1. The applicant alleged that, on 6 June 2023, the parties entered into a verbal "pet-share" contract under which:

(a) Either, the parties would jointly own Bonnie, or the applicant would remain Bonnie's owner but the parties would have shared care for Bonnie for the remainder of Bonnie's life.

(b) The applicant would give $20,000 to the respondent as a financial contribution towards Bonnie's expenses (such as food, medicine and veterinary care).

(c) Bonnie would mostly live with the respondent but would spend approximately six days per fortnight with the applicant.

(d) The applicant would cancel her dog keeper registration for Bonnie, and the respondent would register Bonnie in her name.

(e) The applicant would be consulted on major issues relating to Bonnie's well-being, such as veterinary care.

(f) The respondent would keep Bonnie up-to-date with vaccinations, worming and tick/flea protection medication.

(g) The respondent would be responsible for Bonnie's regular grooming.

1. The applicant alleged the respondent breached and/or repudiated that contract by:

(a) Refusing to allow the applicant to have contact with Bonnie after 4 June 2024.

(b) Spending some or all of the $20,000 on items not related to Bonnie's care or welfare, such as rent and a second-hand car.

(c) Failing to register herself as Bonnie's keeper until 17 June 2024.

(d) Failing to ensure that Bonnie was on adequate anti-tick medication, which led to Bonnie being bitten by a paralysis tick in May 2024 and becoming seriously unwell.

1. The applicant sought an order requiring the respondent to:

(a) Return Bonnie to her.

(b) Cancel Bonnie's dog keeper registration, which would enable the applicant to re-register Bonnie in her name.

(c) Refund the $20,000 payment minus the cost of reasonable care provided by the respondent prior to the breach and/or repudiation.

(d) Reimburse the applicant the sum of $3,185.24, being vet expenses paid by her for the paralysis tick treatment.

(e) Pay interest on the amounts in paragraphs (c) and (d).

(f) Reimburse the $659 ACAT filing fee.

1. The respondent disputed the claim. The respondent's position was that:

(a) The parties did not agree to be bound by any contract or the alleged terms.

(b) Bonnie was given to her as an unconditional gift, which meant that the respondent became Bonnie's new (and only) legal owner on 6 June 2023.

(c) As a result of the change in ownership, the respondent had no obligation to make Bonnie available to the applicant on a regular basis, or to consult the applicant on major issues relating to Bonnie's well-being.

(d) The $20,000 was also given as an unconditional gift. This entitled the respondent to spend the money as she saw fit and in her sole discretion.

1. The respondent filed a counterclaim in negligence relating to the paralysis tick but discontinued on the first hearing day.

1. My findings of fact are as follows, having regard to all relevant evidence and material before me.[1]
2. Bonnie is a 2.5-year-old female Cavoodle dog. Bonnie's microchip number is [redacted].
3. The applicant purchased Bonnie on 21 September 2022.
4. The applicant's sister and brother-in-law (Mr and Mrs Hargreaves) accompanied the applicant when she collected Bonnie from the breeder. Around the same time, they purchased their own small dog called Charlie. Mr and Mrs Hargraves both provided witness statements and were cross examined at the hearing.
5. In the following weeks, the applicant registered herself as Bonnie's keeper with ACT Domestic Animal Services (DAS) and had Bonnie de-sexed.
6. The respondent runs her doggy day care and grooming business from home.
7. Between November 2022 and at least June 2023, the respondent had three dogs of her own living with her - Rufus, Monte and Missy. The applicant also regularly minded two or three other dogs as part of her day care business.
8. Being a puppy, Bonnie used to be quite a handful. She suffered severe separation anxiety when home alone. The applicant tried to help Bonnie by taking her to the vet and a behavioural specialist. Medication was ineffective. This was a stressful period for the applicant and was compounded by other personal circumstances.
9. In early November 2022, the applicant started taking Bonnie to the respondent's day care business, two or three times per week for a half or full day. Bonnie and Charlie sometimes went together.
10. Over the following months, the applicant and respondent formed a friendship of sorts. The respondent allowed the applicant to access her house and garden (which were off-limits to other clients). The applicant helped with the day care dogs and performed tasks around the house, including painting. The parties attended social activities together.

1. In addition to her dog business, the respondent owns and operates a hypnotherapy clinic called the Canberra Holistic Centre. The respondent advised the Tribunal she had been a member of the Australian College of Clinical Hypnotherapy (ACCH) since 1998.[2]
2. Between April 2023 and April 2024, the respondent provided clinical hypnotherapy services to the applicant. The applicant paid commercial rates for those services into the respondent's business account.
3. The respondent's power-point presentation and bundle of documents included information about her hypnotherapy clinic and several client testimonies, including from the applicant. The respondent advised the material was relevant to these proceedings because her hypnotherapy services changed the applicant's life in so far as the applicant started to travel, which lead to her decision appoint the respondent as Bonnie's emergency contact (which was the precursor to the disputed contract). This is addressed further below.
4. During cross-examination, I asked the respondent whether she had an obligation to maintain appropriate boundaries between her professional work and personal life and if so, whether accepting a "designer" dog and $20,000 as an unconditional gift from a client overstepped that boundary. The respondent advised she had no such obligation, that the ACCH does not have any code of ethics, and that hypnosis cannot make someone do something they do not want to do.

Early discussions about arrangements for Bonnie

1. In April and/or May 2023, the respondent advised the applicant she was concerned that Ms Hargreaves was listed as Bonnie's emergency contact. This was because the applicant intended to travel overseas with the Hargreaves, and the respondent was worried about not being able to contact them in an emergency.
2. The respondent encouraged the applicant to appoint her as Bonnie's emergency contact. The parties also discussed the applicant's wishes if she became unable to look after Bonnie in the future.
3. On or about 22 May 2023, the applicant sent a text message to the respondent stating:

Hi Anjii. I've been thinking about your kind offer to take Bonnie if anything happens to me.

Specifically, I've been wondering whether you'd be interested in having Bonnie permanently, as your own dog, in the near future. I'm well, and I realise that this message will be surprising, but I think that both Bonnie and I would be better off if she was with you and also in the company of Rufus, Missy and the day care dogs.

I'd be happy to make a contribution towards her care of at least $20,000.

Anyway, please let me know your thoughts.[3]

1. The applicant said the purpose of the message was to ascertain whether the respondent might be interested in an arrangement for Bonnie. The applicant envisaged that if she received a positive response, the parties would talk further about what the arrangement would look like.
2. The respondent's son, Mr Bryers, provided a witness statement and was cross-examined at the hearing. He said that he and the respondent had several in-depth conversations about Bonnie, including why the applicant might want to give money to take her. Mr Bryers explained he had initial concerns due to the financial impact of "rehoming" an extra dog when the respondent could have continued to charge commercial rates instead.
3. On or about 30 May 2023, the respondent indicated to the applicant that she would be interested in an arrangement involving Bonnie.
4. At the hearing, the parties disagreed on whether they discussed Bonnie living with the applicant's sister. This was immaterial to the key issues in dispute, and I have not considered it further.

The backyard conversation on 2 June 2023 and proposed contract terms

1. The applicant said that on 2 June 2023, the parties sat in the respondent's backyard and discussed her proposed terms for the arrangement. The applicant recalled the conversation in detail, including that it was a mild day which she thought was unusual for Canberra at that time of year.
2. The applicant said the first (and most important) term was she would continue to regularly see Bonnie and have Bonnie stay with her, to allow their relationship to continue. The applicant had envisaged she would see Bonnie approximately three days per week but could not recall whether a specific number of days was discussed. The applicant stated she was clear in her mind that the discussion about access did happen, and the respondent was happy to maintain ongoing contact because this was a "deal breaker" for her.
3. The second term was the applicant would pay $20,000.
4. The third term was the respondent would take on Bonnie's dog keeper registration. The applicant said this made sense because Bonnie would be spending more time with the respondent, but she also felt the respondent might not agree to the arrangement if Bonnie's registration was not transferred.
5. The fourth term related to worming and tick treatment. The applicant said the parties agreed that only one person should be responsible for Bonnie's regular medications to avoid double dosing, and this should be the respondent.
6. The fifth term was the respondent would continue with Bonnie's dog grooming. The applicant said she also washed and brushed Bonnie during subsequent visits, but that the respondent performed Bonnie's formal grooming for no extra cost.
7. The applicant said at the end of the conversation, the parties agreed to think about it and talk to their families. She was adamant that she never used the words "rehome" or "adoption".
8. The respondent advised the Tribunal she had no memory of the backyard conversation. Instead, she said there may have been a "passing" about the applicant still getting to see Bonnie and that her "moral sense" at the time was "of course you will" and that "it's a given", but that no contract or contractual terms were discussed.[4]

1. On 3 June 2023, the applicant had dinner with Mr and Mrs Hargreaves.
2. The Hargreaves were aware of Bonnie's separation anxiety and that the applicant had been discussing Bonnie's living arrangements with the respondent.
3. The applicant and Mr and Mrs Hargreaves each said they discussed the proposed arrangements in detail at the dinner. Mrs Hargreaves said the applicant described the arrangement as a "pet-share arrangement" under which the applicant would have regular contact with Bonnie and the Hargreaves would not notice any difference in terms of Bonnie and Charlie seeing each other. Mrs Hargraves said this was important to her because Bonnie was part of the family and a close friend for Charlie.
4. Mrs Hargreaves said the applicant talked about making a payment to the respondent, but did not specify how much it would be. At the end of the conversation, she suggested the applicant talk to the respondent about being consulted on major decisions or issues affecting Bonnie and that the applicant agreed that was a good idea.

Communication between the parties between 4 to 6 June 2023

1. On 4 June 2023, the applicant sent an email to the respondent as follows:

I spoke to [the Hargreaves] last night about our plans. It took a bit of explaining, but when they heard me out they could see the sense of it.

Having spoken with them, the only thing that I've had cause to reconsider is the amount of money that I give you. I want to make a significant contribution to Bonnie's upkeep, but on reflection I think that $20,000 is too much. Would you be happy with $15,000? I'm sorry to go back on what I originally proposed, but in hindsight I didn't give enough thought to this aspect of the arrangement.

My thinking now is that if she lives another 15 years (which would make her almost 16) then $15,000 would give you $1000 a year. I think that would be ample to cover food and routine vet expenses, especially since I would be feeding her some of the time.

If you're agreeable, perhaps we could start the arrangement tomorrow. I'll transfer Bonnie's registration and give you a document to sign that returns ownership of Bonnie to me if you become unable to care for her for any reason. I can pay you the money as a direct deposit or cash, as you prefer. I'll also give you her vaccination and sterilisation certificates...[5]

1. Later that morning, the applicant sent a second email to the respondent stating that:

I've not felt at ease since sending my email, and that is telling me that my original thought that $20,000 is the right amount is right. I now feel ok again and really appreciate you taking Bonnie under your wing.[6]

1. Later in the day on 4 June 2023, the parties exchanged general text messages which included a message from the applicant saying:

... Btw I sent you 2 emails today after talking with [the Hargreaves] about Bonnie last night. Perhaps we can finalise our arrangements tomorrow if you've time.[7]

1. On 5 June 2023, the applicant took Bonnie to the respondent for regular grooming. This was the last day that Bonnie was a "paying customer". During cross-examination, the applicant said she discussed the proposed arrangement with the respondent when collecting Bonnie but could not provide detail. In reply, the respondent recalled:

MS BRYERS: Well, there was light conversations, like, you know, I'll still be able to see her, and, you know, we'll organise something that, you know, if you die, I can get it back. So we've had light conversations, but we haven't had conversations about, you know, clauses and what I'm responsible for because I'm simply responsible for my dog. But, you know, it was the same about seeing her. 'I'll still be able to see her.' 'Of course you will, as long as you don't turn into a loony.' You know, 'I'll give you something to, you know, say if you die, you know, get her back, or sure.' Absolutely.

SENIOR MEMBER: So you did have conversations then in that time?

MS BRYERS: Yes, as I said on the second, there would have been a light conversation but there was no in-depth conversations about amounts of money or anything like that. It was simply about, you know, 'It's all very exciting, do you want to do it soon? You know, get that money into your account.' 'I don't know, I've got to talk to Zac about it.' 'I'll still be able to see her.' 'Of course you will.'[8]

1. On 6 June 2023, the applicant took Bonnie to the respondent's home, and Bonnie started living there from that date.
2. Later that day, the parties exchanged text messages about the payment. The respondent suggested the payment be characterised as a gift for taxation purposes and provided a link to the ATO website.
3. The applicant replied, "That's great news. Do you want me to transfer the money now?"[9]

1. On 7 June 2023, the respondent sent a text message to the applicant with an update on Bonnie. The message relevantly stated that:

...So at the end of the day I sat her on my knee and explained every thing we have planned together.

Living here with Rufus as her doggie daddy and missie as her dog mama and grannie loving her. And her helping with the babies and the elderly, having purpose and an official position, and mama arriving excitedly greeting her, and taking her off for 'special girl' times and cuddles and hugs and play and dropping her back off with lots of hugs and kisses etc...[10]

1. On 8 June 2023, the applicant transferred $20,000 into the respondent's personal bank account. This was a different account to the respondent's business account.
2. On 11 June 2023, the applicant cancelled Bonnie's dog keeper registration.
3. Between 6 June 2023 and 30 May 2024, the parties arranged for Bonnie to visit and stay with the applicant. They did this amicably and with minimal fuss. The visits were flexible and depended on the applicant's schedule. This is apparent from the various text messages exchanged between them.
4. The applicant said she saw Bonnie at least weekly and often had her for more than one night. She said that, at least twice, she had Bonnie for a full week because the Hargreaves were away, and she was also minding Charlie.
5. The applicant's recollection of weekly visits is consistent with a text message she received from the respondent on 25 June 2023, asking:

Hey, what days do you want Bonnie this week ...[11]

1. Weekly visits were confirmed by the applicant's lodger, Mr Thomas, who provided a witness statement and was cross-examined at the hearing. Mr Thomas said that Bonnie was:

... going back and forth between both of them ...[12]

and he would wake up in the morning and Bonnie would be there some days and not on others. He further stated that:

... every week she was there ... and it was like, part weekly that they were swapping. I don't know which particular days.[13]

1. The respondent could not confirm the regularity of visits, and instead said they were sporadic and not every week.
2. The respondent referred the Tribunal to a document titled Statement Account (April 2023 to April 2024), which showed payments made by the applicant for hypnotherapy services and Charlie's day care visits. The respondent said Bonnie visited the applicant on only two of the payment dates, whereas the applicant said Bonnie visited her on each of the payment dates in the relevant period because she was also looking after Charlie.
3. Mr Bryers could not recall how often Bonnie visited the applicant, but he did agree that Bonnie visited on numerous occasions and for periods of days at a time.
4. I am satisfied on the evidence that it is more likely than not that, between 6 June 2023 and 2 June 2024, the parties arranged for Bonnie to visit and stay with the applicant for two to three days per week, on average.

1. On 6 July 2023, the respondent purchased a second-hand Lexus RX350 Sports wagon for $7,329.38. In the days leading up to the purchase, the parties exchanged text messages about the car, none of which referred to using the $20,000 payment.
2. On 20 August 2023, the applicant received an email from DAS requiring her to update Bonnie's registration details. The next day, the applicant forwarded the email to the respondent saying she was confused because she cancelled Bonnie's registration in her name "quite a while ago" and that she would leave it to the respondent to attend to.
3. Between December 2023 and January 2024, the applicant took Bonnie to the vet three times. This was for Bonnie's annual vaccination and treatment of an ear infection. The applicant took Bonnie on her own for one appointment, and the respondent attended the third appointment by telephone. The respondent paid for all the vet bills.

1. On 25 May 2024, the applicant took Bonnie on a farm holiday in NSW for two nights.
2. On 27 May 2024, the applicant returned Bonnie to the respondent in the evening. Bonnie showed no signs of illness at that time.
3. On 1 June 2024, the applicant collected Bonnie from the respondent for a regular visit. The applicant observed that Bonnie seemed lethargic and unwell, and called the respondent when she arrived home. The respondent suggested Bonnie may have eaten something in the garden. At that point, neither party considered Bonnie to be seriously unwell or affected by a paralysis tick.
4. On 2 June 2024, the respondent called the applicant shortly after 9am to check on Bonnie. The applicant advised that Bonnie was still unwell. She drove Bonnie to the respondent's house and the parties took Bonnie to the vet.
5. Bonnie was very unwell and stayed at the vet for the following two nights.
6. The vet advised the parties that Bonnie had been bitten by a paralysis tick, and that the brand of tick treatment administered by the respondent may have been insufficient. I have not considered this further because the respondent's counterclaim for negligence was discontinued.
7. On or about 2 or 3 June 2024, the parties had an in-person discussion (at the veterinary surgery) about vet expenses. The applicant expressed relief that the respondent could use some of the $20,000, but the respondent replied she had spent (at least) some of the money on rent.
8. The respondent paid the initial vet bill of $1,000.
9. On 4 June 2024, the applicant paid the outstanding vet bill by telephone, being $3,185.24.
10. Also on 4 June 2024, the respondent took Bonnie home from the vet. The parties disagreed on the preferred treatment for Bonnie and whether taking her home was in accordance with the vet's advice.
11. On 5 June 2024, the applicant sent the respondent a text message asking to collect Bonnie for 24 hours. The respondent replied via text message stating that Bonnie needed to stay with her while 'she was so tenuous'. Further texts were exchanged, in which the applicant asked if she could visit Bonnie for one hour at the respondent's house.
12. On 6 June 2024, the respondent sent the applicant a long email in reply to her requests to see Bonnie. The email relevantly stated that:

You already knew the answer is going to be no. And why it is going to be no. So it leaves me having to ask myself why you wrote those messages in the first place. What was your motivation? To have me in writing say you can't have Bonnie?[14]

1. During cross-examination, the respondent confirmed she did not allow any further visits and that it was her decision and not, for example, the vet's. The respondent said she refused access because the applicant had made a "reckless decision" over the preceding days. When asked for more information, the respondent said that, on 4 June 2024, the applicant spoke to the vet about Bonnie's treatment (including possible surgery) and then tried to set up a three-way conversation between herself, the respondent and the vet to discuss. The respondent took issue with the applicant speaking to the vet because, in her words:

It's not her place to discuss my dog's treatment with the vet.[15]

1. The respondent also said she had not slept for days, was stressed about providing "around the clock" care for Bonnie and did not "feel safe".

1. Bonnie is still living at the respondent's home. The applicant has not seen her since 4 June 2024.
2. On 12 June 2024, the applicant contacted the Australian Federal Police to ask for assistance in having Bonnie returned to her. The attending officer spoke to both parties but was unable to resolve the matter. They referred the applicant to the ACAT.
3. On 17 and 18 June 2024 respectively, the respondent and applicant each took steps to register Bonnie (with DAS) in their names. At the hearing, there was significant confusion about the registration process until an error with Bonnie's microchip number was identified. The respondent holds Bonnie's current dog keeper and microchip registrations. The registration records show that Bonnie's name has been changed to Zenna Bryers.
4. The applicant filed her ACAT application on 1 July 2024.
5. Bonnie was last seen by Mr Bryers in early February 2025, and I am satisfied she is still alive.

Is Bonnie's current dog keeper registration relevant?

1. The parties each claimed to be Bonnie's 'true owner' because of her dog keeper registration.
2. The applicant said she owns Bonnie because she was Bonnie's first registered keeper and did not agree to transferring legal ownership to the respondent.
3. The respondent said she owns Bonnie because she holds the current dog keeper registration.
4. Extensive material was filed on this issue. There was significant confusion about incorrect microchip details and allegations of improper conduct when the parties raced to register Bonnie in their own names in mid-June 2024.
5. Dog registration in the ACT is governed by the Domestic Animals Act 2000 and administered by DAS. Of relevance:

(a) Section 6 provides that:

An individual who is an owner of a dog may apply to the registrar for registration of the dog.

(b) Section 12 requires that, within 14 days after a 'registered keeper' transfers ownership of a dog to another person:

(i) the registered keeper must give certain information about the 'new owner' to DAS; and

(ii) the new owner must apply to DAS to be recorded as the registered keeper.

(c) Section 14(1)(b) prohibits a person from keeping someone else's registered dog, unless the registered keeper is unable to care for the dog and the person is caring for the dog on a temporary basis.

1. These provisions presume that a dog's registered keeper will also be its legal owner. However, simply because a person is recorded with DAS as the 'registered keeper' does not necessarily mean they are also the dog's owner as a matter of law.
2. This is because the Domestic Animals Act does not confer legal ownership of a dog onto its registered keeper. It is also interesting that the definition of 'keeper' leaves open the possibility that the keeper and owner may be two different people. 'Keeper' is defined as follows:

(a) for a registered dog - the registered keeper of the dog; or

(b) for a registered cat - the registered keeper of the cat; or

1. The distinction between registration and legal ownership is important for practical reasons because, for example:

(a) An administrative error could mean that incorrect registration information is recorded.

(b) A person who is unaware of their obligations may fail to comply with registration or notification requirements, which is a strict liability offence but does not mean they are no longer the dog's legal owner.

(c) A person who is not the dog's owner could unlawfully apply for dog keeper registration, or submit false 'ownership' documents with their application.

1. For that reason, rather than examining Bonnie's registration details, the relevant question in these proceedings is what the parties agreed would happen to legal ownership (if anything) once Bonnie started living with the respondent.

1. The principles of contract formation have been widely considered by the Australian courts. Four key elements must be satisfied to form a contract:

(a) Agreement (offer and acceptance).

(b) Consideration.

(c) Intention to create legal relations.

(d) Certainty of terms, at least in the essentials.[16]

1. A contract may be formal (written), informal (unwritten), or a combination of both. Determining whether an informal contract has been formed involves a question of fact.[17]
2. In Woolcorp Pty Ltd v Rodger Constructions Pty Ltd,[18] the Victorian Supreme Court of Appeal identified three considerations to be 'kept in mind' in considering whether the facts allow a contract to be inferred:

(1) Circumstances in which a contract will be inferred are rare.

(2) Before the inference may be drawn, a party must establish that the conduct positively indicated that both parties considered themselves bound by the contract. It is not enough to establish that conduct was merely consistent with the alleged terms of the contract.

(3) In the absence of an offeree's express consent, acceptance of an offer may be inferred if an objective bystander would conclude from the offeree's conduct, including its silence, that the offeree has accepted the offer and has signalled that acceptance to the offeror.[19]

1. Put simply, the courts take an objective and commonsense view of the 'words and conduct' of each party to determine:

... what reasonable people with knowledge of the background circumstances then known to both parties would be taken by their words and conduct to have agreed.[20]

Contract element 1: Was there an agreement (offer and acceptance)?

1. The applicant made her offer to the respondent by text message on 22 May 2023, text message on 3 June 2023 and two emails on 4 June 2023. The evidence also suggests the terms of the offer were discussed by the parties during their backyard conversation on 2 June 2023, and in subsequent "light conversations", which are addressed below.
2. The respondent accepted the "delivery" of Bonnie on 6 June 2023 and immediately started caring for and training her. On 8 June 2023, the respondent accepted the applicant's payment of $20,000 into her personal bank account.
3. This offer and acceptance enables me to determine the parties entered into an agreement on 6 June 2023.
4. The applicant has not alleged undue influence or other conduct that may vitiate the agreement.

1. The applicant paid $20,000 to the respondent in return for the respondent accommodating and caring for Bonnie for the remainder of Bonnie's life, subject to the agreed terms.
2. The requirement for consideration has been met.

Contract element 3: Was there an intention to create legal relations?

1. The applicant claimed the agreement was an enforceable pet-sharing contract.
2. The respondent asserted that Bonnie and the $20,000 were given as unconditional gifts. She also appeared to be saying that the absence of a written contract or formal written terms demonstrated she had no intention to create legal relations. I disagree for three reasons.
3. First and as mentioned, an informal contract will be created where each of the required elements of contract formation have been satisfied.
4. Second, a gift is a type of unilateral contract that is completed when ownership to the goods is transferred.
5. Third, the respondent has steadfastly argued the parties agreed the respondent would become Bonnie's sole legal owner from the date on which the 'goods' (i.e. Bonnie) were delivered. It follows, therefore, that the respondent did intend to enter into a binding agreement.
6. On that basis, and even though the parties disagree on the contractual terms, I am comfortably satisfied they each intended to be legally bound by an agreement of some form.

Contract element 4: What were the agreed terms and were they sufficiently certain to be enforceable?

1. For a contract to be binding, it must be clear and complete, at least in relation to the essential terms. The courts will endeavour to uphold a contract despite some uncertainty, particularly where the parties have acted on it.[21]
2. In this case, the process for determining the agreed terms was complex because the absence of a written contract required the Tribunal to determine whether the facts supported each of the alleged terms.
3. The current approach of the courts is that a contractual term can be inferred from the parties' conduct and surrounding circumstances, at least where:

(a) the term is reasonable and equitable;

(b) the term is necessary for the reasonable or effective operation of the contract in the circumstances of the case;

(c) the term is so obvious it goes without saying, and capable of clear expression; and

(d) the term does not contradict any express term of the contract (or in the case of an informal contract, the term does not operate contrary to the interests of one party).[22]

1. The respondent relied on the decision of this tribunal in Barrow & Ors v Yu[23] to support her argument that the parties did not agree on essential terms. That case involved a residential tenancy dispute in which the parties had failed to agree on terms relating to the payment of rent and a bond. The tribunal determined this was a failure to agree on essential terms and so the residential tenancy agreement was unenforceable due to incompleteness. The subject matter was particularly important because a tenant's obligation to pay the rent and a bond go to the heart of the legal relationship between a lessor and tenant.
2. In this case and having considered the actions and conduct of the parties from the perspective of a reasonable person with knowledge of the surrounding circumstances, I am satisfied the parties did agree on essential terms that meet the criteria in paragraph 118 above, and that those terms were sufficiently certain to be enforceable.

1. A key difficulty in this matter was disentangling the evidence and facts from the emotions and opinions of the parties and their witnesses. This was compounded by the respondent's difficulty in providing a clear account of the events leading up to the evening of 6 June 2023. The respondent initially advised she could not recall the backyard conversation, did not read the 4 June emails and ultimately that the parties did not discuss the applicant's proposed terms.
2. At times during the hearing, the respondent's stance was inconsistent with her own evidence, her son's evidence and documentation filed by both parties. Overall, I formed the impression that the respondent was a poor historian.
3. There was conflicting evidence about the applicant's proposed terms not being discussed. On several occasions during the hearing, the respondent recalled having various conversations with the applicant about the proposed arrangement but only in vague terms.
4. For example, in relation to the backyard conversation, the respondent advised that:

... there may have been a passing, 'So I'll still get to see her?' 'Of course you will,' you know. It's ‑ you know, and, 'Of course you will,' to someone who's ‑ you show respect, you keep her health and welfare in mind, you know, we're all good. But it's not a ‑ you know, it's not agreeing to terms and things.[24]

1. The respondent also recalled having 'light conversations' about the applicant's condition of continued access, and what would happen if the respondent became unable to care for Bonnie in the future.[25] The respondent recalled having a conversation after receiving the 4 June emails when she said that:

... there's an option that Ms Curnow is there and, you know, if she wants to take him back, that's a discussion that she would have with Zac, and then at some point she said, 'I can write you up a bit of paper for that,' and I'm like, 'of course, I'm happy for that' ...[26]

1. Further, the wording in the applicant's first email of 4 June leads me to infer that the parties did, in fact, discuss did the applicant's proposed terms. It stated:

I spoke to [the Hargreaves] last night about our plans. It took a bit of explaining, but when they heard me out they could see the sense of it.

... the only thing that I've had cause to reconsider is the amount of money that I give you...

... in hindsight I didn't give enough thought to this aspect of the arrangement.[27]

1. I was not persuaded by the respondent's claim that she did not read the 4 June emails until the ACAT proceedings were commenced. Mr Bryers confirmed during cross-examination that he had had been shown at least the first email, and the respondent's power-point presentation relied on the emails as contemporaneous evidence of the proposed arrangement. The timing of the respondent's text message on 6 June 2023 (providing the ATO link) was also compelling.
2. There were also inconsistencies in the respondent's evidence about dog keeper registration. The respondent initially advised she could not register Bonnie prior to June 2024 due to a technical problem with the DAS system, but later advised she had, in fact, registered Bonnie but could not provide evidence of that earlier registration. The only direct evidence on this point was the DAS email of 30 August 2023 which suggested that the respondent was not recorded as Bonnie's keeper at that time.
3. On balance, I have given more weight to the applicant's evidence and find it to be more likely than not that the backyard conversation on 2 June 2023 did occur, that the respondent read and understood the 4 June emails before Bonnie came to live with her on 6 June 2023, and that the respondent's decision to accept Bonnie and the $20,000 was in full appreciation of the applicant's proposed terms.

1. The applicant claimed she did not agree that the respondent would become Bonnie's sole owner, but the evidence suggested otherwise.
2. The applicant's text message on 22 May 2023 stated that:

I've been wondering whether you'd be interested in having Bonnie permanently, as your own dog.[28] (emphasis added)

1. Further, in her first email of 4 June 2023, the applicant anticipated that she would:

... give [the respondent] a document to sign that returns ownership of Bonnie to me if you become unable to care for her for any reason.[29] (emphasis added)

In June 2023, Barbara told me that she had entered into a pet-sharing arrangement with Ms Bryers. She said that Ms Bryers was now Bonnie's owner, but that she would still have Bonnie often. She also said that Bonnie seemed to enjoy having 2 homes, because she had the company of lots of dogs with Ms Bryers, and then had one-on-one time with Barbara.[30] (emphasis added)

1. Bonnie's dog keeper registration was also relevant. The applicant's early submissions relied on her prior dog keeper registration as proof of legal ownership. During cross-examination, the applicant said she believed (at the time) the respondent would not agree to the arrangement unless she transferred Bonnie's registration, and that:

At the time, the intention was that Angie would register Bonnie. So, in that sense, I saw, you know, some ownership there, but overriding that was the intention of the pet share agreement, was that it was like a joint custody thing.[31]

1. The idea of "joint custody" was raised by the applicant's various witnesses. They each stated the applicant had described the contract to them as a "pet-sharing" arrangement. The difficulty is that evidence of the applicant's subjective intention or expectation cannot be used to displace objective evidence about the contract itself.[32] Also, the idea of a pet-share agreement would not have been inconsistent with the offer to transfer legal ownership if it was accompanied by a condition that the applicant would continue to see Bonnie and 'share' in her life.
2. Taking all these factors into account, I find a reasonable person would conclude the parties did agree, at the time of contract formation, that the respondent would become Bonnie's new (and sole) owner. I have accepted the respondent's position in that regard.
3. The evidence also entitles me to infer the parties agreed that:

(a) Ownership of Bonnie would revert to the applicant if the respondent became unable to care for Bonnie in the future; and

(b) They would each complete the necessary paperwork to give effect to the change of ownership, both at the time of contract formation in early June 2023 and at any later stage if required. This included notifying DAS and completing new dog keeper registration forms in accordance with the Domestic Animals Act (i.e. within 14 days).

1. The parties acted on the agreement when the applicant delivered Bonnie to the respondent's home on 6 June 2023 (which the respondent accepted), and further on 11 June 2023 when the applicant cancelled her dog keeper registration.

1. I have found as a matter of fact that between 6 June 2023 and 4 June 2024, the parties arranged for the applicant to have access to Bonnie for two to three days per week, on average.
2. The question, however, is whether the respondent facilitated those visits as an act of kindness, or in fulfillment of an agreed contractual term. Once again, this requires an objective assessment of the parties' words and conduct at the time the contract was formed. Unspoken words are not fatal to inferring an agreed term where the parties' conduct in light of the surrounding circumstances evidence a tacit understanding of what was taken to be agreed.[33]
3. Continued access was discussed at several points leading up to 6 June 2024. It was raised during the backyard conversation, and in other "passing" or "light" conversations which the respondent agreed did occur. The applicant's email on 4 June 2023, in which she stated that she would be feeding Bonnie "some of the time", further supports that finding.
4. At several times during the hearing, the respondent confirmed that, at the time, she expected was "of course" the applicant would still get to see Bonnie. She also said the applicant didn't need a piece of paper to have Bonnie returned to her because:

... you know, that, to me, is a natural option, and if she was in her life anyway, you know, and she wanted her, then it would be a natural flow in me and my son's world.[34] (emphasis added)

1. On 7 June 2023, the respondent sent a text message to the applicant, recounting her conversation with Bonnie about "everything we've planned together". She described the arrangement as follows:

... and mama arriving excitedly greeting her, and taking her off for 'special girl' times and cuddles and hugs and play and dropping her back off with lots of hugs and kisses etc.[35]

1. During cross-examination, the respondent advised the reference to "mama" was to the applicant and that in her mind, the applicant was still Bonnie's "mother".[36] The respondent qualified this by saying that she refers to all pet owners in that way.
2. Specific visiting days were not set, but sleep overs were envisaged. Mr Bryers confirmed during cross-examination that the respondent talked about sleepovers in their discussions about the proposed arrangement.[37] This would necessarily involve the applicant having access to Bonnie for at least two consecutive days on those occasions. A mutual understanding of weekly, multi-day visits was further evidenced by the respondent's text message to the applicant (albeit three weeks later), asking:

Hey, what days do you want Bonnie this week ...[38] (emphasis added)

1. A reasonable person would infer from the parties' words and conduct that they agreed the applicant would have regular, continued access to Bonnie. It is also reasonable to infer the parties had a tacit understanding that access would be provided at least two days per week on average, subject to the normal vicissitudes of life.
2. I am further satisfied the respondent understood and agreed, at the time she entered into the contract, that the offer for her to become Bonnie's new owner was conditional on providing that access.
3. I am not concerned that the visits were flexible. It is clear from the parties' actions and conduct over the following twelve months that the arrangement was sufficiently certain for them to each fulfill their side of the bargain. They coordinated Bonnie's visits without difficulty. The respondent happily allowed the applicant to have Bonnie for regular sleepovers, stay for extended periods and take her to the vet. In doing so, the respondent positively indicated that she considered herself bound by the access requirement.

1. It is undisputed that the $20,000 payment was a personal transaction and not a business one.
2. The applicant said the payment was made on condition the respondent would use it only for matters relating to Bonnie's care and welfare. She alleged the respondent had spent at least some of the money on rent and the second-hand Lexus, which she claimed constituted a breach of contract. The applicant also sought reimbursement of the June 2024 vet expenses because she said that ought to have been covered by the $20,000 payment.
3. The respondent said the money was an unconditional gift and she was entitled to spend the money as she saw fit. She said this was evident in the exchange of text messages on 6 June 2023, in which the parties agreed to characterise the payment as an ATO deductible gift. The respondent did, however, agree that as Bonnie's owner, she ought to be responsible for all vet and other expenses relating to Bonnie's care, including the June 2024 vet expenses.
4. The evidence tends toward a middle ground. The applicant's text message on 22 May 2023 offered to:

... make a contribution towards her care of at least $20,000. (emphasis added)

... I want to make a significant contribution to Bonnie's upkeep ...

My thinking now is that if she lives another 15 years (which would make her almost 16) then $15,000 would give you $1000 a year. I think that would be ample to cover food and routine vet expenses, especially since I would be feeding her some of the time. (emphasis added)

1. The parties did not discuss record keeping or reporting requirements that would have held the respondent accountable for her expenditure. In fact, it appears the applicant did not ask the respondent to account for her expenditure while the contract was working well. In relation to the second-hand car, and despite exchanging multiple text messages about the purchase, there is no evidence that the parties either agreed or disagreed on whether the $20,000 could be used. It appears they simply did not discuss that aspect of the transaction.
2. On balance, I have inferred the parties agreed that:

(a) The purpose of the $20,000 was to limit the respondent's out-of-pocket expenses in caring for Bonnie for the remainder of her life, but not necessarily cover the full cost of those expenses;

(b) The respondent was responsible for all costs relating to Bonnie's care, including medication, vet expenses and grooming, except that the applicant would pay for food and other incidentals during her visits; and

(c) Subject to (a) and (b), the respondent could decide when and how to spend the $20,000.

1. Once again, the parties acted on the agreement immediately following the change of ownership. The respondent fed, groomed and trained Bonnie, and administered tick/flea treatment, all at her own cost. In December 2023 and January 2024, the respondent paid for Bonnie's vet bills even though the applicant took Bonnie to the vet.

Contract term 4: Consultation on major issues relating to Bonnie's well-being

1. The applicant said the respondent agreed to consult her on major issues relating to Bonnie's well-being. However, there was no direct evidence on this issue and the applicant's recollection was unclear.
2. The applicant's first email on 4 June 2023 (which was sent after the applicant's dinner with the Hargreaves) suggested she only wanted to reconsider the sum of money involved but no other terms. The applicant's timeline recorded a conversation on the evening of 4 June 2023 but did not provide particulars. At the hearing, the applicant said she discussed consultation with the respondent on 5 or 6 June 2023, but was vague on detail.
3. It is quite possible that the applicant envisaged, and even expected, that she would be consulted on major issues involving Bonnie. This aligned with her desire to stay involved in Bonnie's life and her condition of regular, continued access. However, I am not satisfied on the evidence that the parties reached an agreement about consultation.
4. Accordingly, I do not find the contract included such a term.

Contract terms 5 and 6: Routine care, vaccinations etc

1. The respondent conceded that, as Bonnie's owner, she ought to be responsible for Bonnie's routine care. This included tick/flea protection, vaccinations, grooming and trips to the vet.
2. I accept that position and find the contract included a term to that effect.

Conclusion on contract formation and contract terms

1. I have determined on the balance of probabilities that the parties formed a binding contract on the following terms:

(a) The contract commenced upon delivery of Bonnie to the respondent, being 6 June 2023.

(b) The respondent would become Bonnie's sole legal owner upon contract commencement.

(c) The change of legal ownership was subject to two conditions:

(i) the respondent would provide the applicant with continued access to Bonnie for as long as she was alive, such access to be provided at least two days per week on average, taking into account the normal vicissitudes of life; and

(ii) if the respondent became unable to care for Bonnie at any time in the future, legal ownership of Bonnie would revert to the applicant.

(d) The parties would complete the necessary paperwork to give effect to the change(s) of ownership under paragraph (c). This including notifying DAS and completing any new dog keeper registration in accordance with the Domestic Animals Act.

(e) The applicant would pay $20,000 to the respondent in consideration for the respondent becoming Bonnie's new owner and caring for her for the remainder of Bonnie's life.

(f) The respondent would bear full responsibility for all matters related to Bonnie's care and welfare, including administering medication and tick treatment, coordinating vet appointments, training and regular grooming.

(g) The respondent would cover the cost of all matters related to Bonnie's care and welfare, except that the applicant would pay for food and other incidentals while Bonnie visited her.

(h) Subject to paragraph (g), the respondent could decide when and how to spend the $20,000 in her absolute discretion.

Did the respondent breach the contract by refusing access to Bonnie?

1. The respondent has refused to allow the applicant to see Bonnie since taking her home from the vet on 4 June 2024.
2. The respondent's initial refusal on 5 June 2024 appeared reactive due to her feelings of overwhelm and anger at the applicant's request for a three-way conversation with the vet. Even if that were reasonable, the respondent's refusals from 6 June 2024 onward were not.
3. In her email on 6 June 2024, the respondent made it clear that no further visits would be allowed. She continued to refuse all access even once Bonnie was 'on the mend' and after these proceedings had commenced. At the hearing, the respondent confirmed she had made a conscious decision to prevent access.
4. I am satisfied the respondent breached the requirement to provide the applicant with continued access to Bonnie. The breach first arose on 6 June 2024 when the refusal email was sent.

1. This is important for determining the appropriate remedy.
2. Where the essential terms are not stipulated in a written contract, the courts apply an objective test to determine essentiality. The test was explained in DTR Nominees Pty Ltd v Mona Homes Pty Ltd[39] as follows:

... the quality of essentiality depends ... on a judgment which is made of the general nature of the contract and its particular provisions, a judgment which takes close account of the importance which the parties have attached to the provision as evidenced by the contract itself as applied to the surrounding circumstances.[40]

1. I am satisfied the applicant would not have entered the contract unless she was assured of continued access to Bonnie. Her offer for the respondent to become Bonnie's new owner was made subject to that condition. The respondent knew that the access requirement 'was a given' and so this was not a case where the conditional nature of the contract was unclear.
2. As a result, the respondent's refusal to allow any access from 6 June 2024 must be characterised as a breach of an essential term.

1. The respondent has breached her obligation to pay for the cost of Bonnie's routine care. That breach arose on 4 June 2024 when the respondent advised she could not pay for all of Bonnie's vet expenses and so the applicant paid on her behalf. On the first hearing day, the respondent agreed she ought to have paid for the vet bills, although she advised this was due to a moral obligation and not a contractual one.
2. In addition, the respondent breached her obligation to complete the necessary paperwork to give effect to the change of ownership when she failed to register herself as Bonnie's new keeper in accordance with the Domestic Animals Act, i.e. within 14 days.
3. In relation to spending the $20,000 on rent or the second-hand car, even if the money was spent in that way, it would not be a breach of contract because the respondent had a broad discretion on how to spend the money subject to her obligation to pay for all expenses relating to Bonnie's care and welfare.
4. I have declined to make a finding as to whether the respondent breached the contract by failing to administer adequate tick medication. The answer to that question does not change the outcome in these proceedings. Also, I am not required to consider liability for the tick infestation given the respondent's counterclaim was discontinued.

1. The two main remedies for breach of contract are damages, or an order for specific performance.
2. A third remedy is to terminate the contract. Termination is available in limited circumstances, including where there has been a breach of an essential term or the contract has been repudiated.
3. I have already determined that the respondent's refusal to provide the applicant with access to Bonnie since 6 June 2024 constituted a breach of an essential term.

1. Repudiation occurs where a party manifests an unwillingness to perform the contract at all or in some essential respect.[41] It is a serious matter and focuses on the conduct of the recalcitrant party.
2. The respondent has been unequivocal about not allowing the applicant to see Bonnie, both at the time of the initial breach and throughout these proceedings. In doing so, she has demonstrated a clear unwillingness to perform an essential part of the contract.
3. I find the respondent repudiated the contract on 6 June 2024. The applicant accepted the repudiation when she filed her ACAT application on 1 July 2024.

1. The contract terminated on 6 June 2024 due to breach of an essential term and repudiation by the respondent.

1. At the end of the third hearing day, I asked the parties to make a final submission on remedies.
2. The applicant's representative submitted that damages alone would be insufficient because Bonnie is unique and the respondent should not benefit from her wrongdoing (by being allowed to keep Bonnie).
3. The respondent submitted that Bonnie's value had "gone through the roof" because she has changed from being an "unadoptable" dog to a calm, emotional support working dog. The respondent advised that Bonnie is now part of her life and she has spent a lot of time training her. The respondent estimated her costs for Bonnie were $27,000 per year. She also submitted that returning Bonnie to the applicant would be traumatising for Bonnie.
4. At law, Bonnie is simply a chattel or item of personal property. However, there is increasing recognition that pets have an inherent value to affected individuals beyond monetary terms.[42] It is clear the applicant is very attached to Bonnie and I accept her submission that damages alone would be inadequate.
5. It is also clear that an order for specific performance would be unworkable. The relationship breakdown between the parties would make any continuation of the contract highly problematic.
6. On that basis, I have determined a restitutionary order to be appropriate. The purpose and effect of a restitutionary order is to unwind the contract and, in this case, prevent unjust enrichment by ensuring the respondent does not benefit from her wrongdoing.
7. I have declined to make an allowance for the respondent's costs in training or caring for Bonnie. In addition to such costs being unsubstantiated, the respondent made an informed decision to become Bonnie's new owner (subject to conditions) after lengthy discussions with her son. In doing so, she agreed to take full responsibility for all aspects of owing a puppy, similar to her other pets. It would be entirely inappropriate to pass those costs onto the applicant.
8. Accordingly, I have determined the applicant is entitled to have Bonnie returned to her, and I am satisfied the Tribunal has power to make a non-monetary order to that effect.[43]
9. The applicant is also entitled to recover from the respondent:

(a) the sum of $18,666.67, being the $20,000 payment minus $1,333.33 for the cost of reasonable care provided by the respondent between 6 June 2023 and 6 June 2024;[44] and

(b) the sum of $3,185.24, being the June 2024 vet expenses.

1. Health care workers in the ACT are bound to comply with the ACT Code of Conduct for Health Care Workers (the Code).[45] This appears to include hypnotherapists.
2. Section 13 of the Code deals with financial misconduct. I accept this was not raised by the applicant as a vitiating factor, but the facts and evidence raise a concern that the respondent may have breached the Code.
3. Accordingly, I have asked the Registrar for the ACAT to refer this matter to the appropriate regulatory authority for investigation.

[1] Direct quotes from documentary evidence or the transcript are footnoted. Indirect references to oral evidence or what a party "said" during the hearing are summarised from the transcript but not footnoted.

[2] There is minimal information available online about the Australian College of Clinical Hypnotherapy. It seems to be an education institution and does not appear to offer industry registration or membership.

[3] Respondent's Bundle of Evidence dated 28 November 2024, page E15

[4] Transcript of proceedings dated 28 February 2025, page 183 lines 6-18; also Transcript of proceedings dated 28 Mach 2025, page 240 lines 6-45, page 241 lines 1-47

[5] Respondent's Bundle of Evidence dated 28 November 2024, page E16

[6] Respondent's Bundle of Evidence dated 28 November 2024, page E17

[7] Applicant's Bundle of Documents dated 2 October 2024, page 110

[8] Transcript of proceedings dated 28 March 2025, page 252, lines 12-47

[9] Respondent's Bundle of Evidence dated 28 November 2024, page E18

[10] Applicant's Bundle of Documents dated 2 October 2024, page 111

[11] Applicant's Bundle of Documents dated 2 October 2024, page 111

[12] Transcript of proceedings dated 27 February 2025, page 79, line 45

[13] Transcript of proceedings dated 27 February 2025, page 80 lines 25 - 32

[14] Applicant's Bundle of Documents dated 2 October 2024, pages 147-154

[15] Transcript of proceedings dated 28 February 2025, page 198, lines 44-45

[16] NC Seddon and RA Bigwood, Cheshire and Fifoot's Law of Contract (LexisNexis Butterworths, 11th ed, 2017) at 1.16 and 6.1

[17] Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39 (Realestate.com.au) per Gordon J at [45]

[18] [2017] VSCA 21

[19] [2017] VSCA 21 at [9]

[20] Realestate.com.au per Kiefel CJ and Gageler J at 15.

[21] Turner v Bladin [1951] HCA 13; (1951) 82 CLR 463 at 471, cited in Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46

[22] Realestate.com.au. In that case, the High Court took differing views on the distinction between inferred and implied terms, and the extent to which the traditional test in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 should apply to inferred terms. Notwithstanding, there is clear authority that an inferred term will be upheld where it does meet the traditional test.

[23] [2021] ACAT 68

[24] Transcript of proceedings dated 28 February 2025, page 183 lines 6-11

[25] Transcript of proceedings dated 28 March 2025, page 251 lines 12-47

[26] Transcript of proceedings dated 28 February 2025, page 210 lines 25-33

[27] Respondent's Bundle of Evidence dated 28 November 2024, page E16

[28] Respondent's Bundle of Evidence dated 28 November 2024, page E15

[29] Respondent's Bundle of Evidence dated 28 November 2024, page E16

[30] Applicant's Bundle of Documents, dated 2 October 2024, page 67

[31] Transcript of proceedings dated 28 February 2025, page 162 lines 28-31

[32] Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352 (Mason J)

[33] Realestate.com.au per Kiefel CJ and Gageler J at 30

[34] Transcript of proceedings dated 28 February 2025, page 211 lines 5-14

[35] Applicant's Bundle of Documents dated 2 October 2024, page 111

[36] Transcript of proceedings dated 28 February 2025, page 217 lines 18-26

[37] Transcript of proceedings 27 February 2025, page 46 lines 35-36, page 61 lines 41-46, page 62 line 1

[38] Applicant's Bundle of Documents dated 2 October 2024, page 111

[39] [1978] HCA 12; (1978) 138 CLR 423

[40] [1978] HCA 12; (1978) 138 CLR 423 at 431. Also, Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 at 47

[41] Foran v Wright [1989] HCA 51

[42] For example, the Family Law Amendment Bill 2024 introduces changes to how pets are treated in family law property disputes

[43] See Parolo & Anor v Widdup & Anor [2022] ACAT 103

[44] $20,000 divided by Bonnie's life expectancy of 15 years, per the applicant's email of 4 June 2025

[45] Contained in Part 2 of the Human Rights Commission Regulation 2023