Virgin Advertising v National Builders Group

[2009] VCC 153

IN THE COUNTY COURT OF VICTORIA	Revised
AT MELBOURNE CIVIL DIVISION COMMERCIAL LIST

Case No. CI-08-02598

VIRGIN ADVERTISING PTY LTD	Plaintiff
v
NATIONAL BUILDERS GROUP PTY LTD	First Defendant
and
HOMES NOW PTY LTD	Second Defendant

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 9, and 10 February 2009
DATE OF JUDGMENT:	17 February 2009
CASE MAY BE CITED AS:	Virgin Advertising v National Builders Group & Anor
MEDIUM NEUTRAL CITATION:	[2009] VCC 0153

REASONS FOR JUDGMENT

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Catchwords: Contract – claim for unpaid services – counterclaim for return of “artwork” created during services – whether accord and satisfaction – whether total failure of consideration – whether claim available in detinue for property in different form.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Lapirow	Willocks Lawyers
For the Defendants	Mr D. Christie	Mills Oakley
HER HONOUR:

1          The plaintiff carries on business as an advertising agency. Between October 2003 and 30 October 2007 it was retained by the first defendant, and from 2005 by both defendants, to act as their advertising agent. This involved it arranging for the design, content and placement of advertisements in various print media and on TV (but not radio), and creation of brochures, posters, stationery and business cards. The plaintiff claims that it is owed $15,114.55 by the first defendant, and $2045.29 by the second defendant, for services it provided.

2          The defendants carry on businesses of selling building contracts for houses. They deny owing any amounts to the plaintiff. They counterclaim for the sum of $217,437[1] as the value of artwork allegedly wrongfully retained or withheld from them by the plaintiff on termination of its retainer.

[1]             Revised figure from $219,857 – T 327, lines 13-14.

3          There was no written agreement recording the arrangements between the parties. There had originally been a proposal in “Powerpoint” form from the plaintiff offering its advertising agency services to the first defendant. From about October 2003 the plaintiff’s services were provided to the first defendant, and to the second defendant from when its business commenced in 2005. Dealings between them were primarily between Mr Christopher Freeman, a director of the plaintiff, and Mr Barry Suckling, managing director of both defendants, although from time to time Mr Freeman dealt with employees of the defendants. There was a regular Tuesday meeting at Mr Suckling’s office attended by Mr Freeman at which current matters would be discussed. There were more than three years of dealings between the companies, involving weekly and even daily advertising, rendering of invoices and payments on them, before the current dispute arose.

4          It is not in dispute that at the beginning of October 2007 Mr Suckling gave Mr Freeman notice that the defendants were terminating the plaintiff’s retainer, effective 30 October 2007, with the plaintiff still to perform its services as their advertising agent for the month of October.

5          The issues between the parties are:

(a)	whether $15,114.55 is owed to the plaintiff by the first defendant in respect of a full-page advertisement on the back page of the Herald Sun ‘Home’ section published on 23 June 2007;
(b)	whether the sum of $2,045.29 (or any part of it) is owed by the second defendant to the plaintiff in respect of ten column advertisements in the Herald Sun classifieds between 1 and 30 October 2007; and
(c)	whether the plaintiff has any liability in damages to the defendants in respect of artwork created over the years by it for the defendants for their advertising, and of which the defendants through Mr Suckling demanded a copy in electronic form at the end of October 2007, after which a sample, but not the balance, of such artwork was provided to the defendants by the plaintiff.

6          Mr Freeman and Mr Suckling both gave evidence, as did Ms Rocco, a former employee of the second defendant. Despite mention of attendance at meetings by others, no other witnesses were called. Various documents were tendered as set out in the schedule of exhibits.

The 23 June 2007 back-page advertisement in the Herald Sun ‘Home’

7          By June 2007 there was a regular full-page advertisement placed by the plaintiff on behalf of the first defendant as the back page of the weekly insert called “Herald Sun ‘Home”. From time to time the advertisement was changed visually, to “freshen up” its look, and its content was changed when needed. Approximately a quarter of the page reflected the floor plans, names, sizes, and starting prices for five house designs which the first defendant promoted. Its designs were aimed at the lower end of the home building- contract market, which was, and was known to the plaintiff to be, very price sensitive.

8          It is not in dispute that the advertisement published on 23 June 2007 contained prices which were each $3,000 above the price in fact being offered that week, as they included the price rises which Mr Freeman had been advised by the first defendant were to come into operation from 1 July 2007. The sum claimed for that advertisement, of $15,114.55, comprises the cost of the advertisement charged by the Herald Sun of $13,520, less the 10% commission paid to the plaintiff by the newspaper which it rebated to its client, plus the plaintiff’s commission or service fee of 5%, and GST.

9          There are two defences raised to this part of the plaintiff’s claim. First, it is alleged that there was accord and satisfaction through an agreement by Mr Freeman to waive total payment for that advertisement. Alternatively, it is argued that there was a total failure of consideration for that advertisement.

10        Following publication of the advertisement with the wrong prices, Mr Suckling telephoned Mr Freeman[2]. He was upset, used expletives, and asserted that the early running of the increased prices would have a detrimental effect on the first defendant’s sales for the month. At the weekly meeting on Tuesday, 26 June, Mr Suckling again voiced his displeasure and repeated that it could potentially harm the sales for the month. Mr Freeman then said words to the effect - “What do you want me to do? Do you want me to give you the ad for free?”, to which Mr Suckling said “Yes.”[3] Mr Freeman says that his response to that was to say that he did not think that was fair, but nothing more was said, and they moved on to other topics because they could not come to an agreement. Mr Suckling denies that Mr Freeman responded that he did not think it was fair, and says that he thought they had an agreement.

[2]             Whether as Mr Freeman says this occurred on the Saturday, or as Mr Suckling says on the Monday, is unimportant.

[3]             T 63, lines 1-3 (Mr Freeman); T172, lines 28-31(Mr Suckling).

11        Subsequently the cost of the advertisement appeared on an invoice from the plaintiff to the first defendant, and the first defendant paid for other items in that account but not for that advertisement.

12        The issue was again raised at a Tuesday meeting a month or so later. Mr Freeman says that he told Mr Suckling that he had thought about it, took responsibility for what had occurred, but did not feel that it was appropriate that the plaintiff not charge at all for the advertisement, with the history between the companies and the very small number of mistakes over that time. He says he basically pleaded his case, and offered what he called a fair compromise - that his company receive no profit from the advertisement, by waiving its service fee, and the production costs, which would have been $300 or $400 for producing the advertisement. He says Mr Suckling’s reply was that he wanted the advertisement for free. Mr Freeman says that he responded that he did not think that that was fair, so they moved on to other topics.

13        Mr Suckling’s version of this conversation is that Mr Freeman said at a meeting, after the invoice had been rendered and partly paid, that he had seen that the amount for that advertisement had not been paid. Mr Suckling says he responded that that was what was agreed. He denies that Mr Freeman ever mentioned the commission, service fee, production costs or any other portion of the total being foregone as a compromise.

14        Mr Freeman says that the issue was next raised at or after the end of October when they were in a stand-off about the artwork, and he wanted to be paid in full or near full for the services that had been rendered. He says he believed that the advertisement which had appeared had been 99% correct. He said Mr Suckling still insisted that the wanted the ad for free, as the early increase in price had cost him sales, but that he had not shown Mr Freeman how it had cost him sales. He was not sure if he had raised the issue of the $15,000 invoice again after that. On being shown a series of emails of late December 2007 and February 2008 between himself and Mr Arndt (who by then was the accountant for the defendants)[4], he conceded that he had not included the $15,000 in the correspondence about the assertion of the right to payment before handing over the DVDs of the artwork. He said that he never communicated by email with Mr Suckling directly, as Mr Suckling did not use computers.

[4]             Exhibit

15        The first defendant argues that there was accord and satisfaction for this amount through an agreement constituted by the conversations between Mr Freeman and Mr Suckling on 26 June 2007, the partial payment of the invoice that included the cost of the disputed advertisement, and to be implied from the subsequent lack of mention of that amount being outstanding in the email communications from December 2007 to March 2008 in relation to the dispute about entitlement to delivery up of the artwork.

16        I am not satisfied that there was accord and satisfaction for this sum. From the words which Mr Suckling says constitute this agreement, at the meeting on 26 June, I am satisfied that Mr Freeman was not intending by his words to make an offer to wholly forgo the cost of the advertisement, but rather was posing sarcastically what he was not offering, notwithstanding that he conceded there had been an error on his company’s part. Further, I am satisfied that Mr Suckling knew at the time that those words were not meant by Mr Freeman to be an offer, and that Mr Suckling was attempting, by simply saying “Yes”, to assert an advantage by claiming a finalised agreement which he knew had not been intended. I am satisfied that there was no agreement because “the minds did not come together”.

17        Moreover, even if there had been consensus through this conversation, there would need to have been valuable consideration for any such agreement to be enforceable. The defendant argues that it was compromising a prospective claim for losses arising from the errors in the advertisement. Mr Suckling’s evidence as to this loss was that there would have been fewer prospective customers paying deposits that week, because the secrecy factor of the amount by which prices would increase on 1 July 2007 had been lost, and with it the motivation of prospective customers to pay a $500 deposit to secure the lower price for the next four months. Although his company would refund deposits if no building contract were subsequently signed, the value to his company of gaining the deposit was to have gained the expression of interest through the name and contact details of a prospective customer.

18        Mr Suckling agreed that once the increased price was published ahead of time, salesmen would have told customers who came to the site office or who enquired by telephone during that week that the price increase had not yet come into effect, and they could still take advantage of the lower price by paying a deposit that week to “lock in” the lower price for four more months.

19        In his final address counsel for the defendants did his best to retrieve his clients’ version, by also arguing that there was valuable consideration through the indeterminable number of prospective customers who had been deterred from making contact with the defendant’s salesmen that week due to the price sensitivity of that end of the market, and pointed to advertisements from competitors that would have been more inviting to price oriented customers. The plaintiff’s counsel points to the lack of evidence of any loss in sales or prospective sales, and that there has never been provision of any figures to support the asserted loss, at the time to Mr Freeman or in this litigation through discovery.

20        It seems to me that on Mr Suckling’s version of what the defendant had lost, there was no valuable consideration in the foregoing of the threatened claim. Whilst it would not need to be consideration equal to the cost of the advertisement or a substantial part of it, in my view the evidence here is simply of an assertion of a prospective claim for the value of lost sales through lost contact details, not only not calculable but so vague as not to be valuable consideration in exchange for forgiveness of this debt.

21        The alternative defence raised by the defendant is that by including publication of the wrong prices there was a total failure of consideration for these advertisements.

22        The question of whether consideration for an agreement has totally failed depends on whether the contact was for an entire and indivisible supply or service.[5] In assessing this “… the notion of total failure of consideration now looks to the benefit bargained for by the plaintiff rather than any benefit which might have been received in fact.”[6] The first defendant argues that by publishing the wrong prices, the advertisement had failed in its purpose of being aimed at a price sensitive market. The plaintiff’s argument that the admittedly wrong prices reflected only a small part of the overall value to the plaintiff of the advertisement is more a reflection of the benefit in fact received.

[5]             Principles confirmed and explained in Baltic Shipping Co v Dillon (1993) 111 ALR 289.

[6]             David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 66 ALJR 768 at 779.

23        The difficulty in assessing whether there was a contract for an “entire and indivisible” promise in this instance is that there is little evidence discrete to the purpose of the advertisement in question. It was part of an ongoing arrangement for a number of different types of advertisements, and there is no evidence of specific discussion of the purpose of this particular one. There is certainly no evidence that the plaintiff had ever been informed that the prices were the key or pivotal to the whole advertisement. There are no other advertisements in evidence which include prices.

24        The evidence is that this advertisement had been placed weekly for at least all of that year, although its form was “freshened up” visually every six weeks or so, and its content sometimes altered – such as by the price increase due 1 July 2007 – from time to time. Changes such as the price increase would be conveyed to Mr Freeman, usually at a Tuesday meeting, and any substantial changes would be charged to the defendant as what the defendants globally call “artwork”. However, there is no evidence which enables me to assess whether the price of the home contracts was pivotal to the “promise” or benefit in the advertisement for the first defendant, or whether it placed these advertisements also for the value of having its name, brand, slogans, all contact details including locations of all 14 display sites, and the floor-plans of five homes, in a weekly magazine in which competitors placed equivalent information.

25        The overall retainer clearly was not for an entire and indivisible service, as it is clear that Mr Suckling would analyse invoices and authorise payment only for those parts with which he was satisfied. Even the invoice in question[7] does not list a total cost for this advertisement, but lists the price paid to the Herald Sun against each separate advertisement, lists items of artwork and printing, and globally lists service fee, and GST.

[7]             Exhibit D

26        Looking at the advertisement in itself, the pricing which is the only aspect which was wrong, although undoubtedly important in a price-sensitive market, is only a small proportion of the space and content of what is being advertised. Looking at it objectively, it appears to be promoting the first defendnant’s overall business and not just the prices of the five houses, especially as each is as expressed as “priced from”. I am not satisfied that the purpose of the advertisement of being placed amongst its competitors, nor its overall benefit to the first defendant was lost by the inclusion of the wrong prices.

27        It may well be that as the plaintiff accepted responsibility for the inclusion of the wrong prices, and as Mr Suckling was undoubtedly upset and angry at the error, a fair compromise could have been for the plaintiff to have forgone its profit by way of the service fee, production costs, and commission. However, Mr Suckling clearly rejected that offer, and the question for me is whether the consideration totally failed which I am satisfied it did not.

28        For these reasons I am satisfied that the plaintiff is entitled to recover the full sum of $15,114.55.

Claim for $2045.29 for advertisements in classified columns of Herald-Sun during October 2007

29        The plaintiff placed daily newspaper advertisements for the second defendant in the classified columns of the Herald-Sun. In nine of those, being for October 1-6 and 28-30 (all inclusive) the advertisement included in its bottom two lines the name of the contact person as Tim Renwick, the business hours phone number of the second defendant, and for after hours Mr Renwick’s personal mobile phone number. Mr Renwick had been sales manager for the second defendant until mid-September [8], but had left and by October 2007 was working for a rival company. Each of those advertisements was invoiced to the second defendant at a fee of $149.50 plus commission/tax/service fee. There was also a two column wide advertisement published on 6 October 2007, which did not name a contact person but included as the after hours phone number Mr Renwick’s personal mobile phone number.

[8]             Ms Rocco said he left 16 September; Mr Suckling just said before the end of September.

30        The second defendant refused to pay for any of these advertisements and argues that there was a total failure of consideration.

31        There is a factual dispute is as to when Mr Freeman was informed that Mr Renwick had left, and that his name and after hours number was to be replaced in these advertisements with Mr Frank Landolina, whose mobile phone number Mr Freeman already had for other purposes. Mr Suckling and Ms Rocco say that Mr Freeman was told this in a Tuesday meeting before the end of September when Ms Rocco entered the meeting and told Mr Suckling to remember to tell Mr Freeman of this change – and Mr Suckling peremptorily confirmed that to Mr Freeman. They both say that Mr Landolina was also present but he was not called to give evidence, and as there is no explanation for that omission. If it were necessary I would draw the inferences available under the principles in Jones v Dunkel. However, although Mr Freeman denies learning of this until after the 2nd October, claiming to have learnt of it by telephone after being contacted by the Herald-Sun representative who had been contacted directly by the second defendant to change the content of the advertisement, his version of how he learnt of the change varied, and I am not satisfied that his memory is reliable on this issue.

32        After hearing the evidence which I have, and assessing Mr Suckling and Mr Freeman as witnesses, I find it very hard to believe that at the scheduled Tuesday meeting on 2 October – the first where the termination of the arrangement was notified - if there had been an error in that day’s published advertisement, it would not have been raised by Mr Suckling, yet no evidence of such a conversation was given.

33        The issue, however, is not when Mr Freeman learnt that Mr Renwick had left the second defendant’s employ – he had certainly done so by the time of the last three advertisements where Mr Renwick’s details reappeared, on 28-30 October. The real question is whether the contact details were so critical to the purpose or benefit to the second defendant from each of these advertisements, that they were indivisible from the balance of the advertisements and by being wrong led to a total failure of consideration.

34        In applying the principles stated in paragraph 22 above, there is some evidence of the purpose of these advertisements. Ms Rocco who was administration co-ordinator of the second defendant and dealt with some of its marketing issues, said of these column advertisements that “it was our major ‘Stop Renting’ advertisement at the time, because we were just new within the industry, we thought it was best to get our name out”[9]. She confirmed that the business hours telephone number was that of the second defendant’s office. She and Mr Suckling said that the “Stop Renting” words placed in a stop sign were an important part of the advertising strategy for this company. These parts of the evidence, together with the visual aspect that the name and mobile telephone number for Mr Renwick were very much smaller than that slogan, the highlighted words “$100 deposit, 100% finance”, and name of the second defendant in each of the advertisements[10], together with the correct business hours telephone number being included, satisfy me that the overall purpose of promoting the name and slogan of the second defendant was achieved. I am satisfied that there was not a total failure of consideration for any of these advertisements.

[9]             T 217, line 28 to T 218, line 3.

[10]           I disregard my need for a magnifying glass to read them because I was trying to read reduced-sized photocopies of the actual published newspaper advertisements.

35        Even though there were wrong contact details in these advertisements, having found that there was not a total failure of consideration, and there being no evidence or argument going to why their cost should be reduced due to the errors, I find that the plaintiff is entitled to recover the amount claimed of $2045.29 for these advertisements.

Counterclaim for the total cost of the “artwork”

36        Various items that were billed to the defendants and paid by them to the plaintiff over the approximate four years that the plaintiff acted as advertising agent for one or both defendants, relate not to the cost of publishing an advertisement or the plaintiff’s service fee, but to photographs or diagrams or the cost of creating the design or appearance of the advertisements, globally called “artwork” by the defendants. The total so charged and paid is set out in a chart by the defendants and is said – without argument from the plaintiff – to have totalled.

37        According to Mr Freeman, those amounts would include charges for any substantial changes in advertisements over time, including extensive changes of content – such as price rises- or colour.

38        I am satisfied that over the years the plaintiff had provided to the defendants copies of all new advertisements for them to approve ahead of publication, often in electronic form although probably not able to be changed by the defendants in that form. The published advertisements were obviously also available to the defendants, whether in newspapers, magazines, on placards or stationary, or on TV.

39        Towards the end of October 2007 Mr Suckling asked Mr Freeman to provide on discs electronic copies of “all of the artwork”. Mr Freeman asked which electronic format was wanted, and Mr Freeman who does not use computers did not know. Mr Suckling says he responded that the plaintiff should just give them it all and they would work out what they could use. Mr Freeman says that he was initially told by Mr Suckling that he would enquire and let Mr Freeman know the requested format. It is common ground that some such material was supplied on a disc, at about the end of October, which Mr Freeman calls a “sample” and Mr Suckling calls a “teaser”.

40        Mr Freeman says that he asked to be paid for some of the cost of assembling the balance of the material and converting it into the appropriate form, and that he included a charge of $300 for this work on the 31 October 2007 invoice. Mr Freeman says he never agreed to pay for what he regarded as already fully paid for over the years. Mr Freeman also asserted through correspondence the right not to hand over this material on the discs that he had had created until outstanding amounts owing to the plaintiff had been paid.

41        The defendants claim is primarily based on an alleged term of the advertising agreement entered into in or about October 2003. Alternatively, they argue that there was wrongful refusal to deliver up the artwork after demand, a claim which could be categorized as based in detinue[11].

[11]           The possibility of a claim in detinue arose from my questioning of the parties in an attempt to isolate the issues, and was accepted or adopted by the defendants’ counsel, but not specifically pleaded or developed.

42        The defendants do not plead a specific term to the effect that they could call for the artwork to be delivered to them in any particular form, but rely on an express term that the ownership of the artwork would rest with them upon payment of the amounts charged for that artwork. The plaintiff admits that term, but argues that that meant that the artwork could not be used by the plaintiff for any other client or purpose, and did not include an obligation to convert it into deliverable electronic form. It also asserts that it was entitled to a lien for payment of all amounts owing by both defendants[12]. It argues that detinue was not specifically pleaded and in any event would not be available for what was intellectual property rather than tangible goods.

[12]           Paragraph 10(iii) of Amended Defence and Counterclaim and paragraph 2(c) of Defence to Counterclaim.

43        There is no evidence that at the start of the advertising agreement there was any discussion of or consideration of whether the artwork could at any stage be required to be provided to the defendants in any form other than that in which it was published in advertisements. It is no criticism of Mr Suckling that I am satisfied that it did not occur to him to ask for that, and probably also did not occur to Mr Freeman as an issue.

44        I am satisfied that at the time Mr Suckling requested it at the end of October 2007, not even the most recent 12 months of the “artwork” for which the plaintiff had charged the defendants was in a form that it could simply be put onto discs. I am satisfied that Mr Freeman agreed to have it converted and copied onto discs. Possibly he did not mean any more than the preceding 12 months’ worth, but despite the subsequent amending of the pleading[13] Mr Freeman had not given this evidence specifically. I am satisfied that Mr Freeman did explain that it would require time and effort and he wanted to charge for that – but that Mr Suckling did not agree to pay for that to be done.

[13]           Leave granted 10 February 2009 to amend, inter alia, by adding paragraph 5(a) of Defence to Counterclaim.

45        Given the changing nature of the advertisements over time, I am satisfied that it was never a term of the original advertising agreement that the plaintiff was obliged to keep all of the “artwork”, as substantial amounts of it would include outdated prices and contact details of former salesmen, and designs of houses and promotional slogans would also have been expected to change over time. This also militates against there being an implied term that all artwork for which the defendants had been charged over the years was to be available to be delivered up if demanded. Moreover, the need to convert its form should not in my view be implied to have been intended as the variety of forms of electronic saving of material was also likely to change.

46        For these reasons I am not satisfied that there was an express or implied term of the advertising agreement that at the end of the retainer, or at any sooner time on demand, the plaintiff was obliged to convert all artwork into suitable electronic form and deliver it to the defendants.

47        Further, even if there had been such a term, and assuming that a lien could not have been legitimately claimed asserted, I am not satisfied that the appropriate formulation of the defendants’ loss could be what is claimed. They claim the cost of what they had paid for the artwork over a four year period.

48 There is no evidence that the artwork retained the value of its cumulative cost. Insofar as it is alleged to be its replacement cost, there is no evidence that either defendant actually replaced or expended money to replace any of the withheld artwork in the period since it was demanded - by Mr Suckling at the end of October 2007, or by letters from the defendants’ solicitors in March 2008 as pleaded [14]. Mr Suckling in fact said (but I doubt) that he had engaged another graphic artist six months before terminating the plaintiff’s engagement[15] because for two years he had told Mr Freeman that his was unsatisfactory. Much of what had been charged in earlier years would have been obsolete and of no ongoing value. Some would have been “refreshed” forms of previous designs. Some unidentified portion of the whole was in fact supplied in a sample (“teaser”) disc soon after October 2007.

[14] Particulars to paragraph 12 of Amended Defence and Counterclaim.

[15]           T 194, lines 11-15

49        Moreover, the defendants patently failed to mitigate any such losses as they could have obtained from Mr Freeman the artwork he had arranged to have converted and copied onto disc, by paying a maximum of $17,500 (the outstanding amounts of $15,114.55 + $2045.29 + $300 for the “hunting and gathering” of the artwork onto discs), even if under protest.

50        Finally, as to whether a claim in tort in the nature of detinue was available to the defendants, I am not satisfied that it could have been. That is because whether or not appropriately characterised as “intellectual property”, the artwork for which the defendants called for delivery was not only originally in different forms from the form in which its delivery was required, when demanded, but it could only have been copies that were to be made and delivered and not the original artwork. Conceptually a call for copies seems to me to be inconsistent with the basis for a right in detinue, which attaches to specific items.

51        As I am not satisfied that there was any obligation in contract for the plaintiff to deliver up to the defendants what was demanded by Mr Suckling – all of the artwork for which his companies had been charged since October 2003 - it is unnecessary for me to decide issues going to whether any type of lien was actually available to the plaintiff.

Conclusions

52        I am satisfied that the plaintiff is entitled to recover the sum of $15,114.55 from the first defendant and the sum of $2,045.29 from the second defendant, for advertising services provided. There will be judgement for the plaintiff for those respective sums.

53        I am not satisfied that the defendants have an entitlement to damages for the plaintiff’s failure to deliver to them discs containing electronic version of all artwork for which it had charged them since October 2003. The counterclaim, therefore, will be dismissed.

SCHEDULE OF EXHIBITS

VIRGIN ADVERTISING PTY LTD v. NATIONAL BUILDERS GROUP PTY LTD and

HOMES NOW PTY LTD

Number and

Identifying Mark Short Description of Exhibit

on Exhibit

Herald Sun `Home’ magazine, published 23 June 2007

1              Invoice (# 3356) from Plaintiff to the 1st Defendant, dated

2	30/10/07 (PCB 31-33) Email from 1st Defendant to Plaintiff, dated 13/12/07 (PCB
3	34) Email from 1st Defendant to Plaintiff, dated 8/2/08 (PCB
4	35) Bundle of copies of advertisements in the Herald Sun for
A	2nd Defendant, 1 – 6 October 2007 inclusive (DCB 47-53) and 28-30 October 2007 inclusive (DCB 78-80) Copy email from David Arndt to Chris Freeman dated
B	5/3/08 and thread, commencing 13 December 2002 (DCB 83-7) Email from the Defendants’ solicitor to Mr Freeman and
C	reply, both dated 11/3/08 (DCB 89-90) Copy Plaintiff’s invoice to 1st defendant, dated 30/6/07
D	(excluding all handwriting) (DCB 42-5)