dISCUSSION
64 Mr Clements bore the onus of establishing his claim to an interest in the assets of the Mews Scheme. As the Mews Receivers acknowledged, many of the relevant circumstances, including the events of 2000, were not within their knowledge.
65 The central issues arising under the application were correctly identified by the Mews Receivers as:
(a) Was there any legally binding agreement between Mr Clements and/or Mr and Mrs Atkins on the one hand, and, on the other hand, any other party, under which the other party promised to give any of those persons an interest in the Mews project?
(b) If so, what was the effect of any relevant agreement? In particular, did it give any of the Claimants an interest in the Mews Land?
(c) Whether Mr Clements had standing to make the claim on behalf of Mr and Mrs Atkins?
66 The 21 December 2011 orders concern claims against the assets of the Mews scheme. The Court is relevantly administering the fund produced by the sale of the Mews Land which is to be distributed between the persons entitled to it (ASIC v GDK Financial Solutions Pty Ltd (in liquidation) (No 6) [2010] FCA 1092 at [19]). Consistently with paragraph 9 of the orders of Finkelstein J winding up the scheme made 28 November 2006, the December 2011 orders do not concern claims to an interest in the partnerships that constituted the scheme (ASIC v GDK Financial Solutions Pty Ltd [2006] FCA 1415 at [22], [24] and [47]).
67 The Court is, as a result, engaged in a process of determining the persons with an interest in the proceeds of the sale of the Mews Land in order to distribute those proceeds.
68 The Mews Receivers set out their approach to recommending acceptance or rejection of claims on the fund constituted by the proceeds of sale of the Mews Land in paragraph 4.1 of their supplementary report dated 17 February 2012 (which substantially reiterated the methodology outlined in their 5 May 2007 report) as follows:
4.1 Methodology Used in Assessing Claims
In assessing claims received, we have adopted the following methodology:
1. If the amount claimed can be traced to the Michael Brereton & Co trust account, we have recommended that no further information be sought from the claimant.
2. If the amount claimed cannot be traced to the Michael Brereton & Co trust account, we have undertaken the following additional steps:
i. Claims by head partnerships:
• Sought documentation to evidence funds advanced.
ii. Claims by investors in sub-partnerships
• Ascertained whether the business of the sub-partnership was in respect of the Mews Land; and
• Sought documentation to evidence funds advanced.
If we have been able to satisfy ourselves with respect to each of these matters for each investor, we have recommended that no further information be sought from the claimant. In the alternative, we have requested further information which has not been received to date.
3. In some instances, the head partner has provided sufficient evidence to substantiate the claim on behalf of all of the respective sub-partners. In this instance we have assessed the head partner's claim. In circumstances where we have recommended that a claim by a head partner be accepted and we have also received claims from investors to the respective sub-partnership, we have recommended that, in order to avoid a duplication of claims, that the claims of the investors in the sub-partnership be rejected.
4. In the alternative, where the head partner has either not claimed or not provided sufficient evidence, we have assessed the claims of the respective sub-partners.
We consider this methodology allows all substantiated claims to be assessed.
69 As stated in my reasons given on 19 September 2012, that approach was reasonable in a context where the Mews Receivers were faced with a dearth of documentation.
70 As Mr Clements acknowledged that neither he nor Mr and Mrs Atkins (nor, apparently, any assignor of their interests) had contributed money, his claim could not, consistently with that approach, be recommended.
71 More fundamentally, while there is no reason to reject Mr Clements' assertion that he provided services at the behest of Mr Brereton, I was not persuaded that Mr Clements established any entitlement to a relevant interest. Claims based on interests in the partnerships, which were not wound up, are properly to be pursued against the relevant partners and would not constitute a basis for a claim pursuant to the December 2011 orders on the fund comprising the proceeds of sale of the Mews Land. Moreover, Mr Clements advanced no clear particulars of a claim to an interest in the partnerships which, in any event, could not be determined in the absence of the other members: News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524; John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [131]-[132].
72 As the Mews Receivers submitted, Mr Clements' claim was attended by great uncertainty and inconsistency. The articulation of the nature of the claim and the identity of the claimants fluctuated, both within the material filed in support of the present application and when that material was compared with previous affidavits sworn by Mr Clements.
73 In his submissions, Mr Clements sought to conflate the conceptually distinct interests in, on the one hand, the continuing partnerships and, on the other hand, the Mews Land, apparently contending that an interest in the former comprehended an interest in the latter. He nevertheless made clear that his claim was not based on an asserted interest in the partnerships, on which he relied only as evidence or "part performance" of the alleged oral agreement.
74 Despite its inconsistencies, the material filed by Mr Clements contains the following principal assertions:
(1) In early 1999, Mr Clements entered an informal agreement or understanding with Mr Brereton to provide services in relation to the identification and acquisition of land for a proposed retirement village project. Mr Brereton informed him that he was involved in the project with GDK.
(2) The terms of the agreement for services were that Mr Clements and Mr Atkins would perform specified services by a specified deadline and would pay their own associated out of pocket expenses, in return for a success fee, the quantum of which was not stated, although Mr Clements had an "understanding" as to its calculation and that he would be paid at settlement, from amounts which would be subscribed by investors in the project.
(3) Mr Clements and Mr Atkins completed the specified services and paid the out of pocket expenses. They also, at Mr Brereton's request, incorporated Mango to purchase the identified Mews Land, for which Mango entered a contract of sale in December 1999.
(4) In paragraph 31 of the annexure, Mr Clements refers to a relinquishment of all the interests of Mango and Messrs Clements, Atkins and Morton Smith (a previously unidentified person) in what he described as "the project" and the Mews Land, in return for other benefits, as part of a compromise.
75 Assuming that in June 2000 Mango had an interest in the Mews Land under the contract of sale, there was no apparent basis on which Mr Clements, Mr Atkins or any other individual had an interest in the Mews Land which they could relinquish.
76 The only asserted basis for an interest "in the project" which would be relinquished by some or all of the named persons was the oral agreement or understanding with Mr Brereton, whereby Mr Clements and Mr Atkins (although the latter was not asserted to be party to the understanding) would provide services in relation to "the project" for a payment of a success fee, the quantum of which was not stated, from funds which were to be subscribed by investors, contingent upon settlement occurring. Before me, Mr Clements confirmed that his interest in the Mews project as at June 2000 was an entitlement to his success fee.
77 On Mr Clements' evidence, the quantum of the success fee was not initially stated or agreed, and there was no evidence of, nor explanation for how, at what stage or by whom, the amount of the success fee was to be determined. Further, there was no evidence of, or explanation for, the basis on which Mr Morton Smith was entitled to a share of the success fee or any other interest (or for the basis on which Mrs Atkins was said to have replaced Mr Morton Smith as the person beneficially entitled to a third share of the relevant interest). Moreover, Mr Clements (and, by inference, Mr Atkins) as at June 2000 were, at the highest, merely contingent unsecured creditors of a party the identity of which is unclear. It was, perhaps, Mr Brereton, albeit Mr Brereton had identified subscribers' funds as the source of proposed payment.
78 Under the position as described by Mr Clements, neither he nor any other party had any enforceable entitlement to be paid for the services prior to negotiations with Mr Brereton in June 2000, as the contingency of settlement was not fulfilled, due to an insufficient subscription of investor funds.
79 Mr Clements deposed that "a compromise" was nevertheless arranged. In paragraph 31 of the annexure, Mr Clements identified only Mr Brereton as the other party to the compromise, but in paragraph 34, asserted that Mr Brereton was a director of WRVM with the authority to enter the compromise agreement on its behalf.
80 Under the oral agreement described in paragraph 31, Mr Clements would receive "an interest in the Mews project the equivalent of a cash investment of one third each of $500,000 together with $50,000 each in cash payable upon settlement of the sale of the Mews and a further one third of $6666 within 90 days of settlement". Only Mr Clements ("the claimant") was identified as a recipient of the promised consideration, although four parties were stated to relinquish an interest. Mr Clements' interest was, however, described as one third of the total consideration. Assuming (despite the lack of clarity) that the three nominated individuals were to be equal recipients of the consideration, in lieu of entitlement to a success fee, no consideration was payable to Mango, albeit it was the only party with an interest in the Mews Land.
81 In paragraph 32, Mr Clements identified the June 2000 letter of Mr Brereton as being the agreement "to [the] … effect" of the compromise. In his written submissions, however, Mr Clements described the June 2000 letter as a variation of the oral agreement referred to in paragraph 31. Mr Clements submitted that the June 2000 letter was consistent with the oral agreement and simply added the indemnity as an additional benefit.
82 The terms of the June 2000 letter differ from those of the alleged oral agreement in significant respects. First, the parties providing the release and the subject matter of the release are different. While the oral agreement refers to release of interests in the project and the Mews Land by Mango and Messrs Clements, Atkins and Morton Smith, the June 2000 letter confirms only that Mango agreed to release its interest in the Mews property.
83 Secondly, the consideration which is to be paid to the three nominated individuals is different. The June 2000 letter reiterates the first two elements of the consideration referred to in the oral agreement, but the third element (at dot point 3 in the June 2000 letter) significantly diverges from that in the oral agreement. The oral agreement refers to an "interest in the Mews project the equivalent of a cash investment of one third each of $500,000", but the June 2000 letter refers to an undertaking that WRVM will indemnify each of the three individuals in respect of a "collective investment by way of your cash contribution … in the retirement village" to be developed on the Mews property.
84 Contrary to Mr Clements' submission, the June 2000 letter does not confirm that he or the other stated claimants had, as at June 2000, any existing interest in the partnerships, the Mews Land or the Mews Scheme in any other sense. It does not refer to a grant, whether past or future, of an interest in the Mews Land. To the contrary, it indicates that any interest would be acquired on a different basis from that alleged in the oral agreement, namely, by a "cash contribution … in the retirement village". Further, it does not identify the nature of the interest which may be acquired.
85 Mr Clements did not assert, and there is no evidence that he, Mr Morton Smith or Mr or Mrs Atkins ever made a cash contribution of $500,000 or any other amount.
86 The June 2000 letter does not record the central term of the alleged oral agreement on which Mr Clements' claim depends, and, in my view, is inconsistent with it.
87 As the June 2000 letter does not refer expressly or implicitly to the acquisition of an interest in the Mews Land, it could not constitute a sufficient note or memorandum of an alleged oral agreement for the acquisition of such an interest. The June 2000 letter relevantly refers to an indemnity in respect of an interest which is not identified with precision, and is to be acquired pursuant to an investment by way of cash contribution. If the June 2000 letter, contrary to the above, could be construed as referring to the disposition of an interest in the Mews Land and were otherwise a sufficient note or memorandum of an oral agreement to acquire such an interest, it was not signed by the person charged or an agent of that person lawfully authorised in writing, as required by the Statute of Frauds.
88 Further, there are no sufficient acts of part performance unequivocally and in their own nature referable to an agreement of the general nature of that alleged (see Regent v Millett (1976) 133 CLR 679).
89 As I understood his submissions, Mr Clements relied on the recording of interests in partnerships in the June 2002 partnership returns as evidence or part performance of the alleged oral agreement. The quantum of the recorded interests in the partnerships did not, as Mr Clements acknowledged, correlate to the $500,000 specified in the alleged oral agreement. The acquisition of such interests, if established, would not, in my view, be unequivocally referable to an agreement of the general nature of either the oral agreement or that reflected in the June 2000 letter.
90 In his submissions in reply, Mr Clements also sought to rely on estoppel. In the absence of a clear and unambiguous representation, that basis for the claim was not made out.