are held by and are the property of
Connell Wagner and the computer program known as
Ribicon - 1 dimensional model is owned by and is the
property of CEANET and it is acknowledged by the
parties that the Company has no proprietary interest in
these programs.
8. The Company has no proprietary rights to data files
relating to collated records of wind and waves and
contained in Coastal Processing Volumes 1 and 2 but the
government may in its discretion seek at its own cost
the retrieval collation or copying of that data onto
magnetic media from Connell Wagner.
9. The Company shall assign or cause to be assigned to
the Crown all other computer data in a compatible form
where proprietary right is held by the Company and the
Company will upon receipt of a notice directed to it by
the Government do all such things and sign all such
agreements as may be necessary to effect such an
assignment.
10. Certain information is in the custody of third
parties in respect of completion of certain ongoing
studies and reports relating to:-
(a) Migatory Waders;
(b) Seagrass transplants and artificial reefs;
(c) Mangrove revegetation.
AND further it has been agreed that the Company will at
the cost of the Government do all such acts and things
and execute all or any such agreements as may be
necessary to cause those studies and information to be
documented and further the parties acknowledge that the
proprietary rights in respect of such studies and
information when completed shall by the agreement vest
in the Crown absolutely whether such reports are
documented at the date of settlement or not.
11. The Company shall on or before the date of
completion obtain a written undertaking from Connell
Wagner that all the information shall be delivered or
made available immediately upon request of any
Government Department, Agency or any other person,
company or association whatsoever as may be nominated
by the Crown such delivery shall be unconditional save
and accept for any payment to Connell Wagner of its
then current rates for copying and collating the
information.
12. If the Company should fail to obtain all
proprietary rights to the information before the date
of completion or should fail to comply and fulfil its
obligations under the agreement then the Government may
terminate this agreement by notice in writing and
neither party shall have any claim against the other in
respect of any matter arising thereunder.
THE COMMON SEAL of TRINITY )
POINT HOTEL PTY. LTD. was hereunto )
affixed by authority of a resolution )
of the Board of Directors in the presence )
of JOHN ANTHONY DOWSON Director )

and IGNAZIO SCIACCA a Director and in the )

presence of:- )

A Justice of the Peace/Solicitor"

On the following Monday, 4 December 1989, the first

business day after the election, a further meeting took
place in circumstances in which it was apparent that the
election had resulted in a change of government. Those
present at the meeting were the two senior employees of the
appellant who had had most to do with the matter and a
director of the respondent supported by a member of the
defeated Government. The originals of both deeds, signed by
the respondent, were provided to the appellant at that
meeting, as were copies of the letters which Connell Wagner
had sent to the sub-consultants on 1 December 1989. A
perceived need for urgency was accepted by all present at
that meeting. The senior employee of the appellant who was
there said that advice would be sought from the Crown
Solicitor and that, although the documentation prepared by
the respondent provided for completion on 31 December 1989,
the appellant wanted to make payment before then. The
respondent's representatives said that they would remain in
Brisbane until payment was made and advised where they could
be contacted.

Later that day, the appellant provided copies of the

deeds which had been signed by the respondent to the Crown Solicitor and sought advice which was received on that and the next day.

On the second of those days, 5 December 1989, an

employee of the appellant telephoned an employee of Connell
Wagner and they discussed requirements of the appellant
following advice which had been received from the Crown
Solicitor. It was agreed that additional information would
be obtained and provided by Connell Wagner and that
discussions would be held in Cairns on 7 December. Further,
a letter would be sent setting out the appellant's
requirements, as was done that day.

On 5 December, letters were also exchanged between the

appellant and the respondent. The latter, which was
probably the earlier in point of time but not by much,
sought confirmation of a number of matters, including that
"an offer and acceptance constituting an agreement exists
between us". Its second last and last paragraphs were as

follows:

"The Government should also be aware that consultants
or sub-consultants have no power to assign material or
information which we had paid for and is our property.

Could you confirm that this is your understanding?

We have by notice delivered the consultant (and
sub-consultants by our consultant) of the agreed
assignment which will have the effect of making
the Government the Principal in our place."

The letter from the appellant dated 5 December 1989 was as follows:

"I refer to your letters of 1st and 4th December, 1989
forwarding draft Deeds relating to the proposed
purchase by the Government of proprietary information

from Trinity Point Hotel Pty. Ltd.

It is advised that these documents have been
reviewed and it is considered that, in a number of
respects, the Crown interests are not adequately

protected in the drafts as proposed.

Principally these matters relate to -

(1) the Company's undertaking to transfer its

rights in the information (whereas the Crown
requires transfer of sole and exclusive
rights whether the Company presently holds

these rights or otherwise)

(2) the adequacy of the schedule in respect of

its identification of all the information as
provided for in the letter of offer.

A revised draft Deed has been prepared and is attached for your consideration.

The schedule as drafted identifies only that
information which is contained in formal reports
prepared for the Company. The Crown's offer to
purchase included all information collected for or
generated during the studies and it is anticipated
that information other than that included in the
study reports would lie within the scope of that
offer. It will, therefore, be necessary to
develop a schedule which more comprehensively
describes the information being acquired by the
Crown and I seek your assistance in the
preparation of such a schedule. Officers of my
Department will be in Cairns on Thursday,
7th December, 1989 and would be available to
consult with representatives of Connell Wagner to
develop the appropriate schedule.
Further, my advice is that it is more appropriate
to have a bilateral Deed than a Deed Poll because
the bilateral Deed more properly and accurately
reflects the arrangements constituted by the

letter of offer and the Company's acceptance.

I have also been advised that the Crown should
request a Deed of Assignment from each of the
various consultants and sub-consultants. Such
assignment would amount to adequate documentary
evidence capable of satisfying the State that the
Company is the legal owner of the relevant
information and that no rights still remain with
the originating authors of any of the material. A
suggested form of Deed for this purpose is also

attached.

Could you please provide me with any comments you
have on the revised Deed and certified copies of
the necessary Deeds of Assignment at your

convenience."

The copies of the deeds referred to (apart from an

incomplete heading on that first mentioned due to a
photocopier malfunction) were as follows:

"1. The Government has agreed to purchase and acquire

from the Company the information collected for and
generated through the studies undertaken by and
for the Company in addressing the requirements of
Special Leases No.09/47886 and 09/49764.

2. The Company has agreed to transfer and assign to
the Government the sole and exclusive proprietary
rights in the information referred to in paragraph
1 for the price and subject to the terms covenants
and conditions as hereinafter set out.

NOW THIS DEED WITNESSES AS FOLLOWS

1.	In this Deed - `the information' means the information collected for and generated through the studies undertaken by and for the Company in addressing the requirements of Special Leases No.09/47886 and 09/49764 and as more particularly set out in the First Schedule hereto.
2.	The Company is the lawful owner of the information and warrants that it has the sole and exclusive proprietary rights in the information and further that it has the unencumbered and unfettered right to transfer the sole and exclusive rights in the information to the State.
3.	In consideration of these presents and in consideration of the payment of the sum of $3,262,631.00 (being the cost to the Company of compiling the information) by the Government to the Company the Company shall and hereby does assign and transfer to the government the sole and exclusive right title and interest in the information for the sole and exclusive use and benefit of the Government and the Company hereby acknowledges that upon payment of the said sum all proprietary rights to the information shall thereupon vest in the Crown absolutely.
4.	The Company shall ensure that every author of any part of the information or any consultant or sub- consultant associated with the preparation or creation of any original material forming part of the information who enjoys any proprietary right (including but not limited to copyright) in the information or any part of the information does all things and executes all agreements necessary to assign and transfer all rights in that information to the Company prior to completion.

5.    Completion of this agreement shall be effected on or before 31 December 1989.

6.	On or before the date of completion the Company shall satisfy the Government by such documentary or other evidence as the Government may require that it is the legal owner of the information and has complied with its obligations pursuant to clause 4 hereof.
7.	The parties acknowledge that certain computer data files exist and that the proprietary rights to those computer programs noted as (a) Longwave - 2 dimensional model and (b) Estry - 2 dimensional model are held by and are the property of Connell Wagner and the computer program known as Rubicon - 1 dimensional model is owned by and is the property of CEANET and it is acknowledged by the parties that the Company has no proprietary interest in these programs.
8.	It is acknowledged by the parties that the Company has no proprietary rights to data files relating to collated records of wind and waves and contained in Coastal Processes Volumes 1 and 2 but the Government may in its discretion seek at its own cost the retrieval collation or copying of that data onto magnetic media from Connell Wagner.
9.	The Company shall deliver up to the Crown all data in computer compatible form which is identified in the First Schedule hereto and shall do all things and sign all such agreements as may be necessary to effect such delivery.
10.	The parties acknowledge that certain information is in the custody of third parties in respect of completion of certain ongoing studies and reports relating to:- (a) migratory waders; (b) seagrass transplants and artificial reefs; (c) mangrove revegetation
11.	AND further the parties agreed that the Company will at the cost of the Government do all such acts and things and execute all or any such agreements as may be necessary to cause those studies and information to be documented and further the parties acknowledge that the proprietary rights in respect of such studies and information when completed shall vest ion the Crown absolutely whether such reports are documented at the date of settlement or not.
12.	If the Company should fail to obtain all proprietary rights to the information before the date of completion or should fail to comply and fulfil its obligations under the agreement then the Government may terminate this agreement by notice in writing and neither party shall have any claim against the other in respect of any matter arising thereunder.

THE COMMON SEAL of TRINITY )
POINT HOTEL PTY. LTD. was )

hereunto affixed by authority	)
of a resolution of the Board	)
of Directors in the presence	)
of	)
a Director and	) )
a Director in the presence of	) )
A JUSTICE OF THE PEACE
SIGNED SEALED AND DELIVERED ) by )

)

"THIS DEED is made this day

of 19 BY

of

(the Assignor)

W H E R E A S

1.	Trinity Point Hotel Pty. Ltd. (the Company) has transferred to the Crown in right of the State of Queensland (the Crown) sole and exclusive rights in the information described in the Schedule hereto (the information).
2.	The Crown requires that the Company obtain from the Assignor an assignment to the Company of all proprietary rights which the Assignor may have in the information.

NOW THIS DEED WITNESSES as follows

That in consideration of these presents the
Assignor assigns and transfers to the Company all
proprietary rights (including but not limited to
copyright) which the Assignor holds in the
information absolutely for the benefit of the
Company and that upon execution of this deed all
proprietary rights of the Assignor in the
information shall vest absolutely in the Company.

THE SCHEDULE

SIGNED SEALED AND DELIVERED ) by )

) )

If a company	)
THE COMMON SEAL of
) ) ) )"

7 December.

That evening, a director of the respondent (Sciacca)

telephoned the senior employee of the appellant who was
directly dealing with the matter (Mulheron). Earlier that
day, Sciacca, who is himself a solicitor, had spoken to the
respondent's solicitor, Mr Geoffrey Clark, a partner in
Williams Graham & Carman of Cairns, and they had formulated
amendments to the Crown Solicitor's draft deed to omit any
requirement that the respondent assign information in the
"public domain". Further the trial judge found that Sciacca
"believed that what the Crown sought in Mulheron's letter of
5 December exceeded the provisions of the contract already
made". The trial judge also made findings in relation to
the telephone conversation between Sciacca and Mulheron. He

said:

"At about 6 p.m. on 5 December 1989 Sciacca telephoned
Mulheron. Mulheron said Crown Law had redrawn the deed
Sciacca had prepared and had also drawn a deed of
assignment. Sciacca referred Mulheron, among other
things, to the notion that some of the information
being purchased was not subject to copyright because it
was in the public domain and said "I hope you are not
trying to set us up for a default by asking us to
perform something which is impossible to perform and
make it a condition precedent". Mulheron replied
"Absolutely not - the documents have been drawn by
Crown Law in absolute good faith". Sciacca responded
by saying in effect "If we are all acting in good faith
then we would attend to all matters that are legally
possible" and Mulheron said "I understand. That's

right.".

It was during this conversation that Mulheron told
Sciacca that Crown Law required a clearer schedule of
what was being transferred and Sciacca replied saying
in effect that Connell Wagner were the only people who
could do that and he would speak to them immediately."

It was also found that Sciacca did speak to Connell Wagner as indicated.

On the following day, on the respondent's instructions, Connell Wagner transmitted the following letter and schedule to the appellant:

"RE: TRINITY POINT - SCHEDULE OF INFORMATION
Further to your request of 5 December, we have
provided the required schedule of information
(other than formal reports or other items
described in our letter dated 22 November 1989)
held by ourselves and our various sub-consultants.
As you will see from the attached schedule, we
have established four categories of
consultant/sub-consultant as determined by the
type of role played in the research project.

These categories are briefly explained below.

MAJOR CONSULTANT (PRIVATE)

Organisations in this category are private
companies which performed original research for
the project and which are capable of assigning
authorship. With the exception of miscellaneous
data file referred to in our letter dated 22
November 1989, the information held but not
included in the formal reports is limited to
notes, calculation and correspondence files,
originals of reports, drawings, and text,
photographs, and miscellaneous third party
published and unpublished data such as is usually
accumulated by consultants in the evolution of
their practices and over which the Principal would

have no rights.

MAJOR CONSULTANT (PUBLIC)

Organisations in this category are public bodies
(either government departments or universities)
which performed original research. Universities
are publicly-funded education and research
institutions and presumably cannot be directed in
the manner of private companies. In the case of
James Cook University, Prof Stark has since died
and in any case, Trinity Point Hotel has
previously granted limited rights of dissemination
of the relevant information within academic

circles (refer attached copy letters).

MINOR CONSULTANT

Organisations in this category performed limited
field work and design work on behalf of Connell
Wagner. In the case of Neumann Dredging, the
field logs obtained from the sand quarry are
included in the relevant report while Slurry
Systems provided a letter (also included in the
formal reports) base on their experience in the
field of slurry transports. While it is possible
that both organisations would have records of
minor calculations and cost estimates, it is
believed that these are of no commercial value or
any worth to anyone. We do not believe that this
work falls within the category of 'original
research'.

OVERVIEW/QUALITY ASSURANCE

The six organisations in this category were not
responsible for any original research as their
role involved the review and/or checking of the
formal reports. In doing so, they made reference
to various third party published and unpublished
material in their possession, none of which was

obtained for the purpose of this research project.

Dr Fott in his role as geotechnical adviser took

various field notes covering his two trips from
San Francisco and performed miscellaneous
preliminary calculations to guide and check the

detailed work being done by the major consultants.

The material supplied with the formal reports are

the results of that guidance. We do not believe
that this work falls within the category of

'original research'.

Each organisation/person in this category provided
Connell Wagner with a written report (or reports,
notes etc) during the evolution of the research
and/or upon completion of the formal reports.
Formal reports from Dr Bunt, Prof Bird, and
Wilkins & Davies are included in the formal
reports while those from the University of
Queensland and Water Resources Commission
consisted of detailed critiques for the purpose of
quality assurance of the work as it progressed and
which were taken into account in preparation of

the final reports.

We trust that the above is satisfactory.

Yours faithfully

CONNELL WAGNER (QLD) PTY LTD

(Signature)

for
J C Blurton
Regional Director

TRINITY POINT HOTEL PTY LTD

SCHEDULE OF INFORMATION HELD BY CONNELL WAGNER AND SUBCONSULTANTS

CATEGORY	ORGANISATION	DISCIPLINE	INFORMATION HELD
Major Consultant (private)	Connell Wagner	Project Management	Correspondence files, Cost data, briefs & full reports, drawings
Public Consultation	Correspondence files, video, fact sheet and project booklet, photographs, drawings, models, display panels
Coastal Processes	Calculation files, aerial photographs (ex Sunmap), drawings, wave and wind records, bathym metric data, system models for longwave
Geotechnical Engineering	Calculation files, quantities, estimates, drawings, schedules
Infrastructure	Calculation and correspondence files, estimates, drawings
Sources of fill - sand	Calculation files, survey information, drawings
Sources of fill - other	Correspondence files, estimates
Hollingsworth Consultants	Geotechnical Investigation	Borehole logs, assorted samples, photographs, drawings, report originals
Geotechnical Engineering	Calculation files, computer analysis data files, drawings, report originals
Sand Quarry Investigations	Borehole logs, assorted samples, photographs, drawings, report originals
Town Planning	Report originals (statement of intent)
Seagrass Mapping	Field notes, aerial photographs (ex Sunmap), report originals (incl. with DPI report), assorted third party literature
Environment Science & Services	Wading birds	Field notes, observation log sheets (collated in report), notes from interviews, assorted third party literature, report originals
Commercial and recreational fishing	Club log book data (ex Trinity Inlet Management Study), ABS data, QCFO reports, notes from interviews, report originals
Birdstrike	Civil Aviation Authority statistics (in report), various third party literature, report originals
Bligh Robinson	Urban Planning & Architecture	Photographs, sketches, models, calculation files, drawings, schedules
Plant Location International	Economic assessment	AB data, correspondence files, records of interviews, various third party literature, report originals
Dr. R. Noakes (Rhan) Services	Economic assessment	ABS data, correspondence files, records of interviews, various third party literature, report originals
Eppell Consulting	Traffic generation	Calculation files, schedules, various third party literature, report originals
Chemtest	Chemical testing	Field and laboratory notes, various third party literature, report originals
Major Consultant (Public)	James Cook University	Extreme water levels	Proprietary computer software, reef terrain data, miscellaneous wind, tide and wave data, various third party literature, report
Dept Primary Industries (Fisheries)	Marine research	Field and laboratory notes, computer database, rough maps, photographs, various third party literature, report originals
Dept Primary Industries (Botany)	Mangrove revegetation	Field notes, various third party literature, report originals
University of Queensland	Barron River hydraulics	Field notes, various third party literature, report originals
Minor Consultant	Helmann Dredging	Dredging Advice	Bore logs (in report)
Slurry Systems	Slurry transport	nil
Overview/Quality Assurance	Dr J S Bunt	Environmental/general	Report originals, various third party literature
Prof E C Bird	Geomorphology	Report originals, Cairns Post Article, various third party literature
Dr R Foott	Geotechnical investigation & design	notes, calculations, report originals
University of Queensland	Coastal modelling	Report originals, various third party literature
Water Resources Commission	Coastal modelling	Report originals, various third party literature
Wilkins & Davies	Marina operations	nil

The trial judge found that the schedule with that

letter was prepared by Connell Wagner as a basis for
discussion during the meeting planned to be held in Cairns

on 7 December.

On the same day as that last letter from Connell

Wagner, 6 December 1989, the respondent's solicitor wrote to the appellant suggesting amendments to the draft deed prepared by the Crown Solicitor which were intended, as the letter said, to reflect the fact that the Government had ready access to information in the public domain. Although it is unnecessary to set out the entire letter, other parts included the following:

"We detect a concern on the Crown's part about access
to information in the public domain and prepared by
Government Departments or Institutions of Research.
Quite clearly this is information which the Government
readily has access to from its own sources. Clearly it
is information which our client has no copyright or
proprietory (sic) interest in.

Clearly that which can be sold is only that which our client has a proprietory interest in and over which it could exercise proprietory (sic) rights so as to exclude access to the Crown to that information. If access is available to the Crown through its own Departments or because information is in the public domain, then clearly that access was never the subject of contemplation of the agreement between the parties.

We confirm that a Director of our client Company
is presently in Brisbane and holds the appropriate
Powers of Attorney to execute the Deed on behalf

of the Company.

The above material and suggestions is offered by
way of an attempt to resolve what appears to be a
technical impasse only and in no way should be
regarded as a retraction by our client Company
from the agreement reached on 1st December, 1989
between the parties and as reflected in the
executed Deed forwarded to the Crown on 1st

December, 1989.

We confirm also that our client's consultants
Connell Wagner, have forwarded an appropriately
comprehensive Schedule of information together
with authors and a brief summary of the nature of
that information.
Should you have any queries arising out of the
above please do not hesitate to contact the
writer, or alternatively you may care to invite
the appropriate person in the Crown Law Department
to contact the writer directly."

Later that day, a meeting took place in Brisbane

between the Director-General of the Premier's Department and
the director of the respondent (Sciacca) and the member of
the outgoing government (Tenni) who had attended the meeting

on 4 December.

Prior to that meeting, Sciacca had executed on behalf
of the respondent a deed in the form prepared by the Crown
Solicitor amended in accordance with the respondent's
solicitors' letter of the same date. That document was
handed over at the meeting to the Director-General of the
Premier's Department, together with copies of the Deed of
Assignment signed by some only of the sub-consultants. (By
the following day, 7 December 1989, which is the date upon
which the appellant asserts the respondent repudiated the
agreement, only seven Deeds of Assignment had been obtained

from Connell Wagner and the following six sub-consultants:-

Environment Science and Services;
Plant Location International;
Eppell Consulting;
Hollingworth Dames & Moore;
Rhan Services Pty Ltd;
Bligh Jessup Robinson Pty Ltd;

None of these deeds included a completed schedule and

nor did the deed executed on behalf of the respondent by
Sciacca. Despite this, Tenni, without dissent from Sciacca,
said at that meeting that "the money should be paid ... as

soon as possible. Legal action will be taken if it is not."

Sciacca said: "We have now completed the agreement. We

treat the agreement as completed except for the payment of
money." The Director-General of the Premier's Department
indicated to the respondent's representatives at the meeting
that the documents would be considered.

He also told them of a further development which had

occurred that day, namely a letter from the outgoing Premier
to the incoming Premier requesting his concurrence to the

execution of the deed by the appellant.

On the following day, 7 December 1989, the new Premier
was sworn in and he expressed a wish that further action be
deferred until he had obtained and considered detailed

advice from the Crown Solicitor.

Mulheron and another employee of the appellant had

flown to Cairns the previous evening and it was contemplated
that the other employee would have discussions concerning
the schedule with Connell Wagner. After speaking to the
Crown Solicitor, they cancelled their appointment,
indicating an intention to later fix another time or to have
telephone discussions, and returned to Brisbane to provide a
full briefing, when, as Mulheron said, "the legal processes

took over".

By the time that occurred, the respondent, by its

solicitor, had sent the letter dated 7 December 1989 which
the appellant contends repudiated the agreement. That

letter provided:

"RE: TRINITY POINT HOTEL PTY LTD - CROWN IN RIGHT

OF THE GOVERNMENT OF QUEENSLAND

We confirm that we act for Trinity Point Hotel

Pty. Ltd. (the Company).

We refer to Agreements entered into between the
Company and the State of Queensland, which have
been the subject of exchange of correspondence

over recent weeks.

We refer in particular to the attendance at your
office yesterday by Mr. Sciacca of our client
Company and the delivery during the course of the
morning of 6th December, 1989 of the Deeds of

Assignment from the various consultants.

As our client is in now in a position where it has
performed all of its obligations under the
Agreement with the Government, our client has now
completed the Agreement.
We are therefore instructed to call for the
Government to complete the Agreement by the
delivery of the funds constituting the purchase
price namely $3,262,631.00.
We note that this amount was demanded by a
Director of our client Company of you yesterday
but that you were not in a position to deliver the

cheque.

Whilst, funds are technically due immediately, our
client is prepared, without prejudice to any of
its rights, and having cognisance of the current
administrative matters which may be concerning the
Government, to delay exercising its rights until
close of business (i.e. 5 p.m. Eastern Summer

Time) on Monday 11th December, 1989.

However, we must advise that we have instructions
to the effect that unless the sum is received into
this firms Trust Account at National Australia
Bank at 14 Shields Street, Cairns Account number
041 8921 by that time then we have instructions to
immediately issue Writs and make application for
Summary Judgment against the Government

immediately thereafter.

The writer is available to discuss any aspect of
this matter as you may wish at any time."
Subsequent events can be summarized relatively briefly.

The trial judge found that, having no reply or response

to their letter of 7 December, the respondent's solicitors
wrote again to the appellant on 13 December in the following

terms:

"RE: TRINITY POINT HOTEL PTY LTD

We refer to previous correspondence and

communications in this matter.

We refer in particular to the penultimate
paragraph of our facsimile letter to you of 7th
December, 1989. We note that we have not received
payment on behalf of our client over the amount
owing to it pursuant to the Agreement entered into
between our client and the Crown in right of the

Government of Queensland.

We confirm that we have instructions to issue
Writs today against the Government. Nevertheless
our clients have indicated that they have never
sought to put this matter in the public arena and
accordingly invite you to contact the writer today
prior to 12:00 noon, Eastern Summer Time, if there
are any matters concerning the delivery of funds
pursuant to the Agreement between our client and
the Government which you wish to put to the
writer."
He also found that the response to that letter was the

following letter dated that day from the Crown Solicitor: "Re: Trinity Point Hotel Pty. Ltd.

I act for the Crown in right of the State of
Queensland with respect to its dealings with the

abovementioned Company, your client.

I refer to your letter of 7 December 1989 in which
you assert that your client "has performed all of
its obligations under the Agreement with the
Government" and in which you insist upon payment

forthwith of the sum of $3,262,631.00.

Without conceding the enforceability of "the
Agreement" to which you refer, the Crown regards
the assertion made on behalf of your client that
it has performed all of its obligations under any
such agreement as being clearly wrong. In the
circumstances, such an assertion also reveals that

your client does not take the contract seriously.

It is apparent from the correspondence emanating
from your client and its consultant Connell Wagner
that your client has not provided to the State of
Queensland sole and exclusive rights to all the
information collected for and generated through
the studies undertaken by and for your client in
addressing the requirements of Special Leases Nos.
09/47886 and 09/49764. Further, your client has
not obtained or provided assignments of the rights
in information held by its consultants so as to
transfer to the State all the rights in the

information.

For your client to assert that it has performed
its obligations (when it has not done so), and to
insist upon payment immediately (when it is not
entitled to do so) involves a clear indication on
the part of your client that it is prepared to
carry out its part of the contract only insofar as
it suits it to do so. Your client's unwillingness
to perform its part of the agreement upon which it

relies is manifest.

In the circumstances, your client's repudiation of
the agreement entitles the Crown to determine the
agreement upon which your client relies.
I am, therefore, instructed to advise you that any
agreement between the Crown and your client is at
an end.
The documents described as deeds of assignment
which were previously forwarded to the Premier's
Department will be returned to you by that
Department forthwith."

It is common ground that, by that letter, the appellant

terminated the agreement if, by then, it had been repudiated
by the respondent.

There was further argumentative correspondence which it

is unnecessary to discuss. Then, on 22 December 1989, the
respondent issued its writ, which was specially endorsed
with a claim for $3,262,631.00 as a debt due and owing. It
was implicit in this claim that the respondent asserted that
it had performed its obligations under the agreement and it
unsuccessfully applied for summary judgment on this basis.
This remained the respondent's position until an Amended
Statement of Claim was delivered almost three years later on
22 September 1992. In that pleading, the respondent
continued to maintain its claim for a debt, but added an
alternative claim for specific performance, which is the
relief which it seeks to maintain on this appeal. The
respondent now accepts that its stand in December 1989, as
manifested by its letters of 7 and 13 December, was wrong,
that it had not satisfied its obligations under the
agreement, and that it was not entitled to immediate payment
and would only have become entitled to payment in return for
performance, or at least substantial performance, of its
part of the agreement which had not occurred. However, it
was argued for the respondent that it nonetheless had not
repudiated the agreement on or prior to 13 December 1989,
when the appellant wrote to terminate the agreement.

The principles applicable to the major issue in dispute

between the parties are not really in doubt. The point has
been considered in the High Court on many occasions,
including a number of recent decisions. Subject to one
matter, it is sufficient to set out two passages, which were
amongst those cited by the trial judge.

In Shevill v. Builders' Licensing Board (1982) 149

C.L.R. 620, Gibbs C.J. (with whose reasons Murphy and

Brennan JJ. agreed) said (at p. 625-6):-

" As Lord Wright pointed out in Heyman v. Darwins
Ltd. (1942) A.C. 356 at p. 378, repudiation is an
ambiguous word and is used in various senses. We
are of course concerned only with a case in which
it is admitted that there was a valid and binding
contract. Such a contract may be repudiated if
one party renounces his liabilities under it -- if
he evinces an intention no longer to be bound by
the contract (Freeth v. Burr (1874) L.R. 9 C.P.
208 at p. 213) or shows that he intends to fulfil
the contract only in a manner substantially
inconsistent with his obligations and not in any
other way (Ross T. Smyth & Co. Ltd. v. T.D.
Bailey, Son & Co. (1940) 3 All E.R. 60 at p. 72;
Carr v. J.A. Berriman Pty. Ltd. (1953) 89 C.L.R.
327 at p. 351). In such a case the innocent party
is entitled to accept the repudiation, thereby
discharging himself from further performance, and
sue for damages: Heyman v. Darwins Ltd. (1942)
A.C. at p. 399."
In Laurinda Pty Ltd v. Capalaba Park Shopping Centre

Pty Ltd (1989) 166 C.L.R. 623, Deane and Dawson JJ. said (at pp. 657-8):-

"Lord Wright's oft-quoted admonition that
'repudiation of a contract is a serious matter,
not to be lightly found or inferred' (Ross T.
Smyth & Co. Ltd. v. T.D. Bailey, Son & Co. (1940)
3 All E.R. 60 at p. 71) is, no doubt, a wise one.

It should not, however, be allowed to cloud the

fact that an allegation of repudiation of contract
in a civil case does not involve an assertion that
the alleged repudiator subjectively intended to
repudiate his obligations. Thus, it is of little
assistance in the present case to identify reasons
why the lessor was unlikely to have subjectively
desired to repudiate its agreement to grant a
lease. An issue of repudiation turns upon
objective acts and omissions and not upon
uncommunicated intention. The question is what
effect the lessor's conduct 'would be reasonably
calculated to have upon a reasonable person' (per
Lord Herschell L.C. Carswell v. Collard (1893) 20
R. (H.L.) 47 at p. 48; Forslind v. Bechely-
Crundall (1922) S.C. (H.L.) 173 at p. 190. It
suffices that viewed objectively, the conduct of
the relevant party has been such as to convey to a
reasonable person in the situation of the other
party, repudiation or disavowal either of the
contract as a whole or of a fundamental obligation
under it."

However, the respondent relies upon a line of authority

which establishes that an incorrect stance with respect to
contractual obligations is not necessarily a repudiation of
the contract. Thus, in DTR Nominees Pty Ltd v. Mona Homes
Pty Ltd (1978) 138 C.L.R. 423, Stephen, Mason and Jacobs JJ,
with whom Aickin J. agreed, said at p. 432-433:

"No doubt there are cases in which a party, by
insisting on an incorrect interpretation of a
contract, evinces an intention that he will not
perform the contract according to its terms. But
there are other cases in which a party, though
asserting a wrong view of a contract because he
believes it to be correct, is willing to perform
the contract according to its tenor. He may be
willing to recognize his heresy once the true
doctrine is enunciated or he may be willing to
accept an authoritative exposition of the correct
interpretation. In either event an intention to
repudiate the contract could not be attributed to

him.

... on the evidence this Court would not be
justified in finding that the appellant acted
otherwise than in accordance with a bona fide
belief as to the correctness of the interpretation
which it sought to place upon the contract.
Consequently it is a case of a bona fide dispute
as to the true construction of a contract
expressed in terms which are by no means clear
(see Asprey J.A. in Satellite Estate Pty. Ltd. v.
Jaquet (1968) 71 S.R.(N.S.W.) 126 at p. 149). In
these circumstances the Court is not justified in
drawing an inference that the appellant intended
not to perform the contract according to its terms
or that it repudiated the contract. That being
so, the respondents were not entitled to rescind
the contract for 'anticipatory breach' as they
purported to do by their notice of 19th July

1974."

On the other hand, it is not an answer in every case

that the party accused of repudiation has based its conduct upon an erroneous view of the contract. Thus, for example, it has been said that a purchaser would be entitled to treat

a contract at an end if "the vendor persistently maintained
an untenable construction of the contract": Dainford Ltd v.
Smith (1985) 155 C.L.R. 342 at p. 350 per Gibbs C.J., with
whom Dawson J. agreed; see also pp. 365-366 per Brennan J.,

with whom Mason J. agreed.

In The Progressive Mailing House Pty. Ltd. v. Tabali

Pty Ltd (1985) 157 C.L.R. 17, the High Court held that a lease had been repudiated by a lessee which refused payment of the rent. At p. 37, Mason J., with whom Wilson, Brennan, Deane and Dawson JJ. agreed, said:

"The appellant's excuse for not paying the rent
was that the work specified in the second schedule
had not been carried out satisfactorily. Even
assuming that this claim was well founded it did
not entitle the appellant to refuse to pay the
rent. The appellant persisted in maintaining a
claim which was without any foundation, namely
that it was under no liability to pay the rent
until the work in question was carried out
satisfactorily. This was a refusal to carry out
its obligations according to the terms of the
unregistered lease and a persistence in carrying
them out in a way substantially inconsistent with
these terms.

It is not to the point that the appellant acted in accordance with counsel's advice. This is not a case like D.T.R. Nominees Pty. Ltd. v. Mona Homes Pty. Ltd. (1978) 138 C.L.R. 423, at pp. 431-433 in which there was a bona fide dispute as to the true construction of a contract expressed in unclear terms. Here there was simply no basis in the provisions of the lease to support the appellant's refusal to pay rent. The rent did not represent but a nominal amount or but part of the valuable consideration which the appellant had agreed to provide in return for the right to use and occupancy which it argued under the memorandum of lease. It represented the whole of what the respondent was entitled to receive in the ordinary course in respect of the demised land during the term of the lease in a context where it would continue to be liable for some of the outgoings in respect of the premises.

In the result the evidence supports the conclusion
that the appellant's conduct amounted to a
repudiation of the lease or a fundamental breach
of its obligations under the lease. The fact that
the appellant lodged a caveat on 11 July 1979 to
protect its interest as lessee under the
unregistered lease is not at all inconsistent with
this conclusion. Though maintaining a claim to
the benefit of a contract, a party may repudiate
it or commit a fundamental breach of it by
refusing to perform his obligations according to
its terms."

The respondent does not now maintain the stance which

it adopted in December 1989 (which continued until September
1992) or submit that its view was arguably correct, but
asserts nonetheless that it acted bona fide, relying upon
evidence concerning opinions held by its directors and
solicitor and the material employee of Connell Wagner.
However, this is a wrong approach. Subjective attitudes
with respect to the nature and extent of contractual
obligations do not determine whether or not a repudiatory
intention is established; the intent of the party which has
allegedly repudiated is to be determined as an objective

It may be that unjustified demands are commonly made, of such a kind as to convey unwillingness to comply with the contracts giving rise to them; if so, then those who make such demands should be aware that they may incur risks, illustrated by this case, in doing so.

It is of course clear that the appellant does not have to demonstrate, in order to succeed, that the respondent said that there was no longer any contract or that the respondent denied that the contract created obligations which continued to subsist. Precisely what the appellant must show is a matter which may be variously expressed, according as one chooses a formulation derived from one authority or another; but it is my opinion that for present purposes the test mentioned and applied in the reasons of McPherson J.A. is the appropriate one. I repeat it; there must be words or conduct by which a party "evinces an intention no longer to be bound by the contract...or shows that he intends to fulfil the contract only in a manner substantially inconsistent with his obligations and not in any other way". It is the second alternative which is more relevant here.

It was contended that the manner in which the letter indicated the respondent proposed to fulfil its obligations was substantially inconsistent with its obligations and I can see no good answer to that. Its true position on 7 December was that nothing had been done to obtain title to a substantial part of the information the subject of the agreement; as has been explained, only about a third of the persons and organisations involved had executed assignments and none of those was effective. Despite that, the respondent said, in effect: "We have done all the contract requires and are entitled to be paid; and we will sue if not paid". I should add that Connell Wagner wrote in their letter of 6 December that some of those persons and organisations had nothing in their possession falling within the category of "original research"; but that appears not to be relevant, as the appellant's rights to information under the contract were not confined to that which constituted "original research".

I have mentioned that the contract between the parties called for a deed; it was to be one "transferring the sole and exclusive rights in this information to the State Government". On 6 December, after some prior exchanges on this subject, the respondent gave the appellant an executed deed. A question arises whether that met the contractual requirements and a number of arguments appear to be open suggesting a negative answer. Only one of them requires to be mentioned. Clause 1 of the deed, defining the information assigned by it, included the words "...as more particularly set out in the First Schedule hereto", there being no schedule. The contract expressly provided for the inclusion of a schedule in the deed and the primary judge was of the view that the absence of a schedule falsified the respondent's claim by its letter of 7 December to have performed its obligations under the contract. However, his Honour appeared to have been of the view that the respondent's case got some assistance from the fact that it "regarded the matter of the schedule as something which would be satisfactorily resolved by discussion after the purchase money was paid". With respect, that cannot have anything to do with the question whether on 7 December 1989 the respondent had any right to assert that it had done all the contract required. In my opinion, the judge was right in thinking that the absence of a schedule from the deed made it defective; there was plainly room for argument about the content of the schedule, and in its absence the deed was simply ineffective.

It was, as I understood the argument, suggested that the letter of 7 December did not definitely or finally adopt the stance I have mentioned, and in that connection reliance was placed upon the reference at the end of the letter to the availability of the writer for a discussion. It might be suggested that the sentence qualified the stance unequivocally announced in the earlier part of the letter or indicated that it was to be taken as a tentative one only - exploring the ground, so to speak. I do not think a reasonable recipient of such a letter would take it to be intended to have an effect of that kind, particularly a recipient aware of the attitude orally expressed on behalf of the respondent on the previous day, namely that the respondent had completed the agreement and demanded payment.

In my opinion, a general statement to the effect that the lines of communication remain open would not ordinarily render ineffective a letter which would otherwise be held repudiatory. To conclude that it did so would tend to destroy the point of the doctrine which attaches a penalty to a party's renouncing its obligations under a contract.

One purpose of that doctrine is to enable the other party immediately to free itself from its own obligations, where it appears that the obligations owed to it have been repudiated. To attribute to the last sentence in the letter of 7 December the effect of extracting all the vice from the letter would, in my view, be too generous to those inclined to repudiate their obligations.

Dr Carter suggests, in his work on "Breach of Contract" 2nd ed. at p. 280 that:

"...for bona fides to prevent conduct from constituting a repudiation, it must be established that the proper course for the promisee is to take out a construction summons to vindicate the promisee's construction of the contract."

That appears to me, with respect, not to be supported by authority; but it is nevertheless correct, as the learned author's discussion illustrates, that not every announcement a party makes about the way in which it regards its contractual obligations is excluded from the possibility of being held a repudiation, if shown to be based on a mistake in construction: Luna Park (NSW) Ltd v. Tramways Advertising Pty Ltd (1938) 61 C.L.R. 286, Federal Commerce and Navigation Co. Ltd v. Molena Alpha Inc. [1979] A.C. 757 at 780E, 786D. (There may be some difficulty in reconciling the approach taken in the latter case with that used in Woodar Investment Ltd v. Wimpey Construction UK Ltd (1980) 1 W.L.R. at 277.) A recent statement in Braidotti v. Queensland City Properties Ltd (1991) 172 C.L.R. 293 at 304 refers to the leading High Court authority and to "cases...where a party acts on a mistaken but bona fide interpretation of a contract in circumstances in which it is proper to infer that the party, though maintaining that his or her interpretation of the contract is correct, will perform the contract according to its terms, if the interpretation is shown to be incorrect." The letter primarily relied on by the appellant, that of 7 December, was not one which implied a willingness to act in a way utterly different from that expressed in the letter, on suitable arguments being advanced. Its tone was intransigent, and appears more so if one has regard to the similar communications of 6 December and 13 December. Let it be assumed that in truth the respondent did not mean what it said; it took the risk that the appellant might simply take the respondent at its word, rather than attempt to persuade it to comply with the contract.

Although, as it appeared to me, the respondent's counsel did not strongly press upon us that all the learned primary judge's reasons for holding that there was no repudiation should be adopted, it is necessary to say something of them. His Honour mentioned a number of considerations as favouring his conclusion on the subject, not all of which call for discussion.

The judge pointed out that on 1 December 1989 one Mulheron, on behalf of the appellant, told one Sciacca on behalf of the respondent that the Governor in Council had approved payment and wanted to pay the plaintiff as quickly as possible. His Honour remarked: "This statement...led the plaintiff quite reasonably to anticipate payment well before 31 December 1989". In my respectful opinion, the statement of 1 December made by Mulheron is irrelevant to the present problem. The parties could of course have settled whenever they liked, but the repudiatory letter did not deal with the question whether payment might be expected or conveniently made on a certain date; it demanded payment, on the basis that the respondent had done all that was required of it.

The judge also found that after 7 December 1989, Mulheron and one Cook, who had been having certain discussions with the respondent, had matters "effectively taken out of their hands and they were not permitted to enter into any such discussion". Again, I do not regard that as being an issue which had to be resolved. It was not material that the appellant chose, after 7 December, not to use Messrs Mulheron and Cook to represent it.

Lastly, it appears desirable to make reference to his Honour's expressed view that the appellant was not a "reasonable person" at the relevant time. That observation follows shortly after his Honour's statement of the test to be applied as including "the effect of the plaintiff's conduct on a reasonable person in the shoes of the defendant". The opinion that the appellant was not a reasonable person was based on the fact that "the Premier's views as to paying the plaintiff were I infer operating in the Government's instructions to the Crown Solicitor". The underlying proposition appears to be that if the party which accepts the repudiation is pleased to be able to do so, because it would prefer not to have to carry the contract out, it is therefore unreasonable and no repudiation by the other side can avail it. In my respectful opinion that proposition is unsound. It may commonly happen that a party is glad to receive a repudiatory letter, because it does not itself wish to carry out the contract dealt with by the letter. This cannot produce the result that the recipient of the letter is not entitled when told by the other party:

"I will not do that which, in substance, the contract requires of me", to reply: "Nor then will I; the contract is at an end". More generally, it is not the law that the right to accept repudiation is denied to those who regard the contract as disadvantageous and would be glad to get rid of it.

As I have mentioned, it was contended on behalf of the respondent that the decision below could be upheld on the basis that the letter of 7 December 1989 put forward or was based upon a bona fide, but mistaken view of the effect of the contract. It appears to me to follow from the above discussion of the respondent's obligation under the contract, and what had been done by 7 December to comply with it, that the submission has no real strength.

Considering the matter objectively, as counsel for the respondent correctly conceded one must do, the letter amounted to a plainly erroneous assertion that the respondent, not having assigned anything like the requisite information to the appellant, was nevertheless entitled to be paid the full price and not obliged to do anything further. There was not put before us any possible construction of the contract which could justify the attitude expressed in the letter of 7 December. What was argued, as I understood it, was that such an attitude might have been justified if the contract had been in terms, not of the contract sued on, but some pre-contractual communications. I am unable to see why the recipient of what would otherwise have been a repudiatory letter should lose the right to accept on such a ground. It has never been in issue that the contract is contained only in the two documents mentioned above.

In my opinion, an inference which might reasonably be drawn is that the respondent's attitude was produced, not by a mistaken view of the effect of the contract, but by the thought that the new government could be bluffed or pressured into settling prematurely, coupled with the notion that it might be difficult, as a practical matter, to comply fully with all the obligations of the contract, as condition (f) seemed to require, in time for settlement during the month of December. Counsel for the respondent used the expression "stratagem or tactic", in reference to the respondent's letter of 7 December. But it is unnecessary to pursue that to a conclusion; to characterise a repudiation as possibly tactical does not deprive it of legal effect.

It is necessary to deal with some other points.

The learned primary judge held that the expression "information" in the contract was to be read as confined to that mentioned in certain schedules to a letter from Connell Wagner dated 23 November 1989 and referred to above, together with certain computer compatible data. As to those schedules, reference to them shows that they refer only to reports, in being or forthcoming. It is my respectful opinion that his Honour's conclusion on that aspect of the matter is erroneous. By no permissible process of construction can the expression used in the contract, "information collected for and generated through the studies undertaken by and for your company...", be so far read down as to exclude all information other than that which has been or is to be embodied in reports. The expression quoted is not capable of that meaning; nor, with respect, does anything in the rest of the contract give support to his Honour's interpretation. If the parties had intended that the sum agreed be paid for such information only as might be embodied in reports, it would have been simple enough to say so. Only by a process of rectification - and a rather drastic one at that - could the parties' agreement be treated as having the content found by his Honour. However, the point seems peripheral, for on any view it is clear that the demand made on 7 December was one which had no basis in law and that it was founded on an entirely wrong assertion that the respondent had done all it was obliged to do.

Next, reference should be made to a second allegedly repudiatory letter relied on by the appellant, that of 13 December 1989. I think it unnecessary to set out the terms of that letter, which are mentioned in the President's reasons. Its only importance is that it echoes the letter of 7 December insofar as it invites the appellant to contact the writer. However, the proposed subject of contact is only "matters concerning the delivery of funds pursuant to the agreement...", confirming to some extent the notion that the reference at the end of the letter of 7 December to the possibility of discussion was not intended to qualify the assertions contained in that letter.

Lastly, it should be mentioned that there is some support in the United States for the view that there might be two levels of repudiation: one in which a communication is made of such a kind as to create doubts in one party about the other's intention to complete the contract, and the higher level, corresponding to the notion of repudiation in our law. I refer to Williston on Contracts 3rd Ed. Vol.11 pp. 111-112, 138. The point of the distinction is that at the lower level the only right given to the "innocent party" is to put an end to the contract, whereas at the higher level damages may be able to be recovered as well. In my respectful opinion the distinction makes some practical sense, but it is not open to an intermediate Australian appellate court to adopt or rely upon it.

The appeal should be allowed on the ground that the respondent repudiated the contract by demonstrating an intention to act on it "only in a way substantially inconsistent with [its] obligations and not in any other way". I would set aside the orders made by the learned primary judge and in lieu of them order that the respondent's action be dismissed, and I would order that the respondent pay the costs here and below.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 36 of 1993

Brisbane

Before The President
Mr Justice Pincus
Mr Justice McPherson

[State of Queensland v. Trinity Point Hotel]

BETWEEN

STATE OF QUEENSLAND Appellant

AND

TRINITY POINT HOTEL PTY LTD Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the Twenty First day of October 1993

The first and the principal question on this appeal is whether, as the appellant submits, there was a repudiation of the contract by the respondent that brought it within the scope of the rule entitling the appellant as the other party to treat the contract as discharged. To constitute such repudiation, there must be words or conduct by which a party "evinces an intention no longer to be bound by the contract ... or shows that he intends to fulfil the contract only in a manner substantially inconsistent with his obligations and not in any other way". See Shevill v. Builders Licensing Board (1982) 149 C.L.R. 620, 625-626, per Gibbs C.J., adopted by Mason J. with the concurrence of Wilson, Deane and Dawson JJ. in Progressive Mailing House Pty Ltd v. Tabali Pty Ltd (1985) 157 C.L.R. 17, 33.

This appeal is concerned primarily with the applicability of that principle. In the present case the repudiation is said to have been brought about by the words used in the letter of 7 December 1989 from respondents' solicitors in Cairns to the Premier's Department. The letter contains no express repudiation. There is nothing in it that says the contract is no longer binding, or that the respondent will not perform it, or intends to fulfil it in any particular manner. The argument that a repudiation is involved must therefore rest on inference or, more accurately, implication from the terms of the letter itself.

I do not find it possible to derive from the contents of the letter an intention on the part of the respondent either that it would not any longer be bound by the contract, or that it would perform the contract only in a manner that was inconsistent with its obligations. The letter on analysis yields only three matters of present relevance. The first is the assertion that the respondent "has performed all of its obligations" under the agreement with the appellant, and so has "now completed" the agreement. The second is the claim that the contract price of $3,262,631 is due "immediately" coupled with a demand on the appellant that it pay that sum by 5 p.m. on 11 December 1989. The third is the further statement that the solicitors have instructions that, unless the sum is received by the time specified, they are to issue writs and apply for summary judgment immediately.

Of these three matters, it is plain that the particular assertion that the money was due and payable was not capable of conveying the requisite intention to repudiate.

Premature demands for payment of debts, whether or not they are accompanied by threats of legal proceedings, are a recurrent feature of legal and commercial life. There is sometimes reason to suspect that such demands are made in the full knowledge that the debt claimed, or a part of it, may not be due at all. Neither that circumstance, nor the fact that the demand is coupled with a threat to enforce it by action, adds anything in the nature of a repudiation to the demand itself. It is largely a sabre-rattling ritual and commonly recognised as such.

If the intention to repudiate is to be discovered in the letter, it can be found, if at all, only in the assertion that the respondent had "completed" the agreement and "performed all its obligations" under the contract with the appellant. For this claim there was no factual or legal foundation whatever. So much is now acknowledged by the respondent. Again, however, experience shows that groundless overstatements of that kind are not unknown in letters of demand written by lawyers on the instructions of their clients. It would be exceptional for anyone to view them as evincing an intention no longer to be bound by the contract. On the contrary, and particularly when taken with a demand for payment like the one made here, it is the essence of such an assertion that the contract is binding on both parties, and that the other party should at once attend to performing his part of it.

If (as I consider) the statements in the letter fail to evince an intention not to be bound, the only remaining basis on which they might be brought within the scope of the principle in Shevill's case is that they reveal an intention on the part of the respondent "to fulfil the contract only in a manner substantially inconsistent with [its] obligations, and not in any other way". Stated like that the principle is not apt to cover the present case, where the matter to which the respondent's letter was directed was not the future fulfilment of its own obligations (which it claimed were already complete) but the performance by the appellant of its obligations under the contract, which were alleged to be due immediately. For the appellant to sustain an argument based on a repudiation in this form, it would at the very least have to show that, in demanding from the appellant immediate payment in consequence of its own asserted complete performance, the respondent was also insisting on interpreting the contract in a manner that treated all of its obligations as having been completely satisfied : cf. D.T.R. Nominees Pty Ltd v. Mona Homes Pty Ltd (1978) 138 C.L.R. 423, 433.

To approach the question here in that fashion would, it seems to me, be quite artificial. There is not a hint of anything about interpretation in the letter. At the time of writing it the respondent was obviously not engrossed in any such question. It was simply demanding something that was not (yet) due to it under the contact, and which, it may fairly be assumed, was known by both parties not to be due to it. The case is not directly covered by what was said in Shevill. Comparable circumstances do not appear to have been considered or analysed from the standpoint of a repudiation in any English or Australian case unless Morris v. Barron & Co. [1918] A.C. 1, 41, can be viewed as an example. Such cases have, however, arisen with such relative frequency in the United States as to produce a rule or principle, which is stated in Corbin on Contracts, vol.4, §973, at 910, as follows:

"If one party to a contract, either wilfully or by mistake, demands of the other a performance to which he has no right under the contract and states definitely that, unless his demand is complied with, he will not render his promised performance .... an anticipatory breach has been committed. Such a repudiation is conditional in character, it is true; but the condition is a performance to which the repudiator has no right."

The authorities used by Corbin in formulating this principle include Michigan Yacht & Power Co. v. Busch 143 F.929 (1906) and J.A. Humphrey v. Placid Oil Co. 142 F.Supp. 246 (1956). In the first of these cases a purchaser refused to pay an instalment of price due on a vessel being built for him unless he was given security. In holding he had thereby repudiated the contract, the Federal Circuit Court of Appeals said (at 932) it was not a case of simple omission to pay, but of positive refusal by the purchaser to perform the contract unless the other party provided a security there was no obligation to give. In the second of the two cases, the defendant sent a telegram to the plaintiffs insisting that they carry out additional expensive testing procedures not required by their oilwell drilling contract, and concluding:

"We request that [oil] well be properly tested as herein provided, the failure of which will be a material breach of agreement and a forfeiture of all your rights under the same."

In holding it an anticipatory breach justifying rescission, Sheehy C.J. said that, although couched in terms of a request, the telegram was in effect "a positive unconditional statement on the part of the defendant that it would not perform the contract by making payment to the plaintiffs of $25,000" unless the additional testing was carried out. The decision in Placid Oil is the closest I have been able to find to the facts of the present case. It is distinguishable because of the clear threat that was made there to withhold payment if the extra work was not done.

The present case would fall fairly within the principle stated by Corbin if the letter of 7 December had made it plain that there would be no further performance by the respondent unless the appellant paid the price by 11 December, which was something that in the circumstances it was not yet bound to do. The letter did not, however, expressly say that, or anything like it; nor can it properly be considered as impliedly refusing performance of the contract or threatening to refuse it. If it had done so impliedly, it would still probably not have been sufficient to attract the principle. According to Corbin, what is required to constitute repudiation is a "definite and unequivocal manifestation" of intention not to render the promised performance when the time for it arrives : Corbin on Contracts, §973, at 905. Williston says "the defendant's refusal to perform must have been positive and unconditional" : Williston on Contracts, 3rd ed., §1322, at 130. What is stated in those treatises is amply borne out by the terminology adopted in decisions such as Mobley v. New York Life Insurance Co. 295 US 632 ("some unqualified refusal"); Ackley v. Hunter 51 S. 964, 968 ("distinct and unequivocal refusal"); STC Inc. v. Billings 543 P2d. 374, 378 ("positive, unequivocal, absolute expression of intention not to perform").

It seems to me that the principle adopted in the United States should be applied here unless in this particular there is a material difference between that law and ours. I do not think there is. The ordinary meaning of the word repudiation is "to refuse to discharge or acknowledge a debt or other obligation" (O.E.D., applied in William Cory & Son Ltd v. London Corporations [1951] 1 K.B. 8, 14; affd. [1951] 2 K.B. 476). To speak, as the Australian authorities do, of evincing an intention not to perform, or of an intention to perform only in a manner substantially inconsistent with the contract, is to describe a refusal to perform. The American authorities say that the refusal must be "distinct" or "unequivocal", whereas our decisions stress that repudiation is a serious matter, which is not to be lightly found or inferred : Shevill v. Builders Licensing Board (1982) 149 C.L.R. 620, 633; Laurinda Pty Ltd v. Capalaba Park Shopping Centre Pty Ltd (1989) 166 C.L.R. 623, 657. The difference is one of emphasis rather than of substance. In Rawson v. Hobbes (1961) 107 C.L.R. 466, 481, Dixon C.J. spoke of "a definitive resolve or decision against doing in future what the contract requires". His Honour's remarks were there directed specifically to the absence of readiness and willingness by the vendor of land as excusing the purchaser from going on with a sale; but the underlying principle is the same. Indeed, the task of establishing repudiation must needs be more, rather than less, exacting than demonstrating absence of readiness and willingness to perform.

The result therefore is, as I see the matter, that the trial judge was correct in concluding that the respondent had not, by its solicitors' letter of 7 December 1989 or otherwise, repudiated the contract with the appellant. It did not expressly refuse to perform its obligations in the future, and it did not do so impliedly. Although it wrongly claimed to have performed its obligations, and demanded payment for doing so, it did not refuse to render performance in the event that its demand was not complied with. There was on the respondent's part no distinct or unequivocal refusal or expression of intention not to perform, and no definitive resolve against doing in future what the contract required of it. I see nothing at all in the respondent's solicitors' letter of 13 December 1989 that might be said to detract from this conclusion; rather the contrary.

The decision of the trial judge on this aspect should in my opinion not therefore be disturbed.

The second point in the appeal, although it is a subsidiary one, concerns the identity of the contractual subject matter. In the letter dated 30 November 1989 containing the offer it is described as "information collected for and generated through the studies undertaken by and for your Company in addressing the requirements of Special Leases No. 09/47886 and 09/49764 ...". The trial judge considered that the information so described was capable of bearing a narrow or a broad interpretation.

Stated in a general way, the former had the effect of excluding from the matters being transferred some reports of sub-consultants, and also what may be called the primary materials on which a final report had been based; for example, field notes, surveys, working papers, calculations and so on.

Items like these appear to fall within the literal terms of the subject matter as it is described in the letter of offer. Such items might also be thought fairly to have been within the contemplation of the parties in using the word information. The trial judge nevertheless preferred the narrow meaning of the contract, which excluded items of the kind mentioned. In doing so, he was influenced by evidence of prior negotiations and discussions between the parties or their representatives, and by the impression he formed of the genesis and purpose of the contract.

There is no doubt that parole evidence of surrounding circumstances may be used to identify the subject matter of a written contract, and that evidence of the knowledge of the parties is a circumstance that on occasions may be capable of being derived from prior negotiations. See

Codelfa Constructions Pty Ltd v. State Rail Authorities of

NSW (1982) 149 C.L.R. 337, 348-352. Before us the appellant contended that, even so, parole evidence is not available for the purpose of identifying a subject matter except where there was some element of ambiguity in the contractual description, which it was submitted was not so here.

I am inclined to agree that there is no apparent ambiguity in the subject matter as it is described in the letter dated 30 November. Whether or not that means that parole evidence ought to have been excluded from consideration, I have not found anything in the particular evidence in question helpful in confirming the respondent's claim that the contractual subject matter should be approached in the narrow manner contended for. The fact that before the letter of 30 November was received, or the offer it contained accepted, the parties or their representatives may have written and spoken about only some of the reports, and not of others or the material on which they were based, does not mean that they so defined or confined the subject matter as to take it outside the terms that were later used to describe it in that letter. Indeed, on one view, the contrary might be thought to be the case.

There is, however, a difficulty about dealing with this aspect of the matter on appeal. His Honour's conclusion on the question of the construction of the contract is not reflected in any declaration to that effect, nor directly in any order forming part of the formal judgment. However, as a part of the decree for specific performance of contract, the parties were directed to prepare and execute a deed giving effect to that contract. In carrying out this order, as they did before the appeal was heard, they naturally adopted, and the executed deed reflects, his Honour's view of the proper construction of the contract. Fortunately, the possibility of a successful appeal on this aspect of the matter was expressly catered for by the parties in the final schedule to the deed that they executed. Another deed is to be substituted should the decision on appeal require it.

For my part I cannot see that it was or is necessary at this stage to go further than to order specific performance of the agreement sought to be enforced. Having regard to matters that are no longer in issue, it was no doubt more than a simple spirit of helpfulness that prompted his Honour to pass upon the question of construction concerning subject matter. But it was not essential for him to have done so before ordering specific performance. The case was one in which particular questions might well arise, in the course of attempting to settle the contract consequent on a decree for specific performance, about the precise scope or extent of the information sold. If the parties were unable to agree on how those questions should be resolved, it was always open to either or both of them to apply to the Court for directions in the course of working out the order for specific performance. Liberty to apply is implicit in a judgment such as this.

Requiring that a deed be executed by the parties might well effect some saving in costs; but it ran the risk that, without concrete instances of the particular problems that might arise, the provisions of a deed drafted to anticipate them might say either too much or too little. In those circumstances it is preferable to leave the parties to exercise their right to apply as and when any apparently insoluble problems arise.

In these circumstances I would be prepared to allow the appeal, but only to the extent of varying the judgment below by omitting the second, third and fourth paragraphs of that judgment. Otherwise the judgment below should stand, and the appeal should be dismissed with costs.

for and on behalf of the )

Crown in right of the STATE )

OF QUEENSLAND	)
in the presence of	)

DEED OF ASSIGNMENT

A copy of the Deed of Assignment was provided that day

by the respondent to Connell Wagner, which was to sign a
copy and have copies executed by the sub-consultants. The
schedule was left blank because it was to be prepared by
Connell Wagner and discussed with the appellant in Cairns on