Weeks v Bell

[2025] QDC 30

DISTRICT COURT OF QUEENSLAND

CITATION: 

Weeks & Ors v Bell & Anor [2025] QDC 30

PARTIES: 

ASHLEY WILLIAM WEEKS
(First Plaintiff)

AND

DEBBIE ANN WEEKS
(Second Plaintiff)

AND

ADBKJ PTY LTD (ACN 633 170 877) AS TRUSTEE FOR THE WEEKS FAMILY TRUST
(Third Plaintiff)

v

SUE MAREE BELL
(First Defendant)

BELLS BEACHSIDE REALTY PTY LTD (ACN 145 703 813)
(Second Defendant)

FILE NO:

 3284/23

DIVISION:

 Civil

PROCEEDING:

 Claim

ORIGINATING COURT: 

 District Court

DELIVERED ON:

18 March 2025

DELIVERED AT:

Brisbane

HEARING DATE: 

3, 4 and 5 March 2025

JUDGE:

Porter KC DCJ

ORDERS:

1.       The first defendant pay the first and second plaintiffs $50,000.

2.       The second defendant pay the first and second plaintiffs $247,500.

3.       I will hear the parties as to interest and costs.

CATCHWORDS:

CASES:

SECONDARY MATERIALS:

PROCEDURE – CIVIL PROCEEDINGS BEFORE STATE AND TERRITORY COURTS – CONTRACTS – FORMATION OF CONTRACTUAL RELATIONS – where the plaintiffs brought proceedings alleging that they paid some $300,000 to the defendants pursuant to an oral contract with the first defendant – where the plaintiffs alleged the contract provided transfer of 40 percent of the shares in the second defendant –where the shares were never transferred to the plaintiffs – where the defendants admit that the money was paid but that the sum was paid pursuant to alternative agreements

CONSTRUCTION AND INTERPRETATION OF CONTRACTS – whether on a proper construction of the words spoken at a meeting attended by the plaintiffs and first defendant, a certain and complete contract arose –where the plaintiffs purported to terminate the alleged contract due to repudiation by the first defendant – whether the plaintiffs can claim damages

RESTITUTION – CLAIMS ARISING OUT OF INEFFECTIVE CONTRACTS – where, owing to uncertainty and incompleteness, no effective contract arose – whether the plaintiff had an entitlement to restitution arising from an inherently ineffective contract – whether the obligation in restitution rested with the first or second defendant

Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1998) 164 CLR 662

County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193

GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 414 ALR 635

Hewitt v Court (1982-1983) 149 CLR 639

Lawrence v Ciantar [2020] NSWCA 89

J D Heydon, Heydon on Contract (Thompson Reuters (Professional) Australia Limited, The General Part, 2019)

K Mason, J W Carter and G J Tolhurst, Mason and Carter’s Restitution Law in Australia (LexisNexis Australia, 4^th ed, 2021)

COUNSEL:

B.W Wacker for the plaintiffs

SOLICITORS:

Marino Law for the plaintiffs

S. Chau of Carthew Chau & Co for the defendants

CONTENTS

SUMMARY

THE PARTIES

THE PLEADINGS

The amended statement of claim
The defence

THE TRIAL

THE WITNESSES

THE FACTUAL CONTEXT

The early dealings
The February 2018 dealings
The first five payments
The de Closey meeting: May/June 2018
The next eight payments
The O’Neill meeting: July 2018
Dealings up to the draft contract: August 2018 to June 2019
The draft contract: June 2019
Sale of the rent roll: October 2019 to February 2020
Events following the LJ Hooker sale: 2020 to 2023
Bells BR financial accounts

FINDINGS ON DISPUTED FACTS

The defendants’ case on agreements rejected
The evidence of the plaintiffs

THE ORAL SHARE AGREEMENT

Overview of the plaintiffs’ case
The plaintiffs’ submissions

Analysis

Conclusion

THE RESTITUTIONARY CLAIMS

The plaintiffs’ restitutionary claims
The claim arising from termination
The claim arising from an inherently ineffective contract

The recipient issue

Defences

CONCLUSION

SUMMARY

1. The first and second plaintiffs (Mr and Mrs Weeks, together the Weeks) allege they paid $300,000 to the defendants pursuant to an oral contract with the first defendant (Ms Bell) to acquire 40 percent of the shares in the second defendant (Bells BR).  They allege no shares were ever transferred and that they lawfully terminated the contract, seeking damages of $297,500 from Ms Bell[1] and a declaration that they have an equitable lien over the shares to secure that price.  Alternatively, they seek a restitutionary remedy for the same amount on the basis that consideration for the payment has failed. The plaintiffs contend that a proprietary remedy also arises in support of such an order.

   [1] There was a $2,500 repayment.

2. If no certain contract arises on the evidence, the plaintiffs alternatively seek a restitutionary remedy for money paid by reason of the uncertain dealings. Additionally, the plaintiffs  contend that a proprietary remedy also arises in support of that order.

3. The defendants admit that the money was paid but allege that it was paid pursuant to alternative agreements with Bells BR, the effect of which on the pleaded case is that Bells BR is liable to repay only $114,000.   

4. For the reasons which follow, I find that:

   (a)No agreements or discussions of the kind alleged by the defendants occurred, at least in a manner which gave rise to any legal right or remedy;

   (b)The plaintiffs paid the funds pursuant to a discussion with Ms Bell which contemplated the acquisition of an interest in the business of Bells BR, but no certain and complete agreement was reached between the parties.  The plaintiffs are entitled to restitution of the funds they paid on the faith of that inherently ineffective contract; and

   (c)Ms Bell and Bell BR are obliged to pay the amounts received by them directly from the Weeks.

5. Accordingly, I order judgments against Bells BR for $247,500 (after allowing for a single repayment of $2,500) and against Ms Bell for $50,000 and against.

THE PARTIES

1. Mr and Mrs Weeks are married.  They have a son, Ben.  Mr Weeks is the sole director and shareholder of the third plaintiff (Weeks Co). Weeks Co was incorporated in April 2019 as trustee of the Weeks Family Trust.  The Weeks had worked in disability and aged care but are now retired.  They had some experience in investing in residential property.

2. Ms Bell is a real estate agent.  She was and is the sole director and sole shareholder (of 12 shares) of Bell BR, through which she carried on her real estate business.  Bells BR engaged in residential property management as well as sales.  In the former capacity, Bell BR had a rent roll which was comprised of the several properties which Bells BR had been retained to manage by the owners (the rent roll).  Bells BR employed a Mr Rowe as sales manager.  Its accountant was a Mr de Closey and its solicitor was a Mr O’Neill.  

THE PLEADINGS

1. It is convenient to begin with the pleadings, as they set out fairly clearly the deceptively simple cases advanced by each side.

The amended statement of claim

1. By their Amended Statement of Claim (ASOC), the plaintiffs allege relevantly as follows.

2. In about February 2018, at a meeting in the Bells BR offices, Ms Bell and the Weeks entered into an oral agreement (the oral share agreement) that:

   (a)Ms Bell would sell 40% of the shares in Bells BR to the Weeks or nominee; and

   (b)The Weeks would pay $300,000 (the contract sum) to Ms Bell, to be paid in tranches at her direction.

3. Between March 2018 and 28 June 2019, the Weeks paid the $300,000 in 16 instalments as directed by Ms Bell to Mr Weeks with all instalments but one paid to the Bells BR and one instalment of $50,000 paid to Ms Bell’s personal account. (The amounts, dates and total of payments are not in dispute.)

4. The parties agreed to be immediately bound by the oral share agreement but intended to record its terms more fully in a written contract.  That intention is to be inferred from the terms of the oral share agreement, the instalment payments and the subsequent preparation of such a written agreement.

5. Over May to August 2019, a draft contract was prepared by Mr O’Neill (the draft contract), a copy was obtained by the Weeks, and Ms Bell told Mr Weeks that the draft contract reflected her instructions to Mr O’Neill but that there were “a few small things she wanted to amend”. The draft contract was never signed.

6. In breach of the oral share agreement, Ms Bell:

   (a)Failed to complete the agreement; and

   (b)In about February 2020 Ms Bell caused the Company to complete a sale of the majority of its rent roll to an LJ Hooker agency.

7. In about November 2022, Ms Bell repaid $2,500 of the contract sum.

8. By reason of the conduct in [14] and [15] above, Ms Bell repudiated the oral share agreement, which was accepted by the Weeks by letter on 19 April 2023, on which date they terminated the agreement and claimed damages, relevantly, in the amount of the contract sum less $2,500.

9. Alternatively, the plaintiffs alleged that Ms Bell and Bell BR gave no consideration for the payments and the plaintiffs claimed a restitutionary remedy against each.

10. Further, as the oral share agreement had been terminated for the fault of Ms Bell, the Weeks were entitled to an equitable lien over the shares in Bells BR to secure the contract sum (note: a purchaser’s lien).

11. There was also a cause of action pleaded for damages for misleading or deceptive conduct.  This was not pressed at trial.

The defence

1. Because Ms Bell did not give evidence at trial, many allegations in the defence were not the subject of evidence.  However, it is convenient to set out the pleaded case as it provides a context for considering the issues.  

2. The gravamen of the defence is the extended paragraph 3 which pleads in response to the plaintiffs’ oral share agreement.  In response, the defendants plead the following.

3. First, that there was no oral share agreement as alleged nor did Ms Bell ever agree, in February 2018 or ever, to sell 40 percent of her shares in Bells BR.

4. Second, between December 2017 and February 2018, two other different agreements were reached during a telephone call on speaker between Ms Bell and Mrs Weeks while Ms Bell was in the Bell’s BR office and in the presence of Mr Rowe.

5. As to the first agreement (the wages agreement):

   (a)Ben was at that time working for Bells BR as a trainee real estate salesman.

   (b)Mrs Weeks and Ms Bell entered into an oral agreement that:

   (i)The Weeks would pay Ben’s wages and employer superannuation contributions, with no obligation on the defendants to repay those contributions;

   (ii)The Weeks would make regular contributions as they could afford to Bell’s BR’s bank account to pay the wages;

   (iii)Bells BR would continue to employ Ben and provide real estate sales training and Ben would not be told of the payments.

6. As to the second agreement (the loan agreement), the Weeks would lend Bells BR (interest free) such sums at such times as they could afford to pay Bells BR’s debts, those sums being repayable on demand.

7. Third, in about May 2018, the Weeks and Ms Bell met at Mr de Closey’s office and at that time:

   (a)The Weeks offered to buy a 40 percent share of the rent roll for $300,000;

   (b)Ms Bell said the rent roll varied over time, had about 55 to 65 properties with a commission of 2 percent, Bells BR employed a property manager and Ms Bell was only interested in selling 30 percent.

8. Soon after the de Closey meeting, Mrs Weeks and Ms Bell had a telephone conversation in which (the defendants’ offer):

   (a)Mrs Weeks again offered to buy 40 percent of the rent roll for $300,000;

   (b)Ms Bell agreed on terms that the purchase price was in addition to the money paid for the wage agreement, Ben would still be employed, money used by Mrs Bell for her personal debts would be treated as draw from Bells BR and the Weeks would get 40 percent of any net profit on the rent roll.

9. The defendants admit the amounts, dates and total of payments alleged by the plaintiffs but deny Ms Bell specified those particulars because the plaintiffs decided those matters.

10. The defendants admit the draft contract but deny it was prepared at Ms Bell’s request or on her instructions.  Rather, Ms Bell instructed Mr O’Neill to prepare a draft agreement for:

    (a)Payment of a share of net profit from “commission monies” received by Bells BR from operation of the rent roll;

    (b)An advance of up to $300,000 as a loan to Bells BR which Bells BR or Ms Bell may use for wages of Ben and payment of the debts of Bells BR or Ms Bell; and

    (c)Employment of Ben as an agent.

11. The defendants deny Ms Bell ever told Mr Weeks that the draft contract was based on her instructions or that she said there were “a few small things she wanted to amend”.

12. As to the rent roll sale, the defendants say they were approached by LJ Hooker in April 2019 with an offer to buy 50 percent of the rent roll for $300,000 and that Bells BR completed that sale (it does not say when).  Further, there remained more than 40 percent of the rent roll which the plaintiffs could have purchased.

13. The defendants admit the small repayment but describe it as a loan to the Weeks at their request after ill health.

14. The defendants plead directly to the restitutionary claim in reliance on the benefits bargained for by the Weeks under the wages agreement and the loan agreement.    

THE TRIAL

1. The trial was conducted over three days.   

2. The defendants were initially represented by a solicitor but filed a Notice of Acting in Person on 31 October 2024.  I set the trial dates on the hearing of an application to place the matter on the Commercial List on 7 November 2024.  On 10 February 2025, Mr Chau was retained.  He had barely 3 weeks to prepare the trial.  He was frank in conceding that he was not experienced in civil litigation.  With respect to Mr Chau, (who was brave in the face of the limitations of his litigation experience) he struggled with conduct of the trial.  Consequently, the plaintiffs’ witnesses were not challenged nor was the defendants’ case properly put to them.  

3. While Mr Chau appeared each day, Ms Bell did not.  The possibility of Ms Bell giving evidence by video link had been flagged at the mention on 10 February 2025.  Mr Wacker, who appeared for the plaintiffs on that occasion, made clear his client would not consent to Ms Bell giving remote evidence without a proper application and supporting material, a position reiterated at every opportunity.  Ultimately, on the morning of day two, Mr Chau made an oral application unsupported by affidavit evidence for Ms Bell to give evidence by telephone.  I swore Mr Chau so he could give evidence in support of that application.  I did not take that course from any concern about Mr Chau’s honesty, but rather so that a formal process was in place for Mr Wacker to hear the evidence, object to it and explore it in cross examination.   

4. Ultimately, I refused leave for Ms Bell to give evidence remotely.  I gave reasons:  Weeks v Bell [2025] QDC 24. Suffice to say that Ms Bell was, so far as Mr Chau knew from talking to her, on a cruise in New Zealand on her honeymoon, an arrangement made in knowledge of the trial. The result was that I did not hear from Ms Bell on the defence case.

5. I was not obliged to accept evidence of the plaintiffs simply because it was unchallenged by contrary evidence in many respects.[2] Here, there were contemporaneous documents which provided a framework of relative certainty against which the evidence of the plaintiffs could be tested.  Those documents also served another important purpose.  They included contemporaneous written statements from Ms Bell.  Further, it is reasonable to infer that the defence was based on her instructions.[3]  (The evidence discloses that there is no-one else who could have given the instructions.)  In those ways, her voice was heard in the trial.  As will be seen, that was not to her advantage.

   [2] GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 414 ALR 635 at [60].

   [3] The defence is not evidence, but it does raise an alternative version of events, almost certainly emanating from Ms Bell, against which the evidence and the plaintiffs’ case can be tested and which the evidence led might support, even if Ms Bell did not give evidence.     

THE WITNESSES

1. There were four witnesses called in the plaintiffs’ case: Mr and Mrs Weeks, their son Ben and the defendants’ solicitor in the dealings with the plaintiffs, Mr O’Neil.  In the defendants’ case, only Mr Rowe and Mr de Closey (Bells BR’s accountant) were called.  Mr Chau also tendered the accounts of Bells BR from 2018.

2. Mr Weeks was the principal witness for the plaintiffs.  He gave an account which generally supported the plaintiffs pleaded case.  He was the principal witness because while he and his wife discussed financial matters together, he took the lead in dealings with third parties and carried any joint decision into effect.  

3. Mr Weeks’ evidence was not unimpeachable, even if it was not impeached by cross examination.

4. First, his account differed somewhat from the detail of the pleaded case in respect of the making of the oral agreement. The difference was not mere detail.  For example, the ASOC pleads that the oral share agreement was the result of discussion at one meeting.  He spoke in evidence of two meetings over a couple of days. Further, until the morning of trial, the plaintiffs alleged that the single meeting occurred at the office of Mr de Closey.  It is small comfort on this point that Mrs Weeks gave the same account.  The possibility of unintentional joint reconstruction is ever present where a couple deal with a dispute together over years.   

5. Second, these events occurred seven years before trial and nearly six years before commencement of proceedings.  There is no evidence of any diary note of the February 2018 meeting/s nor any unequivocal note of any other meeting (I discuss Mr O’Neill’s note, which might be an exception, below).  Further, the parties had on-going dealings over those years.  In those circumstances recollection of precise words needs to be scrutinised with care.

6. Third, a key factual issue on certainty of the oral share agreement turns on whether there were words used which addressed the way in which the sales commissions part of the business of Bells BR was to be dealt with as part of the transaction.  The evidence Mr Weeks gave on this issue came at the end of his examination and was given in an unpersuasive manner. 

7. I have no reason to doubt Mr Weeks was an honest witness.  Nor, as will be seen, is his evidence materially flawed when measured against the documents.  However, the above circumstances require that care is exercised in considering his evidence of what was said and done in the February 2018 meeting (which I accept occurred as explained below).  

8. Mrs Weeks’ evidence was also not challenged, despite me formally putting the principal allegations in the defence to her.  Notably, she agreed in Mr Weeks version of the division of labour in financial decision making.  In fact, her evidence was that while they decided things together, ultimately if Mr Weeks was satisfied, so was she.  Her evidence was less detailed on the various meetings, as would be expected if she saw Mr Weeks as having primary responsibility for the external dealings and the ultimate decision.  However, the points in paragraphs [42] and [43] apply to her evidence as well.  Again, her evidence should not be just accepted without scrutiny, albeit again I have no reason to doubt her honesty.

9. Ben also gave evidence.  He seemed to have the best recollection of details of all three of the Weeks.  This is to be expected given that he was working in the business for some years, part time and ultimately full time, and that he appears to have been unpaid a substantial amount of superannuation which tends to focus the mind.  However, his role in the key events was limited.

10. Mr O’Neill presented as a competent solicitor and I accept his evidence as far as it goes.  Mr de Closey was also called by Mr Chau.  Again, he presented as a competent professional and I accept his evidence as far as it goes, which is not far.  Not surprisingly, he recalled little of the detail of discussions about the transaction.  Bells BR’s accounts were tendered through him, covering effectively 2018 to 2022 tax years.

1. Mr Rowe was ultimately the only substantive witness called for the defendants.  He gave brief evidence which tended to confirm that some kind of discussion occurred in respect of Ben’s employment which was linked to funds from the plaintiffs.  I saw no reason to doubt the substance of his evidence.  As will be seen, even if accepted, it does not much assist the defendants’ case.

THE FACTUAL CONTEXT

1. The following is a chronology of events drawn from uncontentious matters or matters I consider clearly correct on the evidence, with areas of disputed fact noted for later resolution.

The early dealings

1. The Weeks met Ms Bell when she acted as agent for the sale of a residential investment property.  In February 2016, Mr and Mrs Weeks retained Ms Bell to act in the sale of an investment property they owned at “Ultima” apartments, Tweed Heads. A trusting rapport was said to have been created between the three of them following an unsuccessful attempt by one of Ms Bell’s former employees to “poach” the Weeks’ sale from her. ^[4]  Ms Bell said they were the sort of people she would like to do business with.

   [4] T1-23 at .34 to .39; T1-79 at .10 to .16.

2. This idea seems to have lodged in Ms Bell’s mind as she approached the Weeks on a number of occasions over late 2016 and 2017, including on a cruise around Christmas 2017.  Both Mr and Mrs Weeks expressed some frustration at her approaches in the witness box.  However, I suspect that is with the benefit of hindsight.  Ms Bell showed interest in doing business with the Weeks and they were interested in it too.

3. During this period, Mr and Mrs Weeks son, Ben, was studying for a real estate agent’s licence following his recovery from testicular cancer. At his parents’ suggestion, in March/April 2017, Ben commenced work experience with Ms Bell working approximately one day every six weeks increasing, in May/June 2017, to one or two days every three weeks. ^[5]  I infer that this link inclined the Weeks more favourably towards involvement in Bells BR. 

   [5] T1-93.30 to 95.46.  

4. The start of serious discussions, according to Mr Weeks, was a call from Ms Bell in January 2018 trying to establish his interest in investing $340,000 for “30 percent of the business”.  Mr Weeks said he needed more information.

The February 2018 dealings

1. The parties agree in their pleadings that there were contractual discussions in February 2018.  Where they happened, who was involved and what was agreed differ.

2. Mr Weeks and Mrs Weeks were at one that there were two meetings over two days.

3. They agreed that:

   (a)At the first, in broad terms, Ms Bell offered them a 30 percent interest in the rent roll of Bells BR.  They went to discuss it and then returned and rejected the offer.

   (b)At the second, Ms Bell offered them a 40 percent interest in the rent roll.  They went to discuss it and then returned and accepted the offer.

4. Mr Weeks gave the only detailed account of what occurred.  It is important to be clear as to what he said, given the oral sale agreement is, well, oral.

5. He said he and Mrs Weeks went to Ms Bell’s office and she presented a document.[6] The document is plainly a print out of a property management software.  On pages 1 and 2 it has particulars of 22 properties under management, marked in pen as NSW.  On pages 3 and 4 it has particulars for 31 such properties marked as QLD. 

   [6] Exhibit 2.

6. At the end of each of the two lists are totals for gross rent and gross management fees.  There is added a handwritten calculation of the gross fees using a multiplier of 3 to get a total amount. There is an equivalent calculation at the end of the NSW print out.

7. Page 5 is not a part of the print out.  It is a copy of a handwritten note on lined paper in the same hand as did the entries on the print outs.  The calculations at the end of the NSW and QLD documents are noted with another more Delphic calculation as follows:

1. I accept the handwritten document was prepared by reference to printouts, given the overlap in contents and the handwriting on all pages which appears to be the same person and probably the same pen.

2. If I accept that the printout and its related note was provided to the Weeks in February 2018, it is powerful support for their version over Ms Bell’s pleaded alternative because it is consistent with negotiation over the value of the rent roll.  I accept it was:

   (a)Mr Weeks says it was, and it seems an unlikely point to be mistaken about.  I disregard the possibility of fabrication.

   (b)The print out is dated 24 February 2018 and states figures for February 2018;

   (c)The content of the print out and the handwritten calculations are all consistent with identifying the capital value of the rent roll business and perhaps of Bells BR overall (in the last line); and

   (d)Mr Weeks said the handwriting was in Ms Bells’ hand. That is evidence he can give, though it was unclear whether he had a great deal of experience with her writing.  However, it tends to be confirmed by a comparison of the hand on exhibit 2 and the hand on exhibit 9 which is very likely Ms Bell’s hand.  While it is not possible to be confident it is the same hand on the two exhibits, it is not obviously a different hand.

3. Given all of the above, I accept that the document was prepared in late February 2018, annotated by Ms Bell and given to the plaintiffs soon afterward.

4. When asked what Ms Bell said about the document he answered: “…she said…this was…. evidence of her…the rent roll and…some of the figures…stipulated …the expected growth and the value of it.”[7]  (The answer was not a decisive one as can be seen from the omissions.)

   [7] TS1-26.

5. He said that Ms Bell said the total handwritten on each print out was the value of the rent roll for the purposes of buying into it.  He gave evidence of these further discussions at the first meeting:

   (a)When Ms Bell handed them Exhibit 2, she said she was offering 30 percent of the rent roll for $325,000;

   (b)He said they had to go away and think about it.

6. Mr Weeks said they went away and discussed it and decided the price was too high for the portion she was offering “of the business”.  He said they returned next day to the office and they told Ms Bell they rejected the offer. Ms Bell then offered 40 percent of the rent roll for $300,000.  The Weeks again went away to discuss it over coffee and then returned to the office and told Ms Bell they agreed to that offer.  Mr Weeks said he told Ms Bell that they should now take some steps “to get it legally documented”. He said his understanding based on what Ms Bell said, was not that they would be acquiring part of the rent roll itself but rather was to acquire a 40 percent interest in the profits, less expenses.  He said Ms Bell said she would get onto her lawyer to get it documented.[8]  Notably, at this stage he had said nothing about acquisition of an interest in any aspect of Bells BR except the rent roll or rent roll net income stream.

   [8] TS1-28 to 29.

7. After Mr O’Neill was interposed, Mr Weeks gave further evidence about the February meetings and Exhibit 2.  As will be seen, his evidence is central to the plaintiffs’ case on the oral share agreement.  After, he was referred to the various handwritten entries on Exhibit 2.  The following evidence was then given:

   I’d like you to – then to look at the 40 per cent 640,000?‑‑‑Yep. 

   HIS HONOUR:   Well, just before we leave that, do you recall anything being said to you by Mrs Bell about that figure – 256,000 – or how it was calculated or anything?‑‑‑Uh – sh – she said to me that – um – it was 40 per cent of the 640, and the 640 was made up of what the rent roll was plus good will and growth. 

   Right. 

   MR WACKER:   So just so we understand, was – the 256 was worked backwards from the 640, was it, to your understanding?‑‑‑Well, it – I was led to believe it’s – 40 per cent of 640’s 256. 

   I see. 

   HIS HONOUR:   And did she say – do you recall her saying anything else about what “good will and growth” referred to?  Good will of what?  Growth of what?‑‑‑Well, she just said – eh – she said that was factored into it and that that was what her – she estimated it – er – would be worth. 

   What would be worth?‑‑‑The – the – the – the business at 640. 

   The business?‑‑‑Mmm.  Well, that – that’s the figures of – of this part of the business.  Six-forty

   The rent roll part of the business or the whole of the business?‑‑‑Well, she ju – I just led to believe that’s what she estimated it was worth for me to buy into 40 per cent of that. 

   But what did – did she say anything to you about what “it” was that you were – you just said, “What it was I was buying into”, but what did she say to you about what “it” was that you were buying?‑‑‑Well, ju – it was just my 40 per cent share of the – uh – 40 per cent of the shares. 

   Shares?‑‑‑Yeah. 

   Of what?‑‑‑Of the business. 

8. Mrs Weeks also gave evidence of the meetings in February 2018.  Her evidence was less detailed than Mr Weeks’.  She recalled a meeting attended by herself and Mr Weeks where Ms Bell made an offer of $325,000 for 30 percent.  When asked 30 percent of what, she said “the rent roll”.  She said Mr Weeks spoke on their behalf in the meeting. She said they discussed it together and returned and rejected the offer.

9. She said they returned the next day.  At that second meeting, again Mr Weeks did the talking on their behalf.  Ms Bell said, “[h]ow does 300 sound but 40 percent of the rent roll”.  They went away to discuss it again, decided they were happy with that offer, and returned to the office and said they agreed on that offer.  She recalled Mr Weeks saying that “[w]e need to go and get that all written up as a proper like agreement”.   Mrs Weeks had no recollection of seeing Exhibit 2.

10. As explained in paragraphs [24] and [25], the defendants’ pleaded case is that there were contractual discussions in February 2018, but that they were between Mrs Weeks and Ms Bell and that the wages and loan agreements were made at the time.

11. Mrs Weeks rejected that any such discussions occurred in peremptory terms.  The only evidence on these allegations from a defence witness was Mr Rowe’s evidence.  His evidence was brief.  He said he was sales manager at Bells BR for about two and a half years ending in 2018, possibly as early as mid-February or as late as June 2018.  He said he recalled hearing a conversation between Mrs Weeks and Ms Bell. He said:[9]

    just one conversation that – ah – Miss Bell had on speakerphone that was related to Ben’s employment.  I believe it was a longer conversation, but I was only privy to that – to that kind of part of it.

    …

    the part that I heard was that we – as a – as a business, or Sue, as a – as a business, wasn’t in a position to be paying a full-time – ah – wage – um – and particularly for, I guess, a – a – a – an inexperienced agent at that point in time.  My – what I – I heard of the conversation was that there was to be an investment into the business that would help cover or would cover Ben’s wage for a period of time.

    Do you recall anything else that you heard said?   It – it – it wasn’t – yeah.  It – it wasn’t something that was to be made aware of to Ben.  Um – and I think – well, I don’t think.  Yeah.  The – the conversation was that I think he had a challenging – challenging period of time – um – medically, and – and hadn’t been working, and that we wanted – er – you know, the – the two parties on the conversation wanted him to, you know, be – remain employed, and that there was an investment to be made, and that that would cover his wages for a period of time.

    [9] TS2-28 to 29.

12. In cross examination, he recalled being called into his office by Ms Bell to listen to the conversation.  He said that he thought Ben was working on a part time or casual basis at the time of the conversation but did recall working with Ben.  He recalled a discussion with Ms Bell that the business could not afford employees who were not on commission.  He had not made a note of the conversation or had reason to recall it until approached by the defendants’ solicitors (presumably around the time the defence was filed in January 2024).

13. It is useful to consider Ben’s position around this time.  He said around Australia Day 2018 Ms Bell called him and told him that the receptionist of Bells BR was leaving and asked him to take over that role.  It appears the role was not initially full time.  Ben then was informed by his Centrelink officer that there would be a subsidy for him if he was taken on full time.  In about February/March 2018, he thinks he communicated this to Ms Bell.  He said he started as a full time employee from 1 July 2018.  The payroll activity print out for Ben from Bells BR confirms that.   

The first five payments

1. It is not in dispute that the Weeks made the following payments to the account of Bells BR:

   (a)2 March 2018 the Weeks paid the first payment of $20,000; 

   (b)8 March 2018 the Weeks paid the second payment of $9,000;

   (c)26 March 2018 the Weeks paid the third payment of $9,000;

   (d)28 March 2018 the Weeks paid the fourth payment of $9,000; and

   (e)4 April 2018 the Weeks paid the fifth payment of $3,000.

2. Mr Weeks gave evidence that he made these payments to Bells BR because he was asked to do so over telephone calls by Ms Bell both as to timing and as to amount.  He said:

   I see.  All right.  Now, following this meeting in February of 2018, did you start making payments to Mrs Bell?‑‑‑Ms Bell – ah – in a couple of days after rang me and said that – er – that to substantiate my interest in – or our interest in the buying in the property she requested to make – for me to make some payments.

   And did she say at this stage how much you should pay?‑‑‑Ah – she stipulate – at that time she just said she wanted a initial payment of 20,000.  I did – I did – went on to mention it – it’s strange that I was only going to pay for part of it, but – and said, “Why wouldn’t you want the whole amount?”  And she said no, she just wanted it as – as part payments.  So to keep – she told me it was to keep the test – ah – tax man not interested in what was going on.

3. His evidence on the point was given in a tone reflecting in my opinion, a genuine recollection of a sense of surprise at the request.  His version was denied in the defence in these terms:

   Whilst [Ms Bell] did inform Mrs Weeks at various times of the nature and amount of debts owed by [Bells BR] and [Ms Bell] and the amount of Ben’s wages, [Ms Bell] did not give the stated directions, and the amounts and timing of payments was solely determined by [the Weeks].

The de Closey meeting: May/June 2018

1. There was a meeting at the offices of Mr de Closey which the Weeks and Ms Bell attended together, though there is no documentary evidence to confirm this.  Mr de Closey thought it might have occurred in May 2018, Mr Weeks thought June 2018.  Nothing turns on the distinction.

2. Mrs Weeks recalled a meeting but had little recollection of it.  Mr Weeks said Ms Bell organised the meeting so the Weeks could understand the Bells BR accounts.  He said in the course of that discussion, Mr de Closey asked Mr Weeks if he understood the transaction was 40 percent of the shares in Bells BR.[10] Mr Weeks said that he understood the proposal and wanted to “formalise” the Agreement.[11] 

   [10] TS1-33.10 to .14  

   [11] TS1-33.18 to .22  

3. Nothing was adduced in chief from Mr de Closey on the subject of the meeting.  In cross examination, he did not agree that it was discussed at that meeting that the Weeks would buy 40% of the shares in Bells BR for $300,000 but was asked nothing more about the meeting. However, when cross examined about the email of 3 October 2018 (see below), he did recall discussing with Mr Weeks that if a shareholder was going to be anyone, it should be the family trust.[12]  By that I assume Mr de Closey meant the shareholder should be a trustee for a family trust.  That impliedly supports the conclusion that at the May meeting there was discussion about the Weeks acquiring shares in Bell BR.  Further, the email of 4 September 2018 tends to confirm that there was some discussion of 40% for $300,000 as well.

   [12] TS2-40.

4. The defence alleges that it was at this meeting that the acquisition of a 40 percent share in the rent roll was agreed: see the details in paragraph [26] above.  Mr de Closey might have been able to give evidence about whether the matters in the defence were discussed, but he was not asked.  It was the defendants’ task to lead relevant evidence from their witness and they did not do so.  There is therefore no evidence of a discussion at the meeting of the kind the defendants allege.  (The statement in the 4 September email below that at this meeting the sale price was “agreed to & confirmed” is equivocal and does not much assist either way.)

The next eight payments

1. From around the time of the de Closey meeting until the O’Neill meeting, the Weeks made a further eight payments.  Mr Weeks’ evidence as to timing and amount applied to these payments as well. 

2. It is not disputed that the following payments were made:

   (a)10 May 2018, the sixth payment of $15,000

   (b)11 May 2018, the seventh payment of $10,000;

   (c)30 May 2018, the eighth payment of $20,000;

   (d)6 June 2018, the ninth payment of $20,000;

   (e)8 June 2018, the 10^th payment of $20,000;  

   (f)13 June 2018, the 11^th payment $40,000;

   (g)27 June 2018, the 12^th payment of $50,000, uniquely paid to Ms Bell;

   (h)29 June 2018, the 13^th payment of $25,000.

3. Those payments total $200,000.  Together with the first group of payments, a total of $250,000 was paid by about the time of the meeting with Mr O’Neill.

The O’Neill meeting: July 2018

1. Mr Weeks said the parties met with Ms Bell’s solicitor, Mr Joe O’Neill.[13] There is no doubt this meeting occurred, probably in late June 2018.

   [13] T1-33 ln 35-36 (A Weeks).

2. Mr Weeks said of this meeting that Mr O’Neill explained the transaction to Mr Weeks and asked, “did I understand that I was buying 40 per cent of the share[s] In Bells Beachside Realty”. He said Mr O’Neill told Mr and Mrs Weeks of the need to obtain independent legal advice[14] and that Mr O’Neill said that he would draft up an agreement for the purchase of the shares.[15]

   [14] T1-33 ln 46 – T1-34 ln 11 (A Weeks).

   [15] T1-34 ln 17-24 (A Weeks).

3. Mr O’Neill made diary notes of the meeting, though his recollection of what was discussed was very limited.  The notes are equivocal on the key issues.[16]

   (a)They are headed “shareholders agreement”;

   (b)They refer to 30 percent share in the rent roll for $300,000;

   (c)They refer to “dividends” being paid every quarter;

   (d)They identify the creation of a trust with the Weeks family as beneficiaries and for funds to be paid from Bell BR to the trustee.

   [16] Exhibit 13 pp 2 to 4.

4. Insight into what passed at the meeting and indeed in relation to the agreement if any between the parties overall, can be obtained by subsequent emails between the parties and their agents, particularly from Ms Bell.

5. The Weeks retained Brett Mason-Smith to act for them in the transaction.

Dealings up to the draft contract: August 2018 to June 2019

1. On  31 August 2018, Mr O’Neill wrote to Ms Bell seeking her clarification of the transaction discussed at the above meeting (seemingly including his handwritten notes).  Ms Bell’s voice is heard in the response.[17] It is headed Bells BR share agreement and has Ms Bell’s Bells BR signing block and provides:

   [17] Exhibit 13 p. 5.

   Dear Joe

   Thank you for your email regarding questions you have to draft an agreement on my behalf between Ashley Weeks & myself for 40% share of my residential rent roll from 1st July 2018.

   My previous sale to BMG Harcourts in 2017 is finalised & is completely separate from this business transaction.

   I will forward exact figures & details to you on Tuesday so you can format a draft copy for signing.

   David DeClosey is Bells Beachside Realty accountant firm & we have taken his advice in relation to our business agreement.

   I look forward to providing you with all the details shortly. Please note, here are some points that are agreed.

   - Ashley Weeks has been advised on ALL costs involved in running Bells Beachside Realty Pty Ltd.

   To be provided:

   - monies already paid to Sue Bell.

   - balance to be paid to Sue Bell.

   - 40% residential profits to be deposited quarterly into The weeks family trust from Bells Beachside Realty.

   - Range Rover lease repayments & expenses to be paid each month from Bells Beachside Realty general account & paid in full at the end of the lease & transferred to Sue Bell personally.

   - Sue Bell’s personal expenses to be separate from business account.

   - 2 office staff members to be paid a wage from Bells Beachside Realty general account.

   - All financials to be shared monthly between Sue Bell, Ashley Weeks in conjunction with Oculus Accountants.

   - Sue Bell & Ashley Weeks to be provided with fuel cards.

   - Sue Bell & Ashely Weeks to be provided with business credit cards.

   - Balance of share purchase to be paid in full by 14th December 2018.

   I will forward all remand information to you shortly.

   Kind regards 

1. This document is of significant probative weight because it is Ms Bell giving instructions to her solicitor in response to specific inquiry based on notes of the meeting with Mr O’Neill.  It is inconsistent with the defendants’ case as follows:

   (a)Ms Bell makes no mention of any aspect of the wages or loan agreement;

   (b)Her instructions are inconsistent with the idea that the $300,000 is to be paid on top of money already paid “to Sue Bell” pursuant to the wages or loan agreement.  Quite the contrary, it contemplates including those funds as paid funds; and

   (c)It contemplates separation of Ms Bell’s personal affairs from the accounts of the company in a manner consistent with a share sale agreement and of course refers in the heading to the “Bell-Weeks share agreement BBR”.

2. I also that the email refers to acquisition of a share in the rent roll.  It does not deal with the sales commission part of the business.

3. Also important is an email exchange between the parties over 4 September and 7 September 2018.  In considering these, I keep in mind Ms Bell’s statements in the 31 August 2018 correspondence.  The exchange begins with an email from Mr Weeks to Ms Bell on 4 September where he particularises the $250,000 paid to that date (as set out in paragraph [84] above) and observes “[a]t the meeting with us & David de Closey the sale price was agreed to & confirmed at $300,000 for 40% of rent roll value.  Payments to be made every three months”.

4. On 5 September 2018, Ms Bell responded, tellingly, in the following terms (I infer that the typeface ticks were added by Mr Weeks):

1. This email is generally consistent with the instructions to Mr O’Neill in paragraph [90] above and the comments in [91] apply equally to it.

2. On 18 September 2018, Ms Bell sent an email to Mr O’Neill in which true to her word, she cut and pasted her email of 5 September.[18] 

   [18] Exhibit 13 p. 7-8.

3. Thereafter, Mr O’Neill sought some clarification on points of detail. Ms Bell’s response on 21 September 2018 is self-explanatory. She wrote:

   Dear Joe,

   To clarify 6 points in your email.

   1.ALL business debts are included & have been disclosed & agreed to by us both.  

   2.Personal debts are NOT included & are my responsibility.

   3.I will supply you with details of all current residential rentals by EOM.

   4.Ashley Weeks is going to be a share holder however funds will be deposited into a family trust account as discussed & organised with David @ Oculus Accountants.

   5.Fuel cards are an internal matter. Just wasn’t sure if we needed to include in agreement.

   6.Wages have been negotiated & agreed upon & I will include figures by EOM with rental status.

4. There were some subsequent exchanges along similar lines between Mr O’Neill and Mr de Closey, though they are secondary versions of Mr de Closey’s understanding and, while not objected to, are not very persuasive as to what was actually said and done between the parties at their meetings.

5. The emails above contemplated the full purchase price being paid by 14 December 2018.  The final $50,000 outstanding of the $300,000 purchase price was ultimately paid in three instalments:

   (a)31 December 2018 when $15,000 was paid;

   (b)4 February 2019, when $25,000 was paid; and

   (c)28 June 2019, when $10,000 was paid.

6. At the same time, there was an extended delay in Mr O’Neill producing a draft contract.  It is evident that he remained uncertain as to exactly what the draft should say.  He sent an email to the Weeks’ solicitor on 28 November 2018 largely setting out the terms defined above but adding some more points. He asked Mr Brett-Smith if those terms are in accordance with his instructions.  I found no direct response to this email. However, the correspondence demonstrates that the delay ultimately turned on the incorporation of the buying entity on the plaintiffs’ side.  Weeks Co was incorporated and the family trust established in May 2019 (Mr de Closey recalled doing this work).

The draft contract: June 2019

1. In June 2019 that Mr O’Neill produced the draft contract.  It was provided to Ms Bell on 21 June 2019. On or about 21 August 2019, Mr Weeks said that Ms Bell provided a copy to him stating “[t]his is a…draft. There’s a few, minor little details that I have to iron out”.[19] Some such event must have occurred as it appears the Weeks’ solicitor had the Draft Contract by 21 August 2019 and it is unclear how else he received it.[20]

   [19] T1-41.5 to .11.

   [20] Exhibit 13 p. 84.

2. The draft contract handed to Mr Weeks contains some handwritten notes,[21] which Mr Weeks understood to be Ms Bell’s.[22]  That is a reasonable inference. Ms Bell’s handwritten notes are instructive:

   (a)She placed a series of ticks beside the details of the parties and completed Mrs Weeks’ name;[23]

   (b)She placed a question mark beside recital A, probably because it erroneously recorded that the vendor (Ms Bell) is the registered owner of 2 shares. She was the owner of 12 shares in the Company;[24]

   (c)She ticked recital B which recorded “The vendor has agreed to sell and the purchaser has agreed to purchase those shares for the price…”;

   (d)She ticked recital C which provided that the Company’s “one asset” was one being “rental properties in which the company is in possession and control of… in managing the said properties”. Beside that Ms Bell wrote “à new name to be had as to separate Sales & Rentals”.  It might be inferred from this annotation that Ms Bell intended that a new company (a “new name”) would take over the sales business of the Company to “separate” it from the Company’s business managing rental properties;

   (e)She placed a tick beside the clause headed “Contract to sell and buy the shares”;[25] and

   [21] Exhibit 9.

   [22] TS1-41.20 to .24.

   [23] Exhibit 9, p. 82.

   [24] Exhibit 1.

   [25] Exhibit 9, p. 85.

3. Oddly, she also placed a tick beside the clause headed “Payment of price”.[26]  That clause required the purchase price to be paid, with a deposit on signing and the balance on settlement.  That was inconsistent with every discussion which had gone before.  I infer it might have been an inappropriate artefact from a precedent. 

   [26] Exhibit 9, p. 85-6.

4. Mr O’Neill confirmed that he has no recollection of Ms Bell providing a copy of the draft contract with her handwritten notations on it to him.[27] In October 2019, Mr O’Neill inquired as to progress on the draft.  He seemingly received no further instructions because the draft was never signed, nor did he recall being given any reason why it was not pursued by Ms Bell.     

   [27] TS1-61.1 to .14.

Sale of the rent roll: October 2019 to February 2020

1. The plaintiffs submit that the reason Ms Bell did not pursue the Draft Contract is because it had become an inconvenience following her decision to sell part or all of the rent roll to LJ Hooker.  Whether that was the reason, Ms Bell’s apparent loss of interest in the draft contract does appear to have coincided with Ms Bell’s decision to undertake that sale.

2. The precise particulars of the timing of negotiations and completion of the sale were not established at trial.  However, it appears very likely that Ms Bell began negotiations in late 2019, that an agreement was reached at that time, and carried out by transfer of the rent roll by staff of Bell BR including Ben, through to February 2020.

3. It was unclear on the evidence whether the whole, or only part, of the rent roll was sold to LJ Hooker.  However, the sale price was of the order of $300,000 so a substantial part of the rent roll would have been acquired for that sum.  Indeed, given that the valuation by Ms Bell in Exhibit 2 (at a multiplier of three times the gross management fees) was only $263,000, the more likely inference is that the whole of the rent roll was sold (even allowing for some growth between 2018 and 2019).  The multiplier can safely be inferred to be reasonable for valuation of rent rolls and it is hard to imagine a sophisticated buyer like LJ Hooker paying substantially over the odds for a rent roll purchase with no goodwill component.  It seems more likely than not that the sale involved most, if not all, of the rent roll.

4. Mr Weeks gave evidence that he was told about negotiations with LJ Hooker by Ben in October/November 2019.  He said he called Ms Bell and asked her what was going on.  She said that once the sale of that rent roll was finalised  the Weeks would be reimbursed with their money.

5. It was not reimbursed.

Events following the LJ Hooker sale: 2020 to 2023

1. Following the LJ Hooker sale, Mrs Weeks said she undertook the role of chasing Ms Bell for the money paid by the Weeks.  That was not consistent with their evidence as to Mr Weeks being the person who dealt with financial issues on behalf of both.  However, Mr Weeks explained that occurred because Ms Bell would not respond to his inquiries anymore.[28] 

   [28] TS1-68.34.

2. Mrs Weeks described her recovery efforts:[29]

   Can you recall what steps you took to try and get your money back?‑‑‑I had spoken to her several times on the phone.

   What did you say to her?‑‑‑I – I just said to her, you know, when are we going to get some, you know, money payments.  And she said, “As soon as I sell some properties.  I’m selling some big large properties.  I’ll be able to pay you.”  Months, months, months went on.  Promises, promises and promises and nothing – absolutely nothing.  And – until one day I did – it was quite a time again.  I said to her, “Sue, we’re going down very quickly.”  I said, “I – I need to retrieve my money.”  And then she said, “What’s your bank account details?”  I said, “You know them.”  I gave them to her anyway.  She then put 2,500 into our Commonwealth account and that was it.  Nothing more.  I said, “That’s not the end of it, Sue.  I need my money back in full.”

   [29] TS1-87.30 to .42.

3. That payment occurred on 18 November 2022.  The defence alleges this payment was a loan from Ms Bell to the plaintiffs.   

4. Once again, we also hear Ms Bell’s voice at this stage of the dispute.  On 27 March 2022, she sent an email to Mrs Weeks in which she writes that she is not in a financial position to put a proposal to Mrs Weeks however she would be after 30 June 2022.[30]  While the email does not say what the proposal related to, the overwhelming inference in the context of the uncontentious evidence alone is that it related to repayment of the Weeks’ funds. 

   [30] Exhibit 15.

5. On 19 April 2023, the plaintiffs terminated the oral share agreement and commenced proceedings thereafter.

Bells BR financial accounts

1. The other evidence worth setting out is the relevant contents of Bells BR’s financial accounts prepared by Mr de Closey.  Mr de Closey confirmed that instructions to prepare the accounts came from Ms Bell and that he would have queried amounts he was uncertain about.  

2. In the 2018 accounts, a loan of $200,000 is shown as a current liability.  That is consistent with the payments to that date to the Company.  Mr de Closey confirmed the accounts would have been finalised around March 2019, consistent with normal practice.  This entry is inconsistent with the defendants’ pleaded case, though it might be said that payments on account of Ben’s full-time employment would not properly be applied to that until he was actually paid wages.  He only started full time after 30 June 2018.

3. The subsequent accounts, however, retain the loan entry at $200,000 (or in 2019 $210,000).  The $50,000 paid in Financial Year (FY) 2019 are not accounted for by the company (though it lent $122,000 to Ms Bell that year).  In FY2020, the loan is recorded again at $200,000 due to Mr Weeks.  (Ms Bells’ loan increases to $220,451). 

4. Finally, the 2022 accounts show the loan from Mr Weeks at $200,000.  These accounts would have been prepared in early 2023.  The parties were well and truly in dispute by that time.  The accounts are signed by Ms Bell as accurate.  (Ms Bell’s loan was $244,549 by that time).

5. Mr Chau relied on the accounts as showing a loss of about $100,000 in 2018 and 2019 to support the defendants’ case by demonstrating it was correct that the company could not afford to employ Ben unless it received support.  Note that Ben was not employed in 2018 on wages, so 2018 is strictly irrelevant.  True it is that 2019 was a similar loss, but there was a profit of some $27,000 in 2020.  Further, as Ben explained, he was replacing the receptionist and there was a subsidy to increase his job to full time.  Presumably the company always operated with a receptionist, so Ben was not an extra as such.  (I accept his evidence about his own employment as I have previously observed).  I do not think that the accounts clearly make out the proposition that Mr Chau advances.

6. In fact,  the accounts are directly inconsistent with the wages or the loan agreement.  They tell against the credibility of the allegations in the defence, in that they do not reflect conduct by Ms Bell consistent with the case raised in the defence. 

FINDINGS ON DISPUTED FACTS

1. Before embarking on a legal analysis of the payment of the funds by the Weeks it is necessary to identify the factual basis upon which it will be carried out.  That requires findings on the disputed facts. 

The defendants’ case on agreements rejected

1. I find that there was never a discussion between Ms Bell and Mrs Weeks which could support either the alleged wages agreement or the alleged debt agreement.  I make that finding for the following reasons.

2. First, it is inconsistent with the contemporaneous written statements by Ms Bell to Mr O’Neill and to Mr Weeks.

3. Second, it is inconsistent with the entries in Bells BR’s financial accounts which were necessarily prepared on Ms Bell’s instructions.

4. Third, further on the alleged wages agreement, while I accept there was likely some conversation of the kind Mr Rowe recalls, I do not accept that there was any discussion which could give rise to the wages agreement:

   (a)I accept the evidence of the Weeks as to their financial division of labour.  It is consistent with how they presented in the witness box and in the correspondence and diary notes.  These show Mr Weeks as the primary person to speak on behalf of the couple of financial matters.  It also tends to be confirmed by Ms Bell’s decision not to deal with Mr Weeks once the dispute arose.  It is highly unlikely Mrs Weeks would have said words objectively creating binding legal relations in a chat over the speaker phone, much less to do so without discussing the matter with Mr Weeks;

   (b)Mr Rowe overheard only part of the discussion.  There is no evidence of other statements which might have impacted on the meaning of what Mr Rowe heard?  But even that which he did hear seems to me harmless.  The conversation likely occurred at a time where the Weeks were committed to buying into Bells BR.  It would not be surprising if there was a conversation between Ms Bell and Mrs Weeks in which Ms Bell said that employment of Ben would be possible (or more possible) by reason of the funds to be paid by the Weeks.

   (c)As I have said, I accept Ben’s account of how he came to be employed and to be employed full time.  That evidence supports the conclusion that he was not an extra person but a replacement for a necessary administrative employee, the receptionist.  It was objectively untrue that the company could not afford Ben in particular.

5. The defendants’ pleading seeks to deal with the documentary record showing the transaction to acquire shares in the Bells BR by alleging that an offer was made by Ms Bell to sell share in Bells BR for the first time at the de Closey meeting in about May 2018.  I do not accept the allegation that the acquisition was first raised or first negotiated at that time, much less on the terms alleged in the defence.

6. First, the allegations about the wages and loan agreement have been shown to be wrong, and plainly so.  That provides a basis to also reject the other allegations about the share agreement in the defence.

7. Second, at the heart of the defendants’ case on the offer being made at the de Closey meeting is the proposition that the $300,000 was on top of the money already paid.  However, the subsequent documents contain no such suggestion.  This problem alone damages the defendants’ allegation beyond repair.

8. Third, there is no evidence that the discussion about acquisition of an interest in the rent roll first occurred at the de Closey meeting.  Mr de Closey gave no such evidence and there is nothing in the documentary record to suggest that this was the first discussion of such a transaction.  Indeed, it is inherently improbable it would be.  Why would Mr de Closey be hosting a negotiation about which he had no knowledge and in which he had no role?  It is far more likely the Weeks went to see him because there was an agreement of some kind and they needed to meet the company accountant to discuss that agreement.  That is exactly what the Weeks said the purpose of the meeting was. 

9. Fourth, and perhaps also tellingly, the Weeks started making quite large payments months before the de Closey meeting.  Once the defendants’ version of the wages and loan agreements is rejected, the only reasonable explanation for those payments on the evidence before the Court is that they were made pursuant to some understanding reached before they began, i.e., in February 2018.

The evidence of the plaintiffs

1. Of course, rejection of the defendants’ case does not mean that the plaintiffs’ account is automatically accepted.  I have to make findings on the balance of probabilities in circumstances where the plaintiffs bear the onus of proof.

2. I have already said I accept Ben’s evidence about the evolution in his roles at Bells BR.

3. What about Mr and Mrs Weeks? For the reasons I gave in paragraphs [42] to [46]   above, I considered their evidence generally to be reliable.  It can be seen from the chronology that their account, in broad terms, fits comfortably with the documentary record and the likely inferences from those document.  I generally accept their account.

4. I make the following particular findings.

5. First, I find that the Weeks had discussions with Ms Bell along the lines of Mr Weeks’ evidence in late February 2018 in which there was a consensus reached that the Weeks would buy into the business by paying $300,000 for 40 percent of the net income of the rent roll part of the business.  

6. Second, if find Mr Weeks made payments as directed, and in the amount directed, by Ms Bell from time to time.  That finding seems correct to me because Mr Weeks’ evidence about the instalment suggestion coming from Ms Bell struck me as reflecting a real recollection.  Further, once one accepts that the price was struck in February 2018, Mr Weeks’ offer to pay the whole amount (as he said in evidence he offered to do) is not surprising.  Further, it seems to me consistent with the way Ms Bell treated Bells BR as her personal money bank that she would want to control where the funds were paid from time to time.  This is confirmed by the payment to her of $50,000.  Finally, I have a real suspicion that Ms Bell did explain the instalments to Mr Weeks as relating to the tax office issues.  A sale of her interest in Bells BR in broad terms would give rise to a Capital Gains Tax event.

7. Third, I accept the Weeks’ account of what occurred after the meeting with Mr O’Neil.

8. The only reservations I have as to their evidence is in relation to the detail of the words said at the February 2018 meetings recounted by Mr Weeks.  The precise words used are important in this case, because of the nature of the plaintiffs’ ultimate argument on the oral share agreement.  I now turn to that central issue.

THE ORAL SHARE AGREEMENT

Overview of the plaintiffs’ case

1. I accept that in a meeting with Ms Bell in late February 2018, the Weeks agreed with Ms Bell that they would acquire 40% of the net income of Bells BR rent roll business for $300,000.  However, an agreement limited to those express terms encounters a difficulty.  The express agreement does not identify exactly what is being sold or how it is to be conveyed.

1. As Mr Wacker submitted, there is a number of alternative answers to what was being sold or how it was to be conveyed:

   (a)That Bells BR was going to transfer 40 percent of its clients to the Weeks;

   (b)That Bells BR was going to transfer 40 percent of the net income from its rent roll to the Weeks; or

   (c)That Ms Bell would transfer 40 percent of her shares in Bells BR to the Weeks or their nominee.

2. It might be thought on the whole of the evidence, that the third alternative is the least likely.  However, the plaintiffs’ have an interest in establishing a contract in those terms because it would give rise to an equitable lien over the shares in the company to secure money paid to Ms Bell under the contract, where that contract was terminated without fault of the purchaser: see Hewitt v Court (1982-1983) 149 CLR 639. A proprietary interest in Ms Bell’s shares might be a significant advantage if she is insolvent (as she asserts by her alleged debtor’s petition seemingly filed the last business day before the trial started).

3. Accordingly, the plaintiffs contend that there was a certain contract reached in the February meeting for the sale of 40 percent of Ms Bell’s shares in Bells BR for $300,000. 

4. There is another aspect to the plaintiffs’ case where a certain contract can be established.  The plaintiff contends that in that circumstance, it has an alternative claim for restitution of money paid under a contract where there has been a total failure of consideration.  It was suggested that this might give rise to a different form of proprietary remedy. 

5. The measure of loss might differ between the claim for contractual damages and restitution.  The principles informing the measure of loss certainly are different.  In contract the purpose of damages are compensatory, designed to measure the loss suffered by reason of the failure to perform the contract.  In a restitutionary claim, the measure of loss will be the enrichment of the defendant at the plaintiffs’ expense (ignoring waiver of tort cases).

6. However, the difference is largely theoretical because the plaintiffs’ claim the net amount paid under the contract as damages in its breach of contract case: $297,000.  It claims the same amount in its restitutionary claim for total failure of consideration.

7. The plaintiffs submits that if I am satisfied that the oral share agreement arose and was validly terminated, and that there was a total failure of consideration under that contract, then the plaintiffs do not have to elect as to which cause of action to take judgment on until after I publish my reasons.

The plaintiffs’ submissions

1. Mr Wacker put the plaintiffs’ case on for a certain sale of 40 percent of Ms Bell’s shares in this way.

   46.Plainly, during the February 2018 meeting an agreement was reached between Mr and Mrs Weeks, on the one hand, and Ms Bell, on the other.

   47.Ms Bell made an offer, which Mr and Mrs Weeks accepted, that Mr and Mrs Weeks would purchase 40% of something for the sum of $300,000 in exchange for the payment to them of the net profits from that 40% of something. Mr and Mrs Weeks commenced making the Payments totalling $300,000 within days of the Agreement being reached.

   48.What then was that something? What was the subject matter of the Agreement?

   49.Whilst the parties had variously discussed the sale as one of a sale of an interest in the “business” or the “rent roll”, practically it could only be a sale of the shares in the Company.

   50.And that is a matter that Mr Weeks was acutely aware of in his dealings with the professional advisors in the months that followed. His unchallenged evidence, which is detailed below, is that he said to both Mr O’Neill and Mr de Closey, during meetings in the presence of Ms Bell, that the sale was for 40% of the shares of the Company.

   51.However, plainly, what the parties had not agreed in February 2018 was the sale of an interest in the rent roll or the business or any other asset of the Company. The rent roll, the property management agreements and the business were to remain with the Company. There is no evidence of an agreement for an asset sale. The interest that was being sold was an interest which could result in a payment of the net profit generated by a portion of the rent roll.

   52.It is permissible for the Court to consider extrinsic evidence to determine the subject matter of the Agreement, as distinct from an interpretation of its terms. Both pre- and post-contractual conduct can be received and considered by the Court and this will not offend the parol evidence rule.

2. Mr Wacker then cited orthodox authorities for the proposition in paragraph 52.  This then opened the way to relying on the subsequent correspondence focussing on a share sale as evidence as to what was agreed by the oral agreement in February 2018.   

Analysis

1. It is important in analysing the plaintiffs’ submissions to keep firmly in mind the contract which they sue upon.  Paragraph 6 of the ASOC provides:

   In or about February 2018, Ms Bell and Mr weeks (on behalf of Mr Weeks and Ms Weeks) entered into an oral agreement (the Agreement) on the following terms:

   (a)Ms Bell would sell 40% of the Shares (the Sale Shares) to Mr Weeks and Ms Weeks (or their nominee); and

   (b)Mr Weeks and Ms Weeks (or their nominee) would pay to Ms Bell the sum of $300,000 to be paid in tranches as and when directed by Ms Bell.

   Particulars

   The Agreement was made during a meeting between Me Weeks, Ms Weeks and Ms Bell and David De Closey of Oculus Group (the Company’s accountant) at the offices of Oculus Group the Company in or about late-February 2018.

2. Based on that pleading, which is consistent with the evidence of the Weeks, the contract was entirely oral and agreed during the particularised meeting.  It is not an allegation of a contract to be inferred from a course of conduct of which the words said at the meeting was only a part.  That distinguishes it from the facts being considered by the NSW Court of Appeal in County Securities[31] which was relied upon by the plaintiffs.  That case was concerned with a contract partly in writing, partly oral and partly to be inferred from conduct and statements in that case and must be interpreted in that context. 

   [31] County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193.

3. The plaintiffs referred to a number of cases however,  I do not consider them applicable to this case.  I consider the reference to subsequent conduct to identify the subject matter of the contract to be open where the contract is an informal contract.  That approach is confirmed by the most recent intermediate appeal court decision referred to by the plaintiffs: Lawrence v Ciantar [2020] NSWCA 89 at [114] per Meagher JA (with whom Bathurst CJ and Gleeson JA agreed):

   114 The November and March Agreements did not state in terms whether the appellant was to undertake or to fund the subdivision. Although generally speaking, evidence of post-contractual conduct cannot be used in aid of construction (see Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 at [35]), in the case of contracts not exclusively in writing, post-contractual material may be relevant in determining what the terms actually were: County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [7]-[27] and [45]; Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 at [325].

4. As I read it, that position is confirmed by Heydon on Contract at [9.1560].[32]  

   [32] J D Heydon, Heydon on Contract (Thompson Reuters (Professional) Australia Limited, The General Part, 2019) [9.1560].

5. I accept that this is not a contract entirely in writing, rather it is a contract pleaded as entirely oral.  However, in my view, similar principles apply.  That is not because I am applying the parol evidence rule as a matter of law, but rather because the contract pleaded is, as a matter of fact, one made entirely orally at the specific meeting pleaded.  The question is a question of construction of the words said, rather than the words written, but still a question of construction of the contractual text.  Construction must be text based.  Accordingly, words must be found which can communicate, expressly or by implication, that the parties were agreeing to the sale of 40 percent of Ms Bell’s shares in Bells BR for $300,000. 

6. I do not think that such words can be found. 

7. I am satisfied that there were words spoken objectively communicating that the Weeks were buying 40 percent of the rent roll.  I am also willing to accept that words were said objectively communicating, in context, that they were acquiring 40 percent of the net profit of the rent roll business.  However, I am not satisfied that any words were spoken capable of supporting the construction that the Weeks were buying 40 percent of the shares in the company.  Indeed, Mr Weeks’ evidence, even taken at its highest, does not state that there were any such words used.

8. The best the plaintiffs can do, as I perceive it, is to point to the evidence in paragraph [68] above.  However, having observed this evidence being given, I was not persuaded that it reflected a reliable recollection by Mr Weeks.  My strong impression was that he was reconstructing what he thought would or might have been said, rather than accessing a recollection.  I do not say this critically.   However, there are a number of reasons why I do not accept the evidence as accurate and reliable:

   (a)The halting and uncertain way the evidence was given;

   (b)The fact that the evidence was not volunteered in examination in chief when he was first examined about Exhibit 2;

   (c)The fact that Mr Weeks’ evidence did not correlate with the text on page 5.  Notably, the calculation on that page showed that 40 percent of “the rent roll was plus goodwill and growth” was $256,000, not $300,000.  So why pay $300,000 if that was what Ms Bell said?; and

   (d)The fact that payment of $300,000 for a 40 percent interest in the rent roll would seemingly involve paying more that the total value of the rent roll on the multiplier adopted by Ms Bell.  Recall that the total on that basis was $263,000.

9. I am not persuaded that there was any material discussion of the calculations in Exhibit 2 at all.  If there was, it is difficult to see how the Weeks would have been willing to pay $300,000 for 40 percent of an asset shown to be worth $37,000 less than that in total, even allowing for the goodwill of Bells PR and its potential to increase the rent roll by natural acquisition of new clients.

10. However, even if those words were said, there is another fundamental difficulty with inferring that the subject matter of the oral share agreement was 40 percent of the shares in the Bells PR.  It is uncontentious that Bells PR had two forms of business activity.  Like most real estate agents, the company carried out property management and property sales.  The sales business was by far the larger part of the business in terms of turnover at least.  The financial statements which cover 2017 and 2018 show that:

    (a)In 2017, the income from sales commissions was $384,019 and the income from property management was $107,163; and

    (b)In 2018, sales commission was $162,416 and property management $99,727.

11. It is trite to observe that the potential for earning sales commissions will depend to a large degree on the goodwill of Bells BR, made up of its past clients returning, its location, its recognition in the area as a visible sales agent and so on.  Despite this significant issue which would impact a sale of Ms Bells’ shares in the company, the matter was never considered by the parties, much less addressed.

12. The first time anyone appears to have thought of the problem is when Mr O’Neill prepared the draft contract.  Ms Bell, understandably, annotated the draft to indicate that the sale commission part of the Bells BR’s business would have to be separated out from the company before any sale.  But this demonstrates that no-one had considered the matter at all before then.

13. In my view, this is fatal to any attempt to identify the subject matter of the contract as the shares in Bells BR.  A share transfer would be effective as a mechanism to give effect to the agreement to acquire 40 percent of the net income of the rent roll only if the sales business was first excised from Bells BR.  However, there was no evidence this was considered, nor as to how it would occur in a manner which secured the benefit of the oral share agreement for the Weeks as new shareholders.  The oral agreement simply failed to deal with a fundamental issue for the contract to be effective. 

14. The oral share agreement alleged was incomplete, uncertain or perhaps both.

Conclusion

1. No contract arose between the plaintiffs and Ms Bell by reason of the discussions during the February 2018 meetings.

THE RESTITUTIONARY CLAIMS

The plaintiffs’ restitutionary claims

1. While the category of ineffective contracts is recognised as a category of cases where a restitutionary remedy might be granted, the category involves two distinct sub-categories of case.  The law is explained in Mason & Carter[33] as follows:

   The basic division is between inherently ineffective contracts and effective contracts that subsequently become ineffective.  The former refers to transaction which never become fully effective as contracts.  Examples include fatally incomplete or uncertain agreements, and contracts unenforceable under statute.  Given that restitution may be the only common law remedy, principles of restitution have particularly significance for benefits conferred in connection with inherently ineffective transactions.

   A transaction may become ineffective on the occurrence of an event recognised by law as discharging both parties, usually an event sufficient to frustrate the contract. Alternatively, ineffectiveness may be a matter of election, for a promisor’s breach of contract or repudiation of obligation, or for a vitiating factor such as misrepresentation. By contrast with inherently ineffective contracts, restitutionary entitlements may not matter. For example, a plaintiff may be entitled to damages for breach of contract or fraud.

   [footnotes omitted]

   [33] K Mason, J W Carter and G J Tolhurst, Mason and Carter’s Restitution Law in Australia (LexisNexis Australia, 4^th ed, 2021) at [902].

2. The plaintiffs advance claims for restitution in both sub-categories:

   (a)The first is a claim for a restitution as an alternative to the claim for damages following termination for breach of the oral share agreement.  This is an example of a claim arising out of a contract, which is initially effective but subsequently becomes ineffective; and

   (b)The second is a claim for restitution in the event that the alleged oral share agreement is not established because of uncertainty or incompleteness.  This is an example of a claim arising from an inherently ineffective contract.

3. Although the two sub-categories are different in substance as to how the right to restitution arises, it is generally accepted that the so-called unjust factor which calls for restitution is the same for all cases in the ineffective contract category.  The circumstance which calls forth restitution is in both cases described as total failure of consideration.  The consideration spoken of in this situation is substantive consideration in the form of performance, as distinct from consideration in the form of a promise of performance.[34]  Complexities which arise when the benefit conferred is not a payment of money do not arise in this case.

   [34] Ibid [915] to [917].

The claim arising from termination

1. Restitution can arise in respect of money paid under a contract terminated on acceptance of repudiatory breach.  However, that cause of action depends on the existence of an effective contract terminated by the plaintiff.  I have found that no effective contract arose as alleged by the plaintiffs in this case and therefore no restitutionary cause of action can arise under this head.

2. In the course of argument, the question arose as to when the plaintiffs had to elect between damages for breach or restitution of money paid.  It was concluded that that election did not have to be made until reasons were given.  This must be correct.  If it was otherwise, the plaintiff might elect contractual damages and lose when it would have won on a restitutionary claim (for example).  It makes no sense to require the plaintiff to elect until it knows which cause of action should be the subject of judgment in light of the findings of the trial judge.[35]

   [35] Ibid [2306].

3. There is one point to correct on that analysis.  The premise of that analysis was that the two remedies were inconsistent as a matter of law and that an election ultimately had to be made to accept one or the other.  That premise appears to be incorrect, at least where restitution is sought for payments made under a contract terminated for breach.  In that particular case, it appears the better view is that both remedies can be claimed, subject to the limitation that there cannot be double recovery.[36]

   [36] Ibid [2309].

4. The point is moot here, quite apart from the failure of the claims based on the validity of the oral share agreement, because the same loss is claimed under both causes of action.  Accordingly, there would have been double recovery in fact, even if the plaintiffs had succeeded on the contract case.

The claim arising from an inherently ineffective contract

1. I have found that the payments by the Weeks were made under a contract which for restitutionary purposes is properly characterised as an inherently ineffective contract.  In this situation, complexities about whether the failure of consideration is total or partial do not arise, as there has been no performance because there has been no contract formed.  In those circumstances, where a party has paid money to the other party because of the ineffective contract, that party is entitled prima facie to restitution of the money paid.  The plaintiffs have been repaid $2,500.  So they are entitled to restitution of the remaining $297,500. 

2. There are two matters to consider however:

   (a)Which of the defendants was the recipient of the payments? 

   (b)Do any defences arise?

The recipient issue

1. I have accepted Mr Weeks’ evidence as to how the payments were made.  Accordingly, this issue must be determined in circumstances where:

   (a)Ms Bell directed the Weeks as to who to pay the money to from time to time; and

   (b)Mr Weeks (on behalf of himself and Mrs Weeks) paid the money as he was directed by Ms Bell.

2. On that basis:

   (a)Bells BR received payment directly to it of $250,000 from the Weeks’ funds; and

   (b)Ms Bell received payment directly to her of $50,000 from the Weeks’ funds.

3. That is the basis upon which the defendants contend judgment should be given.  I did not understand the plaintiffs ultimately to submit to the contrary.  That concession, if made, was made correctly.

4. The starting point is that the recipient of a payment is prima facie the party with the obligation in restitution.  In Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1998) 164 CLR 662, the Court stated the position as follows:

   11. …The basis of the common law action of money had and received for recovery of an amount paid under fundamental mistake of fact should now be recognized as lying not in implied contract but in restitution or unjust enrichment (see, generally, Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour, Ltd. (1943) AC 32, at pp 61-64; Goff and Jones, The Law of Restitution, 3rd ed. (1986), pp.5ff; Birks, "English and Roman Learning in Moses v. Macferlan" (1984) 37 Current Legal Problems 1). In other words, receipt of a payment which has been made under a fundamental mistake is one of the categories of case in which the facts give rise to a prima facie obligation to make restitution, in the sense of compensation for the benefit of unjust enrichment, to the person who has sustained the countervailing detriment (cf. Pavey &Matthews Pty. Ltd. v. Paul(1987) 162 CLR 221, at pp 227, 254-257, 267)...
   
   12. The prima facie liability to make restitution is imposed by the law on the person who has been unjustly enriched. In the ordinary case of a payment of money, that person will be the payee. However, when the person to whom the payment is directly made receives it as an intermediary (e.g. as agent for a designated principal), there may be uncertainty about the identity of the actual recipient of the benefit at the moment of payment. If the circumstances are such that the intermediary is to be seen as being himself the initial recipient of the benefit, his prima facie liability will ordinarily be displaced when he has handed the money received on to the person for whom he received it. In such a case he has, in the event, not retained "the benefit of the windfall" but been "a mere conduit-pipe" (see per Collins M.R., Continental Caoutchouc and Gutta Percha Co. v. Kleinwort, Sons, and Co. (1904) 9 Com Cas 240, at p 248) and "the only remedy is to go against the principal" (per Greene M.R., Gowers v. Lloyds and National Provincial Foreign Bank, Ltd. (1938) 1 All ER 766, at p 773). A more difficult case arises where the intermediary has not made a physical payment of money to, or on behalf of, the person for whom the payment was received but has made a credit entry in his books in favour of that person. In such cases, the question will arise whether the benefit of the payment made under fundamental mistake has been wholly or partly retained by the intermediary or effectively passed on to the third person (Continental Caoutchouc, at pp 248-249). In answering that question, the courts will pay regard to the substance rather than to the form of what has occurred. Thus, the cases indicate that a mere book entry which has not been communicated to the third party or which can be reversed without affecting the substance of transactions or relationships will ordinarily not suffice (see, e.g., Buller v. Harrison(1777) 2 Cowp 565; (98 ER 1243); Cox v. Prentice (1815) 3 M &S 344; (105 ER 641); The Colonial Bank v. The Exchange Bank of Yarmouth, Nova Scotia(1886) 11 App Cas 84). It must appear that the third party has effectively received the benefit of the payment with the consequence that the prima facie liability to make restitution has become his.

   [underlining added]

1. ANZ v Westpac dealt with the situation where money was received by Westpac on behalf of a client, the question being whether it had been dealt with by Westpac in a manner which relieved it of the restitutionary obligation.

2. This case is different.  The $250,000 paid to Bells BR was paid at Ms Bell’s direction, direct to Bells BR.  She did not ever receive those payments.  Further, there is no evidence that she directed those payments to Bells BR in discharge of some debt or other obligation she owed to Bells BR.  So how can she be liable to make restitution for funds which she was never enriched by? She cannot.

3. It also follows that she, rather than Bells BR, must make restitution of the $50,000 received by her directly.

Defences

1. Paragraph 16 of the defence denies any entitlement to restitution because of the alleged wages and loan agreements.  I have rejected any such agreements arose.  However, it also raises matters which might be thought to give rise to a change of position defence.  The gravamen of the allegations appears to be that Bells BR employed Ben and paid him wages and the defendants undertook work to train Ben in good faith and in reliance on the payments (though it is inadequately pleaded how that reliance related to individual payments from time to time).  I have rejected the allegation that there was an agreement in relation to Ben’s wages as alleged.  Further, while there might have been a discussion about the Weeks’ funds facilitating Ben’s employment, my findings as to the circumstances of his employment stand against a conclusion that he was employed on the faith of the payments. 

2. In any event, even if such a proposition could be made good:

   (a)It would provide no defence to Ms Bell for the payment received by her as there is no evidence she did anything by way of training, and if she did it was training done as agent for Bells BR. 

   (b)It would provide no defence to Bells BR except to the extent of the change of position on the faith of the payments.  There is no evidence as to what this sum would be.  Further there is no reason to think it would be any material sum, bearing in mind that Ben took over an existing position in Bells BR as receptionist and that a Commonwealth subsidy appears to have been paid for his shift to full time employment.

3. No change of position defence is established on the evidence.

4. Paragraphs 16.6 and 16.7 of the defence might also be thought to raise an estoppel of some kind.  However, for the same reasons as stated for the change of position defence, I am not satisfied that the facts sustain any estoppel. 

CONCLUSION

1. For the above reasons, Mr and Mrs Weeks are entitled to judgment against Ms Bell for $50,000 and Bells BR for $247,500.  No basis for a proprietary remedy was pressed in the event the plaintiffs succeeded only in restitution.  I consider that position correct. 

2. Finally, the plaintiffs did not press the claim based on misleading or deceptive conduct.  I dismiss that claim, though it scarcely added anything of substance to the trial.

3. I will hear the parties as to costs.