Waller Projects Pty Ltd v F.W. Estate Pty Ltd - [2025] QSC 16

SUPREME COURT OF QUEENSLAND

CITATION:

Waller Projects Pty Ltd v F.W. Estate Pty Ltd [2025] QSC 16

PARTIES:

WALLER PROJECTS PTY LTD
ACN 160 554 165

(plaintiff)

v
F.W. ESTATE PTY LTD
ACN 600 909 920

(first defendant)

BREMHA PTY LTD
ACN 133 642 458

(second defendant)

DG JIMBOOMBA DEVELOPMENTS PTY LTD
ACN 609 512 183

(third defendant)

DOWLING YEPPOON PTY LTD
ACN 152 346 926

(fourth defendant)

CRAIG ANTHONY JOHN DOWLING

(sixth defendant)

NICOLA TRACEY DOWLING

(seventh defendant)

DOWLING YEPPOON PTY LTD
ACN 152 346 926

(first plaintiff by counterclaim)

CRAIG ANTHONY JOHN DOWLING

(second plaintiff by counterclaim)

NICOLA TRACEY DOWLING

(third plaintiff by counterclaim)

DOWLING DEVELOPMENTS PTY LTD
ACN 151 353 258

(fourth plaintiff by counterclaim)

WALLER PROJECTS PTY LTD
ACN 160 554 165

(first defendant by counterclaim)

CCH STRADBROKE PTY LTD AS TRUSTEE FOR THE CCH STRADBROKE TRUST
ACN 160 851 972

(second defendant by counterclaim)

JOHN WATSON QUINN

(third defendant by counterclaim)

RORY ANN QUINN

(fourth defendant by counterclaim)

CLARE ELIZABETH GRENENGER QUINN

(fifth defendant by counterclaim)

RHYS JAMES GRENENGER QUINN

(sixth defendant by counterclaim)

GABRIELLE JOHANNA QUINN

(seventh defendant by counterclaim)

LACHLAN BARCLAY QUINN

(eighth defendant by counterclaim)

Q FABRICS PTY LTD
ACN 150 002 752

(ninth defendant by counterclaim)

FILE NO/S:

BS No 6105 of 2019

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 January 2025

DELIVERED AT:

Brisbane

HEARING DATE:

16-19 and 22-26 July 2024; 12 November 2024

JUDGE:

Kelly J

ORDER:

The answers to the separate questions are as follows:

1.   The answer to Question 1 is “No”.

2.   The answer to Question 2 is “Not necessary to answer”.

3.   The answer to Question 3 (a) is “No”.

4.   The answer to Question 3(b) is “No”.

5.   The answer to Question 3(c) is “No”.

6.   The answer to Question 4 is “No”.

7.   The answer to Question 5 is “Not necessary to answer”.

I will hear the parties as to further orders and costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – where there is contested evidence as to the formation of an oral agreement – where the witnesses’ recollections of the conversation allegedly giving rise to the agreement substantially varied – whether an oral agreement was formed between the parties

EQUITY – GENERAL PRINCIPLES – FIDUCIARY OBLIGATIONS – GENERALLY – where, if an oral agreement was not reached, there is a dispute as to whether Waller and Dowling Yeppoon, by Mr Quinn and Mr Dowling respectively, held a mutual confidence that, where a potential project or opportunity became known to either party that the party considered suitable to acquire and to develop jointly, that party could refer the opportunity to the other party, and any activities carried out by the parties in respect of such a project or opportunity would be carried out for their joint advantage only – whether the alleged mutual confidences give rise to the fiduciary obligations

EQUITY – GENERAL PRINCIPLES – FRAUDULENT AND INNOCENT MISREPRESENTATION – GENERALLY – where a dispute arose as to various non-disclosures and misrepresentations –– whether, if those non-disclosures were found to have been made, they gave rise to a right to rescind the alleged agreement

EQUITY – GENERAL PRINCIPLES – EQUITABLE DEFENCES – where there was an extended period of delay and inaction by the plaintiffs in circumstances where they knew the defendants were expending considerable time and effort to develop land – whether the delay, coupled with the plaintiffs’ conduct during that period, rendered it such that it would be unjust to grant the declaratory relief or award and account or equitable compensation

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, cited
B.M. Auto Sales Pty Ltd v Budget Rent A Car System Pty Ltd (1976) 51 ALJR 254, cited
Baburin v Baburin(No 2) [1991] 2 Qd R 240, cited
Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384, cited
Bourseguin v Stannard Brothers Holdings Pty Ltd [1990] QSC 273, cited
Bourseguin v Stannard Brothers Holdings Pty Ltd [1994] 1 Qd R 231, cited
Beckford v Wade (1805) 17 Ves 87, cited
Blue Mirror Pty Ltd v Tan & Tan Australia (in liq) [2024] NSWCA 253, cited
Byrnes v Kendle (2011) 243 CLR 253, cited
Coomber v Coomber [1911] 1 Ch 723, cited
Edmonds v Donovan (2005) 12 VR 513, cited
Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218, cited
Fysh v Page (1956) 96 CLR 233, cited
Gibson Motorsport Merchandise Pty Ltd v Forbes (2006) 149 FCR 569, cited
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, cited
John Alexander’s Clubs Pty Ltd v White CityTennis Club Ltd (2010) 241 CLR 1, cited
Johnson v Johnson (2000) 201 CLR 488, cited
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, cited
LAC Minerals v International Corona Resources [1989] 2 SCR 574, cited
Lindsay Petroleum Company v Hurd (1874) LR 5 PC 221, cited
Maguire v Makaronis (1996-1997) 188 CLR 449, cited
Mills v Haywood (1877) 6 Ch D 196, cited
News Limited v ARL (1996) 64 FCR 410, cited
Orr v Ford (1989) 167 CLR 316, cited

Powell v Powell [2002] WASC 105, cited
Re Jarvis [1958] 1 WLR 815, cited

Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291, cited
Tito v. Waddell (No. 2) [1977] 3 All E.R. 129, cited
United Dominions Corporation Ltd v Brian Pty Ltd (1984-1985) 157 CLR 1, cited

COUNSEL:

D L K Atkinson KC with K E Stoyle for the plaintiff and defendants by counterclaim
M S Stewart KC with D C Clarry for the defendants and plaintiffs by counterclaim

SOLICITORS:

Robinson Neilsen Legal for the plaintiff and defendants by counterclaim
AJ & Co for the defendants and plaintiffs by counterclaim

Table of contents

The pleadings and the separate questions

The witnesses and credit considerations

Initial dealings between Mr Quinn and Mr Dowling

Mr Dowling and Mr Quinn develop a business relationship

The pursuit of the Bellmere project

Mr Dowling’s knowledge of Mr Quinn’s financial position prior to 3 July 2011

The 3 July 2011 meeting

The period between 3 July 2011 and the Jimboomba opportunity

The Jimboomba opportunity

A business relationship deteriorates

The Jimboomba Property is acquired and developed by FW Estate

Mr Quinn’s knowledge of, and conduct in relation to, FW Estate’s acquisition and development of the Jimboomba Property

Question 1

Question 2

Question 3

Question 4

Question 5

Credit Analysis

This is a trial of separate questions. At a high level, the litigation involves disputes between the Quinn and Dowling families, including their various family companies. On 9 December 2015, the first defendant (“FW Estate”), a Dowling family company, became the registered proprietor of, and thereafter developed, a parcel of land at Jimboomba (“the Jimboomba Property”). The plaintiff (“Waller”), a Quinn family company, contends that the acquisition and development of the Jimboomba Property occurred in breach of fiduciary duties owed to it by the fourth defendant (“Dowling Yeppoon”), a Dowling family company and the sixth defendant, Mr Craig Dowling (“Mr Dowling”). FW Estate is alleged to have knowingly participated in the breaches of fiduciary duty.
Waller identified “two separate sources” for the alleged fiduciary duties.[1] The primary case was that the fiduciary duties were owed by reason of an agreement, referred to in the pleadings and in these reasons as “the General Agreement”. The primary case alleged that the General Agreement was an oral agreement made on 3 July 2011 by the third defendant by counterclaim (“Mr John Quinn”) and Mr Dowling or alternatively by Mr Quinn and the fourth defendant by counterclaim, Mrs Rory Quinn (“Mrs Quinn”) and Mr Dowling and the third plaintiff by counterclaim, Mrs Nicola Dowling (“Mrs Dowling”). At that time, Mr Quinn and Mrs Quinn are alleged to have acted on behalf of the ninth defendant by counterclaim (“Q Fabrics”). Mr and Mrs Dowling are alleged to have acted on behalf of the fourth plaintiff by counterclaim (“Dowling Developments”). Within the primary case, Waller alleged that the General Agreement was novated to Waller and Dowling Yeppoon or alternatively was a pre-registration contract for their benefit. In the further alternative, Waller alleged that the General Agreement was made by Waller and Dowling Yeppoon on 6 October 2012 or alternatively between 6 October 2012 and 30 November 2012. The General Agreement was alleged to have established a joint venture known as “the QD Joint Venture”. By reason of the joint venture established by the General Agreement or alternatively by reference to a clause of a “concluded template” of a Shareholders’ and Unitholders’ Trust Deed which had been discussed and explained, fiduciary duties were alleged to have been owed. The secondary case was that fiduciary duties were owed by reason of a relationship of mutual confidence between Waller, acting through Mr Quinn, and Dowling Yeppoon, acting through Mr Dowling. It has been convenient to refer to these two alternative cases as the General Agreement case and the Relationship case.
[1]Outline of Closing Submissions for the Plaintiff, [2].
The pleadings and the separate questions
The pleadings have been amended on numerous occasions. The current pleadings are comprised of the fifth statement of claim,[2] sixth defence,[3] and fourth reply and answer.[4] As each party placed varying significance on the timing and content of some amendments, it is convenient to provide a synopsis of the history of amendments.
[2]Third further amended statement of claim filed 17 July 2024.
[3]Third further amended defence and counterclaim filed 8 July 2024.
[4]Second further amended reply and answer filed 15 July 2024.
On 11 June 2019, Waller commenced this proceeding against the first to seventh defendants by way of a claim and statement of claim (“the first statement of claim”). On 19 July 2019, Waller discontinued against the fifth defendant. On 19 July 2019, the first to fourth, sixth and seventh defendants filed the first defence.[5] On 30 March 2021, Waller filed the second statement of claim.[6] On 12 October 2021, the first to fourth, sixth and seventh defendants filed the second defence[7] which added a counterclaim by Dowling Yeppoon against the first to eighth defendants by counterclaim. On 25 November 2021, Waller filed the first reply and answer.[8] On 25 March 2022, the first to fourth, sixth and seventh defendants filed the third defence.[9] On 22 July 2022, the second to eighth defendants by counterclaim filed a notice of intention to defend. On 21 March 2024, Waller filed the third statement of claim[10]. On 2 April 2024, the first to fourth, sixth and seventh defendants filed the fourth defence.[11] On 8 April 2024, Waller filed the second reply and answer.[12] On 17 April 2024, Waller filed the fourth statement of claim[13]. On 18 April 2024, the first to fourth, sixth and seventh defendants filed the fifth defence,[14] adding the second to fourth plaintiff by counterclaim and ninth defendant by counterclaim. On 24 April 2024, Waller filed the third reply and answer.[15] On 8 July 2024, the first to fourth, sixth and seventh defendants filed the sixth defence.[16] On 15 July 2024, Waller filed the fourth reply and answer.[17] On 17 July 2024, Waller filed the fifth statement of claim.[18]
[5]Notice of intention to defend and defence filed 19 July 2019.
[6]Amended statement of claim filed 30 March 2021.
[7]Amended defence and counterclaim filed 12 October 2021.
[8]Reply and answer filed 25 November 2021.
[9]Further amended defence and counterclaim filed 25 March 2022.
[10]Further amended statement of claim filed 21 March 2024.
[11]Further amended defence responding to the plaintiff’s amendments in the further amended statement of claim and counterclaim filed 2 April 2024.
[12]Amended reply and answer filed 8 April 2024.
[13]Second further amended statement of claim filed 17 April 2024.
[14]Second further amended defence and counterclaim filed 18 April 2024.
[15]Further amended reply and answer filed 24 April 2024.
[16]Third further amended defence and counterclaim filed 8 July 2024.
[17]Second further amended reply and answer filed 15 July 2024.
[18]Third further amended statement of claim filed 17 July 2024.
By a series of orders dated 5 July 2024, 16 July 2024 and 19 August 2024, the Court ordered the following questions be determined separately:
(a)Question 1: Was the General Agreement made as alleged in paragraphs 10(a) to (f) of the fifth statement of claim?
(b)Question 2: If the answer to Question 1 is “yes”:
(i)did the General Agreement give rise to the fiduciary obligations alleged in paragraphs 46 to 51A of the fifth statement of claim?
(ii)further or alternatively, was a term of the General Agreement that the obligations set forth in the SUD Fiduciary Duties Clause would apply to all dealings between Waller and Dowling Yeppoon in connection with the QD Joint Venture as alleged in paragraph 10(h) of the fifth statement of claim?
(iii)are Dowling Yeppoon, Mr Dowling, Mrs Dowling and/or the fourth plaintiff by counterclaim (“Dowling Developments”) entitled to a declaration that the General Agreement is void, or an order for rescission of the General Agreement as alleged in paragraphs 10(h), 10(j), 44C and 46A and 47A and 47B of the sixth defence?
(c)Question 3: Further or alternatively:
(i)did Waller and Dowling Yeppoon, by Mr Quinn and Mr Dowling respectively, hold a mutual confidence that, where a potential project or opportunity became known to either party that the party considered suitable to acquire and to develop jointly, that party could refer the opportunity to the other party, and any activities carried out by the parties in respect of such a project or opportunity would be carried out for their joint advantage only?
(ii)did the alleged mutual confidence give rise to the fiduciary obligations alleged in subparagraph 10(g) and 10(i) of the fifth statement of claim?
(iii)did Waller and Dowling Yeppoon owe the fiduciary obligations alleged in subparagraph 10(g) and 46 to 51A of the fifth statement of claim?
(d)Question 4: Was the acquisition by FW Estate of the Jimboomba Property made in breach of any fiduciary duties owed by Dowling Yeppoon or Mr Dowling to Waller, as alleged in paragraphs 11 to 30 and paragraphs 52(a) and (b) of the fifth statement of claim?
(e)Question 5: Is Waller precluded from obtaining relief by reason of any of the matters pleaded in paragraphs 1 to 10, 10A,[19] 11 to 28, 30 and 30C, 41 to 41C and 44C of the sixth defence?
[19]Insofar as the Services Account and CCH Account are concerned.
The parties agreed a list of issues in respect of each of the separate questions. Several parties and proposed parties did not participate in the trial but gave undertakings to abide and be bound by the determination of the trial.[20] In these reasons, where I refer to the defendants, I am referring to the defendants who actively participated in the trial, being the first to fourth, sixth and seventh defendants.
[20]The first to ninth defendants by counterclaim, the first and fourth plaintiffs by counterclaim, C&N Management Pty Ltd, Wesley Street Pty Ltd and Centra Harts Road Pty Ltd.
The witnesses and credit considerations
Evidence in chief was given by the witnesses adopting their respective witness statements. Waller called as witnesses Mr Quinn and Mrs Quinn. Mr Quinn was cross examined over days one to seven of the trial. The defendants called Mr Dowling, Mrs Dowling, Mrs Mabel Wynne (“Mrs Wynne”), Mr John Littler (“Mr Littler”) and Mr Brian Gassman (“Mr Gassman”). Mr Dowling was cross examined over days seven to nine of the trial.
The credit of Mr and Mrs Quinn and Mr and Mrs Dowling fell to be assessed in determining whether the General Agreement was made. By the end of the trial, Waller’s written submissions focused principally upon the Relationship case, whilst noting that the General Agreement case was “not abandoned”. According to those submissions, credit was not “central” to the Relationship case because of the existence of what was described as “a robust documentary record that speaks for itself”. In that context, it may be observed that Waller did not allege that the parties had executed a formal document which, on its face, recognised or purported to establish a fiduciary relationship as between Waller and Dowling Yeppoon in respect of the acquisition and development of the Jimboomba Property. The “robust documentary record” relied upon by Waller was a record essentially comprised of emails, handwritten file notes, correspondence and the drafting and execution of deeds and contracts, the latter in connection with other projects. That documentary record was interspersed with disputed conversations.
To the extent that, by submitting that credit was not “central” to the Relationship case, Waller was suggesting that the Court could decide the issues raised by the Relationship case without careful regard to the credit of Mr Quinn and Mr Dowling, I reject that submission. The Relationship case required attention to the actual circumstances of the alleged relationship, which included many informal documents and some significant disputed conversations. Waller bore the burden of proof in respect of establishing the relationship. An important issue was whether the circumstances were such that Waller, acting through Mr Quinn, was entitled to expect that Dowling Yeppoon, acting through Mr Dowling, would act in relation to the Jimboomba Property in Waller’s interests in and for the purposes of the relationship. In the context of any relationship which existed, Waller sought to demonstrate that Mr Quinn was relevantly vulnerable and placed faith and confidence in Mr Dowling. Mr Quinn gave evidence in chief about the “features of the relationship as I observed and remember them”. He said that he was conscious that he could not self-deal with “an opportunity that had been brought for consideration by Craig to me, or vice versa”. He gave evidence in chief about the “nature of the relationship between me and Craig”. The defences to the Relationship case which alleged non-disclosures, representations and reliance involved credit considerations. There was also the defence of laches which required consideration of all relevant circumstances including determining the period of delay and the proper characterisation of conduct during the interval. Mr Quinn gave evidence about his subjective reasons for his conduct during the period of delay and his understanding of what was occurring during that time. It was not possible to resolve the issues raised by the Relationship case, including the defences, without having regard to the credit of Mr Quinn and Mr Dowling in particular.
I had no concerns about the credit of Mrs Dowling, Mrs Wynne, Mr Littler and Mr Gassman. They each appeared to me to be intent on doing the best they could to provide honest recollections of events and circumstances. They tended to give direct, responsive answers and readily accepted when they could not recall matters.
I did not find Mr Quinn, Mrs Quinn and Mr Dowling to be credible and reliable witnesses. Some matters pertaining to my assessment of their credit are outlined in the last section of these reasons. During these reasons, I have made credit findings about specific parts of the evidence. My overall view of the credit of Mr Quinn, Mrs Quinn and Mr Dowling may be stated as follows:
(a)As to Mr Quinn, he appeared to me to be a witness who was more intent on stating matters which might advance his or his family’s interests in the litigation rather than providing his actual recollection. From time to time, he added detail to his recollection without being able to explain why that detail had not been included in his witness statements. On important matters he also tended to be evasive and self-serving. His credit was further damaged by his involvement in, and his answers in cross examination about, the circumstances in which the second defendant by counterclaim (“CCH Stradbroke”) obtained an order from this Court on 16 April 2019. Generally, I have not accepted Mr Quinn’s evidence unless it was against his interests or was otherwise evidenced or supported by objective facts, contemporaneous documents or other evidence.
(b)As to Mrs Quinn, she too appeared to me to be more intent on stating matters that she considered might assist her or her family’s interests in the litigation, rather than providing her actual recollection. At times her evidence was noticeably self-serving. At other times, her evidence was rambling and convoluted. Although not a significant matter, I was unimpressed with her demeanour in the witness box where she appeared as a distracted witness, who was apparently trying to stay ahead of the questioning. She did not appear to me to be reliable and I have given her evidence little weight.
(c)As to Mr Dowling, he was unimpressive when cross examined about issues which had recently been alleged by the defendants concerning non-disclosures and representations by Mr Quinn. When giving evidence about the events in the lead up to the purchase of the Jimboomba Property by FW Estate, he appeared intent on conveying a narrative explaining Mr Quinn’s involvement which was inconsistent with contemporaneous documents, contrived and self-serving. Generally, I have not been prepared to accept his evidence unless it was against his interests or otherwise evidenced or supported by objective facts, contemporaneous documents or other evidence.

As a matter of further general observation, many of Mr Dowling’s emails contained syntax and other grammatical errors. In these reasons I have set out emails as they were written by Mr Dowling.
Initial dealings between Mr Quinn and Mr Dowling
Mr Quinn had practised as a solicitor for 26 years between 1980 and 2006. His work as a solicitor had largely involved assisting clients with commercial transactions. When he retired as a solicitor, he began to invest in real estate, carry out property development and operate businesses. He had extensive experience in property development, planning, subdivisions and litigation.
Mr Dowling had worked in the construction industry since 1989. In 2003, he had joined Buildev Development Pty Ltd (“Buildev”) as a development partner. Buildev was a large private property developer which undertook residential, commercial, industrial and retail developments. Mr Dowling acquired particular skills in interrogating cash flows and he had a general knowledge of building costs. He had contacts in the civil construction industry.
Mr Quinn and Mr Dowling first met on 20 December 2007 at a meeting arranged by a Mr Power. The meeting was attended by Mr Dowling in his capacity as an employee of Buildev. The meeting had been arranged as an opportunity for Mr Quinn to be introduced to Buildev’s business and its representatives. From the beginning of 2008, Mr Quinn had been finding it difficult to obtain finance for construction and development and to make sales amid the economic downturn known as the GFC. Mr Quinn kept in touch with Mr Dowling after the meeting. Mr Dowling understood that Mr Quinn represented “The Quinn Group” which was a development organisation with a property portfolio comprising several properties including a property known as the Outlet Centre, situated at Eagleby near exit 35 (“the OC”).
On 28 October 2008, Mr Quinn had met with Mr Dowling in relation to the OC. Mr Quinn provided material to Mr Dowling at that meeting. On 31 October 2008, Mr Dowling, in his capacity as Development Director at Buildev, sent a letter to the Quinn Group marked to the attention of Mr Quinn. The letter referenced “the Project” as involving Buildev and the Quinn Group and the OC. The purpose of the letter was to “set out the terms on which [Buildev] will proceed with this Project”. The proposed terms included Buildev acquiring a 50% interest in the Project at a purchase price of $6.5 million. Buildev would contemporaneously with the payment of the purchase price “assume 50% of the existing debt subject to the total debt being capped at $41 million.” Any additional debt would be the responsibility of the Quinn Group. There was a due diligence period of 60 days. The last two paragraphs of the letter read as follows:
“Upon acceptance of the terms set out above, we will send to you a draft Contract and draft Co-Venture Deed for review.
This offer is subject to the preparation and execution of complete legal documentation containing terms satisfactory to both parties”.
Mr Dowling said that the material provided by Mr Quinn had included some cashflows which had included a “debt number”. He recalled that Buildev had by reference to that material undertaken an internal calculation as to “what we thought the land and the opportunity might be worth”. He conceded that at the time of the letter he did not know the amount of the debt or the identity of the funder. He said that he wished to use the due diligence process to ascertain the amount of the debt and “the worth of the Quinn Group”. I accept that at the time of the letter, Mr Dowling had been provided with cashflows and a “debt number” but had not confirmed the amount of the debt, the identity of the funder and the worth of the Quinn Group. I accept that he wished to use the due diligence process to understand more about the viability of the Project, including confirming the debt and the funder. The proposal in relation to the Project as outlined in the letter did not proceed.
On 26 February 2010, Buildev (by a Mr Luke McGuire) sent an email to Mr Quinn and Mr Rob Boylan in respect of a property situated at Yawalpah Road in Coomera. The Coomera property was half owned by a Quinn family company Quinnco Pty Ltd (“Quinnco”) and another company Trimglint Pty Ltd, which I infer was a company controlled by Mr Boylan. The email attached a “Term Sheet” by which Buildev offered $10 million for 50% of the Coomera property and stated that Buildev looked forward to “receiving your comments/differences in relation to the Term Sheet and any differences you see in relation to the land value we ascertained”. In March, Mr Dowling on behalf of Buildev conducted some “brief due diligence” on the property which involved reviews of preliminary approvals and development permits. The parties did not reach an agreement about commercial terms.
On 16 March 2010, Mr Dowling sent Mr Quinn an email in relation to another Quinnco property, the Alma Park Zoo. As of 16 March 2010, Mr Dowling was “open to undertaking the development of the land on which the zoo was located with Mr Quinn.” By his initial email, Mr Dowling proposed a meeting with Mr Quinn which would involve "[j]ust a discussion between John Quinn and Craig Dowling". By a further email sent 12 minutes later, Mr Dowling said “maybe its something we JV will discuss who are the parties when we meet could be something I might be interested in if you are open to this” (as per original). Mr Quinn replied by an email in which he materially stated that if a deal was not done with another party with whom he was then in advanced negotiations, he would “likely proceed with it myself”. Mr Dowling then replied “Its ashame you wouldn’t JV as I would like too do a development with you John”.
I note that the language of the email spoke of Mr Dowling’s wish to do “a” development with Mr Quinn. Mr Quinn inquired whether Mr Dowling was “talking a JV with Buildev or with Craig Dowling?”. Mr Dowling responded, "Craig Dowling and Nicky Dowling". Mr Dowling accepted, and I find, that, at this time, he had made no inquiries of Mr Quinn’s net wealth, he knew that Mr Quinn had “an issue … on the OC” which he was “working through” and which involved “some sort of refinance”. Mr Dowling accepted that at this time, he only had “an impression” that Mr Quinn had done “quite well for himself”. Mr Dowling considered that Mr Quinn was an attractive partner because he was “very good in business”, “owned a number of sites” and could “arrange funding”.
On 3 October 2010, Mr Quinn sent an email to Mr Dowling in relation to the OC. By this time, Mr Dowling knew that Hutchinson Builders were the builders at the OC and had left the site incomplete, so that the property was not generating income. Mr Quinn’s email disclosed that the existing valuation of the OC was $36 million, the existing debt was $15 million, the costs to complete were $17 million and the as completed valuation was between $55 million and $63.77 million. Mr Quinn’s email then stated:
“As advised I would sell 50% of this project upon the payment to [Quinnco] of $3 million, and the lodgement of $7 million in a trust account for payment of the balance construction sum to Hutchinson Builders. I would also cede priority to income distributions behind the incoming JV partner such that the new JV partner would receive their 50% of the net revenue ahead of an income distribution to [Quinnco]. On this basis the final debt against the project will be $25m.
The critical step in this investment is to get the builder back on site. … Please advise if you have an interest in this project and, if so, what information you will need in order to properly evaluate the opportunity.”
Mr Dowling and Mr Quinn develop a business relationship
On 9 December 2010, Mr Quinn and Mr Dowling met at a tavern near the OC. Mr Quinn took a file note of the discussion. Mr Dowling accepted that at this meeting he wanted to find out whether there was an opportunity for him to work as a consultant. He said in cross examination “I wanted to talk about [Mr Quinn’s] projects and whether I could actually add value as a consultant to uplift his projects, we spoke about those things, that’s what we spoke about on that day”.
In cross examination, it was suggested to Mr Dowling that, during the 9 December 2010 meeting, there had been a discussion between Mr Quinn and Mr Dowling about Mr Dowling “becoming a joint venture partner” and that the next day Mr Dowling telephoned Mr Quinn to say that he had discussed the matter with Mrs Dowling and he was “keen to come on board”. Mr Dowling rejected this suggestion. In his evidence in chief Mr Quinn had recalled a conversation during the meeting on 9 December 2010 in which Mr Dowling had said “that we could join forces as two families … to take on further projects after we had satisfied ourselves that they were worthwhile” and there was then some differentiation between new projects and existing Quinn Group projects. Mr Quinn recalled that Mr Dowling had telephoned him the next day to say, after having discussed the matter with his wife, he was keen to “come on board”. Mr Quinn understood this to mean “joining forces generally in the manner we had discussed”. Mr Quinn recalled that Mr Dowling had said the structure of the relationship should be mixed. He recalled this discussion:
“For new ventures, [Mr Dowling] said, we should split the equity 50/50 with a Quinn Group entity providing the capital and receiving “a coupon”, (which I was aware from my experience in financing projects to mean an amount of interest payable on the investment). He said for existing Quinn Group projects they should be valued and brought into the relationship at that value. He said that both sides should then share the upside above that value”.
Mr Quinn’s note of the 9 December conversation makes no reference to a particular conversation along the lines recalled by Mr Quinn or as put to Mr Dowling. Mr Quinn’s note of the 10 December telephone conversation is relevantly as follows:
“Ph: Craig Dowling
Has spoken to his wife and he would like to come on board.
Re the structure he thinks it would be a bit of both ie
1. New ventures 50/50 with separate JQ entity providing the capital and receiving a coupon.
2. Existing JQ projects to be valued and brought in at $X and then the upside to be shared based on the value add by CD.
I asked Craig to put what he proposed in an email to me which he sd he would do”
It may be observed that Mr Quinn’s file note spoke in terms of “he would like to come on board” not “they would like to come on board”.
I make the following findings in relation to the 9 December 2010 meeting and the 10 December telephone conversation:
(a)during the 9 December 2010 meeting there was significant discussion about the OC site and potential or prospective tenants for that site;
(b)during the 9 December 2010 meeting there was discussion about whether Mr Dowling might add value to Mr Quinn’s or the Quinn Group’s projects, including the OC, working as a consultant and Mr Quinn was open to that prospect;
(c)at around this time, Mr Dowling was considering his work options because Buildev had recently been bought out by Mr Nathan Tinkler and the future conduct of the Buildev business was unclear;
(d)at or around this time, Mr Dowling was also facing or experiencing difficulties managing a large debt of around $1.5 million with the ATO, and he was not then in a position to provide any significant capital to an existing or new project;
(e)there was no discussion at the 9 December 2010 meeting to the effect that Mr Dowling would become a joint venture “partner” or that the two families would “join forces” and “take on further projects after we had satisfied ourselves together that they were worthwhile”;
(f)the discussion on 10 December 2010 was essentially along the lines of Mr Quinn’s file note;
(g)a material aspect of the discussions on 9 and 10 December 2010 concerned whether Mr Dowling might in the future act as a consultant on Mr Quinn’s or the Quinn Group’s existing projects and on new projects whereby he would be remunerated by a share in the profits without having to contribute capital;
(h)notably the 10 December 2010 discussion ended on the basis that Mr Dowling would put what he proposed for the future in an email.
On 2 January 2011, Mr Quinn emailed Mr Dowling and relevantly said that he would like to start the new year by “moving forward in some manner with The OC” and that his thoughts were “to press on with the projectregardless of the naysayers and prove them all wrong”. The email then said “Did you have any ongoing interest in this opportunity or any thoughts on how to get the construction restarted? I am keen to finalise something sooner than later”. On the same day, Mr Dowling responded by email:
" … I agree we are going achieve great results ... I also have another couple of ideas how to get construction funding moving I haven’t stopped on it. I am pleased you have made a decision to move forward with the OC John as it will be a …a good solid project. … I will jot down some thoughts could you also John think of the value you will put on your projects so we can commence formalising our arangement."
I find that, as at January 2 2011, Mr Quinn was still awaiting an email from Mr Dowling as to what he “proposed” and Mr Dowling was yet to “jot down some thoughts” on the arrangement.
On 6 January 2011, Mr Dowling sent an email to Mr Quinn in the following material terms”:
"Regarding a way forward John here is a start:
Existing properties:
1.   Place a value over the existing assets and then we share in the upside on a 50/50 basis, as i would not be on title some security would be required for to protect the interest ie 2nd mortgage or caveat etc. John can you please let me have those values so we can start exploring structures.
2.   New projects - 50/50 Quinn group provide the seed capital for DA etc. and will paid a coupon. We then look at the exit strategies of each opportunity do we sell outright sell down 50% or have a (Gordon) provide the seed capital and capital for a 50% interest (Quinn Group/Dowling) manage the development for a development fee. John i have a number of great opportunities John we can do well out of.
3.   Craig Dowling be paid a consulting fee or salary (we need to discuss John and i would like to do this face to face)."
The reference in the email to a “Gordon” was to Mr Gordon Saul and was intended to be a reference to high net worth individuals who might be prepared to provide funding for a particular project. With apparent reference to the OC, Mr Dowling also said in the email “Peter from the CBA likes the project and could come up with a funding option however John I don’t have the capacity on my own (maybe you can think of a way”)”. The email also included a balance sheet for Dowling Holdings and correspondence from the ATO.
Later on 6 January 2011, Mr Quinn responded by way of a brief email which relevantly stated that his “thoughts” were to “put OC in at 24.5 and Yeppoon in at 32 with a coupon on my equity pending payment of it”. The email added that Mr Quinn would “respond in more detail” later and “like[d] the thought of … a Gordon providing some seed capital”.
Mr Dowling was cross examined on the basis that his 6 January email was about “an arrangement where you’re involved in multiple sites and you’re effectively partners in something.” As to this arrangement, it was further suggested to Mr Dowling that “it was never part of your intention to formalise it in writing it was just about having an understanding of an arrangement between you and him”. Later however, it was suggested to Mr Dowling that the “potential arrangement” or “understanding” which existed as at “the end of the day on 6^th January” involved two families, the Dowlings on one side and the Quinns on the other. Mr Dowling rejected each of these suggestions. Notably it was not suggested to Mr Dowling in cross examination that he was, or his family were, proposing to share in losses or liabilities associated with any project.
Clearly according to the plain language of the 6 January emails, an arrangement was yet to be negotiated or agreed. Mr Dowling accepted in cross examination, and I find, that his 6 January email proposal was very much a proposal for future discussion, which involved exploring options on a “project by project” basis. Mr Dowling gave evidence, borne out by the terms of his 6 January email, that his proposal, which was expressed as a starting point, was about “a structure that we hadn’t worked out at that point in time” and “wasn’t between our two families”. I accept that evidence. I find that Mr Dowling’s clear preference at around this time was for him to share in “the uplift” of projects as a consultant.
After 6 January 2011, Mr Quinn and Mr Dowling looked at potential projects and explored opportunities. Whilst Mr Dowling continued to work at Buildev, he accepted that, as regards his dealings with Mr Quinn from this point in time, he was “always trying to help and get involved in projects to see if I could create some value upside”.[21] The opportunities which Mr Dowling raised with Mr Quinn tended to be opportunities in which Buildev had no continuing interest.
[21]T 7-95.44.
Between January and June 2011, correspondence passed between Mr Quinn and Mr Dowling in relation to the following properties: 47 Piggott Road, Bellmere (“Bellmere”), 7-19 Bertha Road Caboolture (“Bertha Rd”), 34 Edward Street, Caboolture (“Edward Street”), Interpacific Resorts and Couran Cove (“Couran Cove”), the OC, Yeppoon Master Village (“Yeppoon”), Laurel Springs Retirement Home, Nambour (“Laurel Springs”), Heritage Gardens Retirement Village, Cairns (“Heritage Gardens”) and Galilee Basin Basalt Quarry (“Galilee”). There were other sites that Mr Quinn or Mr Dowling brought to the other's attention, namely 240 Stafford Road, Stafford (“Stafford”), Lambert Street, Kangaroo Point (“Lambert Street”), the Big Top Shopping Centre (“the Big Top”), North McLean (“North McLean”), Seaview Townsville Hotel (“Seaview”) and Bunnings Raceview.
On 29 January 2011, Mr Quinn sent an email to a Mr Tim Wright in relation to the OC and Yeppoon in which he proposed separate joint ventures in respect of each site. For the OC, the proposed interests were “50% Q, 25% Tim Wright and 25% Craig Dowling”. For Yeppoon, the proposed interests were “50% Q Group, 25% Tim Wright and 25% Craig Dowling”. On 30 January 2011, Mr Wright sent an email in reply to Mr Quinn which referenced the proposed joint venture arrangements and said “there is a number of things I would like to go over so all clear”. He added that he wanted to “bolt down the detail and mechanics”. One of the queries raised by Mr Wright in his email concerned how the proposed joint ventures would be “structured”. He also referenced the “value add of Craig”. In February 2011, Mr Quinn and Mr Wright exchanged further emails which copied in Mr Dowling. By an email sent on 16 February 2011, Mr Quinn agreed to a “40/30/30 split” on Yeppoon. Later that day Mr Wright sent an email which noted that he had a “quite basic” template for a Joint Venture and participation agreement. Mr Wright said “Let us get an Agreement done that is clearly binding in that form but to be expanded -so that we can move forward urgently and this needs to then be done up fully”. By 20 February 2011, the negotiations between Mr Quinn and Mr Wright had broken down and did not proceed further.
On 22 February 2011, Mr Quinn emailed Mr Saul, copying Mr Dowling, with a proposal that Mr Saul might fund part of the development of the OC development and have a one third interest in that project. There was a reference to Mr Quinn and Mr Dowling having agreed “to base our JV on an ‘as is’ value of $24.5m, and to carry my equity in the project at a coupon rate of 8% (capitalised) with my interests having a 2/3rds share and Craig’s a 1/3rd share”. The email then spoke in terms of “the prospect of [Mr Saul’s] participation with a 1/3 interest and acting as a funder to the project”. In the email Mr Quinn expressed having some “difficulty in calculating how the numbers would fall”. Mr Quinn stated in the email that “Given that … [Mr Saul] and [Mr Quinn] will have paid our equity into the project this would have to be recognised in some manner in the distribution of dividends to Craig”. The email concluded by saying that Mr Quinn was “looking forward to discussing the way forward”. Mr Dowling recalled that prior to the email being sent he had broadly discussed with Mr Quinn his having a lesser share to reflect his contribution in the nature of a consultant and Mr Quinn having provided the capital. I accept this evidence as it is consistent with the content of the email which was copied to Mr Dowling contemporaneously.

On 17 May 2011, Mr Quinn emailed Mr Dowling in relation to the OC. As at that point in time, Mr Quinn stated that “I will need a binding commitment from you. That is, I need to know when we sign off on the deal that we are both locked into making this happen”. The email outlined that Mr Quinn was willing to defer payment of the majority of his equity to the back end of the project “and also provide for our mutual benefit the $5m plus equity I have in the Alma Park zoo property as additional security to get this over the line by 30/6/11.” The email referred to a “transaction between us” and outlined a proposal as “a way forward”. That proposal involved, inter alia, “a CD nominee” purchasing 50% of the OC for $3.85 million plus “an assumption of the current debt on a joint and several basis with immediate effect”. Part of that purchase price, $2.85 million, was to be “secured against CD assets and personal guarantee”. Indemnities were required to be given by “CD and CD group entities” in favour of “Q and [Mr Quinn]”. There was a further requirement by Mr Quinn for a “JV agreement to be executed up front on a 50/50 basis in all respects”. The email concluded with Mr Quinn asking Mr Dowling to “Please let me know your thoughts”. Mr Dowling responded by an email later that day and relevantly stated “You know my position John therefore I cannot accept this way forward …”.
Mr Quinn gave evidence in chief in relation to the OC property as follows:
“I continued to negotiate with Craig to see whether there was an arrangement with him that could be made to work. I also negotiated separately with other parties, including investors in Sydney and a Chinese company. I kept Craig apprised of these negotiations and discussed with him whether, if I proceeded in doing a deal with the Chinese company, there might be an opportunity for him to become involved. I continued to use Craig as a sounding board for the OC property and to float ideas with him.”
I accept that evidence as it is consistent with emails sent by Mr Quinn to Mr Dowling in relation to the OC. Late in the afternoon of Saturday 2 July 2011, Mr Quinn sent an email to Mr Dowling and a Mr Warren Preston noting that he had met with “my Chinese group again on Friday” and “confirmed that they are in agreement with our proposal to JV the leasing of 5000m2 at the OC as a forerunner to the acquisition and development of a total of 40,000m2 (in 2 stages) at Coomera”. The email then set out 9 categories of steps and transaction documents that Mr Quinn considered were “necessary in order to implement the proposal”. The categories of steps and transaction documents included registering new companies, establishing new unit trusts and entering into various shareholder and unitholder agreements. In respect of one company to be registered, Outlet Centre Developments Pty Ltd, Mr Quinn’s email requested Mr Preston and Mr Dowling to “Provide him with full details of the entities you want to have holding the shares and the units”.
The pursuit of the Bellmere project
The vendors of the land the subject of the Bellmere project were a couple called Maxine and Roy Demeza. On 17 and 18 May 2011, Buildev had made a conditional offer and received an amended offer from the vendors. The Buildev offer was for $1,725,000. The vendors’ counter offer was for $1,750,000. Buildev’s investment Board regarded the project as “too small scale” and Buildev did not pursue the negotiations any further.
On 30 May 2011, Mr Dowling emailed Mr Quinn about Bellmere. Mr Dowling’s email attached documents including Buildev’s offer and the vendor’s counter offer. Mr Dowling had advised the vendors that Mr Quinn would be making contact. His email to Mr Quinn on 30 May 2011 materially stated:
“Can you ring [the vendors] as I have said you have an interest in this and just have a general chat. They have ALL approvals DA, OPW, Electrical Retic disclosure plans are available for collection (we just need to pay $3900). It has been tendered I think we can save money based on my review. The revenues we have allowed are a bit light but conservative. John ring me before discussing with them this is a simple project John”.
Mr Quinn made contact with the vendors and received some documents. On 2 June 2011, Mr Quinn sent an email to the vendors in these terms:
“I spent yesterday afternoon with Craig and went over the documents you sent me thoroughly with him ... We have decided to proceed with the purchase and would like to go to contract as soon as possible based on terms as advised by Craig in his earlier discussions. ... We will be incorporating a special purpose vehicle to undertake the purchase, so the name of the purchaser should be left blank on the contract at this stage. We anticipate finalising the new Company on Monday and will provide details to you as soon as they become available".
On 3 June 2011, the vendors sent an email to Mr Quinn which attached the draft contract, special conditions and a plan of proposed lots.
On 5 June 2011, Mrs Dowling, on behalf of Mr Dowling, sent Mr Quinn a draft Unitholders’ Deed, under cover of a handwritten note from Mr Dowling which relevantly read:
“John, This document seems to relate more to an existing project with existing debt. I have made general comments in Clause 6 Financial Matters, which needs to relate to newco rather than existing debt structure extra. We also need to look @ Tag Along Drag along if one wants to exit both exit. I am doing this with you and your family, and the same with you to mine. Hope my comments make sense but in general seems like document works well".
Mr Dowling had made handwritten comments on the attached draft Unitholders’ Deed. In respect of that draft:
(a)Clause 3.2 did not formally label the unit holders as fiduciaries but recognised that they owed obligations to each other including obligations not to place themselves into positions of conflict and not to make undisclosed profits;
(b)Clause 3.3 provided that the rights and obligations of the unitholders were several. Mr Dowling wrote beside that clause “John this relates to one party can be liable for the entire debt. Can we discuss”;
(c)Clause 5.3 provided for a situation of voting deadlock at Board level. Mr Dowling wrote beside that clause “John, I believe voting is unanimous and deadlocks are not required”;
(d)Clause 13 provided for restrictions on transfer. Mr Dowling wrote beside that “Tag along drag along. One sells all out”;
(e)Clause 20.12 was headed ‘Entire understanding” and provided:
“(a) This document contains the entire understanding between the parties as to the subject matter of this document.
(b) All previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this document are merged in and superseded by this document and are of no effect. No party is liable to any other party in respect of those matters.
(c) No oral explanation or information provide by any party to another … constitutes any collateral agreement, warranty or understanding between any of the parties”.
Later on 5 June 2011, Mr Quinn emailed Mr and Mrs Dowling and attached the proposed contract for Bellmere and copied them into correspondence with the vendors. Mr Quinn noted in his email to Mr and Mrs Dowling “You will see I have not at this point sought to reduce the price by the amount of the commission pending their agreement to the Put and Call Option Agreement”. I infer from this that the intention of Mr Quinn and Mr Dowling was to seek to reduce the amount of the asking price by an amount reflective of an agent’s commission, but Mr Quinn decided to defer that negotiation until such time as the parties had a put and call option in place.
At around this time, Mr Quinn indicated that Q Fabrics would hold the units for the Quinn family. Mr Dowling indicated that Dowling Developments would hold units for the Dowling family.
On 7 June 2011:
(a)Bellemere Developments Pty Ltd (“Bellmere Developments”) was registered and its directors and equal shareholders were Mrs Dowling and Mr and Mrs Quinn’s daughter, Clare Quinn;
(b)Dowling Developments was registered and its director and shareholder was Mrs Dowling;
(c)The Dowling Equity Trust was established with Dowling Developments as the trustee.
On 7 June 2011, under a subject heading “The Bellmere Unit Trust”, Mr Quinn emailed to Mr Dowling a further version of the draft Unit Trust Deed. The email relevantly stated “we can go through in more detail at 4 pm today”.
On 13 June 2011, Mr Quinn emailed Mr Dowling inquiring whether he had “made any changes to the Draft Trust Deed yet?”. By this time it appears that there were in circulation drafts of a “Unit Trust Deed establishing the Bellmere Unit Trust” and of a “Shareholders and Unit Trust Deed in relation to the Bellmere Unit Trust”. Later that day, Mrs Dowling emailed Mr Quinn pdf files containing Mr Dowling’s handwritten amendments to each draft.
As regards the draft of the Unit Trust Deed:
(a)In relation to a proposed clause 14.3(b) which contemplated the trustee with consent setting aside sums as reserves, Mr Dowling wrote “in writing”;
(b)In relation to a proposed clause 22(a) which contemplated that the trustee might by oral resolution revoke, add to, release, delete or vary all or any of the trusts or powers declared in the document, Mr Dowling placed a box around the words ‘by oral” and wrote “delete”.
As regards the draft of the Shareholders and Unit Trust Deed:
(a)Proposed clause 4.2 described the relationship of the participants as joint venturers who owed fiduciary duties to the other participants in relation to the conduct of “the Project”. Proposed clause 4.2(x) identified a duty “not to carry on any business of any nature in Brisbane or on the Gold Coast that would compete with the Project”. Beside that clause, Mr Dowling wrote “John, If I sign this I technically have interest in Buildev. I understand the intent of 4.2(x) are you happy knowing the interest in Buildev. That will come to an end”;
(b)Proposed clause 4.3 dealt with rights and obligations of the participants and noted that the participants rights and obligations “under this document are several”. Beside that proposed clause, Mr Dowling wrote “John, we should be jointly responsible for debt and liability”
(c)Proposed clause 7.5 provided that committee meetings should be convened once every three months. Mr Dowling changed three months to two months and wrote “Three months means there would only be two meetings possibly three”.
On 15 June 2011, Mr Demeza as grantor and Bellmere Developments, as trustee for the Bellmere Unit trust, entered into a put and call option deed in respect of the Bellmere property (“the Bellmere Put and Call Option Deed”). The call option fee was $10,000 inclusive of GST. The due diligence period was 21 days.
On 21 June 2011, Mr Dowling sent an email to Mr Quinn under the subject Bellmere which materially stated, “We need to finalise the unit trust and shareholder agreements can you please bring two final version so I can leave a set with Luis and we should look to execute shortly”. Mr Quinn responded by email later that day “I will bring docs with me”.
It is accepted that a Unit Trust Deed and a Shareholders and Unit Trust Deed for the Bellmere project were never executed. There was conflicting evidence as to whether the deeds were ever settled or finalised. In his primary statement Mr Quinn gave evidence that by 3 July 2011, “the terms of the Bellmere UTD and the Bellmere SUD were “well advanced” and the clause dealing with fiduciary duties was in its final state”. As part of an exhibit to his primary statement, Mr Quinn had included clean versions of the drafts. Those versions relevantly contained:
(a)Proposed clause 4.2 of the draft Shareholders’ and Unitholders’ Deed which recognised that the participants owed a fiduciary duty to each other “in relation to the conduct of the Project”, “the Project” being relevantly defined essentially as the acquisition and development of the Bellmere land;
(b)Proposed clause 18(c) of the draft Shareholders’ and Unitholders’ Deed by which the parties acknowledged that they were not relying upon any oral account or arrangements and that the “conditions and stipulations in this document constitute the only agreement between the parties”;
(c)Proposed clause 20.1 of the draft Shareholders’ and Unitholders’ Deed which recognised that the deed would continue in force for so long as the participants directly or indirectly controlled the Project;
(d)Proposed clause 24.14 which contained an “Entire understanding clause in the following terms:
“(a) This document contains the entire understanding between the parties as to the subject matter of this document.
(b) All previous negotiations, understandings, representations, warranties memoranda or commitments concerning the subject matter of this document are merged in and superseded by this document and are of no effect. No party is liable to any other party in respect of those matters.
(c) No oral explanation or information provided by any party to another:
(i) affects the meaning or interpretation of this document;
(ii) constitutes any collateral agreement, warranty or understanding between any of the parties.”
In cross examination, Mr Quinn gave evidence that, as at 3 July 2011, the terms of the deeds had been “finalised”. In cross examination he recalled that he had delivered the deeds in their “final form” to Mr Dowling on 21 June 2011. He produced during cross examination what he said were the finalised deeds. However, on 18 July 2011, Mr Dowling sent a further email to Mr Quinn under the subject Bellmere which said “We should finalise unit and shareholder deeds”.
I make the following findings in relation to the Bellmere project and the state of the relationship which existed as between Mr Quinn and Mr Dowling as at, and before the meeting of, 3 July 2011:
(a)Bellmere was a small project which was properly described by Mr Dowling as a simple project.
(b)As at 30 May 2011, when Mr Dowling first emailed Mr Quinn about Bellmere, Mr Dowling and Mr Quinn had not made any agreement as between themselves or on behalf of their families as might constitute something loosely labelled a joint venture in relation to property development opportunities.
(c)In particular, the email correspondence of 6 January 2011 had not led to further discussions resulting in any concluded agreement.
(d)Mr Quinn and Mr Dowling were exploring opportunities on a project by project basis without any agreed structure for their participation in the event a project was to be pursued.
(e)In that regard, in relation to the OC, Mr Quinn had continued to negotiate with Mr Dowling to see whether there was an arrangement with him that could be made to work but he had also negotiated separately with other parties, including investors in Sydney and a Chinese company.
(f)As of 17 May 2011, Mr Quinn had made it clear that he was yet to receive anything in the nature of a “binding commitment” from Mr Dowling in respect of the OC and if Mr Dowling was to participate in that opportunity they would have to “sign off on the deal” and a JV agreement would have to be “executed up front”.
(g)In relation to Bellmere, Mr Dowling specified on 5 June 2011 that “I am doing this with you and your family, and the same with you to mine” because that matter required confirmation at that point in time. The reference to “this” was to the Bellmere Project.
(h)Even though Bellmere was a small, simple project Mr Dowling and Mr Quinn entered into negotiations about the content of a proposed Unit Trust Deed and a proposed Shareholders and Unit Trust Deed for the project. Those negotiations involved substantive matters and reflected an objective concern on the part of Mr Dowling and Mr Quinn to ensure that important aspects of the relationship between the participants in the Project would be governed or evidenced by writing.
(i)The Shareholders and Unit Trust Deed was negotiated to the point where it contained clear statements to the effect that the executed document was to reflect the entire agreement and exclude any reference to previous informal or oral arrangements.
(j)The draft deeds had not been finalised as at 3 July 2011 and were still not finalised as at 18 July 2011.
Mr Dowling’s knowledge of Mr Quinn’s financial position prior to 3 July 2011
Mr Dowling accepted that as at on or about 3 October 2010, the date of an email he received from Mr Quinn, he was aware that the OC site had been sitting dormant since late 2008, there was a large debt owed in respect of the site of at least $15 million and there were “enormous costs to complete”. The costs to complete as advised by that email totalled $17 million. Mr Dowling was taken to an email sent by Mr Quinn on 18 February 2011 addressed to Tim Wright in which Mr Quinn had said “if you and Craig are unable to succeed in getting The OC over the line then I die (financially)”. Mr Dowling accepted that by at least February 2011, he knew that it would probably be catastrophic for Mr Quinn financially, if he could not get the debt on the OC refinanced.[22]
[22]T 8-61.31.
On 22 February 2011, Mr Quinn emailed to Mr Dowling a draft of an email which he proposed to send to Mr Saul. The email noted that the “current debt” on the OC was $16,380,000 and was repayable on 29 March 2011. The email spoke of the prospect of Mr Saul acting as a funder to the project and acquiring a one third interest. The sought after funding was to be provided on a short term basis as the email stated “it would be our intention to secure long term debt as soon as possible at which time your debt component plus accrued interest would be repaid”. The email also made reference to another Quinnco property, Yeppoon, which had $9.5 million in debt with $3.5 million due for repayment on 21 April 2011 and $6 million due for repayment on 21 October 2011. Mr Quinn requested a meeting with Mr Saul to discuss “how the numbers would fall on the basis of you providing the debt funding on [Yeppoon]”.
Mr Saul was ultimately not prepared to fund the OC. By an email to Mr Saul dated 1 March 2011, to which Mr Dowling was copied, Mr Quinn described Mr Saul’s unwillingness to “proceed further with the OC” as a “body blow”. Mr Quinn also stated in the email that it was “critical” that construction at the OC should commence, that there was an “added difficulty of having to repay Angus $13m on 29/3/11” and that he required “short term assistance”. Mr Dowling said in cross examination that confronted with these facts as related by the email, at this point in time, he “didn’t know [that Mr Quinn] was in financial distress”. He seemed to suggest that the values ascribed to the OC and Yeppoon were an answer to Mr Quinn’s financial predicament. He described those properties as being “very substantial in value”. That evidence tended to ignore the realities that Mr Quinn was in urgent need of refinancing the very significant debt on the OC, had been unsuccessful in obtaining finance and was openly stating that recommencing construction was critical to obtaining value from the OC. I also find that on 22 March 2011, Mr Dowling had received a telephone call from a mortgage broker, who advised him that he considered that the OC had a “stink on it as it has been shopped all over the place”.[23] Further, by no later than 23 June 2011, Mr Dowling knew that the debt owed to Hutchinson Builders was $3.55 million and was secured by a second mortgage on the OC.
[23]T8-57.26 and JQ 30 pdf 26.
I make the following findings as to Mr Dowling’s knowledge of Mr Quinn’s financial difficulties as of, and immediately prior to, 3 July 2011.
(a)The OC site had been sitting dormant since late 2008, there was a large debt owed in respect of that site of at least $16 million which had been due for repayment on 29 March 2011 and there were “enormous costs to complete”.
(b)The builder, Hutchinson, had long since left the site, was owed $3.5 million and had a second mortgage over the property.
(c)Mr Quinn had been seeking “short term” finance from Mr Saul and also dealing with a Chinese company and a Sydney consortium but had not been able to obtain finance.
(d)It was likely to have been catastrophic for Mr Quinn from a financial perspective if he could not get the debt on the OC refinanced.
The 3 July 2011 meeting

During the afternoon of Friday 1 July 2011, Mr Quinn sent an email to Mr Dowling in which he relevantly said, “Rory and I are trying to arrange to meet you at yours for a late lunch on Sunday if that suits”. Mr Dowling replied by email later that afternoon to the effect that he had spoken to Mrs Dowling and Sunday was suitable. It is uncontroversial that Mr and Mrs Dowling and Mr and Mrs Quinn met at the Dowling’s house on the Goat Track in Highvale near Samford for lunch on Sunday 3 July 2011.
Mr Quinn recalled that on or shortly before 1 July 2011, Mr Dowling suggested to him that they should have lunch with their wives. Mr Quinn recalled Mr Dowling saying that now that “we had done our first deal in Bellmere” they should make sure that “an ongoing relationship involving lots of projects in the terms we had been discussing, was going to work with our partners”. Mr Dowling denied that conversation. He said the idea of a lunch came from Mr Quinn by the email sent on 1 July 2011. Mr Dowling recalled that, at the time, he and Mr Quinn had yet to discuss “a number of things … regarding the viability of developing the Bellmere land”. Mr Dowling recalled that they had not yet prepared a detailed feasibility for the development and “that was the main reason for meeting together on 3 July 2011”. I prefer Mr Dowling’s evidence on this matter. As a matter of objective reality, as at 3 July 2011, no deal had been done on Bellmere. Rather, the due diligence period was about to expire. The Bellmere project was also the first project to be pursued by the two families. It is more likely that the purpose of the lunch was to enable the feasibility of the project to be discussed and for Mr and Mrs Quinn to meet Mrs Dowling before the families made any commitment to the Bellmere project.
By the time of the trial, the attendees at the lunch were being asked to recall discussions at a meeting which had occurred some thirteen years earlier. The only contemporaneous note of the discussions was a document containing Mr Quinn’s handwritten notes, which he described as “the minutes I made of the meeting”. The discussions at the meeting as recalled by Mr and Mrs Quinn were significantly different to the discussions recalled by Mr and Mrs Dowling. As a general observation, Mr and Mrs Quinn each purported to recall precise, granular detail about wide ranging topics of discussion at the lunch. The respective recollections of Mr and Mrs Dowling tended to be more general and limited.
Mr Quinn provided his recollection about the lunch meeting in his statement, reply statement and under cross examination and re-examination. His recollection may be outlined as follows. He described a meeting that lasted for over three hours. There were initial pleasantries and some interaction with the Dowling’s children. After a brief time inside, the adults moved to an outside table. He could not recall what food had been served for lunch. Mr Quinn “opened the discussion,” Mr Dowling having relevantly said at the beginning “it would be good” if Mr Quinn could explain to Mrs Dowling “everything we were proposing to do.” Mr Quinn explained that Mr and Mrs Quinn had decided that their family’s future investments would be for the benefit of their children and that “where a project is proceeding, we organise a company as well as a unit trust, for which that company will be trustee, to take up the opportunity”. For new projects being pursued by Mr Dowling and himself, a trustee company would act as trustee of a unit trust in which each family would hold an equal number of trust units and the trustee company would purchase the property and interact with any third parties. The trustee company might differ from project to project but “the discretionary trust and their trustee companies would be the same”. The trustee company representing the Quinn’s children would be Q Fabrics which administered a discretionary trust in favour of the children in respect of which Mr and Mrs Quinn were excluded beneficiaries. Mr Dowling indicated that Dowling Developments would be the trustee company for the Dowling family, but he proposed to register a new company to act as trustee for a discretionary trust in favour of his family. Mr Quinn explained that the position might be different for existing Quinn Group properties where there would be a need to equalise the equity.
Mr Quinn recalled being “very frank” with Mrs Dowling as to financial difficulties that he and his related parties were dealing with. In his reply statement, he said that he spoke about the financial matters in the introductory part of the meeting. Under cross examination, he said that the disclosure of the financial matters took approximately 30 minutes. He disclosed the financial matters because he understood from his dealings with Mr Dowling before the meeting that “there was going to be a long term relationship between the two families” and he felt it was important to recount all of these matters to give Mrs Dowling a full sense of the Quinn family situation. He notably said of this disclosure:
“I do not generally provide this level of information to parties with whom I engage in one-off transactions and there was nothing unique about the Bellmere opportunity (on its own) in particular that warranted a different approach”.
This was a somewhat obtuse point of distinction drawn by Mr Quinn, given that the draft deeds then in existence in relation to the Bellmere project contemplated the parties being involved in a joint venture attended by fiduciary obligations. Mr Quinn recalled revealing the following information to Mrs Dowling. Bankwest had appointed receivers to three Quinn Group entities in April 2010 when he had signed a contract to sell the Plaza Hotel in Cairns for $11.3M and the receivers had sold the hotel for $5.5M. The companies that owned the OC and Yeppoon were under financial pressure. Quinn Group had entered a payment plan with the ATO to pay down a tax debt which had led to the Quinn Group losing an approximate $1M deposit on three units in Dubai. Under cross-examination, Mr Quinn recalled a further matter of financial detail disclosed to Mrs Dowling, which had not been referred to in his statement or reply statement. Under cross examination he recalled having volunteered that he was being personally sued by Bankwest for an amount exceeding $10 million.[24]
[24]T 3-35.20 to 30.
Mr Quinn recalled that there was discussion about Bellmere and “how it might be developed”. In his primary statement he recalled that there was discussion about Bellmere “for a while”. In his reply statement, he said that the discussion about Bellmere “took the majority of the meeting but by no means all of it”. Under cross examination he said that the discussion about Bellmere took at least an hour and he accepted that the discussion included reference to a plan, possible layouts and potentially altering the lots. He “stepped [Mrs Dowling] through the documents for Bellmere”, namely the proposed Unit Trust Deed and proposed Shareholders and Unit Trust Deed for the project. He explained that the deeds recognised “certain fiduciary obligations” which he began to read to Mrs Dowling. As he started reading clause 4.2 of the Shareholders and Unit Trust Deed and items (i) to (x), Mrs Dowling interjected and said she understood what the clause meant. At this point Mr Quinn said that “all the future projects would have a UTD and an SUD in the same terms”.
Mr Quinn recalled Mr Dowling going to his home office and printing out a document headed “Dowling Developments and Associated Companies Workbook”. This document was referred to during the trial as “the First Workbook”. Mr Quinn said that he recognised the First Workbook as containing “a list of projects that [Mr Dowling] and I had determined might be viable and worth pursuing”. The status of each of the opportunities was generally discussed and he made brief handwritten notes on the printout. In respect of the OC, Mr Quinn explained that he was pursuing an opportunity to sell that property to a Chinese company which had agreed to buy the property for $27M. He explained that the $27M would pay out Angas Securities and provide a surplus. He told Mr and Mrs Dowling that his loan from Angas Securities had expired on 30 June 2011 and he was in default. Mr Quinn said to Mr and Mrs Dowling that if the negotiations with the Chinese purchaser fell through “there would be an opportunity to pursue this project as a joint venture opportunity”. Mr Quinn exhibited to his statement the document which he said was the spreadsheet with his handwritten notes “made at the meeting (and no other notations)”.
In his primary statement, Mr Quinn recalled part of the meeting as involving a discussion with Mrs Dowling about an ongoing future relationship. In his reply statement, Mr Quinn said that this part of the discussion “about the way in which we would conduct our affairs going forward including the discussion of projects in the First Workbook”, took around an hour. Mr Quinn told Mrs Dowling that he and Mr Dowling had been considering projects and were contemplating “a situation where we had a long-term relationship”. He told her that “the idea we had” was that “the two families would form an alliance and become a joint venture”. If Mr Quinn and Mr Dowling decided that a particular project was “worthwhile, and we had reached the point where we had agreed terms with a vendor”, then they would set up a special purpose vehicle corporate entity in which each family would have a 50% interest. For an existing Quinn Group project, a value would be agreed as at the time it became a “QD” by which he meant “Quinn-Dowling” asset. He said that the list comprising the First Workbook “represented projects that we were currently considering but our plan was that the list would change and expand over time”. Mr Dowling and Mr Quinn would “continue to look for opportunities and would refer anything that we thought was appropriate to the other for consideration so that it could be pursued jointly”. Mrs Dowling said she was “excited to be involved” and added something to the effect that she was “really happy with the level of consultation with her”. Finally, Mr Quinn recalled that before we left the house, we all agreed that the two families would proceed with the joint venture on the terms discussed. In cross examination, he said “Right at the end … we acknowledged that the agreement- that we would move forward in a -in the venture to pursue further opportunities similar to Bellmere”. When pressed in cross examination as to “who said what?” Mr Quinn replied “I said that I thought it was a very good meeting … Craig … agreed with me that it was a good meeting, that we would move forward together to look at opportunities together, as two families, and we both agreed”. In re-examination, when asked why he understood there had been a consensus reached, Mr Quinn said “we actually shook hands as we left the Dowling House”.
Mrs Quinn provided her recollection about the lunch meeting in her statement, reply statement and under cross examination. Her recollection may be outlined as follows. She described a meeting that lasted for between two to three hours. The adults spent a brief period inside the house before heading outside. She could not recall what they had for lunch. Mr Quinn talked about the Quinn’s financial position “in great detail” and that, during that discussion, she felt awkward and embarrassed. She thought at the time “that it was a lot of detail” but she knew from experience that Mr Quinn “is completely open and frank”. Bellmere was an important focus of the meeting as the due diligence period ended the following week. There was discussion “at some length” about Bellmere and Mr Quinn explained “the detailed feasibility of the development”. Mr Quinn drew a diagram “which had each family contributing 50% into Bellmere Developments”. There was discussion about “the possibility of the two families joining together on an ongoing basis so that we would look at more opportunities together, pooling our resources to see if they were viable, and making them happen.” Mr Quinn used the expression “JV”. There was considerable discussion “as to how the JV would work”. If a decision was made to proceed with a future opportunity “the plan was that we use the Bellmere UTD and Bellmere SUD as a template”. There was “considerable discussion about how the JV would work”. Mr Quinn went through each of the proposed Unit Trust Deed and proposed Shareholders and Unit Trust Deed for the project “in his usual painstaking detail”. Mrs Dowling asked Mr Quinn to clarify what “fiduciary duty” meant and Mrs Quinn interjected to explain. Mr Quinn said that “moving forward the UTD and SUD would be used as a template for any other projects in the JV”. Mr Dowling produced the First Workbook. The projects in the First Workbook were discussed “line by line” and, “as we did so, [Mr Quinn] made handwritten notes”. Mr Dowling and Mr Quinn spoke at considerable length about each project. Mrs Dowling “expressed excitement about the two families working together”. Mrs Dowling said that she was “thrilled that she had been included and was on board”. Mr Dowling said that he “was also on board with a long-term relationship”. As Mr and Mrs Quinn were leaving to drive home, Mr Dowling said in front of Mrs Dowling “this is the start of the joint venture-it’s very exciting”.
Mr Dowling provided his recollection about the lunch meeting in his statement in which he also responded to the primary statements of Mr and Mrs Quinn. He recalled initial pleasantries and interactions with the Dowling children after which the adults sat down at a dining table inside the home. He recalled that the conversation turned to Bellmere. Mr Quinn had said that his daughter, Clare Quinn, was interested in property and that Bellmere was a small project which would provide her with a good introduction. Mr Dowling recalled the discussion being “largely around the feasibility of Bellmere”. He mentioned that he had met with a Mr Kitchener of the Commonwealth Bank of Australia (“the CBA”) and that the CBA was prepared to look at funding by reference to presales. Mr Jim Carruthers was discussed as someone who might do the civil works. There was detailed discussion about a range of factors concerned with the feasibility of the development including costings of civil works, survey work, consultancy costs, council costs and interest costs. There was discussion about high level staging plans, expected revenue, pre-sale contract and disclosure plans. At some point when the detailed discussion began, Mrs Dowling went to the kitchen to prepare lunch. The lunch consisted of “make your own” wraps. The kitchen overlooked the dining room so Mrs Dowling was close by. After some time, Mr Quinn and Mr Dowling reached a point where they had completed a high-level feasibility analysis. The participants in the project were discussed to be Dowling Developments and Q Fabrics and Mr Quinn drew a flow diagram to show profit distributions to the companies.
Mr Dowling recalled that by the time the meeting concluded, Mr Dowling and Mr Quinn had discussed that they may need to seek an extension to the due diligence period in respect of Bellmere because “whilst it looked promising, there were still some aspects of the Bellmere development which needed to be worked through”. At the end of the lunch, Mr Dowling recalled that he went into his office and printed out the First Workbook. With reference to the printed document, Mr Dowling notably said “he could not recall how it was raised”. He described the document as “a document that had some potential projects listed on it that I was considering at the time, with my comments on each of the projects”. He later said that the document had been prepared by him “to record projects I was considering undertaking at the time, not only with Mr Quinn (of which Bellmere was one such project … ) but also separately with other people.” He recalled handing the document to Mr Quinn as the Quinns were leaving and he said to Mr Quinn that he would email the document to him. He recalled the Quinns leaving at around 3.30 pm.
Mr Dowling denied having invited Mr Quinn to “explain to Nicky everything we were proposing to do”. He recalled that at the time of the meeting he was only in serious discussions with Mr Quinn about Bellmere and the pair had to work out what they were going to do with that project as the due diligence period was about to expire. He denied that Mr Quinn had worked through any version of the proposed Unit Trust Deed and proposed Shareholders and Unit Trust Deed for the Bellmere project. He denied that there had been discussion about fiduciary duties, an ongoing relationship or alliance, template documents to govern future projects, the Quinn’s financial difficulties or a joint venture for future projects. He denied that there was any agreement made to form a joint venture. He denied that there had been any discussion about the projects listed in the First Workbook.
The cross examination of Mr Dowling in relation to the 3 July 2011 lunch meeting was limited. Counsel had agreed as between themselves that Waller’s counsel was not required to cross-examine Mr Dowling “on 3 July 2011 issues” to avoid a Browne v Dunn point being taken. Mr Dowling was cross examined about the circumstances in which the First Workbook came to be handed to Mr Quinn. Despite his evidence in chief having been to the effect that he could not recall how the First Workbook had been raised, under cross examination, Mr Dowling purported to provide a recollection of the circumstances in which he had come to provide Mr Quinn with the document. He suggested that he had given the document to Mr Quinn because it had critical dates on it and Mr Quinn had said “I’d like to get a copy of that”. Mr Dowling said that after he handed the document to Mr Quinn, Mr Quinn had asked him to email him a copy. Mr Dowling rejected the suggestion that “the reason [Mr Quinn] asked for a copy or you sent him a copy was because it was a version of the projects you were considering together”. I reject this part of Mr Dowling’s evidence. I find that Mr Quinn requested a copy of the First Workbook because there is likely to have been some discussion at the meeting that Mr Dowling had kept and maintained a spreadsheet that contained important dates and identified other projects that had been or were being discussed or considered to that point in time as between Mr Quinn and Mr Dowling.
Mr Dowling recalled that during the afternoon, after the meeting, he had sent a series of emails which were concerned with the Bellmere project. Relevantly, he sent the following emails:
(a)at 3.34pm on 3 July 2011, to Mr Quinn, attaching a spreadsheet titled, “Dowling Dev Project Status”; and
(b)at 3.40pm on 3 July 2011, to Mr Quinn, a blank email with the subject line, “Bellmere – Due Diligence expiring 6th July 2011”.
Mrs Dowling provided her recollection about the lunch meeting in her statement in which she also responded to the primary statements of Mr and Mrs Quinn. She recalled that Mr Dowling had told her that Mr Quinn wanted to do a development together in Bellmere and that Mr Quinn and his wife wanted to meet Mrs Dowling. Mr Dowling had said to her that the Quinns were coming over for a late lunch on a Sunday and he had said there was deadline of some kind approaching for the Bellmere project. She recalled initial pleasantries and interactions with the Dowling children. The adults sat down at a dining table inside the home because it was winter and it was cold outside. She recalled “the conversation turned to Bellmere”. Mr Quinn said the development would be undertaken by two companies, Dowling Developments and Q Fabrics, through another company, Bellmere Developments. She recalled thinking it was strange that a fabric company would be involved in property development. Mr Quinn said that Q Fabrics was his daughter’s company and that she wanted to get into property. She remembered seeing documents on the dining room table which she recognised as plans and lot layouts. Mr Quinn and Mr Dowling began talking about the “ins and outs of the Bellmere development, how much it would cost and which consultants would be involved”. As time was getting on, she left the discussion to prepare lunch, which was wraps. She did not make any contribution to or participate in any meaningful way in the ongoing discussion about Bellmere. She recalled the discussion mainly being between the two men. At about 3.30pm the Quinns went to leave and Mr Dowling went to his office and “came back with paper, which he gave to Mr Quinn”. She could not recall what Mr Dowling said about that document. She did recall that “Mr Quinn did not make any notes on the papers that Craig handed the Quinns as they were leaving”.

I have found that as of 18 February 2016, Mr Dowling had heard from unidentified people that Mr Quinn may wish to assert a claim in respect of the Jimboomba Property. During his 18 February 2016 conversation with Mr Quinn, Mr Dowd raised this matter with Mr Quinn and Mr Quinn advised that he had not looked at any such claim in depth and did not commit to the basis on which such claim was to be advanced. At Mr Quinn’s insistence, Mr Dowd indicated that he would not raise the matter of Jimboomba with Mr Dowling until such time as Mr Quinn had further considered the possible claim he wished to advance in respect of the Jimboomba Property and come back to him, which Mr Quinn indicated he would do on the following Monday or Tuesday. There is no evidence that Mr Quinn ever came back to Mr Dowd on the following Monday or Tuesday or at any time thereafter. Rather, throughout the following period from in or about mid February 2016 until the lodgement of the caveat, Mr Quinn knew that Mr Dowling was expending considerable time and effort in developing the Jimboomba Property. From in or about mid February 2016 until June 2019, Mr Quinn, all the while with an intention to sue Mr Dowling or his entities in respect of the development of the Jimboomba Property, monitored the progression of the development of the Jimboomba Property without ever advising Mr Dowling of the existence and nature of the claim which Waller or any other Quinn entity sought to make in respect of the Jimboomba Property. Mr Quinn’s conduct was deliberate and evidences an approach of standing by and “waiting to see” and then, when the venture was a success and profitable, acting opportunistically to grasp the benefit.[93] Mr Quinn’s conduct occurred in a context where Mr Dowling and FW Estate shouldered all of the risks and burdens associated with progressing the development. I consider that, on the whole of the circumstances, including Mr Quinn’s conduct and having regard to the period of time, Waller, acting through Mr Quinn, was not sufficiently prompt in seeking its remedy of a declaration of a constructive trust or an account of profits and it would impose an unjust advantage or impose an unjust burden for those remedies to now be made available to Waller. The defendants established the defence of laches to my satisfaction in relation to those remedies.
[93]Edmonds v Donovan (2005) 12 VR 513 at [76].
There are two matters I should also note. Waller’s counsel cross examined Mr Dowling to the effect that the FW Estate development had done “very, very well”. The cross examination did not progress far, if at all, beyond that proposition. The question seemed to be designed to establish that no relevant prejudice had been suffered. That can hardly be an answer to laches. That the business was ultimately prosperous is not an answer to the claim that you sat by and allowed someone else to take risks. In Fysh v Page, the joint judgment spoke in terms of an unjust advantage or an unfair prejudice. The unjust advantage in this case is clear and prejudice can also be inferred from the fact Mr Dowling and/or FW Estate shouldered the burden of finance and expenses concerned with the development without any contribution from, or liability being assumed by, Mr Quinn in relation to those matters.
Waller makes a claim for equitable compensation in the proceeding. Whilst the remedy of an account looks to the gain made by the party in breach, the remedy of equitable compensation is more concerned with the loss suffered by the aggrieved party.[94] The aim of any award of equitable compensation is to place the aggrieved party as nearly as possible into the position in which it would have stood, had no breach occurred.[95] Having regard to the evidence at the trial of these separate questions, I was not able to form a positive view that by reason of the delay and conduct of Mr Quinn, it would be unjust to permit the remedy of equitable compensation to be pursued by Waller, had it otherwise established an entitlement to that remedy.
[94]Ibid at [78].
[95]Ibid at [78].
Credit Analysis
Mr Quinn was cross examined at some length about a variety of collateral matters. The defendants’ written submissions made wide ranging criticisms of him. Those submissions variously described Mr Quinn as a person who “engaged in selfish and self-interested behaviour”, someone with a “capacity to hatch mendacious schemes for personal gain” and a witness who gave “the general impression” that he was “an advocate in his own cause willingly changing sworn evidence”. In assessing Mr Quinn’s credit, I have attempted to focus upon matters of substance. I have also attempted to make allowance in his favour for the fact that he was subjected to a lengthy cross examination.
The defendants relied upon findings made against Mr Quinn in commercial litigation in or about 1990 to the effect that he had engaged in “patent cheating” and was “guilty of fraud” in circumstances where he had led others to believe that he would ensure that a lease was lodged for registration prior to the registration of transfers[96] but had then deliberately not lodged the lease for registration prior to the lodging of the transfers.[97] The defendants urged me to have regard to these findings in forming an adverse view of Mr Quinn’s credit. I have declined to do so. At the appeal stage of that litigation, Dowsett J said that Mr Quinn’s conduct should be considered by the Queensland Law Society.[98] The Queensland Law Society subsequently disciplined Mr Quinn in respect of the conduct by fining him $5000. He retained his practising certificate and continued to practice as a solicitor for over a decade. The relevant conduct occurred in about 1990. The Queensland Law Society, after having considered the conduct, dealt with the conduct by way of a fine and allowed Mr Quinn to continue practising as a solicitor. I did not consider that this conduct, which occurred more than 30 years ago, is particularly informative of whether Mr Quinn gave truthful and reliable evidence in this proceeding.
[96]Bourseguin v Stannard Brothers Holdings Pty Ltd [1990] QSC 273; Bourseguin v Stannard Brothers Holdings Pty Ltd [1994] 1 Qd R 231, 241.
[97]Bourseguin v Stannard Brothers Holdings Pty Ltd [1990] QSC 273; Bourseguin v Stannard Brothers Holdings Pty Ltd [1994] 1 Qd R 231, 241.
[98]Bourseguin v Stannard Brothers Holdings Pty Ltd [1994] 1 Qd R 231, 241-50.
Mr Quinn was a prodigious notetaker. Many of his notes were annexed to his statements and admitted into evidence without objection. The defendants’ written submissions made a veiled suggestion that there was a “serious cloud over the veracity of Mr Quinn’s file notes, especially notes claimed to have been made contemporaneously with key events in the proceeding …”. [99] That suggestion was further developed by a submission to the effect that Mr Quinn could not be believed “unless [his] evidence is unambiguously supported by a contemporaneous document that is not a file note that Mr Quinn claims to have made and kept himself for many years”.[100] The submission sought to exempt from the “serious cloud over the veracity of Mr Quinn’s file notes”, file notes which Mr Quinn had shared contemporaneously, such as his file note of 3 July 2011 which he emailed to Mr Dowling on 4 July 2011.[101] The nub of these submissions conveyed the serious allegation that any of Mr Quinn’s file notes which had not been contemporaneously shared, could not be relied upon because the file note was not a genuine, truthful or faithful note. These submissions significantly overreached. They were, quite properly, substantively abandoned during closing oral submissions. I reject those submissions. If it were to be contended that Mr Quinn’s file notes, generally to the extent they were not contemporaneously shared, were not genuine and essentially fabricated, that serious accusation should have been clearly articulated to Mr Quinn in cross-examination. The contention that Mr Quinn’s file notes were not authentic unless he shared them at the time was never put to him. Before any finding to that effect could be made, “it was necessary to confront [Mr Quinn] with that proposition squarely”, simply as an aspect of procedural fairness.[102] The rules of conduct which “are essential to fair play at a trial and which are generally regarded as being established by the House of Lords in Browne v Dunn” required counsel to put such a serious accusation squarely to Mr Quinn.[103] I accept the plaintiff’s submission that the contention was not properly put to Mr Quinn.[104]
[99]Defendants’ written submissions, [103].
[100]Defendants’ written submissions, [117].
[101]Defendants’ written submissions, [117].
[102]Blue Mirror Pty Ltd v Tan & Tan Australia (in liq) [2024] NSWCA 253, [102]; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, [67]-[74].
[103]Johnson v Johnson (2000) 201 CLR 488, 513; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, 16.
[104]Plaintiffs’ written submissions, [8](d).
During the course of cross-examination, Mr Quinn was taken to two of his many file notes and asked questions which challenged the authenticity or timing of the particular note. In respect of each file note, Mr Quinn rejected the suggestion that the file notes were not contemporaneous and accurate. The attack on one file note was not progressed further than a bare assertion that it was not authentic. The attack on the second file note extended to asking Mr Quinn to identify any other document that suggested he had an interest in the Basalt Quarry, Mr Quinn dealt with that issue by taking the court to several documents which, in his view, were consistent with the file note. The attack on the second note in the defendants’ written submissions was unpersuasive and largely based upon matters of conjecture. The evidence does not warrant a finding that either of the two file notes were inaccurate, untimely or fabricated.
In terms of his manner when giving evidence, Mr Quinn was noticeably circumspect and seemed to be on guard or wary about where questions might lead. He struck me as someone who was astute and canny. At times Mr Quinn gave answers which were noticeably self-serving, apparently exaggerated or otherwise unreliable. Some important examples will suffice. Mr Quinn claimed to have used the expression “QD Joint Venture” or “QD JV” in “every conversation” when he was describing the agreement that bound Mr Quinn and Mr Dowling when they discussed what to do with particular projects. By the expression “QD Joint Venture” he said he was describing or referencing an established binding relationship. He was adamant that he used the expressions “because there was a joint venture between the Quinn family and the Dowling family”. Anomalously, the expressions “QD Joint Venture” or “QD JV” were never used by Mr Quinn or Mr Dowling in any contemporaneous document. Yet, Mr Quinn wished for the court to believe that he used one or other of those expressions in “every” relevant conversation between the pair. There was one reference in a contemporaneous document to “QD Corp”, which Mr Quinn, opportunistically and unpersuasively, seized upon as being “the same as QD JV”.
Another example is provided by Mr Quinn’s evidence about what he disclosed to Mrs Dowling at the July 3 meeting about the Quinn’s financial position. Mr Quinn said, in an unqualified way, that he “had disclosed to the Dowlings, every aspect of our financial position in the period leading up to and including the 3^rdof July”. He accepted that what he was describing were “quite extensive matters” that had placed the Quinns under “severe financial pressure”. He explained that in the lead up to the July 3 meeting he had “progressively informed [Mr Dowling] as matters arose” and believed that Mr Dowling had been “passing that information on to his wife”. By the time of his reply statement, Mr Quinn no longer referenced a belief that Mr Dowling had communicated the matters to Mrs Dowling but rather said that he was “uncertain” whether Mr Dowling had “relayed” the matters to her. At the July 3 meeting, Mr Quinn said that he wanted to “ensure … that Mrs Dowling had knowledge of those issues” and, for that reason, “went into some detail.” He said in his reply statement that he felt it was important to “recount all of these matters”. Mr Quinn recalled that he communicated the detail about the issues to Mrs Dowling over a period of 30 minutes. Despite there being no contemporaneous note of the detail that was communicated, Mr Quinn purported to recall that detail with remarkable precision in paragraph 63 of his first statement. Under cross-examination he was reluctant to accept that paragraph 63 of his first statement contained the financial information which he had in fact disclosed to Mrs Dowling at the July 3 meeting. Indeed, Mr Quinn reached the position under cross-examination of asserting that paragraph 63 did not refer to all of the issues disclosed by him at the July 3 meeting. He had “no answer” as to why all of the issues which he recalled as having been disclosed had not been included in paragraph 63 of his first statement. In his reply statement, Mr Quinn sought to add to the matters that had been disclosed to Mrs Dowling at the 3 July meeting by reference to matters which he had discussed with Mr Dowling on 9 December 2010. Under cross-examination, which occurred some 13 years after the July 3 meeting, and without the benefit of a contemporaneous document to refresh his memory, Mr Quinn recalled financial detail disclosed to Mrs Dowling, which had not been referred to in his statement or reply statement. He could not explain why the new matter had not been referenced in his earlier statements. He could not explain why his evidence about the detail of what had been disclosed had been incrementally revealed by his statement, reply statement and oral evidence under cross-examination.
At other times, Mr Quinn provided evasive, quite disingenuous answers. One particularly noteworthy and concerning example was in relation to the plaintiffs’ lodgement of a caveat on the Jimboomba Property on 30 May 2019. Since March 2016, Mr Quinn had been monitoring the development of the Jimboomba land with a view to bringing a claim against Mr Dowling. In late April 2019, as a result of a release to the Australian Stock Exchange, he learned that AVJennings was to acquire the Jimboomba land and the purchase would be settling in June 2019. Mr Quinn then caused a caveat to be lodged over the Jimboomba land on the second last day of May 2019. Under cross examination, Mr Quinn refused to accept the plainly obvious proposition emerging from that chronology, namely that the caveat had been lodged with a view to creating “the maximum risk of disrupting the settlement of the Jimboomba land”.
Mr Quinn had also at various times changed the allegations which were sought to be made on behalf of Waller in this litigation. Notably, the first version of the statement of claim alleged a version of the General Agreement to the effect that the two families would join forces to acquire and develop real estate jointly. There was no reference to an agreement made between Dowling Developments and Q Fabrics. Mr Quinn’s affidavit sworn 13 June 2019 referred to a general agreement being formed between Mr Dowling and Mr Quinn in early June 2011which was later confirmed at the 3 July 2011 meeting. Mr Quinn there deposed to a general agreement “as to the manner in which our respective families would join forces to acquire and develop real estate”. There was again no reference to an agreement made between Dowling Developments and Q Fabrics. By an affidavit sworn 9 October 2019, Mr Quinn deposed that he was providing a “more fulsome explanation of my dealings with [Mr Dowling]”. He described the 3 July 2011 as “a casual late lunch called to cement the QD Joint Venture”. He set out a detailed recollection of the 3 July 2011 meeting which included Mrs Dowling apparently saying “Can you run through with me again how the joint venture will work?”. He made no reference to having made any disclosure at the lunch meeting of the financial difficulties he and his family were facing.
The defendants made submissions about the compromise and aftermath of the Stradbroke litigation. As I have earlier indicated, the statement of claim in the Stradbroke litigation alleged an intention to defraud CCH Stradbroke of six units including Lot 203. It was alleged that the ANZ Bank, in making the loan and taking the securities, acted in concert and fraudulently with CCH Infrastructure and Mr and Mrs Dowling. Part of the alleged fraud was that CCH Infrastructure and the Dowlings knew that the six units were being used to secure a loan to a related company of CCH Stradbroke’s, Logan APZ Pty Ltd.
In or about July 2018, a deed of settlement and release was executed by the parties to the Stradbroke litigation (“the Stradbroke Deed”). Some parts of the Stradbroke Deed warrant mention:
(a)The Stradbroke litigation was to be settled as follows:
“[CCH Infrastructure] will transfer the Properties to [CCH Stradbroke] by delivering a duly executed Form 1 Transfer nominating a consideration of $1.00 to Quinn Group, Level 2, Evandale Place, 142 Bundall Road, Bundall, Queensland, 4217 within fourteen (14) days of the date of this deed”;
(b)The CCH Stradbroke litigation would be discontinued;
(c)There were releases and discharges in respect of the parties to the Stradbroke litigation and notably:
“On and from the satisfaction by [CCH Infrastructure], Mr Dowling and Mrs Dowling of their obligations in Clause 4.1:
(a) [CCH Stradbroke] forever releases and discharges Mr Dowling and Mrs Dowling; and
(b) [CCH Infrastructure] Mr Dowling and Mrs Dowling forever release and discharge [CCH Stradbroke];
from any Claim which, except for this deed, those parties may have been able to make against each other in relation to the subject matter of this proceeding.”
(d)There was full and final satisfaction of all Claims against ANZ;
(e)There was a bar to action in the following terms:
“Except for proceedings to enforce the obligations set out in this deed, this deed may be pleaded as an absolute bar to all Claims between Parties in relation to the subject matter of the [Stradbroke litigation].”
(f)There was a broad confidentiality obligation;
(g)There was a non-disparagement clause as follows:
“No Party nor any of their Associated Entities, may make any Adverse Statement about any other party in relation to:
(a)The subject matter or the conduct of the [Stradbroke litigation] or this deed; or
(b)Any Claims which are the subject of or related to the Proceeding or this deed;
This clause survives the completion of all other obligations under this Deed.”
(h)There was a no-admissions clause as follows:
“Each of the Parties enter into this deed without any admission of liability or admissions of any facts or allegations.”
The Stradbroke Deed was performed in the sense that Stradbroke discontinued the whole of its claim in the Stradbroke litigation against Mr and Mrs Dowling and the ANZ by Notice of Discontinuance in November 2018. That discontinuance occurred in accordance with clause 5 of the Deed. At that point, Stradbroke was in a position to lodge the transfers and receive the transfer of the six units for the nominal consideration of one dollar. The stamp duty on those transfers was approximately $50,000.
By a separate Deed, dated 9 November 2018, between CCH Infrastructure, Stradbroke and Mr McIntosh (“the Separate Deed”), to which Mr and Mrs Dowling and the ANZ Bank were not parties, CCH Infrastructure agreed to judgment being entered against it in the Stradbroke litigation. At the time Mr McIntosh was sole director of CCH Infrastructure. The Separate Deed relevantly provided:
(a)By clause 3 that this separate deed was subject to and conditional upon ANZ, CCH Stradbroke, Mr and Mrs Dowling executing the deed;
(b)By clause 4 that Mr McIntosh agreed to and/or to cause CCH Infrastructure to do the following three things:
(i)Pay $10,000 by bank cheque to Stradbroke;
(ii)Deliver consent orders to Mrs Quinn consenting to orders (among other things) for a declaration that the transfers of the six units from Stradbroke to Infrastructure were “procured by the fraud of [Infrastructure] within the meaning of s 184(3)(b) of the Land Title Act 1994 (Qld) (the Land Title Act) and did not obtain the benefit of s 184 of the Land Title Act (indefeasibility) and a further order pursuant to s. 187(1) of the Land Title Act directing the registrar to cancel the registration of the 41 transfer by which Infrastructure had become the owner of the six units and restore the title to Stradbroke;
(iii)Sign such further or other documents as may be required to give effect to clause 4.

In the Stradbroke proceedings, CCH Stradbroke then filed an application against Infrastructure seeking judgment in its favour which was supported by an affidavit of Mrs Quinn. On 16 April 2019, CCH Stradbroke appeared by counsel at an application before Martin J (as his Honour then was). Mrs Quinn deposed in her affidavit to the effect that CCH Stradbroke had agreed to “release [Mr and Mrs Dowling and the ANZ Bank] from the [Stradbroke litigation] on confidential terms”. Mrs Quinn did not exhibit the Stradbroke Deed to her affidavits. Stradbroke’s counsel’s written submissions clearly suggested that the allegations of fraud made in the Stradbroke litigation had been vindicated by reason of the recovery of trust property that had been fraudulently misappropriated. The submission was made that the registrar should be made aware that “the reason” why the transfers were being set aside was because of fraud. Reference was made to the statement of claim filed in the Stradbroke litigation. Mr Quinn had reviewed the supporting material for the application and counsel’s written submissions. He accepted that the manner in which counsel had conducted the application, as revealed by the transcript before Martin J, was strictly in accordance with his instructions. He was aware that the application was made on the basis that Mr Dowling and the ANZ Bank had engaged in fraud. CCH Stradbroke had not sought the consent of Mr and Mrs Dowling to the making of the application. The effect of the orders of the Court were to cancel the original transfers. Mr Quinn then did not lodge the transfers to effect any transfer of the residential units.
I find that the manner in which the application made by CCH Stradbroke was conducted was in clear breach of the non-disparagement clause in the Stradbroke Deed and also plainly inconsistent with the no admissions clause. The application before Martin J on 16 April 2019, made and conducted in accordance with Mr Quinn’s instructions, involved an egregious misleading of the Court. I find that Mr Quinn’s conduct in relation to obtaining orders from the Court on behalf of Stradbroke on 16 April 2019 was fundamentally dishonest conduct. It involved a nuanced, calculated deception that at its core was designed to mislead the Court for financial gain. By his conduct, Mr Quinn demonstrated behaviour of a person who was prepared to actively mislead the Court for the purpose of financial gain.
There was some reference in the material to Mr Dowling falsely representing that he held certain tertiary qualifications in his curriculum vitae and separately at the 3 July 2011 meeting. I was not satisfied on the evidence that Mr Dowling had mentioned tertiary qualifications at the 3 July 2011 meeting. To the extent that he was taken to documents, including emails, which had included an incorrect curriculum misrepresenting his qualifications, I accept that such documents were created. It was not entirely clear how the documents had been prepared and the extent of Mr Dowling’s involvement in their preparation. I am not prepared to make any adverse credit finding against Mr Dowling on the basis of those documents.
Mr Dowling gave evidence in chief and under cross examination about a conversation he recalled having with Mr Quinn during the afternoon of 21 March 2014. The effect of Mr Dowling’s recollection was that he told Mr Quinn that he “did not need him to attend” the meeting at Jimboomba and that Mr Quinn replied that he would like to come along and was “happy to assist”. Mr Dowling said that he responded to the effect that if Mr Quinn wanted to come along, “he was coming along as a consultant”. In cross examination Mr Dowling added to his recollection by saying that he had told Mr Quinn “It’s my project”. Mr Dowling’s evidence under cross examination which made reference to his “project”, tended to be inconsistent with his evidence in chief which was to the effect that, at this point in time, no due diligence or assessment had been undertaken to enable any view to be formed about whether it was feasible or viable to acquire the property. Mr Dowling’s recollection did not extend to describing any response from Mr Quinn to the suggestion by Mr Dowling that he was to be a consultant. In cross examination, Mr Dowling merely recalled that Mr Quinn “got a little bit sort of agitated.” He said that when he hung up the phone, he wasn’t expecting to see Mr Quinn at the meeting. When Mr Quinn arrived (apparently unexpectedly) at the meeting the next day, Mr Dowling did not clarify or confirm his status as a consultant. I regarded his evidence about telling Mr Quinn that he was coming along as consultant as self serving reconstruction on an important issue.
Mr Dowling was prepared to describe the receipt of the Second Workbook on 17 September 2011 as having “come as a bolt out of the blue” as if he had no idea about the reason why any such document had been prepared and was in existence. Yet he had sent an email to Mr Quinn on 5 August 2011 which read, “I will send through a full update on all projects on Saturday”. The Second Workbook was clearly the document he had undertaken to prepare and was an updated version of the First Workbook. His evidence in chief to the effect that he did not know why Mr Quin had sent him the Third Workbook was equally implausible. He sent an email to Mr Quinn after receiving the Third Workbook suggesting he knew exactly why the document was in existence. Relevantly the email said “see below my brief comments will keep on expanding.”
The parts of the pleaded defence which centred around representations having been made and relied upon in relation to the non-disclosure of financial difficulties also reflected badly upon Mr Dowling’s credit. The allegation about the non-disclosure of the nature and extent of “serious financial difficulties” and representations consequent upon the non-disclosure was first raised by the defendant’s pleadings in April 2024. Mr Dowling accepted that this kind of complaint had not been raised in the pleadings prepared on his instructions prior to 2024. Mr Dowling’s explanation as to why such a significant and substantial part of the defence was not raised by earlier pleadings was to the effect “we were looking at different circumstances”. When he retained new lawyers, he recalled that he had said to them “[Mr Quinn’s] financial issues were a big problem for me” and his new lawyers had said to him words to the effect “let’s find out more about that”. I found the defences based on representations arising out of alleged non-disclosure of financial circumstances and associated reliance by Mr Dowling to be fanciful and contrived. The findings I have earlier made reveal that Mr Dowling was at material times well aware of Mr Quinn’s financial difficulties but nevertheless was content to continue to discuss possible business opportunities with him.
I also found Mr Dowling’s evidence about the significance of the earlier judgment referencing Mr Quinn to be self serving. He had been aware of that judgment since 2019. It was not referenced in the pleadings until March 2024, when, according to Mr Dowling, “it became apparent that it needed to be put in”. I find that had this matter been disclosed by Mr Quinn to Mr Dowling at the 3 July 2011 meeting, it is most likely that Mr Dowling would not have been concerned by the disclosure and would likely have accepted that Mr Quinn had, despite what had occurred, been able to continue to practice as a solicitor. I reject Mr Dowling’s evidence that this disclosure would have given rise “to serious issues at this point in time”, as self serving evidence.
Mrs Quinn claimed that in 2014 she had made a file note of what she had then recalled had been discussed at the 3 July 2011 meeting. For some unexplained reasons, she did not produce that file note in her evidence and she had not had regard to it when she had prepared her first statement. Rather, before giving her statement, for some unexplained reason, she had apparently only looked at the Bellmere deeds. It was unclear why reference to those documents was meant to have assisted her recollection of what was discussed at the lunch. Before she had prepared her first statement, Mrs Quinn had also apparently discussed with Mr Quinn “what was discussed on the 3^rd of July”. When cross examined about an affidavit she had sworn on 19 March 2019 she was asked to confirm that an exhibited Deed had not been executed by Mr and Mrs Dowling or their entities. Her response was “no, but it’s my understanding that David Dowd had given his consent”. She could not explain the basis for her volunteered understanding. When asked for what Mr Dowd had given his consent, she replied “Consent that the … when we signed the deeds that day we knew that there was a separate deed and we knew that the six units were going to be returned to us, that was part of the … the contract”.
I answer the separate Questions as follows:
(a)The Answer to Question 1 is “No”.
(b)The Answer to Question 2 is “Not necessary to answer”.
(c)The Answer to Question 3(a) is “No”.
(d)The Answer to Question 3(b) is “No”.
(e)The Answer to Question 3(c) is “No”.
(f)The Answer to Question 4 is “No”.
(g)The Answer to Question 5 is “Not necessary to answer”.
I will hear the parties as to costs and further orders.

CITATION:	Waller Projects Pty Ltd v F.W. Estate Pty Ltd [2025] QSC 16
PARTIES:	WALLER PROJECTS PTY LTD ACN 160 554 165 (plaintiff) v F.W. ESTATE PTY LTD ACN 600 909 920 (first defendant) BREMHA PTY LTD ACN 133 642 458 (second defendant) DG JIMBOOMBA DEVELOPMENTS PTY LTD ACN 609 512 183 (third defendant) DOWLING YEPPOON PTY LTD ACN 152 346 926 (fourth defendant) CRAIG ANTHONY JOHN DOWLING (sixth defendant) NICOLA TRACEY DOWLING (seventh defendant) DOWLING YEPPOON PTY LTD ACN 152 346 926 (first plaintiff by counterclaim) CRAIG ANTHONY JOHN DOWLING (second plaintiff by counterclaim) NICOLA TRACEY DOWLING (third plaintiff by counterclaim) DOWLING DEVELOPMENTS PTY LTD ACN 151 353 258 (fourth plaintiff by counterclaim) WALLER PROJECTS PTY LTD ACN 160 554 165 (first defendant by counterclaim) CCH STRADBROKE PTY LTD AS TRUSTEE FOR THE CCH STRADBROKE TRUST ACN 160 851 972 (second defendant by counterclaim) JOHN WATSON QUINN (third defendant by counterclaim) RORY ANN QUINN (fourth defendant by counterclaim) CLARE ELIZABETH GRENENGER QUINN (fifth defendant by counterclaim) RHYS JAMES GRENENGER QUINN (sixth defendant by counterclaim) GABRIELLE JOHANNA QUINN (seventh defendant by counterclaim) LACHLAN BARCLAY QUINN (eighth defendant by counterclaim) Q FABRICS PTY LTD ACN 150 002 752 (ninth defendant by counterclaim)
FILE NO/S:	BS No 6105 of 2019
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 January 2025
DELIVERED AT:	Brisbane
HEARING DATE:	16-19 and 22-26 July 2024; 12 November 2024
JUDGE:	Kelly J
ORDER:	The answers to the separate questions are as follows: 1. The answer to Question 1 is “No”. 2. The answer to Question 2 is “Not necessary to answer”. 3. The answer to Question 3 (a) is “No”. 4. The answer to Question 3(b) is “No”. 5. The answer to Question 3(c) is “No”. 6. The answer to Question 4 is “No”. 7. The answer to Question 5 is “Not necessary to answer”. I will hear the parties as to further orders and costs.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – where there is contested evidence as to the formation of an oral agreement – where the witnesses’ recollections of the conversation allegedly giving rise to the agreement substantially varied – whether an oral agreement was formed between the parties EQUITY – GENERAL PRINCIPLES – FIDUCIARY OBLIGATIONS – GENERALLY – where, if an oral agreement was not reached, there is a dispute as to whether Waller and Dowling Yeppoon, by Mr Quinn and Mr Dowling respectively, held a mutual confidence that, where a potential project or opportunity became known to either party that the party considered suitable to acquire and to develop jointly, that party could refer the opportunity to the other party, and any activities carried out by the parties in respect of such a project or opportunity would be carried out for their joint advantage only – whether the alleged mutual confidences give rise to the fiduciary obligations EQUITY – GENERAL PRINCIPLES – FRAUDULENT AND INNOCENT MISREPRESENTATION – GENERALLY – where a dispute arose as to various non-disclosures and misrepresentations –– whether, if those non-disclosures were found to have been made, they gave rise to a right to rescind the alleged agreement EQUITY – GENERAL PRINCIPLES – EQUITABLE DEFENCES – where there was an extended period of delay and inaction by the plaintiffs in circumstances where they knew the defendants were expending considerable time and effort to develop land – whether the delay, coupled with the plaintiffs’ conduct during that period, rendered it such that it would be unjust to grant the declaratory relief or award and account or equitable compensation Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, cited B.M. Auto Sales Pty Ltd v Budget Rent A Car System Pty Ltd (1976) 51 ALJR 254, cited Baburin v Baburin(No 2) [1991] 2 Qd R 240, cited Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384, cited Bourseguin v Stannard Brothers Holdings Pty Ltd [1990] QSC 273, cited Bourseguin v Stannard Brothers Holdings Pty Ltd [1994] 1 Qd R 231, cited Beckford v Wade (1805) 17 Ves 87, cited Blue Mirror Pty Ltd v Tan & Tan Australia (in liq) [2024] NSWCA 253, cited Byrnes v Kendle (2011) 243 CLR 253, cited Coomber v Coomber [1911] 1 Ch 723, cited Edmonds v Donovan (2005) 12 VR 513, cited Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218, cited Fysh v Page (1956) 96 CLR 233, cited Gibson Motorsport Merchandise Pty Ltd v Forbes (2006) 149 FCR 569, cited Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, cited John Alexander’s Clubs Pty Ltd v White CityTennis Club Ltd (2010) 241 CLR 1, cited Johnson v Johnson (2000) 201 CLR 488, cited Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, cited LAC Minerals v International Corona Resources [1989] 2 SCR 574, cited Lindsay Petroleum Company v Hurd (1874) LR 5 PC 221, cited Maguire v Makaronis (1996-1997) 188 CLR 449, cited Mills v Haywood (1877) 6 Ch D 196, cited News Limited v ARL (1996) 64 FCR 410, cited Orr v Ford (1989) 167 CLR 316, cited Powell v Powell [2002] WASC 105, cited Re Jarvis [1958] 1 WLR 815, cited Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291, cited Tito v. Waddell (No. 2) [1977] 3 All E.R. 129, cited United Dominions Corporation Ltd v Brian Pty Ltd (1984-1985) 157 CLR 1, cited
COUNSEL:	D L K Atkinson KC with K E Stoyle for the plaintiff and defendants by counterclaim M S Stewart KC with D C Clarry for the defendants and plaintiffs by counterclaim
SOLICITORS:	Robinson Neilsen Legal for the plaintiff and defendants by counterclaim AJ & Co for the defendants and plaintiffs by counterclaim