- Agricultural and Rural Finance Pty Ltd v Gardiner

Supreme Court of NSW|2020-04-21|Before: Black J, Hodgson J

Hawkins v Clayton (1988) 164 CLR 539 - Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 - Hussain v Haynoum Developments Pty Ltd [2015] NSWCA 430 - Kumar v Satsang Hindu Maha Sabha of NSW Incorporated [2019] NSWSC 134 - Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 - Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 - Lift Capital Partners Pty Ltd (in liq) v Merrill Lynch International [2009] NSWSC 7; (2009) 73 NSWLR 404 - Liverpool City Council v Irwin [1977] AC 239 - Mackay v Dick (1881) 6 App Cas 251 - Marquess of Northampton v Pollock (1890) 45 Ch D 190 - Miller v Hancock [1893] 2 QB 177 - Multiservice Bookbinding Limited v Marden [1979] 1 Ch 84 - NSW Land and Housing Corp v Diab [2015] NSWCA 133 - Re CF Mellick Pty Ltd [2019] NSWSC 1756 - Re Leslie Muir Holdings Pty Limited [2019] NSWSC 1519 - Re Mango Credit Pty Ltd [2016] NSWSC 199 - Re Modular Design Group Pty Ltd (Receiver and Manager Appointed) (in liq) (1994) 35 NSWLR 96 - Rinehart v Hancock Prospecting Pty Ltd; Rinehart v Rinehart [2019] HCA 13; (2019) 366 ALR 635 - RPR Maintenance Pty Ltd v Marmax Investments Pty Ltd [2014] FCA 409 - Ross T Smyth & Co Ltd v TD Bailey Son & Co [1940] 3 All ER 60 - Ryder v Frohlich [2004] NSWCA 472 - Southern Cross Autoglass Pty Ltd v Protector Glass Industries Pty Ltd [2014] NSWSC 261 - Summers v Commonwealth (1918) 25 CLR 144 - Sun North Investments Pty Ltd (as Trustee of Sun Development Trust) v Dale [2013] QSC 44; [2014] 1 Qd R 369 - The Edge Development Group Pty Ltd v Jack Road Investments Pty Ltd [2018] VSC 326 - Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 29 - Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 - Vanguard Financial Planners Pty Ltd v Ale [2018] NSWSC 314 - Westfield Holdings Limited v Australian Capital Television Pty Ltd (1992) 32 NSWLR 194 - Wily v Endeavour Health-Care Services Pty Ltd (No 5) (2003) 11 BPR 21,081 Texts Cited: - JW Carter, Carter's Breach of Contract, LexisNexis Butterworths (2011) - ICF Spry, Principles of Equitable Remedies (2009) Category: Principal judgment Parties: Eric Andrew Fuller (First Plaintiff) Andrew Simon John Fuller (Second Plaintiff) Todd Christopher Fuller (Third Plaintiff) Daniel Eric Neill Fuller (Fourth Plaintiff) Kerry Albert (First Defendant) Matcove Pty Limited (Second Defendant) Moonee Developments Pty Ltd (Third Defendant) Cassie Albert (Fourth Defendant) Tristan Albert (Fifth Defendant) Sandra May Albert (Sixth Defendant) Representation: Counsel: D Cook SC/P Afshar (Plaintiffs) CRC Newlinds SC/M Hall (First, Fourth-Sixth Defendants)

Solicitors: Crowther Sim Lawyers (Plaintiffs) Pure Legal (First, Fourth-Sixth Defendants) File Number(s): 2017/213055

Background and affidavit evidence

By Originating Process filed on 13 July 2017 the Plaintiffs, Mr Eric Fuller and others, originally sought a wide range of relief in respect of the affairs of the Second Defendant, Matcove Pty Limited ("Matcove"). The Plaintiffs then radically amended their claims by an Amended Statement of Claim filed on 15 May 2019 to seek different relief, which was resisted by the First and Fourth-Sixth Defendants (to whom I will refer, for convenience, as the "Defendants"). There are two substantial issues in dispute in the proceedings following that amendment. The first issue relates to an application for a declaration that Mrs Sandra Albert holds one ordinary share in Matcove on trust for the benefit of the First Plaintiff, Mr Eric Fuller, or alternatively as mortgagee subject to an equity of redemption. The second issue, which took up the large part of the time at the hearing, involves the Plaintiffs' claim for a declaration that a contract dated 18 February 2003, but now contended to have been signed in early 2004 (appearing at Ex J1, p 552, to which I will refer as the "Page 552 Agreement") in relation to certain land at Moonee Beach is valid and enforceable and an order for specific performance. It is convenient, in this case, to approach the Plaintiffs' claims by reference to the pleaded case, since there are many factual disputes which it is not necessary to resolve in order to determine that pleaded case.
It is common ground that the First Plaintiff, Mr Eric Fuller, is a director of Matcove, the holder of one ordinary fully paid share in the issued capital of Matcove and of one "C" class share in the issued capital of Matcove and is also a director and secretary of the Third Defendant, Moonee Developments Pty Ltd ("Moonee Developments") and the holder of four ordinary C or E class fully paid shares in the issued capital of Moonee Developments (ASC [14]). The relief sought in the proceedings now does not affect Moonee Developments. Several other Plaintiffs, who are members of Mr Fuller's family, also hold ordinary shares in Matcove (ASC [15]-[17]), although they do not now seek relief in the proceedings.
The First Defendant, Mr Kerry Albert, was an accountant who provided at least some services to Mr Fuller, Matcove and Moonee Developments and is a director and secretary of Matcove, the holder of one ordinary share in the issued capital of Matcove, a director and secretary of Moonee Developments and the holder of 3 ordinary shares in the issued capital of Moonee Developments (ASC [18]). Other members of Mr Albert's family also hold ordinary shares in Matcove (ASC [21]-[23]). Matcove is the registered proprietor of a property situated in Moonee Beach in New South Wales which comprises undeveloped land (ASC [28]-[30]).
Turning now to the parties' affidavit evidence, the Plaintiffs rely on several affidavits of Mr Fuller. The first of Mr Fuller's affidavits, dated 12 July 2017, was prepared when the Plaintiffs pursued a very different case, challenging the transfer of land to Mr Albert on the basis that it was made without consideration, rather than relying on the Page 552 Agreement on which they now rely. That affidavit referred to the share structure of Matcove and also to the position in respect of other entities, including Moonee Developments and the Moonee Parklands Trust, and to the history of the several companies. Mr Fuller outlines the history of the acquisition by Matcove of land at Moonee Beach, the transfer of a share in Matcove to Mrs Albert and other dealings with Mr Albert, which I address in the chronology below.
By a second affidavit dated 15 May 2018, also sworn prior to the change in Mr Fuller's case, he responded to several affidavits filed on behalf of the Defendants in the proceedings. Mr Fuller there claimed, by way of bare assertion (which would have been rejected, had objection been taken to it) that: "It was always the case that Mr Albert and I agreed [that] where Mr Albert to receive a block of land, I would receive a block of land as well. The blocks would be split in a ratio of 60:40 way [sic] where I received 60% and Mr Albert received 40%." (Fuller 15.5.18 [26])
Mr Fuller also took issue with aspects of Mr Albert's affidavit dated 9 February 2018. I will refer to several aspects of Mr Fuller's evidence to which the Plaintiffs draw attention below. Other aspects of the differences between Mr Fuller's and Mr Albert's evidence are of little relevance for the determination of this proceeding. Mr Fuller there also referred, for the first time in his affidavit evidence, to the Page 552 Agreement (which he then described, using a term coined by his then solicitor, as the "mudmap") as follows: "Mr Albert prepared the 'mudmap' dated 18 February 2003 … The 'mudmap' sets out that the Albert family has a 40% share in Matcove land and the Fuller family have a 60% share in the land. Mr Albert produced more than one version of this document. In fact, Mr Albert provided me with two previous version [of] the mudmap [sic] which I refused to sign as those versions did not clearly set out the 60/40 split. Mr Albert pressured me to sign the mudmap on 18 February 2003 so that he could build his current house. It was my oversight that this document was not put in my first affidavit." (Fuller 15.5.18 [67]-[68])
The suggestion in that paragraph that the Albert family has a 40% share in the Matcove land and the Fuller family have a 60% share in the land does not recognise the fact that that land is owned by Matcove and, at best, reflects the intent of Mr Fuller and Mr Albert as to the size of the respective plots to be transferred to them and the then economic interests of the respective families in Matcove. That affidavit also annexed the Page 552 Document, which I will address below.
By a further affidavit of Mr Fuller dated 15 July 2019 he contended, in evidence admitted with a limiting order under s 136 of the Evidence Act, as evidence of his understanding and belief only, that he was "ready, willing and able to perform". I will address other aspects of that affidavit in the chronology that appears below. By a fourth affidavit of Mr Fuller dated 28 February 2020, he responded to Mr Albert's further affidavit dated 7 February 2020.
In closing submissions, Mr Newlinds submits that Mr Fuller was an unsatisfactory witness whose evidence should not be accepted unless corroborated by otherwise reliable evidence or amounting to an admission against interest. There were, as Mr Newlinds points out, significant inconsistencies between the evidence led by Mr Fuller in his successive affidavits, including his evidence as to whether he could and did demand performance of Mr Albert's suggested obligations in respect of the allotment of land to Mr Fuller, before the land was subdivided to permit such an allotment to occur. Mr Fuller also changed his evidence as to the content of conversations set out in his earlier affidavits in the course of cross-examination, referring by way of explanation to "errors" in his earlier affidavit evidence. The inconsistencies in Mr Fuller's evidence extended to, for example, whether he had signed the Page 552 Agreement on 18 February 2003 (Fuller 2018 [67] and whether he recalled having signed it in January 2004 (T18)). I accept the Defendants' submission that, in truth, Mr Fuller has no recollection of when he signed that document, some 16 or 17 years ago. There are, as the Defendants point out, also inconsistencies in Mr Fuller's evidence as to whether he had signed the share transfer to Mrs Albert which formed part of the security arrangements that are in issue, both between his affidavit evidence and his cross-examination, and with the position that he previously took in the proceedings that he did not admit signing those documents. I have had regard to, but need not address, several other inconsistencies and difficulties with that evidence addressed in the Defendants' submissions. The Defendants also submit, and I accept, that Mr Fuller frequently did not respond to questions in cross-examination, particularly when issues of inconsistency in his evidence arose. I am satisfied that I could not accept Mr Fuller's evidence as reliable evidence of relevant events, unless corroborated by documents or other evidence. It is not necessary to reach a finding as to whether the difficulties with his evidence reflect dishonesty or a conscious or subconscious shading of his evidence reflecting his belief that he has been wronged by Mr and Mrs Albert.
The Defendants rely on Mr Albert's affidavits dated 9 February 2018 and 7 February 2020. Mr Albert's first affidavit deals with the commencement of his business relationship with Mr Fuller; the discussions with Mr Fuller leading to the purchase of the Moonee Beach property by Matcove in about 1992; the creation of Matcove and the purchase of the property; the subdivision of the property and development approval for his and Mrs Albert's house on one lot on the property; the subsequent incorporation of Moonee Developments in order to develop the property; Mr Fuller's business activities in Indonesia and subsequently Hong Kong in the period from 2008 or 2009; and the circumstances in which Mrs Albert made a loan to Mr Fuller secured against one Matcove share, Mr Fuller subsequently failed to repay that loan and Mr Albert caused the transfer of the secured share in Matcove from Mr Fuller to Mrs Albert. Mr Albert also refers to the fact that capital contributions made by Matcove to pay down the Moonee property's financing were subsequently funded by the Fuller and Albert interests on a basis that reflected an equal shareholding, to Mr Albert's decision to cease doing accounting work for Mr Fuller, and to a subsequent meeting between Mr Fuller, Mr King, Mr Bailey and Mr Albert on 1 December 2016 which I address below. Mr Albert's first affidavit also addresses the current status of development of the property and refers to his expectation that a development application will be approved by State Planning in the next few months, and to the possibility of an "englobo" sale of the land with development approval for 101 lots after such approval is obtained.
By his second affidavit dated 7 February 2020, Mr Albert responds to Mr Fuller's affidavit dated 15 July 2019 and sets out his account of events relating to Mr Fuller's claim to a lot to be subdivided from the property. Mr Albert's evidence in that affidavit is that Mr Fuller's development application was rejected by Coffs Harbour City Council in 2010 and that, in a conversation occurring between 2010 and 2013, although closer to 2010, Mr Albert had proposed and Mr Fuller had seemed agreeable that a value adjustment would need to be made for the lot that Mr Albert had obtained when the sale of the balance of the property occurred (Albert 7.2.20 [19]). I return to that conversation below. Mr Albert also refers to his then hope that Mr Fuller's profits from other business activities would assist in funding the property development, and to further discussions in 2013 including a conversation as to the allocation of other subdivided blocks in the land to Mr Fuller in place of the block that he had not previously obtained, and to a debate between Mr Albert and Mr Fuller as to whether two or three blocks should be allocated to Mr Fuller in substitution for the earlier block (Albert 7.2.20 [21]).
Mr Albert also refers in that affidavit to the present development application for the land, which provides for 103 residential development lots and two other lots for buffer and environmental protection zones, and that the proposal therefore constitutes a State Significant Development and would be determined by the Department of Planning (Albert 7.2.20 [30]). Mr Albert also refers to the receipt of communications of interest to acquire the property, subject to that development being approved (Albert 7.2.20 [34]). Mr Albert also identified, in evidence admitted as a submission to the extent that it extended beyond documents exhibited to his affidavit, to inconsistencies between Mr Fuller's claim for a lot under the Page 552 Agreement and the current development application, and to Mr Fuller's involvement in the preparation of that development application (Albert 7.2.20 [36]ff). That affidavit also addressed certain assumptions made in the report of Mr Loader, on which the Plaintiffs relied, and to issues as to Mr Albert's health which he believes would not permit him live next to or near Mr Fuller (Albert 7.2.20 [50]ff). Mr Albert's evidence was also that Mr Fuller had not tendered, offered to tender or made any payment on the loan which Mrs Albert had made to him, and that he and Mrs Albert continued to pay loans which could otherwise have been reduced by any repayment of that loan by Mr Fuller (Albert 7.2.20 [55]).
Mr Newlinds submits, and I accept, that Mr Albert presented as a truthful witness and his evidence was substantially consistent with the documentary record, and much of that evidence was not challenged in cross-examination. As Mr Newlinds also points out, Mr Albert was cross-examined at some length as to evidence in his 2020 affidavit of matters that had not been addressed in detail in his 2018 affidavit. Mr Newlinds submits, and I accept, that that was readily explicable by the fact that the Plaintiffs' case, to which Mr Albert's evidence was responding, was radically changed by the amendment to that case made in 2019. It is not surprising that Mr Albert needed to address, in more detail, matters in his 2020 affidavit that were not raised by the Plaintiffs' case when his earlier affidavit was sworn. I also accept Mr Albert's evidence that his position in respect of the allotment of a lot to Mr Fuller, at least without payment by Mr Fuller, fundamentally changed following the demands made by Mr King on Mr Fuller's behalf in December 2016, to which I refer below, and Mr and Mrs Albert's consequential payment of $175,000 to Moonee Developments for the lot that was previously allotted to them. That change in Mr Albert's position was not surprising in those circumstances. The Plaintiffs largely do not challenge Mr Albert's credit or his evidence, other than, in reply submissions, his evidence in paragraph 19 of his second affidavit as to the suggested discussion of a value adjustment for the lot between Mr Albert and Mr Fuller between 2010 and 2013, to which I referred above. I would be inclined to accept Mr Albert's evidence in that regard, given the view that I formed as to his credit generally, but it is not necessary to reach a final view as to that question given the conclusions I reach on other grounds.
The Defendants also rely on Mrs Albert's affidavit dated 24 January 2018, which refers to the circumstances of the purchase of the property at Moonee Beach and the home built by Mr and Mrs Albert on part of that property; issues which arose in 2012 in respect of Mr Fuller's failure to pay bills due to Mr Albert's firm for accounting services; the conversation between Mrs Albert and Mr Albert after the meeting with Mr King and Mr Fuller in late 2016; and the loan made by Mrs Albert to Mr Fuller in 2013. Mrs Albert was not required for cross-examination.
The Defendants' also rely on the affidavit dated 7 December 2017 of Mr Matthew Bailey who is also an accountant and an employee of Kerry Albert & Co. His affidavit deals with his contact with Mr Fuller when the latter was a client of Kerry Albert & Co in the mid-1990s; his knowledge of Matcove; an occasion on 29 November 2016 when Mr Fuller and Mr King attended the offices of Kerry Albert & Co and inspected the books and records of Matcove; and a meeting attended by Mr Fuller, Mr King, Mr Albert and Mr Bailey on 1 December 2016. Mr Bailey's evidence is that he also heard reference at that meeting to Mr Albert accepting that there was an agreement for each of him and Mr Fuller to get a block of land, to Mr Albert saying that neither Mr Fuller nor Mr Albert had any obligation to pay for that block and to Mr Fuller acknowledging that was the case. Mr Fuller's position at that meeting, as set out in Mr Bailey's evidence, would be less adverse to Mr Fuller's credit than Mr Fuller's version of that meeting, but it is not necessary to determine which is correct in order to determine this matter. Mr Bailey's affidavit also annexes correspondence between Mr Bailey and Messrs King and Fuller where Mr Bailey commented on an email from Mr King recording what had occurred at that meeting, and recorded the additional matters to which I have referred in that email. The Defendants also rely on an affidavit dated 8 December 2017 of Ms Flett, who is also an accountant and an employee of the accounting firm. She gives evidence that Mr Fuller signed the share transfer form in respect of the share in Matcove that was transferred to Mrs Albert and she witnessed that signature. There is no longer any contest as to the fact that Mr Fuller signed that share transfer. Mr Bailey and Ms Flett were not cross-examined.
The parties also relied on expert evidence. It will not be necessary to address the expert evidence in detail given the findings that I reach on other grounds below. The Plaintiffs relied on the expert report of Mr Loader dated 15 September 2019 (Ex P1). There seems to me to be a fundamental difficulty with Mr Loader's evidence so far as he included the land area required to be dedicated to Council in calculating the area of lot 2 allotted to Mr Albert and valuing that land, where no arms' length purchaser of lot 2 would value it by including the size of a different lot that was dedicated to Council. A further difficulty arises because Mr Loader assumed that a subdivision had occurred in respect of a block to be allocated to Mr Fuller, where it has not yet occurred and may not in future occur, and adopted, as comparable properties, several properties for which development approval had already been obtained.
The Defendants relied on the expert report of a planning consultant, Mr Lawer, dated 7 February 2020 (Ex D2). It seems to me that Mr Lawer's evidence was cogent, although that evidence depended upon making an assumption as to where a subdivided block allotted to Mr Fuller would be placed based on Mr Lawer's reading of the Page 552 Document diagram at the time of preparing his report. That evidence was qualified in cross-examination when Mr Cook identified an alternative positioning where that block could be placed. I accept Mr Lawer's evidence that, even if that block was repositioned, it would likely require changes to the current development application that is current in respect of the land as a State Significant Development. I also accept that, as Mr Lawer's report indicated and Mr Newlinds submitted, an allotment of a lot of substantial size to Mr Fuller, or several lots of smaller size to Mr Fuller, would potentially reduce the number of lots that are subject to the development application below the 100 lot threshold for a State Significant Development application, and potentially require the development application to be resubmitted as a new application on a different basis. It is not, however, necessary to express final views as to those matters, given the conclusions that I reach on other grounds.
The Defendants also relied on Ms Parkes' valuation report dated 3 January 2020. Ms Parkes also appears to have assumed that the land was subdivided to permit Mr Fuller's block, and her evidence therefore has the same difficulty as Mr Loader's evidence, that the land in fact had not been subdivided to permit that block at any relevant time. The Plaintiffs do not, and the experts did not, seek to quantify the value of the land by reference to the possibility or probability that such subdivision might in future occur, as distinct from assuming, contrary to the fact, that it has already occurred. Ms Parkes adopted a different assumption to Mr Loader as to the relevant land area, not including land allocated to the Council in that respect. It seems to me that there is significant force in her criticisms of Mr Loader's report although her instructions did not extend to offering any alternative view as to the current value of a lot to be allotted to Mr Fuller.
I now turn to a chronology of events, which I have drawn from the affidavit evidence and cross-examinations and also partly from the Defendants' helpful opening chronology. On 22 April 1993, Matcove purchased the property at Moonee Beach to which I referred above. Both Mr Fuller and Mr Albert give evidence of conversations at that time which contemplated that Mr Albert would acquire from Matcove, without mention of any payment, a block of land near a creek at the back of the property and that Mr Fuller would acquire a block of land at the front of the property, on the highway, from which he could operate a service station, also without mention of any payment, and the balance of the land would be developed in the long term (Fuller 12.7.17 [57], [73], [77], Albert 9.2.18 [22], [28]). Mr Fuller later abandoned the plan to operate a service station from the land.
In 1998 Matcove lodged a development application for Mr Albert's benefit and with Mr Fuller's consent, to have the property subdivided to create Mr Albert's block near the creek, with the expectation that Mr Fuller would lodge a similar application (Albert 9.2.18 [55]-[58]). Mr Albert was later given development consent by Council to build a dwelling on a subdivided lot in the property and has done so and another lot has been set aside for Council.
Several documents were prepared between 2003 and 2004 which contained diagrams showing the location of Mr Albert's and Mr Fuller's proposed blocks (Albert 7.2.20 [9]; Ex J2, 2-6). The Plaintiffs now rely on the Page 552 Agreement, which is dated 18 February 2003 but which was not signed by Mr Fuller until early 2004. It appears that an earlier version of that document was signed by Mr Albert, but not by Mr Fuller, in a form that was later attached to an email dated 30 November 2016 from Mr King to Mr Fuller (Ex J2, 185C). That earlier version specifies that the two blocks will be of equivalent area, by contrast to other versions that are silent on area (J2, 435) or proportionate to shareholdings, then in a 40:60 proportion. The Page 552 Agreement in turn provides that: "This agreement made between Eric Andrew Fuller … and Kerry Albert …, being Directors of Matcove Pty Limited, is for the purposes of acquiring one residential building site each from Matcove Pty Limited and subdividing the said blocks from parcel known as [parcel description]. Other terms of agreement include: 1. The subdivision of the Albert block and Fuller block shall take place at the convenience of the new owners. 2. Access to the said blocks shall be by existing dirt road until public roads are connected. 3. Individual block costs are to be borne by the natural [sic] owners unless joint utilities/costs are agreed to be shared. 4. The said blocks Albert (A) and Fuller (F) shall be of area equivalent to shareholding, i.e. 4/10 and 6/10, and are roughly depicted on the map below with buffer marked [shaded area]." There follows a rough outline of two lots and a shaded area, presumably the buffer zone, and of the wider area of the land.
In February 2004, Matcove lodged a development application for a home block for Mr Fuller on the western side of the creek (Ex P2; Ex J1, 692). In March 2004, Mr Fuller asked Coffs Harbour City Council to delay determination of his development application until he prepared a submission (Ex J2, 11). In May 2004, the Council advised Mr Fuller that the determination of his application would be suspended pending the determination of Matcove's application for subdivision of the property, to include lot 2 which was to be transferred to Mr Albert (Ex J2, 14). In November 2005, Council gave the necessary approvals for the subdivision of the property into two lots: one larger lot of 12.922 hectare and one smaller lot consisting of 1.293 hectare. One of the subdivided blocks was ultimately transferred to Mr and Mrs Albert and the balance, excluding the land set aside for Council, is the subject of the ongoing subdivision application. On 8 December 2005, a special meeting of Matcove approved the transfer of lot 2 of the property to Mr and Mrs Albert for a consideration of $175,000, which was not then paid, and on the basis that costs associated with the transfer would be paid by Mr and Mrs Albert (Albert 9.2.18 [82]; Ex J1, 620).
Following the subdivision of Mr Albert's block, a contract of sale and a form of transfer was prepared between Matcove as seller and Mr and Mrs Albert as purchasers, which each recorded the consideration as $175,000. Matcove and Mr and Mrs Albert appear to have taken legal advice from the same solicitors in respect of that documentation, which may have been intended to record what was then understood to be the value of the land for stamp duty purposes. That amount was not then paid, although it was later paid by Mr and Mrs Albert to Moonee Developments after Mr King, acting on Mr Fuller's behalf, contended the transfer of the land without payment of that amount involved "fraud". I will return to that matter below. In the Plaintiffs' opening address, Mr Cook submits that the then transfer of lot 2 to Mr Albert took place under the Page 552 Agreement and not under any contract of sale. It seems to me that the transfer of the land to Mr Albert took place in the context of the imprecise arrangements between the parties, which existed in various forms over several years, including oral discussions, the Page 552 Agreement and its predecessor versions, and, as between Matcove and Mr and Mrs Albert, the contract for sale and the transfer. Mr Cook also submits that the Page 552 Agreement (as including oral and implied terms) was performed, so far as Mr Albert was concerned, and he received the full benefit of that agreement. While lot 2 was transferred to Mr and Mrs Albert, it can hardly be said that they obtained the full benefit of an agreement that is alleged to have provided for transfer of the land without consideration, where they later paid $175,000 to Moonee Developments to acquire the land in the circumstances to which I refer below.
Mr Fuller's evidence in his second affidavit is that, in late 2006 or early 2007, he lodged an application with Coffs Harbour City Council to subdivide the relevant property so that he could obtain his own lot (Fuller 15.5.18 [11]). The Plaintiffs subsequently tendered a development application lodged with Coffs Harbour City Council (Ex P2), rather than an application for subdivision. Although the parties gave significant attention to the form of that application in the course of cross-examination and submissions, it has limited significance for the findings I will reach below.
In January 2010, Coffs Harbour City Council invited Mr Fuller to withdraw the development application he had lodged in 2004 (Ex J1, 692), because Matcove had in 2009 lodged an application for a major project comprising the residential lot subdivision of the land which was to be (but it appears has not been) determined by the Minster for Planning. The Council indicated it would refuse Mr Fuller's application for development of his own lot if it was not withdrawn. In opening submissions, Mr Fuller submitted that Mr Albert's causing the Matcove land to be subdivided to give him his block: "caused [Mr Fuller] difficulties in obtaining a further subdivision for his block, including a rejection of his application for a further subdivision by the local council in 2010." I do not accept this submission, both because the evidence establishes that Mr Fuller did not apply for a further subdivision for the block, but instead lodged a development approval to build a second house on the existing block, and because Council rejected the application by reason of the fact that approval had been sought for a substantial subdivision of the land, which was then before the Department of Planning, rather than by reason of any previous subdivision of the land to create Mr Albert's block.
In subsequent correspondence with Mr Fuller in 2013, Mr Albert suggested that Mr Fuller could choose to have subdivided blocks from the land, if a subdivision were ultimately approved (Fuller 28.2.20 [8]). It is not surprising that Mr Albert later ceased to take that view from at least December 2016, when a representative of Mr Fuller, with Mr Fuller's acquiescence, accused Mr Albert of wrongdoing in respect of non-payment for the allotment of land to him, and he and his wife had responded to that accusation by payment to Moonee Developments for the land that was allotted to them. I will refer to that event below.
The Plaintiffs in turn plead the circumstances in which Mrs Albert made a loan to Mr Fuller and that, from April 2013 until December 2013, Mr Fuller was in "severe financial distress" and that Mr Albert or Mrs Albert offered to lend him $100,000 for a specified purpose (ASC [31]-[34]). The documentary evidence indicates that, in late May and early June 2013, Mr Fuller sought a loan of $100,000 from Mr Albert on the basis that a "big deal is on"; that he would repay that loan from his superannuation; and that he could not lose face in Hong Kong on the deal, and that he would provide security for the loan (Ex J1, 761-789). In his first affidavit, Mr Fuller contended that he needed the loan from Mrs Albert for a different purpose, to pay penalties imposed on another entity and Mr Fuller by Fair Work Australia in the Federal Circuit Court (Fuller 12.7.17 [93]ff). It is not necessary to determine the purpose of the loan in order to resolve these proceedings.
Mr Fuller executed a Deed of Loan and Mr and Mrs Albert transferred the amount of $170,000 to Mr Fuller, part of which was applied to part payment of accounting fees owing to Kerry Albert & Co by Mr Fuller and entities with which he was associated (ASC [35]-[37]; Defence [23]). In his first affidavit, Mr Fuller indicated his belief that the signature on the share transfer of the secure share was not his signature, and claimed to have been in Indonesia and not in New South Wales at the time the share transfer was signed (Fuller 12.7.17 [102]) and also questioned his signature to the General Securities Deed (Fuller 12.7.17 [106]). It appears the original documents had been executed by Mr Fuller while he was overseas and left overseas and they were re-executed by Mr Fuller on or about 9 August 2013 (Ex J1, 884-888). The Plaintiffs do not now contend that he did not sign those documents and it is now common ground that Mr Fuller subsequently signed a Deed of Loan, Transfer of Shares for a share in Matcove and General Securities Deed in respect of these transactions (Ex J1, 790-884). Mr Cook also points out that a share transfer executed on 4 June 2013 (Ex J2, 157-158) appears to have been replaced by a second undated transfer in August 2013, but nothing turns on that matter for present purposes.
The Deed of Loan (Ex J1, 824) relevantly provided for Mr and Mrs Albert to loan Mr Fuller and related entities $100,000 and the current debtor and work-in-progress amount owed to Kerry Albert & Co to 3 June 2013 (not less than $70,000) for investment as Mr Fuller sees fit. The Deed of Loan also provided that: "The principal amount shall be secured by 1/10 (10%) equity in [Matcove] owned by [Mr Fuller] represented by one (1) Ordinary Share in [Matcove]. Should the principal amounts, namely One Hundred & Seventy Thousand Dollars ($170,000) not be repaid by 1 December 2013, the said share in [Matcove] will transfer from [Mr Fuller] to [Mrs Albert] on that date." The Deed of Loan also contained a reference to "[s]ecurity documents attached as Signed Share Transfer form". A share transfer dated 4 June 2013 provided for the transfer of one ordinary share in Matcove from Mr Fuller to Mrs Albert (Ex J2, p 825). It appears that share transfer was executed by Mr Fuller in undated form, in early August 2013.
An email dated 4 June 2013 from Mr Fuller to Mr Albert indicates that Mr Fuller then understood the transaction documents for the loan by Mrs Albert to him to provide for a sale of the share in Matcove, if the loan was not repaid in December 2013 when due, although he complained as to the circumstances in which those documents were prepared, as follows: "Just to let you know. I remember the original discussion. You offered 150/60 as security. Then it turns into a sale in December was never discussed as a condition but you slipped it in …
Mr Albert responded that: "You accepted the 100 cash and offered share as security. The 70 odd you owe accounting was just part of the deal. The share will not transfer if you pay all back by Dec[ember]."
That prompted a more conciliatory response from Mr Fuller on 5 June 2013 that: "I don't mind at all; like you said it's trust; and it's a sure thing; and Sandra's money; she needed strong reassurance it would come back quick !!! and I understood that !!! That's why I signed it Bro !!! I know the support you have both given me & the trust !!!" (Ex J1, 794)
Mr Albert subsequently requested Mr Fuller to execute a General Security Deed (Ex J1, 846ff) which was a more detailed document than the Deed of Loan. The General Security Deed (Ex J1, 846ff) provides, at cl 7.1.1 that, to the extent the law permits, for the purposes of ss 115(1) and 115(7) of the PPSA, the secured party need not comply with each of ss 125 and 130 among others of the PPSA. Clause 12.1.1 of the General Security Deed also provides that: "The Secured Party may at any time after an Event of Default has occurred exercise any or all of the rights set out in this clause 12 in any manner and at any time and whether or not a Receiver has been appointed: 12.1.1 Claim beneficial ownership of the Collateral and register a transfer of ownership to the Lender …." The term "Event of Default" is defined in cl 11 and includes a failure to pay when due an amount payable under the General Security Deed or any other Transaction Document and the term "Transaction Document" is defined to include the Deed of Loan under which Mr and Mrs Albert advanced Mr Fuller the sum of $170,000. The term "Collateral" is defined as one ordinary share in Matcove.
In August 2013, an exchange of emails between Mr Fuller and Mr Albert plainly recognised an understanding that Mr Fuller was to acquire a lot, but indicated disagreement as to the terms on which he would do so. Mr Fuller initially requested Mr Albert to: "Please send original agreement where the block [I] take was in proportion to what you received/in ratio of 60:40. [e.g.] your block area plus the proportional difference plus the [right] to pick the location of my choice as you have exercised our verbal agreement from day one and many times since." (Ex J2, 175)
Mr Fuller there requested a copy of that agreement from Mr Albert, although his evidence is that he later found a signed copy of the Page 552 Agreement on which he now relies in his files, well after these proceedings were commenced. That email refers to a "verbal agreement from day one". It is unlikely that the reference to a "verbal agreement" in this email is to the Page 552 Agreement, which was signed some 12 years after the parties entered their original arrangements and would not aptly be described as the "original agreement". In that email, Mr Fuller also observed that "I am in debted [sic] to you for providing 100k from [Mrs Albert] when I needed help/in the scheme of the whole picture: I should have had a titled block free of mortgage: water under the bridge and new bridges to build: let's get on with it". That plainly involves a reference to the loan made by Mrs Albert to Mr Fuller, to which I refer below.
Mr Albert responded that: "The agreement you have says you to receive 60/40 value of my land at the time. It was stamped and valued at $175,000 in 2006. I think it was worth a little more, but had no power or services of any sort." Mr Albert's then approach, by reference to the "value" as distinct from the size of the relevant lot does not seem to find support in the terms of the Page 552 Agreement.
Mr Fuller responded at length, in an email in which there are notations in a different colour, likely made by Mr Albert, which I have set out in italics in square brackets below. In particular, that email recorded: "And I had a da in the same time and they would not approve two houses on one title unless you moved your house back from the 20 metre buffer [incorrect]: you choose a title: I allowed you to take the [coarse [sic] you did: I allowed you: Do what you want: so I take the same proportionate land that you took at the in globo price at the time. You fuck with me now and I will fuck back with you: [I'm] sick of hearing a one sided unfair argument from you [same team?] … The deal sticks: If you want to do it at today's values both lots/we will go to valuation. If you want it on 2002 values [? Why this yr] [sic] I will take my land area proportionate to yours at the time [Yes at value is fine] If you prefer neither take it to arbitration/love to see what you wrote in your will [may change it if continue nutty] … As for your kind gestures of doing my tax for 23 yrs and more recently did I not re sign an agreement to pay you 10% of a property worth in globo 2 3 4 5 6 million? For 170k security Yr joking aren't you [It is security only - not a sale] I'm sticking to the 60:40 2002 equall [sic] distribution on the day !!! And that's in my will ha ha ha." That reference in the third last paragraph is plainly to the loan made by Mrs Albert to Mr Fuller, although the notation (apparently by Mr Albert) records that it is as security only and not a sale, contrary to the position he put at this hearing.
It is common ground that Mr Fuller did not repay the amount of that loan when due, by 1 December 2013. Mr Albert's evidence is that, in June 2014, he advised Mr Fuller that he would transfer the share in Matcove to Mrs Albert (Albert 9.2.18 [152]). Minutes of a meeting of directors of Matcove attended by Mr Albert and Mr Fuller on 1 August 2014 records a resolution to transfer the share in Matcove from Mr Fuller to Mrs Albert with effect from 1 August 2014 and that notification of the share transfer be lodged with ASIC (Ex J2, 14A). It is not necessary to reach a finding whether these minutes recorded a formal meeting attended by those persons on that date, given the findings that I reach on other grounds. On 18 August 2014, a Form 484 notifying the transfer of the share in Matcove to Mrs Albert was lodged with the Australian Securities & Investments Commission (Ex J1, 939-940). After that share was transferred to Mrs Albert, Mr Fuller and Mr Albert made their respective contributions to Matcove and Moonee Developments in 50/50 proportions, reflecting the effect of that share transfer, rather than in the 60/40 proportions that had previously been adopted. When the property was subsequently refinanced with a different bank, guarantees were provided by Mr Albert and Mr Fuller in 50/50 rather than 60/40 proportions (Albert 9.2.18, [154]-[158], Ex J1 976ff).
Returning now to events in respect of the Page 552 Agreement, Mr Fuller claims that, in December 2016, he required Mr Albert to perform that agreement. His evidence in his third affidavit is that: "In or about December 2016, I spoke to Mr Albert and said words [to] the effect, "I would like you too to perform the mudmap". Mr Albert responded [in] words to the effect, "No, I don't agree". Mr Albert has refused me acquiring my block as agreed and contained within the mudmap." It is plain that that conversation did not take place in those terms, not least because the term "mudmap" was not used by any party at that time, until Mr Fuller's former solicitor adopted it subsequently. Mr Fuller amended the form of that conversation, in several alternative forms, in the course of cross-examination. His evidence of that conversation is also inconsistent with his evidence in his fourth affidavit (Fuller 28.2.20 [6]) that, in order to take a transfer of the block that he claimed, he would have to obtain approval for a subdivision which he did not obtain, and that "I had no basis for demanding that [Mr Albert] or Matcove perform the agreement until this occurred". Not surprisingly, Mr Fuller was cross-examined at some length as to that inconsistency, and provided no satisfactory explanation of it.
Also in December 2016, Mr Fuller and his representative, Mr King, met with Mr Albert and alleged that the transfer of lot 2 by Matcove to Mr Fuller without payment was wrongful (Fuller 12.7.17 [125]-[129]; Fuller 15.5.18 [25] (denying that he had agreed that Mr Albert need not pay for the lot, contrary to the position he now puts), [66]; Fuller 28.2.20 [9]; Albert 9.2.18 [164]-[165]; Albert 7.2.20 [11]; Bailey 7.12.17 [16]-[20]; Ex J1, 1003-1006). It is plain that Mr King was acting for Mr Fuller in respect of the meeting on 1 December 2016, and handwritten notes subsequently made by Mr Fuller recorded that: "I instructed James King to pursue the matter on the non-repayment of lands and to pursue the return of my share." (Ex J2, 191)
In his first affidavit, Mr Fuller referred to the circumstances of that meeting, and says that Mr King demanded evidence that Mr Albert had paid Matcove for the land transferred by it to Mr Albert and Mrs Albert; Mr Albert responded that he did not need to make such payment as Mr Fuller and Mr Albert had an agreement that did not require payment for the land; Mr King referred to a contract prepared by solicitors which had provided for a payment of $175,000 within 35 days and a transfer indicating that payment and contended that Mr Albert had not acted in the best interests of Matcove and its shareholders by taking a transfer of the land without paying for it; and Mr Albert again referred to the agreement with Mr Fuller in that respect. On Mr Fuller's evidence he remained silent, permitted Mr King to advance these assertions, without acknowledging the existence of any agreement with Mr Albert such as that for which he now contends, although Mr Bailey's evidence suggests that he acknowledged the fact of that agreement including that neither party had to pay for the land. By a subsequent letter dated 9 December 2016 (Ex J2, 186), Mr Fuller went further to allege that the transfer of lot 2 to Mr and Mrs Albert, without payment, amounted to "fraud" and that Mr Fuller was "compelled", as a director of Matcove, to refer the matter to the NSW Police and ASIC, and he did at least the former.
In opening submissions, Mr Cook sought to distance the Plaintiffs and Mr Fuller from the allegations made at the meeting on 1 December 2016 and in that letter, as follows: "On 1 December 2016, [Mr Fuller] went to [Mr Albert's] offices with a Mr James King, who described himself as a private investigator. At that meeting, Mr King seized upon the contract of sale in respect of [Mr Albert's] block and the admission from [Mr Albert] that he had not paid the purchase consideration under that contract to accuse [Mr Albert] of serious misconduct. There was no substance to that accusation at all. There never was any intention that the contract of sale would be performed on its terms. [Mr Albert] immediately pointed to the long-standing agreement he had with [Mr Fuller] under which he took the transfer. [Mr Fuller] did not deny the agreement but stood by whilst Mr King made these unfounded accusations. Subsequent to this confrontation, [Mr Fuller] reported Mr King's accusations to the police. Further, this unfounded allegation then found itself being made in these proceedings when they were first commenced and a claim was made against [Mr Albert] for breaching his director duty in taking a transfer without the knowledge and consent of Eric."
Mr Cook accepts that "[t]hese matters do not reflect well upon" Mr Fuller but submits that the Court should not be "overly distracted" by Mr Fuller's conduct; that the matters impact significantly upon Mr Fuller's credit; but the facts upon which Mr Fuller relies are "either common ground or based upon Mr Albert's evidence". It seems to me that that submission is not correct, since at least Mr Fuller's claim that he orally demanded performance of the Page 552 Agreement was denied by Mr Albert and subsequent conversations which Mr Albert contends amounted to a variation or abandonment of the relevant agreement are also contested.
Mr Fuller's evidence (Fuller 15.5.18 [128]) is that Mr Albert then offered to pay the purchase price for the land, as specified in the contract prepared by the solicitors and transfer $175,000, which he subsequently did; Mr Albert offered to transfer the share received by Mrs Albert in Matcove back to Mr Fuller, at the current value and Mr Fuller insisted that Mr Albert should instead pay the current value of the land transferred by Matcove to him. That proposition is wholly inconsistent with Mr Fuller's submission put at this hearing that he had not demanded that Mr Albert pay for that land, contrary to the alleged terms of the Page 552 Agreement. Mr Fuller's then evidence was that he had reported the matter to the New South Wales Police and the matter was then under investigation by the Police although it appears that the Police took no further action in the matter.
On 21 December 2016, Mr Albert paid $175,000 to Moonee Developments for the purchase of lot 2 of the property (Ex J1, 1012-1016). In opening submissions, Mr Cook submits that that payment was not performance under the contract prepared by the solicitors for the sale of the land by Matcove to Mr and Mrs Albert for $175,000 (which Mr Cook characterises as the "sham" contract) because the money was paid to Moonee Developments and did not include interest on the amount that would have been due to Matcove some years before. Nothing turns on that submission because Mr Fuller's claims are not brought under that contract.
By a letter dated 8 February 2017 (Ex J2, 193-198), Mr Fuller made further allegations (formulated as "issues") against Mr Albert of misappropriation and breach of fiduciary duty to Matcove, which were also inconsistent with Mr Albert (or Mr Fuller) being entitled to a transfer of land from Matcove without consideration under the Page 552 Agreement.
By the Plaintiffs' original Statement of Claim filed in these proceedings in September 2017 (Ex J2, 204) he sought a number of orders, including a declaration that, by reason of Mr Albert's breach of duties as a director of Matcove arising from the transfer of lot 2 to Mr Albert and his wife, Mr Albert and his wife held that lot on constructive trust for Matcove or were liable to a range of equitable gain or loss based remedies to Matcove. Paragraphs 112-115 of that Statement of Claim relevantly pleaded that (particulars omitted): "In or about 2005 [Mr Albert] caused Lot 2 to be transferred from [Matcove] to himself and [Mrs Albert] as tenants in common (the Transfer). The Transfer was not made pursuant to a resolution of the board of Matcove and without the knowledge or consent of the other directors of Matcove. In causing the Transfer [Mr Albert] breached the Director's Duties [as defined]. Mrs Albert was a knowing recipient of property transferred in breach of the duties pleaded above, and as such is liable to account for the property she received, alternatively was not a bona fide purchaser for value without notice." Those allegations were verified by Mr Fuller by affidavit dated 22 September 2017 which represented that he believed the allegations of fact in the statement of claim were true (Ex J2, 221, 223). The omission of any reference in that pleading to the Page 552 Agreement or to any entitlement of each of Mr Albert and Mr Fuller to a transfer of a lot in the property by Matcove to them without consideration is striking.
Subsequently, by a letter dated 28 February 2020 (Ex J1, 1268) the solicitors for Mr Fuller wrote to the solicitors for Mr Albert seeking to invoke an equity of redemption in respect of the transfer of a share in Matcove to Mrs Albert, stating that: "… Mr Eric Fuller offers to redeem the share held by Sandra Albert as mortgagee which our client pledged as security for the loan made by Ms Albert. We presently hold funds in trust to cover the repayment amount of the debt in respect of which the security was provided, that is $170,000 plus interest. … Please also provide us with a form of the transfer of the share proposed by Ms Albert [sic] to be provided in exchange for the aforementioned cheque as well as a copy of the share certificate itself."
By a further letter dated 26 March 2020 (Ex J2, 319) the Plaintiffs' solicitors denied that Mr Fuller was under any obligation under the loan or security to pay interest, but indicated that he would pay out the amount for which Mrs Albert contended (implicitly, including interest) while reserving his right to seek to recover the overpayment as monies had and received by Mrs Albert. Mr Fuller did not then make any offer to pay costs of the redemption proceedings.
By letter dated 27 March 2020, Mrs Albert's solicitors responded that, in order to attract the principles of the equity of redemption, Mr Albert would need to pay the principal amount in question, interest and costs, and contended that such costs included legal costs incurred in the current proceedings in relation to the share transfer issue. That letter noted that Mrs Albert's solicitors read Mr Fuller's solicitors' letter dated 26 March 2020 as a refusal to pay legal costs and indicated that Mrs Albert would not accept the tender of any amount calculated on that basis. Mrs Albert's solicitors also pointed to the fact that costs for the development had been allocated on the basis that Mrs Albert was the owner of the relevant share, since the share transfer to her had occurred, and sought confirmation that Mr Fuller accepted that: "[A] necessary consequence if any redemption were to occur would be a reversing of all such amounts as recorded in the books and records of [Matcove] from [Mrs Albert] to [Mr Fuller]." There is no evidence that Mr Fuller subsequently accepted that matter. Counsel for Mr Fuller acknowledged, on the last day of closing submissions, that Mr Fuller had also made no offer to pay costs of the redemption proceedings, such as they might be, until Counsel obtained instructions to make and made that offer in the course of Mr Fuller's closing submissions in reply.

The issue as to the share in Matcove transferred to Mrs Albert

As I noted above, the first issue to be determined relates to Mr Fuller's application for a declaration that Mrs Albert holds one ordinary share in Matcove on trust for his benefit, or alternatively as mortgagee subject to an equity of redemption. An order is also sought for the Defendants to execute documents to give effect to the declaration sought, without identifying what those documents would be, or alternatively that Mrs Albert transfer or take all necessary steps to deliver that share to Mr Fuller. I have set out the circumstances in which that loan was made, the share in Matcove was transferred from Mr Fuller to Mrs Albert as security for that loan and Mr Fuller failed to repay that loan in dealing with the chronology of events above.
An initial question arises as to whether the Deed of Loan, General Securities Deed and associated arrangements constituted a security interest under s 12 of the Personal Property Security Act 2009 (Cth) ("PPSA"). Subsection 12(1) of the PPSA provides that a "security interest" means an interest in personal property provided for by a transaction that, in substance, secures payment or performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property). Subsection 12(2) gives examples of security interests including not only a pledge but also a conditional sale agreement or transfer of title. Mr Cook submits that the Deed of Loan, General Securities Deed and associated arrangements were a "security arrangement" both by reference to their form but also by reference to their substance for the purposes of s 12 of the PPSA. I do not understand that contention to be disputed, and I find that the arrangements gave rise to a security interest under s 12 of the PPSA where, even on the Defendants' case, they amounted to a conditional sale or transfer of title and would fall within the specific examples of a security interest in that section. I return to the question whether the transaction gave rise to a mortgage at general law below.
The Plaintiffs submit that Mrs Albert did not purchase or acquire the share in Matcove by public sale or by paying its value as at 18 August 2014, implicitly relying on provisions of the PPSA to which I refer below, and that the transfer of that share in Matcove from Mr Fuller to Mrs Albert was "unlawful and was not effectual", although that pleading does not identify the source of the relevant unlawfulness or invalidity.
By letter dated 16 May 2019, the Defendants' solicitors sought particulars of that claim, so far as it (implicitly) relied on an alleged a breach of s 129 of the PPSA, and the Plaintiffs' solicitors provided particulars by letter dated 23 May 2019 (Ex J2, 307-310). The particulars requested by the Defendants' solicitor included whether it was alleged that there had been a seizure of the secured share, and if so when that seizure was alleged to have occurred and whether any seizure had occurred pursuant to s 123 of the PPSA or otherwise. The Plaintiffs' solicitors responded that: "There was no seizure under s 123 [of the PPSA]. The shares [sic] were transferred by means of a share transfer provided at the time that the [General Security Deed] was entered into."
The Defendants' solicitors also sought particulars of any disposal of the secured share, including any disposal by purchase of the collateral, and the Defendants provided particulars by reference to paragraph 70 of Mrs Albert's then Defence and advised that the facts were otherwise peculiarly within Mr Albert's and Mrs Albert's knowledge.
In opening submissions, Mr Cook submits that Mr Fuller's primary claim in respect of the share transferred to Mrs Albert is that the transfer of that share was contrary to the provisions of the PPSA. Mr Cook submits that the PPSA prohibits the sale of collateral to a creditor unless its requirements are complied with, and refers to ss 128(1), 128(3), 129(1), 129(3) and 130 of the PPSA in that respect. Mr Cook accepts that it was open to Mrs Albert to contract out of the limitations under s 129 and 130 under s 115 of the PPSA but submits that she did not do so. I do not accept that submission, where cl 7.1.1 of the General Security Deed contracts out of several aspects of that regime, to which I refer below. Mr Cook then submits that any transfer of the share to Mrs Albert was "unlawful as contrary to the PPSA" but did not, in opening submissions, identify how that contention could give rise to the trust for which Mr Fuller contends.
Relevantly, s 123(1) of the PPSA provides that a secured party may seize collateral, by any method permitted by law, if the debtor is in default under a security agreement. That section does not appear to be relevant here, where the Plaintiffs disclaim any allegation that Mrs Albert seized the share in Matcove, whether understood as a share certificate or as a chose in action. Section 125(1) of the PPSA in turn provides that a secured party who seizes collateral under s 123 of the PPSA must dispose of the collateral in accordance with Div 3 (which relevantly includes ss 128 and 129) or take action to retain the collateral in accordance with Div 4. As I noted above, that section was relevantly excluded by cl 7.1.1 of the General Security Deed and, in any event, it does not seem to apply where there is no allegation that Mrs Albert seized the share.
Sections 128 and 129 of the PPSA then appear in Pt 4.3 Div 3 of the PPSA, headed "Disposing of Collateral (including by purchasing collateral)". Section 128 of the PPSA provides: 128 Secured party may dispose of collateral (1) A secured party may dispose of collateral if the secured party has seized the collateral in the exercise of a right to seize the collateral on default by the debtor (whether under section 123 or otherwise). Note 1: A secured party may dispose of collateral by purchasing the collateral (see section 129). Note 2: The person who takes the collateral as a result of the disposal does so free of certain security interests (see section 133). Note 3: The secured party may act as agent for the grantor in transferring title (see section 141). Method of disposal (2) A secured party may dispose of collateral under this section: (a) by private or public sale (including auction or closed tender); or (b) by lease, if the security agreement so provides; or (c) if the collateral is intellectual property - by licence. Note 1: A different rule applies in relation to disposal by purchase (see subsection 129(3)). Note 2: Paragraph (2)(b) does not apply in relation to collateral that is used predominantly for personal, domestic or household purposes (see subsection 109(5)) … That section does not apply where the Plaintiffs do not contend that Mrs Albert had seized the collateral.
Section 129 of the PPSA in turn provides: 129 Disposal by purchase (1) A secured party may, under subsection 128(1), dispose of collateral by purchasing the collateral. Note: This section does not apply in relation to collateral that is used predominantly for personal, domestic or household purposes (see subsection 109(5)). (2) However, the secured party may dispose of the collateral by purchasing it only if: (a) the secured party gives a notice under section 130 stating that the secured party proposes to purchase the collateral; and (b) no notice of objection is given to the secured party in accordance with subsection 137(2). (3) Despite subsection 128(2) and section 131, a secured party may purchase collateral only: (a) by public sale (including auction or closed tender); and (b) by paying at least the market value at the time of the purchase. Note: Section 296 deals with the onus of proving matters under this subsection.
Mr Cook submits that, under s 129 of the PPSA, a secured party may dispose of collateral by purchasing the collateral only if the secured party gives a notice under s 130 of the PPSA stating that the secured party proposes to purchase the collateral and no notice of objection is given to the secured party in accordance with s 137(2) of the PPSA. However, s 129(1) applies to a disposal of collateral under s 128(1) and, as I noted above, that subsection does not appear to apply where there is no allegation of seizure of the collateral. Section 130 of the PPSA was excluded by cl 7.1.1 of the General Security Deed, and there is no suggestion that it could not be excluded in that manner. Mr Newlinds responds that s 129 is engaged only where a secured party seeks to dispose of collateral by purchasing it and that does not arise here, because the share was previously transferred to Mrs Albert, who now holds legal ownership of it, subject to any successful claim for redemption, which I will address below. He submits that no question arises of Mrs Albert now seeking to dispose of a share that she already owns.
It seems to me that the Plaintiffs have not established that ss 128 -129 of the PPSA apply, because they do not allege a seizure of the collateral, because some of the provisions on which they seek to rely were excluded by the terms of the General Security Deed to which I have referred above, and because the security was given by a transfer of the Matcove share in a manner that does not require Mrs Albert now either to dispose of or to purchase that share. In any event, it seems to me plain that the Plaintiffs cannot establish the relief they seek on this basis. They rely on the suggested non-compliance with the PPSA to submit that: "Accordingly, the transfer of the legal title to the share was ineffectual, alternatively unlawful, and [Mrs Albert] holds the share on trust for [Mr Fuller]."
This submission reflects the relief sought by Mr Fuller in the proceedings. However, Mr Cook was unable to point to any provision of the PPSA that invalidates a secured party's purchase of collateral by reason of any non-compliance with the PPSA. Mr Cook did not submit that a contravention of ss 128-129 of the PPSA gave rise to illegality at general law, or address any of the case law that would be relevant to such a submission. Mr Newlinds points out that the PPSA does not contain a provision that avoids or invalidates a conveyance in breach of s 129 of the PPSA and that s 271 provides for an entitlement to damages in respect of a breach of duties or obligations under PPSA. He submits, and I accept, that the Court should not imply some other consequence of breach of the PPSA, where that matter is addressed by the statute itself. There is no reason to infer that a contravention of the provisions of the PPSA on which the Plaintiffs rely invalidates a transaction absent a statutory provision which provides for that result, particularly where third parties may rely upon the validity of apparently regular transactions between persons granting securities and secured parties.
I note, for completeness, that Mr Cook also advanced several criticisms of the circumstances in which the loan arrangements between Mr Fuller and Mr Albert were documented. It is not necessary to address those submissions where there is no pleaded challenge to those arrangements, quite apart from the fact that they resulted in Mr Fuller obtaining substantial funds in circumstances that he said he had urgent financial need for them. Mr Cook also advanced several submissions as to the manner of the transfer of the share by Mr Fuller to Mrs Albert, but I also need not need to address those submissions where that transfer is not impugned in these proceedings and, as Mr Cook accepts, they have been conducted on the assumption that that transfer was valid. Although Mr Cook foreshadowed seeking a declaration to the contrary, if the evidence at the hearing established the contrary, he did not pursue that course.
Mr Fuller also seeks to invoke an equity of redemption at general law. Mr Fuller contended that the share transfer was intended to act as security for the loan and that he has made an offer to redeem the share by repaying the loan. I have referred above to the solicitors' correspondence, after February 2020, in respect of the equity of redemption in setting out the chronology of events above.
A first question arises, in dealing with Mr Fuller's reliance on the equity of redemption, as to whether the Deed of Loan, General Securities Deed and associated arrangements gave rise to a mortgage rather than a conditional sale. Mr Newlinds submits that, on the proper construction of the Deed of Loan, transfer of shares and General Securities Deed, the transaction was a conditional sale rather than a mortgage. He submits, and I accept, that the Court must assess the substance of the contract and have regard to the underlying nature of the transaction. He recognises that the Deed of Loan provides that the principal amount will be "secured" by the share in Matcove but emphasised that it provides for that share to transfer from Mr Fuller to Mrs Albert if the loaned amount was not repaid by the due date. It seems to me that that provision provides little support for a submission that the transaction was a sale rather than a mortgage, where that transfer is consistent with the exercise of a mortgagee's rights on default. Mr Newlinds also points to the fact that the Deed of Loan and subsequent General Securities Deed do not provide for interest, but that is consistent with a short term arrangement and also provides no support for a characterisation of the transaction as a conditional sale, since it is equally consistent with a mortgage, where Mrs Albert could exercise the rights of a mortgagee on default. Mr Newlinds points out, and I accept, that Mr Fuller referred to the transaction as a "sale" in emails, but Mr Albert conversely referred to the transaction as a "security" with each taking the opposite position to which they now advance. It seems to me that the arrangements were in the nature of a mortgage, and the provision for the sale of the Matcove share was a remedy for default under the Loan Agreement and General Security Deed rather than a sale on condition.
The parties did not make detailed submissions as to the applicable legal principles in respect of the equity of redemption, which I address before turning to the applicable facts. In Marquess of Northampton v Pollock (1890) 45 Ch D 190 at 215, Bowen LJ observed that: "… whenever a transaction is in reality one of mortgage, equity regards the mortgaged property as security only for money, and will permit of no attempt to clog, fetter, or impede the borrower's right to redeem and to rescue what was, and still remains in equity his own."
In G and C Kreglinger v New Patagonia Meat and Cold Storage Co Ltd [1914] AC 25 ("Kreglinger") at 61, Lord Parker observed that: "… there is now no rule in equity which precludes a mortgagee, whether the mortgage be made upon the occasion of a loan or otherwise, from stipulating for any collateral advantage, provided such collateral advantage is not either (1) unfair and unconscionable or, (2) in the nature of a penalty clogging the equity of redemption or, (3) inconsistent with or repugnant to the contractual and equitable right to redeem."
In Westfield Holdings Limited v Australian Capital Television Pty Ltd (1992) 32 NSWLR 194 ("Westfield") at 202-203, Young J in turn observed that: "There does not appear to be any commercial reason why, in 1992, the court should invalidate any transaction merely because a mortgagee obtains a collateral advantage or seeks to purchase a mortgage property. Quite obviously equity must intervene if there is unconscionable conduct. Again equity must intervene in the classic case where it can see that a necessitous borrower is not, truly speaking, a free borrower. In my view, in 1992, the rule [concerning clogs on the equity of redemption] only applies where the mortgagee obtains a collateral advantage which in all the circumstances is either unfair or unconscionable. It may be that the court presumes from the mere fact of a collateral advantage that the transaction is unconscionable unless there is evidence to the contrary, but the principle does not extend to invalidate automatically cases in which the mortgagee has obtained the right to purchase the whole or part of the mortgaged property in certain circumstances or has obtained a collateral advantage where the circumstances show that there has been no unfairness or unconscionable conduct."
In Lift Capital Partners Pty Ltd (in liq) v Merrill Lynch International [2009] NSWSC 7; (2009) 73 NSWLR 404 ("Lift Capital Partners") at [131] and [136]-[137], Barrett J also limited the operation of the rule in cases in which a finding of unconscionability can be made, and observed that: "It cannot be said today that a contractual provision freely assented to by a mortgagor is void or unenforceable just because it allows the mortgagee to acquire the mortgaged property or to resist that mortgagor's attempt to redeem. The susceptibility of such a provision to equitable intervention is, however, well established. In a given case, equity will prevent reliance on the provision by the mortgagee if that reliance is unconscientious because of some factor associated with the formation of the contract or something distinct from mere changed circumstances or supervening event operative at the time of reliance. In determining whether reliance is unconscientious, regard must be had to the nature of the bargain, the circumstances in which it was made and the circumstances in which the mortgagee seeks to assert the mortgagor's promise to defeat the right to redeem."
In Sun North Investments Pty Ltd (as Trustee of Sun Development Trust) v Dale [2013] QSC 44, [2014] 1 Qd R 369 at [74]-[75], Henry J in turn summarised the applicable principles as follows: "It is an essential feature of every mortgage that the mortgagor has a right to discharge the mortgage in payment of the debt or performance of the obligation for which security was given. That right, the "right of redemption" or the "right to redeem", can arise contractually, so long as the mortgagor is not in default. But even if the mortgagor does not repay a loan in time and thus loses the contractual right to redeem, there exists an equitable right to redeem. The equity of redemption may be enforced, notwithstanding a failure to redeem by the repayment date, until the point in time when the mortgagee's power of sale has been exercised or a court has made an order for foreclosure. The principle that a mortgage cannot at the time of the mortgage transaction in any way fetter or lessen redemption has been characterised as a special application of a more general power to relieve against penalties and to mould them into mere securities. It was the severity or hardship inherent in forfeiture of a security far exceeding the quantum of the repayment to be secured which, from an early date, attracted the intervention of equity to relieve against what was virtually a penalty." [citation omitted]
Henry J there noted several of the authorities to which I have referred above but expressed the view that "[t]he failure of the Westfield approach to give determinative weight to the inherently unconscientious nature of the transaction as an automatic foundation for intervention involves a departure from established law" and declined to follow that approach. His Honour's decision has been referred to in two later cases and three case notes or articles, none of which address the correctness of his view as to Westfield. I will return to that view, albeit briefly, below.
In a comprehensive summary of the applicable principles in Re Mango Credit Pty Ltd [2016] NSWSC 199 at [98]ff, Lindsay J in turn referred to these cases and observed that the statements in Marquess of Northampton v Pollock and Kreglinger remain "foundational to an analysis of current Australian law", although also recognising that they may require qualification in light of subsequent case law. His Honour also referred to Charmelyn Enterprises Pty Limited v Klonis (1981) 2 BPR 9572, where the Court of Appeal adopted a statement made by Browne-Wilkinson J in Multiservice Bookbinding Limited v Marden [1979] 1 Ch 84 at 110 that: "… a bargain cannot be unfair and unconscionable unless one of the parties to it has imposed the objectionable terms in a morally reprehensible manner, that is to say, in a manner which affects his conscience."
Lindsay J also there noted that the approach adopted by Young J in Westfield had been largely followed by Santow J in Re Modular Design Group Pty Ltd (Receiver and Manager Appointed) (in liq) (1994) 35 NSWLR 96 at 103-104 and 108G, by Gzell J in Wily v Endeavour Health-Care Services Pty Ltd (No 5) (2003) 11 BPR 21,081 and by the Full Court of the South Australian Supreme Court in Epic Feast Pty Ltd v Mawson KLM Holdings Pty Ltd (1998) 71 SASR 161 at 173. Lindsay J also there noted (at [102]ff) that: "An examination of case law confirms that Australian courts, mindful of a need to respect freedom of contract, proceed to the making of a finding of a clog on the equity of redemption with the utmost caution."
His Honour also observed (at [106] that "[t]here remains room for debate about the rationale, nature and scope of any rule governing a mortgagor's right to redeem mortgaged property and principles governing equitable intervention to vindicate that right" and referred to treatment of the issue in texts and academic writings. This case will not require the determination of any aspect of that debate. His Honour also noted (at [109] and [112]) that: "… consideration of whether there is "something more" that bespeaks of a clog generally commences with a consideration of the substance of the parties' transaction (having regard to its nature and purpose), and the question whether their contract documentation includes a collateral impediment to redemption of the mortgage security … Each party (but, here, particularly, the mortgagee) is liable to be held to the intended purpose for which, objectively, the parties' transaction was entered: provision of a loan on security, coupled with an obligation on the mortgagee to return the security on repayment of the loan."
Mr Cook here refers to the offer made by Mr Fuller to redeem his share to which I referred above and to an offer by Mr Fuller to pay interest on the share, although disputing the calculation of Court interest made by Mrs Albert. Mr Cook points out that Mrs Albert did not accept that offer but required a contribution to her costs of this issue in the proceedings in a substantial amount. Mr Cook submits that: "To the extent that [Mrs Albert] characterises the proceedings brought against her as a redemption suit, and on that basis claims an entitlement to payment of her costs of a redemption suit, there are a number of difficulties with that proposition. First … the redemption suit is brought in the alternative. Second, there is no evidence before the Court that she, as opposed to [Mr Albert] has incurred any costs in these proceedings (and the tenor of her evidence suggests strongly that she has not had any involvement in these proceedings, having let [Mr Albert] deal with the arrangements. Third, to assume that [Mrs Albert] will receive a costs order in her favour if [Mr Fuller] is successful prejudges the matter, particularly where [Mrs Albert] denies the equity of redemption." In reply submissions, Mr Cook again submits that the question of costs does not extend to costs in a redemption claim, where the Plaintiffs' primary attack on the transfer is based on the PPSA. It does not seem to me that these submissions assist Mr Fuller. This position would have been open had Mr Fuller limited his claim to that under the PPSA but is not open where he has also sought relief in reliance on an equity of redemption. Once a redemption claim is raised in the alternative, and the proceedings involve a redemption suit, the authorities establish that the party seeking to establish an equity of redemption needed to address the costs of that suit in order to do so. Mr Fuller did not offer to pay proper costs of that application until an offer made at the end of his closing oral submissions in reply, to which I refer below.
The Defendants also rely, in resisting the claim for redemption, on Mr Fuller's maintenance of a case that put in question whether he signed the transfer of shares to Mrs Albert or General Securities Deed and the maintenance of his claim under the PPSA. It does not seem to me that these are strong factors against an order for redemption, if it were otherwise justified. The Defendants also rely on Mr Fuller's failure to offer any payment to redeem the share until 28 February 2020, and his failure to make any offer as to costs incurred in defending the redemption application after that date. These matters seem to me to have more substantial weight. Mr Newlinds submits, and it is well established, that a party seeking redemption must have made an open and unconditional tender to pay the outstanding amount and that tender must extend to the principal amount, interests and costs: Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868 at [512]. Mr Newlinds submits that the Plaintiffs are not entitled to be heard in respect of the equity of redemption, as no open unconditional tender of the principal amount plus interest and costs was made by Mr Fuller, although I note that the position as to costs belatedly changed in the Plaintiffs' closing submissions in reply. Mr Newlinds also submits that the Court would not grant relief against forfeiture because it was not unconscionable to give effect to the terms of the transaction documents that caused the transfer, and again refers to Mr Fuller's original evidence putting in issue whether he had signed the relevant transaction documentation.
As I have noted above, in determining the redemption claim, the Court must have regard to the circumstances of the case, the nature of the parties' bargain and the circumstances in which the mortgagee relies on the mortgagor's promise to defeat a right to redemption: Lift Capital Partners at [136]. Mr Newlinds points to the difference in approach in Westfield Holdings and Lift Capital Partners on the one hand and Sun North on the other, to which I referred above. The difference in approach may have no significance here, because I do not understand Sun North to treat the equity of redemption as an absolute right, able to be exercised notwithstanding any delay or lack of equity on the part of the borrower. To the extent that difference may matter, I would follow the approach in Westfield Holdings and Lift Capital Partners, for the reasons expressed by Young J and Barrett J respectively in those decisions.
I am satisfied that Mr Fuller is not entitled to an order redeeming the Matcove share that was transferred to Mrs Albert. Adopting the approach reflected in Westfield Holdings and Lift Capital Partners, the parties' bargain contemplated the transfer of the share in Matcove to Mrs Albert on default, and that was not obviously unreasonable where the loan had been made without interest and on the basis that it would be paid promptly and that potential result was expressly recognised, at least by Mr Fuller, in the contemporaneous correspondence. It does not seem to me that any collateral advantage obtained by Mrs Albert from retaining the Matcove share, which was transferred to her some years ago as security for a loan that was due to be repaid within a short time period, and as to which no interest was payable, and which was not repaid for many years is now either unfair or unconscionable in all the circumstances.
First, the delay in Mr Fuller's repayment of the loan continued over a long period, although the payment of interest at Court rates would now compensate Mrs Albert for that delay, if (which was not established) the interest payable by Mr Fuller at those rates is at the same or a higher rate than the interest that Mr and Mrs Albert paid on their home loan over that period.
Second, Mr Fuller has not tendered any adjustment to compensate Mrs Albert for additional monies contributed by Mr and Mrs Albert to loan repayments by Matcove, proportionate to the increased shareholding which arose from the transfer of the relevant share to Mrs Albert, which he left them to pay for a long period. I do not neglect the fact that, in reply submissions, Mr Cook submits (without reference to evidence) that, to the extent that Mrs Albert has paid a greater share of the costs of Matcove since 2014, these are "de minimis" and Mr Fuller would accept a condition of the redemption that he pay those amounts to Mrs Albert in addition to the amount due under the loan, together with interest. I see no reason that the Court should formulate or impose an additional condition that Mr Fuller take steps that he has not previously offered to take in order to establish an equity of redemption. The fact that Mr Fuller has not himself addressed that matter tends against any unconscionability or unfairness in Mrs Albert now retaining the Matcove share.
Third, throughout the period up to the hearing, and through the large part of the hearing, Mr Fuller also made no offer to pay Mrs Albert's costs attributable to the redemption proceedings in such amount as may properly be payable. It seems to me that such costs would properly be payable, both because the redemption proceedings arose from Mr Fuller's default in repayment of the loan over a very long period, and because Mrs Albert reasonably defended these proceedings, having regard to the matters that I have noted above. Had I otherwise been persuaded that an order for redemption should be made, I would have deferred making that order until Mr Fuller had paid, and not merely promised to pay, the amount referable to the principal of the loan, the interest and an estimate of costs of the redemption proceedings. However, I am not persuaded that the basis for the redemption order was established.

The terms of the Page 552 Agreement

As I noted above, the second issue, which took up the large part of the time at the hearing, involves the Plaintiffs' claim for a declaration that the Page 552 Agreement in relation to the land at Moonee Beach is valid and enforceable and ought to be specifically performed. The Plaintiffs seek an order that the Page 552 Agreement be specifically performed or, in lieu of specific performance, damages, equitable compensation, equitable damages or an account. For convenience, I will first deal with the question of the terms of the Page 552 Agreement before dealing with issues of intention to enter legal relations and uncertainty, although the latter are logically anterior to questions of construction of the contract.
The Plaintiffs plead that, on 18 February 2003 (now said to be January 2004), Mr Fuller, Mr Albert and Matcove entered into the Page 552 Agreement for the purposes of Mr Fuller and Mr Albert acquiring one residential building site each from Matcove and subdividing the two blocks from the relevant land. Paragraph 44 of the Plaintiffs' Amended Statement of Claim pleads the terms of the Page 552 Agreement, namely that: "(a) Each of [Mr Fuller] and [Mr Albert] would acquire from Matcove, in consideration for [Mr Fuller] and [Mr Albert] taking steps further to develop the Land and financing such development a block of land, which would be subdivided from the land. (b) The size of [Mr Fuller's] and [Mr Albert's] blocks of land will be in proportion to their respective interests in Matcove, namely 60:40. (c) The location of [Mr Fuller's] and [Mr Albert's] blocks of land would be roughly as depicted in a "mud map" included in the Agreement. (d) Each of [Mr Fuller] and [Mr Albert] would cause each of [Mr Fuller's] and [Mr Albert's] blocks of land to be subdivided from the Land and would cause Matcove to transfer to [Mr Fuller] and [Mr Albert] their respective blocks. (e) The timing of subdivision of [Mr Fuller's] and [Mr Albert's] blocks would take place at the convenience of [Mr Fuller] or [Mr Albert]."
The Page 552 Agreement is particularised as follows: "The Agreement was partly oral, partly implied and partly written, in the form of a document signed by [Mr Fuller] and [Mr Albert] individually and on behalf of Matcove, and which is annexed to the affidavit of [Mr Fuller] sworn in this proceeding on 15 May 2018 and marked "A".
The Defendants respond to that pleading by denying the paragraph and, necessarily, denying the legal effect of the Page 552 Agreement in the terms alleged. I will return to a question of the effect of that denial below.
Mr Newlinds submits, and I accept, that the task of contractual construction involves ascertaining the meaning that the document would convey to a reasonable person having all the background knowledge that would be reasonably available to the contracting parties at the time of the contract, and that this requires consideration of the language used in the contract, the surrounding circumstances known to the parties, and the purposes or objects sought to be secured by the contract: Rinehart v Hancock Prospecting Pty Ltd; Rinehart v Rinehart [2019] HCA 13; (2019) 366 ALR 635 at [44]; Cherry v Steele-Park [2017] NSWCA 295; (2017) 96 NSWLR 548 at [46], [72].
I should first address the wider structure of the Page 552 Agreement, before turning below to the terms for which the Plaintiffs contend. The opening paragraph (not numbered) of that document seems to me to be a record of the parties' purposes that each would acquire one residential building site from Matcove and subdivide that block from the land, and there is no doubt they each had that purpose at the relevant time. The statement of that purpose did not, however, seem to me to have any promissory content. The body of the documents sets out "other terms" of the arrangement. The first numbered paragraph identifies when the subdivision of the Albert block and the Fuller block will occur, "at the convenience of the new owners" but does not expressly impose any obligation on either party to bring about that result. The Defendants point out that that provision is apparently unlimited in time, so that the suggested subdivision could be deferred by either party to any time into the indefinite future, and indeed until after approvals for other subdivisions of the land had been sought, as has now occurred here.
The second numbered paragraph of that document records the parties' intention that access to the blocks shall be by an existing dirt road until public roads are connected, but does not impose any obligation upon either party in respect of the connection of public roads. The third numbered paragraph refers to the "natural owners" (which may be the parties) bearing "individual block costs" unless "joint utilities/costs" are agreed to be shared. Neither the content of the individual block costs nor which other costs are within the scope of a potential sharing agreement is disclosed. The Defendants also point to the statement that the blocks are "roughly depicted" on the map below. While a criterion of "roughly depicted" would no doubt be sufficient for an informal arrangement between the parties, that language plainly raises questions as to whether they would have intended to be legally bound by an agreement containing that test, and as to certainty. On balance, and with hesitation, I accept Mr Cook's submission that that phrase has a similar content to "approximately", and that it would be possible for the Court to determine whether any particular block proposed by either party complied with the statement that it was "roughly depicted" on the map, albeit not to scale, set out on that document.
I now turn to the terms of the Page 552 Agreement pleaded in paragraph 44 of the Amended Statement of Claim. Mr Cook submitted that most of paragraph (a) set out at paragraph 83 above reflected the written terms of the Page 552 Agreement. It seems to me that the written term pleaded by the Plaintiffs in paragraph (a) is established, with the qualification that "would" should be read not as creating an obligation to acquire the land but as recording the parties intent that each of them could do so.
In his oral closing submissions, Mr Cook also submitted that the only part of that agreement that was oral in nature was that part of paragraph (a) in paragraph 44 of the Amended Statement of Claim that referred to the agreement being "in consideration for [Mr Fuller] and [Mr Albert] taking steps further to develop the Land and financing such development". After the completion of evidence, and prior to the parties' oral submissions in which Mr Cook identified the content of the oral term for which the Plaintiffs contended, I sought further clarification of the particulars provided by the Plaintiffs to paragraph 42 of their Amended Statement of Claim, with the intent of better understanding the Plaintiffs' case. My Associate advised the parties, at my request, that: "His Honour has noted that paragraph 42 of the Plaintiffs' Amended Statement of Claim particularises an agreement which is said to be partly oral, partly implied and partly written, by reference to Annexure "A" to Mr Fuller's affidavit dated 16 May [2018]. His Honour directs that the Plaintiffs provide a schedule to me, by 4pm tomorrow, 18 April 2020, identifying each paragraph of Mr Fuller's affidavit evidence setting out a conversation said to constitute an oral term of that agreement."
By a letter dated 18 April 2020, the Plaintiffs' solicitors identified several paragraphs which were said to give rise to the Page 552 Agreement, being paragraphs 6, 26, 28, 39, 41, 64 (which probably should have referred to paragraph 46) and 49, implicitly of Mr Fuller's affidavit dated 15 May 2018. In submissions, the Plaintiffs misread the request I have set out above as directed only to Mr Fuller's affidavit dated 15 May 2018, rather than, as it said, to Mr Fuller's affidavit evidence generally. I drew their attention to that error at the commencement of their oral submissions.
Turning to the paragraphs noted in that letter, paragraph 6 of Mr Fuller's affidavit dated 15 May 2018 referred to a conversation, which was not dated but likely occurred about the time the property was purchased in 1993, in which Mr Albert said he would like a block of land on the creek and Mr Fuller said he wanted to build a service station on a part of the property. The first statement is broadly consistent with the ultimate location of Mr Albert's land, and the second is inconsistent with the Page 552 Agreement so far as it concerns Mr Fuller's property (which was to be residential land under the Page 552 Agreement), and represents an earlier stage of the parties' ongoing discussions. Neither statement has promissory content. Paragraph 26 asserts that Mr Albert and Mr Fuller had agreed that "were Mr Albert to receive a block of land, [Mr Fuller] would receive a block of land as well", and those blocks "would be split in a ratio of 60/40 way [sic] where [Mr Fuller] received 60% and Mr Albert received 40%". Although no objection was taken to that paragraph, I give little weight to an assertion of the fact of an agreement not linked to a particular conversation or identifying when it occurred. Paragraph 28 refers to a conversation in which Mr Fuller again says he wanted to put a second service station on the property, which again appears to reflect an earlier stage of discussions and is inconsistent with the Page 552 Agreement. Paragraph 39 refers to a conversation in 2003 when Mr Fuller says indicated that he wanted land in a ratio of 6:4. Paragraph 46 refers to Mr Fuller's lodgement of a development application, in the name of Matcove, to build a home block at the front of the western side of the creek adjoining the property, which is equivocal so far as it would be consistent either with a contractual agreement or an informal agreement or an understanding permitting him to do so. Paragraph 49 refers to a conversation in which each of Mr Albert and Mr Fuller are said to have expressed their respective wishes, and Mr Albert indicated his intention to subdivide and pay the costs, and Mr Fuller indicated that he also wanted a title if Mr Albert obtained one. That conversation seems to me to have no promissory content. None of those conversations address whether any land was to be allotted to Mr Fuller and Mr Albert for no further payment or at fair value and, if for fair value, when that was to be calculated, or a proposition (noted in paragraph 83(a) above) that the parcels were to be allotted to Mr Fuller and Mr Albert on the basis that they took further steps to develop the land or finance that development.
By their letter dated 18 February 2020, the Plaintiffs' solicitors also advised that the Plaintiffs: "will be relying upon the entirety of the evidence admitted in the hearing, both affidavit (and cross-examination) and documentary to support the allegation in ASOC [42] in so far as it alleges that the agreement is partly oral and partly implied." That advice provides no illumination as to the content of the Plaintiffs' case. The Plaintiffs also identified their primary position that, notwithstanding the denial of an agreement in the corresponding paragraph of the Defence, "[t]here is in fact an implied, if not express, admission on the pleadings as [to] the existence of such an agreement, such that particular [sic] are not required." I do not accept that submission, which cannot survive the Defendants' express denial of the pleaded agreement.
The Plaintiffs also identified further evidence on which they relied for the alleged oral terms of the agreement, making no reference to evidence in cross-examination. I will address some of those evidentiary references by way of illustration. For example, the Plaintiffs refer to a discussion between Mr Fuller and Mr Albert in late 1992 (Fuller 12.7.17 [57]) as to a proposal for Mr Albert to participate in the initial purchase of the property, in which Mr Fuller says that he wished to take 5 acres out of the lot for a service station on the highway. That conversation had no promissory content and was, in any event, inconsistent with the later suggestion that Mr Fuller would obtain a site close to the creek. The Plaintiffs also refer to Mr Fuller's evidence of a later conversation on 1 December 2016 (Fuller 12.7.17) where Mr King, then representing Mr Fuller, asserted that Mr Albert had been required to pay Matcove for the land that was transferred to Mr Albert and his wife, a position that was consistent with the allegations originally made by Mr Fuller in his earlier case and is inconsistent with the allegations now made by Mr Fuller in his present case. Mr Albert then asserted that Mr Fuller and he had an agreement, although he did not identify its terms, and that he and his wife did not pay for the land as they did not have to do so. Mr Fuller permitted his representative, Mr King, to assert the contrary although I have referred above to Mr Bailey's evidence that he may have acknowledged that position. That conversation does not identify any conversation giving rise to a term of the Page 552 Agreement, as distinct from the parties then contested understanding as to what they had previously agreed (or thought they had agreed).
The Plaintiffs also refer to paragraph 4 of Mr Fuller's 28 February 2020 affidavit, which refers to his understanding that he was to receive a 2 hectare block and Mr Albert was to receive a 1.33 hectare block, and was admitted with a limitation under s 136 of the Evidence Act that it is only evidence of Mr Fuller's understanding. That paragraph does not identify any oral terms of the Page 552 Agreement. The Plaintiffs also rely on paragraph 9 of Mr Fuller's affidavit dated 28 February 2020, which again refers to the meeting between Mr Fuller, Mr King, Mr Albert and Mr Bailey which I have addressed above. Mr Fuller there explains that he did not wish to "undermine Mr King's effort" by acknowledging that the position that Mr Albert expressed at that meeting, that he was not required to pay for the transfer of the land, was correct. That conversation also does not identify any conversation giving rise to a term of the Page 552 Agreement, as distinct from Mr Fuller's understanding as to what the parties had previously agreed. The Plaintiffs also rely on paragraph 10 of Mr Fuller's affidavit where, some 14 years after the suggested formation of the Page 552 Agreement, he asserted the existence of an agreement with Mr Albert, and requested Mr Albert to "stick to" it, notwithstanding the position taken by Mr King on Mr Fuller's behalf, and the fact that Mr and Mrs Albert had paid an amount of $175,000 for the land following the accusations put by Mr King. I have referred to the evidence set out above by way of example only. I do not consider it necessary to address the other evidentiary references contained in the 18 April 2020 letter, where the Plaintiffs do not explain how any of them gave rise to an oral term of the Page 552 Agreement.
In their closing written submissions, the Plaintiffs also submitted that it is open to them to rely on any of the evidence adduced at the hearing to prove the oral portion of the Page 552 Agreement. Even apart from any question as to the extent to which a case may be confined by the manner in which it is pleaded, and considerations of procedural fairness, it would be necessary for the Plaintiffs to identify the case they seek to put, by reference to the evidence on which they rely for it, rather than leave that question at large. In any event, as I noted above, Mr Cook puts the oral terms of the Page 552 Agreement in a much narrower fashion in his oral closing submissions than the Plaintiffs' written closing submissions would have suggested.
I am inclined to the view that the evidence to which I have referred above does not establish an oral term dealing with the consideration for the Page 552 Agreement to the effect pleaded as part of paragraph (a) in paragraph 44 of the Amended Statement of Claim. I recognise that it was plainly the parties' common understanding or expectation, within their informal arrangements, that the relevant lots were to be allotted for no further payment, at least until Mr King asserted the contrary position on Mr Fuller's behalf and, after Mr and Mrs Albert had paid for the land they acquired, Mr Albert then similarly asserted that Mr Fuller must also do so. It seems to me that that understanding likely reflected a common assumption that Mr Fuller and Mr Albert could deal with Matcove's land by agreement between them. When that assumption was made, it would be less likely rather than more likely that they would specifically address it by discussing any question of contractual consideration for the Page 552 Agreement, which largely dealt with practical issues as to the location of and access to the relevant plots. The pleaded term that the parties agreed that the plots were to be transferred in "consideration for [Mr Fuller] and [Mr Albert] taking steps further to develop the Land and financing such development a block of land" seems to me to be a lawyers' construct rather than the product of any conversation between the parties, and there was no suggestion that such a term was implied. I am inclined to think that the pleaded term as to consideration in paragraph (a) of paragraph 44 of the Amended Statement of Claim was not established, although it is not necessary to reach a concluded view as to that question given the findings that I have reached on other grounds.
Mr Cook submitted that paragraphs (b), (c) and (e) pleaded in paragraph 44 of the Amended Statement of Claim above reflected the written terms of the Page 552 Agreement. It seems to me that the term pleaded by the Plaintiffs in paragraph (b) is also established and, as Mr Cook contended, fixed the proportionate land areas to be allotted to Mr Fuller and Mr Albert at the then shareholdings in Matcove, despite the subsequent change in the proportion of their holdings. It seems to me that the term pleaded by the Plaintiffs in paragraph (c) is also established, and I accept, with hesitation, that that term is sufficiently certain to be enforceable. On balance, I read the clause, as Mr Cook contends, as having the effect that Mr Albert can choose the location and shape of Mr Albert's block and Mr Fuller can choose the location and shape of Mr Fuller's block so long as the relevant block is "roughly" as depicted in relevant diagram, although an alternative reading of that clause may be open that both parties were required to consult and agree as to the scope of blocks is plainly available, although a clause in that form would likely not be enforceable. It seems to me that the term in paragraph (e) is also established and, on balance, not uncertain.
In closing submissions, Mr Cook submitted that paragraph (d) of the pleaded terms of the Page 552 Agreement was a term implied in that agreement. As I noted above, the pleaded term is that: "Each of [Mr Fuller] and [Mr Albert] would cause each of [Mr Fuller's] and [Mr Albert's] blocks of land to be subdivided from the Land and would cause Matcove to transfer to [Mr Fuller] and [Mr Albert] their respective blocks."
That is the only pleaded paragraph that would impose any specific obligation on the parties. Mr Cook submits that the obligation pleaded at paragraph 44(d) of the Amended Statement of Claim requires Mr Albert to cause Matcove, with Mr Fuller's assistance, to subdivide Mr Fuller's block from remainder of lot 1. That is a gloss on the pleaded term so far as it seeks to put a primary responsibility on Mr Albert and only a responsibility to assist on Mr Fuller. It might immediately be recognised that that obligation could equally have been formulated as an obligation placing a primary obligation on Mr Fuller to cause Matcove, with Mr Albert's assistance, to subdivide Mr Fuller's block from the remainder of lot 1, or requiring both parties to do so. Mr Newlinds responds that the Page 552 Agreement did not impose an obligation on Mr Albert to "cause" a block of land "to be subdivided" as pleaded in this paragraph. He submits, and I accept, that the Page 552 Agreement largely refers to the "purpose" of the Agreement, as distinct from imposing any express obligation on Mr Fuller or Mr Albert in that respect. That in turn draws attention to whether the pleaded term can be implied as the Plaintiffs contend. I sought further submissions from Counsel in respect of that implied term and have been assisted by those submissions.
I sought submissions, first, as to whether the requirements for the implication of such a term are those set out by the majority of the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 ("BP Refinery") at 282-283, as approved by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 ("Codelfa") at 347, namely, the specified term (1) must be reasonable and equitable; (2) must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) must be so obvious that 'it goes without saying'; (4) must be capable of clear expression; and (5) must not contradict any express term of the contract; and see Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 452-453; Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104; NSW Land and Housing Corp v Diab [2015] NSWCA 133 and Re CF Mellick Pty Ltd [2019] NSWSC 1756.
Mr Newlinds submitted that where the pleaded term was said to be implied as a matter of fact, it was subject to the criteria set out in BP Refinery for the implication of terms into any legal agreement. Mr Cook made rather more expansive submissions as to that question. He referred to a non-exclusive list of categories of implied terms in Carlton & United Breweries Ltd v Tooth & Co Ltd (unreported Hodgson J, 11 June 1985), which was referred to by Mason P in Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [28]. He submits that the term pleaded in paragraph 44(d) of the Amended Statement of Claim arises either under category (ii) or (iv) of those categories, as an implication from the 'nature of the contract itself' as expressed in the words of the contract or as an implication from considerations of business efficacy.
Mr Cook submits that the test for implication of a term within category (ii) to which he referred is that the term must be "a basis without which the whole transaction would be futile" (Miller v Hancock [1893] 2 QB 177 at 181 per Bowen LJ) or one of "necessity" (Liverpool City Council v Irwin [1977] AC 239 at 254). He also refers to the formulation of the concept of "necessity" in Byrne v Australian Airlines Ltd above at 450, by reference to whether "the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined", or, at 453, by reference to whether a contract would be "deprived of its substance, seriously undermined or drastically devalued". Mr Cook submits that, without a subdivision, the expressed intention of the parties that each acquire a block of land is impossible, and without an obligation imposed to cause that subdivision, their contract is rendered nugatory, worthless and deprived of substance. That submission seems to me to beg the question whether the particular term for which the Plaintiffs contend is the only way, or one of several ways, to achieve that objective. As will emerge below, it seems to me the test of "necessity" is not satisfied by the particular term for which the Plaintiffs contend, given the availability of several alternative terms that would reflect reasonable, but different, balancing of the parties' interests in respect of that objective.
Mr Cook accepts that the decision in BP Refinery above is the relevant Australian test for the implication of a term within category (iv) to which he referred. He submits that test only applies to formal contracts, and not informal contracts and refers to the observations of Deane J in Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 121 and in Hawkins v Clayton (1988) 164 CLR 539 ("Hawkins v Clayton") at 571-573, where his Honour observed that: "Care must be taken to avoid an automatic or rigid application of the ordinary cumulative criteria for determining whether a term should be implied in a written contract to a case where the contract is oral or partly oral or where it is apparent that the parties have never attempted to reduce their agreement to complete written form ... The cases in which those criteria were laid down or accepted as the cumulative ingredients of an overall test were concerned with the question whether a term should be implied in a formal contract which was complete upon its face … … there are sound reasons for resisting the temptation to attempt to formulate a precise mechanical test for determining what terms, if any, should be implied in a case where the parties have not sought to spell them out. Such a precise mechanical test would introduce an element of inflexibility which would be likely to lead to injustice in the circumstances of particular cases and would preclude proper observance of Lord Tomlin's sensible admonition "so to balance matters that without violation of essential principles the dealings of men may as far as possible be treated as effective and that the law may not incur the reproach of being the destroyer of bargains" (see Hillas & Co, Ltd v Arcos, Ltd (1932) 43 Lloyd's LR 359 at 364). The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties." [citations omitted] I return to the application of that approach below.
Mr Cook also points to the existence of "a general rule applicable to every contract that each party agrees, by implication, to do all things as are necessary on his behalf to enable the other to have the benefit of the contract" (emphasis added): per Griffith CJ in Butt v M'Donald (1896) 7 QLJ 68 at 70-71; see also Mackay v Dick (1881) 6 App Cas 251 at 263. Mr Cook submitted that the implication of that general rule led McHugh JA, in a dissenting judgment, in Beaton v McDivitt & Anor (1987) 13 NSWLR 162, to conclude at 185-186: "The McDivitts have a contractual duty to do everything necessary on their part to enable the plaintiff to have the benefit of the contract: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607 per Mason J. Accordingly, it is and was their duty to do everything in their power necessary to have the land subdivided so as to transfer "lot B" to the plaintiff." That formulation introduces the limiting phrase "everything in their power" and also focusses attention on the question who bears the relevant obligation where the land is owned by a corporate entity and the contracting parties are its directors and some of its shareholders, a matter to which I return below.
Mr Newlinds also addressed more general obligations of cooperation in his submissions, accepting that there may well be an implied obligation of cooperation between the parties under the Page 552 Agreement, where each party to a contract ordinarily has an obligation to co-operate to achieve contractual objectives, particularly where the contract requires or envisages co-operation and involves an ongoing business arrangement. However, Mr Newlinds submitted that such an obligation was not pleaded or alleged or shown to have been breached. It seems to me that the Plaintiffs do not plead an obligation of that generality and could not have established a breach of it in the relevant circumstances, including the position put by Mr King with Mr Fuller's acquiescence in December 2016 and by Mr Fuller in the earlier version of his claim in these proceedings. Such a term would also not have supported the order for specific performance that was sought, which went well beyond Mr Albert's cooperation with steps taken by Matcove or Mr Fuller in achieving the contractual objectives.
I also sought submissions as to whether a term can be so obvious that it goes without saying if several alternative terms would have been reasonable, and whether (as seemed to me at least a possibility) there existed several other reasonable alternatives to the term pleaded in paragraph 44(d) of the Amended Statement of Claim. Mr Newlinds addressed these issues together. He submitted that, having regard to the words used in the Page 552 Agreement, it is immediately apparent that the pleaded implied term set out in paragraph 44(d) of the Amended Statement of Claim is not "so obvious it goes without saying", because it is possible to identify from the words used several different possible implied terms, including examples given in my request for further submissions, and that: "Self-evidently, if an implied term can only be arrived at after a choice between more than one equally available alternatives, it is not obvious".
Mr Newlinds also submitted that, where there was little evidence as to how the Page 552 Agreement was executed, its terms do not appear capable of supporting the wording of the pleaded term. He points out that the opening paragraph of the documents speaks of "the purposes" of the agreement rather than obligations, and the opening paragraph and the subsequent first numbered paragraph (commencing "The subdivision of the Albert block...") lack any specificity as to who owes what obligation. He submits that the opening paragraph and subsequent first numbered paragraph do not provide any basis on which it could be said the pleaded term is so obvious it goes without saying. Mr Newlinds also pointed out that the obligation to "cause" subdivision pleaded in paragraph 44(d) of the Amended Statement of Claim has the difficulty that neither Mr Fuller nor Mr Albert can "cause" subdivision, although they could consent to Matcove lodging a subdivision application to the relevant approval authority and to any subsequent necessary transfer. Mr Newlinds submitted that is not the pleaded implied term, a matter on which Mr Albert also relied in contending that no breach of the Page 552 Agreement was established.
In dealing with the question whether a term can be obvious if several alternatives are available, Mr Cook accepted that, in the situation that existed in Codelfa, then the fact that the parties may have negotiated any one of a number of reasonable terms on the subject matter if they had turned their mind to that subject matter results in a failure to meet the third test in BP Refinery. He also submitted that: "… there is a distinction between those cases where the court finds that the parties have not turned their mind to a situation that subsequently arises (such as occurred in Codelfa and Hussain), and rejects the implication of a term because the proposed term, although reasonable and fair, is only one of many such reasonable and fair terms that the parties may have negotiated to address that situation, and the situation where it was obvious to the parties that something had been agreed, albeit that there may have been other reasonable ways of achieving the same result open to the parties other than by the term that was obviously agreed by them."
I accept those situations are different, but it seems to me that they give rise to a common problem of lack of obviousness and lack of necessity as to a particular implied term which is one of several solutions to a particular problem. Here, while the parties may well have understood that "something" was agreed, the nature of that "something" depends on an implication (which is why the Plaintiffs plead an implied term) and Mr Cook's reference to a term that "was obviously agreed by them" begs the question what it was.
It seems to me that the authorities establish that a term is generally not so obvious that it goes without saying in those circumstances. In Codelfa at 356, Mason J observed that where "negotiation about [a matter] might have yielded any one of a number of alternative provisions, each being regarded as a reasonable solution", it would not be obvious that it "goes without saying" that, had the parties turned their mind to that matter, they would have agreed on any particular one of those provisions; see also Hussain v Haynoum Developments Pty Ltd [2015] NSWCA 420 at [32]; Kumar v Satsang Hindu Maha Sabha of NSW Incorporated [2019] NSWSC 134 at [43]. Where several alternative terms are reasonable, then it seems to me that it will also not be seen that the implication of one of them, to the exclusion of the others, "is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case" on the approach adopted in Hawkins v Clayton.
In dealing with the question of alternative formulations to the term pleaded in paragraph 44(d) of the Amended Statement of Claim, Mr Cook submitted that a first possible term, that Mr Fuller, as a director of Matcove, would cause Matcove to seek to have Mr Fuller's block subdivided and transferred to him, with Mr Albert's assistance, would be "ineffective". He submitted that it was not within Mr Fuller's power to cause Matcove to seek to have his block subdivided and transferred to him, since he was only one of two directors of Matcove and, without Mr Albert's consent as the other director of Matcove, it was not legally possible nor within the contemplation of the parties at the time the agreement was concluded, that he alone could cause Matcove to subdivide the property or transfer Matcove's land to himself. There is force in that submission, but it neglects that fact that Mr Cook's submission (to which I referred above) was that the obligation pleaded at paragraph 44(d) of the Amended Statement of Claim required Mr Albert to cause Matcove, with Mr Fuller's assistance, to subdivide Mr Fuller's block from remainder of lot 1. The alternative term simply reverses the allocation of the primary responsibility to Mr Fuller rather than Mr Albert, while still requiring the other director's assistance.
Mr Cook submits that a second alternative, that both directors would act together to cause Matcove to seek to have that block subdivided and transferred to Mr Fuller is not an alternative to paragraph 44(d) of the Amended Statement of Claim, but the term there pleaded. That submission may be inconsistent with the language "each" and "respective blocks" in the pleaded term and is inconsistent with the way in which Mr Cook put submissions, which allocated the primary responsibility for the remaining steps to Mr Albert rather than Mr Fuller. I accept, however, that is plainly a reasonable formulation of an implied term.
Mr Cook submits that a third formulation, that both directors would act together to cause Matcove to seek to have that block subdivided and transferred to Mr Fuller, provided it was in Matcove's interest at the relevant time and subject to any necessary shareholder ratification (so as to address potential issues of fettering of discretion and breach of statutory directors duties and the no conflict and no profit rules) is not an available formulation and that no question of ratification would have arisen. It is not necessary to determine the correctness of that submission, and it is preferable not to do so where the parties gave little attention to whether the proposed transactions were consistent with basic corporate law principles limiting the power of company directors to divert corporate assets to themselves.
Mr Cook also addresses a fourth and fifth possible terms, that both directors would use best or reasonable endeavours or act in good faith to cause Matcove to seek to have that block subdivided and transferred to Mr Fuller, and that both directors would use best or reasonable endeavours or act in good faith to cause Matcove to seek to have that block subdivided and transferred to Mr Fuller, provided it was in Matcove's interest at the relevant time and subject to any necessary shareholder ratification. Mr Cook submits that: "To the extent that the fourth and fifth terms seek to temper the absoluteness of ASOC 44, that would only qualify ASOC 44, not negate it nor cause it to be rejected on the basis of the third test in BP Refinery. But there is no reason to temper the implied term contended for by ASOC 44 by limiting performance to reasonable endeavours. There is no suggestion in the evidence that the parties contemplated that it might not be possible to divide the land in the way that they set out at [the Page 552 Agreement]. Nor is there any evidence to suggest that such an impossibility existed at the time in any event. And the evidence shows it is still possible to do so, 16 years later."
I do not accept that submission, where it seems to me that the parties, in balancing their respective interests, could reasonably have recognised that it would be imprudent for Matcove, still less its directors jointly or individually, to accept an unqualified obligation to deliver a subdivision which they could not achieve without third party approvals. As Mr Newlinds pointed out, neither Mr Fuller nor Mr Albert could himself "cause" subdivision of the relevant block where that depended upon approval by the council or the Minister for Planning of the relevant subdivision. That is not to say they could not have chosen to accept an absolute obligation of that kind (although they did not do so, by any express term of the Page 552 Agreement) but it does emphasise that it was neither obvious nor necessary that they do so.
For these reasons, I am not persuaded that this term pleaded in paragraph 44(d) of the Amended Statement of Claim can be implied in the Page 552 Agreement, on either the approach adopted in BP Refinery or the more open approach adopted in Hawkins v Clayton, because the particular term for which the Plaintiffs contend is neither necessary nor obvious nor, in the language of Hawkins v Clayton, can it be seen that "implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case". That results from the existence of several alternative terms that might have reflected an appropriate balancing of the parties' interests in the circumstances. Where there are multiple alternatives for such a clause, and several of them are reasonable, then no particular version of that clause is so obvious that it goes without saying or necessary to the operation of the contract. That approach would not have prevented the parties reaching agreement, not only as to their common purpose but also as to the obligations which they would assume to bring it about, but does have the consequence that, to do so, they had to determine for themselves which of several approaches would best achieve their contractual purpose, where several approaches were available and no single approach was either obvious or necessary to the exclusion of the alternatives to it. No term can be implied to make a choice between reasonable alternatives that the parties did not make for themselves.
The Defendants also submit that Mr Fuller has not demanded that Mr Albert perform his obligation pleaded at paragraph 44(d) of the Amended Statement of Claim. There is substantial force in that submission, given Mr Fuller's contradictory evidence in that regard to which I referred in paragraph 39 above. However, it is not necessary to reach a final view as to that matter, given that the implied term on which the Plaintiffs rely has not been established.

Intention to enter legal relations and uncertainty

The Defendants raised issues as to the intention to enter legal relations and uncertainty in both their opening and closing submissions. In opening submissions, the Defendants deny that the Page 552 Agreement constitutes a legally enforceable agreement and contend that it is, at best, an agreement to agree as the time for performance is at large. They submit that it does not provide certainty as to the location of any parcel of land to be allotted to Mr Fuller or to its size or its price.
I deal first with the question whether it is open to the Defendants to raise this issue. Mr Cook submitted that there is no attack in the pleadings on the Page 552 Agreement as not giving rise to legal obligations or as uncertain and also submitted that that issue was not open to the Defendants on the pleadings. Mr Cook also submitted that there is no dispute that the Page 552 Agreement was reached and that the oral part of that Agreement arose as far back as 1992. While it is plainly common ground that there were a series of arrangements between the parties dating back to 1992, and it is common ground that that the parties executed the Page 552 Agreement, the Defendants responded to the Plaintiffs' pleading of the Page 552 Agreement with, inter alia, a general denial. It seems to me that denial was sufficient to put in issue the questions of intention to enter legal relations and uncertainty. Those questions raised no new issue of material fact and no legal issue which would cause surprise or (as Mr Cook fairly accepted in closing) any prejudice to the Plaintiffs in the conduct of the case, where the terms of the Page 552 Agreement were already in issue. Mr Cook also contends this issue was not raised because the Defendants raise a defence that the agreement relied upon by the Plaintiffs was varied or completed. While such a defence is advanced, it does not seem to me to exclude the pleaded denial of the alleged agreement, and must necessarily be read in the alternative, rather than as an implied admission of an agreement that the Defendants had expressly denied.
I now turn to the issues as to, first, intention to enter legal relations and, second, as to uncertainty. Mr Newlinds submits that an objective assessment of the state of affairs between the parties is required in order to determine whether there was an intention to create legal relations, and that relevant factors include the subject matter of the agreement, the status of the parties to it, their relationship to one another and other surrounding circumstances: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [25]; Ashton v Pratt [2015] NSWCA 12; (2015) 88 NSWLR 281. He also submits that the act of signing is not determinative of an intention to create legal relations, and is merely one circumstance to be considered in the overall matrix: Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168 at [49]-[50].
In The Edge Development Group Pty Ltd v Jack Road Investments Pty Ltd [2018] VSC 326 at [43]ff, Riordan J helpfully summarised the principles applicable to determining whether an intention to enter legal relations is established as follows (omitting citations): "The Court ascertains objectively whether there was an intention to create contractual relations by asking what each party, by words and conduct, would have led a reasonable person in the position of the other party to believe. The circumstances that are properly taken into account 'are so varied as to preclude the formation of any prescriptive rules'. However, when the issue is whether parties intended to be bound by a single document, it is 'to be determined, objectively, from the text of the document, construed in the context of the circumstances in which it came into being'. In any event, when undertaking the determination as to intention: (a) what is considered is that which is 'objectively … conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened'; and (b) what is not considered are the uncommunicated subjective motives or intentions of the parties, which are irrelevant. The utility of presumptions has been strongly doubted; but matters that have been considered relevant in undertaking this determination have included the following: (a) Where the disputed agreement is in writing, the words used by the parties must be the strongest indicator of whether the parties intended to be legally bound. If, on proper construction of the document, it is sufficiently clear that the parties were content to be bound immediately, then the matter is resolved irrespective of the subject matter, magnitude or complexity of the transaction or whether the parties contemplated a further contract in substitution for the first contract. (b) Whether the informal agreement is expressed to be 'subject to contract' or the absence of such words. (c) The presence of the parties' signatures on a document said to contain the terms of the agreement suggests an intention to form binding relations; though the effect of the signature cannot, of itself, give rise to a binding agreement if the terms of the signed document do not otherwise support the characterisation of the agreement as binding. (d) The detail of the terms, to which the parties descended in the informal agreement, may indicate whether the parties did or did not intend to be immediately bound. … (e) An informal agreement which deals with a transaction of great magnitude or complexity 'may suggest that the informal agreement was not intended to constitute a binding contract'. (f) The established or common practice with respect to agreements of the type in question may indicate that the parties did not intend to be finally bound until the completion of a formal contract. An example of such a practice is with respect to the sale of real estate. (g) The fact that the parties did not use solicitors for the informal agreement but proposed to do so for the formal contract, may be a factor indicating that the parties did not intend to be bound by the informal agreement."
Mr Newlinds submits that the "mudmap" was not intended to create legal relations. He points to the absence of steps taken by Mr Albert or Mr Fuller to preserve the Page 552 Agreement such that it was easy to locate, the absence of specific reference to it in subsequent correspondence, the fact that stamp duty was not paid on it, the way in which Matcove's interest was addressed in it, the absence of involvement by solicitors and its informal character as matters suggesting a lack of intent to enter legal relations. The Defendants also question the circumstances in which the signatures were placed on the Page 552 Agreement, and point to the existence of other versions, not signed by both parties, in somewhat different terms. While there is considerable uncertainty as to that matter, I am not persuaded that I could find that either Mr Albert or Mr Fuller had not signed the document prior to February 2004, and it seems to me that the signature and apparent witnessing of the document is consistent with, although not determinative of, an intent that it have legal effect. The Defendants also refer to a question as to the Statute of Frauds which is not raised by the pleadings and which I do not further address. Mr Cook responds that the apparent formality of that document, including the steps taken to identify the parties and witness their signatures, and its attempt to specify at least some of the terms of the parties' relationship, is indicative of an intent to create legal relations.
I recognise that the Page 552 Agreement was apparently signed by Mr Albert and Mr Fuller at different times, and they later gave little attention to its terms in circumstances that there was ongoing discussion as to how Mr Fuller's claim to a lot would be addressed. Neither party appears to have taken steps to preserve it so that it could be readily found or to pay stamp duty on it when it was executed. However, those matters are not inconsistent with an intent to be bound by that document when it was executed, and arguably reflect an informal approach to administrative matters and the need to take account of later developments in the subdivision proposal in considering how any lot should be allotted to Mr Fuller. It seems to me that that document has a degree of formality about the identification of the parties and its terms and the parties took steps to execute it and have their signatures witnessed in a formal way. On balance, although with hesitation, it seems to me that the formality of the document indicates an intention to enter legal relations.
I now turn to the question of uncertainty. While contending that no question of uncertainty was open on the pleadings, the Plaintiffs submitted, by reference to authority, that Courts will seek to uphold commercial parties' bargains reflected in their agreements. That proposition is, of course, so well established that it is not necessary to address the many cases that establish it, although it does not have the consequence that all agreements are certain and none are uncertain. The Plaintiffs also submit, again by reference to authority, and I accept, that the Courts will seek to uphold commercial parties' bargains where the parties have acted on the relevant agreement. The Plaintiffs also submit by reference to the decision in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437 that there is a distinction between the difficulty of interpretation and absence of meaning and that the Court will consider whether a contract is so obscure or imprecise that it does not reveal a particular contractual intention. The Plaintiffs also submit, again by reference to authority, that the Court may have regard to extrinsic evidence to determine the question of certainty of the terms of a contract. Mr Cook in turn draws attention to the observations of the Court of Appeal of the Supreme Court of Queensland in Brice v Chambers [2014] QCA 310 at [138]ff, that: "The fact that there is a lack of clarity in what the parties had said and a measure of difficulty in defining the extent of the parties' rights and obligations under a contractual term does not lead, necessarily, to the conclusion that the term is uncertain." The Court of Appeal there also emphasised, consistent with the principles to which I have referred above, that Courts strive to uphold commercial bargains wherever possible.
I summarised the relevant principles in Re Leslie Muir Holdings Pty Limited [2019] NSWSC 1519 at [37]-[38] as follows: "The case law requires that the language used in a contract be "certain in the sense that it provides a criterion by reference to which the rights of the parties may ultimately and logically be worked out, if not by the parties then by the courts": Thorby v Goldberg (1964) 112 CLR 597 at 607; Council of the Upper Hunter County District v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 at 437; Braude v Kaye [2013] VSC 705 at [321]. A contract may be void for uncertainty where, inter alia, various meanings are open and it is impossible to say which one of them was intended: Brown v Gould [1972] Ch 53 at 61-2; Braude v Kaye above at [321]. On the other hand, in G Scammell & Nephew Ltd v Ouston [1941] AC 251 at 268, Lord Wright observed that: "the court will do its best, if satisfied that there was an ascertainable and determinate intention to contract, to give effect to that intention, looking at substance and not mere form. It will not be deterred by mere difficulties of interpretation. Difficulty is not synonymous with ambiguity so long as any definite meaning can be extracted. But the test of intention is to be found in the words used. If these words, considered however broadly and untechnically and with due regard to all the just implications, fail to evince any definite meaning on which the court can safely act, the court has no choice but to say that there is no contract." A contractual provision will not be void for uncertainty merely because its language may admit more than one possible meaning or because, when construed, the application of the provision may produce more than one result, unless the Court is unable to attribute to the parties any particular contractual intention or to determine its meaning upon the proper application of the principles of construction: G Scammell & Nephew Ltd v Ouston above; Council of the Upper Hunter County District Council above at 436-7; Brown v Gould above at 61-2; Braude v Kaye above at [336]ff. The Court will endeavour to give effect to a contract reached between businesspeople, even if its terms are not fully or well stated, although whether the parties have expressed their agreement carefully is a matter relevant to whether they have entered into an agreement, and the Court should seek to put a fair meaning on a contractual provision unless it is impossible to do so: Council of the Upper Hunter County District above at 436; Hammond v Vam Ltd [1972] 2 NSWLR 16 at 18; Sagacious Procurement Pty Ltd above at [73]; Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98 at [143]. The omission of a term of a contract will also not render the contract incomplete and uncertain, and therefore void, unless the term is essential: Australian Goldfields NL (in liq) v North Australian Diamonds NL above at [140]."
In closing submissions, Mr Cook submitted that the Page 552 Agreement adequately identified the land to be acquired by Mr Fuller by defining the size of land by reference to the ratio of 60:40 and by depicting, roughly, the location of each block on a map. Mr Cook recognised that the document did not expressly state the size of Mr Albert's or Mr Fuller's blocks, but fairly submitted that the size of Mr Fuller's block could be determined by the relevant ratio once a block had been allocated to Mr Albert. Mr Cook also submitted that, although the Page 552 Agreement uses the language "roughly depicted" it is at least apparent that the land Mr Albert was to receive was located in the upper north east quarter of lot 7 and that the flexibility indicated by the term "roughly indicated on the map" did not create uncertainty. Mr Cook also submitted that there was no uncertainty as to the time at which the Page 552 Agreement was to be performed, where it provided that the subdivision should take place "at the convenience of the new owners". Mr Cook accepts that the time for Mr Fuller to take up the benefit of that agreement was not wholly open-ended, because the agreement could only be performed while Matcove was the owner of the land and the parties contemplated that Matcove would eventually sell the land since it had acquired it for development purposes.
Mr Newlinds submits that essential terms were not agreed between the parties in the Page 552 Agreement and that it constituted an agreement to agree, or a record of the parties' future intentions to cooperate and facilitate each other's future actions, or a "gentlemen's agreement". He points to the range of further actions that would be required, including lodgement of development applications for subdivision of the blocks, approval by the Council or the Minister for Planning or the Regional Planning Panel of such applications, registration of a subdivision and consent to and registration of any transfer of subdivided blocks. He submits that the Page 552 Agreement does not specify the timing of those steps, beyond stating that preparation and lodgement of an application for subdivision would take place at Mr Fuller's or Mr Albert's convenience. He also submits that several terms of the Page 552 Agreement lack sufficient certainty and that the consequence is that the location and size of the land that are the subject of the Page 552 Agreement are not clear, unequivocal or specified and the time for any preparation, lodgement and approval of subdivision or transfer in the future is not specified, and that these are essential terms of the agreement. He also points to the parties' "fluid approach" in later discussions as to the block to be allocated to Mr Fuller.
On balance, it seems to me that the Page 552 Agreement is sufficiently certain, for reasons that I have addressed in dealing with its pleaded terms, other than possibly in respect of the position as to any price to be paid by Mr Fuller and Mr Albert for their respective lots. As I noted above, the Defendants also submit that the Page 552 Agreement is uncertain as to price. Mr Cook responded that the absence of an express reference to price in the Page 552 Agreement was less significant in an acquisition of land by subdivision than in respect of a transfer of land. That does not seem to me to be a distinction of substance, where in either case Matcove would part with an asset of value for the benefit of Mr Albert or Mr Fuller.
I noted above that I was inclined to the view that the pleaded oral term as to consideration was not established, but that it was not necessary to reach a final view as to the question given the other findings that I have made. If that term was not established, the Page 552 Agreement did not otherwise indicate whether any payment was required by Mr Fuller or Mr Albert to acquire the relevant parcels, since numbered paragraph 3 dealt with costs incurred in respect of the relevant blocks rather than any amount payable to Matcove to acquire those blocks. Several different approaches could have been adopted as to such a payment. A first possibility is that a lot could have been allotted (subject to company law considerations) to Mr Fuller or Mr Albert for no further payment. That appears to have been the parties' common intention until Mr Fuller permitted Mr King to assert the contrary and then alleged, in the initial form of these proceedings, that the allotment of Mr Albert's lot for no payment breached Mr Albert's duties as a director of Matcove. Alternatively, a lot could have been allotted to Mr Fuller or Mr Albert for a price referable to the value of the lot at the time of the parties' informal arrangements reached in the 1990s or at the date the Page 552 Agreement was dated or the different date it was executed by one or both parties or at current market value at the date of a transfer. The case law establishes that the absence of a provision specifying the price within a contract will commonly deprive that contract of certainty: Australian & New Zealand Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695 at 700-701. It seems to me that the Page 552 Agreement was likely too uncertain to have contractual effect, if the pleaded oral term as to consideration was not established. However, it is also not necessary to reach a final view as to that question given the findings that I have reached on other grounds.

The Defendants' other defences

The Defendants also plead many other matters by way of defence and, as will emerge below, it is doubtful that any defence that could be found in a contracts or equity text has not been invoked by them. It is not necessary to deal with these numerous defences in detail, given the findings which I have reached above, and I will address them only briefly.
The Defendants plead variously that an agreement had previously been reached between Mr Albert and Mr Fuller as to the terms on which they would receive subdivided parts of the Moonee Beach land from Matcove for no payment as set out in Mr Albert's affidavit of 9 February 2018; that agreement had subsequently been varied, and included that Mr Albert would proceed with lodging a development application first and prior to Mr Fuller; the document annexed to Mr Fuller's affidavit (comprising the Page 552 Agreement) recorded the agreement that was already in place and was subject to the terms pleaded by the Defendants; and it was subsequently superseded and/or varied by other matters, including circumstances in December 2016 in which Mr Fuller demanded that Mr Albert pay for Lot 2 of the relevant property and Mr Albert did so (Amended Defence [29]).
In opening submissions, the Defendants indicated that the many alternative defences reflected a single proposition that the parties had subsequently acted inconsistently with the Page 552 Agreement such that it had been varied, superseded, abandoned, waived or repudiated or an estoppel operated to prevent Mr Fuller relying upon it. The Defendants there refer to steps taken by Mr Fuller in respect of his application in relation to his own lot which was not substantially progressed for many years and the fact that Mr Fuller was involved in the preparation of an application for approval of a state significant development on the land on behalf of Matcove, which Mr Newlinds submits is inconsistent with the maintenance of an entitlement to land within lot 1 of the property for Mr Fuller, because that development application seeks the maximum number of lots and land to be utilised. The Defendants also refer to the allegations made by Mr King on Mr Fuller's behalf in December 2016, and submit they caused Mr Albert to pay the consideration nominated in the contract for the sale of lot 2 to Moonee Developments; and also refer to the fact that Mr Fuller had originally alleged fraud, breach of fiduciary duties and directors' duties and knowing receipt by reason of the allotment of lot 2 for no consideration to Mr and Mrs Albert, when these proceedings were commenced, before reversing his position in the amendments made in May 2019.
In closing submissions, the Defendants similarly rely on similar facts for legal propositions formulated from the multiple alternative defences, namely the claim that from November 2005 Mr Fuller has acted inconsistently with any entitlement to a block of land out of the property for no consideration, by taking no active steps to pursue his own development application since Mr Albert's development application was approved at that time; taking no steps to seek his own block of land since his development application, which had been suspended for some years, was rejected in January 2010; being involved in the preparation of the state significant development application on behalf of Matcove; advancing, or permitting Mr King to advance, the allegations made in December 2016, which caused Mr Albert to pay the stated contract price for his lot; and making the allegations originally advanced in the earlier version of these proceedings. There is dispute at least as to whether the state significant development application is necessarily inconsistent with the allotment of the lot claimed by Mr Fuller under the Page 552 Agreement; whether Mr King's allegations, in which Mr Fuller acquiesced, can be treated as made by Mr Fuller; and whether Mr Fuller sought the payment of consideration for the land as distinct from advancing allegations for fraud and breach of duty based on its non-payment. I have addressed those matters above.
The Defendants generally deny (Amended Defence [34(a)]) the allegation (ASC [47]) that the Page 552 Agreement subsists and continues. The Defendants then plead that the Page 552 Agreement was completed by 6 January 2010 (Amended Defence [34(b)]). Mr Newlinds submits that the Page 552 Agreement is at an end, in that it does not permit multiple applications before the parties' obligations end, by reason of Mr Fuller's unsuccessful development application lodged in 2004 and rejected in January 2010. That submission has the difficulty that Mr Fuller did not then seek a subdivision of a separate block, but approval to erect a house on the existing block. The Defendants also submit that Mr Albert had discharged any obligation of cooperation at the time Mr Fuller previously pursued a development application for the land prior to 2010. Mr Cook rightly responds that the Amended Defence refers (consistent with Mr Fuller's evidence) to the rejection of an application for subdivision of the land, whereas Mr Fuller had lodged a development application to construct a house on the block in 2004. In any event, it seems to me that Mr Cook is correct that the Page 552 Agreement (if it was otherwise enforceable) was not completed at that date, where Mr Fuller had not received the benefit of that agreement at that date. It is not necessary to reach a final view as to this defence given the other findings that I have reached above.
The Defendants then plead (Amended Defence [34(c)]) that Mr Fuller's original statement of claim alleged that Mr Albert was not entitled to a transfer of his lot and plead that any agreement between Mr Fuller and Mr Albert was superseded or varied (Amended Defence [29(b)(v)], [34(d)]). The Defendants put their submission as to variation by reference to the parties' subsequent conduct, Mr Fuller's development application and the subsequent discussions of alternative approaches to the allotment of a lot to Mr Fuller and refer to Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570. They submit that consideration existed for such variations in the increase in the value of lot 1 of the property by reason of a development application. An obvious difficulty with that submission is that Matcove, rather than Mr Fuller directly, would benefit from such an increase, which does not appear to be consideration in any contractual exchange.
Mr Cook points out that the present form of development application appears to have been lodged in March 2009 and that the Defendants appear to rely on Mr Fuller's continued involvement with the development application after his application to build a dwelling on lot 2 was refused by the council in January 2010. Mr Newlinds submits, and I accept, that the steps taken in respect of the subdivision of the land from 2009 appear to have been inconsistent with reserving a substantial block for Mr Fuller and, in particular, the plans for the allotment of a substantial number of smaller blocks were inconsistent with the allocation of that large block to Mr Fuller. However, it seems to me that there is substantial force in Mr Cook's submission that these matters do not identify any particular variation of the Page 552 Agreement and raise the same issues as the Defendants' claim that Mr Fuller has abandoned the Page 552 Agreement or his rights.
Mr Cook submits that, even if the conversation between Mr Fuller and Mr Albert between 2010 and 2013 relating to a value adjustment instead of a transfer of land to Mr Albert took place (as I have found), it did not amount to a variation of the Page 552 Agreement or an enforceable agreement because it was too vague and not reduced to writing. Little turns on the further discussions in 2013 because, as Mr Cook points out, there was no agreement at that point between Mr Fuller and Mr Albert as to whether 2 or 3 lots from the proposed subdivision should be transferred to Mr Fuller. It is not necessary to determine these matters given the findings that I reach on other grounds.
So far as the Defendants rely on the steps taken by Mr King at the meeting in December 2016, Mr Cook responds that an allegation of impropriety was made by Mr King; that no demand for payment was made by Mr Fuller or Mr King; and that Mr Fuller, at least, appears to have maintained the allegation of impropriety against Mr Albert rather than accepting that any payment would resolve it. Although it is also not necessary to decide this issue, given the other findings that I have reached above, it does not seem to me that these matters gave rise to any variation of the Page 552 Agreement where, as I noted above, I am inclined to the view that that agreement did not specify whether any payment was required by Mr Fuller or Mr Albert in respect of their respective lots. The position then taken by Mr King on Mr Fuller's behalf was, however, fundamentally inconsistent with the position now advanced by Mr Fuller that no payment was required in respect of those lots.
The Defendants plead that the Page 552 Agreement was repudiated by Mr Fuller (Amended Defence [34(e)]). Mr Newlinds submits that Mr Fuller's conduct, particularly in the allegations made from December 2016 and in the initial form of these proceedings, amounted to repudiation so far as it would convey to a reasonable person in Mr Albert's position a renunciation of the Page 552 Agreement, and insistence instead on a requirement for Mr Albert to pay for his lot in accordance with the sale contract for that lot. In opening submissions, Mr Cook submits that Mr Fuller's conduct on 1 December 2016 did not repudiate the Page 552 Agreement, on the basis that Mr Fuller did not deny the existence of the Page 552 Agreement (and, on Mr Bailey's evidence, confirmed the existence of the Agreement and that Mr Albert had no obligation to pay for the block) and did not give any indication that he would not perform the Page 552 Agreement on its terms.
I proceed on the basis that, as Lord Wright noted in Ross T Smyth & Co Ltd v TD Bailey Son & Co [1940] 3 All ER 60 at 71, repudiation of a contract is a "serious matter, not to be lightly found or inferred". It is uncontroversial that repudiation involves an expressed unwillingness or inability to render substantial performance of a contract: Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 at 659; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 at [44]. In JW Carter, Carter's Breach of Contract, LexisNexis Butterworths (2011) at [8-04], the author notes, by reference to authority, that it is sufficient to establish repudiation that a promisor has behaved in such a way as to indicate a refusal to perform to a reasonable person in the promisee's position. In Southern Cross Autoglass Pty Ltd v Protector Glass Industries Pty Ltd [2014] NSWSC 261 at [123], Kunc J summarised the relevant legal principles as follows: "The relevant legal principles are not in doubt … A party will be taken to have repudiated a contract if it manifests the intention no longer to be bound by it or to fulfil it only in a manner substantially inconsistent with that party's obligations and not in any other way. That manifestation may occur before performance is due (known as anticipatory breach) and does not depend upon the existence of an actual intention to repudiate. Rather, the Court looks to how a reasonable person, in the position of the "innocent" party, would view the allegedly repudiatory conduct." I adopted that summary in Vanguard Financial Planners Pty Ltd & Anor v Ale [2018] NSWSC 314 at [228], from which I have drawn the outline of principles that appears above.
On balance, it seems to me that Mr Fuller's conduct at the December 2016 meeting and in surrounding correspondence, in permitting Mr King to allege that, and himself raising issues as to whether, transfer of the lot to Mr and Mrs Albert amounted to fraud, did amount to a repudiation of the pleaded Page 552 Agreement, to the extent that it included an alleged oral term that the transfer was for the stated consideration and, implicitly, did not require further payment. (No question of repudiation would arise other than on that basis, since the pleaded agreement and the relief claimed by Mr Fuller both depend on no consideration being payable.) It is not to the point that Mr Fuller may have acknowledged the existence of the agreement or its terms to Mr Bailey, at the same time as permitting Mr King to put the position that it amounted to fraud for Mr Albert to take a transfer of the lot without payment. It is also not to the point that Mr King or he relied on the statement of consideration in the sale contract between Mr and Mrs Albert and Matcove or in the transfer form, where an obligation to make that payment would be inconsistent with the pleaded oral term as to consideration in the Page 552 Agreement. It is not to the point that, as Mr Fuller claimed in cross-examination, he may have been confused by advice given by Mr King or others, where repudiation does not depend on his subjective intention, still less on whether he was well-advised in acting as he did. The position that Mr Fuller permitted Mr King to take at the December meeting, and himself took in surrounding correspondence, manifested an intention no longer to be bound by a critical term of the pleaded Page 552 Agreement (if that term was established), namely that the transfer of the lots to Mr Albert and Mr Fuller was to take place for the pleaded consideration and, by necessary implication, would not require further payment by Mr and Mrs Albert or Mr Fuller, or to fulfil it only in a manner substantially inconsistent with his obligations, that Mr and Mrs Albert made a payment of $175,000 for their block. A reasonable person, in the position of Mr Albert, would plainly view that conduct as radically inconsistent with the pleaded terms of the Page 552 Agreement and as a refusal by Mr Fuller to recognise or comply with its terms. That is sufficient to establish repudiatory conduct.
Mr Cook also submits that it is not pleaded that the repudiation was accepted or an election to terminate the Page 552 Agreement was conveyed to Mr Fuller. There is nothing in the pleading point where the Plaintiffs and their legal representatives could have been in any doubt that the repudiation defence, and the acceptance of repudiation implicit in it, was squarely raised. The nature of the conduct amounting to acceptance of the repudiation was also obvious enough. It seems to me that repudiation was accepted by Mr Albert, together with Mrs Albert, paying the consideration of $175,000 stated in the sale contract and transfer for their lot to Moonee Developments. It was again accepted when Mr Albert took the understandable view that, it Mr Fuller would not recognise any right on Mr Albert's part to a transfer of the lot without payment, Mr Albert would not recognise any corresponding right of Mr Fuller.
The Defendants also submit that the Page 552 Agreement was waived or abandoned (Amended Defence [34(f)], [40(d)]). A waiver can occur where there is "an intentional act, done with knowledge, whereby a person abandons a right by acting in a manner inconsistent with that right, or where a conclusive step securing one outcome is taken in a way that is incompatible with attainment of the alternative outcome": Agricultural and Rural Finance Pty Ltd v Gardiner above at [56]; Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 29 at [361]; Gupta v Fordham Laboratories Pty Ltd [2018] NSWSC 551 at [163], [229]. As to abandonment, Counsel referred, inter alia, to Summers v Commonwealth (1918) 25 CLR 144; Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420; DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423 at 434; CGM Investments v Chelliah [2003] FCA 79 at [21]-[23] and Gupta v Fordham Laboratories Pty Ltd above.
In Fitzgerald v Masters above at 432, Dixon CJ and Fullagar J observed that the inference of abandonment will be drawn where an "inordinate" length of time has been allowed to elapse during which neither party has attempted to perform or called on the other to perform and that: "What is really inferred in such a case is that the contract has been discharged by agreement, each party being entitled to assume from a long-continued ignoring of the contract on both sides that … 'the matter is off altogether'".
In Ryder v Frohlich [2004] NSWCA 472 at [135]-[137], McColl JA (with whom Hodgson and Ipp JJA agreed) similarly observed that: "Where it is plain from the conduct of parties to a contract that neither intends that the contract should be further performed the parties will be regarded as having so conducted themselves as to abandon or abrogate the contract … Whether there is abandonment or abrogation of a contract is a matter of fact to be inferred from an objective assessment of the conduct of the parties … The underlying premise of the abandonment cases is that a period of time elapses during which neither party to the contract manifests any intention to perform the contract, leading to the inference that the contract has been abandoned." [citations omitted]
Mr Cook submits that an argument as to abandonment is undermined when one party has already performed part of the relevant agreement and that actions said to amount to abandonment need to be unequivocal: Fitzgerald v Masters above; Cheetham v 805 Archer Road Pty Ltd [2015] VSC 96. I recognise that abandonment may be established where, for a period of time, neither party takes and steps to perform a contract: DTR Nominees Pty Ltd above; Gupta v Fordham Laboratories Pty Ltd at [162].
The Defendants rely on the conduct to which I have referred above as a waiver or abandonment by Mr Fuller of any entitlement to his own block of land, and submit that the parties' conduct indicated that neither intended the Page 552 Agreement should or would be further performed, given the length of time that has elapsed. Mr Newlinds submits that the lodgement of the present plans for subdivision of lot 1 evinced an intention on the part of Mr Fuller to abandon any rights under the Page 552 Agreement. I accept that the evidence indicates that the allotment of a lot, or several lots, to Mr Fuller would undermine the present State Significant Development application, and potentially deprive it of that character so far as it would reduce the number of lots to be allocated, and would also require additional costs to be incurred in amending the application, if it was possible to do so. I am not persuaded that that matter gives rise to any waiver or abandonment of any rights which Mr Fuller otherwise had under the Page 552 Agreement, had such rights been established, as distinct from being a matter that may well have been relevant to whether an order for specific performance should have been made.
I am inclined to think that the defences of waiver or abandonment add little to the claim for repudiation, and it is not necessary to reach a final view as to those defences given the conclusions that I have reached on other grounds.
The Defendants also rely on election (Amended Defence [34(g)]) and release (Amended Defence [34(h)]). Mr Newlinds submits that Mr Fuller's conduct unilaterally released Mr Albert of any obligation he still had under the Page 552 Agreement, where that obligation is solely for Mr Fuller's benefit, referring to Agricultural and Rural Finance Pty Ltd v Gardiner above. He submits that Mr Fuller's failure to insist on the allotment of a block to him, and his maintaining a claim that Mr Albert had no basis or entitlement to lot 2 of the property without the payment of its value, constituted a unilateral release by Mr Fuller of any obligation of Mr Albert to cause Mr Fuller to obtain a subdivided lot in the property. It seems to me that there is significant force in Mr Cook's submission that no question of election between alternative remedies arose from those matters. I would be inclined to accept Mr Cook's further submission that the defence of release does not raise any matter that is not raised in respect of the questions of waiver and abandonment which I have addressed above, and that no consideration was given or promised by Mr Albert for any release. It is also not necessary to determine that issue where Mr Fuller has failed on other grounds.
The Defendants also rely on estoppel (Amended Defence [34(i)]) which appears to be put as a form of promissory estoppel in equity arising from a representation made by Mr Fuller to Mr Albert. It seems to me that that defence would not be established because, as Mr Cook points out, the evidence does not establish the pleaded representation by Mr Fuller that he was not entitled to and did not wish to receive a subdivided part of the property and that Matcove was under no obligation to cause that subdivision. It is not necessary to address other aspects of the suggested estoppel, where the pleaded representation underlying that estoppel is not established and given the other findings that I have reached above.
The Defendants also rely on a limitations defence (Amended Defence [40(a)]) and laches (Amended Defence [40(b)-(c)]). Mr Newlinds advances elaborate submissions that the statute of limitations would apply by analogy, on the basis that any refusal by Mr Albert to perform the allotment occurred as early as 2008 or in 2010. While that may be formulated as an alternative case, it is radically inconsistent with the Defendants' substantive case that there was no demand for an allotment of a lot to Mr Fuller and no refusal by Mr Albert in that respect. Happily, it is not necessary to decide that claim given the other findings that I have reached above. It is also not necessary to decide the Defendants' further alternative defence based in laches in respect of claims for equitable relief.

The Plaintiffs' claim to specific performance

The Plaintiffs plead (ASC [48]-[49]) that Mr Fuller is, and has at all times been, ready, willing and able to perform the Agreement and is entitled to specific performance by Mr Albert (and, to the extent necessary, Matcove) of the Agreement or damages in lieu of specific performance. I recognise that the starting point in an application for specific performance is, if a contract is enforceable and damages are inadequate, an applicant is prima facie entitled to specific performance of a valid and enforceable contract: ICF Spry, Principles of Equitable Remedies (2009), 204; Fullers' Theatres Ltd v Musgrove (1923) 31 CLR 524 at 548-549; Gupta v Fordham Laboratories Pty Ltd above at [234].
In opening submissions, Mr Cook submits that the "unique nature" of Mr Fuller's block and its "personal value" to Mr Fuller are such that specific performance should be ordered, rather than damages in lieu of specific performance. In closing submissions, Mr Cook addresses what would be required in an order for specific performance and submits that the Court must first determine whether the Page 552 Agreement is on foot and then determine whether it should order that it be specifically performed. Mr Cook submits that, if the Court were to order that the agreement be specifically performed, it would simply make an order to that effect and then direct that the parties provide proposed directions to give effect to that order. Mr Cook then identifies several steps which would be necessary to give effect to such an order.
Mr Cook accepts, in dealing with the claim for specific performance, that the terms pleaded at paragraph 44 of the Amended Statement of Claim would impose only one obligation on Mr Albert and Matcove, being the obligation pleaded at paragraph 44(d) of the Amended Statement of Claim. Mr Cook also submits that the obligation pleaded at paragraph 44(d) of the Amended Statement of Claim requires Mr Albert to cause Matcove, with Mr Fuller's assistance, to subdivide Mr Fuller's block from remainder of lot 1. I have noted obvious alternatives to that term above and I am not satisfied that the term for which the Plaintiffs contend can be implied. An order for specific performance could not be made where I have held that the pleaded obligation is not established. As I noted above, no allegation that Mr Albert breached any wider duty of cooperation was made or established on the evidence and a breach of that duty would not have supported an order for specific performance in the form sought by Mr Fuller in any event.
Mr Newlinds submits, and I accept, that Mr Fuller's previous challenge to Mr Albert's entitlement to a lot for no consideration from December 2016, and on the commencement of these proceedings, would be a factor tending against his being permitted to insist on specific performance of an entitlement for a lot for himself for no consideration: Fullers' Theatres Ltd v Musgrove above at 533, 545-546, 551. Mr Newlinds also submits that the Page 552 Agreement is not capable of specific performance because the time for performance has not arisen, there has been no breach by Mr Albert and, for the reasons raised in respect of defences that I will address below, Mr Fuller has repudiated the Page 552 Agreement. He also submits that several discretionary factors warrant the refusal of relief. I need not address those matters given the findings that I have reached on other grounds.

The Plaintiffs' claim to damages in lieu of specific performance

In closing submissions, Mr Cook submitted that, if the Court declined to order specific performance, Mr Fuller sought damages to be paid by Mr Albert in the first instance, and by Matcove if he failed to do so. Mr Cook in turn summarised evidence of Mr Loader as to the value of Mr Fuller's block, and recognised difficulties which might arise with that evidence, so far as the comparable sales on which Mr Loader had relied included land which already had development approval, which Mr Fuller's block does not. As Mr Cook recognised, aspects of Mr Loader's report were also criticised in the report of Ms Parkes, a valuer retained by the Defendants, who expressed the view that the value of Mr Fuller's block was $280,000, albeit at the time that Mr Albert took a transfer of his block rather than at present. The Defendants respond that no cause of action for damages can arise in the absence of an established breach of the Page 552 Agreement. This claim is also not established where I have held that the pleaded obligation in paragraph 44(d) of the Amended Statement of Claim is not established. As I noted above, no allegation that Mr Albert breached any wider duty of cooperation was made or established on the evidence.

The Plaintiffs' claim in unconscionability

The Plaintiffs also plead (ASC [51]) that, further or in the alternative, it is unconscionable for Mr Albert to retain the benefit of his block in specified circumstances and that Mr Fuller is entitled to equitable compensation from Mr Albert equal to the current value of Mr Fuller's block (ASC [51]-[52]). In closing submissions, Mr Cook put the claim for unconscionability as follows, and on the basis that it is alternative to the claim for specific performance or compensation in lieu of specific performance of the Page 552 Agreement: "On this hypothesis [Mr Albert] received a block of land in circumstances where [Mr Fuller], as the other director of Matcove, allowed the block to be transferred free of any consideration. [Mr Albert] only received this benefit on the assumption that [Mr Fuller] and he shared, namely that [Mr Fuller] would also receive a block of land. That mutual assumption, having falling away, renders it unconscionable for [Mr Albert] to maintain the benefit he has received under that assumption, to the detriment of [Mr Fuller] as a founding shareholder who has funded Matcove to acquire the land and develop it on the basis of the assumption."
The Defendants respond that there is no equitable cause of action at large for unconscionable conduct, although unconscionability may support specific claims in equity. They submit, and I accept, that the costs which both parties have incurred in acquiring the land, and taking steps for its development, should be treated as referrable to the development opportunity in respect of the land rather than to any proposal for allotment of a particular lot to Mr Fuller. There is also no detriment in Mr Fuller's previously permitting the transfer of a lot to Mr and Mrs Albert, particularly where it is not established that the consideration that Mr and Mrs Albert subsequently paid was not at least a fair approximation of the value of the land at the time of the transfer, albeit it was only paid when Mr Fuller first permitted Mr King to assert that such payment was required.
It seems to me that unconscionability is not established, even if it were capable of establishing a freestanding basis for relief. The first, and most obvious, difficulty with that contention is that the assumption for which Mr Cook contended was falsified by Mr Fuller, not Mr Albert, when he allowed Mr King to allege wrongdoing on the part of Mr Albert in acquiring the land for no consideration. Second, the proposition that Mr Fuller "allowed the block to be transferred free of any consideration" is also falsified, when the steps he subsequently permitted Mr King to take prompted Mr Albert to pay the amount recorded in the sale contract in respect of the land. Third, there is no unconscionability in Mr and Mrs Albert retaining land for which they had paid because of the steps taken by Mr Fuller and Mr King in that regard.
In closing submissions, Mr Cook also contended that the Defendants are estopped from disputing Mr Fuller's entitlement to a block of land, and contended that there are several representations in the earlier email correspondence to the effect that Mr Fuller would be allocated a block or several blocks of land, consistent with the wider understanding of the parties to which I have referred above. Although the Plaintiffs did not specifically plead a case of estoppel, that case is arguably consistent with their unconscionability case. It does not seem to me that such an estoppel is established. It would not be against conscience for Mr Albert no longer to support an allocation of a block of land to Mr Fuller without payment, where Mr King's and Mr Fuller's conduct in December 2016 caused Mr and Mrs Albert to pay the amount of $175,000 to Moonee Developments in respect of the acquisition of their block of land, and significant steps have subsequently been taken in respect of the subdivision of the land which would, at least, be put at risk by the relief now sought by Mr Fuller.

Orders

For these reasons, the proceedings should be dismissed. Where only Mr Fuller, and not the other Plaintiffs, sought substantive relief, my preliminary view is that he rather than the other Plaintiffs should pay those costs of the proceedings, as agreed or as assessed. I direct the parties bring in agreed short minutes of order to give effect to this judgment and as to costs within 7 days or, if there is no agreement between them, their respective draft orders and submissions as to the differences between them, not exceeding 8 pages in 12 point Arial font and one and a half spacing.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2020

Personal Property Security Act 2009(Cth)

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