Westpork Pty Ltd v Bio-Organics Pty Ltd - [2018] WASC 291

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   WESTPORK PTY LTD -v- BIO-ORGANICS PTY LTD [2018] WASC 291
CORAM:   KENNETH MARTIN J
HEARD:   15 -18 MAY & 6 JUNE 2018
DELIVERED          :   17 SEPTEMBER 2018
FILE NO/S:   CIV 2409 of 2016
BETWEEN:   WESTPORK PTY LTD
Plaintiff
AND
BIO-ORGANICS PTY LTD
Defendant

Catchwords:

Contracts - Piggery - Pig waste processing facility - Liquid and solid waste - Pig excrement - Smells - Odours - Construction of facility at Gingin - Agreement for lease to commence when facility completed and regulatory approvals obtained - Uncertainty of contract alleged - Parties to agree design and budget for construction of waste facility - Design agreed subsequently - Development approval from local government shire obtained - Works approval required from State Government department - Delays in obtaining works approval - Implied terms contended in parties entire agreement - Proposed lessee and proposed compost facility operator - Complex environmental body of green tape laws and regulations - Works approval finally obtained then immediately subjected to review by department - Issues as to contractual uncertainty concerning alleged lack of agreement on budget - Fit and proper composter - Alleged mutual mistake concerning whether proposed lessee would need to apply for and obtain licence under s 56 of Environmental Protection Act - Alleged self-executing termination of agreement on basis of failure to obtain necessary approvals - Questions of fact and law as to whether consensus ever reached on budget subsequent to agreement

Legislation:

Environmental Protection Act 1986 (WA)

Result:

Plaintiff's action dismissed

Representation:

Counsel:

Plaintiff	:	Mr M D Howard SC & Mr P Mendelow
Defendant	:	Mr M S White SC & Mr T M Clavey

Solicitors:

Plaintiff	:	Anchor Legal
Defendant	:	Sparke Helmore Lawyers

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

Australia Estates Pty Ltd v Cairns City Council [2005] QCA 328
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98; (2009) 40 WAR 191
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169
Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353
Errichetti Nominees Pty Ltd v Paterson Group Architects Pty Ltd [2007] WASC 77
F & G Sykes (Wessex) Ltd v Fine Fare Ltd [1967] 1 Lloyd's Reports
Gange v Sullivan (1966) 116 CLR 418
Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679
Havenbah Pty Ltd v Butterfield (1974) 133 CLR 449
Kennedy v Vercoe (1960) 105 CLR 521
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115
Marindi Metals Ltd v Kidman Resources Ltd [2017] WASC 189
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
McRae v Commonwealth Disposals Commission (1951) 84 CLR 377
Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation [2014] WASC 468
New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers [1919] AC 1
Pacer v Westpac Corporation (Unreported, NSWSC, 2 August 1996)
Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537
Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2018] FCA 174
Solle v Butcher [1950] 1 KB 671
Suttor v Gundowda (1950) 81 CLR 418
Svanosio v McNamara (1956) 96 CLR 186
Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422

KENNETH MARTIN J:

Introduction

The plaintiff and defendant executed a written agreement of 12 July 2013 entitled 'Lease of Compost Facility Mindarra Farms Gingin' (the 2013 Agreement).
The 2013 Agreement was prepared by lawyers acting for both parties. It is described in the document as the parties' entire agreement. Both parties proceeded for over three years after July 2013 on a basis that they were mutually bound by that commercial bargain - until the plaintiff issued these proceedings in August 2016. The 2013 Agreement was part performed by conduct after July 2013 by both parties over an ensuing three-year period, but was not fully implemented to a completion. That was for various reasons.
The core dispute at the trial held in May 2018 was whether or not the 2013 Agreement was always void from inception by reason of legal uncertainty. The plaintiff alternatively argued that the 2013 Agreement was voidable, or otherwise terminable by it. That, said the plaintiff, was because of the defendant's alleged breaches of some ad hoc implied terms as contended for by the plaintiff. The defendant resists all these arguments and says that the 2013 Agreement is fully alive and enforceable, albeit that it has been breached by the plaintiff, who the defendant says has failed to perform a key obligation required of it.

Overview

The plaintiff, Westpork Pty Ltd (Westpork) operates a substantial piggery business at Gingin, approximately 80 km north of the Perth CBD.
The piggery premises are located at Lot 10, Wannamal Road West (Lot 10) and are known as the Mindarra Farm Piggery. The piggery is divided into four separate areas consisting of straw based areas known as 'echoshelters'. The four areas comprise Mindarra 1 through to Mindarra 4 (M1 to M4), reflecting what is an intensive piggery operation involving sow multiply units, sow breeder units, a deep litter grow-out unit, a grow‑out facility involving tunnel ventilated grower sheds, a controlled environment wiener shed, and a sorting shed. Clearly, this is a well‑established and large scale piggery operation of Westpork at Gingin.
Due to the sheer scale of its piggery operations at Gingin, Westpork, in order to operate lawfully, was required to obtain an (operating) licence from the then Department of Environment and Conservation (the Department) - under s 56 of the Environmental Protection Act 1986 As Amended (the EP Act).
Section 56 is found within Pt V div 3 of the EP Act. Like an earlier provision also found within div 3 dealing with 'works approvals' from the same Department (s 53), the workings of s 56 subjects occupiers of 'prescribed premises' to a sanction of punishment committing an offence against the EP Act ‑ unless that occupier was a holder of a licence issued by the Department in respect of the prescribed premises. An occupier, once so licensed, must then conduct all their operations at the prescribed premises in full accord with any conditions that are made the subject of the (operating) licence, again under pain of committing an offence against the EP Act.
In the case of Westpork, its piggery operations meant that Lot 10 met the description of 'prescribed premises' under Pt V div 3. Westpork was both the 'occupier' of the piggery and the legal owner of the Lot 10 land. Consequently, to operate lawfully Westpork needed to obtain a s 56 licence under the EP Act. Westpork's piggery business at Gingin fell within category 2 of the Environmental Protection Regulations 1987 As Amended (sch 1).
Exhibit 1.1 (which is found within a five‑volume Trial Book (TB) of tendered documents containing exhibit 1.1 through to exhibit 1.198) was Westpork's then current (piggery) s 56 licence - as issued from the Department. It shows a commencement date of 13 June 2012 and expiry date of 12 June 2017. Conditions of Westpork's s 56 licence included general conditions, water pollution control conditions, solid waste control conditions and various other attachments specifically applicable to Lot 10 as the 'prescribed premises' (under the EP Act and EP Regulations).
It is clear that by 2012 Westpork must have become reasonably familiar with the 'green tape' regime of the EP Act, particularly its licensing requirements under Pt V div 3 and the environmental conditions of the Department required to be met to engage in the lawful conducting of its piggery operation. In particular, Westpork had necessarily become exposed to the requirements of the EP Act from a s 56 licensing perspective as regards its large scale piggery operation at Gingin.
Around 2012, Westpork began to explore the option of treating the waste that was being generated by its piggery operations at Lot 10 ‑ rather than having the waste taken away at cost to be treated 'off site', as had been its practice. One of its s 56 licence conditions required Westpork to ensure that 'sludges removed from … wastewater treatment ponds and straw based manure are removed off site for disposal or reuse' (licence condition S5). Note also Westpork's licence conditions S4 (concerning the storage of solid wastes) and condition S1(a) (concerning the disposal of animal carcases).
The investigating of such a change to the way it might go about dealing with its piggery waste (to on site treatment) led Westpork to explore the possibility of building a compost treatment facility on Lot 10, close to its existing piggery operation. Westpork then explored who might be a suitable partner to operate such a new on-site composting treatment facility. An enquiry process eventually led Westpork to make contact with the Perth based (defendant) Bio-Organics, and to some early discussions with its directors, brothers Daniel Avila and Benjamin Avila (the Avila brothers).
By 2012, Bio-Organics had for some time been conducting a waste treatment facility business upon family owned land located at Abernethy Road, Oakford. Given its waste treatment business, Bio‑Organics had also been subject to the licensing requirements of Pt V of the EP Act for its Oakford 'prescribed premises'. The Oakford business operations fell under another category of prescribed premises as are listed under sch 1 of the EP Act Regulations.
Bio-Organics had obtained its own s 56 licence in order for it to lawfully conduct its waste treatment business operations at Oakford. Hence, in 2012, Bio‑Organics, like Westpork, had necessarily become familiar with the environmental regulation of its waste business operations and with the licence conditions made applicable to its s 56 licence.
From about July 2012, Westpork, acting through its chief executive officer, Mr Neil Ferguson, and Bio‑Organics, acting through the Avila brothers, were in ongoing negotiations towards achieving the commercial objective of establishing and operating a composting facility on Lot 10. Lengthy negotiations were ongoing as between Westpork and Bio‑Organics, before culminating during 2013, in the execution by both corporations of the 2013 Agreement.

The 2013 Agreement

The 2013 Agreement presents as being professionally drawn by lawyers who were acting for both of its contracting parties. It is a comprehensive and detailed written document, which expresses itself to be the parties' 'entire agreement' (cl 12.12), superseding all prior negotiations.
On my assessment, there are three core aspects to the 2013 Agreement's broadly based commercial deal.
First, a new composting facility was to be a built on Lot 10 which would be paid for by Westpork. From the content of special condition 10(f) in the Schedule of the 2013 Agreement, it can be seen or inferred that, objectively assessed, the two corporations had anticipated that it would take approximately 180 days for the envisaged composting facility to be fully constructed by Westpork. Construction work was to happen after the parties reached (further) agreement regarding the composting facility's design and budget - to occur within 90 days of entering the 2013 Agreement. As events subsequently transpired, these July 2013 timing estimates of 90 days and 180 days were proved to be inadequate.
At the time of the trial (May 2018) the construction of a composting facility on Lot 10 had not been started by Westpork, let alone completed. An area of land had been cleared of trees, but no work progressed past this stage. A failure by Westpork to build the facility on Lot 10 in 180 days from July 2013, or at all, is what lies at the very heart of this dispute.
The second core aspect of the 2013 Agreements was an envisaged long term lease being given (over the part of Lot 10 with the as constructed composting facility premises) by Westpork (as lessor) to Bio‑Organics (as lessee). But the lease term would only commence once the composting facility had been built by Westpork as envisaged under the 2013 Agreement, and as seen that event has not yet arrived.
The envisaged lease term was for an initial period of 10 years, with an option of a further term of 10 years after that: see the definition of 'term' at item 4 and of 'further term', at item 9.1 in the 2013 Agreement's first schedule.
An initial 10‑year lease term was stipulated to commence upon a day in the 2013 Agreement called the 'Commencement Date': see cl 2.2. A commencement of a lease term for Bio-Organics as lessee has proven problematic, absent a facility being built or any facility premises to lease.
'Commencement Date' is defined by item 3 in the first schedule of the 2013 Agreement. It states that the lease to Bio-Organics would begin:
Upon completion of the composting facility by the Landlord in accordance with the agreed design and layout and granting of all necessary operating licence and statutory approvals.
As a matter of law, the envisaged lease bargain in the 2013 Agreement was, at best, only ever an agreement for a lease, and not a lease itself. A commencement of a lease term for Bio-Organics as lessee taking up possession from Westpork at the 'Commencement Date' was made dependent upon certain things necessarily all happening beforehand. Chiefly, this first required a completion (ie, by finished construction) of the composting facility premises by Westpork on Lot 10 (by reference, as I explain, to an agreed design and layout for that facility). After that, all the necessary (operating) licences and statutory approvals would have to be obtained, to facilitate a lawful operation of a new composting facility on Lot 10.
A tranche of required approvals necessary to be obtained to lawfully build and then operate a composting treatment facility on Lot 10 included (uncontroversially):
(a)development approval for the composting facility works, from the Shire of Gingin. As will be seen, there was no great difficulty obtaining a development approval from the Shire. In fact, it was obtained by Westpork by 24 December 2013. But that was just over six months after the parties entered their 2013 Agreement (however, the 2013 development approval from the shire subsequently lapsed in 2016. It has not yet been renewed by Westpork); and
(b)a 'works approval' to be obtained from the Department to construct the facility on Lot 10 - under the requirements of s 52, s 53 and s 54 of the EP Act ‑ to avoid the relevant occupier (Westpork) from committing an offence against s 53(1) by constructing the composting facility. As will be seen, this works approval took a very long time for Westpork to get from the Department. By the time it arrived, the parties were, in effect, at 'war'.
Section 53(1) of the EP Act applies to the 'occupier' of 'prescribed premises', as defined under s 3. By s 52, an occupier who carries out any work on or in relation to premises which causes those premises to become, or to become capable of being 'prescribed premises', would commit an offence - unless the works have been implemented in accord with a 'works approval' earlier obtained from the Department.
There is no dispute at trial that Westpork needed to and did in due course apply to the Department for a 'works approval' to enable it to lawfully build the composting facility. But regrettably, a final works approval took years for Westpork to obtain from the Department, not months.
An initial works approval was only obtained by Westpork on 31 March 2016. Westpork's initial works approval and an accompanying departmental decision document can be found in TB vol 4, see exhibit 1.169. Hence, the task of obtaining a works approval from the Department turned out to be far longer, complicated, expensive and more complex than the parties had (objectively) anticipated in July 2013. Getting the works approval took longer than the 180 days as originally envisaged to build and complete the whole facility on Lot 10. Worse was to follow. Almost immediately after a first works approval was obtained, the Department advised Westpork that its approval needed to be 'reviewed' (see TB vol 4, exhibit 1.168). This resulted in yet more delay.
A final amended works approval only issued to Westpork on 21 November 2016, some three months after these proceedings were commenced.
Westpork's supporting documentation to the Department seeking the works approval was submitted on 7 January 2014 (TB vol 2, exhibit 1.60). It had been prepared and submitted with specialist assistance from environmental consultants (Strategen). Yet it was not until 21 November 2016 the Department finally issued Westpork with a (post review) final amended works approval: see TB vol 4, exhibit 1.86.
The third core aspect of the parties' 2013 Agreement concerned the envisaged day to day operations of the as constructed composting facility after Bio‑Organics had entered into possession of the facility as lessee. That was on the assumption, of course, that a 'Commencement Date' for a lease to Bio‑Organics had arrived. Again, this operational phase has not been reached, let alone achieved, as no treatment facility has yet been built.
The 2013 Agreement by the definitions found in cl 1.1 for the words 'Plan' and 'Premises', makes express reference to a 'Plan' being attached in a second schedule to the 2013 Agreement. Yet on examination, a second schedule section in the 2013 Agreement was left wholly blank: see TB vol 4, exhibit 1.41, page 24 of the 25-page Agreement. No point at all has been made about that by either party at trial, notwithstanding that I did draw attention to this curious omission: see ts 95 (day 1). Nothing turns on this but I mention it lest it be thought that this feature was overlooked.
Another express term found within the 2013 Agreement, cl 3, provides a condition precedent. It says:
The parties agree that this Lease is conditional on Special Condition 10(a).
Special condition 10(a) is found in the first schedule of the 2013 Agreement. It says:
10(a)The Tenant shall treat all Pig Manure produced by Westpork Pty Ltd at the Mindarra facility for the agreed value as determined in accordance with Special Condition 10(b) and the value of such manure treatment services will be credited against the Tenant's rental obligation.
By special condition 10(b) there is an agreed value attributed by the parties to the manure treatment/disposal services to be afforded to Westpork in the future by Bio-Organics - of $100,000 per annum.
It was not suggested at the trial that special condition 10(a) was an unfulfilled condition precedent that had inhibited the formation of a legally enforceable 2013 Agreement. Other legal arguments, however, to that end were put by Westpork.
This future waste treatment benefit aspect of the 2013 Agreement, under Bio-Organics' envisaged operation of the composting facility as lessee is important. It presents, objectively assessed, as a future long term service provision obligation assumed by Bio‑Organics - by it promising to treat all of Westpork's future pig manure generated by the Mindarra piggery facility.
Under the 2013 Agreement, Bio‑Organics was also given liberty (subject to some express protections for Westpork's business and licences) to treat waste emanating from other sources - at the Lot 10 composting facility ‑ as long as Bio-Organics still treated all of the pig waste generated by Westpork.
The remuneration fee payable to Bio-Organics by Westpork for the future composting treatment of Westpork's pig manure was agreed upon and set under the terms of the 2013 Agreement. That services fee was then further agreed to be set off against what would be the future rent amounts that would become cross‑payable by Bio-Organics to Westpork in future under its lease from Westpork.

The 'contra' deal treatment service fee set-off arrangement may be seen and appreciated within the rental payment covenants found in the First Schedule of the 2013 Agreement. Item 5 provides:
COMMENCING RENT
(a)Rent is not payable during the first SIX (6) months of the Term.
(b)The rent payable for the second SIX (6) month period of the first year of the Term shall be SEVEN AND A HALF (7.5%) per cent of the construction cost (including all engineering and design costs) of the composting facility and shall be payable by SIX (6) equal payments in advance commencing SIX (6) months from the Commencement Date.
(c)The rent payable for the remainder of the Term shall be the greater of, either:
(i)FIVE (5%) per cent of annual compost sales, calculated on a quarterly basis in arrears on actual sales for the preceding quarter; or
(ii)FIFTEEN (15%) per cent of the construction cost of the composting facility as paid for by Westpork;
per annum paid monthly in advance with the first payment due TWELVE (12) months from the Commencement Date.
Hence, there was an interconnected and intricate commercial deal reached in relation to future rent payable by Bio-Organics (after its initial six-month rent holiday). This deal reflected an attempted (notional) recoupment by Westpork of 7.5% of its outlaid 'construction cost' (including all engineering and design costs) for the composting facility - by future rent amounts paid by Bio-Organics by its six equal payments across the second six months of the lease term. As seen, the important term 'construction cost' is not further elaborated upon by item 5.
Next, by item 5(c) seen above, the future rent amounts payable by Bio‑Organics to Westpork over the ensuing nine years of the first term of its lease were to be the greater of either the fixed percentage (5%) of future annual compost sales by Bio‑Organics, or the minimum level of rent of 15% of the 'construction cost' of the composting facility each year as outlaid by Westpork (ie, paid as rent across nine years of its lease by Bio-Organics).
Assuming a 10-year first lease term, Bio‑Organics' minimum rent outlay would, at minimum, generate a future (notional) receipt by Westpork of an amount that was calculated by reference back to Westpork's outlaid construction cost ('paid for') for the facility. That is, Westpork's expenditure incurred in constructing the new composting facility; comprising 7.5% (in the second six months of year one) plus 9 years x 15% minimum = 135%, overall amounting to an amount of rent calculated at a level of 142.5% of the construction cost outlaid as (a minimum) rent.
Hence, a carefully crafted monetary interrelationship between future waste treatment fees and rental payments over a long term lease -viewing the text of the 2013 Agreement - can be seen, assessed on an objective basis.
A further matter needs to be identified at the outset, before more problematic issues are addressed. It looks from the terms of the 2013 Agreement to always have been (objectively) apparent that the future day to day operator of the composting facility, once built and potentially operable, would need, in order to lawfully operate, to hold from the outset a licence obtained from the Department, by s 56 of the EP Act.
If Bio-Organics was to be the operator under a lease granting it exclusive possession over the newly built composting facility, then Bio‑Organics would need (from prosecution) a s 56 licence to lawfully operate from the 'prescribed premises'. This would be a new s 56 licence additional to the s 56 licence already held by Westpork when the 2013 Agreement was entered into. A further s 56 licence would be needed for the prescribed premises and specific waste treatment activity which would be a new activity on Lot 10 caught by the EP Act and EP Regulations. Hence, this would also be a s 56 licence distinct to that held in respect of its waste facility business operations. Likewise, those Lot 10 future activities would not and could not be authorised by the s 56 licence that Bio‑Organics held in July 2013. I refer rather to its business operations at Oakford.
Who would or could make a lawful application to the Department seeking a future s 56 (operating) licence in respect of the yet to be constructed composting facility upon Lot 10? When would or could that application for a s 56 licence be made to the Department? Could an application for a s 56 licence lawfully be made in conjunction with Westpork's submitted application to the (same) Department for a s 53 EP Act 'works approval' for Lot 10 -which was earlier needed to allow Westpork to lawfully build such a composting facility - saving a doubling of bureaucratic assessment input? These issues arise in this trial. They are not specifically answered under the 2013 Agreement or by the EP Act.
As I already mentioned, the construction of the envisaged composting facility was uncontroversially always the exclusive responsibility of Westpork under the 2013 Agreement.

Some more problematic facts in the trial

Much of the trial controversy surrounds special condition 10(f) of the 2013 Agreement. I have earlier mentioned the clause in passing, but it should now be seen in full. It reads:
The Landlord shall provide a composting facility in accordance with the agreed design and agreed budget. The design and budget are to be agreed between the Parties within NINETY (90) days of execution of this Lease. The completion of the construction of the facility for possession by the tenant shall be within 180 days of execution of this agreement which may be extended by mutual consent or by the Landlord if the Landlord is prevented from completing within 180 days by any statutory authority, adverse weather or unforeseen delays.
Some key features of this subclause can be quickly highlighted.
First, objectively assessed, the parties are seen to have envisaged a 180‑day timeline ‑ in terms of completion of this new composting facility by Westpork - before a taking up of leasehold possession by Bio-Organics over the new premises.
Second, special condition 10(f) provides for the 180‑day timeline to be extended if needed. This could happen either mutually, or unilaterally, under Westpork's decision, should it eventuate that Westpork was prevented from completing the construction of the composting facility within that initial 180‑day timeline. There are some circumstances that are noted due to their potential to delay the construction progress, including, interruption by a statutory authority, adverse weather or other unforeseen delays.
Third, the key textual phrase that is pivotal to the trial outcome is found in special condition 10(f), namely, 'the agreed design and agreed budget'. As seen, the word 'agreed' is used twice. Hence, objectively assessed, there was the need here for a subsequent 'agreement' between Westpork and Bio‑Organics, and this further agreement was envisaged upon, first, 'design', then second, 'budget', for a composting facility which Westpork was to construct.
Fourth, it is seen to be expressly envisaged that 'agreement' upon both design and budget could be reached between Westpork and Bio‑Organics within a mere 90 days from 12 July 2013 - ie, by 10 October 2013. As things turned out, there was no agreement reached upon budget by then. However, no‑one raised or took that point at the time. Westpork and Bio-Organics both carried on in their dealings until 2016 as if their 2013 Agreement remained fully binding and enforceable. That is significant.
Fifth, by special condition 10(f) the term 'construction cost' is not used as regards the planned composting facility. Rather, the term 'budget' is used instead. The legal differentiation of the meaning as between a budget amount and an end of project construction cost expenditure amount is obvious and easily understood. The 2013 Agreement parties, objectively assessed by reference to the text of cl 10(f), chose at this point to fix their requirement for a future 'agreement' at something of a lesser construction cost expenditure concept level. They only specified the need for an agreement on a budget figure - rather than requiring an agreement on a more precise figure for actual construction cost. By contrast, the same parties set down their future rental arrangements over the first 10 years of the envisaged lease (once a commencement date for a lease was reached) at a rent tied to a more precise concept of the (actual) outlaid construction expenditure of Westpork - not to a budget figure.
Sixth, there was an acceptance by Westpork from the outset of this trial, that after 12 July 2013, there had indeed been a subsequent agreement reached between these parties upon the special condition 10(f) issue of 'design' for the envisaged composting facility. There was no dispute at trial that an acceptable level of agreement upon design had not been reached, or that it had not been perfected within an appropriate time frame (albeit at a time beyond what must have been a consensually extended time frame exceeding 90 days from the entry of the 2013 Agreement). The question of precisely when that subsequent agreement upon design was reached was a little more controversial, however.
Front and centre at trial was a strongly pressed argument by Westpork that these parties never reached any level of subsequent agreement upon a construction cost 'budget'. Bio‑Organics contended to the contrary. It pleaded that there was a subsequent agreement reached eventually on a budget ‑ albeit not within the 90 days from 12 July 2013. This trial controversy raises both legal and factual issues that remained heavily in dispute between Westpork and Bio‑Organics and in respect of which some post July 2013 factual determinations need to be reached.
Seventh, whilst the need for 'agreement' upon both design and budget is made clear from the text of special condition 10(f), those two concepts are very obviously linked and conceptually related to each other. They are not distinct or independent of each other as subject matters. Rather, they go hand in hand and one, in effect, leads to or dictates the other. Obviously, a large component of setting a construction budget for the cost of establishing a new composting facility would necessarily be driven by the design of that facility. These parties' subsequent agreement upon design is fully accepted. Hence, a starting framework for the enquiry towards evaluating progress towards reaching a further agreement upon 'budget' must necessarily be framed by their prior design consensus. In other words, had there not been the accepted anterior agreement upon design, a task of settling a budget might be seen as well nigh impossible. But that was never the case here. The starting position begins with the parties' agreement on design -something I would assess as an act of part performance on both sides.
Eighth, generally speaking, a budget might in the end prove to be inaccurate. Correctness at the end is not the present budget issue. The question posed here is whether an agreement was ever reached subsequent to July 2013 upon a 'budget' for this new composting facility's construction cost in circumstances where the facility's design was completely agreed upon.
Ninth, at this point, a further legal question emerges. Westpork contends at this trial that the 2013 Agreement was always void for legal uncertainty, as a matter of law. This, it argues, was because the parties, under their special condition 10(f), only ever had 'agreed to agree' in future - over what were two incomplete, but essential and indispensable, terms of an overall bargain - namely, on both design and budget. The law in relation to contractual uncertainty in Australia is not in any doubt: see, first, the often cited observations of Gleeson CJ (NSW) (as he then was) in Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, 548. See also Colvin J in Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2018] FCA 174 [14] ‑ [15].
In this legal realm, applying the terminology of McLure J (as she then was) in Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98; (2009) 40 WAR 191, the question is whether there is an 'incomplete contract': see [6]. I mention as well, to save repetition, what I wrote recently about contractual uncertainty in Marindi Metals Ltd v Kidman Resources Ltd [2017] WASC 189 [65]. In this area some words of Lord Denning MR in F & G Sykes (Wessex) Ltd v Fine Fare Ltd [1967] 1 Lloyd's Reports, 57 present as prescient - namely, where parties have conducted themselves for some years after July 2013 on the basis that they had perfected a binding and fully enforceable legal contract. Similar factual circumstances considered by Lord Denning raised a similar sounding legal uncertainty argument. Lord Denning then explained at page 57:
The first point is: To what extent was this agreement binding in law? Was it a binding contract? Or was it only a contract to make a contract, of such a kind as to be not binding? That is the main point for consideration to-day. (my emphasis in bold)
…
There was sufficient certainty for the first year. The agreement provided that during the first year of the agreement from Dec. 15, 1961, to Dec. 15, 1962, Fine Fare were to give notices to Sykes to provide broiler fowl, but they were to be not less than 30,000 a week, nor more than 80,000 a week. Undoubtedly the agreement subsisted during the period of that first year. Then the agreement goes on to say:
… and thereafter such other figures as may be agreed between the parties hereto …
It is said by Fine Fare's advisers that that is a contract to enter into a contract: and that is too indefinite and uncertain to create legal relations and therefore the contract was not binding after that first year.
Lord Denning then rendered an important policy observation about the law, which resonates here:
On this point we have once more gone through all the cases from May & Butcher Ltd v The King [1934] 2 K.B. 17n; Hillas & Co Ltd v Arcos Ltd (1932) 38 Com Cas 23; (1932) 43 Ll L Rep, 359; Foley v Classique Coaches Ltd [1934] 2 KB 1; British Bank for Foreign Trade Ltd v Novinex Ltd [1949] 1 KB 623; and others. I would just say this. In a commercial agreement the further the parties have gone on with their contract, the more ready are the Courts to imply any reasonable term so as to give effect to their intentions. When much has been done, the Courts will do their best not to destroy the bargain. When nothing has been done, it is easier to say there is no agreement between the parties because the essential terms have not been agreed. But when an agreement has been acted upon and the parties, as here, have been put to great expense in implementing it, we ought to imply all reasonable terms so as to avoid any uncertainties … (my emphasis in bold)
I have not forgotten that the present matter is a special case of alleged legal uncertainty based upon there merely being an agreement to agree. But that was the first point in the quotation above from Sykes as noted by Lord Denning MR.
The legal test for uncertainty is not about what the parties subjectively thought at the time. The issue is what a court makes objectively of where they eventually landed in their negotiations.
Here, I would be inclined to accept that the issue of design for the proposed compositing facility, on its face, would present as an essential term within the 2013 Agreement.
But here, these contracting parties did, as is fully accepted, reach a subsequent agreement on design. They did so as well on budget, so Bio-Organics argues. But subsequent agreement on budget both is factually and legally disputed by Westpork.
If Bio‑Organics is correct (hypothetically) about a subsequent agreement being reached on the issue of budget as well as upon design, then the legal uncertainty arguments of Westpork would present as unusual for a contract case - in the face of subsequent consensus being reached upon the outstanding essential aspects of the deal. What would be left to argue about? As seen, courts generally strive to be upholders of parties' contractual bargains, rather than to be their destroyers. It would be an unusual contract case, in my experience, where commercial parties that do subsequently reach an agreement over incomplete or unfinished essential term(s) are held in the eyes of the law to not have completed a lengthy enforceable bargain.
As I explain in due course, I ultimately conclude on the facts and evidence led at the trial that these parties, objectively assessed, did after July 2013 reach agreement upon budget. Their level of subsequent consensus upon a budget figure for construction cost in July 2014 was sufficient, I conclude, to meet special condition 10(f).
As a matter of law, a situation of eventual agreement, once it is subsequently reached, might be characterised in a number of ways. It could be assessed as a further (ie, varied) agreement reached between Westpork and Bio‑Organics upon the issues of design and budget, to collaterally accompany, or to complete, what might otherwise be assessed as an unfinished 2013 Agreement -enforceable in law from the later time of the subsequent consensus reached on the earlier incomplete issues. Or there could be a distinct legal characterisation to such events based on, say, a waiver or on common law conventional estoppel - given the parties' three-year mutual post July 2013 conduct towards each other conducted on a mutual assumption that they were bound by the 2013 Agreement. Further still, an equitable estoppel might possibly be found to inhibit a recalcitrant party from asserting, by reason of them sustaining detriment and a reliance upon the presentation of a binding level of commitments, that there was not a fully enforceable agreement once all outstanding issues were settled.
In the end, however, I am of the view that the 2013 Agreement is not void on a basis of Westpork's asserted legal uncertainty arguments regarding a lack of a condition 10(f) consensus on budget alone. Factually, as I will explain, I find a sufficient level of consensus was reached upon budget. From then at least the 2013 Agreement, if not fully perfected at July 2013, was completed at the subsequent time and can be enforced from then.
I divert briefly to note that there are some further relevant special conditions within item 10 relevant to a construction issue about whether it would be Westpork, or Bio‑Organics who would make an application to the Department to obtain a s 56 EP Act licence. Of course, that was to be once the composting facility was built and could then threaten to become operational from an emissions perspective, under the EP Act. The special conditions all suggest by their text, read separately and together, that it was made the express obligation of Westpork (not Bio‑Organics) to make an application to the Department to obtain a s 56 licence.
That leads to a recording of a further, alternate exculpatory argument put by Westpork. This argument only really emerged at day two of the trial. By leave, Westpork amended its pleadings to contend that the parties had both acted under a common mistake in entering the 2013 Agreement. Westpork's new pleading was that this mistake arose as the parties had both (wrongly) assumed that Westpork could be granted a s 56 licence and that this licence would allow Bio‑Organics to (lawfully) operate the composting facility: see par 34 of Westpork's amendment to the statement of claim, introduced by leave at trial on 16 May 2018.
By par 35 of Westpork's amended pleading it contends (essentially as a matter of law) that it was not able to be granted an operating licence that would allow Bio‑Organics to lawfully operate the composting facility. This, it argues, was because Westpork would not then be an 'occupier' of the relevant premises for the purposes of s 56 of the EP Act. This argument raises an underlying legal question about the correct meaning of s 56 of the EP Act - and which upon this interpretation issue, I would assess, has not previously been the subject of a determination by a court.

In response, Bio‑Organics says there was no mistake at all (by anyone and certainly not by it) over a s 56 licence within the 2013 Agreement's terms. Even if there was, Bio-Organics says that this would not rise to the level of being a fundamental enough common mistake to render the parties' bargain voidable, viewed from the eyes of a court of equity.

Chronology of uncontested facts

It is necessary for me at an early stage, to assemble together and formally render my findings upon the main facts underlying this trial, which were largely agreed or not in dispute as between the parties.
Sources of these largely uncontroversial facts are, first, the parties' exchanged chronologies for the trial, being exhibit 9 (the plaintiff's short chronology) and exhibit 4 (the defendant's chronology of facts).
In addition to those two sources, there are many admissions of fact arising upon facts respectively found under the exchanged pleadings by the parties.
Beyond those sources, I have also augmented what is seen below as a chronological narrative, by adding some content I have extracted from trial book (TB) documents bearing on these assembled facts. I have at places in the narrative added some documentary extracts, to flesh out the underlying content of some assembled facts. At places, I have also added my own passing comments or observations (in italics).
I should also say that many of the following collected facts concern events relating to Bio-Organics' premises and conduct at Oakford, not Lot 10. I have collected all these facts. They only bear upon Westpork's exculpatory arguments. In the end, however, I find that all these Oakford facility related events are of no real relevance within this trial. The events concerning Lot 10 are directly relevant.
The chronology proceeds on a year by year format.

2012

Westpork, is registered proprietor of lot 10 in Wannamal Road West, Gingin, from which it has at all material times conducted the business of a licensed piggery (par 1 of the TFASOC admitted by the defendant's defence).

Bio-Organics Pty Ltd, is conducting the business of operating a licensed compost manufacturing facility at 945 Abernethy Road, Oakford, Western Australia: see par 2(b) and (c) of the TFASOC admitted by the defence (on the south-eastern perimeter of the Perth CBD).

July 2012

Initial meeting between Daniel Avila of Bio-Organics, Neil Ferguson of Westpork and Greg Kendal of AAA Egg Co (AAA) to discuss potential joint venture for Gingin composting plant (exhibit 4).

November 2012

Westpork and Bio-Organics continue discussions but without AAA in relation to the proposed composting plant (exhibit 4).

2013

A prosecution of the plaintiff is concluded in or about April 2013, resulting in Westpork pleading guilty to 10 charges and being fined approximately $225,000 for breaches of s 19 of the Animal Welfare Act 2002 connected with animal cruelty (par 1.8 of the amended defence) admitted by par 1B of the amended reply.

12 July 2013

Westpork and Bio-Organics enter their written agreement entitled Lease of Composting Facility - Mindarra Farms (Gingin Lease) (see exhibit 1.41, TB 467) (ie, the 2013 Agreement).

9 August 2013

Bio-Organics provides Westpork with a Management Plan for the composting facility (exhibit 4).

15 August 2013

Bio-Organics provides Westpork with an updated Management Plan (exhibit 4).

30 August 2013

Westpork provides Department of Environmental Regulation (DER) with the Management Plan.

30 October 2013

Westpork retains Strategen as an environmental consultant to assist it with obtaining approvals and licences for Lot 10.

10 December 2013

Westpork submits to DER an application for works approval (original application) for Lot 10 (see exhibit 1.55).

DER, in consultation with the Department of Health, classifies Bio-Organics' Oakford facility as 'possibly contaminated - investigation required' under the Contaminated Sites Act 2003 (CS Act) (see exhibit 1.197, page 3,709).

16 December 2013

Amended licence L8475/2010/2 issued to Bio-Organics for the Oakford facility (exhibit 1.56).

17 December 2013

Shire of Gingin approves Westpork's application for planning approval (exhibit 1.58) on Lot 10.

24 December 2013

Shire of Gingin issues Westpork with planning approval for the development of the composting facility on Lot 10 (exhibit 4).

2014

7 January 2014

Westpork via Strategen submits its supporting documentation to DER for works approval application on Lot 10. See exhibit 1.60 (containing original supporting documents).

At the time Mr Darren Walsh of Strategen by email to Mr Allen Sands of the Department submitted these materials under cover of the following note:

       Hi Allan - Further to the submission of the formal application for works approval on 10 December 2013, please find attached an electronic copy of the detailed supporting documentation for the application. Could you please let me know whether the Department requires additional hard copies and the number and to whom they should be directed. I look forward to discussing the information with you and the Department as required.

A works approval application supporting document (TB page 759) introduction (TB page 765) read:

   For the purpose of all approvals under the EP Act, Westpork will be the proponent, and all approvals will be sought in the name of Westpork Pty Ltd. Bio‑Organics Pty Ltd (Bio‑Organics) will operate the compost facility as a tenant of Westpork. Under the Tenancy Agreement, Bio‑Organics will be required to comply with all approval conditions.

The proposed compost facility has been determined as requiring licensing under the following Environmental Protection Regulations 1987 Schedule of Prescribed Premises:

•          Category 61 Liquid waste facility

•          Category 61A Solid waste facility [Optional]

•          Category 67A Compost manufacturing and  soil blending.

Under the heading Project Background item s 1.1 the Department was told:

     Westpork operates an EP Act licensed piggery at the site (Licence No L5724/1993/11). Bio‑Organics has entered into an exclusive contractual relationship with Westpork, as a tenant, to operate the proposed compost facility (and associated waste management services) to be constructed and licensed by Westpork. Bio‑Organics has operated an EP Act licence compost facility at Oakford since 2001, and as an experienced operator, proposes to establish this operation to the Gingin site, with opportunity to expand the capacity to enable production of up to 100,000 tpa of processed compost.

The Oakford facility accepts commercial waste and produces compost for commercial sale. The proposed facility will accept similar wastes, together with specific wastes from the adjacent piggery and other materials for processing into compost.

Page 778 contains detail about the design of the composting facility and its buildings and construction (see s 4.3 and subs 4.3.1 headed Buildings and Construction). Reference is made to site plans at figure 2 and figure 3 and detailed profiles of specific facilities presented in figure 6.

The components of the proposed composting facility as identified under subpar 4.3.1 include a 6‑hectare gravel compacted and stabilised composting pad (on a 300 mm thick layer of local exhaust gravel). Issues of permeability, excess water and spillage, durability, water retention to the immediate parameter; impermeability of the hard stand design, management of run off, access tracks, water balancing and disposal ponds, grease trap waste separation and site facilities are all discussed. At the foot of TB page 778 the DER is informed:

No permanent buildings are proposed. If required, an application for a wastewater treatment apparatus will be submitted to accommodate the proposed septic tank to service the site office.

7 February 2014

Westpork provides DER with further information in relation to the original application and original supporting documents.

Also on 7 February 2014 DER sends notice of proposed suspension of licence to Bio‑Organics re its Oakford facility (see exhibit 1.66 and exhibit 1.76) (TB page 873 - being a report by Galt Geotechnics entitled 'Factual Report on Geotechnical study composting pad Bio-Organics composting yard 36 Abernethy Road, Oakford'. See also exhibit 1.109 at TB page 1498.

27 March 2014

DER notice of proposed licence revocation for Bio‑Organics' Oakford facility (exhibit 1.73, TB page 921).

23 April 2014

Mr Daniel Avila provides Mr Neil Ferguson of Westpork with Bio‑Organics' construction estimate for the composting facility in the amount of $1.7 million (exhibit 4).

27 May 2014

DER issues a draft decision concerning the licence revocation for Bio‑Organics' Oakford facility (exhibit 1.88) (TB page 1005 - communicated to Mr Dan Avila).

27 June 2014

Westpork submits to the DER a revised works approval application under the supporting document (exhibit 1.97) (Trial Book page 1071) submitted via Strategen to the DER.

[Comment: As may be discerned from TB page 1178, a former reference to a category 61A licensed premises was omitted, now leaving the licensing foreshadowed as being required under the Environmental Protection Regulations 1987 Schedule as being under Category 61 (Liquid waste facility) and Category 67A (Composting Manufacturing and soil blending).]

27 June 2014

DER issues a closure notice to Bio‑Organics re Oakford facility (exhibit 1.101) (TB page 1399).

27 June 2014

DER revokes Bio‑Organics' licence for Oakford facility (exhibit 1.98 and exhibit 1.99) (TB pages 1247 and 1259 respectively).

6 July 2014

Bio-Organics (via Flint Moharich) appeals the revocation of licence re the Oakford facility (see exhibit 1.109 at page 1498).

18 July 2014

Bio‑Organics applies to Shire of Serpentine‑Jarrahdale for development approval at the Oakford facility (see State Administrative Tribunal reasons 2016 WASAT 96 at [1].

23 July 2014

It is now 12 months since the 2013 Agreement was perfected. Both special condition 10(f) time periods of 90 and 180 days have long passed. Yet no-one suggests the 2013 Agreement has been ended by reason of those time limits being not met.

14 August 2014

Appeal report to Minister by DER on appeal by Bio‑Organics of revocation of its licence at Oakford facility (see exhibit 1.109 (TB Page 1497).

23 September 2014

Bio‑Organics lodges application at the SAT against Shire of Serpentine‑Jarrahdale decision re Oakford development approval. See 2016 WASAT 96.

2 October 2014

DER serves Bio‑Organics with an investigation notice under the Contaminated Sites Act (WA) re Oakford as Bio‑Organics (allegedly) failed to carry out the investigations required (see TF par 10G(c) admitted by par 10D.3 of the TFREAD.

2 October 2014

DER serves Bio‑Organics with a 'letter of warning: non‑compliance with requirements of closure notice' (CEO 784/14) issued under s 68A of the Environmental Protection Act 1986. (see exhibit 1.114) (TB page 1689) re Oakford.

4 November 2014

Westpork as regards Lot 10 submits a further revised Works Application with supporting documents (revision 2) of application documents to DER. (see exhibit 1.118) Again this is submitted to the DER via Strategen for Westpork (TB page 1737). At this point Westpork, through senior counsel, accepts that the parties reached agreement upon design. (see particularly TB page 1766). However, the information seen looks only to be an elaboration of what was said in the previous supporting documentation back at 7 January 2014. It does not readily appear why the second revision application ought to reflect an agreement on design, whereas the previous iterations would not.

The Shire of Gingin had issued a development approval by 24 December 2013, so if it matters at all I would conclude that an agreement upon design or designed parameters (if timing is important) was in place at 7 January 2014, when that document was first submitted to the DER for Westpork.

2015

6 March 2015

Concerning Bio-Organics' Oakford premises, DER writes to the Shire of Serpentine‑Jarrahdale stating that Bio‑Organics would need to apply for a licence under the EP Act for liquid waste transfer proposal. (see SAT reasons 2016 WASAT 96 [15].

18 March 2015

The Contaminated Sites Committee dismisses appeals by Bio‑Organics against the (Oakford) Site Classification and Investigation Notice under the Contaminated Sites Act (pleaded in par 10G(d) of the TFASOC and admitted under par 10D.5 of the TFREAD.

1 May 2015

Bio‑Organics proposes to Westpork to assign its Lot 10 future lease to the entity Waste Strain Management Pty Ltd. (see exhibit 1.131) (TB page 1985) (the proposal does not appear to have been advanced subsequently towards any outcome).

23 July 2015

It is now two years on since the 2013 Agreement. The special condition 10(f) time periods of 90 and 180 days have long since passed. Yet no-one suggests the 2013 Agreement has been ended by reason of those time limits having run.

August 2015

Report to Minister from Appeals Committee against revocation of licence and closure notice for Oakford (see exhibit 1.145) (TB page 2051).

29 September 2015

Minister for Environment dismisses Bio‑Organics' appeal against DER's decision to revoke its licence for Oakford and the requirements of the closure notice for Oakford (see exhibit 1.150) (TB page 2161). On page 2162 the Minister's advice dismissing the appeal was concluded 'whilst the Minister upheld the decision to revoke the licence, this does not preclude Bio-Organics from applying for a works approval and Licence for the operation of a composting facility at the site subject to works that ensure the environment is protected from the risks associated with the facility, noting that Bio‑Organics will need to meet relevant planning requirements in order to operate at the site'.

2016

23 March 2016

DER now provides Westpork with a draft (Lot 10) works approval for Westpork's comment. (see exhibit 1.164).

31 March 2016

DER provides Westpork with a final works approval and accompanying decision document (see exhibit 1.169) (at page 2295 and following). Under the works approval general conditions (TB 2299) it is stated that the works approval holder shall construct the works in accordance with the documentation detailed in Table 1.2.1, which table contains a heading construction requirement and references various documentation including the Revision 2 works approval application supporting document of November 2014 and a letter from the Department to Westpork of 24 February 2015.

11 April 2016

Eleven days on, the DER writes to Westpork stating that the works approval will be revised (see exhibit 1.168) (TB page 2291) being a communication from the Director General (a Mr Jason Banks) to Mr Ferguson of Westpork advising:

I refer to Works Approval W5632/2014/1 granted on 31 March 2016 in respect of the proposal to construct a composting facility. Internal checks have identified issues with the granted by the Delegated Officer. The works approval has been brought to my attention and I have requested a review. The review will result in amendments to the works approval and the decision document …

[My comment: Hence after a long wait for a works approval exceeding over two years from DER, the approval was now to be the subject of a so‑called review by the DER. That delay period, which was almost immediately followed by the need for a review (after two years) is, objectively speaking, remarkable as regards a works approval for a mere proposed composting facility at Gingin.

At 11 April 2016 the works approval application proposal for the composting facility to be built was reburied in more green tape by the super added review requirement.]

27 June 2016

DER commences a prosecution against Bio‑Organics alleging 13 contraventions as regards non‑compliance with closure notice requirements for the Oakford facility (see prosecution notice at exhibit 1.172). The prosecutions have not yet been determined at a trial in the Magistrates Court of Western Australia.

5 July 2016

DER sends letter to Mr Dan Avila of Bio‑Organics with a so‑called draft decision of it upon Bio‑Organics being a so‑called 'fit and proper person' (see exhibit 1.173).

Under a communication, a Mr Hodges, the Acting Executive Director Compliance and Enforcement, now informed Mr Dan Avila in these terms:

As part of its review of Westpork's works approval 5632/204/1 to construct a composting facility at existing premises in Gingin, the Department of Environment Regulation (DER) has considered whether the proposed operator, being Bio‑Organics Pty Ltd is a fit and proper person to hold a licence for these prescribed activities.

The draft decision is being made to afford Westpork procedural fairness in relation to any future licence application it or other persons may seek to make arising from works approved under the works approval …

If Bio‑Organics or any other party is proposed to operate, as or on behalf of the owner or occupier, a further assessment and determination of whether they are a fit and proper person will be made through the assessment of any future licence application.

The so‑called draft decision in respect of Bio‑Organics is:

On the balance of probabilities, the Delegated Officer is satisfied there are reasonable grounds based upon the information considered in the findings made that Bio‑Organics Pty Ltd, its Directors and General Manager are not fit and proper persons to operate the activities under any future licence arising from the works under the works approval.

Please be advised that correspondence has been sent informing Westpork that Bio‑Organics has been provided with a copy of the draft decision for comment and to contact Bio‑Organics directly to provide comment if required.

[My comment: Three matters should be noted about this remarkable communication:

First, albeit expressed as being made to afford Westpork procedural fairness in relation to any future licence application it or other persons may seek to make arising from its works approval, the communication was not sent to Westpork. How that could possibly afford procedural fairness to Westpork as a matter of law is a mystery. Putting it mildly, there would appear to be some muddled thinking by the DER at this point.

Second, in the so‑called draft decision seen in italics above, the DER tells Bio‑Organics precisely nothing factual. This advice is a masterpiece of bureaucratic vacuous non‑speak. How this could possibly afford procedural fairness to anyone will also remain a tantalising mystery.

Third, a premise of the communication is that Bio‑Organics as a proposed operator needs to be a 'fit and proper person' in the eyes of the DER to hold a licence for 'prescribed activities'. There is no support for that requirement in the EP Act or its Regulations. As seen, s 56 of the EP Act deals with the requirement for a licence by an occupier of 'prescribed premises' to avoid committing an offence for causing or increasing or permitting to be caused or increased 'an omission'. Hence the operator of multiple prescribed premises would potentially require multiple licences under s 56. There is no support within s 56 for a notion of a so-called 'fit and proper person' test, let alone a test applied by 'the eyes of the DER'.

Moreover, s 57 sets out how an application for a s 56 licence should be made. Its content is elaborate. There is no basis, either express or implied therein, for a generic so‑called 'fit and proper person' requirement for a licensee. That requirement as was assumed by the Department is an exercise in pure invention. To the extent that it ever was thought to be a requirement implied within s 57(b) as regards a licence relating to a matter in respect of which a works approval had been granted, the attempted derivation is wholly untenable.

The Department's so‑called draft decision (TB page 2399) acknowledges that 'there is no specific statutory head of power to determine that the owner, occupier or operator is a fit and proper person to be granted a works approval or Licence, or is competent to hold a works approval Licence … '. That was correct.

It then continued: 'Nevertheless, the 'making of such a determination is implicit in the operation of the EP Act and the decision to grant approval'. That view is wholly wrong, plain and simple.

The Department's conclusion by way of asserted implication is untenable. So‑called key findings (see TB page 2405) appear to replicate only what were the pending but unresolved charges in respect of a prosecution notice against Bio-Organics as regards alleged contravention of requirements of the closure notice at Oakford.]

5 July 2016

Also on 5 July 2016, the DER provided Westpork with a draft amendment notice to the works approval and a draft decision report on review of existing premises (referred to as a draft amended works approval) (exhibit 1.174). The DER's covering communication to Mr Ferguson advised:

As discussed, these documents will not be finalised without consideration of any comments or concerns you may have. Please let me know if you would like to meet to discuss them.

(TB page 2411).

8 July 2016

Anchor Legal's letter from Westpork to Bio-Organics (exhibit 1.178).

23 July 2016

It is now three years on from the parties' 2013 Agreement. The special condition 10(f) time periods of 90 and 180 days have long since passed. Still no-one suggests the 2013 Agreement was ended by reason of those time limits being unmet.

28 July 2016

On 28 July 2016 (TB page 259) Mr Benjamin Avila responded on behalf of Bio‑Organics to the so‑called draft decision informing Mr Hodges in these terms:

Given DER have commenced proceeding against the before mentioned parties and many of the allegations in the draft decision document relate to prosecution proceedings, it is inappropriate and prejudicial to put a defence to these allegations at this time.

On behalf of all of the named persons, I submit that the draft decision is unfounded and notwithstanding all allegations in the draft decision document, there is no evidence of any environmental harm caused by any product or process of the Bio‑Organics' Oakford operation. In fact, the contaminated sites investigation currently underway proves the exact opposite.

In the absence of any evidence of environmental harm and while legal proceedings are on foot and charges are as yet unproven, procedural fairness dictates that any decision regarding whether any names [sic] person is a 'fit and proper person' should be suspended until the conclusion of both a prosecution proceeding.

8 August 2016

SAT decision on application by Bio‑Organics regarding Oakford against Shire of Serpentine‑Jarrahdale (see 2016 WASAT 96).

18 August 2016

Westpork commences this litigation (CIV 2409 of 2016) against Bio‑Organics.

11 November 2016

DER issues Westpork with a final amended works approval (see exhibit 1.186) (TB page 2697) for Lot 10. The amendment description is explained at page 2698. At page 2725, under a heading '5. Assessment of operator', it was said:

The Works Approval decision document noted that 'it is uncertain whether the licence will be granted to Westpork (or [Bio‑Organics Pty Ltd]), as the operator of the site'.

The Works Approval decision document provided that as part of the licence application assessment for the composting facility, DER will undertake an internal due diligence of the applicant's fitness and competency based on DER's compliance records.

DER has completed its assessment of Bio‑Organics as the potential operator of the composting facility, as proposed in the Application. This assessment has been provided in a separate report to Bio‑Organics.

[My comment: This looks to be a reference to the 5 July 2016 so-called 'draft decision' communication by the DER to Mr Dan Avila. What was provided then was a draft decision whereas the last paragraph cited above (inconsistently) refers to a completed assessment. The position is left wholly unclear.]

2017

20 March 2017

Douglas Partners' Ground Water Investigation and Monitoring Program at Oakford (see exhibit 1.192). This document was objected to at trial. In the end it was received on the basis that it is a record of something given to and within the possession of the DER. Nothing more relevant than that appears from its 697 pages (a similar objection was taken in respect of exhibit 1.193 commencing at TB page 3523). It also was admitted on the same limited basis (see general exhibit 2A as finalised re TB Index and read between the parties).

20 April 2017

DER notice of cancellation of investigation notice (see exhibit 1.194). This relates to the Contaminated Sites Act 2003 notice issued on 2 October 2014 (as amended). The communication is self‑explanatory as regards Bio-Organics' Oakford site and its classification as in 'possibly contaminated - investigation required under the CES Act'.

27 September 2017

DER engages Patrick Clarke to review the groundwater investigation at Oakford facility (TB exhibit 1.197 commencing at TB page 3709). Reliance is placed by the plaintiff upon what is seen at the top of TB page 3713 as regards Mr Clarke's recommendations and the commissioning of the further work recommended by Mr Clarke in addition to ongoing monitoring already required. The document was objected to, but received on the same basis as previous exhibits 1.192 and 1.193.

2018

3 January 2018

Patrick Clarke (Senversa Pty Ltd) Report on Groundwater Investigation at Oakford Facility (see exhibit 1.196 and exhibit 1.197 at TB page 3712).

12 January 2018

Bio‑Organics commences out of the Supreme Court of Western Australia CIV 1046 of 2018 against the CEO of the Department of Environment.

Some observations on the uncontroversial facts

As may now be seen, many of the submitted facts and (tendered) documents seek to explore Bio‑Organics' interactions with the Department, concerning its Oakford premises and waste treatment facility.
The submitted relevance of the majority of post-July 2013 documentation concerning the defendant's Oakford facility and its relationship with the Department relates to legal arguments fashioned by Westpork as to Bio-Organics' asserted breach of certain ad hoc implied terms contended to be capable of being found in the 2013 Agreement. Bio-Organics rejects all this as invention.
Westpork seeks to show a serious or repudiatory breach of these ad hoc suitability terms - by reason of Bio‑Organics not being (post July 2013) a fit and proper, or fit and competent person - in the eyes of the Department. As I explain later, I reject any finding of such attempted ad hoc terms. They are misconceived and non-existent. Therefore, the utility of all the factual breach of suitability term material, in the end, is zero.
That leaves the core trial controversy as whether or not there was an agreement ever reached between the parties upon a budget for the composting facilities construction.
Before I review the more controversial trial evidence, it is opportune to set out what the parties effectively agreed upon as being the four key areas of dispute arising at trial.

The four main trial issues argued regarding the 2013 Agreement

The four key issues were identified by the plaintiff during trial as in dispute between the parties. The defendant did not, as I understand it, disagree in substance with this synthesis. Hence, it is a convenient basis to record and proceed from.
The four key issues were:
(a)whether the 2013 Agreement was void from inception for legal uncertainty, by reason of special condition 10(f) only being an 'agreement to agree' provision regarding the Composting Facilities 'design and budget' and with there being no subsequent agreement upon budget ‑ although it is uncontroversial at trial that there was a subsequent agreement reached between Bio‑Organics and Westpork on the design of a Lot 10 composting facility;
(b)alternately, whether there was a self‑executing termination of the 2013 Agreement by no later than at 1 July 2016 - and thereby ending at that time all obligations of future performance by the parties under the 2013 Agreement. This termination is said by Westpork to arise by reason of the effluxion of time beyond 90 days from the end of March 2016 (under special condition 10(f)), by reason of the parties' ongoing failures to reach agreement upon a budget for the composting facility;
(c)whether the 2013 Agreement is rendered voidable by reason of that agreement having been entered by each party then acting under a common mistake ‑ namely the alleged mistake as to an assessed inability of Westpork to be granted and to hold a s 56 EP Act (operating) licence and that would allow Bio‑Organics under s 56 to (lawfully) operate an as completed composting facility. The contended common mistake that is asserted calls for an interpretation of the licensing requirements within Pt V div 3 of the EP Act and which, in this respect, have not previously been construed by a court from the perspective of this legal argument; and
(d)(i)Westpork's arguments directed at establishing the existence of ad hoc implied terms (called 'suitability terms') within the 2013 Agreement ‑ which Westpork then further alleges were breached by Bio‑organics - by reason of circumstances arising from or around the subsequent deterioration in the relationship as between the Department and Bio‑Organics - due to a number of post‑July 2013 incidents taking place concerning Bio‑Organics' Oakford waste treatment facility (but which are all wholly unrelated events, geographically, to Lot 10).
(d)(ii)Assuming all the contended ad hoc implied terms could be established by Westpork, it then further argues that the suitability implied terms were breached by Bio‑Organics. Westpork argues that the breaches were of a level of serious breach that was sufficient to give Westpork a right to terminate, when it chooses, future performance of the 2013 Agreement: see Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 (although it has not yet exercised its election to terminate and only seeks a declaration that it holds that entitlement - taking that approach in order to avoid being held, if it is proved wrong, to have repudiated its obligations).
At this point I must divert to say that Westpork's suitability term breach arguments are unduly ambitious. They occupied far too much of the five day trial. They generated, in the end, more than half of the documents within the trial book. As I will explain later, the (multiple) implied suitability terms as contended for cannot meet the essential criteria and are not established. See BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 and Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337.
Hence, all the voluminous breach events and evidence put against Bio‑Organics concerning its Oakford facility is in the end irrelevant within this trial.
Furthermore, even if the implied suitability terms were capable of being found subsisting with the 2013 Agreement, there is no sufficient basis demonstrated to show that their breach would be a breach of such magnitude or significance to support the conferral of a right to terminate upon the party not in breach - especially given that the parties' 2013 Agreement deals entirely with such default/breach scenarios.
Before I can evaluate the four key issues much further, I need to divert to render some observations upon the surrounding legislative context to this dispute, namely, upon Pt V div 3 of the EP Act. After that, I will briefly examine the state of the current law in Australia as regards contractual common (or mutual) mistake or its effects upon the validity of a contract.
Finally, before directly confronting the four main issues, I need to resolve the main arena of factual conflict arising between the parties at trial - namely, the issue of whether these parties ever reached a sufficient degree of subsequent agreement upon a 'budget' for the cost of constructing the composting facility.
As will be seen, on my assessment, they did, at a time around July 2014.

Environmental Protection Act 1986 Pt V div 3: prescribed premises

The legislative framework of the EP Act was explained by McLure P (with whom Murphy JA was in general agreement) in Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353. The EP Act remains largely unchanged since then for the purposes of assessing the events the subject of this litigation.
Commencing at [19] of the learned President's reasons, she discussed definitions of 'emission' and of 'waste', contained in s 3(1) of the EP Act. Her Honour noted (at [20]) that:
'Premises' is defined to mean residential, industrial or other premises of any kind whatsoever and includes land, water and equipment.
She then observed:
As the definition is circular, it must be an inclusive definition which brings in the natural and ordinary meaning of the word.
She continued:
As already noted, 'prescribed premises' means premises prescribed for the purposes of pt V of the Act.
McLure P also noticed the EP Act's definitions for the words 'licence' and 'pollution' at [21] and [23].
At [24] - [36] McLure P discussed specifically div 3 of Pt V, covering s 52 to s 64 of the EP Act. She observed they were directed to the 'occupier' of premises.
In a later first instance decision in this court, Edelman J (see Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation [2014] WASC 468) also had cause to review the provisions of the EP Act. From [49] his Honour discussed Pt V of the EP Act. He observed it 'regulates and prohibits pollution, emissions, and clearing of native vegetation'. Edelman J then continued:
Division 3 of Pt V requires occupiers of prescribed premises, who cause emissions, to obtain works approvals and licences to avoid committing offences.
At [53], having noted definitions of 'prescribed premises' and 'occupier' under s 3, Edelman J observed:
An occupier does not commit an offence against s 56(1) if he or she holds a licence and acts in accordance with any conditions to which that licence is subject. Section 74(b)(iv) also establishes a defence to various charges under Pt V of the Environmental Protection Act if the person charged with the offence proves that the act occurred in accordance with a licence granted under s 57.
His Honour discussed the basis upon which an application for a s 56 licence was made - under the statutory framework provided by s 57 of the EP Act: see [54] - [59].
At [75] Edelman J discussed the Court of Appeal's decision in Eclipse Resources as regards licences granted under s 57 of the EP Act in that litigation, he noted particularly a wide power of the chief executive officer relevant in that appeal under s 59(1)(c) to alter, on his own initiative, the area of premises to which the licence relates: see [79].
Edelman J then returned to the characteristics of a s 56 licence granted under s 57, commencing at [100], and observing:
In Hohfeldian terms, the grant of a licence under s 57 confers a freedom or 'privilege' from liability for an offence. Here it is a freedom subject to the conditions of the licence. Section 56 creates offences including an offence if the occupier of any prescribed premises causes or increases, or permits to be caused or increased, an emission. The offence is committed unless the occupier is the holder of a licence issued in respect of the prescribed premises. Occupier is defined as the person who is in occupation and control of the premises, whether or not the person is the owner.
Having highlighted a basal distinction between the conferral of a right and the creation of a freedom or privilege at [101], his Honour said:
There is a fundamental difference between the creation of a freedom and the conferral of a right. The grant of a licence does not give the occupier a right to do anything. For instance, suppose an occupier who occupies under a lease is prohibited under the terms of the lease from engaging in a particular activity. If the occupier obtains a licence under s 57, this will not permit him or her to engage in the activity that is prohibited by the lease. It will only create a freedom from liability for an offence under s 56. Hence, the licence is concerned with premises. (my emphasis in bold)
Edelman J next referred to the observations of McLure P in Eclipse Resources at [73], where the President had discussed the respondent's contentions in that appeal. Within the President's discussion at [80] - [82] there is found a useful analysis of the purpose of Pt V div 3 of the Act. McLure P said at [80]:
The purpose of Div 3 of Pt V is to regulate activities on premises that carry a high risk of pollution or environmental harm of the type regulated in Div 1 of Pt V. The 'activities' on premises are the primary focus of the Div 3 offence provisions. Compare that with Div 1 offences in which the primary focus is on the consequences of activities or other conduct. It is an offence to emit, or cause to emit, an unreasonable emission from any premises and to cause, or allow to be caused, pollution, serious environmental harm and material environmental harm. (my emphasis in bold)
There is some contextual illumination towards resolving the present dispute within the learned President's observations at [83] - [84] upon the issue of 'prescribed premises' under the EP Act. She said:
The starting point for a consideration of an application for a licence of premises under s 57 must be, inter alia, the premises identified by the applicant. It is the making of an application that enlivens the licensing power. Whilst it is correct that elsewhere in the Act the term 'premises' has a wholly objective meaning (ie one independent of any area nominated by an applicant) that is where it is necessary to determine the source of pollution or other environmental harm, not the extent of the premises.
Finally, there is no justification in the text or purpose of the Act to require, as a matter of statutory construction, that there be only one licence for multiple prescribed activities where there is 'a single premises'. That construction is linked with the respondent's claim that s 57 licences premises not activities. (my emphasis in bold)
Hence, it follows upon the basis of that prior case authority in this court considering the EP Act that the starting focus of Pt V div 3 is upon 'premises'. A focus upon a geographical location under the EP Act (rather than upon an individual person) bears, contextually, upon my evaluation of a number of Westpork's contentions. It is particularly relevant to resolving and rejecting Westpork's arguments directed at the existence of a so-called fit and proper, or fit and competent person test (and in the 'eyes of the Department') - that is argued for by Westpork to be applicable to a s 56 licence applicant. This view was said to have its foundations from, in or around s 57(3)(b) of the EP Act.
As may now be better seen, there is no support for that so‑called test's provenance from within either Eclipse Resources or in the subsequent consideration of Pt V div 3 by Edelman J in Mineralogy, which address the criteria of this division of the EP Act by reference to the key criteria of 'premises' and 'activities upon premises', rather than the persons conducting activities on premises or their so-called 'environmental record'.

The avoidance of a contract under a common or mutual mistake

Much curial ink has been spilt upon this notoriously difficult area. Across the topics of both common mistake under contract law (sometimes also called mutual mistake) and unilateral mistake, I am grateful to have the benefit of the reasons of Master Newnes (later Newnes JA of the Court of Appeal) delivered in Errichetti Nominees Pty Ltd v Paterson Group Architects Pty Ltd [2007] WASC 77. All the leading cases are collected there and comprehensively discussed. In particular I note his Honour's reasons at [48] ‑ [69] concerning common mistake, then further at [70] ‑ [77] and [83] upon the distinct topic of unilateral mistake.
In Errichetti Nominees, Master Newnes discussed the leading Australian and English cases including Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 (unilateral mistake); Solle v Butcher [1950] 1 KB 671 (common mistake); Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679 (Court of Appeal of England and Wales discussing common mistake at page 703); McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 (common mistake concerning the contract for the sale of a submerged oil tanker which, contrary to the beliefs of the parties, did not in fact exist); Svanosio v McNamara (1956) 96 CLR 186 (common mistake as to land upon which a hotel stood); and Pacer v Westpac Corporation (Unreported, NSWSC, 2 August 1996).
I note as well that in Australia Estates Pty Ltd v Cairns City Council [2005] QCA 328 Atkinson J (with Jerrard JA) (McMurdo P not deciding) also reviewed most of the same Australian and English authorities. Her Honour concluded, in light of the Great Peace Shipping decision, that Solle v Butcher was no longer good law in Australia.
In Errichetti Nominees it was observed at [62] by Master Newnes that 'in light of the most recent developments, it is, I think, fair to say that the law in relation to common mistake has now become, if anything, even more "arcane, uncertain in application, complex and controversial"'.
Relevant to the present trial, the core issue on mistake looks to me to distil down to resolving first whether, as regards the existence of an asserted common mistake by Westpork, a wider scope of test first propounded by Lord Denning LR in Solle v Butcher (but which test nonetheless still requires there to be demonstrated some 'serious mistake') is to be applied by a court of equity in Australia on an application to set a contract aside as voidable for a common mistake. On the other hand, the test now seen as favoured by the Court of Appeal of the Supreme Court of Queensland after the Australia Estates Pty Ltd decision, would take a seemingly narrower view of the scope of the common mistake principles. It proceeds by applying the five elements of a test as expressed in the speech of Lord Phillips of Worth Matravers MR in delivering the judgment of the Court of Appeal of England and Wales in the Great Peace Shipping decision. Element (iv) of that test, seen at page 703 of the Great Peace Shipping reasons, will require that 'the non‑existence of the state of affairs (must) render performance of the contract impossible'.
In this trial, Westpork contends for an application of a doctrine of common mistake applied at the more generous scope as it was expressed by Lord Denning MR in Solle v Butcher. By contradistinction, Bio‑Organics contends for the application of tighter regime common mistake principles as endorsed by the Court of Appeal of Queensland and by reference to the Great Peace Shipping criteria.
A difficult question confronting a trial judge at first instance in this area is whether some prior decisions of the High Court of Australia have delivered an unequivocal adoption for Australia of everything said by Lord Denning MR in Solle v Butcher (as comprehensively explained by Newnes JA in Errichetti Nominees at [54] as regards McRae at [55] as regards Svanosio v McNamara and at [57], [70] and [71] as regards Taylor v Johnson). With respect, I do not reach that position, essentially applying the same reasoning of Atkinson J in Australia Estates. I do not read Dixon CJ and Fullagar J in McRae to provide unequivocal endorsement of everything said by Denning LJ in Solle v Butcher - see McRae at page 407. Nor do I assess the subsequent observations of Dixon CJ and Fullagar J in Svanosio v McNamara as unequivocally endorsing all that was said by Denning LJ in Solle v Butcher.
Concerning Taylor v Johnson, a unilateral mistake case, I would not read the plurality reasons of Mason ACJ, Murphy and Deane JJ (see particularly pages 429 ‑ 432) as delivering an unequivocal endorsement of everything said by Denning LJ in Solle v Butcher, particularly in the area of common or mutual mistake.
As I have said, Taylor v Johnson was concerned with a scenario of unilateral mistake - a distinct situation in which one party to a bilateral contract suffers under a serious mistake and in circumstances where the other party is aware of the circumstances which indicate the first party is under that serious mistake or misapprehension - about either the content or subject matter of a term of the contract. Yet the contracting party who is so aware then deliberately sets out to ensure the mistaken party does not become aware of the existence of their mistake or misapprehension. See Taylor v Johnson at page 432 as regards the particular proposition of law assessed by the High Court as being appropriate and adequate for disposing of that appeal, which was said to be 'narrowly stated'.
A scenario concerning a unilateral mistake of one contracting party recognising another's mistake, yet then 'lying by' to seek to take advantage of a recognised error made by the other party must surely present as a paradigm example of 'shady' conduct ripe to be treated as offensive to the conscience by a court of equity - falling within the scope of a 'fraud' viewed 'in the wide equitable sense' (which extends to catch an unconscionable dealing). See Svanosio v McNamara per Dixon CJ and Fullagar J at pages 195 - 196 and then the subsequent observations made upon that passage by Mason ACJ, Murphy and Deane JJ in Taylor v Johnson at page 431.

Bio-Organics rejects that interpretation of the EP Act. In particular, it relies on s 61, found within Pt V div 3, concerning the position of new occupiers of the (prescribed) premises. Bio-Organics then invokes s 61(3) and s 61(5) towards its potential future position as a putative new occupier of the (prescribed) premises under a lease from Westpork. It argues that it could lawfully operate in future at Lot 10, reliant upon an existing but anterior authorisation, in circumstances where Westpork had applied for and obtained a s 56 licence ‑ but prior to Bio‑Organics taking up the exclusive possession of those premises under lease at its commencement.
These legal interpretation arguments surrounding Pt V div 3 of the EP Act all go to the proper construction of s 56 of the EP Act, in overall context. That context would include Westpork's full acceptance that it must first apply for and obtain a s 53 works approval from the same Department as an anterior approval from it to lawfully build the new facility on Lot 10. That (final) works approval only issued on 21 November 2016, after the commencement of this litigation.
It would seem that s 56 and s 57 have not in these respects been subject of express consideration by a superior court in this State. I earlier mentioned the Eclipse Resources decision of the Court of Appeal of Western Australia which dealt generally (see reasons of McLure P and Newnes JA) with the nature of the regulatory regime under Pt V div 3 of the EP Act. There followed a decision of Edelman J at first instance, to which I also referred, but not on the present controversy of meaning. Neither decision dealt with the present arguments of Westpork about who could apply for and hold a s 56 licence under the EP Act.
Hence, the present controversy over whether an application for a s 56 licence might lawfully be made by Westpork during the period when it was the occupier of the prescribed premises, is fresh territory. The relevant context is also that Westpork was either the applicant for, or had been granted a s 53 works approval from the same Department to construct the composing facility on Lot 10. Could Westpork lawfully also apply for a s 56 (operating) licence and receive it in such circumstances? Assuming Westpork disclosed to the Department that another person (Bio‑Organics) was the envisaged long-term operator of the new composting facility construction once a lease commenced.
In my view, the answer is 'yes'. A 'prospective transfer' situation is commercially sensible and more than respectably arguable upon a reasonable reading of the legislative provisions in Pt V div 3 of the EP Act. It presents as sensible and viable, particularly by reference to the legislative terminology used towards a person who 'permits to be caused or increased, an emission', as seen in s 56(1)(a). Westpork would be such a permitter and, as I assess, would validly meet the description of a person who, by s 56(1)(b), would be a person who was altering (alters) or who permits to be altered, the nature of the waste emitted from the area of the prescribed premises - which would be the site of its newly constructed composting facility (as the subject matter of Westpork's s 53 works approval from the Department).
By its terms, s 56(2) of the EP Act exculpates from infringing under s 56(1)(a) the 'emissions' that are 'caused, increased or altered'. But that exculpatory protection via subsection (2), would not appear on its face to excuse the occupier who 'permits' under s 56(1)(a) by their conduct such emissions to be caused, increased or altered. That situation would, arguably, not excuse Westpork as a 'permitter' under s 56(2). It would thereby require Westpork to take the extra step of obtaining a s 56(1) licence - in respect of the new prescribed premises. There is nothing I find within s 57 (which governs the making of an application for a s 56(1) licence) that presents as inconsistent with that interpretation ‑ allowing Westpork to validly apply for a s 56 licence.
Clearly, there is an intended close interrelationship presented within Pt V div 3, as between a s 53 works approval and a (necessarily subsequent in time) s 56 (operating) licence: see, for instance, s 53(1)(f)(i) and (ii), s 56(2)(b).
Assisted by the earlier general curial observations made upon the structure of Pt V div 3 of the EP Act by Edelman J in Mineralogy and by the Court of Appeal earlier in Eclipse Resources, it is clear that the chosen legislative regulatory methodology surrounding the imposed need for, first, a s 53(1) works approval and, then later, for a s 56(1) licence under div 5 of the EP Act, has been deliberately structured upon a regime of exculpation from committing an offence. The protection from infringing and committing an offence arises where such an approval or licence (as the case requires) is obtained from the Department and has been obtained before vis-à-vis potentially infringing conduct.
Hence, as regards the future lawful operating of an eventually constructed composting facility there arises a logical need for someone to apply for, obtain and hold a s 56 licence. The s 56 licence would need to be obtained and held immediately before day to day operations of the facility (causing 'emissions') commenced ‑ in order to avoid committing an offence against s 56(1).
As a matter of common sense and functionality, the Pt V div 3 regime would surely allow for an application for a s 56(1) licence to be made prior to any potential emission activity that might otherwise be punishable as an offence against s 56(1). Nothing in s 57 suggests contrary. There is every good reason then for a s 56 application for such a licence to be submitted to the Department and evaluated by it prior to a proposed commencement date for day to day operations. There is nothing in the text of s 56, or anywhere in Pt V div 3 of the EP Act from a policy perspective, to inhibit the sensible course of a prior application by Westpork seeking a licence from the Department under s 56(1), applied for and obtained by Westpork on a fully disclosed basis that in due course the long term intended operator of the composting facility would be someone else who would become the day‑to‑day occupier in possession of the new facility. At that future time, once it arrived, the nominated day to day operator could then itself, via s 61, either obtain the s 56 licence as already held by Westpork via s 61(3)(b), or obtain a s 64 transfer to itself of the operating licence as was already then held by Westpork. Nothing in s 57, dealing with the making of such an application, presents as inhibiting that path being taken.
Whilst all bureaucratic evaluations were unfolding in the Department, a lawful day‑to‑day operating position for the new composting facility, as regards operative emissions, would be catered for from a protective perspective by the initial s 56(1) licence applied for and obtained by Westpork at a time when Westpork was still the relevant occupier of the Lot 10 prescribed premises: see s 61(5)(b).
Time is an important consideration with such projects. It will be remembered that in the present case it took almost three years (ie, from 10 December 2013 until 21 November 2016) for just a final s 53 works approval to finally issue from the Department to Westpork. This was the construction approval from the Department to merely let Westpork lawfully build a composting facility on Lot 10. It was not an application by Westpork to mine in a sensitive area of the State or, say, build a nuclear reactor. Yet the approval process dragged on for far too long in a commercial world. This inordinate bureaucratic delay is economically detrimental to projects and completely unacceptable in a first world business environment.
To avoid risks of more years of such bureaucratic delay around assessing an operating approval application, surely a prospective application by Westpork as then occupier for an (operating) licence under s 56(1), whilst fully disclosing the intended basis of the future operation of the composting facility by Bio‑Organics, would hasten the assessment process and make more commercial sense. That path would sensibly fit under the parameters of s 56 and s 61, and fully accord with the policy objectives of the EP Act.
By that interpretation of s 56, s 57 and s 61, made within the context of Pt V div 3 of the EP Act, there was no common mistake here by these parties as regards Westpork making the as promised (in the 2013 Agreement) application for, and then holding, at least on an interim basis, a s 56(1) (operating) licence. I would note that this interpretation of the EP Act also seems to have been at least the initial view of the environmental consultants, Strategen, in 2013 when first applications were submitted to the Department. Hence, there was no mistake here by anyone - let alone a common mistake.
A way of testing that view is to ask whether, had the Department evaluated a prospective s 56 application by Westpork and then eventually granted a s 56 licence to Westpork, the Department by doing that would be assessed as acting beyond power? Clearly not given a rational and pragmatic interpretation taken towards s 56 and s 61, assessed in the overall context of Pt V div 3.
In any event, were I to be proved wrong upon that interpretation of s 56, s 57 and s 61 of the EP Act, in circumstances where this issue has not previously been addressed by a court, then I would still find that there is no common mistake arising here. If it were ever to be determined that Westpork could not make a proper (prospective) application for a s 56(1) licence in a period whilst Westpork was the occupier, then so be it. But the mere fact these two parties in July 2013, competently advised by lawyers, took a different view about a s 56 licence (objectively assessed) under their 2013 Agreement would not be evaluated as reaching a level of mistake of sufficient magnitude to fall under the scope of a court of equity to set aside the parties' whole commercial bargain as being voidable for a serious mistake.
Such an interpretive divergence over the true meaning of s 56 and s 57 of the EP Act in 2013, absent any prior guiding case authority upon the point at the time, would not present an error of a sufficient magnitude, or sufficient materiality, assessed within this bargain to require a correction applied by a court of equity.
If Bio-Organics must itself apply for a s 56 operating licence at a future time once a composting facility is constructed by Westpork, very well. The Department then would need to assess another application on its merits. If it were then rejected, so be it. But that far off bridge has not been approached yet, let alone crossed.

Fourth key issue

Westpork's contended implied suitability terms in the 2013 Agreement

As formulated by Westpork (see par 2(d) of its written closing submissions), the last key issue arising in the trial is 'whether there are implied "Suitability Terms", which have been breached by the defendant so that the Lease Agreement is terminable'.
Again, it is first necessary to look at Westpork's TFASOC, as regards the precise case advanced upon its asserted ad hoc implied terms.
The relevant paragraphs within Westpork's TFASOC are pars 10D.1 and 10D.2. They are advanced in the alternative as the so-called 'suitability terms'. I set them out shortly.
But it is important to first observe that as regards any termination by reason of alleged breach by Bio-Organics of the 2013 Agreement, these suitability implied terms go nowhere -without something more. The 'something more' needs somehow to allow a termination of contract result by Westpork to follow. The as alleged termination right of Westpork is grounded on alleged breaches of those terms by Bio‑Organics. This right to terminate for breach of the suitability terms is only found under another implied term as contended for by Westpork. This is in a plea under par 10F of the TFASOC, as regards a breach termination right Westpork asserts it holds but albeit, as I would interpret this plea, has not yet exercised.
In terms of end relief, alternate declarations are sought by reference to Westpork's contended ad hoc implied terms found under prayers 2 and 3 of the TFASOC.
As seen, the declaratory relief sought by Westpork is couched on the basis of an asserted declaratory entitlement to terminate, rather than contending for any actual termination having yet happened due to breaches of any such implied suitability terms.
That was explained by senior counsel for Westpork as essentially being protective of its exposure position, as regards a potential repudiation by it of the 2013 Agreement - if it is wrong.
Westpork has not sought to terminate the 2013 Agreement yet on the basis of asserted breaches of these so-called suitability implied terms by Bio‑Organics. But Westpork would like to do that in the future if it can get a protective declaration from the court protecting its position in terminating on this basis. As we will see, it shall not.
I should now detail these contended ad hoc implied terms. It is fundamental, however, to appreciate from the outset that the alleged implied term seen under par 10F (enabling a termination of the 2013 Agreement in the event of a proven breach of the contended implied suitability terms) has been built upon an establishment of the earlier ad hoc implied terms. That all happens, it is pleaded, by reason of matters including an existence of the suitability terms seen under the earlier TFASOC par 10D.
In other words, the very same matters that supposedly generate the first tranche of ad hoc implied (suitability) terms (put in the alternative under par 10D) also will give rise, according to Westpork, to its further asserted implied term, as contended for by par 10F. That is a rather unique illustration of the phenomenon of 'bootstrapping' - by something growing out of ad hoc implied term tranche one to become and support the implied term position two (of termination). That observation should deliver warning bells at the outset about whether that par 10F alleged term has a questionable platform. Of course, if platform one is not reached then this termination right argument wholly crumbles at that final stage.

The TFASOC suitability implied terms

It is first necessary to see par 10A to par 10C in the TFASOC. They are relied upon by Westpork as a platform for all alleged ad hoc implied terms.

TFASOC par 10A

Paragraph 10A reads:
At the time of entering into the Lease Agreement it was commonly known to both the Plaintiff and the Defendant, or was notorious that:
(a)the cost to the Plaintiff of constructing the Composting Facility would be considerable, and in the order of between $500,000 to $1,000,000;
(b)it was proposed that the Defendant would operate the Composting Facility;
(c) a works approval to construct the Composting Facility would need to be obtained from DER prior to the Plaintiff constructing the Composting Facility;
(d)a licence to operate the Composting Facility would need to be obtained from DER prior to the Defendant operating the Composting Facility;
(e)the environmental record of the Defendant would be relevant to any consideration by DER of the necessary applications for a works approval to construct the Composting Facility and for a licence to operate the Composting Facility;
(f)the Defendant would need to be a fit and proper person or a fit and competent person to operate the Composting Facility in the opinion of DER;
(g)the Defendant would need to remain a fit and proper person or a fit and competent person to operate the Composting Facility in the opinion of DER for the duration of the Term.
Before I proceed to set out par 10B, I will record, for completeness, that I find the factual matters as contended for by Westpork under pars 10A(a) to (d) above to be established on all the trial evidence. But items 10A(e), (f) and (g) above present as far more problematic. For instance, why, by reference to the asserted 10A(e), should a so‑called 'environmental record' of Bio-Organics at prescribed premises at Oakford (Perth) necessarily be relevant to Westpork's application for its 'works approval' to construct the composting facility. Then, depending precisely upon what the so-called 'environmental record' of Bio-Organics might disclose, that record might, or might not, be relevant to assessing a future role of Bio‑Organics as a putative operator of a yet to be constructed composting facility.
Subparagraphs 10A(f) and (g) also present as problematic. I can find no textual support within the EP Act for a notion that an applicant for a licence under s 56 needs to be a 'fit and proper' or a 'fit and competent' person, or that they must remain 'fit and proper' or 'fit and competent' assessed from a perspective not objectively, but 'in the opinion of the DER'.
A properly formed opinion by the Department of a potential s 56 licensee would depend upon there being some reliable proven facts underlying any adverse environmental opinion. There is no legislative licence in the EP Act for the Department to 'blackball' persons it subjectively assesses to hold an unsatisfactory 'environmental record' -where they are seeking a s 56(1) licence for a proposed prescribed premises. There is no support, express or implied, in the EP Act for finding a requirement for the s 56 applicant to be positively assessed generically by the Department as a 'fit and proper', or 'fit and competent' person to hold a s 56 licence under Pt V div 3 of the Act. If such a power were desired to be held by the Department it ought be legislatively conferred upon the Department in clear and explicit terms. That is not the current position under Pt V div 3.
The whole scheme of Pt V div 3 is regulated by reference to a foundational concept of 'prescribed premises' and the activities that might occur on those premises. The nature of the div 3 regime is regulated on a geographical basis, by reference to the particular premises at hand on each occasion. A person might operate many businesses falling under the EP Act from a number of 'prescribed premises' in Western Australia and will need to get multiple s 56 licences from the Department - which are applicable for each premises. That hypothetical person might possibly engage in a diverse array of emission related activities at the various prescribed premises. But the geographical features of each premises and its activities might be very distinct.
One particular past incident of environmental relevance and concern known to the Department about a person might be relevant to assessing a future s 56 licence application made in respect of other prescribed premises. So might a conviction reached beyond reasonable doubt, say, for a transgression(s) against some environmental licensing condition on other prescribed premises. Such past proven incidents might potentially present some degree of relevance as factors to be weighed in the Department's proper assessment of an application seeking a licence under s 56(1) (depending upon all the precise facts) for the new premises. But the assessment would be conducted on a case by case and premises by premises basis. A wider, more sweeping notion within the department of some broad based 'proper person' test that is applied 'in the opinion of the Department' and against that person's 'environmental record' perceived by the Department is an interpretive fallacy as regards the correct meaning of Pt V div 3 of the EP Act.

TFASOC par 10B

This TFASOC plea of Westpork reads:
10B.By clause 7.2 of the Lease Agreement, the Defendant materially agreed that it would comply with and observe at its expense all present and future [A]cts (State or Federal), regulations and by‑laws which relate to the Premises and the Defendant's use and occupancy of them'.

The 10B plea stands in alignment with cl 7.2 of the 2013 Agreement. The characterisation contended for under par 10B is established.

TFASOC par 10C

This paragraph reads:
10C.By clause 7.5 and Item 8 of the First Schedule of the Lease Agreement:
(a)the Defendant agreed that it would not use the Premises other than for the purpose of a Composting Facility under item 67A of Schedule 1 of Part 1 of the EP Regulations (mistakenly referred to therein as 67A of the Act), as a solid and liquid waste treatment facility;
(b)the parties agreed that the Defendant would be obliged to comply with the requirements of the licence relevant to operate the Composting Facility.
[The 10C summary of the terms of the 2013 Agreement referred to under (a) and (b) of par 10C also presents as a reasonable conspectus of those provisions.]
Having considered the foundational pleas under TFASOC pleas 10A, 10B and 10C, it becomes possible to identify Westpork's contended implied suitability terms under its par 10D of the TFASOC.

TFASOC par 10D

Paragraph 10D reads:
By reason of the matters pleaded in paragraphs 10A to 10C hereof, and particularly having regard to the substantial costs to the Plaintiff of constructing the Composting Facility, there was or were implied term/s or conditions of the Lease Agreement (the 'Suitability Terms') that at all material times after entering into the Lease Agreement (including before the Commencement Date) the Defendant would be:
10D.1a fit and proper person or a fit and competent person to operate the Composting Facility; and, or
10D.2likely to obtain a licence pursuant to section 56 of the Act, if the Defendant was so required under the Act.
Particulars of both Suitability Terms
(What then follows as the 'particulars' is a mere invocation of the five pronged implied term Westernport criteria, required towards an establishment of an ad hoc implied term within a written contract, as initially identified by Lord Wilberforce in BP Refinery (Westernport) (283), then later approved and applied by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1989) 149 CLR 283).
I can now render some observations about the two suggested implied terms, seen as manifesting in the alternative at 10D.1 and 10D.2.
First, the 10D.1 implied term is advanced in the alternative, aligning the word 'fit' with either 'proper', or with the word 'competent', as regards a person, operating the composting facility. This is a cluttered, uncertain and unhelpful beginning. There is a fundamental distinction between the propriety and the competence of a person. Westpork presents here as being disinclined to nail its colours to the mast about this term, manifesting as a result a terminal lack of clarity in these alleged ad hoc implied terms.
Second, the further or alternate implied term seen under 10D.2 commences with the word 'likely' (as regards 'to obtain a licence'). That word is itself highly problematic from a clarity perspective. I would pose the question 'Likely in the eyes of exactly whom?' To the Department? To Westpork? Objectively assessed? The answer is left unacceptably unclear. Again that is a terminal problem for Westpork as regards finding such a term.
Third, the implied term as contended under 10D.2 requires a level of predictive analysis to be made at a point that is prior to the issuing, or declining, to Bio-Organics by the Department of a licence under s 56(1). But even if a s 56 licence were to be declined by the Department, there then would surely be review or other appeal routes open against such a rejection either to the State Administrative Tribunal, or by way of judicial review to this court. The contended term presents as being grossly unworkable in its application, as regards the nominated predictive threshold ever being met and as to when that might be assessed.
The contended implied term is thus far from being so obvious as to go without saying for these parties within the 2013 Agreement. Rather, it would be more likely as a contended term, in my view, to prompt an objective hypothetical response from both parties of 'of course that is not any part of our bargain'.
The as contended ad hoc implied term under 10D.2 lacks identifiability, clarity, certainty or utility.
Fourth, it might also be observed again that, standing alone, the ad hoc implied terms argued for by Westpork under 10D.1 and 10D.2, even if they were found to be established, would ultimately go nowhere, without more, even if (hypothetically) they were proved to be breached by Bio-Organics.
Breach of contract damages were not sought under the pleaded prayers for relief of Westpork. In terms then of potential relevance, the two par 10D suitability terms only hold trial significance if they are aligned to something else. The missing extra ingredient creeping towards a termination outcome for Westpork only emerges under TFASOC par 10F (noting that a former par 10E from the TFASOC pleading was excised by a previous series of amendments).

TFASOC par 10F

The last contended ad hoc implied term seen under par 10F is the essential plea.
Towards its establishment as the third of the contended ad hoc implied term within the 2013 Agreement, it will soon be seen that precisely the same founding ingredients were invoked by Westpork, by the preface to par 10F. These are the same ingredients invoked to support the suitability terms argued for under par 10D. The same matters then are repeated to support this further par 10F implied term, with an extra ingredient. As seen, the extra ingredient is only the par 10D ad hoc implied terms - which are climbed upon at this point to support finding the par 10F implied term.
TFASOC par 10F reads:
By reason of the matters pleaded in paragraphs 10A to 10D above, there was an implied term or condition of the Lease Agreement that if, prior to the Commencement Date of the Lease, the Defendant was not a fit and proper person or a fit and competent person (as pleaded in paragraph 10D.1 above) or was not likely to obtain a licence (as pleaded in paragraph 10D.2 above) then:
(a)the Plaintiff is and was not obliged to construct, or to continue constructing, the Composting Facility while the breach or non‑observance of the Suitability Term continues; and
(b)the Plaintiff is and was entitled to terminate the Lease after a reasonable period has expired either from the time when the breach or non-observance of the Suitability Term first occurred or alternatively from the time when the Plaintiff gives notice to the Defendant requiring the Defendant to remedy the breach or observe the Suitability Term.
Particulars
[The five Westernport criteria are recited again under these particulars to support this further ad hoc implied term.]
I can render the following observations about the further par 10F implied term. First, the attempted magnitude and repercussions of this extra ad hoc term under 10F(a) should be apparent. As contended, it would, once engaged, exculpate Westpork from constructing or continuing to construct the composting facility. That is a surprising release contention, in circumstances where a composting facility obviously first needs to be built, before it could ever be operated. Yet the contended implied term via par 10F(a) would, in effect, reverse or stop that logical ordering of the construction work. This is all supposedly so obvious as to go without saying. It is not.
Second, the mooted exculpation for Westpork from the obligation to construct or continue construction of the composting facility under par 10F(a), appears to be directly inconsistent with the otherwise absolutely clear and express obligation under the 2013 Agreement for Westpork to provide a composting facility on Lot 10 at its expense. An attempted 'watering down' of that obligation by the workings of this par 10F(a) aspect of what is a further implied term presents as a wishful, but wholly unprincipled, attempt to escape Westpork's otherwise expressly applicable facility construction obligations.
Third, the other par 10F(b) term deals with the providing of a termination right for a breach of the suitability terms. This is of significant, but one-sided, magnitude and carries with it an asserted entitlement of a unilateral kind (ie, for the benefit only of Westpork, by a suggested implied entitlement to terminate the 2013 Agreement on notice) as regards Bio-Organics' breaches or non-observances of so‑called suitability terms. None of this is obvious or reasonable.
Moreover, the parties to the 2013 Agreement can be seen to have applied their collective minds in that recorded bargain to the issue of possible future defaults, in the face of any future breach of an essential term, see cl 11.3 (see covenant 11.3(c)). They did that under what they then expressed in July 2013 to be their 'entire agreement' (see covenant 12.12). What is being suggested by this contended par 10F(b) implied termination entitlement for Westpork by reason of Bio-Organics' breaches, would add considerably to the 2013 bargain. This would be a further dimension that is neither clear, reasonable, necessary or obvious.
The emergence of the par 10F(b) ad hoc implied termination and exculpation term manifests as a concept far removed from possibly being so obvious as to go without saying, or as being reasonable and equitable, let alone 'necessary' to give business efficacy to the 2013 Agreement. The notice to Bio‑Organics it envisages Westpork giving to remedy a suitability term breach (in the alternative) is formulated as either a 'reasonable period having expired', or at some point after notice requiring remedy of the breach. None of that is sufficiently certain or workable.
Furthermore, as I have indicated, the ad hoc implied term seen under 10F is itself dependent upon all the earlier 10D suitability implied terms - a paradigm illustration of 'bootstrapping'. Those 10D implied terms were not established and at that point this dependent further term crumbles as well.
The 10F(b) implied term is the only pathway to a possible termination by Westpork of the 2013 Agreement - in respect of which the declaratory termination related relief as is seen under TFASOC prayer 2 could be pursued. I also note that par 10F is not referred to by the other paragraphs as collected under prayer 3 (albeit a termination forthwith is sought).

Summarising the adverse conclusions on Westpork's ad hoc implied terms

I conclude that none of these 10D and 10F implied terms come close to being established. On my analysis, they present as legally unprincipled. They look to reflect opportunistic efforts by Westpork to capitalise on the post July 2013 difficulties Bio‑Organics encountered with the Department - as regards its Oakford facility. That had ultimately culminated in a termination by the Department of Bio‑Organics' s 56 Oakford premises licence - albeit with scope for Bio‑Organics to apply again for the issue of a new licence for those very different prescribed premises.
Ad hoc implied terms are found as a matter of construction (see Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 353 (Mason J) and Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169, [22] - [25] (French CJ, Bell & Keane JJ)). Their establishment would need to be assessed temporarily at the time when the 2013 Agreement was entered, ie, in July 2013. Relevant surrounding contextual facts known to the parties at July 2013 might be argued as relevant to that assessment. But facts occurring after July 2013 concerning Bio-Organics, its Oakford facility and the Department are too late to form any part of the surrounding circumstances relevant to the ascertainment of ad hoc implied terms in the 2013 Agreement.
A considerable amount of documentary material was tendered in the trial book, towards events all occurring either with the Department, or as between the Department and Bio‑Organics, but happening subsequent to July 2013. There has been an attempt by Westpork, under a cloak of its ad hoc implied suitability term breach arguments, to conduct a mini‑trial, over the side happenings vis-à-vis Bio‑Organics and the Department concerning its Oakford premises. Too much Oakford premises related material was indiscriminately tendered at this trial by Westpork under a mantra of going to establish breaches by Bio‑Organics of its alleged implied ad hoc suitability terms, thereby, it was said, leading to a potential exculpation of Westpork from building the composting facility and to the termination outcome under the 10F(b) implied term. By my assessment, that whole Bio-Organics Oakford premises fit and proper/competent person implied term breach exercise has been wasteful, costly, unnecessary and thoroughly misconceived from the outset.
I reject the invitation of Westpork - under a cloak of examining potential breaches of the far too hollow implied suitability terms - that to have the court attempt to second guess the fate of a future application by Bio‑Organics for the benefit of a s 56 licence, or seeking a s 64 transfer to it of a s 56(1) operating licence if held by Westpork and concerning the Lot 10 composting facility - that is still yet to be built by Westpork.
If, hypothetically, such an application were ever made by Bio‑Organics to the Department seeking a s 56(1) licence, then that application would need to be properly evaluated by the Department by its stand alone merits at that time - and properly weighing all relevant, subsisting circumstances applicable to a composting facility built on prescribed premises at Lot 10. If within that evaluation the Department were to then (hypothetically) apply some negative plenary fit and proper/competent person predisposition against Bio‑Organics' application based upon it being seen as effectively 'blackballed' by the Department as a person with a bad 'environmental record', or as not being in its eyes a 'fit and proper' or 'fit and competent' person (ie, as a compost facility operator at Gingin) then, on my assessment, such a blinkered approach by the Department would lead it, as decision maker, towards making a jurisdictional error.
To the extent that the Department holds negative opinions about Bio‑Organics concerning an adverse 'environmental record', then only relevant facts, potentially pertinent to the Lot 10 prescribed premises at Gingin, would need to be identified. No generalised fit and proper/competent person test should be negatively applied in blanket fashion in assessing such an application. It is simply not possible or desirable for a court to embark upon the par 20D(2) contended second guessing exercise over a 'likely' outcome of a future s 56(1) EP Act application that is yet to be made by Bio‑Organics (or Westpork) - until all relevant underlying facts are first identified, assembled and then properly weighed and evaluated.
Moreover, for circumstances where Westpork has taken no steps at all (apart from clearing the site of trees) towards actually bringing about the construction of the composting facility, notwithstanding an eventual grant of a final (amended) works approval to it on 21 November 2016, it ill behoves Westpork presently from that position of its subsisting non‑performance (breach) and ongoing failure to comply with its obligations under the same agreement - to be allowed to effect a valid termination for Bio-Organics' alleged breach under the 2013 Agreement based upon breach of these ad hoc implied suitability terms, even were they established (which they clearly are not).
In the end, however, the contended 10D and 10F ad hoc implied terms do not come close to being established by Westpork. Hence, the contended correlative exercise of evaluating a potential breach of such terms by Bio-Organics is and always was a futile exercise.

Trial conclusions

Therefore, as regards the four key issues presented for resolution at the trial, Westpork has wholly failed on all of them. Westpork is not entitled to any of the relief sought under its prayers the subject of its TFASOC. Its action must be dismissed and adverse costs orders should, prima facie, follow that event. I will hear the parties as to costs orders if they cannot be agreed in due course, and preferably on the papers if that is necessary.
However, my dismissal of Westpork's action will take effect immediately upon publication of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SDL
ASSOCIATE TO THE HONOURABLE JUSTICE K MARTIN
17 SEPTEMBER 2018