H.C. Loneragan & Company Pty Limited as trust for the Loneragan Family Trust trading as Quantum Forensic Solutions v Locke

A. What is the contract pleaded by each party?

1. The relevant pleadings are the plaintiff's Amended Statement of Claim filed 10 November 2023 and Mr Locke's Amended Defence filed 27 February 2024.
2. The plaintiff asserts that: 14.1 On or about 28 November 2017 it entered into an agreement with Mr Locke pursuant to which it would provide forensic accounting services to Mr Locke in relation to GCR, in consideration of which Mr Locke would pay fees to the plaintiff calculated on a time cost basis. Particulars of the agreement are given as "Proposal to deliver Forensic Accounting services" dated 28 November 2017, and (b) an email from Mr Loneragan to Mr Locke of the same date. 14.2 Between on or about 28 November 2017 until on or about 19 July 2018 Mr Locke requested the plaintiff, and continued to request the plaintiff, to provide services under the agreement. 14.3 Between those same dates the plaintiff provided the forensic accounting services "to and for the benefit of" Mr Locke. 14.4 Between 6 February 2018 and 19 July 2018 plaintiff issued 6 invoices totalling $219,454.89 to Mr Locke for the provision of the forensic accounting services. 14.5 Mr Locke has paid a total of $30,000: $10,000 on 15 December 2017 and $20,000 on 9 April 2018. 14.6 The unpaid balance of the invoices ($189,454.89) is due as a debt, together with interest. 14.7 It is entitled to interest on the debt at the rate of 1% per month pursuant to a term of the agreement; or alternatively at Court rates pursuant to s.100 of the Civil Procedure Act 2005.
3. In response: 15.1 Mr Locke denies that he entered into the agreement pleaded by the plaintiff. 15.2 Mr Locke alleges that the plaintiff entered into an agreement with GCR in or about November 2017. He says that agreement was partly in writing and partly oral: the written part being in an email from Mr Loneragan to Mr Locke dated 15 November 2017 and the oral part in conversations between them in or around November and December 2017. 15.3 Mr Locke alleges that the terms of the agreement between the plaintiff and GCR included the following: 1. The plaintiff would provide the following services. It would attend the Orange based office of GCR to review certain documents of GCR as provided by Mr Locke, and "provide a brief report (either written or oral) delivered to GCR and/or Mr Locke on behalf of GCR following the review of the documents". 2. Those services would not cost more than $20,000 plus GST and were estimated to cost between $15,000 to $20,000 plus GST, of which $12,000 plus GST was estimated for attending Orange to review the documents. 3. No fees would be charged for travel time to and from Orange. 4. The services "would be conducted by" one or both of Mr Loneragan and Ms Carol Lam. 5. Any additional services were to be the subject of agreement between the parties and the provision of a quote by the plaintiff to GCR which was required to be approved by GCR. 15.3 Mr Locke denies that he requested the services referred to by the plaintiff or that the services were provided to and for his benefit.

B. What are the issues to be determined on the contract claim?

1. The main issues raised on the claim in contract are: 16.1 Who were the contracting parties? 1. The plaintiff says it contracted with Mr Locke. 2. Mr Locke says the plaintiff contracted with GCR. 16.2 What were the terms of the contract? 1. The plaintiff says they were set out in its "Proposal to deliver Forensic Accounting services" and an email from Mr Loneragan to Mr Locke both dated 28 November 2017. 2. Mr Locke says they were set out in Mr Loneragan's email to Mr Locke dated 15 November 2017 and arose from conversations between Mr Loneragan and Mr Locke in or around November and December 2017.

B. What are the relevant legal principles to be applied to the claim in contract?

1. The dispute between the parties requires the court to determine both who entered into the contract and upon what terms.
2. The normal, conventional or traditional method of determining whether parties have entered into a contract and on what terms is to analyse their dealings with one another by reference to principles of offer and acceptance: JD Heydon, Heydon on Contract (2019, Thomson Reuters) at [2.10] p.27; Seddon and Bigwood, Cheshire and Fifoot Law of Contract, 12th Australian edition (2023, LexisNexis) at 3.2 p.99. In general it is a necessary condition of a valid contract that an offer (or counter-offer) made by one of the parties be accepted by the other: Heydon at [2.10] p.27. Offer and acceptance analysis works without artificiality in relation to explicit conversations or in written correspondence where "successive communications other than the first are in reply to each other": Heydon at [2.100] p.36 quoting Lord Diplock in Gibson v Manchester City Council [1979] 1 WLR 294 at 297. But offer and acceptance analysis is not a universal mode of analysis: Heydon at [2.100].
3. Heydon describes the acceptance of an offer as "conduct which, to a reasonable person in the position of the offeror, is a final and unqualified expression of assent to the terms of the offer (or counter-offer)": Heydon at [2.300] p.51. Seddon and Bigwood also refer to an "unqualified assent to … the terms of the offer": at 3.26 p.123.
4. In determining whether an offer has been made and accepted the court looks to what the parties' words or conduct would reasonably be understood to convey, not their actual beliefs and intentions: Heydon at [2.30] p.28.
5. The same applies to determining who are the parties to a contract. In Mills v Walsh [2022] NSWCA 255 in a case where there was no written contract, Brereton JA said (Bell CJ and White JA agreeing on this issue) at [73] omitting citations: "The parties to a contract are identified according to the objective theory of contract, which involves ascertaining the intention of the parties from their communications and the circumstances in their mutual knowledge, including their evident commercial aims and expectations; their subjective beliefs and intentions are irrelevant, save insofar as they are manifest and shared. However, the post-contractual conduct of the parties may more readily be resorted to for this purpose than for the purpose of construing contractual terms."
6. In Hadden v Inline Partners Pty Ltd [2024] NSWCA 42, in another case where there was no written contract, Gleeson JA (White and Stern JJA agreeing) confirmed (at [41]-[42]) that the principles stated in Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299 about how the court identifies the parties to a contract also apply where no written documents exist. In Air Tahiti, Allsop P and Handley AJA (Hodgson JA agreeing) said at [28] omitting citations: "The identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract. This is, to a point, a process of construction similar to the task of identifying whether a clearly contractual document (such as a bill of lading) is made with one party or another (such as a shipowner or time charterer): ... Where the documents are silent or ambiguous, but there is undoubtedly a contract, the identity of the parties must be determined objectively from the surrounding circumstances: ..."
7. The principles stated in Air Tahiti are not limited to cases involving written documents but apply also where no written documents exist: Hadden v Inline Partners Pty Ltd [2024] NSWCA 42 at [41]-[42] per Gleeson JA (White and Stern JJA agreeing).
8. The use that can be made of evidence of post-contractual conduct for the purpose of determining the parties to a contract was discussed in detail by Leeming JA sitting at first instance in BH Australia Constructions Pty Ltd v Kapeller (2019) 100 NSWLR 367. His Honour concluded that where a contract is wholly in writing, as it was in that case, post-contractual conduct must be disregarded, except insofar as it bears upon some relevant aspect of the pre-contractual purpose or context. The position is different if the contract is not in writing or is partly written and partly oral. In those cases, post-contractual conduct may be used for the purpose of identifying the parties to the contract.
9. In Hadden, the appellant's conduct in failing to respond to a demand for payment post-contract amounted to an admission against interest and was a strong objective circumstance which supported the factual finding that the appellant was the contracting party (at [28]). This was an application of the principle explained in Roude v Helwani [2020] NSWCA 310 at [33] that "a failure to respond to a demand for payment may amount to an admission if there are circumstances which render it more reasonably probable that a person who denied liability for the claim would answer the claim than that he would not".
10. The relevance of post-contractual conduct generally was also addressed in Gerrard Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (No 2) [2024] NSWCA 232, a case on contract about the existence and construction of a solicitor client retainer. Stern JA said at [35] (Kirk JA and Basten AJA agreeing on this part of Stern JA's judgment): "As to the identification of the terms of a contract that is partly oral and partly written, a court can take into account post-contractual conduct as a basis for inferring what was agreed when the contract was made, or as establishing a later variation: see eg Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 WLR 1213 at 1229 (Brown LJ) applied in County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [27]-[28] & [45] (Spigelman CJ). Post-contractual conduct may also be relevant on the question of whether there is a contract: see eg J D Heydon, Heydon on Contract (2019, Thomson Reuters) at [4.170]. To be relevant as to construction such conduct must be known to both parties, or reveal a common assumption as to the existence and terms of an agreement: Johnston v Brightstar Holding Company Pty Ltd [2014] NSWCA 150 at [120]-[124] (Basten JA, Gleeson JA agreeing) recently relied on in Cirrus Real Time Processing Systems Pty Ltd v Jet Aviation Australia Pty Ltd [2023] NSWCA 280 at [92] (Leeming JA, Kirk JA agreeing at [96]).

D. What are the facts?

1. Evidence of the facts was given by Mr Loneragan and Mr Locke. Both swore affidavits which were read and both were cross-examined. There were no other witnesses.
2. A selection of contemporaneous documents and records were also annexed or exhibited to Mr Lonergan's and Mr Locke's affidavits or tendered into evidence separately. I say "a selection" because it was clear from a number of the documents that other documents existed that were not introduced into evidence.
3. Overall there were few, if any, (punctuation) contests between the parties about the underlying facts, as opposed to the proper inferences to be drawn from those facts.
4. Most of the underlying facts emerge from the contemporaneous documents.
5. There was some common ground about some matters and both Mr Loneragan and Mr Locke made some concessions in their affidavit and oral evidence.
6. To the extent it is relevant, I formed the view that both Mr Loneragan and Mr Locke had a keen awareness of what they thought the main issues were in the case - principally they both appeared to be very sensitive to the question of whether the plaintiff's contract was with Mr Locke personally or with GCR. To the extent that either one of them sought to qualify or explain away statements recorded in the contemporaneous documents, I prefer to rely upon the contemporaneous documents themselves.
7. I will start therefore by identifying the facts established by the contemporaneous documents. The contemporaneous documents identify the factual matrix or background facts known to both parties, as well as the direct communications between them, leading to formation of a contract. The contemporaneous documents also reveal ongoing communications between the parties relevant to the plaintiff's quantum meruit claim.

Facts established by contemporaneous documents

1. To place matters in context, the first item of work the plaintiff claims payment for is an attendance by Mr Loneragan and Ms Lam at Mr Locke's office in Orange on 4 December 2017. By then, both sides say that a contract had been entered into. The last item of work the plaintiff claims payment for is said to have been undertaken on either 22 or 29 June 2018.
2. At the start of October 2017, Mr Locke was a director of GCR. An ASIC search confirms that he had been a director since 31 May 2007. Mr Locke founded the company and was its managing director and chief executive officer from 31 May 2007 to 11 September 2017. He was also a major shareholder.
3. On 14 October 2017, Mr Locke received an email from Mr Ken Lowe, the then chairman of GCR. The subject of the email was stated to be "Request for explanation of expenditure" and was copied to other directors of GCR, one of whom was Mr Peter Coates. Mr Lowe told Mr Locke that there were 2 attachments with the email: "a summary of what the board considers spending discrepancies", and "a detailed summary of documents supporting the discrepancies". Whilst the attachments were not in evidence, it is common ground that the expenditure in issue totalled about $3.1M. Mr Lowe said that they looked forward to receiving Mr Locke's explanation to the board when it meets at 2 PM on 23 October.
4. On 2 November 2017, Axiom Forensics Pty Ltd wrote a letter to Mr Locke on the instructions of Horton Rhodes Lawyers asking Mr Locke to provide certain information around the allegations being made against him. The letter was not in evidence, but was described by Mr Locke in his email to Mr Coates of 12 November. Axiom Forensics Pty Ltd were forensic accountants and had been appointed by GCR. Michael Potter was a director of Axiom Forensics.
5. In early November 2017, Mr Locke and Mr Loneragan had a conversation, the detail of which I set out below when I refer to the testimonial evidence.
6. On Sunday, 12 November 2017 Mr Locke sent Mr Coates an email in his capacity as a director of GCR and as chairman of a recently formed sub-committee of the GCR's board to investigate the allegations being made against Mr Locke. Shortly afterwards, Mr Locke forwarded a copy of the email to Mr Loneragan, to Mr Robert Mangioni and to Mr Andrew Ponnambalam, the latter 2 of whom were solicitors at Watson Mangioni Lawyers. In his email to Mr Coates, Mr Locke said (amongst other things):

• "Given the seriousness of the allegations being made, you will also not be surprised to learn that I have now retained a legal adviser (Robert Mangioni of Watson Mangioni) and a forensic accountant (Hugo Loneragan of Quantum Forensics)."
• "I have been asked to provide documents and explanations for transactions which, in some cases, go back to 2009."
• "…, I propose to respond to the request for information that has been made by working with Quantum Forensics to have them produce a report in response to all relevant matters. Given the number of years to address, and the detail required to address each matter, I anticipate that will take at least a number of weeks. Once available, I'll provide that report to you. You can assess what matters you then wish to take further, and how. I have nothing to hide in this period if the process that follows is fair one, I will cooperate fully."
• "As a matter of due process, if not professional courtesy, you should await that detailed response before taking further steps, based on unverified allegations. Failing to allow me a full and fair opportunity to respond would otherwise fundamentally undermine the validity of the process that you have embarked upon."

1. On Monday 13 November 2017 Mr Peter Coates forwarded to the other directors of GCR (including Mr Locke) a copy of Mr Locke's email of the previous day. This led to one of the directors (Mr Jean-Dominque Huynh) responding to Mr Locke. Mr Locke provided copies of those 2 emails to Mr Mangioni who responded to Mr Locke later that day, copying in Mr Loneragan and Mr Ponnambalam. Amongst other things, Mr Mangioni said to Mr Locke: "Assume that we're proceeding as per our plan (as set out in your email to Peter) until someone convinces us otherwise. Please instruct Hugo so that he can get going asap."
2. On 15 November 2017, Mr Loneragan sent Mr Locke an email with the subject heading "Fee estimate - preliminary review". This is the written part of the agreement Mr Locke says the plaintiff entered into with GCR. The email said: "Dear Brian, As requested, I have prepared a basic fee estimate for coming to Orange and spending three days in your office conducting a preliminary review of the books and records of GCR in connection with the matters in question. I propose that one member of my team accompanies me to complete the work. The applicable hourly rates are as follows: Hugo Loneragan: $450 per hour plus GST Carol Lam: $250 per hour plus GST. Based on 5.0 hours per day for me and 7.0 hours per day for Carol, I estimate $12,000 plus GST for this exercise. We would not charge for travel time. Upon completion of this preliminary review, we could then prepare a brief report or oral presentation for you, as required. Prior to commencing any work, we would prepare a letter of engagement and also request a retainer on account of 50% of the fee estimate. Based on our discussion, the work would not begin until 27 November at the earliest. I look forward to hearing from you to discuss how you wish to proceed. Regards, Hugo"
3. On Friday 17 November 2017, Mr Locke sent Mr Mangioni an email, with a copy to Mr Loneragan and Mr Ponnambalam, saying: "As per our conversation, I'd like you on Monday to write to the other side and say that you are now the contact point for any future negotiations, etc, etc. I look forward to seeing your draft letter on Monday."
4. On 23 November 2017, Mr Michael Potter, a director of Axiom Forensics wrote a letter to Mr Mangioni in which he referred to Mr Mangioni's letter dated 20 November 2017 received via email. Mr Mangioni's letter of 20 November 2017 was not in evidence.
5. On 24 November 2017, Mr Mangioni and Mr Ponnambalam sent a letter to Mr Michael Potter of Axiom Forensics, which Mr Mangioni then sent to Mr Locke by email, saying: "Please see attached letters exchanged with Axiom yesterday/today. I assume that you've got Hugo on track?"
6. On 28 November 2017, Mr Loneragan sent Mr Locke an email with the subject heading "Letter of engagement - Brian Locke and GCR". This email and the attached document are said to contain the terms of the agreement the plaintiff pleads and sues upon. Copies of the email were addressed to Mr Mangioni and Mr Ponnambalam (both of Watson Mangioni, solicitors) and to Carol Lam (of the plaintiff). The email said: "Dear Brian, Please find attached our letter of engagement for your review and completion. Please note that we have requested a retainer be paid on account prior to us commencing work. I will telephone you today to discuss the expected timetable and to plan our visit to Orange next week. I also confirm receipt of the USB of the GCR MYOB files from Mark Edwards of Camphin Boston. Once I have accessed these records I will prepare an inventory of them. Please feel free to call me should you wish to discuss. Regards, Hugo"

47.5 Under the heading "3. Personnel", the document states: "Hugo Loneragan will utilise one team member at Manager level to assist in the review of documentation and the preparation of the expert report.". 47.6 Under the heading "4. Fees & Terms", the document states: "Fees Fees for provision of services are computed on the basis of time spent on the matter by Quantum Forensic staff. Differential rates recognise the experience and specialist knowledge of the personnel involved. Our our hourly rates (GST exclusive) for this assignment are as follows: Principal AUD $450 per hour Manager AUD $250 per hour Analyst AUD $150 per hour In assignments of this nature it is not possible to estimate at the outset the time required to complete an investigation, analysis and report. This is because the scope cannot be precisely defined, the desired format and standard of the records is not known and the required degree of analysis and enquiry cannot be pre-supposed. In our experience, the time required also varies depending on the arrangement of systems and records, access to personnel, the availability of data, and the complexity of the matter. I would expect the fees for Phase 1 to be in the range $15,000 to $20,000 plus GST. This is based on an estimate of a minimum of 40 hours at an average rate of $375 per hour. A further fee estimate can be provided for Phase 2 once the assignment scope has been precisely defined. In addition to our professional fees we would seek reimbursement of any out of pocket expenses necessarily incurred in undertaking the assignment. Naturally, we will not incur any significant out of pocket expenses without obtaining your prior approval. Billing arrangement & credit terms It is our usual practice to request a retainer on account, to be applied against the first invoice. Prior to us commencing work, please deposit the retainer of $10,000.00 into our NAB trust account as follows: Account name: Quantum Forensic Solutions BSB: 082xxx Account number: 3949xxxx Invoices are due net within fourteen (14) days of receipt. Please note that it is your responsibility to pay our fees in accordance with the credit terms. We reserve the right to charge interest at 1% per month on any balance not paid within 14 days from the issue date. In the event that work required under this engagement is terminated for any reason, we would require reimbursement for our time costs and expenses to the date of termination." 47.7 Under the heading "Acceptance", the document states "Once you have considered the contents of this letter, we request that you please sign and return a signed copy to indicate that it is in accordance with your understanding of the scope of our work and your agreement to the terms specified.". The document then provides space for a person to sign, date and print their name and position under the words "Proposal for Quantum Forensic to deliver Forensic Accounting Services accepted by:". It is common ground that Mr Locke never signed the acceptance.

1. Sometime after 28 November 2017 and before 4 December 2017, Mr Loneragan and Mr Locke had a critical conversation, the details of which I set out below when addressing the testimonial evidence.
2. On 4, 5 and 6 December 2017, Mr Loneragan and Ms Carol Lam went to Orange where they met with Mr Locke in his office and inspected documents.
3. On 8 December 2017, Mr Lowe (the chairman of GCR) informed Mr Locke by email that he had been removed as a director of GCR. Within 20 minutes of receiving the email, Mr Locke sent a copy of it to Mr Mangioni, Mr Ponnambalam and Mr Loneragan.
4. On 11 December 2017, Mr Loneragan had a meeting with Mr Locke (: Schedule of time cost detail at CB41).
5. On 12 December 2017, Mr Loneragan had a meeting with Camphin Boston (: Schedule of time cost detail at CB41). Camphin Boston were GCR's accountants.
6. On 14 December 2017, Mr Locke met with Ms Lam and (I infer) Mr Loneragan before all three attended a meeting at the offices of Axiom Forensics with Mr Michael Potter (of Axiom Forensics), Mr Coates (director of GCR) and Mr Jean-Dominique Huynh (director of GCR) "to discuss the allegations made against Mr Locke and procedure for investigations" (: Schedule of time cost detail at CB41).
7. On 15 December 2017, Mr Locke paid the plaintiff $10,000. The plaintiff's bank statement shows that it was paid by cheque.
8. On 8 January 2018, Mr Mangioni sent Mr Locke an email which he also sent to Mr Loneragan. Mr Mangioni said that Mr Locke knew at this stage that Mr Loneragan was planning to meet with Mr Michael Potter of Axiom Forensic on 24 January. Mr Mangioni told Mr Locke that he was concerned that despite several reminders Mr Locke still had not paid the requested $10,000 retainer to Watson Mangioni nor paid its November invoice for $19,429.28. Mr Mangioni told Mr Locke "Just so we have no misunderstandings, we have strict terms of payment here and, in the absence of prompt payment now, I'll unfortunately have little option but to suspend further work on your matter, until full payment is made.".
9. On 12 January 2018, Mr Mangioni sent another email to Mr Locke about the failure to pay Mr Mangioni's fees, again copying his email to Mr Loneragan. Mr Mangioni told Mr Locke: "Brian I haven't heard from you for over a month, and specifically I haven't heard from you since my email below. Nor have we received payment from you of either of the requested amounts. Accordingly, as foreshadowed in my email below, we are suspending all work on your matter, effective immediately. We are, of course, content to resume acting for you, if and when you pay us. However, please be advised that, if payment of the two amounts requested below has not been received by 5.00 pm on Monday, 22 January, we will formally cease to act for you at that time , and we will inform GCR's advisers of that development, so that further correspondence is not sent to us. Regards Robert Mangioni"
10. On 15 January 2018, Mr Loneragan had a telephone conference with Mr Locke (: Schedule of time cost detail at CB42).

A conversation between Mr Loneragan and Mr Locke in early November 2017

1. Both Mr Locke and Mr Loneragan gave evidence of a conversation they agree that they had in early November 2017. Mr Locke says that the conversation took place on 10 November 2017. His evidence is that he said to Mr Loneragan "I want you to do the report for GCR. I have limited cash flow. All my money is tied up with GCR". Mr Loneragan conceded that Mr Locke said to him "I have limited cash flow", but denies that Mr Loneragan said "I want you to do the report for GCR" or "I want you to do the report for the company". Neither Mr Locke nor Mr Loneragan provided any contemporaneous notes of this conversation. In the face of Mr Loneragan's denial that Mr Locke told him "I want you to do the report for GCR (or the company)" and in the absence of any contemporaneous note of the meeting, I have difficulty accepting Mr Locke's evidence on this. My difficulty is compounded by the fact that in all of the contemporaneous documents, most of which I have referred to already, there was no contemporaneous suggestion by or protest from Mr Locke to Mr Loneragan or to the plaintiff that Mr Loneragan was being asked to undertake the work for GCR and report to GCR and render his or his company's bill to GCR, rather than to Mr Locke. For those reasons I find that at this meeting Mr Locke told Mr Loneragan "I have limited cash flow". I do not accept the other evidence of Mr Locke I have referred to about what was said at this meeting.

A second, this time critical conversation between Mr Loneragan and Mr Locke shortly before Mr Loneragan went to Orange

1. In his affidavit of 22 February 2024, Mr Locke gave evidence of a discussion he says he had with Mr Loneragan in or around November or December 2017 after receiving Mr Loneragan's email of 15 November 2017. It was put to Mr Loneragan in cross-examination, and he accepted, that the conversation occurred in late November or early December after Mr Loneragan had provided 2 estimates of his fees for his and Ms Lam's attendance in Orange. Those 2 estimates were the estimates provided in Mr Loneragan's emails of 15 and 28 November 2017. I have already set out the details of those estimates.
2. In cross-examination, Mr Loneragan said that the substance of their discussion was about the work to be done in Orange. He accepted that in the conversation Mr Locke confirmed that he wanted to go ahead with the work which had been discussed. He agreed that Mr Locke said that the estimate of $12,000 (which he had emailed to him) to come up to Orange "is okay, as long as it's not more than $20,000 all up". Mr Loneragan agreed that he said to Mr Locke "It won't be more than $20,000 plus GST to review and to put together a short report, whether that's written or verbal" to which Mr Locke said "okay" and Mr Loneragan then said "If more work's required down the track, I'll prepare an estimate before any work is done".
3. The version of the conversation put to Mr Loneragan in cross-examination and accepted by him, which I have just set out, accords in substance with the version of the conversation set out in Mr Locke's affidavit. I therefore find that Mr Loneragan and Mr Locke had a conversation in the terms I have just set out after Mr Loneragan had sent his emails of 15 and 28 November 2017 and shortly before Mr Loneragan and Ms Lam attended Orange on 4 December.

E. My analysis and conclusions about the parties to and terms of the contract

1. Bearing in mind that the plaintiff has pleaded that it entered into a contract with Mr Locke on or about a specific date (28 November 2017) and on specific terms set out in writing, and both parties rely on explicit conversations or written correspondence, it is appropriate to adopt the conventional method of determining whether parties have entered into a contract and on what terms by analysing their dealings with one another by reference to principles of offer and acceptance and by applying the legal principles I set out earlier.
2. The plaintiff pleads that it entered into a contract with Mr Locke on or about 28 November 2017 and in particulars refers to Mr Loneragan's email to Mr Locke of that date attaching a "letter of engagement for your review and completion". The attached letter of engagement, or "Proposal to deliver Forensic Accounting services" stated (as I have earlier recorded) "once you have considered the contents of this letter, we request that you please sign and return a signed copy to indicate that it is in accordance with your understanding of the scope of our work and your agreement to the terms specified".
3. It is common ground that the letter of engagement dated 28 November 2017 was never completed by Mr Locke and that he never signed and returned it to Mr Loneragan or the plaintiff. It follows that the offer set out in the email and the attached letter of engagement was not accepted by Mr Locke in the manner contemplated by the plaintiff. Further, the plaintiff has not suggested that on or about 28 November 2017 Mr Locke otherwise expressly accepted the offer either in writing or orally.
4. What did happen after Mr Loneragan sent Mr Locke his email on 28 November 2017 is that Mr Loneragan and Mr Locke had a conversation shortly before Mr Loneragan and Ms Lam attended Orange on 4 December. This conversation occurred, of course, in the context of the emails Mr Loneragan had sent Mr Locke on 15 and 28 November. I have already made findings about what was said in that conversation. The substance of their discussion was about the work to be done in Orange, as was Mr Loneragan's email of 15 November. This is to be contrasted with the proposal of 28 November which addressed not only the work to be done in Orange (as part of Phase 1) but also additional work (the balance of Phase 1, Phase 2 and Phase 3). Further the proposal of 28 November indicated that the "assignment scope" for Phase 2 had not been "precisely defined" and that Phase 3 was "to be agreed". In the email of 15 November and proposal of 28 November, Mr Loneragan had provided 2 estimates for 2 slightly differently described pieces of work concerning the initial trip to Orange: in the email 15 November the estimate was $12,000 plus GST for "coming to Orange and spending three days in your office conducting a preliminary review of the books and records of GCR"; in the proposal of 28 November it was in the range $15,000 to $20,000 plus GST for Phase 1, described as "(a) attendance at the Company's or Mr Locke's office to conduct an inspection of the books and records and related documentation. We may also visit the offices of Camphin Boston and obtain copies of documentation and records, as required; and (b) prepare a summary of our analysis and observations in respect of the items reviewed.". Both estimates identified the same hourly rates for Mr Loneragan and Ms Lam, $450 and $250 per hour exclusive of GST respectively. In both the email of 15 November and the proposal of 28 November, the plaintiff suggested that the payment of a retainer would be required prior to commencing any work.
5. It was in this context that Mr Loneragan and Mr Locke had the conversation they did before Mr Loneragan and Ms Lam went to Orange. As I have already found, in the conversation Mr Locke confirmed that he wanted to go ahead with the work which had been discussed. Mr Loneragan agreed that Mr Locke said that the estimate of $12,000 (which he had emailed to him) to come up to Orange "is okay, as long as it's not more than $20,000 all up". Mr Loneragan agreed that he said to Mr Locke "It won't be more than $20,000 plus GST to review and to put together a short report, whether that's written or verbal" to which Mr Locke said "okay" and Mr Loneragan then said "If more work's required down the track, I'll prepare an estimate before any work is done".
6. It was this conversation in the context I have outlined that set the agreed basis for Mr Loneragan's and Ms Lam's trip to Orange and the provision of a short report written or verbal, and no more.
7. As to the question of whether Mr Locke was agreeing on his own behalf or on behalf of GCR, looking at the matter objectively, the evidence is overwhelming that Mr Locke was agreeing on his own behalf. By way of example: 117.1 On 12 November 2017 Mr Locke told Mr Coates in an email which he forwarded to Mr Loneragan on the same day that he had retained "a forensic accountant (Hugo Loneragan of Quantum Forensics)". 117.2 Mr Loneragan's email of 15 November 2017 was sent directly to Mr Locke at his own email address; was directed to him personally ("Dear Brian"); indicated that a brief report or oral presentation could be provided "for you", not GCR; and ended by stating that Mr Loneragan looked forward to hearing from Mr Locke to discuss how he, not GCR, wished to proceed. 117.3 On 17 November 2017 in his email to Mr Mangioni, copied to Mr Loneragan, Mr Locke asked Mr Mangioni to write to "the other side". The clear inference being that Mr Locke, Mr Mangioni and Mr Loneragan were on "one side" and GCR or its board on "the other". 117.4 On 28 November 2017, Mr Loneragan again sent his email to Mr Locke at his own email address and addressed it to him personally. The attached proposal was also directed to Mr Locke personally, not GCR; was only provided to Mr Locke, not GCR; stated in the executive summary that the plaintiff had been "asked by Brian Locke", not GCR, "to prepare a fee proposal"; drew a distinction between the lawyers acting for GCR (Horton Rhodes) and for Mr Locke (Watson Mangioni); recorded what they would do "pursuant to instructions from Mr Locke and/or" his lawyers; stated under the heading billing arrangement and credit terms, "it is your responsibility to pay our fees"; under the heading acceptance, Mr Loneragan asked Mr Locke to consider the contents of the letter and indicate his, not GCR's, agreement to the terms specified; expressed thanks for Mr Locke asking Quantum forensics to assist him, not GCR, with the matter. 117.5 Mr Locke did not respond to either of Mr Loneragan's emails of 15 or 28 November 2017 suggesting that Mr Loneragan or the plaintiff should direct its letter of engagement to GCR instead of to Mr Locke personally. It would have been very simple for Mr Locke to have told Mr Loneragan that he should look to GCR for payment of his fees or to have asked Mr Loneragan to address his letter of engagement to GCR and send it to Mr Coates (the chairman of the board's subcommittee) or to Mr Lowe (the chairman of GCR).
8. In his oral evidence, Mr Locke admitted a number of times that he engaged Mr Loneragan to go to Orange (T7/3/24 p.22 line 44, p.23 line 1, p.30 line 38, p.38 line 48 - p.39 line 1).
9. Some of Mr Locke's post-contract conduct amounted to admissions against interest that the plaintiff was acting for him personally and he personally had engaged its services. In particular, but by way of example only, the payment of $10,000 to the plaintiff on 15 December 2017 was made by Mr Locke personally. This was well before the plaintiff rendered its first invoice to Mr Locke on 6 February 2018, but was after Mr Loneragan and Ms Lam had attended Orange and undertaken the work contemplated in Mr Loneragan's and Mr Locke's conversation prior to 4 December 2017. I infer that the payment was made by way of a retainer or on account of the payment of the plaintiff's fees. Mr Locke's payment provides an admission against interest that he personally was retaining the services of the plaintiff, in other words that he was the contracting party, not GCR. So too, when the plaintiff issued its first invoice to Mr Locke personally on 6 February 2018. He did not respond or complain to the plaintiff that he was not responsible for payment of the plaintiff's fees or suggest that it's contract was with GCR and not him.

The plaintiff's pleading point ~ about an admission in the original defence

1. In response to Mr Locke's pleaded defence and submission that the plaintiff's contract was with GCR and not Mr Locke personally, counsel for the plaintiff submitted that Mr Locke was bound by an admission he had made in his original defence because, whilst Mr Locke had filed an amended defence, he had not been granted leave under rule 12.6 UCPR to withdraw his earlier admission that he had entered into the agreement personally.
2. In its statement of claim filed 15 November 2022 (paragraph 2) the plaintiff pleaded that "On or about 28 November 2017 the plaintiff entered into an agreement with the defendant pursuant to which the plaintiff would provide forensic accounting services (Services) to the defendant in relation to the company Gold and Copper Resources Pty Limited, in consideration of which the defendant would pay fees to the plaintiff calculated on a time cost basis (Agreement)."
3. In his defence filed on 27 January 2023 in response to paragraph 2, Mr Locke admitted "to entering into the Agreement with the Plaintiff on 28 November 2017, for the Plaintiff to provide a forensic accounting services in relation to the company, Gold and Copper Resources Pty Ltd" and did not admit the balance of the paragraph. In his affidavit verifying the defence, Mr Locke affirmed that he believed the allegations of fact contained in the defence were true.
4. In his amended defence filed 27 February 2024, the admission I have set out in the quotation in the previous paragraph was struck out and was substituted with a new response to paragraph 2 setting out, amongst other things, the agreement Mr Locke alleged was formed between the plaintiff and GCR which I have referred to earlier in these reasons.
5. Rule 12.6 UCPR provides that a party raising any matter in a defence may withdraw the matter at any time, but may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court. The rule provides that a withdrawal under this rule is to be made by filing a notice of withdrawal stating the extent of the withdrawal.
6. There can be no doubt that in filing his amended defence and serving it, Mr Locke was giving a clear and unambiguous indication that he was resiling from the admission he had made in his original defence that he personally had entered into a contract with the plaintiff on or about 28 November 2017. By the same token, it is also clear that Mr Locke did not follow the procedure laid out in rule 12.6 UCPR for withdrawing the admission.
7. Counsel for the plaintiff submitted that the admission made by Mr Locke in his original defence because no leave to withdraw the admission has been given by the court and the plaintiff has not consented to the admission being withdrawn. Counsel submitted "If the court does not accept that verified admission it falls into appealable error". Counsel did not explain the nature of the asserted error or provide any authority for the submission.
8. When it received the amended defence, it would have been open for the plaintiff to have ventilated the issue of Mr Locke's failure to comply with rule 12.6 UCPR by making an application by notice of motion to have the relevant part of the new defence struck out. However that course was not taken.
9. Instead, the parties went to hearing on the issues identified in the plaintiff's Amended Statement of Claim and Mr Locke's Amended Defence.
10. When the affidavits were read and oral evidence was given, the plaintiff did not object to Mr Locke's evidence of how the contract was made and what its terms were on the basis that the issues were foreclosed by the previous admission in his original defence.
11. Having regard to all those matters, I do not accept the plaintiff's submission that the court must accept and act upon the admission made in the original defence.
12. In my view, Mr Locke is not precluded from asserting (as he does) that he did not enter into the contract personally or that the terms of the contract were not as alleged by the plaintiff, but what he verified as true in his original sworn defence is capable of giving rise to an evidentiary admission. This admission becomes part of the evidence on which the court can make its decision, but is not determinative of the issue. I have taken the admission into account on that basis.

The defendant's pleading point ~ about the plaintiff's submission that the parties entered into a contract by their conduct

1. In closing submissions, the plaintiff submitted that if the court did not hold there was a clear offer and acceptance then the court should find that the parties bound themselves to the proposal of 28 November 2017 by their "ongoing conduct". Counsel submitted that the parties were "bound by their course of dealing" and referred to the decision of Justice Robb in Francis Gregory Hannigan v Inghams Enterprises Pty Ltd [2019] NSWSC 321 at [73] - [88]. In closing written submissions in reply (in Annexure A to those submissions), counsel for the plaintiff submitted that the parties conduct is such that the agreement contended for by the plaintiff will be inferred, citing 3 further decisions one of which was the decision of the Court of Appeal in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 where at 11,117 McHugh JA said (Hope & Mahoney JJA agreeing): "… a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words: Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 . The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement.". Counsel for the plaintiff also referred to J D Heydon, Heydon on Contract (2019, Thomson Reuters) at [2.110].
2. I have already set out in some detail the way the plaintiff pleaded its case in contract. It did not plead that it had entered into a contract with Mr Locke through a course of dealing or as a result of ongoing conduct or that such a contract could be inferred from the conduct of the parties. Nor did the plaintiff conduct its case on that basis with the acquiescence of Mr Locke. To the contrary in the opening paragraph of the plaintiff's written closing submissions (exhibit D), the plaintiff asserted that it relied on "a written Agreement dated 28 November 2017".
3. In oral closing submissions (T79 of 7 March 2024) counsel for Mr Locke submitted that this represented a new case that had not been pleaded. Counsel submitted that the parties had run the case based on the pleadings at hand and "what we had to defend was an agreement case which was only put as the proposal document, no other alternative in contract". Counsel submitted it was unfair for the defendant to be faced after the closure of evidence with the proposition that maybe there was some alternative. Counsel submitted that other persons could have been called to give evidence and documentary requests could have been made. Counsel submitted that the plaintiff had made it very clear in 2 sets of pleadings what its case was, and that was premised upon the proposal document of 28 November 2017. I accept these submissions.
4. In response, counsel for the plaintiff submitted that if the parties were to be held to their pleaded cases then Mr Locke should be held to the admission he made in his original defence which he did not obtain leave to withdraw. It was submitted that Mr Locke's admission in the original defence somehow "covers the field". Counsel also submitted that "if the admission is allowed to be withdrawn (Mr Locke) cannot be heard to 'hold' the plaintiff to an allegedly narrow pleading". I do not accept these submissions. I have already discussed the effect of Mr Locke's admission. It does not provide a licence to the plaintiff to run a case outside of its pleadings over the proper objection of Mr Locke.
5. For those reasons I do not accept that the plaintiff is entitled to advance the case that a contract between the plaintiff and Mr Locke arose out of their acts and conduct or course of dealing.

My findings

1. For all of those reasons, I find that before Mr Loneragan and Ms Lam went to Orange on 4 December 2017, the plaintiff entered into a contract with Mr Locke (personally and not on behalf of GCR) for Mr Loneragan and Ms Lam to attend Orange and review documents to be made available to them by Mr Locke and to provide a brief report to Mr Locke, either written or oral. It was a term of the contract that the plaintiff would charge Mr Locke for the work to be done by Mr Loneragan and Ms Lam at hourly rates of $450 and $250 respectively, plus GST, but that the total fees for undertaking that work would not exceed $20,000 plus GST.
2. I find that this was the only contract the plaintiff entered into with Mr Locke. To the extent that the plaintiff undertook work for Mr Locke outside the terms of this contract, it must look to its claim in restitution as upon a quantum meruit.

F. The pleaded claim

1. In its statement of claim, the plaintiff asserts that: 140.1 Between on or about 28 November 2017 until on or about 19 July 2018 Mr Locke "requested the plaintiff (and continued to request that the plaintiff) provide services" (paragraph 4A). 140.2 The plaintiff provided those services "to and for the benefit of" Mr Locke (paragraph 5).
2. It claims the amount of $189,454.89 "on a quantum meruit basis for the unpaid value of the Services rendered by the plaintiff to the defendant, upon the request of the defendant" (paragraph 11A).
3. It claims the same amount in the alternative on the basis that "the defendant has been unjustly enriched by the provision of the Services as set out above, and the plaintiff claims… from the defendant being the unpaid value of the Services" (paragraph 11B).
4. In his defence, in response to both the assertions and claims I have set out, Mr Locke repeats his response to paragraph 2 of the statement of claim (which included a denial of the contract pleaded by the plaintiff and a positive statement by Mr Locke of the circumstances surrounding and entry into an agreement by the plaintiff with GCR) and otherwise denies the plaintiff's claims and assertions.

G. The legal principles

1. The parties were unable to agree on a workable statement of the legal principles to be applied to the plaintiff's claims for payment based on "quantum meruit" and the defendant being "unjustly enriched".
2. In my view, the relevant legal principles emerge from 3 recent cases decided by the High Court: Redland City Council v Kozik [2024] HCA 7 ("Kozik"), Mann v Patterson Constructions Pty Ltd [2019] HCA 32, (2019) 267 CLR 560 ("Mann") and Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27, (2008) 232 CLR 635 ("Lumbers").
3. I will not attempt to give a comprehensive statement of the legal principles. The following principles appear to me to be particularly relevant in the present circumstances: 145.1 In Australia, unjust enrichment has a taxonomical function referring to categories of cases in which the law allows recovery by one person of the benefit retained by another (Kozik at [179]; Mann at [213]). A claim for restitution that seeks directly to invoke "unjust enrichment" should be struck out as disclosing no cause of action if it is not pleaded by reference to an established category for restitution (Kozik at [217]). 145.2 One of those categories of cases is quantum meruit (Kozik at [179]), also described as "a claim in restitution as upon a quantum meruit" (Mann at [149]) or a "non-contractual quantum meruit" (Mann at [65]) or a "claim for reasonable remuneration" (Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 257). 145.3 In Lumbers, Gummow, Hayne, Crennan and Kiefel JJ referred to "the long-established category of cases constituted by claims for work and labour done or money paid at the request of another" (Lumbers at [86], italics in original), describing it as "a claim for a reasonable price for the work and for the money it paid" (at [89]) and also as a case "where a plaintiff seeks to recover a fair price for work done at the defendant's request, or the amount the plaintiff has paid for the defendant at the defendant's request" (at [90]). In this category of cases, the request to do the work or pay the money can be express or implied; in their Honours' words, "It would not matter at all whether the request was made expressly, or its making was to be implied from the actions of the parties in the circumstances of the case" (at [89]). 145.4 Although Gummow, Hayne, Crennan and Kiefel JJ criticised the analysis undertaken by the majority in the Full Court on the basis that they proceeded from principles stated at too high a level of abstraction (Lumbers at [75] and [78]), their Honours said (at [79]) that: 'The doing of work, or payment of money, for and at the request of another, are archetypal cases in which it may be said that a person receives a "benefit" at the "expense" of another which the recipient "accepts" and which it would be unconscionable for the recipient to retain without payment.' 145.5 Gleeson CJ, in Lumbers, described 3 types of case: a case of the performance by B of services for A at the request of A; or of acquiescence by A in the provision of services by B knowing that the services were not being rendered gratuitously; or of the provision of services necessary for the protection of A's property (at [39], [49]). 145.6 In Kozic, in their majority judgment Gordon, Edelman and Steward JJ referred to a claim based on a service performed at the request of, or freely accepted by, a defendant (at [182]). Their Honours explained (at [182], omitting citations): 'Where the plaintiff's claim is based upon a service performed at the request of, or freely accepted by, the defendant, the relevant prima facie benefit to the defendant is generally the value of the service performed rather than the loss to the plaintiff or the enhancement of the defendant's wealth that the service generates for the defendant.[177] Hence, in Brenner v First Artists' Management Pty Ltd,[178] Byrne J said that "in a case where the services were requested and accepted, the law will not stop to enquire whether they were, on any other basis, of benefit to the party requesting and accepting them".' 145.7 Returning to this category of cases, their Honours said subsequently (at [208], omitting citations): 'As explained above, it is usually sufficient for a benefit that a person merely performed non-gratuitous services that the other party had requested, or for which the other party freely accepted a liability to pay.[238] Conversely, it is not generally a benefit to receive a service that is not requested and is not freely accepted with an opportunity to reject.[239] As Pollock CB said in argument in Taylor v Laird,[240] "One cleans another's shoes; what can the other do but put them on? ... The benefit of the service could not be rejected without refusing the property itself."' 145.8 In these passages, 'the concept of free acceptance … requires that the recipient "did not take a reasonable opportunity open to him to reject the proffered services"' (Chief Constable of the Greater Manchester Police v Wigan Athletic AFC Ltd [2009] 1 WLR 1580 at 1597 [47] per Sir Andrew Morritt C, cited in Kozic at [208] footnote 238). In Lumbers, Gummow, Hayne, Crennan and Kiefel JJ said that the word "free" has been used in this context to direct attention to whether the recipient of a benefit had an opportunity to accept or reject the benefit (Lumbers at [75] footnote 72). 145.9 The obligation is to pay "fair and just compensation for the benefit which has been accepted" (Pavey at 256) or "fair and reasonable compensation for the work done" or "reasonable remuneration" (Pavey at 260, 261, 263), or to make restitution "to the extent of the fair value of (the) work" (Kozik at [169]), or to pay a "reasonable price" or "fair price" for the work (Lumbers at [89], [90]). 145.10 Usually the value of services is assessed by reference to charges commonly made by others for like services (Kozik at [92] & [203], quoting Dixon J in South Australian Harbors Board v South Australian Gas Co (1934) 51 CLR at 501). 145.11 Prices stated in an unenforceable contract may be regarded as relevant, but they remain evidence only on the question of amount (Kozik at [204]). 145.12 A claim in restitution as upon a quantum meruit is not available if there is a contract between the parties which deals with the subject matter of the claim (Kozic at [14]-[18], [64] and [169]).
4. A similar point to that made by Byrne J in Brenner v First Artists' Management Pty Ltd quoted by the majority in Kozic is made in K Mason, JW Carter and GJ Tolhurst, Mason & Carter's Restitution Law in Australia (4th ed, 2021, LexisNexis Australia). At [935] Mason, Carter and Tolhurst discuss "Services with no end product". They begin and end their discussion by stating that successful claims for restitution in respect of services have never been limited to particular kinds of services and that many cases have applied the concept of unjust enrichment without requiring proof that the services in question produced a marketable end product.

When did the contracted work finish?

1. I have already found that the plaintiff entered into a contract with Mr Locke (personally and not on behalf of GCR) for Mr Loneragan and Ms Lam to attend Orange and review documents to be made available to them by Mr Locke and to provide a brief report to Mr Locke, either written or oral.
2. The work that Mr Loneragan and Ms Lam did up to that point in time is therefore covered by the contract, and a claim in restitution as upon a quantum meruit is not available for that work.
3. Mr Loneragan and Ms Lam went to Orange on 4, 5 and 6 December 2017. Those dates are recorded in the schedule of time cost detail with the first invoice. It is common ground that Mr Loneragan provided a brief report to Mr Locke, but the evidence was not clear about what form that report took or when it was provided.
4. The schedule of time cost detail shows that on 8 December 2017, by which time Mr Loneragan had returned to his office in Sydney, Mr Loneragan prepared a memo to Watson Mangioni "on progress and documents". The schedule of time cost detail also shows that on 29 January 2018 Mr Loneragan reviewed "draft analysis and documents" and prepared a memo to Mr Locke. Neither the memo of 8 December nor 29 January was in evidence.
5. Mr Loneragan's evidence was that he and Ms Lam delivered an oral presentation to Mr Locke and to Mr Mangioni from Orange on their last day there and that he prepared a memo addressed to Mr Locke and Mr Mangioni which he shared with them on his return. His evidence was that this was the memo he prepared on 8 December 2017. He denied that it was the memo prepared on 29 January 2018.
6. Mr Loneragan's evidence that he and Ms Lam delivered an oral presentation to Mr Locke and Mr Mangioni in Orange was not challenged. Nor was his evidence challenged that he prepared and provided a written memo addressed to Mr Mangioni and Mr Locke following the visit to Orange. The only question is whether the written memo was provided shortly after returning from Orange (on 8 December) or more than 7 weeks later (on 29 January). In my view, in circumstances where a brief oral report had already been provided and if there was to be a written memo (which was in fact not required once an oral report had been given) then it too needed only to be "brief", it is more likely that the written memo was provided sooner rather than later. That timing is also consistent with the chronology of events I set out earlier in these reasons and the schedule of time cost detail provided with the first invoice which shows the more substantial work the plaintiff undertook with the participation and knowledge of Mr Locke upon Mr Loneragan's and Ms Lam's return from Orange.
7. For those reasons, I accept Mr Loneragan's evidence that he and Ms Lam provided a brief oral report to Mr Locke and Mr Mangioni on the last day that they were in Orange and followed that up with a brief written report on 8 December 2017.
8. It follows, and I find, that the work the plaintiff had agreed to do under its contract with Mr Locke had been completed by the end of 8 December 2017.

Was the further work performed at the request of Mr Locke or freely accepted by him?

1. Mr Locke contends that GCR requested the work, principally through the agency of Mr Coates.
2. The work the plaintiff did after 8 December 2017 is described in detail in the schedules of time cost provided with each invoice and more generally in the facts established by the contemporaneous documents I set out earlier.
3. Mr Loneragan's evidence, given orally and tested in cross-examination, was that following his attendance in Orange he and Mr Locke had many telephone conversations and in-person meetings, at which and during which Mr Locke requested that he continue work - examine the credit card statements; make contact with GCR's accountants, Camphin Boston; request documents and records from the accountant; attend a meeting with the directors of GCR and the company's forensic accountant, Michael Potter of Axiom Forensics, in mid December 2017; meet with Peter Coates to take him through the detailed work his team and he had completed in respect of the examination of the credit card statements and documents and accounting records of the company. Mr Loneragan gave evidence that he would say a week would not go by without Mr Locke contacting him by telephone and engaging him in a long conversation to discuss the progress of his work, and to make some request or another about other avenues of enquiry or specific tasks that Mr Locke wanted Mr Loneragan to perform. Mr Loneragan's evidence was that the work he was requested to do all related to credit cards in the name of Anette Locke (Mr Locke's wife) over the potential period of review of about 6 or 7 years starting from 2010/2011 up to late 2017. Mr Locke's evidence was that the vast volume of the work that he was being engaged to do related to substantiation of the expenses based on documents in the possession of Mr Locke. Mr Loneragan agreed that these were largely documents he had obtained in Orange. Mr Loneragan's evidence was that the substantial scope of review was reviewing the actual transactions recorded on the credit cards. His evidence was that there were thousands and thousands of credit card transactions that were the subject of the review. Mr Loneragan agreed that broadly the work was in relation to reviewing the Visa statements and the company records for that 6 or 7 year period. He explained that those records included the Visa statements, the invoices and receipts associated with those transactions, and the books and records of the company, including the general ledgers, where those transactions were accounted for by the company.
4. Mr Loneragan denied that at the meeting which took place on 14 December 2017 he received instructions from Mr Coates and Mr Huynh, the other directors of GCR, to continue the work that he was doing at the time. Mr Loneragan said that he did not take any instructions from the directors of GCR. He denied that by the time of the meeting on 18 April 2018 he was receiving instructions from Mr Coates. Mr Loneragan denied that at the meeting of 18 April 2018 he was instructed by the directors of GCR Mr Coates and Mr Huynh to undertake work which was to be funded by GCR. Mr Loneragan's evidence was that he was instructed by Mr Locke to seek the outcome agreed at that meeting and then he reported back to Mr Locke. Mr Loneragan denied that in the later part of the period Mr Coates was his instructor. I note the suggestion that the work agreed on 18 April 2018 was to be funded by GCR was put to Mr Loneragan in cross-examination (T 53 line 43). He denied it. Had this been agreed at that meeting it would have been highly significant for both Mr Loneragan and Mr Locke to know that GCR was going to fund Mr Loneragan's work - highly significant to Mr Loneragan because he would be assured of payment and highly significant to Mr Locke because he would not have to pay. One would have expected that such a highly significant matter would have been recorded by Mr Loneragan in his written report to Mr Locke the next day. There is no mention of it in the report.
5. Mr Loneragan was cross-examined about the use of analysts in performing the work. His evidence was that he had a conversation with Mr Locke about the work of the analysts. He says he informed Mr Locke that the work he wanted him to do required the work of more people and that he could offer him a heavily discounted rate of $75 an hour for that work to be done by the plaintiff's analysts, and Mr Locke accepted this offer.
6. Mr Loneragan agreed that the plaintiff never produced a final report. He explained that the plaintiff did not complete its work. He explained that it produced memoranda and presentations of the database that it had created as part of its work. His evidence was that a substantial part of the plaintiff's work involved building a database of the relevant transactions, verifying those, reconciling them to the company's own books and records and characterising the nature of the transaction. He said most of the work performed and presented related to the documentation possessed by Mr Locke, being the Visa card transactions and the supporting documentation of those transactions.
7. Mr Loneragan's evidence, both about the work the plaintiff did and at whose request, is consistent with: 161.1 The fact that it was Mr Locke who had engaged the services of the plaintiff in the first place and Mr Loneragan and the plaintiff had already been undertaking work on his instructions (or at his request) - in particular attending Orange and providing a brief report. 161.2 The fact that Mr Locke had told both Mr Coates and Mr Loneragan on 12 November 2017 that he had engaged his own forensic accountant (Mr Loneragan) to produce a report in response to "all relevant matters" which Mr Locke would then provide to Mr Coates in his capacity as chairman of the recently formed sub-committee of GCR. 161.3 The fact that when Mr Loneragan prepared his draft letter of engagement of 28 November 2017 he anticipated, and recorded in the letter, that he and the plaintiff would act "pursuant to instructions from Mr Locke" or his lawyers. 161.4 The fact that Mr Locke was no longer the CEO of GCR at the time Mr Loneragan prepared his draft letter of engagement of 28 November 2017, as recorded in the letter, and on 8 December 2017 was removed as a director. Thereafter, to both his own knowledge and the knowledge of Mr Loneragan, Mr Locke had no authority to bind the company. In other words both Mr Locke and Mr Loneragan knew that Mr Locke could not engage the services of the plaintiff on behalf of GCR. 161.5 The fact that before Mr Loneragan had a meeting with Camphin Boston (GCR's accountants) on 12 December 2017, Mr Loneragan had a meeting with Mr Locke the day before (on 11 December 2017) following which, according to the schedule of time cost detail, Mr Loneragan gave instructions to his team and prepared for the meeting with Camphin Boston. The obvious inference is that Mr Locke provided instructions to Mr Loneragan at the earlier meeting which Mr Loneragan then put into action. 161.6 The fact that on 14 December 2017 Mr Locke first met with Ms Lam and Mr Loneragan before all 3 attended a meeting at the offices of Axiom Forensics (the forensic accountants appointed by GCR) with Mr Potter (of Axiom Forensics), Mr Coates and Mr Huynh. The obvious inference is that Mr Locke met first with Ms Lam and Ms Loneragan so that the 3 of them could prepare for their meeting with the other side - that is to say the company and its representatives. 161.7 The fact that the very next day, on 15 December 2017, Mr Locke personally paid the plaintiff $10,000. The obvious inference being that he made the payment so that the plaintiff would continue to undertake work for him. 161.8 The fact that the time cost details show that on 15 January 2018, Mr Loneragan had a telephone conference with Mr Locke following which he gave instructions to his team. The obvious inference is that Mr Loneragan provided instructions to his team as a result of what he had discussed with Mr Locke. 161.9 The fact the time cost details show that on 19 January 2018 Mr Loneragan had a telephone conference with Mr Potter (of Axiom Forensics) following which he sent an email to and had a telephone conference with Watson Mangioni and Mr Locke. The obvious inference is that Mr Loneragan was seeking advice from Watson Mangioni and instructions from Mr Locke about his telephone conversation with Mr Potter. 161.10 The fact that the time cost details show that on 24 January 2018 Mr Locke had a 2 hour long meeting with Mr Loneragan and Ms Lam at the plaintiff's offices "in regards to status of matter and next steps". The obvious inference is that the 3 of them were discussing what work had been done to that date and what should be done next, and that Mr Locke was providing his instructions to Mr Loneragan and Ms Lam. 161.11 The fact that the time cost details show that Mr Loneragan had a telephone conversation on 30 January 2018 with Mr Locke after Mr Loneragan had reviewed the draft analysis and documents and prepared a memo to Mr Locke the day before. The obvious inference is that the purpose of the telephone conversation was to report to Mr Locke or take instructions from him. 161.12 The fact that the time cost details show that on 5 February 2018 Mr Loneragan and Ms Lam attended a meeting with Mr Locke at AR Conolly solicitors, after Mr Loneragan had undertaken preparation for the meeting on 2 February. 161.13 The fact that when the plaintiff sent its first invoice to Mr Locke on 6 February 2018, and on each subsequent occasion, the invoice was addressed to Mr Locke personally, was sent to him at his own personal email address and stated unambiguously that Mr Locke was the "client". 161.14 The fact that each time, Mr Locke made no protest that the invoice should not have been addressed to him personally or that he was not the client. Further, there is no evidence that Mr Locke questioned the detailed descriptions of the work that had been done as set out in the schedule of time cost detail that accompanied each invoice as it was presented. In other words he did not protest that the work had not been done or that he had not asked for it to be done. 161.15 The fact that after the plaintiff sent its first invoice to Mr Locke on 6 February 2018, for the sum of $82,125.39, Mr Locke continued to have telephone conferences with Mr Loneragan. The time cost details show that they had a half-hour telephone conference on the day the invoice was sent; they had a telephone conference on 12 February 2018 following which Mr Loneragan undertook a search and ordered ASIC documents and had a meeting with his team; they had another telephone conference the next day (13 February) following which Mr Loneragan provided instructions to his team; they had another telephone conference on 16 February 2018 about "loan transactions"; another telephone conference on 20 February 2018 following which Mr Loneragan gave instructions to his team. The obvious inference from all of these telephone conferences is that Mr Locke continued to give further instructions to Mr Loneragan to undertake work notwithstanding that he had received a bill for $82,125.39 which well exceeded the original estimate of $20,000 plus GST. It is clear that by this stage Mr Locke was aware of the work that had been done, how much the plaintiff expected to be paid for it, that some of the work had been undertaken by analysts, and that he was asking the plaintiff to undertake more work. 161.16 The fact that on 27 February 2018 Mr Locke sent Mr Coates an email, which he subsequently forwarded to Mr Loneragan, telling Mr Coates in writing (as he had already discussed with him) that "the forensic accountants from Quantum have been very busy working on their report" and asking Mr Coates to help in getting GCR or Camphin Boston (its regular accountants) to provide specific information to the plaintiff to allow them to finalise their report. No doubt Mr Locke and Mr Coates understood that Mr Locke was talking about the same report from his own forensic accountant that he had talked about in his email to Mr Coates of 12 November 2017. The clear inference is that Mr Locke was still travelling down the path of instructing the plaintiff to produce a report "in response to all relevant matters" which he would then provide to Mr Coates. The request that Mr Locke made of Mr Coates to provide the information originated in an email Mr Loneragan had sent Mr Locke the previous day (26 February 2018), which itself followed a 2 ½ hour, perhaps longer, meeting that Mr Locke had with Mr Loneragan and Ms Lam the same day. Once again, the obvious inference is that Mr Locke was providing instructions to Mr Loneragan and Ms Lam in the meeting. 161.17 The fact that on 7 March 2018 Mr Loneragan sent Mr Locke a second invoice, for a further $32,939.50 inclusive of GST, following which Mr Locke continued to give instructions to undertake further work. Once again, Mr Locke made no protest and must have been fully aware of the work that was being done, by whom and at what cost. Not only did Mr Locke not make any protest, as recorded in Mr Loneragan's email of 7 March 2018 accompanying the invoice, Mr Locke and Mr Loneragan had had discussions about payment by Mr Locke and Mr Locke had assured Mr Loneragan that he was "actively seeking to make funds available to pay (the plaintiff's) fees as soon as possible". 161.18 The fact that on 9 March 2018 Mr Locke had a telephone conference with Mr Loneragan following which Mr Loneragan gave instructions to his team to extract working files for Mr Locke which Mr Loneragan then emailed to Mr Locke "as requested" and noting that these were extracts from the plaintiff's files and were provided to Mr Locke "for discussion purposes only". 161.19 The fact that on 19 March 2018 Mr Locke had a meeting with Mr Loneragan. 161.20 The fact that on 21 March 2018 Mr Locke had a telephone conference with Mr Loneragan following which Mr Loneragan sent an email to Mr Locke with an analysis prepared by Ms Lam. 161.21 The fact that on 5 April 2018 Mr Loneragan sent Mr Locke a third invoice, for a further $20,130 inclusive of GST. On this occasion in his email to Mr Locke with the invoice, Mr Loneragan recorded that Mr Locke had "agreed to make an immediate payment of $20,000 against outstanding invoices". Not only was this agreement to make an immediate payment of $20,000 recognition by Mr Locke that he owed money to the plaintiff for the work they had been doing and invoicing to Mr Locke, but Mr Locke made good that agreement on 9 April 2018 when he paid the plaintiff $20,000 by direct deposit. As with the earlier bills, the clear inference is that Mr Locke was aware of the work that was being done, who was doing it, how much the plaintiff was expecting to be paid and it was his responsibility to pay for the work. 161.22 The fact that on 11 April 2018 Mr Locke had a one and a half hour meeting with Mr Loneragan and Ms Lam. This meeting preceded a meeting which took place between Mr Locke, Mr Loneragan Ms Lam and Ms Ramsey of AR Conolly solicitors on 13 April 2018, which preceded a meeting that Mr Loneragan and Ms Lam had with Mr Edwards of Camphin Boston on 16 April 2018, which in turn preceded a meeting on 18 April 2018 between Mr Locke, Mr Loneragan Ms Lam and Mr Coates - the last of which Mr Loneragan reported to Mr Locke on 19 April 2018 "accomplished a significant step forward in resolving the investigation of the Visa card transactions". I have set out details of these events in the chronology earlier in these reasons. The clear inference is that Mr Locke was continuing to provide instructions to Mr Loneragan and Ms Lam after receiving the invoice of 5 April 2018 and making the payment of $20,000 on 9 April 2018 against outstanding invoices, and that Mr Loneragan's and Ms Lam's participation in these meetings occurred with the full knowledge and approval of Mr Locke, in other words on his instructions or at his request. That conclusion is reinforced by the schedule of time cost details showing that Mr Locke had telephone "correspondence" with Ms Lam on 19, 20 and 23 April 2018. 161.23 The fact that after the plaintiff issued its 4th invoice to Mr Locke on 9 May 2018, for a further $25,657.50 inclusive of GST, Mr Locke continued to provide instructions to Mr Loneragan and Ms Lam. I infer that from the fact that the time cost details show that Mr Locke had a 2 hour meeting with Mr Loneragan and Ms Lam on 15 May 2018 "to discuss Visa transaction analysis". That conclusion is reinforced by Mr Locke's own email to Mr Loneragan on 21 May 2018 in which he thanked Mr Loneragan and Ms Lam "for going through the transactions of the Visa card for the year ending 2012". In that same email Mr Locke referred to sitting in the plaintiff's office "now going through the line by line statements" and told Mr Loneragan that it was important that he and Mr Coates "understand the environment (he) was working in… and the way (he) used the credit card to pay the accounts". This was in the context that the schedule of time cost detail shows that on 14 May 2018 Mr Loneragan had a telephone conference with Mr Coates about a planned meeting and that the meeting took place on 28 May 2018. The inference is that Mr Locke was aware of the planned meeting between Mr Loneragan and Mr Coates and was actively engaged in assisting Mr Loneragan in his preparation for that meeting. That conclusion is reinforced by the fact that on 24 May 2018 Ms Lam had a telephone conference with Mr Locke and on the same day Mr Loneragan undertook preparations for his meeting with Mr Coates; then on 25 May 2018 Ms Lam spoke to Mr Locke again and on the same day Mr Loneragan undertook intensive preparation (5 hours) for his meeting with Mr Coates. 161.24 The fact that on 25 June 2018 plaintiff issued its 5th invoice to Mr Locke, for $42,762.50 inclusive of GST. As before, there is no evidence that Mr Locke made any protest when presented with this invoice. The clear inference is that he was fully aware of the work that was being done, who was doing it, how much the plaintiff was expecting to be paid and it was his responsibility to pay for the work. 161.25 Still at this time, Mr Locke was actively seeking information from GCR's accountant so that the plaintiff could use it in finalising its report. That is demonstrated clearly by the email Mr Edwards of Campion Boston sent to Mr Locke on 27 June 2018 - the details of which I have set out earlier. 161.26 The account of events Mr Loneragan laid out in his detailed email to Mr Locke the next day (on 27 June 2018), after Mr Locke had passed on Mr Edwards' email to him. This account gave a broad overview of the work the plaintiff had done and the obstacles which had been placed in its way by the lack of co-operation Mr Loneragan had received from GCR's board in obtaining access to relevant information and records. Counsel for Mr Locke submitted that this email was proof that Mr Coates had been providing instructions to Mr Loneragan. I do not accept that submission. In my view the terms of the email itself do not establish that, and still less when it is read in context with all of the other facts I have just outlined.
8. The foregoing survey provides overwhelming contemporaneous and objective support for the oral evidence of Mr Loneragan. I therefore accept his evidence.
9. It also undermines considerably the notion that Mr Loneragan or the plaintiff was receiving instructions or requests to undertake work from Mr Coates or anyone else at GCR. The final nail is put into the coffin of that notion by a reading of Mr Lowe's email to Mr Loneragan of 15 May 2018 - I have quoted it in full earlier in these reasons.
10. For those reasons, I find that the plaintiff did the further work after 8 December 2017 described in the schedules of time detail supplied with each invoice at the request of Mr Locke.
11. For the same reasons, I also find that Mr Locke freely accepted the further work.

Did the plaintiff perform the further work for the benefit of Mr Locke?

1. Mr Locke contended that the plaintiff did not undertake any of the further work for his benefit, but instead for the benefit of GCR.
2. In my view, asking the question whether the plaintiff performed the work for the benefit of Mr Locke raises a false issue in circumstances where I have found the plaintiff performed the work at his request. That is because, according to the legal principles I set out earlier, it is enough that a plaintiff establish that it did the work at the defendant's request. The same applies where the work is freely accepted.
3. However, in case I am wrong about that, I am comfortably satisfied and I find as a matter of fact that the plaintiff carried out the work for the benefit of Mr Locke, over and above doing the work at his request or with his free acceptance. One need only go back to Mr Locke's own email to Mr Coates on 12 November 2017. In that email Mr Locke adverted to "the seriousness of the allegations" being made against him. In cross-examination he agreed that the allegation was that "$3 million odd was said to be taken from the company and you said, no, this was a proper use of the funds". In his email he referred to "allegations of long standing fraud". He suggested that if it turned into a "bitter public fight" it would make "front page news" and "adversely impact everyone". A moment's thought would have revealed that if the allegations were true Mr Locke would be asked to pay the money back and may well be facing criminal charges. In his email he gave notice that he retained his own forensic accountant, Mr Loneragan of the plaintiff, "to produce a report in response to all relevant matters". He was still pursuing that course in June 2018.

What is the fair value of the further work? Or what is a reasonable or fair price for the work?

1. The hourly rates claimed for the work done by Mr Loneragan and Ms Lam are the same as those provided for under the contract Mr Locke entered into with the plaintiff before Mr Loneragan and Ms Lam went to Orange. Those rates are $450 per hour plus GST for Mr Loneragan and $250 per hour plus GST for Ms Lam. The Court may have regard to those agreed rates. In the absence of any other evidence of charges commonly made by others for like services, and in circumstances where the use of those rates was not challenged at the hearing, in my view it is appropriate to adopt those rates as representing reasonable or fair hourly rates for the work Mr Loneragan and Ms Lam did, as disclosed in the schedules of time cost detail.
2. The hourly rates claimed for the work done by the 2 analysts, $75 per hour plus GST, were not part of the contract. Under the contract, the work was to be done by Mr Loneragan and Ms Lam. I have already accepted Mr Loneragan's evidence that during the course of doing the work he informed Mr Locke that the work Mr Locke wanted him to do required the work of more people and that Mr Loneragan could offer him a heavily discounted rate of $75 an hour for that work to be done by the plaintiff's analysts, and Mr Locke accepted this offer. In my view I can have regard to that agreed rate. There is no evidence of charges commonly made by forensic accountants for work undertaken by analysts. Whilst Mr Locke took issue with the extent and nature of the work performed by the analysts, as I understand it, he did not challenge the use of a rate of $75 per hour plus GST for their work. In all the circumstances I consider that $75 per hour plus GST is a reasonable and fair rate for the work of the analysts.
3. Counsel for Mr Locke submitted that the Court ought to be cautious in accepting on face value the recorded time for the analysts because there was no evidence of what the analysts did or how their time was allocated; there was no evidence of who the analysts were or what the qualifications were; and some entries appeared to be irregular, for example some amounts appeared to be excessive in that there were some months where the time recording suggested that full-time work was being performed.
4. I do not accept that there was no evidence of what the analysts did or how their time was allocated. The schedule of time cost detail which accompanied each invoice gave a general description of the work undertaken by the analysts. For example in the schedule with first invoice the general description was given "Data extraction, tracing and analysis relating to MYOB data, bank statements, Visa card statements, supporting documentation and financial statements". More specific entries obviously related to work being undertaken by the analysts: for example the entry for 9 January 2018 records that Ms Lam drafting a "detailed email to staff to create contents pages for scanned Visa file setting out very detailed process and word expected". There are many other entries in the first schedule of time cost detail of Ms Lam drafting emails to staff to do various things. I infer that when Ms Lam uses the word "draft" she meant "write" or "send". The pattern is repeated in subsequent schedules.
5. I accept that there was no evidence of what the qualifications of the analysts were. However the schedules of time cost detail show, by reason of the type of entries I have just referred to, that the work undertaken by the analysts was supervised by Ms Lam and largely undertaken at her direction.
6. I have already made findings about the work the plaintiff did at the request of Mr Locke which included the need to review thousands and thousands of transactions. Mr Loneragan agreed that broadly the work was in relation to reviewing the Visa statements and the company records for a 6 or 7 year period. He explained that those records included the Visa statements, the invoices and receipts associated with those transactions, and the books and records of the company, including the general ledgers, where those transactions were accounted for by the company. It would be surprising in the extreme if a great deal of that work was not undertaken by analysts at more reasonable rates of charge than by the principal of the firm or an accountant.
7. I have also already made findings that as each invoice was presented to Mr Locke he was aware of the work that had been done, how much the plaintiff expected to be paid for it, that some of the work had been undertaken by analysts, that he made no protest, and in light of all that he asked the plaintiff to undertake more work.
8. Because they were not called to give evidence, counsel for Mr Locke submitted that the court ought to draw Jones v Dunkel inferences in respect of Ms Lam and the 2 analysts to the effect that any evidence they could have given would not have assisted the plaintiff's case. The Court of Appeal discussed Jones v Dunkel inferences in Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151, Beech-Jones JA (Brereton & Mitchelmore JJA agreeing) at [46]-[48]. His Honour explained that Jones v Dunkel (1959) 101 CLR 298; [1989] HCA 8 is authority for the proposition that two possible consequences may follow from a party's failure to call a witness whom they might be expected to call. The first is that the Court may infer that the evidence of the witness who was not called would not have assisted that party's case (a "Jones v Dunkel inference"). The other consequence is that the Court may have greater confidence in drawing an inference unfavourable to that party. His Honour said that a Jones v Dunkel inference has relatively weak evidentiary value. It does not enable the trier of fact to infer that the absent evidence would have been positively adverse to the party, and it does not enable a court to discount or diminish the value of the evidence that a party adduced. Finally, there is no obligation on a jury or a judge to draw any such inference.
9. The failure to call Ms Lam or the analysts does not discount or diminish the evidence of Mr Loneragan that I have accepted. Nor does it enable me to infer that any evidence they may have given would have been positively adverse to the plaintiff.
10. In all the circumstances, I am satisfied and I find that the fair value, or reasonable or fair price, of the work the plaintiff did after 8 December 2017 is as claimed by the plaintiff as set out in the schedules of time cost detail provided with each invoice.
11. However some adjustment needs to be made to the plaintiffs' claim to be paid the total of all of the invoices in full for the fact that the work the plaintiff did up to and including 8 December 2017 was performed under the terms of the contract entered into before Mr Loneragan and Ms Lam went to Orange.
12. It was a term of the contract that the total fees for undertaking the contracted work would not exceed $20,000 plus GST. The schedule of time cost detail provided with the first invoice sets out details of work done and claimed up to and including 8 December which adds up to $19,525 before adding GST, together with expenses adding up to $1,351.60 before adding GST. Adding those 2 figures together gives a total of $20,876.60 before adding GST for work and expenses claimed for the period up to 8 December 2017. This exceeds the agreed cap of $20,000 by $876.60. That amount should be deducted from the first invoice before then adding GST. The adjustment is made by deducting that sum from the sub- total of $74,659.45 stated on the first invoice - being invoice number 13701 dated 6 February 2018. The new figure is $73,782.85 to which one then adds GST of 10%, giving an adjusted total for the invoice of $81,161.13 instead of $82,125.39.
13. It follows from the findings that I have made that the plaintiff is entitled to be paid the adjusted total of the first invoice together with the full amount claimed in the subsequent invoices, less the $30,000 Mr Locke has already paid.
14. The figures are as follows: Invoice date Number Amount 6 February 2018 13701 (Adjusted) $81,161.13 7 March 2018 13702 32,939.50 5 April 2018 13703 20,130.00 9 May 2018 13704 25,657.50 25 June 2018 13705 42,762.50 19 July 2018 13706 15,840.00 Sub-total 218,490.63

Less payments (15 Dec. 2017 $10,000 and 9 April 2018 $20,000) 30,000.00 Total to be paid $188,490.63

Pre-judgment interest

1. The plaintiff claims and is entitled to be paid pre-judgment interest on that amount pursuant to section 100 of the Civil Procedure Act 2005 and Practice Note DC (Civil) No. 15 - Pre-judgment Interest Rates.
2. For ease of calculation, in my view it is appropriate to calculate interest on that amount from the date of the last invoice (19 July 2018) to the date of judgment (8 November 2024).
3. The calculations are as follows: Dates Days Rate Interest (on $188,490.63) 19 Jul - 31 Dec 18 166 5.50 $4,714.84 1 Jan - 30 Jun 19 181 5.50 5,140.88 1 Jul - 31 Dec 19 184 5.25 4,988.54 1 Jan - 30 Jun 20 182 4.75 4,452.18 1 Jul - 31 Dec 20 184 4.25 4,027.31 1 Jan - 30 Jun 21 181 4.10 3,832.29 1 Jul - 31 Dec 21 184 4.10 3,895.81 1 Jan - 30 Jun 22 181 4.10 3,832.29 1 Jul - 31 Dec 22 184 4.85 4,608.46 1 Jan - 30 Jun 23 181 7.10 6,636.41 1 Jul - 31 Dec 23 184 8.10 7,696.61 1 Jan - 30 Jun 24 182 8.35 7,826.48 1 Jul - 8 Nov 24 131 8.35 5,633.34 Total Interest $67,285.44

1. The total pre-judgment interest is $67,285.44.
2. The plaintiff is therefore entitled to judgment against Mr Locke in the sum of $255,776.07, being the total of the invoices and pre-judgment interest.
3. Costs should follow the event.

J. Orders

1. I therefore make the following orders: 1. Judgment for the plaintiff against the defendant in the sum of $255,776.07. 2. Defendant to pay the plaintiff's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2024