Building and Construction Industry (Security of Payment) Act 2021 (WA) - Whether contract can be inferred from objective circumstances - Whether Jones v Dunkel inferences can be drawn - Post-contractual silence as admission - Whether ostensible or apparent authority can be relied upon positively by principal - Whether debt was assigned

Building and Construction Industry (Security of Payment) Act 2021 (WA)

Civil Judgments Enforcement Act 2004 (WA)

Construction Contracts Act 2004 (WA)

Property Law Act 1969 (WA)

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Australian Competition and Consumer Commission v J Hutchinson Pty Ltd [2025] HCA 10

Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216

B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28) [2022] VSC 13

Chamberlain v The Queen [1984] HCA 7; (1984) 153 CLR 521

DM Drainage & Constructions Pty Ltd v Karara Mining Ltd [No 6] [2021] WASC 410

Fabre v Arenales (1992) 27 NSWLR 437

Glass v Pioneer Rubber Works of Australia Ltd [1906] ArgusLawRp 120; [1906] VLR 754

Harry S Bagg's Liquidation Warehouse Pty Ltd v Whittaker (1982) 44 NSWLR 421

Haynes v McNeil [1906] WALawRp 51; (1906) 8 WALR 186

Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295

Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Junker v Hepburn [2010] NSWSC 88

La Mela v Franklexis Pty Ltd [2020] WASCA 83

LHRE Group Pty Ltd v Complete Hire & Sales Pty Ltd [2024] WADC 61

Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352

Lysaght Bros & Co Ltd v Falk [1905] HCA 7; (1905) 2 CLR 421

Mirabela Nickel Ltd (in liq) (Receivers and Managers Appointed) v Mining Standards International Pty Ltd [2025] WASCA 82

Nominal Defendant v Owens (1978) 22 ALR 128

OSB Group Pty Ltd v Complete Hire & Sales Pty Ltd [2024] WASC 310

Pacific Carriers Ltd v BNP Paribas [2004] HCA 35

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4

Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWCA 337

Re Swan Services Pty Ltd (in liq) [2016] NSWSC 1724

Reynell v Lewis [1846] EngR 1141; (1846) 15 M & W 517; (1846) 153 ER 954

Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406

Subdivisions Ltd v Payne [1934] SAStRp 48; [1934] SASR 214

Tomko v Palasty [2007] NSWCA 258

Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125

Westgem Investments Pty Ltd in its own right as Trustee for Hossean Pourzand and Jenny Maria Pourzand atf the Helen Trust v Commonwealth Bank of Australia Ltd [No 5] [2019] WASC 310

Winks v WH Heck & Sons Pty Ltd [1986] 1 Qd R 226

1. The plaintiff, LHRE Group Pty Ltd (LHRE) is a company engaged in the business of labour hire for discrete works on construction projects.[1] Mr Kevin O'Shea is the sole director of LHRE and responsible for its day-to-day operations.[2] He is also the sole director of OSB Group Pty Ltd (OSB Group), which is a company that performs contract works on mining projects.[3] Mr Kevin O'Shea runs both businesses together with his brother Mr Michael O'Shea, who is the general manager of those entities.[4] To avoid confusion, and intending no disrespect in doing so, I will refer to Mr Kevin O'Shea and Mr Michael O'Shea by their first names.
2. The defendant, Complete Hire & Sales Pty Ltd (Complete) carries on the business of providing building services to a variety of clients, including to some of its related entities.[5] Mr Emanuel Dillon is the sole director of Complete.[6] He is also the sole director of Spinifex Holdings (WA) Pty Ltd (Spinifex Holdings), which operates the Spinifex Hotel and associated facilities in Derby, Western Australia.[7]
3. During January - May 2023, the Spinifex Hotel provided, pursuant to a written agreement with the Department of Communities, accommodation for residents of Fitzroy Crossing and surrounding areas who had become displaced due to recent floods. During that period, various internal and external areas of the hotel were damaged. As a result, repair works were required to be performed.[8]
4. Separately, in or about May 2023, Complete was retained by Crushing Services International Pty Ltd to design, supply, transport, install and commission a 200-person accommodation camp at Onslow (the Onslow Project). The appointed project manager for both the Onslow Project and the rectification works for the Spinifex Hotel was Mr Ian Massey.[9]
5. In early May 2023, Mr Massey contacted Michael by telephone querying whether OSB Group would be interested in pricing the construction of the 200-person camp for the Onslow Project.
6. On 12 May 2023, a meeting was held at Complete's offices which was both an introductory meeting and one in which OSB Group's interest in the Onslow Project was discussed. In attendance at the meeting was Mr Dillon and Mr Massey of Complete and Kevin and Michael on behalf of OSB Group.[10] There is a dispute between the parties as to whether LHRE was mentioned at that meeting. It is also in contention as to whether the remedial works required at the Spinifex Hotel were discussed.
7. On 17 May 2023, Mr Dillon telephoned Michael to discuss the provision of labour to undertake remedial works at the Spinifex Hotel.[11] The conversation was followed up by Kevin with Mr Dillon by email the following day, in which he queried when the labour would be required and what tools would need to accompany them to site.[12]
8. A number of the details of the project were negotiated through email exchanges, including the identity of the prospective labourers and their rates as well as the requirement that a one-off mobilisation and demobilisation cost be paid.[13] It is not in contention that all of the emails sent to Complete during this period by Michael and/or Kevin were sent from their OSB Group email accounts and contained their OSB Group email signature.
9. On 29 May 2023, Kevin sent Complete a copy of LHRE's credit application form together with a document setting out LHRE client standard terms and conditions.[14] Despite being followed up a number of times, the credit application form was never completed or executed by the defendant.
10. On 1 June 2023, the labour arrived at the Spinifex Hotel in Derby and undertook both rectification and refurbishment works, concluding on 18 June 2023.[15] The labourers worked under the direction of Complete and day worksheets were prepared which identified the daily works performed which was signed in acknowledgment by Complete.[16] No issues were raised in relation to the quality of the work performed.[17]
11. On 4 July 2023, Mr Jamal Uddin emailed a tax invoice to Complete dated 3 July 2023 in respect of the labour hire at the Spinifex Hotel claiming $81,934.64 (inclusive of GST) and attaching the supporting day worksheets.[18] Mr Uddin used his OSB Group email address and signature. However, the attached tax invoice was on LHRE letterhead. The payment advice on the invoice identified the payor as LHRE. The attached day worksheets indicated, by way of a box which was ticked, that the company who performed the works was OSB Group. Each handwritten day worksheet provided to Complete was accompanied by a corresponding typed version on which no box was ticked.[19]
12. Mr Dillon responded to the email the same day noting that the invoice was one day old and requiring the following matters be addressed:

(a) the hours and names per person to be included on the invoice;

(b) the invoice to stipulate that the remedial works to the Spinifex Hotel was to rooms 1 - 34;

(d) to ensure that no travel was charged for and if there were claims for material for it to be identified; and

(e) identifying that the payor may need to be changed to the Spinifex Hotel which would be further clarified by Complete personnel.[20]

1. The invoice was re-sent to Complete several times for various reasons. Whilst Complete continued to request that the above matters be addressed in the invoice, at no stage did the communications raise concerns regarding the invoice being issued by LHRE as opposed to OSB Group.[21] The invoice remains unpaid.
2. On 2 October 2023, LHRE issued a formal statutory payment claim pursuant to the Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOP Act) in the amount of $81,934.64 (including GST).[22]
3. Complete did not provide a payment schedule in response to the payment claim within 15 business days, or at all. If the statutory scheme applies, it follows, by operation of s 20 and s 26 of the SOP Act, that the amount claimed became due for payment on 6 November 2023, being 25 business days after the payment claim was made. Complete did not pay the claimed amount by 6 November 2023, or at all.

The plaintiff's pleaded case and the position of the defendant

1. The plaintiff filed a writ of summons and statement of claim with the court on 15 November 2024. It sought leave to amend its claim on the first day of trial pursuant to O 21 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC). The amendments sought related primarily to pleading that the plaintiff and the defendant entered into an agreement or arrangement. The granting of leave by the court was unopposed by the defendant.
2. I note that the court may allow the amendment of a pleading on such terms as to costs or otherwise as may be just and in such manner as the court may direct: RSC O 21 r 5. The determination of whether to allow an amendment involves the exercise of the court's discretion in the interests of justice.[23] There is no presumption that parties are entitled to amend pleadings upon an application for leave to amend.[24]
3. The relevant factors in determining whether to grant leave in the circumstances of this application include the following:

(a) granting the application had no adverse consequences of delay;

(b) there appeared to be no prejudice to the defendant in granting leave to amend in circumstances where the amendments proposed did not alter the substantive issues requiring determination;

(c) the proposed amendments had no consequential flow on effect in relation to the evidence which would be heard during trial;

(d) the proposed amendments did not necessitate any consequential amendments to the defence nor necessitate the defendant requiring to produce or seek further discovery or necessitate additional witnesses to be called to give evidence at trial; and

(e) the amendments were necessary for the plaintiff to properly articulate its claim in the particular statutory context in which the claim had been brought and relied upon the same pleaded particulars.

1. The above matters reflect the principles which apply when the court determines an application seeking leave to amend pleadings which is made late in the proceeding, as is the case here.[25] Upon a proper consideration of the matters identified above, it is appropriate that leave be granted to the plaintiff to rely upon the amended statement of claim provided to the court dated 26 June 2025. I note that it conducted its case consistently with that pleading at trial.
2. The plaintiff claims that on or about 1 June 2023, LHRE and Complete entered into an agreement or arrangement under which LHRE undertook to carry out works for Complete, at the Spinifex Hotel. The plaintiff claims that the contract was partly oral, partly in writing, and partly by conduct and was formed by the following acts:

(a) oral request made by Mr Dillon to Michael on 17 May 2023 requesting the provision of labour for maintenance work to be performed at the Spinifex Hotel;

(b) in writing, by email, from Kevin on 18 May 2023 to Mr Dillon identifying the available labour;

(c) orally, by telephone, on 26 May 2023 between Complete's project manager, Mr Ian Massey, instructing Kevin to mobilise two carpenters, two labourers, and a plumber to the site and confirming separately by way of email dated 26 May 2023 from Mr Massey to Complete's operations manager, Ms Gemma Lees;

(d) in writing, by email, from Kevin on 29 May 2023 to Mr Massey enclosing labour hire terms and conditions; and

(e) by conduct, through the engagement by Complete of the labour supplied by LHRE commencing on 1 June 2023.

1. The relevant terms of the agreement or arrangement pleaded by the plaintiff which were negotiated on 26 May 2023 did not appear to be in contention at trial. Nor was it in contention at trial that any agreement or arrangement entered into to supply the labour to perform remedial works would constitute the carrying out of 'construction work' and the supply of 'related goods and services' as defined by and for the purposes of the SOP Act.
2. The plaintiff claims pursuant to s 22 and s 23 of the SOP Act that it was entitled to and issued a payment claim seeking a progress payment for $81,934.64 (including GST). The plaintiff claims that the claim was due and payable 25 days after it was made, namely 6 November 2023, pursuant to s 20(1)(b) of the SOP Act and that the defendant became liable to pay that amount due to its failure to serve a payment schedule.
3. The plaintiff claims that in all the circumstances it is entitled to judgment in its favour pursuant to s 27(3)(a) of the SOP Act. The plaintiff also claims pursuant to s 21(b) of the SOP Act, interest payable on the amount of the claim at the rate prescribed under the Civil Judgments Enforcement Act 2004 (WA) and costs.
4. Turning then to the position of the defendant as pleaded in its defence filed with the court on 15 August 2024. That pleading, in essence, identifies the following position of the defendant:

(a) it denies that it entered into an agreement or an arrangement with the plaintiff to supply labour in order to perform remedial works at the Spinifex Hotel;

(b) says further that between 12 and 26 May 2023, Michael and Kevin, acting for and on behalf of OSB Group, communicated with the defendant about works to be performed at the Spinifex Hotel as particularised:

(i) meeting held at the defendant's offices between Mr Dillon and Mr Massey, acting for and on behalf of the defendant and Michael acting for and on behalf of OSB Group on 12 May 2023;

(ii) telephone conversation between Mr Dillon, acting for and on behalf of the defendant and Michael, acting for and on behalf of OSB Group on a date between 12 and 18 May 2023;

(iii) email from Michael, acting for and on behalf of OSB Group to Mr Dillon, acting for and on behalf of the defendant dated 18 May 2023;

(iv) telephone conversation between Mr Dillon, acting for and on behalf of the defendant and Kevin, acting for and on behalf of OSB Group on a date between 18 and 26 May 2023; and

(v) email from Kevin, acting for and on behalf of OSB Group to Mr Massey, acting for and on behalf of Complete dated 26 May 2023;

(c) the defendant therefore denies the plaintiff's entitlement to a payment claim pursuant to the SOP Act;

(d) in the alternative, the defendant pleads that if the parties entered into the contract as pleaded by the plaintiff, then by no later than 2 October 2023 the plaintiff assigned its right, title and interest in and under that contract to Scottish Pacific (BFS) Pty Ltd, including its right, title and interest in any payments the defendant was required to make pursuant to the following particulars:

(i) the assignment is to be inferred from the written statements to the effect contained in invoices issued to the defendant; and

(ii) the emails attaching the invoices constitute notice to the defendant of the assignment pursuant to s 20(1) of the Property Law Act 1969 (WA);

(e) as such the defendant pleads that it was not obliged to provide a payment schedule to the plaintiff nor was it obliged to pay the claim because the relevant statutory requirements are not met and therefore the plaintiff is not entitled to any relief.

1. On 30 May 2024, the Principal Registrar heard an application by the plaintiff seeking summary judgment. The application was dismissed, and a costs order was made in favour of the defendant.[26]

1. It appears uncontroversial that an agreement or arrangement was entered into as a result of which labour was supplied to undertake building works, primarily of a remedial nature, at the Spinifex Hotel during 1 - 18 June 2023.
2. The crucial issue for determination in this trial is the entity with whom Complete contracted for the supply of that labour, namely, whether the contracting entity was the plaintiff or OSB Group. That issue will be determined by the court either applying the straightforward analysis of contract formation based on offer and acceptance or the alternative more complex and involved analysis of inferring a contract from all the objective circumstances. The plaintiff bears the onus of proof to the civil standard.[27]
3. In order for the plaintiff to discharge the burden of proof and persuade the court on a balance of probabilities, feeling an actual persuasion, they must show that there is more than conflicting inferences of equal degrees of probability, so that the finding made by the court is not a mere matter of conjecture.[28] If circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought by the plaintiff then, although the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise.[29]
4. If the court is unable to find that an agreement existed, then the court needs to consider whether an arrangement existed, having regard to the broad definition of 'construction contract' in s 5 of the SOP Act. That consideration nevertheless requires the court to determine who are the parties to any such arrangement and therefore has significant overlap in relation to the primary issue.
5. If the court determines that an agreement or arrangement was entered into by the plaintiff and the defendant, then it needs to consider whether LHRE assigned its right, title and interest in and under the contract or arrangement to Scottish Pacific (BFS) Pty Ltd (ScotPac), including its right, title and interest in any payments the defendant was required to make pursuant to that contract or arrangement.

1. In addition to the documentary evidence tendered by the parties, the plaintiff called two witnesses, Kevin O'Shea and Michael O'Shea and the defendant called evidence from one witness, Emanuel Dillon.

1. As mentioned previously, Kevin is the sole director of both LHRE and OSB Group which he runs together with his brother Michael. Whilst Kevin first crossed paths with Mr Dillon in or about 2020 when their companies were engaged on a project for the Pindan Group, he did not know Mr Dillon well.[30]
2. Kevin gave evidence that his first substantive involvement with the defendant was attending at its offices with Michael on 12 May 2023 to meet with Mr Dillon and Mr Massey. The meeting had been arranged to discuss the involvement of OSB Group in the construction of a 200-person mining camp for Complete's Onslow Project. It was also an introductory meeting.
3. Kevin stated that he explained to Mr Dillon and to Mr Massey that he and his brother had two 'divisions', and he explained what each did. He recalled specifically discussing the significant financial losses incurred on the Pindan project for both LHRE, and OSB Group.[31] It was suggested to Kevin during cross-examination that there was no discussion at that meeting about LHRE which was a proposition denied by him. Kevin went further, stating:

We specifically made a point of it because it [LHRE] was owed 3 million, and OSB [Group] was only owed a million.

1. Kevin did not recall talking about the Spinifex Hotel job at this initial meeting. His recollection, prompted by the email he sent to Mr Dillon on 18 May 2023, was that the matter was first raised by Mr Dillon in a telephone conversation with Michael on 17 May 2023.[32]
2. Kevin gave evidence that Mr Dillon asked Michael whether labour could be provided for various remedial works at the Spinifex Hotel in Derby.[33] Following that discussion, Kevin emailed Mr Dillon to confirm the timing of the job, and the required tools.[34]
3. Mr Dillon responded to Kevin by email on 24 May 2023 confirming the timing of the works and identifying that the labour simply required hand tools specific to their particular trade.[35]
4. Kevin confirmed in his evidence that all of the emails exchanged with Mr Dillon were sent on OSB Group email addresses with automated signatures.[36]
5. Kevin conceded that he was unable to say that he informed Mr Dillon at any point in time that LHRE would be undertaking the job for the Spinifex Hotel.[37]
6. On 26 May 2023, Kevin received a telephone call from Mr Massey instructing him to mobilise two carpenters, two labourers, and a plumber to the site to perform the remedial works at the Spinifex Hotel. This prompted Kevin to email Mr Massey, copying in Mr Dillon, to confirm the labour rates, mobilisation costs, and identifying available labour.[38] Mr Massey responded four minutes later confirming with Complete's operations manager, Ms Gemma Lees, when the labour would be mobilised to site.[39] Ms Lees then arranged the flights for the labour to travel from Perth to Derby.[40]
7. On 29 May 2023, Kevin emailed Mr Massey and Ms Lees, copied to Mr Dillon, an LHRE credit application form and LHRE labour hire client terms and conditions. The content of the email was as follows:[41]

Please see attached for the labour supply outline [sic] below can you have this fill [sic] out and sent back thanks.

1. Kevin gave evidence that the usual practice of LHRE was to provide its credit terms to those it contracts with.[42] The document provides the terms and conditions for the labour hire that govern the credit that is provided.[43] Kevin stated that ordinarily LHRE would not proceed without the credit application form being signed and returned but on occasion they have proceeded in the absence of the documentation being completed.[44] Kevin agreed in cross-examination that the credit application form did not attach a scope of works, nor did it refer to the price to perform the work, noting that it was 'just a credit application'.[45]
2. Kevin rejected the proposition that the document did not identify the entity who would perform the work. He stated that it identified LHRE as the entity providing the service/performing the works.[46]
3. Mr Massey responded by email on 30 May 2023 informing Kevin that he had forwarded the document to the relevant parties and would follow it up.[47] The LHRE credit application form (absent the terms and conditions) was emailed to Complete again on 19 and 24 July 2023 with a request for the form to be completed, signed, and returned as soon as possible given that the 'LHRE Group client needs to pay to the ScotPac account instead of our LHRE account'.[48]
4. Kevin gave evidence that if the credit application had been completed and submitted, and finance approved, it would have enabled LHRE to assign the invoice for the Spinifex Hotel job to ScotPac. Given that Complete did not submit the credit application form, LHRE did not obtain any finance from ScotPac and the invoice was not provided to it.[49]
5. By at least 8 June 2023, Kevin had asked Mr Dillon for a purchase order for the labour supply.[50] Kevin stated in his evidence that the purchase order would have clarified the entity that they were to invoice. That is, it would have identified whether they were to invoice completehire@sales or Spinifex and would have included the relevant job description.[51] Complete never provided a purchase order.[52]
6. Kevin gave evidence that on 1 June 2023, labour was supplied to Complete which was on site until 18 June 2023.[53] Kevin stated that the company which hired the labourers who were mobilised was LHRE and the company who paid those labourers was LHRE.[54]
7. Kevin was cross-examined regarding the day worksheets completed on site which had the OSB Group box ticked when identifying the company performing the works. On that premise it was put to Kevin that those documents recorded that OSB Group performed the work, not the plaintiff, which was a proposition he rejected.[55]
8. Kevin accepted that the day worksheets were prepared by Mr Jamie McPherson but stated that he did not know who had ticked the boxes. He rejected the proposition that at the relevant time Mr McPherson was employed by OSB Group, asserting that for the Spinifex Hotel job he was an LHRE employee.[56] He stated that the day worksheets are used to record the work performed and that the boxes on the forms are not an indication as to which entity has performed the work. Kevin gave evidence that it is the invoice which is issued which identifies the relevant entity. Kevin stated that there are often many mistakes on day worksheets which are completed by labourers and not by someone with authority to bind the company. Kevin stated that that is why an invoice is attached to the day worksheet which is the formal invoicing document.[57]
9. In relation to the personnel employed on the Spinifex Hotel job, Kevin gave evidence that all employees across OSB Group and LHRE are casually employed and depending what project they are working on, will dictate what company has retained them. Kevin gave evidence that the four labourers mobilised at the Spinifex Hotel at the time were hired by LHRE and once the job was completed, they were available to be rehired by OSB Group across other projects.[58]
10. Kevin gave evidence that LHRE invoiced for the work performed on the Spinifex Hotel on 3 July 2023 which was emailed to Complete on 4 July 2023.[59] Thereafter a number of emails were exchanged between LHRE and Complete in relation to the invoice between 4 July and 2 October 2023.[60] Kevin was cross-examined as to why the invoice was not changed to accommodate the matters requested by Mr Dillon. Kevin provided the following evidence:[61]

We can't alter an invoice. If they've got signed sheets that are signed by his own party and our party, that is the evidence that you give for an invoice. You can't just go altering invoices to suit someone. It's got to be what's on - that's what you're billing for ... we can't just go along and write whatever we want. If we give an invoice with all the sheets, that is the back up paperwork. It's the same across every contract job that we do. You send evidence which are invoice [sic]. Otherwise you'd have hundreds of invoices.

1. Kevin gave evidence that the invoice was automatically generated with a statement noting that amounts payable had been transferred to ScotPac which was an error in this case because Complete did not submit the credit application form.[62] If the form had been signed, it would have been provided to ScotPac to follow their own internal processes and if approved, an account would have been opened with them to provide funding.[63] Kevin gave evidence that if the procedures set out by ScotPac are not followed, then the debt cannot be assigned and LHRE has to pursue the debt themselves.[64] Therefore the invoice being issued with the proforma statement on it was an error as the debt had not been assigned.[65]
2. Kevin gave evidence that for the purpose of this proceeding he contacted ScotPac and obtained correspondence confirming that they did not have any hold over the claim in respect of the invoice.[66]
3. Kevin gave evidence as to a meeting he attended together with Mr Dillon on 26 July 2023 at Complete's office. Samantha Rodgers, Complete's Contract Administrator, was also in attendance.[67] The purpose of the meeting was to discuss the Onslow Project which was not going well. There was also a brief discussion about the Spinifex Hotel job. Kevin gave evidence that Mr Dillon had a printed copy of LHRE's terms and conditions and invoice on the table in front of him and he said words to the effect that:

(a) there were no issues with money and the invoice would be paid; and

(b) he wanted LHRE to reword the invoice so that he could make a claim from the Government Relief Fund for damage to rural businesses from the bad weather that occurred earlier that year.

1. Kevin gave evidence that Mr Dillon did not raise any concerns about LHRE being the invoicing party.
2. Following the meeting, Ms Rodgers sent an email stating that the invoice was not in Complete's system and asking for it to be resent, which was duly provided.[68] Mr Dillon also forwarded his email of 4 July 2023 asking Kevin to address his 'fair and reasonable request dated 4th of July'.[69]
3. It was put to Kevin in cross-examination that he handed Mr Dillon a copy of the credit terms at the meeting which was a proposition he rejected.
4. It was also put to Kevin in cross-examination that Mr Dillon informed him during the meeting that he was not signing any credit contract with LHRE because his contract was with OSB Group, which again was rejected by Kevin.[70]
5. Kevin gave evidence that at the conclusion of the meeting he asked Mr Dillon when they would be paid in respect to the Spinifex Hotel, and he responded 'Yep. No. We'll get that paid for you'.[71]
6. I will say more about my assessment of the witnesses in due course, however, I note at this stage that Kevin impressed as a witness of truth, who at times made reasonable concessions and whose evidence was predominantly consistent with the objective contemporaneous records.

1. Michael gave evidence that he is the general manager of both LHRE and OSB Group which he runs together with his brother, Kevin. He described LHRE as a labour and plant hire business and OSB Group as a contractor who performs construction projects focussing on the mining industry.[72]
2. Michael gave evidence of the first meeting he attended together with Kevin on 12 May 2023 with Mr Dillon and Mr Massey at Complete's offices. Michael stated that they each spoke about previous projects and contacts within the industry.[73]
3. Michael had a specific recollection of discussing the following:[74]

We hit it off because of the Koodaideri contract, he - he was on that as well with Pindan. We lost 4 million. 3 million was to LHRE. Another million was to OSB, and we talked about Kenneth Baker.

1. Michael gave evidence that he recalled informing Mr Dillon and Mr Massey that LHRE was their labour hire company. It was put to Michael that he was speculating about what was discussed which he refuted. Michael gave evidence '... it's not a guess, because we talked about the Pindan matter. We talked about LHRE getting cut for 3 million. We talked about what LHRE stands for ...'.[75]
2. It was put to Michael during cross-examination that Mr Dillon's evidence was that at no stage during the meeting was LHRE mentioned. Michael responded:[76]

I know, and that is remarkable how he can say that, because it also points to the fact that his project manager - we left that meeting and then were sending emails and he asked for his wife for a job on the 6th, so nobody knew about LHRE. You would have had to have been in that meeting to have known about LHRE. ... in that meeting it was asked as well, 'What does OSB Group stand for? What does LHRE Group stand for?'

1. Michael gave evidence that after the meeting Mr Massey asked if there was a position for his wife with LHRE and they ultimately offered her employment.[77]
2. Michael agreed that nothing was said at the initial meeting in respect to LHRE being the contracting party for the works at the Spinifex Hotel. Michael said that was because he was unaware of the project until Mr Dillon telephoned him to discuss it a few days later.[78] During that discussion Mr Dillon informed him that he needed labour to mobilise to the Spinifex Hotel and asked if they would provide that labour. Michael informed his brother who then contacted Mr Dillon.[79]
3. Michael gave evidence in relation to the use of OSB Group email address noting that they worked for numerous clients and sometimes sent emails from OSB Group and sometimes from LHRE.[80]
4. Michael gave evidence that the labourers who were mobilised on site and who performed the works at the Spinifex Hotel were paid by LHRE and were LHRE employees. Following completion of the works some of the men would have been re-assigned to the Onslow Project.[81]
5. Michael was cross-examined in relation to the day worksheets completed by Mr McPherson and the fact that most of them had the box of OSB Group ticked in relation to the company selected as performing the works. Michael gave evidence that it was not the job of labourers on site to inform as to the entity they were working for given that that matter had already been agreed between the parties and in this instance, it was LHRE.[82]
6. Michael stated that it was probably Mr McPherson who prepared the day worksheets, and he accepted that he was an OSB Group employee.[83]
7. Michael gave evidence regarding the invoice which was issued to Complete and whether the payment claim had been assigned. He stated that the wording on the invoice was standardised LHRE invoicing as 9 times out of 10, clients complete the credit application form, and the invoice is assigned to ScotPac.[84]
8. Michael gave evidence that ScotPac required a completed credit application form and performed a risk assessment before providing LHRE finance for a job. Complete did not fill out the application form and therefore was not set up with ScotPac for the Spinifex Hotel job.[85]
9. Michael recalled Mr Dillon requesting that the invoice be edited and stating that he would then pay it within 24 hours. He also recalled Mr Dillon suggesting that the invoice may need to be directed to the Spinifex Hotel. Michael also gave evidence that Mr Dillon asked for a credit to be provided which was given to him.[86]
10. Michael said that Mr Dillon referred LHRE to Ms Lees in relation to changes that may need to be made to the invoice. Ms Lees was emailed but never responded. The invoice was therefore not changed.[87]
11. Again, I will shortly make findings in relation to my assessment of the credibility and reliability of Michael. At this stage I note that, in brief, Michael presented as a credible witness doing his best to recollect matters that took place some two years earlier. At times it was clear that he was confused by particular lines of questioning but nevertheless appeared to be doing his best to answer questions openly and transparently.
12. I also note that both Kevin and Michael were cross-examined as to whether they had discussed their evidence with one another. Concessions were made that they had discussed the case in a general sense insofar as LHRE was owed money by Complete, but both denied collaborating with one another in order to advance the plaintiff's case.[88]

1. Mr Dillon gave evidence on behalf of the defendant as the sole director of Complete. Mr Dillon described Complete as being in the business of providing building services for a variety of different clients, including some of its related entities.[89]
2. Mr Dillon gave evidence that one of Complete's related entities to which it provides building services is Spinifex Holdings which operates the Spinifex Hotel in Derby. Mr Dillon is the sole director and shareholder of that entity.[90]
3. Mr Dillon described the Spinifex Hotel as a hotel with approximately 126 rooms, a restaurant, a sports bar, a bar, a TAB, a conference room and bottle shop.[91]
4. Mr Dillon gave evidence that from about January 2023 until in or about May 2023, the hotel provided accommodation for residents of Fitzroy Crossing and surrounding areas who had become displaced due to recent flooding.[92]
5. The accommodation was supplied pursuant to an agreement with the Department of Communities which provided for Spinifex Holdings to be paid for the provision of the accommodation. At some stage all the hotel rooms were occupied by the displaced residents.[93]
6. During the relevant period, Mr Dillon gave evidence that various internal and external areas of the hotel were damaged by the residents including the whole perimeter fencing being destroyed and pushed over; graffitiing of the carpark and paving; windows of the hotel rooms being smashed and doors jarred open; televisions in the hotel rooms being destroyed; carpet being defecated and urinated on; walls of the hotel room being spat on; offensive language graffitied on walls internal and external of the hotel; cigarette butt burns on hotel room carpets and walls and fire damage inside the hotel rooms.[94]
7. As a result, Mr Dillon gave evidence that in or about May 2023 he decided to arrange for repair works to be performed to the Spinifex Hotel by Complete through subcontractors.[95]
8. Mr Dillon gave evidence that he also took the opportunity to undertake some refurbishment works.[96]
9. Mr Dillon stated that all subcontractors involved in the rectification and refurbishment works were paid except for the invoice the subject of this proceeding.[97]
10. Mr Dillon gave evidence that he intended to seek reimbursement for some of the Spinifex Hotel rectification work from the Department of Communities.[98]
11. He stated that the corporate entity claiming reimbursement was Spinifex Holdings, not Complete.[99]
12. Mr Dillon gave evidence that whilst he proceeded to seek reimbursement from the Department of Communities, no costs were reimbursed. He provided documents to the Department of Communities in order to substantiate the claim, however, Mr Dillon denied that those materials included documentation referrable to the work performed by the labourers mobilised to site by Kevin. Mr Dillon gave evidence that those works were mentioned, but they were not able to provide any information to support the works.[100]
13. Mr Dillon gave evidence regarding his meeting with Kevin and Michael on 12 May 2023. He was initially cross-examined as to what appeared to be inconsistencies across affidavits sworn by him in relation to the details of this initial meeting, including when it took place and who attended. In this regard, Mr Dillon was questioned as to his affidavit of 14 March 2024 filed in unrelated Supreme Court proceedings initiated by OSB Group against Complete (the Supreme Court proceeding).[101] That affidavit identifies that the meeting took place a few days following 18 May 2023 and omits to mention the presence of Kevin.[102]
14. In Mr Dillon's first affidavit filed in this proceeding, he also attested to the initial meeting being attended only by Michael.[103] Mr Dillon first mentioned Kevin's presence at the meeting in his 11 June 2025 affidavit.[104] Mr Dillon experienced difficulties in explaining why he omitted to mention in his earlier affidavits Kevin's attendance at the meeting.[105]
15. It was put to Mr Dillon that his recollection of the meeting was not very good, which was a proposition he rejected.[106]
16. Mr Dillon accepted that the 12 May 2023 meeting was an introductory one during which Michael and Kevin explained who they were and what they did.[107] He gave evidence that they told him about OSB Group but denied that LHRE was mentioned.[108] Mr Dillon gave evidence that the focus of the meeting was the Onslow Project. However, he asserted that the rectification works required at the Spinifex Hotel also came up.[109]
17. Mr Dillon accepted that he spoke with Michael on 17 May 2023 regarding the works required at the Spinifex Hotel which was followed up by email from Kevin on 18 May 2023.[110]
18. Mr Dillon's evidence was consistent with that of Kevin and Michael that labourers were arranged to mobilise at the Spinifex Hotel site on 1 June 2023 and demobilised from site on or about 18 June 2023.[111]
19. Mr Dillon was taken through the relevant email correspondence exchanged between the parties in relation to the personnel who would be mobilised on-site, the costs associated with the personnel, including a one-off mobilisation cost and timing of arrival.[112]
20. Mr Dillon also gave evidence as to the provision of the LHRE credit application and terms and conditions which were first provided by email on 29 May 2023. Mr Dillon accepted that the documents had the LHRE logo on them. However, Mr Dillon denied seeing the documents at the time. Mr Dillon was cross-examined as to the fact that the documents were forwarded to him again by Mr Massey on 30 May 2023.[113] The content of the email stipulated:[114]

Sent from Kevin OSB. LHRE is their labour hire division.

1. Mr Dillon accepted that the documents were brought to his attention, although asserted that there was only one document (namely that the two documents comprised one 4-page document).[115]
2. Mr Dillon was cross-examined as to why he did not mention receiving the 30 May 2023 email in any of his affidavits and he stated:[116]

Cos - Sam Rodgers is the contracts administrator, and she administrates the contracts for me.

1. Mr Dillon was cross-examined as to the fact that his attention appeared to be drawn to LHRE by Mr Massey on 30 May 2023 to which he responded:[117]

I can see the words LHRE. I can see it says it's a labour hire division. Yes.

1. Mr Dillon conceded that the documents were sent to him again by Kevin via email on 8 June 2023 and that he responded the following day.[118] Mr Dillon accepted that he received the email attaching the relevant documents.[119]
2. Mr Dillon conceded that Kevin emailed him again on 13 June 2023 following up the previous provision of 'an account opening form for the labour supply for the Derby hotel' and asking for it to be sent back.[120] Mr Dillon was uncertain as to whether the email was again drawing his attention to the LHRE material previously provided to him.
3. Mr Dillon gave evidence regarding an email he sent to Michael on 3 July 2023 informing him that Mineral Resources had raised a concern and asking for information on OSB Group, in particular urgently requesting the provision of a capability statement.[121] Mr Dillon was taken to Michael's response which listed works undertaken by OSB Group and which also provided information on LHRE in respect to labour hire and plant hire capabilities.[122]
4. It was put to Mr Dillon in cross-examination that based on the 3 July 2023 email his attention was again being drawn to LHRE which was a proposition he rejected.[123] Mr Dillon accepted that he copied and pasted the information and provided it to his client.[124]
5. Mr Dillon gave evidence regarding the invoice he received on 4 July 2023 dated 3 July 2023.[125] He accepted that the invoice clearly depicted the LHRE logo.[126] However, Mr Dillon denied looking at the invoice when he received it.[127] Nevertheless he accepted that he responded the same day requesting a number of amendments be made to it.[128] The contents of Mr Dillon's email is as follows:[129]

Mate the invoice is one day old.

Wish you mobilised as quick.

We need the hours and names per person on the invoice please.

I need the invoice to say remedial works to the Spinifex Hotel Derby WA hotel rms 1-34.

State the terms on the invoice.

Work with Gemma if you can.

F you do that next 24 hours it will be paid in the next run which is Friday the 14th but I need it done and approved by tomorrow night (please).

Ensure no travel charged for and if you are claiming material we can see what that is also.

Gemma may want it invoiced to spinifex hotel also but she can tell you.

1. Mr Dillon was cross-examined as to how he was able to identify that the invoice provided was one day old or to seek changes to it in circumstances where he asserted that he did not review it. Mr Dillon experienced significant difficulties in answering the questions put to him. In relation to how he was able to ascertain, without reviewing the invoice, that it was a day old, Mr Dillon gave the following evidence:[130]

Because it's 4 July - it's - the day - I assumed it was - I never opened it. If - if I got something today, it's a day old.

Counsel: Mr Dillon, we just looked at the invoice together. It was dated 3 July?---Yeah, which would make it two days old.

Counsel: Is that a serious answer, Mr Dillon?---Definitely. Yeah. I mean, if I was born today, and died today, how old was I?

1. It was put to Mr Dillon that he was aware the invoice did not provide the hours and names because he had seen it and therefore understood the generic references to the day sheets, which again was a proposition which he denied.[131] The following exchange then took place:[132]

Counsel: Well, Mr Dillon, how did you know the invoice didn't have the hours and the names of the persons, if you didn't open it?---I didn't know it did or didn't. I don't say it didn't. I just - I'm trying to help them get paid.

1. Mr Dillon accepted that he requested that the invoice specify that the remedial works were performed to hotel rooms 1 - 34 so that the cost could be claimed from the Department of Communities.[133]
2. It was put to Mr Dillon that the day worksheets clearly identified that the work undertaken was not limited to rooms 1 - 34 which he conceded. He asserted that he was not aware of that at the time because he did not review the invoice.[134] However, Mr Dillon accepted that some of the works undertaken on the Spinifex Hotel included refurbishment to the bottle shop and the kitchen cool room.[135]
3. Mr Dillon therefore conceded that he was aware that the labourers were performing works beyond rectification to rooms 1 - 34 irrespective of seeing the invoice.[136] It was put to Mr Dillon whether he was therefore asking for the invoices to be fraudulently manipulated, which was a proposition he denied.[137]
4. Mr Dillon conceded that he also raised the possibility of the invoice being directed to the Spinifex Hotel rather than to Complete. He stated that was because if materials were being claimed it would be more appropriate to invoice the hotel. He conceded in cross-examination that he was not concerned whether the invoice was directed to Complete or to Spinifex Holdings.[138]
5. Mr Dillon was cross-examined as to why his email did not raise any concerns that LHRE was the invoicing party. Mr Dillon, perhaps in the most credible part of his evidence, stated that he was not concerned.[139]
6. Mr Dillon conceded that the invoice was followed up the same day when an accounts email address was requested from Complete. However, he refused to provide one, explaining that his previous email needed to be actioned, after which payment would come 'easy enough'.[140] Mr Dillon conceded that again in that email correspondence he made no mention of LHRE being the incorrect invoicing entity. Mr Dillon agreed that the invoice was sent again to Complete on 17 July 2023.[141]
7. Mr Dillon gave evidence regarding the meeting which then took place on 26 July 2023. He agreed that his 14 March 2024 affidavit filed in the Supreme Court proceeding correctly attested to the fact that the meeting took place on 26 July 2023 at Complete's offices at which Kevin, Mr Dillon and Ms Rodgers attended.[142] He was therefore cross-examined as to why two weeks later when he came to swear his first affidavit in these proceedings he attested to the meeting taking place on or about 27 July 2023. Mr Dillon stated that he could not remember precisely when it took place.[143] Again during this part of his evidence Mr Dillon appeared to experience difficulty in explaining the inconsistency.
8. Mr Dillon asserted that the District Court affidavit was provided for the purposes of the plaintiff's application for summary judgment and therefore he did not go into as much detail as perhaps he should have. It was pointed out to Mr Dillon by counsel for the plaintiff that in fact both of the affidavits had been prepared for summary judgment applications, simply in two different jurisdictions.[144] Mr Dillon asserted that at the time of swearing his affidavit in these proceedings he could no longer recall the date of the meeting whereas two weeks earlier when he swore his affidavit in the Supreme Court proceeding he was able to recall the precise date.[145] It was pointed out to Mr Dillon by counsel for the plaintiff that his Supreme Court affidavit was sworn earlier in time and thus he was questioned as to how he could be certain two weeks earlier and then uncertain two weeks later. Mr Dillon maintained that he could not recall the precise date when he executed his affidavit in these proceedings.[146] Mr Dillon conceded that his Outlook calendar which recorded the meeting as taking place on 26 July 2023 was available to him and discovered in this proceeding.[147]
9. Mr Dillon conceded that shortly after the meeting concluded, Ms Rodgers emailed Kevin identifying that she had spoken to the 'key players' in relation to the invoice however it was not in their system and requested that it be resent, following which the invoice was provided again.[148] Mr Dillon agreed that he also responded on the same date, forwarding his previous email dated 4 July 2023.[149] Mr Dillon was cross-examined as to the absence in his email of any concerns in respect to LHRE despite his affidavit evidence that during the 26 July 2023 meeting he informed Kevin that he would not sign the credit application, that the contract for the Spinifex Hotel works was with OSB Group, that Complete did not have LHRE on its systems, and that he did not even know who LHRE was and therefore he would only be dealing with OSB Group.[150]
10. Mr Dillon initially maintained his position that he was not requesting changes to the invoice because he did not know that changes were required but rather was simply identifying that it needed to be made in a certain way so that it could be paid promptly. Following an exchange with the court Mr Dillon conceded that he would have 'probably' seen the invoice in or about 17 or 18 July 2023 and thus had in fact seen it by 26 July 2023.[151] In those circumstances it was put to Mr Dillon that despite that knowledge he nevertheless said nothing in relation to LHRE needing to be changed to OSB Group. His response was:[152]

1. The following exchange then took place:[153]

Counsel: Exactly. You did make it clear it's the matters raised in your 4 July email, none of which concerns LHRE, Mr Dillon?---Cos LHRE didn't exist.

1. Mr Dillon conceded that he then emailed Ms Rodgers on 26 July 2023, directing her attention to his email of 4 July.[154] It was put to Mr Dillon in cross-examination, given that his email was written in capital letters, that he was frustrated at the time that he wrote it. He accepted that potentially he was. Mr Dillon conceded that he was frustrated because the changes he had requested be made to the invoice on 4 July 2023 had still not been made. Mr Dillon accepted that the emails were sent after the meeting which took place earlier in the day.[155]
2. Mr Dillon conceded that during the meeting of 26 July 2023 the Spinifex Hotel job was mentioned and Kevin asked if they were going to get paid. However he denied that he had a copy of the invoice on the table at the meeting.[156] Mr Dillon gave evidence that at the meeting he told Kevin that he did not care who LHRE was, because they had contracted with OSB Group and if the invoice was amended to the correct entity then it would get paid.[157] It was put to Mr Dillon that contrary to his evidence, all the email correspondence exchanged immediately after the meeting made no reference to an issue with the invoice being issued by LHRE to which Mr Dillon responded:[158]

1. Mr Dillon conceded that on 27 July 2023 Ms Kaitlyn Cox, the accounts payable officer for Complete, emailed Kevin requesting the corresponding day worksheets related to the invoice be provided so that she could action the approval process promptly and finalise a payment date.[159] Mr Dillon was questioned as to why the email did not refer to any issue in respect to LHRE being the incorrect invoicing party. Mr Dillon responded:[160]

1. Mr Dillon conceded that in response to Ms Cox's email, the invoice, together with the day worksheets was re-sent to Complete on 27 July 2023.[161]
2. Mr Dillon accepted that on 13 September 2023, an internal email was sent from Ms Rodgers to Ms Cox entitled 'LHRE Group invoice' seeking the 'lowdown on LHRE Group invoice for works completed on the Derby hotel', because Kevin wanted to know when the invoice was going to be paid.[162] Mr Dillon accepted that on the same day Ms Rodgers emailed Kevin requesting a credit of $1,046.04 excluding GST noting:[163]

If you can please apply that credit to the invoice, I can run it past Emanuel again for his final sign-off.

1. Mr Dillon stated that he was not asking for the credit, rather that Ms Rodgers was doing so. Mr Dillon accepted that the credit was then provided to Complete as requested.[164]
2. It was put to Mr Dillon during cross-examination that throughout the emails exchanged between the parties not once was an issue raised in respect to LHRE not being the correct invoicing party to which Mr Dillon stated that he made his position clear at the meeting of 26 July 2023.[165]
3. Mr Dillon was also taken through a series of text messages exchanged between himself and Kevin in November 2023 in respect of which no issue was raised regarding LHRE being the invoicing party.[166] Mr Dillon agreed that the text messages referenced discussions about the timesheets yet stated nothing in relation to concerns regarding LHRE being the invoicing party.[167]
4. It was put to Mr Dillon in cross-examination that one of the reasons why he resisted paying the invoice was because he had a broader dispute with OSB Group and did not want to pay any money to the O'Shea brothers, which was a proposition he rejected.[168]

Credibility, assessments and findings on disputed facts

1. I note the following as relevant considerations in relation to my assessment of the reliability and credibility of the witnesses:

(a) When witnesses give inconsistent accounts of discussions and meetings which took place some years earlier in time, their veracity is often tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the contemporaneous documentary evidence, the motives of the witnesses, and the overall probabilities.[169]

(b) When there is inconsistent evidence before the court as to oral discussions which took place some period of time before the trial, the court need only be reasonably satisfied of the salient features of the alleged conversation, that it is more probable than not that words of that substance or effect were spoken. The precise words spoken need not be proved.[170]

(c) When the court is invited to make a finding that a witness has deliberately lied in their evidence, given the potential serious consequences which may flow from allegations of perjury, 'reasonable satisfaction' of such a matter should not be reached by inexact proofs, indefinite testimony or indirect inferences. The civil standard of proof remains the same, but the seriousness of the issue affects the process by which reasonable satisfaction is attained.[171]

(d) Proof of matters on the balance of probabilities does not require the court to reach a threshold of satisfaction to a degree of certainty.[172] It will suffice if the objective circumstances give rise to a more probable inference in favour of the position the plaintiff contends.[173]

(e) The evidence must be considered as a whole, rather than in a piece-meal or selective fashion.[174] The court must consider the weight which is to be given to the united force of all the circumstances put together in determining whether they raise a more probable inference in favour of what is alleged.[175]

1. As mentioned earlier in these reasons, I found both Kevin and Michael to be credible witnesses, doing their best to provide the court with their honest recollection. In large part their evidence was also corroborated by the contemporaneous documentary trail.
2. The same could not be said in relation to Mr Dillon and the evidence he provided in this proceeding. In short, Mr Dillon was an unimpressive witness and most of his evidence could not be confidently relied upon by the court unless corroborated by contemporaneous documents. I will explain the basis of this assessment as I address some of the contentious areas of evidence.
3. First is the question as to whether LHRE was a topic of discussion at the initial meeting which took place between the parties on 12 May 2023. Mr Dillon adamantly gave evidence that LHRE was never mentioned at that meeting. Kevin and Michael both gave evidence that not only was LHRE mentioned, but that they also discussed the nature of its work and the fact that it had lost a considerable sum of money on a Pindan project.
4. In my view, the evidence of Kevin and Michael was both credible and reliable in relation to this matter. It was also entirely plausible. All three witnesses accepted that the 12 May 2023 meeting was an introductory one given at that early stage the parties were relatively unfamiliar with one another. It follows, as a matter of common sense, that in such a context Kevin and Michael would want to appraise Complete as to the capabilities of both of their corporate entities. In addition, both Kevin and Michael had very specific recollections of discussing the significant losses incurred, particularly by LHRE, on a Pindan project, which one of Mr Dillon's corporate entities was also involved in. Michael could recall the name of that project, being the Koodaideri contract. The specificity of that recollection served the purpose of grounding it for both witnesses. Again, it is highly plausible that in such an introductory meeting, the parties would seek to find common ground between them to establish rapport.
5. Whilst Kevin and Michael's evidence was not identical on who mentioned what detail at the meeting, that is hardly surprising when witnesses are attempting to recollect precise words which were spoken some years earlier in respect of which no record exists. The court would be more concerned if their evidence was perfectly complimentary, like a well-fitted glove, which might indicate collaboration, contamination or corruption of the evidence. Their imperfect recollections reflected the integrity of the evidence and its veracity.
6. In addition, Michael specifically recalled Mr Massey contacting him after the meeting to explore whether there was a position available at LHRE for his wife, which subsequently resulted in her being offered employment by that entity. Indeed, Michael's demeanour in giving that evidence was somewhat incredulous that Mr Dillon could deny any knowledge of LHRE whilst his project manager not only knew of the entity but pursued employment for his wife with it. Again, I find that that specific recollection grounds the evidence of Michael that LHRE was indeed raised at that meeting. If it had not been, then the discussion that followed with Mr Massey simply could not have taken place. Michael's evidence in this regard did not appear to be challenged and whilst it was not contained in his affidavit evidence, it appeared to me that it arose organically (as evidence is prone to do at times) through the spontaneity of the cross-examination process. Michael was not questioned as to the absence of that detail in his affidavit and nor were the LHRE employment records in respect of Mr Massey's wife called for. I accept Michael's evidence as both credible and reliable.
7. Mr Dillon's evidence in respect to this initial meeting in my view lacked credibility, reliability and plausibility. In relation to reliability, Mr Dillon had significant difficulties over a relatively short period of time in recollecting the date of the meeting or who in fact attended it. Also, despite accepting that it was an introductory meeting, he refused to accept what logically flowed from that premise, namely, that the O'Shea brothers would want to explain the capabilities across their corporate entities.
8. Whilst Mr Dillon gave evidence that it was at this initial meeting that the works required at the Spinifex Hotel was first raised, I reject that evidence as lacking in credibility and reliability. Firstly, Mr Dillon accepted that the primary purpose of the meeting was to discuss the Onslow Project. Secondly, the contemporaneous documentary evidence indicates that the Spinifex Hotel rectification works was first raised in a telephone conversation between Mr Dillon and Michael on 17 May 2023. In my view, if the matter had in fact been raised at the 12 May 2023 meeting, email correspondence following that meeting would most likely exist evidencing its progression. No such earlier correspondence exists. The first email correspondence created in relation to the matter is dated 18 May 2023 because, as that correspondence indicates, the matter was first raised the previous day by Mr Dillon by telephone.
9. Secondly, Mr Dillon also gave evidence that at the meeting there was a document on the table with the words 'OSB' and 'Capability Statement' which he flicked through.[176] Neither Kevin nor Michael were cross-examined as to that matter and I note that their affidavits (which were sworn and filed earlier in time to Mr Dillon's affidavit which attests to this matter) are silent on it.
10. I reject Mr Dillon's evidence in relation to that matter as lacking in both credibility and reliability. Mr Dillon experienced great difficulty in explaining the absence of this evidence in both affidavits he had prepared and filed in the Supreme Court proceeding, which addressed what took place at the 12 May 2023 meeting, and its absence in his initial affidavit prepared and filed in this proceeding.[177] The absence of the evidence in the Supreme Court proceeding in particular raises serious doubts as to its reliability when one considers the fact that in those proceedings Mr Dillon alleges that he was misled by that very document in order to contract with OSB Group for the Onslow Project. The crucial nature of that evidence to the issues in contention in that proceeding is therefore self-evident and was conceded as such by Mr Dillon during his evidence in this proceeding.[178] Yet in the Supreme Court proceeding Mr Dillon attested to the fact that he received the document on or around 3 July 2023, entirely consistent with the documentary evidence before this court.[179] Namely, that Mr Dillon urgently requested Michael to provide an OSB Group capability statement on 3 July 2023 which was then immediately provided to him.[180] Nothing in the email exchange between Mr Dillon and Michael on 3 July 2023 indicates that the very same document had been provided to Complete only a few weeks earlier. That is because, in my view, it had not been.
11. I therefore find that, as at 12 May 2023, Mr Dillon, and therefore Complete, was not only aware of the existence of LHRE, but was also aware that it was involved in the supply of labour hire.
12. Thirdly, I turn to the matter of the provision of the credit application and labour hire terms and conditions which were emailed to Complete on a number of occasions.
13. Mr Dillon gave evidence that at no time prior to the labour hire mobilising on site in Derby did he review those documents. I reject that evidence. I find, by way of inference, that by at least 30 May 2023 Mr Dillon had reviewed those documents and therefore was aware that they were documents of LHRE. This inference is open to being drawn because those documents were provided to Mr Dillon by Kevin on 29 May 2023[181] and again by Mr Massey by email on 30 May 2023.[182] There is no plausible explanation in the circumstances as to why Mr Dillon would not have reviewed the documents given that they had been provided to him with a request for them to be completed and returned. He chose not to do so, as is the case in relation to the request to provide a purchase order. Nevertheless, in my view he was aware of them.
14. It appeared very clear during the testimony given by Mr Dillon that no matter the strength of the documentary evidence to which his attention was directed, he refused to accept that he had read a document, at least prior to mid-late July 2023, that mentioned LHRE. Indeed there were multiple occasions between 29 May 2023 and 17 July 2023 when documents were emailed to Mr Dillon which referenced LHRE and he denied reading each and every one of them, in circumstances where at times he was responding to the very contents of those documents (in relation to the tax invoice issued in the name of LHRE) and in circumstances where he passed information about LHRE onto his own client.[183] Such evidence in all of the factual circumstances is simply incredulous.
15. I therefore reject the evidence of Mr Dillon in which he denied reading a document which contained a reference to LHRE.
16. Fourthly, in this vein, is the issue as to whether Mr Dillon viewed the LHRE tax invoice dated 3 July 2023 when it was first emailed to him on 4 July 2023. In my view he undoubtedly did so despite his vehement assertions otherwise. It is inconceivable that Mr Dillon did not read the email yet was able to correctly identify the following in relation to it:

(a) that it was provided one day late, namely the invoice was dated 3 July 2023, and it was provided the following day on 4 July 2023;

(b) that the invoice did not provide the hours or the names of the personnel who were supplied;

(c) that the invoice did not state that it was in relation to remedial works in respect to the Spinifex Hotel in Derby, Western Australia, in relation to rooms 1 - 34;

(d) that it did not state the terms on the invoice beyond requiring payment to be made within 30 days;

(e) that it was not invoiced to the Spinifex Hotel; and

(f) that it was not clear on the face of it whether travel had been charged for and whether there was any claim in respect to materials.[184]

1. Mr Dillon's evidence that he merely correctly speculated that those matters may not be addressed in the invoice borders on the absurd. He knew that they were not addressed in the invoice because he had reviewed the invoice. Indeed, the invoice was significant to Mr Dillon because he intended to claim reimbursement of the costs from the Department of Communities. He therefore understood that the information he sought would likely be required for any such claim. I find that Mr Dillon read the invoice every single time it was provided to him as well illustrated by his responses which repeatedly requested that changes be made to it consistent with his 4 July 2023 email.
2. It therefore follows that I reject Mr Dillon's evidence that he did not raise concerns in relation to LHRE being the invoicing party because he had not reviewed the invoice until sometime in mid-late July 2023. That evidence is false. On his own evidence Mr Dillon stated that he was not concerned that it had been issued by LHRE.[185] I accept that evidence; it is clear that he was not concerned because if he had a concern, he certainly had plentiful opportunities to raise the matter and did not do so.
3. Fifthly, I turn to what was discussed at the 26 July 2023 meeting. Again, I find the evidence of Kevin to be both credible and reliable and also entirely consistent with the contemporaneous communications which exist in documentary form exchanged between the parties following that meeting. Mr Dillon's evidence continued to be unimpressive. He appeared to be evasive in relation to the date of the meeting in his affidavit evidence filed with this court, in contrast to the affidavit he filed in the Supreme Court proceeding. This is despite the fact that his own Outlook calendar entry for the meeting was part of the trial bundle of documents exhibited in this trial.[186]
4. It is at this meeting for the first time that Mr Dillon stated that he raised a concern with Kevin that he would not be dealing with LHRE. Kevin rejected that that statement was ever made during the meeting, and I accept his evidence in that regard. The meeting had been arranged to discuss issues in relation to the Onslow Project. At the conclusion of the meeting Kevin asked Mr Dillon when they were going to get paid for the Spinifex Hotel works. It is entirely plausible that he would raise that concern at this opportunity given that the invoice remained outstanding.
5. Following the meeting a number of email communications were exchanged between the parties including a request by Complete for the invoice to be provided again because it was not on their system. Nowhere in any of that correspondence was the issue raised that LHRE was not the appropriate invoicing party.[187] The absence of its mention, despite Mr Dillon's evidence as to its significance to him at that point in time, speaks volumes. Its complete omission in the contemporaneous documentary evidence is because, consistent with Kevin's evidence at trial, it was not mentioned by Mr Dillon during that meeting or at any stage before or thereafter. If it were as crucial an issue to Mr Dillon as he gave evidence of, it would have been documented. Certainly, other issues were the subject of email communication by Mr Dillon. The identity of LHRE as the invoicing party was not.
6. Sixthly, despite Mr Dillon's denials of this fact, I positively find that his refusal to pay the invoice was because, at least initially, Kevin had not made the required changes to it, which would have facilitated his claim for reimbursement from the Department of Communities. That is the only logical and rational inference that flows from all the evidence before the court when considered in its totality. The request for those changes was repeatedly made by Mr Dillon and Kevin was unable to make certain of those changes, in particular the day worksheets which evidenced what works were performed. In essence, the work that was performed was the work that was performed.

1. The parties each made submissions inviting the court to draw an inference that the failure to call a witness was because of a fear that the evidence would not assist them: Jones v Dunkel.[188] The plaintiff made this submission in light of the defendant's failure to call Mr Massey to give evidence as to the nature of the discussion which took place at the 12 May 2023 meeting. The defendant also made the submission in relation to Mr Massey, given that he left the defendant's employment to take a position with the plaintiff shortly after completion of the Spinifex Hotel works. The defendant also invited the court to draw the same adverse inference against the plaintiff for its failure to call Mr McPherson to address the question of his employment at the relevant time and his completion of the day worksheets.
2. I am grateful to his Honour Vaughan J for his helpful discussion of the application of the rule in Jones v Dunkel set out in DM Drainage & Constructions Pty Ltd v Karara Mining Ltd [No 6]:[189]

The rule in Jones v Dunkel is accepted to be an application of the maxim that evidence is to be weighed according to the proof which it was within the power of one side to have produced and in the power of the other to have contradicted.

There are, however, well established limits to what may be established by a Jones v Dunkel inference. In particular:

1. The rule in Jones v Dunkel does not permit an adverse inference that the uncalled evidence would have been positively damaging to the party. As was said by Menzies J in Jones v Dunkel, the absence of the witness cannot be used to make up any deficiency of evidence.
2. The rule in Jones v Dunkel does not prevent favourable inferences being drawn in favour of the party if other evidence justifies the inference.
3. If matters of fact alleged in the defence are otherwise established by the evidence, the failure to call the uncalled witness does not detract from such a finding.

1. I would add to the above that the court ought to be cautious in drawing a Jones v Dunkel inference where there is a competing inference available that the reason the witness was not called is because they had no relevant relationship with the fact or facts in issue.[190]
2. Addressing firstly the submission made by the defendant in respect of the failure of the plaintiff to call Mr McPherson as a witness at trial. In my view no Jones v Dunkel inference is capable of being drawn in relation to that decision. Any evidence of Mr McPherson's subjective understanding of the entity which had engaged him at the relevant time (in an evidentiary context where employees had a level of transference between the plaintiff and OSB Group) had no relevance to the issue as to which entity had legally contracted with the defendant. His absence as a witness therefore is unsurprising.
3. I turn to consider the failure of the parties to call Mr Massey as a witness at trial to give evidence as to whether the plaintiff was mentioned at the 12 May 2023 meeting. It was not in contention that at the time of the meeting Mr Massey was employed by the defendant and was the project manager for the Spinifex Hotel works. It is also not in contention that Mr Massey left the employment of the defendant shortly after the works were completed and commenced employment with OSB Group. At the time of the trial, he was no longer in that position of employment.[191]
4. In my view it is open to the court to find that there was some animosity between Mr Massey and Mr Dillon at the time of his departure from his employment with the defendant such that the decision not to call him may have been based on that consideration as opposed necessarily to a fear that his evidence would not assist the defendant.[192]
5. In relation to the plaintiff's decision not to call Mr Massey, I similarly find that it does not allow the court to draw a Jones v Dunkel inference against that party. It is unclear on what terms Mr Massey left the employment of the plaintiff. In addition, in circumstances where no notes exist of the meeting on 12 May 2023, it was open to the plaintiff (and indeed the defendant) to consider that Mr Massey would be unable to shed any light on the details of the discussion some two years later.
6. Whilst Michael gave evidence that at some point following the meeting Mr Massey asked whether there was a position available for his wife with the plaintiff, it appears that that evidence was given organically and relatively spontaneously through the course of cross-examination as opposed to a matter which had been recollected prior to trial (and which therefore may have factored into any consideration to call Mr Massey at trial).[193]
7. And lastly, whilst the evidence of what was said regarding the plaintiff at the 12 May 2023 meeting has relevance in this trial, it could not be said to be determinative of the crucial issue as to identifying the relevant parties to the agreement.
8. In all the circumstances, in my view no Jones v Dunkel inference should be drawn by the court in the failure of either party to call Mr Massey as a witness at trial.

1. As has been noted above, the plaintiff's claim arises in a statutory context of the SOP Act which replaced the Construction Contracts Act 2004 (WA). The SOP Act applies to construction contracts formed on or after 1 August 2022.[194]
2. The express object of the SOP Act is 'to provide an effective and fair process for securing payments to persons who undertake to carry out construction work in the construction industry': s 3(1). That object is achieved primarily by the creation of a statutory entitlement to progress payments in favour of persons undertaking construction work, facilitated by an expedited process for the resolution of those claims.[195]
3. 'Construction contract' is given a broad definition and includes 'a contract, agreement or other arrangement under which one party undertakes to carry out construction work, or to supply related goods and services, for another party': s 5. Relevantly in this case, 'construction work' is defined to include 'the alteration, repair, restoration, maintenance, ... of any building, structure or civil work ...'.[196]
4. The SOP Act creates a statutory right to progress payments in favour of persons who have undertaken to carry out construction work pursuant to a construction contract.[197]
5. The right to payment therefore is a statutory right separate to any contractual claim at common law or otherwise. The mechanism by which a person asserts the statutory claim is by issuing a 'payment claim' to the person who 'is or may be liable to make the progress payment': s 22(1). Section 20 identifies the due date for payment being 25 business days after the payment claim. Interest is payable on unpaid amounts from that due date.[198]
6. A respondent to a payment claim is afforded the opportunity of responding by providing a 'payment schedule' to the claimant within 15 business days: s 25(1)(b). If the respondent does not propose to make any payment, the payment schedule must indicate that position identifying the reason why: s 25(2)(d), s 25(3)(a) and s 25(3)(b). If the respondent does not provide a payment schedule as prescribed, they become liable to pay the claimed amount by the due date as if the claim were admitted in full: s 26. If the respondent does not pay the debt by the due date, then the complainant is able to enforce the statutory debt summarily in recovery proceedings before a competent court.[199]
7. The purpose of these provisions was recently considered by his Honour Musikanth J in the Supreme Court proceeding:[200]

(1) The evident purpose of the procedure contemplated by s 25 of the Act is to encourage a respondent to engage with a payment claim.

(2) With the benefit of a payment schedule, the claimant will quickly know whether its claim is accepted or contested (and if contested, the reason why).

(3) The payment schedule serves the important function of informing the claimant of the metes and bounds of the dispute so that the respondent can make an informed choice as to how to proceed.

(4) If the [claimed or scheduled amount owed] is not paid by the due date, the Act creates a statutory debt in favour of the claimant which may be recovered in proceedings before a competent court.

(5) In short, the approach reflects a 'clear parliamentary intention of "speak up or pay up"'.

1. The statutory scheme is ordinarily used in circumstances where the construction contract remains on foot and progress payments need to be met in order to ensure construction works can continue unimpeded. As such it is an interim payment which does not affect the party's final rights and entitlements at general law.[201] It is a statutory scheme aimed at ensuring that money in relatively large construction projects keeps flowing and works do not come to a halt.[202]
2. Whilst an unusual approach to an alleged failure to pay an amount due and owing in circumstances where there are no ongoing works to be performed (and therefore the payment claim was not a true progress claim) nevertheless it is not in dispute between the parties that the statutory scheme of the SOP Act applies. The sole question being whether the plaintiff is in fact the relevant party to the construction contract.
3. It is also not in dispute between the parties that given that the defendant did not provide the plaintiff with a payment schedule as required by s 25, if the court finds that the plaintiff was a party to the relevant construction contract, the defendant became liable to pay the payment claim on 3 November 2023.[203]

1. The plaintiff's primary case is that, when adopting the analytical mode of offer and acceptance, a contract was formed between the parties on or about 1 June 2023. In this regard the plaintiff asserts the following:

(a) the emails exchanged between 18 May and 26 May 2023 evidences the scope of works to be carried out as opposed to evincing an objective intention by the parties to be bound immediately and comprehensively;

(b) once the scope of works had been identified, the plaintiff was then in a position to make its offer by proffering its terms and conditions of supply on 29 May 2023 which the plaintiff submits was an offer in the most classical sense;

(c) the plaintiff notes that an offeror may prescribe a method of acceptance, which in this case was the acceptance by the defendant of the labour onsite constituting its agreement to the plaintiff's stipulated terms and conditions;[204] and

(d) once the labour mobilised onsite on 1 June 2023 the plaintiff submits the defendant accepted its terms and conditions and the offer was formally accepted.

1. The plaintiff submitted to the court that contrary to the defendant's position at trial, the terms and conditions provided to the defendant are not those in respect of the provision of credit. Rather, they are standalone terms of labour supply covering matters pertinent to such contractual arrangements such as invoicing and supply arrangements, expenses, applicable law, occupational health and safety, medical costs, warranties as to the qualifications of the labourers supplied, insurance, timesheets and so forth. The plaintiff contends that the terms are freestanding and operate whether or not there is also an agreement in place for the supply of credit.[205]
2. The alternative approach relied upon by the plaintiff is for the court to undertake the more involved analysis of inferring a contract from all of the objective circumstances in lieu of identifying a specific offer and acceptance. In this regard the plaintiff invites the court's attention to the following:

(a) the various communications of LHRE material provided to Complete;

(b) the evidence before the court that LHRE supplied and paid for the labour personnel;[206] and

(c) the conduct of Mr Dillon on behalf of the defendant in treating uncontroversial the presence of LHRE as the invoicing party at all times and thus as the legally contracted party.

1. In relation to the defendant's contention that the court ought to find that the parties agreed to the essential terms of the contract on 26 May 2023, which constituted an offer made by OSB Group that was accepted by Complete, the plaintiff submits that this an erroneous approach for the following reasons:
   1. Despite the defendant pleading that Mr Massey acted on behalf of Complete, it adduced no evidence at trial of his actual authority. The plaintiff submits that the evidence before the court in fact demonstrates to the contrary, namely that Mr Massey lacked authority. For example, in his email of 13 May 2023, he forwarded LHRE's terms and conditions 'to the relevant parties', namely Mr Dillon.[207] Additionally, Mr Dillon described in his evidence Mr Massey as a mere employee[208] who was employed by Complete for a period of only eight weeks.[209]
   2. The approach invited by the defendant is atomistic in nature which has been subject of criticism by the Court of Appeal.[210]
   3. Insofar as the defendant sought to rely on the booking of flights for the labour as evidence of a contract, the plaintiff notes that this was not pleaded.[211]
   4. Insofar as the defendant relied on the day worksheets, this is a further illustration of selective identification of material contrary to the established principles of contract formation. In any event the plaintiff submits to the court that little can be drawn from the ticking of OSB Group boxes because there was no evidence before the court as to who ticked the box, the employees carried no ostensible authority to bind the company, and ultimately the day worksheets were reproduced without any box ticked prior to their provision to the defendant. The plaintiff submits therefore that the ticking of the box on the day worksheets cannot be determinative of the legal contracting party.[212]
   5. A consideration of the totality of the evidence enables the court to consider admissions against interest given the course of conduct of Mr Dillon in failing to ever take issue with LHRE being the relevant invoicing party and therefore the relevant contracting party. The plaintiff submits that Mr Dillon's conduct, and therefore the conduct of the defendant, is consistent only with the position that it was contracting with the plaintiff.
2. Lastly, the plaintiff submits that if the court is unable to find the formal formation of a contract, an alternative way of proceeding is for the court to characterise the very same conduct identified by the plaintiff as giving rise to an arrangement. The plaintiff submits that this involves giving a different legal characterisation to the same set of material facts.
3. The plaintiff accepts that if the court finds that a contract was formed, then there is no need for it to consider whether an arrangement existed.

1. The defendant submits to the court that an examination of the relevant documents reveals an objective intention between Complete and OSB Group to enter into a construction contract for the works at the Spinifex Hotel given the following:

(a) the pre-contractual written communications, and the written communications by which the contract was formed, were all sent and received on behalf of OSB Group. As such, the defendant submits that a reasonable person would have understood that it was OSB Group who was offering to perform construction work for Complete and who ultimately undertook to carry out that work;

(b) there is no written communication or other form of documentary evidence capable of establishing that Complete's directing mind and will (being Mr Dillon) knew about the existence of LHRE until after the essential terms of the construction contract were agreed with OSB Group (which occurred on 26 May 2023); and

(c) conduct occurring contemporaneously with OSB Group's performance of the work unequivocally supports the conclusion that it was that entity, and not LHRE, that contracted with Complete.

1. In relation to the latter point the defendant invites the court to have regard to the following documents which it says enables the court to make a finding or draw an inference that it was OSB Group who performed the works at the Spinifex Hotel:

(a) the day worksheets in respect of which the box of OSB Group was ticked, being documents completed by Mr McPherson, who was also described as an employee of OSB Group in contemporaneous correspondence;

(b) Mr Swain's site report of 6 June 2023 which referred to the work being performed by employees of OSB Group;[213] and

(c) the failure of Kevin and Michael at any time to correct references in email correspondence that the labour supplied to the Spinifex Hotel were employees of OSB Group.

1. The defendant submits to the court that insofar as the plaintiff relies on the terms and conditions emailed to Mr Massey on 29 May 2023 as constituting an offer or forming part of the contract for the provision of labour to the Spinifex Hotel:

(a) any reliance on that document is ill-founded and misplaced in circumstances where Complete did not ask for credit, and nor did it execute the credit application;

(b) the terms and conditions form part of a 4-page document, with pages 1 and 2 being the credit application and pages 3 and 4 appearing to be the terms and conditions regulating the provision of any credit;

(c) it is not in contention that Complete never sought credit, was never provided any credit, nor was party to any terms and conditions in respect to any provision of credit;

(d) in any event the credit application must be executed by the relevant party in order to acknowledge that they have read and understood the attached terms and conditions thus expressly acknowledging not only that the four pages constitute one collective document, but secondly the document takes no effect unless the certification statement is completed as stipulated;

(e) on its plain reading the credit application regulates the provision of credit to the successful credit applicant and stands separately and aside from the contract for the supply of labour which clearly proceeded in the absence of any application for credit being sought or granted;

(f) the credit application was not a separate document to the terms and conditions as evidenced by the fact that the documents are numbered sequentially and given that the terms and conditions were never provided to the defendant in the absence of the credit application;[214] and

(g) whilst the defendant accepts that an offeror can prescribe a mode of acceptance, in this case there was no evidence of a prescribed mode of acceptance in relation to the 4-page document given that neither party conducted themselves in a manner which evidenced that they were bound by it. For example, the defendant notes that LHRE did not provide a schedule of rates as required by cl 3.1, invoices were not issued weekly as required by cl 4.1 and the invoice which was issued was not required to be paid within 14 days (cl 4.2).

1. In relation to the plaintiff's contention that the court ought to find that Mr Dillon's silence in relation to LHRE being the invoicing party, should be taken as an admission against interest, the defendant submits that there is no proper basis on which the court could make that adverse finding. The defendant submits that the court ought to accept the evidence of Mr Dillon that he did not raise an objection because at all times he held the subjective belief that Complete had contracted with OSB Group, which the defendant submits is entirely consistent with Mr Dillon's emails to Mr Swain and Michael on 6 June 2023 which referred to the labour supplied as being that of OSB Group. The defendant submits that during the relevant period of time Mr Dillon did not even know that the plaintiff, as a separate corporate entity, existed. In this regard the defendant notes that there was no unequivocal communication ever made by the plaintiff to the defendant that it was contracting with LHRE. Indeed, all of the contemporaneous communications, on the defendant's case, reflected otherwise.
2. In relation to the plaintiff's alternative argument, namely that an arrangement was entered into between the parties, the defendant repeats its position as set out above. Namely, an arrangement still requires a consensus or meeting of the minds between the two relevant parties.[215] In this regard the defendant submits that the consensus or meeting of the minds was between Complete and OSB Group.

1. The traditional approach to the question as to whether parties have reached agreement is to enquire whether there has been both offer and acceptance.[216] That approach requires a clear outward manifestation of an offer made by one party (the offeror) of a willingness to be bound on certain terms which is then accompanied by an unequivocal assent to that offer communicated by the other party to the negotiation (the offeree). The parties' intentions to be bound is objectively determined, with the court considering the interpretation that a reasonable person would place upon the parties' words and actions, rather than the subjective intention espoused by the parties themselves.[217]
2. It has been recognised however that at times the approach as to whether a binding agreement has been concluded is difficult to analyse in terms of offer and acceptance and indeed such an approach may, in the context of the particular factual circumstances, be unrealistic.[218] A binding agreement can therefore be found without identifying, in the traditional sense, an offer and acceptance. That approach involves an analysis of inferring a contract from an objective consideration of all the relevant facts and circumstances which are found to exist including by:

(a) examining what the parties said and did in the context in which those statements and actions occurred;

(b) an objective discernment of the import and meaning of relevant contemporaneous documents;

(c) having regard to the surrounding relevant circumstances as found to be known by the parties; and

(d) the genesis, purpose and object of the relevant transaction.[219]

1. The question is whether, in all the circumstances, can an agreement between the plaintiff and defendant be inferred? Has a mutual assent been given by the defendant to an offer made by the plaintiff? That involves a consideration as to what a reasonable person in the position of the plaintiff and a reasonable person in the position of the defendant would think as to whether a concluded bargain had been reached between those two entities.[220]
2. In the context of this case, it is important to also consider what part, if any, the role of silence as post-contractual conduct has to play in the determination of the crucial question. In that regard I note the following relevant principles:

(a) post-contractual conduct is admissible on the question of whether a contract was formed;[221]

(b) subsequent communications may legitimately be used against a party as an admission by conduct of the existence or non-existence, as the case may be, of a subsisting contract, where an issue concerns whether a particular person was a party to the contract;[222]

(c) subsequent communications may be taken into account (including silence in response to a propounded contractual position) as a factor in determining whether prior dealings between the parties gave rise to a binding agreement;[223]

(d) the post-contractual conduct cannot permissibly be used in order to interpret the terms of a contract but rather is confined to the question as to what was the real contract between the parties and what were their beliefs as to the effect of the written contract;[224] and

(e) it is only in cases where the post-contractual evidence is clear that inferences, such as the existence of a contract, will be drawn. Nevertheless, there is nothing in principle which prevents proof of a contract by admissions as long as the admission is made with sufficient clarity and deliberation.[225]

1. Thus, evidence of post-contractual conduct is admissible in this case regarding the question of whether a binding contract was entered into between the plaintiff and the defendant. It is certainly not capable of being conclusive of that matter because ultimately the construction of a contract is always an objective determination for the court. Nevertheless, it is a matter that the court may have regard to in making that objective determination.
2. In this case, in my view, the traditional approach of offer and acceptance is not capable of identifying whether a contract existed, whether it be between the plaintiff and the defendant, or whether it be between OSB Group and the defendant. This is because, on the basis of all the facts and circumstances of this case, the negotiation of the contract proceeded both organically, informally, and relatively quickly over a matter of days in respect of which the parties appeared to struggle to ensure formal matters were properly addressed. If that were not the case, the dispute simply would not have arisen.
3. It is necessary for the court to determine who the contracting parties are because of the actions, or inactions of the parties - the plaintiff's failure to expressly communicate that it was the offeror, and the defendant's failure to query or at the very least to clarify that matter. The latter matter is pertinent in circumstances where the court has made a finding that the defendant was appraised as at 12 May 2023, that the O'Shea brothers had two businesses through which they operated.
4. I turn then to undertake an objective assessment of what was conveyed by the parties by their words and actions in the relevant surrounding circumstances as known by them and when considering the genesis, purpose and object of the transaction.[226]
5. Firstly, I note that much has been said by the defendant in these proceedings of an assumption purportedly made by it that it was contracting with OSB Group because it received a number of emails using that entity's email address and signature footer. In my view, the emphasis and reliance on that matter is misplaced. I say this when one considers, objectively, the totality of the evidence before the court as to the parties' words, conduct, and knowledge which relevantly includes the following:

(a) Mr Dillon, the controlling mind and will of the defendant, knew as of 12 May 2023 that the O'Shea brothers operated through two business entities, OSB Group which undertook primarily large mining contracts and LHRE which was its labour supply division;

(b) on 17 May 2023, Mr Dillon, acting as Complete, enquired of Michael labour supply services for rectification works at the Spinifex Hotel. This conversation took place five days after Mr Dillon attended a meeting during which he was informed that LHRE provided that very type of service; and

(c) whilst the defendant certainly received emails in respect of the Spinifex Hotel works on the email address of OSB Group, I note the following:

(i) simultaneously during the relevant period, the defendant was also negotiating with OSB Group in relation to the Onslow Project. The defendant was therefore in communications with both Kevin and Michael utilising the OSB Group email addresses for that separate but simultaneously negotiated arrangement;

(ii) the defendant knew that both OSB Group and LHRE were companies of the O'Shea brothers;

(iii) the unchallenged evidence before the court is that both OSB Group and LHRE operated from the same office premises and shared the same administrative personnel and indeed utilised the same casual labour workforce across their projects. That is, there was fluidity across the organisational structures and operations of those entities as one might expect when both are operated by two brothers;[227]

(iv) it ought to be uncontroversial for the court to recognise that in the current technological world in which individuals operate, and the speed within which they do so, that often the email address from which one chooses to communicate is simply a matter of convenience rather than the conveyance of a level of formality. This is particularly so when individuals have access to multiple email addresses. In the context of this case the O'Shea brothers were already communicating with Mr Dillon using their OSB Group email. As a matter of convenience, it seems logical that they would continue to do so despite extending into communications in relation to a different project.

1. In my view, therefore, at the time that the 26 May 2023 email was sent by Kevin to Complete, the identity of which corporate entity the O'Shea brothers were utilising for the labour supply had not been formally identified albeit the plaintiff subjectively intended to be the offeror. In my view, an objective analysis of all the relevant facts and circumstances by 26 May 2023 evidence that that matter remained ambiguous. For that reason, despite details of the relevant personnel being offered and the rates at which they would be charged being communicated (and purportedly accepted by Mr Massey) it was not possible for that correspondence to constitute an offer capable of acceptance.
2. A further issue arises, if the court is wrong in its finding, as to the authority of Mr Massey as an employee of Complete to bind it in any contract whether it be with OSB Group or with LHRE. Despite the defendant pleading that Mr Massey was acting for and on behalf of Complete in his communications on 26 May 2023, no evidence was led by the defendant to establish that matter beyond the fact of his employment.
3. The party claiming that apparent or ostensible authority exists in a particular case bears the onus of proof.[228] The defendant submitted to the court that the matter of authority was not in issue in the pleadings and therefore no onus of proof arose.[229] I do not accept that submission. The matter of agency has been pleaded by the defendant. Given that the defendant alleges, by way of defence, that a contract was entered into by its agent, the defendant bears the onus of proof that the agent had the authority to bind it.[230]
4. The scope of apparent authority is determined by asking what the principal has represented to the third party.[231] The authority of an agent may be apparent, where it results from such a manifestation made by the principal to the third party.[232] For apparent or ostensible authority to exist, a representation therefore must be made by the principal (Complete) through words or conduct, expressly or impliedly, or by acquiescence as to the agent's authority to act on the behalf of the principal in relation to which the third party has relied.[233]
5. Even if the court were to take the evidence at its highest in favour of the defendant and infer that ostensible authority existed on the basis of an implied representation made by Mr Dillon on behalf of Complete by acquiescing to Mr Massey's agreeance to terms, that is not capable of establishing authority to the extent of Mr Massey determining who Complete would contract with. Indeed, as I mentioned that matter had not been specifically addressed by the parties at the time of the relevant communications.
6. A further hurdle in relation to this matter is that ostensible authority operates negatively, that is, by preventing the principal (Complete) from denying that the agent had the authority to legally bind the principal in the relevant context.[234] Thus, in my view in any event the defendant cannot rely upon it in the manner pleaded.
7. It follows therefore that no contract was entered into on 26 May 2023 and indeed the issue of the identity of the relevant contracting party (as offeror) in my view remained a live one.
8. It may strike as somewhat unusual that terms were being agreed, and indeed were starting to be acted upon, in the absence of an agreement as to which entity was going to perform the requisite services the subject of those terms. However, in my view that matter is not so striking in a case where the identity of the contracting party was limited to a choice of two, both with the same sole director and controlling mind, and both operated by the same two individuals in circumstances where there was a clear level of ambivalence by the other negotiating party as to that very matter.[235]
9. In such circumstances the clear materiality and significance of Kevin's email to Mr Massey and Ms Lees, copied to Mr Dillon, on 29 May 2023 becomes apparent.[236] That email attaches the only formal documents provided to Complete prior to it accepting the supply of labour the subject of negotiation. It clearly identifies LHRE and is split into two separate documents entitled 'LHRE credit application form' and 'LHRE labour hire client terms and conditions' as is evident in the attachment line of the email.
10. It is not disputed in the proceeding that the credit application form was never completed by Complete and therefore it never sought a supply of credit and nor was one provided. What is in dispute is whether the terms and conditions provided together with the credit application form were standalone terms of labour supply which were being put forward to Complete for its acceptance.
11. In my view the LHRE standard terms and conditions document was indeed a standalone document despite it being numbered sequentially with the credit application form for the following reasons:

(a) a standalone document can nevertheless be attached to various documents, relevantly here, to a credit application form, without it forming part of that document. Many such examples exist such as appendices to research or conference papers, schedules to contracts, annexures to legal documents and so on. In such circumstances the appendices or annexures are clearly capable of standing alone despite being numbered consecutively together with the document to which they relate;

(b) on each occasion that the documents were provided to Complete the LHRE standard terms and conditions document was attached separately to the credit form application and entitled 'LHRE labour hire client terms and conditions'. It was only when the contract had been performed that the LHRE credit application form was sent to Complete absent the attachment of the LHRE terms and conditions, for obvious reasons given that the labour to which the terms and conditions purportedly related had by that stage been performed;[237]

(c) the LHRE terms and conditions document makes only a passing reference to the provision of credit (in cl 4.2, 4.3, 4.5, 4.10 and 4.12 which are applicable only if credit has been provided) and does not include any of the standard terms and conditions one would ordinarily expect to exist in relation to credit applications;

(d) rather, the LHRE terms and conditions document set out the very matters one would expect would be standard terms and conditions applicable to a contract for the supply of labour such as:

(i) the requirement for LHRE to provide a schedule of rates applicable to the relevant labour provided (cl 3.1);

(ii) if the labour hire's original duties as specified are changed, before they undertake that further work, notification needs to be provided to LHRE of the change so that it can verify whether the person is trained, competent and qualified to perform the new duties (cl 3.3);

(iii) providing the minimum period of hire of any given day of 4 hours (cl 3.4);

(iv) stipulating the period of notice to terminate the labour supply (cl 3.5);

(v) providing that where an offer of permanent employment is made to the labour supplied, the requirement that a current permanent placement fee is paid to LHRE (cl 4.6);

(vi) the requirement that the client will provide a safe work environment to the labour supplied and other provisions relevant to occupational health and safety obligations (cl 5);

(vii) requiring the client to be responsible for reimbursing LHRE for any and all medical costs associated with the initial placement of any labour supply and any ongoing medical costs associated with the placement (cl 6);

(viii) identifying LHRE obligations including in relation to warrantees in respect to the labour supply (cl 7);

(ix) provisions identifying the client's obligations including in relation to industrial relations, inductions, the maintenance of liability insurance and related matters (cl 8); and

(x) the requirement that the client or the client's representative sign the labour supply timesheets to confirm the hours to be paid are correct and the normal time and extraordinary time allocations are also correct (cl 9). Importantly cl 9.3 identifies that LHRE will invoice based on the timesheets;

(e) whilst the communications in relation to the documents exchanged between the parties were certainly unsophisticated in nature, in my view it was clear when the documents were provided to Complete that they related to the supply of labour the subject of previous communications exchanged between them on 26 May 2023.[238]

1. Irrespective therefore of Complete applying for credit or not, the LHRE standard terms and conditions were clearly capable of operating independently of any such financial arrangement. They canvassed all the matters that one would ordinarily expect to be applicable to a labour supply contractual arrangement none of which have any applicability as standard terms and conditions to an application seeking credit.
2. In my view the LHRE standard terms and conditions document served two purposes:

(a) it communicated in unequivocal terms to Complete, in circumstances where there had been some ambiguity, that LHRE was the offeror as opposed to OSB Group. Now whilst the formal corporate name of the plaintiff was not identified at that stage (by the omission of 'Pty Ltd'), that has little materiality to the court's finding. This is because it appears that the parties approached such matters with relative informality, perhaps more so on the part of Complete, which appeared to either refuse or certainly failed to provide even a purchase order when requested to do so which would have identified its formal legal corporate name;[239] and

(b) on one analysis, certainly the one proffered by the plaintiff, the provision of the LHRE standard terms and conditions document stipulated the mode of acceptance of the offer by Complete by way of cl 16.4 which provided:

your acceptance of subsequent employment of referred candidates from LHRE will constitute your agreement to these Standard Terms and Conditions.

1. The formal nature of the documents certainly did not appear to be lost on Mr Massey who had, up until that stage, perhaps been heavily involved in communicating with Kevin in relation to details such as the type of labour required and the timing of their arrival. This is self-evident by the fact that Mr Massey informed Kevin that he forwarded the documents to the relevant parties and would follow up, which he did the following day when he forwarded the email to Mr Dillon and Ms Rodgers.[240] Mr Dillon conceded in his evidence that he was the relevant party.[241] As with the request for Complete to provide a purchase order, Mr Dillon, and therefore Complete, remained silent in relation to the request to complete the credit application form and in relation to the standard terms and conditions of LHRE. At this stage the relevance of the documents to the Spinifex Hotel works ought to have been clear given that the subject line of the email referred to the Derby Hotel.
2. Given my finding that Mr Dillon read the relevant documents at least by 30 May 2023, he was armed with the knowledge of cl 16.4 before accepting the labour which mobilised onsite on 1 June 2023. Self-evidently the LHRE standard terms and conditions document did not require execution by Complete. Indeed, other than the credit application form, no document in respect to the terms applicable to the arrangement by which labour would be supplied was subject to any requirement of formal execution. Therefore, the absence of that requirement in relation to the standard terms and conditions is unsurprising. It is also unsurprising that such a document would be attached to a credit application which would ultimately be considered by a financial institution, in this case ScotPac. It is a matter of logic and common sense that a financial institution would wish to have the assurance of the provision of relevant standard terms and conditions applicable to a contract (and a signed acknowledgment to be bound by those terms and conditions) before considering an application for the provision of credit in relation to that contract. Financial institutions do not operate in a void when considering whether to provide credit facilities. The evidence of both Kevin and Michael in this regard was therefore in my view credible and indeed plausible.[242]
3. Therefore, a proper interpretation of the LHRE standard terms and conditions document is that it did form part of the negotiations between the parties, and more materially, identified to Complete in a formal manner, who the offeror was in relation to the supply of labour to it.
4. Whether the parties performed consistently with every term or condition stipulated in the document does not in my view detract from the court reaching this conclusion. This was a very short contract period of some 18 days. Whilst a number of the provisions in the LHRE standard terms and conditions documents were clearly applicable and appeared to be complied with, others were not which can be explained by the confined nature of the contractual arrangement. Indeed, the clauses which appear not to have been complied with which were raised by the defendant in this proceeding are those in relation to the issuing of invoices on a weekly basis and the requirement that the invoices be paid within 14 days.[243] However, given that the contract was of an 18-day duration this is somewhat unsurprising.
5. It is not in dispute that the labour supplied to Complete mobilised onsite on 1 June 2023 and remained until 18 June 2023. Complete accepted the supply of labour and the individuals supplied worked under the supervision and at the direction of Complete.
6. I now turn to consider the post-contractual conduct that the parties have invited the court to have regard to.
7. I turn first to consider the conduct of Mr Dillon which the plaintiff submits is a course of conduct constituting an admission against interest made on behalf of Complete, namely an admission that the plaintiff was not only the correct invoicing party but therefore was also the correct contracting party.
8. As the case law demonstrates, post-contractual conduct, including a course of conduct by silence, can constitute an admission against interest which comprises separate and additional evidence which can be relied upon to establish that a contract existed, and in particular that a contract existed between certain parties.
9. Clearly not every occasion of silence is sufficiently material to amount to an admission and therefore the court must carefully consider the nature and circumstances in which the conduct arises.
10. In my view the post-contractual conduct of Mr Dillon is material in all the relevant circumstances of this case. That is, his continuing course of conduct of silence over many months during which there were ongoing communications as to why the invoice issued to Complete had not been paid stands in complete and utter stark contrast to the defendant's asserted position, namely that Mr Dillon refused to pay the invoice because it had been issued by the incorrect party. Such a position simply flies in the face of Mr Dillon's silence in relation to that matter. Indeed, Exhibit 1 evidences 14 separate communications with Mr Dillon in relation to the invoice issued by the plaintiff, in addition to it being raised at the 26 July 2023 meeting, and yet not one single communication exists in which Mr Dillon identified that he had an objection or concern that it was the plaintiff who was issuing the invoice as opposed to OSB Group.[244] The documentary evidence before the court demonstrates that the 3 July 2023 LHRE invoice was provided to Mr Dillon seven times.[245] Yet on no occasion did Mr Dillon identify that the plaintiff was not the correct invoicing party and/or that the defendant would not pay the invoice for that reason.
11. Two further matters are relevant to Mr Dillon's post-contractual conduct in this regard. Firstly, it is not the case that Mr Dillon did not engage at all in relation to the form and contents of the invoice. That s, it is not the case that Mr Dillon did not scrutinise the invoice or carefully consider it in order to request that changes be made to it. Indeed, Mr Dillon requested numerous changes be made to the invoice before the defendant would be willing to pay it. He communicated a number of times to the effect that if those changes were made (none of which required the invoicing party to change) then payment would be made 'easy enough'.[246]
12. In my view it would have been abundantly obvious to Mr Dillon each and every time he reviewed the invoice that it was issued by the plaintiff. The document could not be more unambiguous in that regard. Not only did Mr Dillon engage with the invoice by requesting numerous changes be made to it, the defendant also requested and in fact received a credit in relation to it (with the relevant correspondence exchanged between the parties in relation to that matter being titled 'LHRE Group Invoice').[247] The credit that was provided to the defendant was in fact provided by the plaintiff.[248]
13. Secondly, what further flies in the face of Mr Dillon's silence in relation to this matter, is the fact that the very issue of the defendant being provided formal documents of a financial nature from the incorrect contracting party was raised during the same relevant period of time in respect to the Onslow Project.[249] That correspondence is unequivocal. Namely, an LHRE credit application was provided to Complete for completion and it refused to do so on the basis that the contract in relation to the Onslow Project was with OSB Group (in this regard the email chain clearly evidences Kevin referring to a credit application being signed 'for the P200 camp'[250] and when an objection was raised with him he immediately responded, 'I agree to the P200 all works will be [invoiced] by OSB Group hope this clears this up').[251]
14. There was no such response by way of objection or concern in relation to the numerous times that the LHRE credit application was provided to the defendant in the context of the Spinifex Hotel project and nor was any such issue ever raised during the multitude of times that the plaintiff issued an invoice to defendant in respect to that project. Indeed, when Kevin allayed Complete's concerns in relation to the credit application which they had construed as being sought in relation to the Onslow Project, by clarifying that it was simply being requested in relation to the 'Derby Hotel' (given that the invoice 'was raised by LHRE Group')[252] no further issue was raised by the defendant. That is, the clarification that it was only sought in relation to the contract with the plaintiff appeared to resolve their concern. If it had not, then that was the very opportunity in which the defendant could have asserted that its position was that both contracts were with OSB Group, not just the Onslow Project. It did not do so, again, in my view because there was no dispute in relation to that matter.
15. Thus, the reliance by the defendant on this documentary evidence to suggest that it is a contemporaneous record in which Mr Dillon raised concerns with Kevin in the 26 July 2023 meeting that Complete was not contracting with the plaintiff in relation to the Spinifex Hotel works, is in my view an artificial contortion of what appears to be clear on the face of those communications. Indeed, I note that whilst Mr Dillon annexed the 27 July 2023 email to his affidavit of 27 March 2024 asserting that it related to the Spinifex Hotel, he failed to annex the immediate response sent by Kevin some five minutes later clarifying that the credit application was not being sought for the Onslow Project (that being the clear concern).[253]
16. The defendant invited the court's attention to an email of 4 August 2023 sent by Ms Rodgers to Mr Uddin which was copied to Kevin and Michael.[254] The email was in response to a request for a LHRE credit application to be completed in respect of the 'NWCH Project'. Ms Rodgers asserts in her email that the defendant engaged OSB Group to undertake works on Spinifex Hotel and at the NWCH Project. I note that there is nothing in the email chain which suggests that the request to complete the credit application form related to the works the subject of this proceeding (in fact the email chain refers to the 'p200 camp'). It is therefore unclear why Ms Rodgers mentioned the Spinifex Hotel in her email.
17. Ms Rodgers was not called as a witness at trial and no witness who gave evidence at trial (including Kevin and Michael) was questioned in relation to the relevance or meaning of that correspondence. In any event Ms Rodgers was an employee of the defendant at the time with no authority to bind it. Mr Dillon gave evidence that she was not the contract administrator in relation to the works undertaken at the Spinifex Hotel[255] and he was not a party to the correspondence. In the circumstances that correspondence does not assist the court, particularly when later correspondence was exchanged with Ms Rodgers in relation to the Spinifex Hotel works entitled 'LHRE Group Invoice' which does in fact include Mr Dillon as a recipient and no objection is raised.[256]
18. Lastly, I note the failure of Mr Dillon to raise objection to the plaintiff as the claimant when the statutory claim was served on the defendant, which provided yet another opportunity to raise objection, and indeed one in which the defendant had a statutory obligation to do so: s 25(3)(a) of the SOP. Yet again the defendant chose silence. Mr Dillon's evidence on this matter was unpersuasive, namely that he did not respond because Complete had not contracted with LHRE.[257] Yet he stated that he understood the serious nature of the claim and the requirement for Complete to respond.[258]
19. I do not accept Mr Dillon's explanation in his evidence, to the effect, that there was no need to object to LHRE being the invoicing party because to his knowledge 'LHRE did not exist'.[259] He was aware of its existence on 12 May 2023 and thereafter was provided documents evidencing its existence on numerous occasions. His silence cannot be explained based on ignorance in all of the circumstances.
20. The post-contractual conduct of Mr Dillon is significant because it goes to the very heart of the issue in contention between the parties and Mr Dillon is the sole director and shareholder of the defendant. He is its controlling mind and will. In my view, his silence in all the circumstances and the multitude of occasions during which his silence extended, is an admission made with sufficient clarity and deliberation that the defendant was in a contract with the plaintiff.
21. Before I leave the issue of post-contractual conduct, I need to address relevant matters raised by the defendant.
22. Firstly, much weight has been placed by the defendant in these proceedings on the day worksheets which were completed each day during the undertaking of the rectification works at the Spinifex Hotel. It is not in contention that the day worksheets have two boxes which can be ticked onsite to indicate whether the company performing the works was the plaintiff or OSB Group. The majority of the boxes in relation to this matter were ticked in respect to OSB Group or no selection was made. It is also not in contention that the day worksheets were completed by Mr McPherson, one of the labour hire personnel involved in those works. Each day worksheet was also approved by a Complete employee and signed.
23. In my view those documents have little if any relevance in the court's objective determination as to which party contracted with Complete. I say this for the following reasons:

(a) there was no direct evidence before the court as to who had in fact ticked the OSB Group box on the relevant day worksheets;

(b) even if the court were to draw an inference that the person who did so was Mr McPherson, the evidence before the court was that he was a mere employee used across both corporate entities, namely both the plaintiff and OSB Group, who had no authority to bind either company;

(c) therefore, if the court were to draw such an inference the evidence at its highest would support the court finding that Mr McPherson had a subjective view at the time that he was employed by OSB Group. His subjective view in that regard is of course irrelevant to the objective determination which needs to be undertaken by this court;

(d) each of the day worksheets were reproduced in typed form and those documents did not replicate the selection of OSB Group as the company who performed the works;

(e) all of those documents collectively, the handwritten day worksheet records and the typed versions, were attached to a formal tax invoice clearly issued by the plaintiff; and

(f) the evidence before the court, which was both credible and reliable, was that the practice of ticking the box by an employee onsite was not determinative of which corporate entity performed the work. The evidence was also that the Spinifex Hotel project employees, including Mr McPherson, were employed by the plaintiff at the time and paid by the plaintiff.[260]

1. The handwritten day worksheets therefore provide little assistance to the court.
2. Lastly, the defendant also appears to submit that the court ought to take into account as relevant post-contractual conduct Kevin's failure to correct references in communications that refer to the labour supplied to the Spinifex Hotel as being employees of OSB Group. I assume that the defendant is inviting the court to find that the conduct is an admission against interest which supports the position that at all times the defendant was in fact contracting with OSB Group.
3. Whilst the defendant did not make the submission with such clarity, the court struggles to otherwise identify the relevance of its written submissions in relation to this matter. In this regard the defendant invited the court to consider the following evidence:

(a) Kevin's failure, when taken to the site report prepared by Mr Swain dated 6 June 2023[261] to explain 'why OSB [Group] was performing the works and not LHRE, nor why Jamie [McPherson] was representing OSB [Group] and not LHRE';[262] and

(b) Kevin's evidence that he did not see any cause to correct information in an email from Mr Dillon to Michael on 6 June 2023 (which appeared on a chain of emails to which Kevin became a recipient on 8 June 2023) in which Mr Dillon referred to Mr McPherson 'of OSB'.[263] In this regard the defendant submitted that Kevin did not see the need to correct the record because Mr McPherson was an OSB Group employee and was at the time working for that entity which is a finding that the court ought to make.

1. As I said, it appears that the defendant is inviting the court to consider the post-contractual conduct of Kevin in order to find that it constitutes an admission against interest which supports a finding that the plaintiff was not the contracting party in relation to the Spinifex Hotel works.
2. There are a number of difficulties in reconciling the submission made on behalf of the defendant. From an evidentiary perspective, I note the following:

(a) the site report prepared by Mr Swain was emailed to Mr Dillon and Mr Massey and subsequently forwarded to other personnel of the defendant.[264] It was never provided to the plaintiff and certainly not to Kevin. It is unclear therefore the basis on which Kevin was able to explain why Mr Swain was referring to Mr McPherson as an OSB Group employee, or indeed the relevance in that regard of Mr Swain's subjective belief; and

(b) the email sent by Mr Dillon to Michael on 6 June 2023 which similarly refers to Mr McPherson as an OSB Group employee was not correspondence directed to Kevin.[265] Whilst the communication was forwarded to Kevin the following day, the email of that date did not refer to Mr McPherson as an employee of OSB Group and indeed when Kevin responded to Mr Dillon on 8 June 2023 he also did not refer to Mr McPherson as an employee of OSB Group. Kevin's evidence was that he did not read the email chain at the time, and I found that evidence credible.[266]

1. Therefore, effectively, the defendant invites the court to find that an admission against interest has been made by the plaintiff due to Kevin's failure (as its sole director) to correct information in an email forwarded onto him on one occasion that referred to one of the labour supply personnel as being an employee of OSB Group rather than the plaintiff.
2. The defendant appears to submit that the failure of Kevin not to correct the record (the one statement in the one email) is an admission by the plaintiff that Mr McPherson was an employee of OSB Group at the relevant time working for that entity.
3. In my view, the evidence is simply incapable of enabling the court to make such a finding. This is when one has regard to the following:

(a) the evidence of Kevin as to fluidity of the use of casual labour between the plaintiff and OSB Group and the context in which the communication arose, namely the use of Mr McPherson (and possibly other of the labourers) after the completion of the works at the Spinifex Hotel to be redirected and retained by OSB Group on the Onslow Project;

(b) the communication did not arise in material circumstances of significant legal import in which one would have a reasonable anticipation or expectation that a correction would be made;

(c) in any event such a correction in all the circumstances would perhaps have led to confusion on the part of Mr Dillon given that 10 days later Mr McPherson may well have been retained by OSB Group, given the casual, project driven nature of the employees used across both corporate entities;

(d) Kevin's recollection is that he did not read the full email chain when he received the email from Michael; and

(e) silence in such circumstances does not constitute a clear, unequivocal and deliberate admission that not only was the labour provided to the Spinifex Hotel employed at the relevant time by OSB Group, but that that entity was the contracting party with the defendant in relation to those works.

1. In my view the evidence is not sufficiently clear to be used for the purpose for which the defendant wishes to use it and does not enable the court to infer from that conduct that a contract therefore existed between OSB Group and the defendant.
2. Following the above factual analysis, I therefore return to the question before the court, namely whether in all the objective circumstances of the case, can an agreement be inferred that was entered into by the plaintiff and the defendant in relation to works undertaken at the Spinifex Hotel? That is, what would a reasonable person in the position of the plaintiff and a reasonable person in the position of the defendant think as to who the relevant contracting parties were?
3. Based upon the court's objective consideration of all the relevant facts and circumstances, in my view an inference can be drawn and I find that a contract was entered into by the plaintiff and the defendant particularly when one has regard to:

(a) the knowledge of the defendant of the plaintiff and the nature of its business following which within five days the defendant sought services of that very nature;

(b) the fact that the only formal documents provided to the defendant, including contractual standard terms and conditions, were documents of the plaintiff and the defendant, after receiving those documents, accepted the labour supplied to it;

(c) the evidence that the labour supplied to the defendant was supplied and paid for by the plaintiff; and

(d) the course of conduct of Mr Dillon referred to at [213] - [222] being an admission against interest from which the court draws an inference that the plaintiff was the correct invoicing and contracting party at all material times.

1. In my view in all of those circumstances a reasonable person would consider that the plaintiff and the defendant had entered into the relevant contract by 1 June 2023. Further, one must bear in mind that this was a contract formulated within a matter of days and performed within 18 days. It was fast moving, relatively informal and negotiated in an unsophisticated manner. Despite those matters it is the court's view that when the relevant supply personnel mobilised onsite there was mutual assent to all essential terms of the agreement by the plaintiff and by the defendant.
2. Given that the court has found that an agreement was reached between the parties, which therefore does constitute a construction contract for the purposes of the SOP Act, it is unnecessary for the court to consider whether an arrangement existed.
3. The court therefore turns to consider the second issue arising to be determined on the pleadings.

Whether the plaintiff assigned the debt owing to ScotPac

1. The defendant has pleaded in the alternative that by no later than 2 October 2023, the plaintiff assigned its right, title and interest in and under the construction contract to ScotPac, including its right, title and interest in any payments the defendant was required to make to it. The defendant asserts that the assignment is to be inferred from written statements to the effect pleaded, contained in the invoices issued to Complete. The defendant submits that the invoices constitute notice to the defendant of the assignment pursuant to s 20(1) of the Property Law Act.
2. The plaintiff's position is that the invoice issued to the defendant was automatically generated and contained a mere error in the reference to requiring payment to be made to ScotPac.[267] The plaintiff submits that this position is supported by the letter the plaintiff obtained from ScotPac dated 25 October 2024 stating that it does not hold any claim over the invoice on the grounds that the credit application process was not executed by the defendant.[268] The plaintiff notes that the defendant required discovery in relation to the matter which yielded no evidence of any assignment and no subpoenas were issued to ScotPac. As a result, the plaintiff submits to the court that the defendant has failed to satisfy its evidentiary burden of proof.

1. In my view there is no persuasive evidence before the court of any assignment of the debt from the plaintiff to ScotPac. An automated generic invoice in the absence of any other evidence is simply an insufficient basis on which the defendant could satisfy its burden of proof.
2. Kevin gave evidence as to the error that arose in relation to the generation of the invoice which was credible and reliable.[269] Kevin also gave evidence as did Michael regarding the process that needed to be followed in order for the assignment of a debt to ScotPac which the defendant refused to engage in.[270] It was indeed the actions of the defendant that resulted in the inability of the plaintiff to assign the debt and avoid involvement in protracted and costly legal proceedings. I find that in fact there was no assignment of the debt to ScotPac.
3. The defendant seeks to rely on Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd[271] in which the New South Wales Court of Appeal considered whether a statement in an invoice in similar terms meant that the purported claimant was in fact the claimant under the SOP Act. Gleeson and Leeming JJA held that if a payment claim unequivocally states that it has been assigned to a third party and requires payment to be made to that third party, the purported claimant is not a claimant for the purposes of the SOP Act.[272]
4. That authority does not assist the defendant in the factual context of the case before this court. That is because in Quickway the claimant conceded that the relevant debt in question had been the subject of a valid legal assignment with effect from the service of the tax invoice, and that before that notice was received, there had been a valid assignment of the debt in equity.[273]
5. Indeed, in that case ScotPac had sent repeated letters to the respondent pursuing payment of the assigned invoice.[274] In addition in Quickway the very document which was contended to be a payment claim asserted that the plaintiff was no longer a creditor.[275]
6. The facts of this case are materially different. It is not conceded by the plaintiff that there has been an assignment to ScotPac. The payment claim made pursuant to the SOP Act does not assert that to be the position. Further, ScotPac has not taken action of any kind seeking payment of the purportedly assigned debt to it. In any event, the statement in the plaintiff's invoice cannot be said to 'unequivocally' state that it has been assigned to a third party as was the case in Quickway (the invoice in that case stated that it had 'been assigned to Scottish Pacific (BFS) Pty Ltd').[276] The invoice in the proceedings before me simply states 'All amounts payable under contracts to which this invoice relates, have been transferred to Scottish Pacific (BFS) Pty Ltd'.[277] In addition, there was no documentary evidence before the court in Quickway produced by ScotPac denying any legal hold over the payment claim as is the case here.[278]
7. In all the circumstances the defendant has failed to persuade the court, on the balance of probabilities, that the plaintiff assigned its debt to ScotPac.

1. It therefore follows that as the parties entered into a construction contract as defined in the SOP Act, that statutory scheme applies.
2. It is not in dispute that the plaintiff served a payment claim on the defendant on 2 October 2023 in the amount of $81,934.64 (including GST).[279]
3. It is also not in dispute that the defendant did not respond by way of providing the plaintiff with a payment schedule (or at all). The defendant is therefore liable to pay the claim as if it were admitted in full: s 26 of the SOP Act.
4. Payment became due on 6 November 2023: s 20(1)(b) of the SOP Act. Interest is payable on the claim at a rate of 6% per annum: s 21(b) of the SOP Act and Civil Judgments Enforcement Act.
5. The plaintiff also seeks a costs order in its favour. In my view, costs ought to follow the event. The basis on which the order for costs ought to be made can either be agreed by the parties or be the subject of submissions.
6. I will therefore hear from the parties as to the form of the final orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Affidavit of Kevin Patrick O'Shea sworn 14 February 2024 (First O'Shea Affidavit), par 4.

[2] First O'Shea Affidavit, pars 1 and 4.

[4] First O'Shea Affidavit, par 6; Affidavit of Michael Anthony O'Shea sworn 28 May 2025 (M O'Shea Affidavit), par 4.

[5] Affidavit of Emanuel Richard Brian Dillon sworn 27 March 2024 (Second Dillon Affidavit), par 4.

[8] Second Dillon Affidavit, pars 6 and 7.

[9] Second Dillon Affidavit, pars 8 and 9.

[10] Affidavit of Kevin Patrick O'Shea sworn 27 May 2025 (Third O'Shea Affidavit), pars 7 and 8; M O'Shea Affidavit, pars 6 and 7.

[11] M O'Shea Affidavit, par 8; First O'Shea Affidavit, par 7; Second Dillon Affidavit, par 15; Amended Trial Bundle document (ATB) 4.

[13] First O'Shea Affidavit, pars 10 - 12; ATB 5, 10 - 12.

[15] First O'Shea Affidavit, pars 15 - 16; Second Dillon Affidavit, pars 25 and 33.

[16] Second Dillon Affidavit, par 25; First O'Shea Affidavit, par 17.

[17] Third O'Shea Affidavit, pars 13 and 14.

[21] ATB 26, 27, 34 - 38, 43, 57, 59 and 60.

[23] Westgem Investments Pty Ltd in its own right as Trustee for Hossean Pourzand and Jenny Maria Pourzand atf the Helen Trust v Commonwealth Bank of Australia Ltd [No 5] [2019] WASC 310 [96] (Tottle J).

[24] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [111] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[25] The principles identified in Aon Risk Services Australia Ltd v Australian National University were considered by Edelman J in Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406 [31].

[26] LHRE Group Pty Ltd v Complete Hire & Sales Pty Ltd [2024] WADC 61.

[27] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 (Dixon J).

[28] Nominal Defendant v Owens (1978) 22 ALR 128, 132 - 133.

[29] Nominal Defendant v Owens referring to the judgment in Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.

[32] Third O'Shea Affidavit, par 10; ATB 4.

[38] First O'Shea Affidavit, pars 11 and 12; ATB 10.

[39] First O'Shea Affidavit, par 13; ATB 11.

[49] Third O'Shea Affidavit, pars 27 - 29.

[53] First O'Shea Affidavit, pars 15 and 16.

[59] First O'Shea Affidavit, par 18; ATB 23.

[60] First O'Shea Affidavit, par 18; ATB 24 - 27, 34, 35, 37, 42 and 43.

[66] Third O'Shea Affidavit, par 30; ATB 46; ts 224.

[67] Third O'Shea Affidavit, pars 15 and 16.

[68] Third O'Shea Affidavit, pars 17 - 20; ATB 34.

[69] Third O'Shea Affidavit, par 21; ATB 35.

[85] M O'Shea Affidavit, pars 11 and 12.

[88] ts 151 (Kevin O'Shea); ts 241 (Michael O'Shea).

[89] Second Dillon Affidavit, pars 1 and 4.

[92] Second Dillon Affidavit, par 6; ts 292.

[93] Second Dillon Affidavit, par 6; ts 293.

[95] Second Dillon Affidavit, par 7; ts 294.

[98] Affidavit of Emanuel Richard Brian Dillon sworn 11 June 2025 (Third Dillon Affidavit), par 62; ts 296 - 297.

[101] ts 298; Affidavit of Emanuel Richard Brian Dillon sworn 14 March 2024 (First Dillon Affidavit) (MFI C).

[102] First Dillon Affidavit, pars 11 - 13; ts 298 - 301.

[103] Second Dillon Affidavit, par 14.

[104] Third Dillon Affidavit, pars 5 and 6.

[111]Second Dillon Affidavit, pars 25 and 33.

[143] ts 329 and 330; Second Dillon Affidavit, par 38.

[150] ts 332; Second Dillon Affidavit, par 40.

[169] Re Swan Services Pty Ltd (in liq) [2016] NSWSC 1724 [6] (Black J).

[170] DM Drainage & Constructions Pty Ltd v Karara Mining Ltd [No 6] [2021] WASC 410 (DM Drainage) [62].

[171] Briginshaw v Briginshaw (361) - (363) (Dixon J).

[172] Briginshaw v Briginshaw (360) (Dixon J).

[173] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5.

[174] Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 141.

[175] Chamberlain v The Queen [1984] HCA 7; (1984) 153 CLR 521 [13] - [16].

[176] Third Dillon Affidavit, pars 9 and 10.

[180] Third Dillon Affidavit, par 40; ATB 22.

[183] ATB 15, 16, 17, 22 - 27; ts 314, 319 - 322, 333 and 334.

[188] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[189] DM Drainage [69] - [70].

[190] Fabre v Arenales (1992) 27 NSWLR 437, 449 - 450.

[200] OSB Group Pty Ltd v Complete Hire & Sales Pty Ltd [2024] WASC 310 [18].

[202] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 [40] in which the coram of the High Court quoted the New South Wales, Parliamentary Debates, Legislative Assembly, 12 November 2022, 6542: 'cash flow is the lifeblood of the construction industry'.

[210] Mirabela Nickel Ltd (in liq) (Receivers and Managers Appointed) v Mining Standards International Pty Ltd [2025] WASCA 82 (Mirabela Nickel) [193].

[215] Australian Competition and Consumer Commission v J Hutchinson Pty Ltd [2025] HCA 10 [19] - [20].

[216] La Mela v Franklexis Pty Ltd [2020] WASCA 83 [84]; See generally Furmston M and Tolhurst G, Contract Formation: Law and Practice (2nd ed, 2016), 2 - 5.

[217] Haynes v McNeil [1906] WALawRp 51; (1906) 8 WALR 186; Glass v Pioneer Rubber Works of Australia Ltd [1906] ArgusLawRp 120; [1906] VLR 754; Mirabela Nickel [192].

[218] Subdivisions Ltd v Payne [1934] SAStRp 48; [1934] SASR 214 [220]; Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 [71] - [79]; [2001] NSWCA 61; (2001) 53 NSWLR 153 (Brambles).

[222] Tomko v Palasty [2007] NSWCA 258 [68].

[223] Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653, 670 referring to B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147, 9149 and 9154 - 9156.

[224] Winks v WH Heck & Sons Pty Ltd [1986] 1 Qd R 226, 233.

[225] Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216, 237.

[227] ts 249 and 266 (Michael); ts 157 and 188 - 190 (Kevin).

[228] Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295 [142] (Edelman J) referring to Reynell v Lewis [1846] EngR 1141; (1846) 15 M & W 517, 526 - 527; [1846] EngR 1141; (1846) 153 ER 954, 958 (Pollock CB).

[229] Defendant's closing submissions, 14 July 2025, par 214.

[230] Lysaght Bros & Co Ltd v Falk [1905] HCA 7; (1905) 2 CLR 421, 427.

[231] Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 [36].

[232] Junker v Hepburn [2010] NSWSC 88 [39] (Hammerschlag J).

[233] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28) [2022] VSC 13 [3090] (Elliott J).

[234] Harry S Bagg's Liquidation Warehouse Pty Ltd v Whittaker (1982) 44 NSWLR 421, 429 (Powell J).

[238] ATB 15 being an email from Kevin dated 29 May 2023 in which he informed Mr Massey (copied to Mr Dillon) 'Please see attached for the labour supply outline[d] below ...'.

[239] ATB 27; ts 210 and 216 (Kevin); ts 263 (Michael).

[242] ts 220 (Kevin); ts 260 (Michael).

[244] ATB 23 - 27, 34, 37, 38, 42, 43, 52 - 54 and 59.

[245] ATB 23, 24, 27, 34, 37, 38 and 43.

[248] ts 219 (Kevin); ts 244 (Michael).

[253] Second Dillon Affidavit, par 39 and Annexure 'ERD-10'; ATB 52.

[262] Defendant's closing submissions, 14 July 2025, par 122.

[263] ATB 27; Defendant's closing submissions, 14 July 2025, par 124.

[267] Affidavit of Kevin O'Shea sworn 16 April 2024 (Second O'Shea Affidavit), par 16; ts 244 and 255.

[270] Second O'Shea Affidavit, pars 13 - 16; Third O'Shea Affidavit, pars 26 - 29; M O'Shea Affidavit, par 12; ts 220 - 221 (Kevin); ts 255 - 257 (Michael).

[271] Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWCA 337 (Quickway).