Dozer Enterprises Pty Ltd v Carmark Projects Pty Ltd & Ors [2025] QCAT 350

County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193

Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8

Filadelfia Projects Pty Ltd v Entirity Business Services Pty Ltd (No 2) [2011] NSWSC 116

Nurisvan Investment Ltd v Anyoption Holdings Ltd [2017] VSCA 141

Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39

• [1] The second applicant ('Pronto') did plumbing work at a property at Lawnton from 14 to 16 September 2021. According to Pronto, that was at the request of the respondent ('Carmark') through its director, Mr Alford, with Carmark to supply necessary equipment and materials.
• [2] Mr Alford was not satisfied with the work. The first applicant ('Dozer') was engaged by Pronto to rectify the work. Subsequently Mr Alford engaged Dozer to do more work at the Lawnton site, from 3 to 10 November 2021.
• [3] Both applicants maintain Carmark is responsible for payment for the work they did but Mr Alford says the contracting entity was in fact another of his companies, Mark Development and Construction Pty Ltd ('MDC').
• [4] MDC entered into external administration on 7 October 2022.
• [5] Payment for the applicants' work remains outstanding.
• [6] The site work performed at Lawnton was subdividing land pursuant to a commercial building contract entered into between SKG Development Pty Ltd ('SKG') as principal and MDC as contractor.
• [7] By separate applications for building dispute filed in the Tribunal the applicants claimed payment for the work performed from both Carmark and MDC. After MDC entered into external administration on 7 October 2022, the actions continued against Carmark only.
• [8] Both matters were heard together at a hearing in the Tribunal.

• [9] Both applicants say they did work at the site and claim payment for it from Carmark following their oral engagement to perform plumbing and drainage work by Mr Alford. The applicants say Mr Alford acted for Carmark at all material times.
• [10] It is appropriate to set out relevant principles applying to the task of identifying both terms and parties to an oral, informal contract.
• [11] In County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193 the Court was dealing with a contract partly in writing, partly oral and partly to be inferred from conduct. Spigelman CJ observed:
  1. A need to identify the particular subject matter of the contract has often arisen, even in the case of a written agreement where there is a form of words to be interpreted. In the present case, the subject matter and the concomitant terms of the contract must be inferred from a combination of surrounding circumstances including conversations, documents and conduct none of which provide a definitive form of words....
  2. In the case of an oral contract, when the issue is not interpreting words but determining the subject matter of the contract as a fact .... The relevant surrounding circumstances extend to both pre-contractual and post contractual conduct.

...

1. ... Where, as here, the issue is the identification, as a matter of fact, of the subject matter of the contract, as distinct from the interpretation of the contract, subsequent conduct ... is, in my opinion, entitled to significant weight.

• [12] In County Securities Pty Limited, McColl JA cited the following statement of Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833:

[369] ... [A] number of authorities discuss the need not to constrict one's thinking in the formation of contract to mechanical notions of offer and acceptance. Contracts often, and perhaps generally do, arise in that way. They can also arise when business people speak and act and order their affairs in a way without necessarily stopping for the formalities of dotting i's and crossing t's or where they think they have done so ... Sometimes this failure occurs because, having discussed the commercial essentials and having put in place necessary structural matters, the parties go about their commercial business on the clear basis of some manifested mutual assent, without ensuring the exhaustive completeness of documentation. In such circumstances, even in the absence of clear offer and acceptance, and even without being able (as one can here) to identify precisely when a contract arose, if it can be stated with confidence that by a certain point the parties mutually assented to a sufficiently clear regime which must, in the circumstances, have been intended to be binding, the court will recognise the existence of a contract. Sometimes this is said to be a process of inference or implication.

• [13] In Filadelfia Projects Pty Ltd v Entirity Business Services Pty Ltd (No 2) [2011] NSWSC 116 the parties' conduct was accepted as the basis for inferring the identities of the contracting parties:
  1. There are two principal difficulties with Mr Barlow's second submission. First, it is inconsistent with the finding that I have made that Mr Zerilli explained to Mr Barlow that Zebicon was the builder. Second, it is clear that post-contractual conduct can be taken into account in determining whether a contract was formed: see, for example, Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd [1995] NSWCA 166; (1995) 7 BPR 14,551 at 14,569-70 per Kirby P; Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 at [25]. Necessarily, that extends to the question whether it was formed between particular parties, since contracts do not exist in the abstract.[1]
• [14] In Nurisvan Investment Ltd v Anyoption Holdings Ltd [2017] VSCA 141 at [84] (Osborn, Santamaria and Kaye JJA) the Victorian Supreme Court of Appeal confirmed:
  1. ...As we have mentioned, the authorities make it clear that post-contractual conduct is admissible to determine the existence and formation of the contract. In that way, the judge was correct to take into account the post-contractual conduct of the relevant parties, in order to determine whether Nurisvan was a party to the Heads of Agreement.
• [15] Then in BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086 Leeming JA said:

It is clear that in the case of a contract which is partly written and partly oral, regard may be had to the whole of the circumstances. The parol evidence rule applies only to contracts which are wholly in writing: see Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; 261 ALR 382 at [90(3)]. The non-written components of a contract which is not wholly in writing give rise to questions of primary fact, which are capable of being proven in the usual way, including by conduct after the event which bears upon those matters. In particular, an admission after the event may be powerful evidence supportive of a particular aspect of a contract. Indeed, Stephenson LJ said for the Court of Appeal in Mears v Safecar Security Ltd [1983] QB 54 at 77 that:

"Common sense suggests that [the parties'] subsequent conduct is the best evidence of what they had agreed orally but not reduced to writing, though it is not evidence of what any written terms mean... ."

• [16] The subjective intention of the parties is not the determinative factor. As stated in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8:

25. ... the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties[49] (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened[50]. It is not a search for the uncommunicated subjective motives or intentions of the parties.[2]

• [17] The existence and terms of an informal contract is determined objectively as a question of fact. The High Court said in Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39:
  1. The approach differs when a court is confronted with an informal contract. The first task is to consider the evidence and to find the relevant terms of the contract.[49] Ascertaining the terms is a question of fact.[50] The issue is not one of interpretation, because there are no definitive words to interpret;[51] "we are here concerned not with construing a contract but with evidence as to what the terms of a contract were"[52]. The issue is one of fact and substance, not mere form[53]...[3]

• [18] The engagements through Mr Alford and the subsequent performance of work and invoicing for that work clearly point to a mutually assented agreement between the parties of the type referred to by Allsop J in Branir Pty Ltd above, where "business people speak and act and order their affairs in a way without necessarily stopping for the formalities of dotting i's and crossing t's."
• [19] The issue in dispute, common to both actions, is who agreed to be responsible for payment of the cost of the work.

• [20] Pronto claims $8,560.50 from Carmark for work done 14 to 16 September 2021.
• [21] It is not disputed that the work done by Pronto (and then Dozer) related to work required under the contract between SKG and MDC. The work involved laying drainage pipes in a pit.
• [22] Whether the workmanship of Pronto and Dozer was to appropriate engineering and construction standards is not an issue litigated in the proceedings.[4]
• [23] At all material times Mr Alford was sole director of Carmark and MDC.
• [24] Mr Byron Bell was a plumber trading as Pronto.
• [25] Email correspondence was exchanged between Mr Alford and Mr Bell over the period 20 July 2021 to 6 August 2021 concerning plumbing and drainage work at the Lawnton property ('the site').
• [26] By email dated 20 July 2021, with the subject line the address of the Lawnton property, Mr Alford wrote as mark@carmarkprojects.com.au to Mr Bell attaching Unity Water approval documents concerning a sewer at the site saying:

G'day Byron

At last I get a chance to sit in front of my computer.

Please find water unity approval attached. The sewer will be returned to Unity for on maintenance.

I get really good rates at Samios cost plus 8% so happy to purchase all the gear.

Pete or I will drive the machine. I will supply the 7mm gravel.

Cheers

Mark

• [27] On 6 August 2021 there was an email from Mr Alford writing as mark@markdevcon.com.au to Mr Bell with an attachment and the note "Variation due to down stream neighbour going on maintenance".
• [28] Later that day Mr Alford again wrote as mark@markdevcon.com.au sending an email to the engineer supervising the SKG work with Mr Bell copied in. Mr Alford referred to Mr Bell's experience and asked the engineer to provide pipe jointing details to Mr Bell. The email concludes however "Best regards Mark Alford Director" above a logo for Carmark Projects Pty Ltd.
• [29] On 16 August 2021 there was another email from mark@carmarkprojects.com.au to Mr Bell with the subject sewer details Lawnton with attachments.
• [30] Pronto carried out sewerage pipe work at the site between 14 and 16 September 2021.
• [31] On 23 September 2021 Mr Bell forwarded an invoice for $7,181.85 for the work under cover of an email addressed to mark@markdevcon.com.au. The invoice billed MDC and the subject line of the email said "Invoice INV-02237 from T B Bell Trust t/a Pronto Plumbing & Gas for Mark Accers (sic)". The "Accers" reference was misspelled but was a reference to the site of the work.
• [32] The next day on 24 September 2021 Mr Alford forwarded the email and invoice to his book keeper, Ms Francis at carmen@carmarkprojects.com.au. Later that same day Mr Bell received an email from carmen@carmarkprojects.com.au asking him to make out the invoice to Carmark Projects Pty Ltd and to send that to her.
• [33] Mr Bell did that but with the amount claimed changed to $8,560.50. He states in a statement of evidence that initially a discount was provided.
• [34] Mr Alford concedes he supplied the digger for the job but does not clarify who owned the digger.

• [35] Mr Hill, a supervisor for Dozer, said that he received two telephone calls, the first on about 25 October 2021 and the second on about 2 November 2021 from Mr Alford engaging Dozer to do work for Carmark at the site.
• [36] In his statements of evidence he said Mr Alford had agreed that Carmark would be responsible for payment.
• [37] Mr Alford gave evidence that he had not known he was talking to Mr Hill at the time, he thought it was Mr Pavitt, Dozer's director. He denies saying to Mr Hill that Carmark would be responsible for payment of Dozer's work.
• [38] At hearing Mr Hill said he had little recollection of the first telephone call, but did remember the second. Mr Alford had telephoned Mr Bell's brother on site and the telephone was passed to Mr Hill and he spoke to "Mark" who asked if Dozer could do more work on site. He said in that conversation it was not made clear to him which of Mark's companies was to be responsible for payment of Dozer's work. That was "office stuff".
• [39] Mr Hill did remember asking who Dozer would be working for and Mr Alford replying "me, not for Pronto".[5]
• [40] Ms Trinder, administrative officer for Dozer, also gave evidence.
• [41] She said before the telephone call to Mr Hill, Dozer had done work for Carmark in September 2021 concerning the laying of a water main. After that work was done she had had a telephone conversation with Mr Alford and he had told her to invoice Carmark for the work. She had done that and Carmark had paid for the work. That is borne out by a tax invoice and remittance advices.
• [42] Mr Alford denies that conversation. He refers to what he says is an invoice associated with the earlier work[6] simply addressed to "Mark" which he goes on to claim was intended to mean MDC.
• [43] Ms Trinder maintained at hearing that she had a distinct recollection of the telephone conversation and Mr Alford telling her to make the invoices out to Carmark. She recalled that Mr Alford was on his way to holiday with his family. She said at the time of that telephone discussion she had never heard of MDC. The first time she heard of MDC was in January 2022 mentioned in an email from Mr Alford. The invoice referred to by Mr Alford was not an invoice but a docket, and the dockets are attached to the invoice. Dockets were prepared by the workmen onsite, handwritten and listing hours worked and work done.
• [44] In respect of the later unpaid work she says she sent two invoices from Dozer to Carmark on 3 and 11 November 2021 respectively. The first was for $8,474.84 and the second for $15,985.76.
• [45] In a later email of 20 December 2021 addressed to Mark at his Carmark email address she noted that there were overlooked additional charges.
• [46] Mr Alford responded on Carmark email to say "We need to reconcile this mess."
• [47] On 17 January 2022 "Carmen" (Mr Alford's bookkeeper, Ms Francis) using a Carmark email asked for a breakdown of days and hours for "dockets and charges Akers Rd", which was answered by Ms Trinder with the information requested and Ms Francis said that she had forwarded the email to Mr Alford.
• [48] On 18 January 2022 Mr Alford emailed Ms Trinder using his Carmark email to say Carmark was not the contracting entity, it was MDC, and MDC would pay. Mr Alford claimed the shareholders of the two companies were completely different and asked that the invoices be amended to read MDC.
• [49] Ms Trinder said this was the first time MDC was mentioned by Mr Alford. There had never been any challenge to the invoicing of Carmark until the email from him of 18 January 2022.
• [50] Mr Alford added to his email of 18 January 2022 "Please amend the invoices as we cannot claim the GST if the invoices remain in Carmark."
• [51] In fact, Carmark had been registered for GST since 22 February 2021.
• [52] Ms Trinder complied with the request however and issued new invoices to MDC.
• [53] When those invoices remained unpaid however she reissued the invoices to Carmark.
• [54] All emails in this exchange from 20 December 2021 to 27 January 2022 were via Carmark email addresses, even after the invoices were directed to MDC at the request of Mr Alford.

• [55] It is appropriate to address the claim by Dozer first, then the claim by Pronto.
• [56] The email correspondence between Mr Alford and Dozer is almost exclusively to and from a Carmark email address.
• [57] Ms Trinder's evidence was that she was told by Mr Alford in September 2021 to make out invoices for work done by Dozer to Carmark. Prior to January 2022 there had been no mention of MDC.
• [58] Mr Hill's evidence is of little assistance.
• [59] MDC was placed in liquidation on 7 October 2022.
• [60] Mr Alford completed and signed a Form 507 Report on Company Activities and Property on 18 November 2022 as director of the company. As part of that Report he completed Table A7 which obliged him to list all amounts owed creditors of the company. He attached a list of the company's trade creditors. Neither Pronto nor Dozer are listed as creditors of MDC.
• [61] Mr Alford claimed at hearing that the list of creditors was not intended to be a comprehensive list of creditors. That seems to me to be a rather remarkable assertion. His casual approach to the obligations as director of a failed company to ensure the contents of the Report were true and correct might be surprising to the liquidator of the company.
• [62] The list of creditors in Table A7 is extensive, some 75 entities listed in all, and only six debts greater than that claimed by Dozer. Mr Alford took sufficient care in compiling the list to record many smaller debts not exceeding $500, but claims to have failed to remember to add that due Dozer of $24,460.06.
• [63] Above Table A7, which is headed "Amounts the Company owes to its creditors", there appears a notation "The contents of this page will be available on the public record." Indeed the statement that the Report will be "on the public record" appears at the top of each page of the Form 507.
• [64] Mr Alford confirmed he had provided full details asked for in questions A4 to A7 of the Form at page 6. Below that he declares that his answers to the questions contained in Part A of the Form and the contents of all attachments are true and correct and complete to the best of his knowledge and belief as at the date of his declaration, which was 18 November 2022.
• [65] In his evidence in the Tribunal he said, in support of his assertion that the list of creditors was not intended to be comprehensive, that "people come out of the woodwork" who may be owed money but the debts forgotten.
• [66] Dozer had commenced matter BDL295-22 on 5 October 2022. Service of the initiating application was effected by post on 26 October 2022 and a copy of the application emailed to Mr Alford at his Carmark email address that same day.
• [67] Carmark was initially joined as first respondent to the proceeding and MDC as second respondent. MDC went into liquidation on 7 October 2022 with the proceedings continuing against Carmark only.
• [68] Mr Alford filed a Response on 16 November 2022 denying any contractual relationship with Dozer. It was a mere two days later, on 18 November 2022, that he executed the Form 507.
• [69] I do not accept that Mr Alford inadvertently omitted the debt due Dozer from the Form 507. The overt relevance of the litigation commenced by Dozer at the time of filing the Form 507 cannot be ignored.
• [70] I find his omission of Dozer as a creditor of MDC from the Form 507 a final factor to be given significant weight reinforcing my conclusion that there was never any agreement struck between Mr Alford acting on behalf of MDC and Dozer that MDC would be responsible for the cost of work performed by Dozer on site. The contracting entity was Carmark.
• [71] Which leads me to accept Ms Trinder's evidence where it conflicts with Mr Alford's evidence. I accept that she had a discussion with Mr Alford in September 2021 in which he confirmed the party engaging Dozer was Carmark and Carmark would pay for work done by Dozer.
• [72] With respect to Pronto, the initial email correspondence of 20 July 2021 from Mr Alford was by way of a Carmark email address. Similarly subsequent emails save one email concerning work at the site forwarded by Mr Alford using a MDC email address, the email of 6 August 2021 to SKG. However with respect to that email, Mr Bell was merely copied in to receive it.
• [73] Pronto initially forwarded its invoice to MDC but the next day Ms Francis, on Mr Alford's instructions, directed the invoice be made out to Carmark, which was done.
• [74] Mr Alford maintains that Ms Francis was not authorised to send the email to Pronto directing Pronto to invoice Carmark. Ms Francis said in a statement of evidence that she had acted under a misunderstanding. In September 2021 Mr Alford had instructed her that "all future construction were (sic) to be in Carmark Projects Pty Ltd" but the subject site was "a current project under Mark Development of a civil nature."
• [75] Her evidence at hearing about a misunderstanding was as follows:

... there was a bit of a misunderstanding, I think, with me and my boss where I was directed to put everything under Carmark Projects. And I do recall requesting that - um - and then it was explained to me by Mark that that was incorrect, because it was a civil matter, it shouldn't have been changed over."[7]

• [76] Mr Alford's instructions to Ms Francis was that everything was to be put under Carmark. It was only subsequently that an exception was claimed about the SKG site and its "civil" status. It is not clear when Mr Alford clarified that the SKG project had special "civil" status.
• [77] What "all future construction" meant and encompassed is not clear. Nor how the current project's "civil" status precluded the work done by Pronto and Dozer done after September 2021 from categorisation as future construction work.
• [78] The works the subject of contract between MDC and SKG might perhaps be described as "civil" in the sense that it was work excluded from the ambit of building work by item 11 of Schedule 1 of the Queensland Building and Construction Commission Regulation 2018 (Qld), given it did not involve water reticulation, sewerage or stormwater systems connecting a particular building to a main of the system or drain. The only relevance of that might be that QBCC had no supervisory role over the building work. There is no suggestion that the work done was site work associated with provision of drainage work done on land outside the bounds of private property however and therefore excluded from the ambit of Tribunal work.[8]
• [79] Ms Francis was given the instruction that all future construction would be in the name of Carmark in September 2021. Given MDC's contractor's licence was cancelled on 30 June 2021 and with MDC approaching external administration (7 October 2021), all and any work done from September 2021 might reasonably be categorised as future work.
• [80] Mr Alford similarly failed to identify Pronto as a creditor of MDC when completing the Form 507. I give similar weight to that failure as it concerns Pronto as to Dozer.
• [81] Objective consideration of the foregoing facts and circumstances leads me to conclude that the identity of the party engaging Pronto to perform drainage work at the site was Carmark:
  1. The rights and liabilities of parties under a contract - whether oral, in writing, or partly oral and partly in writing - are determined objectively.[41] The concern is "not with the real intentions of the parties, but with the outward manifestations of those intentions"[42].[9]
• [82] I note with respect to the claim by Pronto, that at hearing it was put to Mr Bell that Pronto's work was defective. It was therefore submitted, in nothing but broad brush terms, that Pronto has no entitlement to payment.
• [83] Mr Bell said the work was inspected by an engineer after the pipes had been laid and the engineer required some expansion joints to be rectified. Mr Bell said he engaged Dozer to do that. Mr Bell said Pronto was invoiced for the rectification work and paid Dozer.[10] Whether that payment was made or not is irrelevant and a matter between Pronto and Dozer.
• [84] Pronto engaging Dozer to perform rectification work cannot deprive Pronto of its claim for the value of the work done laying the pipes at site. There is no suggestion that the rectification work was not satisfactory and Carmark achieved the outcome sought by engaging Pronto to do the work.
• [85] If Pronto were unable to claim for its work, from the perspective of Carmark the result would be that Carmark obtains the pipework placed and passed at no cost to it. From the perspective of Pronto it would mean Pronto did the work laying pipes it was engaged to do but is left unremunerated for the work done.
• [86] Pronto is entitled to recover from Carmark the value of the pipe work done on site as invoiced. The reasonableness of the invoiced charges, $8,560.50, is not in issue.[11]

• [87] Carmark must pay Dozer $24,460.60. Carmark must pay Pronto $8,560.50.

[8] Queensland Building and Construction Commission Act 1991 (Qld) ss 75(1)(e), 76(1)(a).

[9] Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39, [43] (Gordon J).

[10] Pronto paid Dozer somewhere between $7,000 and $8,000 according to Mr Bell.

[11] Though Pronto initially offered a discount Pronto subsequently pursued full payment.