(c) Despite the figures set out in the Progress Claim Schedule, an email from Pepper to Emirge[3] establishes that by 12 April 2023, Pepper was under the impression that Mr De Coppi had paid a total of $129,000 towards the first three stages and part of the fourth stage of construction. Therefore, Pepper was only willing to pay progress claims for part of stage 4 and the subsequent stages. That email from Pepper is largely consistent with the email Mr De Coppi sent to Mr Dye on 3 January 2023 in which he told Mr Dye the bank notified him that he needed to use his own money for the first three payments and after that they would pay the progress claims in full.[4] At the start of his email of 3 January 2023 Mr De Coppi informed Mr Dye he had been on the phone with Pepper that morning trying to find out when they would pay the first two progress payments. Had Mr De Coppi not been under any obligation to make those payments to Emirge, which was what his case boiled down to at trial, there would not have been a need for him to make inquiries with Pepper.

(d) Further, in that same email to Mr Dye, Mr De Coppi stated that Pepper's position 'Throws a spanner in the works as my money doesn't roll over with my dad until sometime next month'. That statement and the rest of the content of that email is consistent only with Mr De Coppi having a belief that he was required to pay the entire Written Contract amount. Had a gentlemen's agreement or side deal existed which did not require him to pay the full Written Contract amount, it makes no sense that Mr De Coppi did not remind Mr Dye of it and its terms.

1. There is one further exchange of emails that is relevant. Exhibit 11 consists of an email Mr De Coppi sent to Mr Dye on 4 May 2023 as well as Mr Dye's response. Mr De Coppi's email contains a table. Upon careful examination of the table, after the hearing had concluded, it was apparent that at least one column was missing from it. A complete copy of Exhibit 11 was provided at my request.
2. I invited the parties to make further submissions in relation to Exhibit 11. Counsel for Emirge did not wish to do so. By email dated 28 February 2025 Mr De Coppi submitted a typed document, which he referred to in his email as a written submission. Arguably, the document goes beyond submission and contains material that ought to have been the subject of evidence. However, without having regard to Exhibit 11 and Mr De Coppi's written submission, I am not satisfied a gentlemen's agreement or side deal existed.
3. Nonetheless I have considered Exhibit 11 and Mr De Coppi's written submission. For the following reasons, I am satisfied that Mr De Coppi's email that is part of Exhibit 11, including the table, provides no support for Mr De Coppi's position.

(a) The content of the email is inconsistent with a belief by Mr De Coppi that he was not required to pay the full contract amount. The email was sent after Mr De Coppi had seen an email (not in evidence) from Emirge's lawyer. In the email Mr De Coppi acknowledged he was in a difficult position and was trying to sort out his situation with money. He referred to the fact that he would not be getting money, which he accepted in evidence was from his father, until closer to the end of the build and that his father wanted to pay as much as he could direct to trades. If Mr De Coppi was not required to pay the first three progress payments and part of the fourth one, he did not owe any money to Emirge. In those circumstances any financial difficulties Mr De Coppi was experiencing were irrelevant. Further, it would have been unnecessary for Mr De Coppi's father to pay trades because Pepper would pay the remaining progress claims when they were made.

(b) Nowhere in the email did Mr De Coppi say he did not owe any money to Emirge because of the gentlemen's agreement or side deal.

(c) The email contains a table. In the table Mr De Coppi set out the two progress payments that had been paid to Emirge by Pepper, the anticipated future payments to Emirge from Pepper, the already incurred building costs paid by Emirge ($190,000), as well as remaining estimated building costs for work yet to be done ($156,588). Mr De Coppi submitted that the figure of $156,588 in the table is the 'tally estimate' of future works that never took place and that the figure of $190,000 was an estimate only of future works not completed and past works. While I accept that the figure of future works might be an estimate only, as opposed to having been based on actual quotes to carry out the work, I do not accept the latter figure includes the former. In the table itself next to the figure of $190,000 are the words 'paid out'. Those words are consistent with the figure of $190,000 being the amount Emirge had paid at the date of the email for goods and trades for the construction of the house. My view about that is fortified by the fact that in the table, those two figures are added to arrive at a total of $346,588 from which the total progress payments Pepper would pay pursuant to the Written Contract ($75,750 already paid and $245,250 to be paid) to arrive at a shortfall of $25,588. If the $190,000 included the future works, it would make no sense to add to it $156,588. The shortfall is an estimate of the amount that Emirge would be out of pocket if the construction of Mr De Coppi's house had been completed.

(d) Below the table Mr De Coppi said, 'I know this is not an ideal situation, but I need to resolve this for you and I and it seems the best way moving forward'. That sentence was followed by a dot point and the words '3% margin to be paid'. Regardless of whether the table is referring to estimates of the cost of future work, or quotes for future work, it shows the existence of a shortfall or potential shortfall of money owed to Emirge upon completion of construction of the house. It is clear from the content of the table that Mr De Coppi believed that after Pepper paid the rest of the progress claims, which would be issued after further work took place, there would be a shortfall owing to Emirge. The existence of a shortfall is inconsistent with any gentlemen's agreement or side deal Mr De Coppi claimed existed with terms, of whatever nature, that did not require him to pay the $129,000 of the Written Contract amount.

(e) The email can best be characterised as an attempt by Mr De Coppi to renegotiate the Written Contract in a way that required him to pay less than the $450,000 contract amount.

(f) In his evidence, Mr De Coppi seemed to suggest that the reference to 3% in that email was a reference to a percentage above the cost of construction of the house, which formed part of the gentlemen's agreement or side deal. However, that contention does not sit well with the rest of the contents of the email. Further, it is inconsistent with his written submissions on Exhibit 11. In those written submissions, Mr De Coppi suggested the 3% was an extra margin he and Mr Dye discussed to mitigate any potential interest Emirge accrued. An offer of an extra 3% margin is consistent with evidence given by Mr Dye. Mr Dye's evidence about the email was to the effect that the 3% margin referred to by Mr De Coppi was an additional margin being offered to Emirge for its indulgence in relation to the outstanding progress claims. It is not readily discernible from the email itself that the reference in the email to a 3% margin is meant to be an extra margin. However, it is apparent from the email chain that there must have been other discussions, either orally or by email, about the situation between Emirge and Mr De Coppi. Therefore, it may well have been the case that an extra 3% margin had been discussed by them at some point before the email was sent by Mr De Coppi. However, it does not necessarily follow that is what he meant in the email.

(g) I need not make any finding about what the reference to a '3% margin to be paid' actually meant because what is significant is that the reference to any 3% margin is inconsistent with Mr De Coppi not owing any money to Emirge because of the gentlemen's agreement or side deal.

(h) The table shows a shortfall owing to Emirge of $25,588. In his written submissions on Exhibit 11 Mr De Coppi suggested the potential shortfall consisted of the extra 3% margin. That position is inconsistent with the figures in the table. It is clear the shortfall is the difference between total construction costs and the total amount Emirge would be paid by Pepper if the house was completed. The shortfall amount bears no relationship to a margin of 3% on the total anticipated or estimated construction cost of $346,588 that is set out in the table.

1. Having regard to the conclusions I have reached about Mr De Coppi's email that is part of Exhibit 11, I considered it was not necessary to hear the parties orally in relation to Exhibit 11, nor for Mr De Coppi to give evidence relating to his written submission about it.
2. In cross-examination, Mr De Coppi attempted to explain the emails that are inconsistent with the notion that he was not required to pay the full Written Contract amount by saying that Mr Dye had asked him to pay extra money instead of waiting for Pepper to pay progress claims. I do not accept that contention because it is inconsistent with the content of the emails themselves.

1. Clause 25(f) of the Written Contract provides that Emirge is entitled to interest on any unpaid progress claims at the rate specified in Appendix 1 Item 9. The rate specified in Item 9 is 20% if not stated. A rate is not stated in cl 25(f).
2. The Defence contends the interest rate is 'exuberant' [sic] and states an argument would be made for the rate to be at the average term deposit amount.
3. Emirge made submissions in relation to penalties on the assumption the Defence was asserting the interest rate was a penalty. Mr De Coppi did not make any submissions in relation to this issue.
4. The onus is on Mr De Coppi to prove the clause is a penalty.[5] An interest rate will be a penalty if it is extravagant and unconscionable in comparison with the greatest loss that could conceivably have followed the breach of contract.[6]
5. There was no evidence led in relation to this issue. On its face, I am not satisfied the interest rate was a penalty.

1. Emirge is entitled to judgment in the sum of $129,000 plus interest at the rate of 20%.
2. I will hear the parties in relation to the formulation of the final orders and costs.

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

[1] Order made by Principal Registrar McGivern on 29 July 2024.

[2] Coyne v GSC Contracting Pty Ltd [2022] WADC 115 [172] - [179].

[5] Spiers Earthworks Pty Ltd v Landtec Projects Corporations Pty Ltd [No 2] [2012] WASCA 53 [23], [86].

[6] Ringrow Pty Ltd v BP Australian Pty Ltd [2005] HCA 71; (2005) 224 CLR 656 [32].