[73] After discussing subsequent communications including Mr Dignan's email of 11 July, her Honour referred to some exchanges of text messages between Mr Dignan and Mr Wheeldon on 18 July when Mr Dignan said:

Halikos Hospitality Pty Ltd & Ors v INPEX Operations Australia Pty Ltd [2020] NTCA 4 | Case summary | Zoe

NTNTCA

Halikos Hospitality Pty Ltd & Ors v INPEX Operations Australia Pty Ltd [2020] NTCA 4

[2020] NTCA 4

Court of Appeal (NT)|2020-03-20|Before: Hiley JJ, Riley AJ

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Court of Appeal (NT)

Decision date

2020-03-20

Before

Hiley JJ, Riley AJ

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Judgment (636 paragraphs)

[1]

For the reasons which follow, I do not accept the evidence of Mr Dignan and Mr Weeks that there was ever any discussion about anything other than a single accommodation services provider agreement before 9 July 2014 when the possibility of two separate agreements was first raised by Mr Dignan.

[2]

[70] The trial judge had previously discussed evidence about other events and communications subsequent to 13 February 2014 including draft media releases, the meetings with the Chief Minister on 24 March, the "Darwin Accommodation Proposal" prepared and provided by Halikos soon after that, and other meetings and communications between April and July.

[71] Her Honour proceeded to discuss emails and other communications between the four main participants concerning the preparation of a decision note and associated delays, and the evidence of Messrs Dignan and Weeks about meetings and discussions on 26 May and 20 June and about there being two proposed agreements.[45]

[72] Her Honour discussed the "two agreements" issue in more detail from R [186]. Her Honour quoted from an email which Mr Dignan sent to Mr Wheeldon on 9 July suggesting that "we break down the [Accommodation] Agreement in two separate variations". Her Honour said: "This is the first time that the concept of two different agreements occurs in the documents." Halikos has not challenged this finding.

[10]

[76] Many of the findings challenged in Schedule A under ground 4 also relate to the point made at [153] in Halikos' written submissions. These include several of those set out in paragraphs 7 (regarding a meeting on 29 January), 8 to 11 (regarding events between 28 January and 13 February), 22 to 30 (regarding events between late March and 21 July), 31 (re Mr Wheeldon's email of 21 July) and 32 to 43 (regarding subsequent events).

[77] Senior counsel for Halikos was also critical of the trial judge for not having sufficiently analysed the evidence about the meeting on 29 January 2014 when, according to Halikos, the parties began discussing the two separate agreements, one being the AAV which was completed on 13 February 2014, the other being a "broader accommodation services provider agreement" which was never completed. In short Halikos contended that, although there were ongoing discussions and negotiations including discussions about a decision note, those discussions related to something different to the AAV.

[78] Despite the pleading of ground 5 - "the trial judge erred in failing to have ... regard to the evidence ..." - it is clear that Halikos is challenging the trial judge's conclusion that at all material times, particularly on the 13th February 2014, and subsequently at least until early July, the parties were only discussing a single broad accommodation services provider agreement, not two separate agreements.[47]

[79] In their written submissions, counsel for INPEX noted that the two agreements issue was not pleaded. Halikos pleaded a single agreement, the AAV, the terms of which were included in the Variation Document defined in paragraph [16] of the ASOC. However, the only two parts of the Variation Document which are not said to be part of the AAV are Recitals A and C. At R [230] the trial judge noted that no explanation for this was provided by Halikos, and concluded that it was a necessary part of Halikos' case that it was negotiating with INPEX about two separate agreements.

[80] INPEX contended that the trial judge proceeded properly by determining the facts, as far as possible, on the basis of contemporaneous materials, objectively established facts and the apparent logic of events. Her Honour's considerations and conclusions included the affidavit and oral evidence.

[81] Counsel for INPEX pointed out that Halikos argued at trial that there were two distinct 'aspects' to the negotiations between the parties capable of separate agreement. The first was a potential agreement with respect to the supply of additional accommodation. The minimum obligation in that regard was to provide (in the case of Halikos) and to take or pay (in the case of INPEX) not less than 225/150 apartments and hotel rooms from a range of properties. We note that this is different to the contention made in [153] of Halikos' written submissions, quoted above, that the first agreement was "specific to rooms in H105". The second aspect was for Halikos to provide, and for INPEX to pay for, a range of allied accommodation services such as airport transfers, catering and the preparation of statistical data as to accommodation usage and demand, and possibly additional accommodation.

[82] Senior counsel for Halikos took the Court to some of Mr Wheeldon's evidence at trial about the meeting of 29 January 2014 which he said contained an important concession which the trial judge failed to address. He later took the Court to the Reasons between [164] and [171] concerning communications about a decision note, tenders and INPEX's internal processes. In particular counsel referred the Court to:

(a) Parts of the "proposal" referred to by her Honour at R [166] - [171], where her Honour discusses some of the evidence about communications concerning the preparation of a decision note. The "proposal" was a 69 page document prepared by Halikos headed "INPEX" "Accommodation Services Provider Agreement" and was dated April 2014. On the front page it was referred to as the "Halikos Hospitality Pty Ltd Darwin Accommodation Proposal" (Halikos Accommodation Proposal). The document was given to Mr Wheeldon in late March or early April. It was referred to in some of the documentation as an "Inpex Presentation Portfolio April FINAL".

(b) An "Onshore Decision Note" prepared by Mr Wheeldon (the Onshore Decision Note). He sent that document to Mr Baldwin, INPEX Site Contracts Engineer, on 12 June 2014, together with other documents including an "Accommodation Services Provider Agreement Final", an "Inpex Presentation Portfolio April FINAL - reduced", a PowerPoint presentation also entitled "Inpex Presentation Portfolio April FINAL" and a document entitled "Project Forecast Manpower - Presentation - 2014-05-30".

(c) Communications from 9 July 2014 including an email from Mr Dignan to Mr Wheeldon on 11 July 2014 when he stated that he was "separating the variation of Contract 800575 into two parts" and sent him "Variation document 800575-2".

(d) An email from Mr Wheeldon to Mr Dignan on 21 July in which he said, amongst other things: "The original signed letter should suffice for the first agreement until such time all agreements can be again rolled up into one tidy provision which I believe will be more easily executable."

[83] Halikos contended that these documents and discussions, and in particular the requirement for a decision note, only related to what counsel referred to as the "broader accommodation services provider agreement" and not to the AAV which was concluded on 13 February 2014. Halikos also relied heavily upon what counsel contended was an acknowledgement by Mr Wheeldon during the meeting on 29 January 2014 that the parties would be proceeding with two separate agreements.

[84] Halikos was also critical of the trial judge's general acceptance of the evidence of Mr Kildare over that of Messrs Dignan and Wheeldon, and her Honour's response to Mr Wheeldon's assertion in his email of 21 July 2014 that "[t]he original signed letter should suffice for the first agreement ...". Counsel said that this response should have caused the trial judge to reconsider her views about the credibility of witnesses and in particular about the two agreement issue.

[29]

[88] We agree with INPEX's contention that Mr Wheeldon's oral evidence was in fact to the opposite effect of that advanced by Halikos - that is, the parties were discussing and negotiating one agreement only. Halikos' submissions misstated the effect of Mr Wheeldon's evidence under cross-examination and ignored his evidence in re-examination.

[89] Halikos was also critical of the fact that her Honour did not say much about the oral evidence about that meeting. As we have said, the trial judge did refer to, and express views about, some of the evidence given by Messrs Dignan and Weeks when discussing the two agreements issue.

[90] Counsel for INPEX took this Court to part of the cross-examination of Mr Dignan. At transcript page 338 he repeated his belief that there were two separate agreements being negotiated, one specifically for 105 Mitchell Street "for minimum numbers" and "then to enter into a separate agreement for additional apartments and rooms once those numbers were known". He said that only the second agreement required a decision note and a recommendation for award (referred to by parties as an RFA). The first one did not. Mr Dignan was then asked if his evidence was that on 29 January 2014 there were two variation agreements being discussed. He answered: "Two parts of one variation agreement." One of those parts was for Halikos to lease specific apartments in H105 to INPEX, the other a broader accommodation services provider agreement. When asked whether those agreements were to be contained in two separate documents he said: "No ... Rolled up into one." He agreed that the single document would combine both aspects and would not be finalised and executed for a few months. He agreed that there were internal approval processes and he "knew, in relation to the broader accommodation agreement that that was going to require the RFA and the decision note."

[91] Counsel for INPEX also submitted that Mr Dignan's email of 9 July 2014 to Mr Wheeldon (in which he proposed for the first time in writing that there be two agreements) stands firmly against the acceptance of the effect of Mr Dignan's affidavit and oral evidence, as now contended by Halikos.

[92] Counsel for INPEX also took the Court to part of the cross examination of Mr Weeks. He too referred to an accommodation services provider agreement that contained two parts: "Part A was to the accommodation. Part B of it was what ... additional services they required [sic]". The latter would provide for airport transfers, statistical information and other ancillary services. He then gave some confusing evidence about the two parts of the accommodation services provider agreement. Then there was the following exchange:

[35]

[93] We accept INPEX's submissions that this evidence does not give rise to an inference that is contrary to the trial judge's findings, even if her Honour had expressly referred to this evidence in greater detail in her Reasons.

[94] The inference that, from 29 January 2014 the discussions were about a single broad accommodation services provider agreement and not two separate agreements, is also consistent with the discussions from 28 January 2019 and Mr Weeks's drafts of 7 and 12 February 2014.

[95] After the meeting in Perth on 17 January 2014 (during which Halikos alleges Messrs Wheeldon and Kildare received their authority to enter the AAV), Mr Weeks sent various drafts of what he referred to as a Variation Document to INPEX.

[96] On 18 January, the day after the Perth meeting, Mr Weeks sent a draft variation agreement to INPEX. That draft contained provision for extra accommodation only being provided by Halikos at a property to be constructed by them at 105 Mitchell Street, Darwin (H105). It also differed markedly from the pleaded AAV in several other respects including that it only contemplated the provision of 148 additional rooms (cf 225), was only for an initial term of four years, and only involved INPEX paying for rooms actually "taken" (as distinct from the "take or pay" provisions in the pleaded AAV).

[97] However, after that, the focus of the discussions between the parties changed to a broader-based agreement for the provision of accommodation and services, not confined to H105. Her Honour, at R [71] referred to Mr Weeks' evidence that when he met with Mr Kildare on 28 January "the majority of the time was spent discussing services that Mr Kildare wanted included in the agreement (for example catering services and airport transfers)". Following a further meeting on 29 January 2014 between Messrs Weeks, Dignan, Wheeldon and Kildare, Mr Dignan sent an email to Mr Wheeldon and Mr Kildare reflecting them agreeing in principle "to move to an Accommodation Services Provider Agreement" and that the term would be "a minimum of five years but preferred a period of 15 years plus options."[48]

[98] Mr Kildare replied with his email of 31 January set out at R [75] confirming that he wished to renegotiate and agree on "a more robust longer term and broader accommodation services contract, that meets the long term needs of our construction phase and the oncoming operations phase." He proceeded to point out that INPEX's future needs were not clearly defined particularly as INPEX moves beyond its construction phase and into operations.

[99] From that point on the various draft agreements bore the heading Accommodation Services Provider Agreement and differed substantially from the draft provided on 18 January 2014, for example in the respects noted in [96] above.

[100] On 7 February 2014 Mr Weeks sent to Mr Wheeldon a draft Accommodation Services Provider Agreement. It was much the same as the pleaded Variation Document except that:

(a) Recitals B and C referred to the appointment of Halikos as INPEX's "sole and exclusive accommodation services provider" (cf "primary accommodation services provider in Darwin ... in support of the Ichthys Project").

(b) it provided for a minimum of 250 additional apartments and hotel rooms and that the take or pay obligation on INPEX would apply to that minimum until 1 September 2029 (cf cl 3.5 and 4 of the AAV).

[101] On 12 February 2014 Mr Weeks sent Mr Wheeldon another draft Accommodation Services Provider Agreement. It was similar to the 7 February draft except that:

(a) it reduced the minimum number of rooms to 225;

(b) it altered the take or pay obligation so that from 1 March 2019 to 28 February 2029 it only applied to a minimum of 150 additional Apartments and rooms; and

(c) the main difference between that and the pleaded Variation Document is that Recitals B and C of the latter document referred to Halikos being appointed as INPEX's primary accommodation services provider.

[102] Halikos said that the 12 February 2014 draft was discussed at the meeting between Messrs Dignan, Weeks and Kildare on 13 February 2014 and that Mr Kildare proposed some minor amendments which were made on a computer screen. On 17 February 2014 Mr Weeks sent a copy of that "final draft" to Messrs Wheeldon and Kildare with an email that stated, amongst other things:

[87]

[107] Senior counsel for Halikos challenged a number of her Honour's observations and findings, including that:

(a) the [proposal] was prepared and provided by Halikos in response to Mr Wheeldon's request for information necessary for his preparation of a decision note (R [166] - [169]);

(b) it plainly was a proposal and not just "information" as asserted by Mr Dignan (R [170](a));

(c) the [proposal] was generally cast in the future tense (R [170](a));

(d) the description in the [proposal] of what occurred at the Perth meeting on 17 January 2014 supported the evidence of the INPEX witnesses about what occurred at that meeting and did not support the evidence of Mr Dignan and Mr Weeks (R [170](b));

(e) the proposal was not consistent with [Halikos' claim] that at the date the proposal was presented it already had a binding agreement with INPEX in terms of the pleaded AAV (i.e. to provide INPEX with 225/150 rooms over a 15 year period) (R [171]).

[108] Counsel for INPEX made a number of observations about the Halikos Accommodation Proposal:

(a) It post-dated the Perth meeting on 17 January, the events of 13 February and the meetings with the Chief Minister and discussions about media releases late in March.

(b) The executive summary and other parts referred to the Perth meeting on 17 January when the parties met to discuss project accommodation in Darwin.

(c) Although it expressly referred to INPEX having provided minimum accommodation numbers to Halikos on 13 February, it made no reference to an agreement made then, or for that matter at any other time since the making of Contract 800575 in 2012.

(d) One would expect a reference to such an agreement if, as Halikos contended, it was an agreement extending for some 15 years and involving many tens of millions of dollars, made without a decision note and INPEX's normal approval processes.

(e) Under the heading "Future Inventory" the document expressly states that a further 254 hotel suites and apartment rooms will be provided once the 105 Mitchell Street Apartments are completed in March 2015.

(f) Under the heading "Document Overview" the authors referred to the documents attached as being the full set of documents making up contract 800575, again with no reference to a purported variation of that contract in February 2014.

(g) It referred to the 13 February letter as a "letter of intent".

[109] We agree with her Honour's findings and conclusions concerning this important document, and also accept the reasons advanced by counsel for INPEX. The document was clearly a proposal to enter into a new broad accommodation services provider agreement which would include the provision of additional accommodation over and above that provided under the 2012 Accommodation Agreement. Had Halikos thought that in addition to that agreement, there was another agreement in place (or still being negotiated), whether it be the AAV or something similar, that fact would have been noted and allowed for in this document.

[117]

(e) The opening words in clause 3.3 "From the date of this Variation Agreement" have been replaced by the words "From 13 February 2014".

[124] Variation 800575-3 was headed "Services Provider Agreement" and showed an "Issue date" of 13 August 2014.

(a) The recitals referred to the 2012 Accommodation Agreement (Contract 800575), but not to any other agreement such as the AAV.

(b) The recitals also recorded that "INPEX has appointed Halikos, as a variation to Contract 800575, as INPEX's Service Provider to undertake various duties as required during the construction, commissioning and operations stages of the Ichthys Project."

(c) Schedule 1 identified a range of services to be provided under that agreement. These included provision of additional accommodation, office space, relocation services, airport transfers, reporting, conference facilities and catering.

[125] Senior counsel for Halikos explained the removal of Recital B from Variation 800575-2 by saying that it was not in fact part of the agreement reached on 13 February 2014. Counsel referred to Masters v Cameron[51] and contended that Variation 800575-2 was effectively a subsequent document which was intended to formally document the agreement already reached on 13 February 2014.

[126] Counsel for INPEX asked the Court to note that Halikos now relied on Variation 800575-2 (which no longer contained Recital B) as reflecting the (narrower) agreement made on 13 February 2014. Counsel for Halikos stated that particular part of the Variation Document was now part of the broader accommodation services provider agreement still being negotiated.

[127] However, it was Recital B of the Variation Document (and not Recitals A and C) which was pleaded as part of the AAV.[52] Further, it was Recital B that acknowledged the appointment of Halikos as INPEX's primary service provider and identified a wide range of properties from which accommodation could be provided. Without Recital B, the variation only contemplated the provision of accommodation from those properties identified in Contract 800575, namely C2 and 130. The original Recital B instead found its way into Variation 800575-3. It is there that H105 is identified as one of many sources of accommodation under that agreement, but not under Variation 800575-2.

[128] Again, there is nothing in those communications which supports Halikos' contention that an agreement in terms of either draft, particularly variation 2, had already been concluded. At best, it appears that Mr Dignan was anxious to have the agreement contemplated in variation 2 executed prior to 23 July 2014, and he believed that splitting the Variation Document into two agreements may be a way of meeting this deadline.

[140]

[133] Counsel for INPEX also pointed to other evidence which supported her Honour's conclusion that there was a single agreement being discussed, not two agreements. This included:

(a) The fact that the 13 February 2014 letter makes no reference to there being two agreements. Rather it referred to the preparation of the Variation Document and what was required to be done by Halikos pending execution of that document. The objective intent to refer to a single, undivided, proposed agreement encompassed within the Variation Document was further reinforced by the reference in the letter to the Variation Document calling on Halikos as its Accommodation Services Provider to provide the additional apartments and hotels.

(b) Numerous discussions and communications referred to the proposed appointment by INPEX of Halikos as its "accommodation services provider" and the alleged agreement discussed as being a "services agreement".

(c) Mr Kildare's email of 16 April 2014 advising that "we have not yet completed our project internal processes to assess, and review the Variation to the accommodation services contract" and that "the internal due diligence processes are not complete at this time and until they are, INPEX will not be in a position to make any public announcements regarding accommodation services."

(d) Mr Wheeldon's email to Mr Dignan on 7 May 2014 referring to submission of the decision note for approval.

(e) Mr Week's minutes of the meeting on 26 May 2014 when there was discussion about delays with the media releases and the "variation document being returned with signatures" and Mr Dignan saying that Mr Wheeldon had told him that "he received the supporting information from JKC and the decision note was done and sent to Perth."

(f) The Onshore Decision Note.

(g) Halikos' detailed Expression of Interest to provide accommodation services for fly-in-fly-out personnel (FIFO). The document promoted H105 as "brand new purpose built accommodation" and stated that "105 Mitchell will be a purpose built development dedicated to the Ichthys Project ..." It stated that there would be "no cost pre-commitment for the build to INPEX."

[141]

[134] As counsel for INPEX pointed out, it is not sufficient for Halikos to point to factual findings which are merely inconsistent with some of the evidence. This Court must be persuaded on the balance of probabilities that a different conclusion on a relevant issue should have been reached, having regard to the whole of the evidence which included a substantial body of contemporaneous objective evidence in the form of documents.

[135] There is no basis for this Court to interfere with the conclusions and findings of the trial judge on the important question of whether one or two agreements were being negotiated. Whatever meaning might be attributed to Mr Wheeldon's email of 21 July, her Honour's findings are consistent with and supported by the bulk of contemporaneous evidence including the oral testimony, both before and after 29 January 2014. This is particularly clear when one considers the Halikos Accommodation Proposal, the Onshore Decision Note, the Halikos Expression of Interest and the attempts in early July 2014 by Halikos to split the negotiations into two separate variation agreements.

[136] It was only then, in early July 2014, that the draft agreements prepared and presented by Messrs Weeks and Dignan ceased to be referred to as "Accommodation Services Provider Agreement[s]", a description the drafts had borne ever since Mr Weeks' first draft of 18 January 2018.

[137] If there had been discussions about two separate agreements before July 2014, the outcomes of those discussions, including the agreement said to be made on 13 February 2014, would have been referred to in the various detailed documents prepared by the parties during the course of their negotiations. As her Honour noted, there was no such suggestion in any document prior to the email of 18 July 2014. All of the documents referred to one existing agreement only, namely the 2012 Accommodation Agreement.

[138] The ongoing communications about INPEX's internal approvals processes and preparation of a decision note were clearly related to the process of the parties completing a single accommodation services provider agreement. Halikos did not suggest that at the meeting in Perth on 17 January 2014 Messrs Wheeldon and Kildare were authorised to negotiate two agreements. The thrust of the evidence about that meeting was that Messrs Wheeldon and Kildare were to enter into negotiations for one agreement. The suggestion that the parties concluded a binding agreement on 13 February 2014, but continued to negotiate a second broader accommodation services provider agreement without obtaining any further authorisation does not make sense. Further, the suggestions that INPEX's approvals process could be avoided and a variation contract of this magnitude be concluded in about four weeks is fanciful. Not only was Halikos well aware of INPEX's approval requirements after its involvement in the 2012 Accommodation Agreement (which involved the provision of far fewer apartments); but Messrs Dignan and Weeks were well aware of Mr Wheeldon's intentions, according to Halikos' case, to prepare a decision note so that an agreement involving far less expenditure by INPEX than the AAV entailed, could be authorised and duly entered into.

[139] Accordingly, ground 5 must be dismissed.

[140] Our consideration and rejection of the two agreements contention has important consequences for Halikos. The most critical consequence is that whatever was being discussed and documented on and after 13 February 2014 did not reflect a concluded and binding agreement of the kind pleaded by Halikos. Halikos accepted that negotiations about the broader accommodation service provider aspects of the variations being negotiated had not been concluded. Moreover, the fact of ongoing discussions and negotiations negates the existence of an intention on the part of the parties to enter into binding legal relations on 13 February 2014 - cf ground 9.

[141] Other consequences concern some of the other grounds of appeal. Even if, contrary to the trial judge's conclusions, there was some kind of ostensible authority held by Mr Wheeldon and/or Mr Kildare, a contrary finding is of no consequence if no concluded agreement was reached by the parties. Questions must also arise as to the uncertain scope of that authority. In particular was that authority an authority to bind INPEX: (i) to one or both of the separate agreements being negotiated, neither of which was pleaded; (ii) to the AAV which initially applied to a wide range of accommodation possibilities or which, after removal of Recital B, only related to those properties the subject of the 2012 Accommodation Agreement; or (iii) only to the abandoned draft of 18th January which only related to H105 and involved less rooms and a significantly shorter term?

[142] Another consequence concerns the estoppel and misrepresentation contentions and whether there was any reliance by Halikos on the alleged representations when it commenced and continued to construct H105. Contrary to Halikos' written submissions at [153] quoted at [75] above, any potential agreement specific to rooms in H105 was abandoned before 7 February when the "Variation of Contract Number 800575" of 18 January 2014 was replaced by the first draft "Accommodation Services Provider Agreement". Further, some of the post 13 February 2014 documentary evidence, such as the Halikos Accommodation Proposal, and the propounding of two separate agreements in July 2014 lead to no conclusion other than that Halikos was not relying on the commitment it said it obtained from INPEX on 13 February 2014 when Halikos decided to proceed with construction of H105.

[160]

[152] In summary, the trial judge rejected the factual basis upon which Halikos relied for the existence of ostensible authority in Mr Wheeldon and/or Mr Kildare. Her Honour rejected the evidence of Mr Dignan and Mr Weeks about the meeting of 17 January 2014. In particular, she rejected the claims that: (a) either Okawa san or Sakamoto san in fact held out that Mr Kildare or Mr Wheeldon had authority to bind INPEX to an agreement of the kind alleged; (b) either Mr Wheeldon or Mr Kildare said there was no need for a decision note or an RFA or that the internal processes of INPEX had already been satisfied because the agreement was proceeding by way of a variation of the Accommodation Agreement; (c) that the positions and titles of Mr Wheeldon and Mr Kildare equipped them with the ability to commit INPEX to a multi-million dollar contract to be performed over 15 years; or (d) that INPEX somehow relevantly "armed" Mr Kildare, Mr Wheeldon or Mr Davies with the ability to sign a binding agreement. We have concluded that her Honour did not err in making those findings. They are fatal to the suggestion that Mr Wheeldon and/or Mr Kildare had ostensible authority to enter into the pleaded agreement.

[153] Her Honour's findings were plainly correct. Apart from anything else, compelling reasons for rejecting Halikos' case on ostensible authority are found in the context and surrounding circumstances in which the negotiations about the variations to the Accommodation Agreement took place.

[154] It was not in dispute at the trial nor before this Court that neither Okawa san nor Sakamoto san had actual authority to enter into the AAV without going through INPEX's approval process. While each had authority to approve and execute certain contracts they could only do so after obtaining the necessary approvals which involved a decision note, recommendations for approval by certain personnel, approval by a Contracts Committee, further approval by other senior INPEX personnel, approval by joint-venture partners and a formal contractual instrument.

[155] It was also not disputed that Mr Dignan and Mr Weeks, were aware, "at least in broad outline", of the relevant decision-making processes that existed within INPEX.[57] That knowledge came from Halikos' entry into the Accommodation Agreement on 15 February 2012 and from the fact that Halikos maintained that INPEX's decision-making process was being applied to the broader accommodation service provider agreement.

[156] As we have noted above, and is recorded in the Reasons,[58] and not challenged on appeal, the processes involved the preparation of a decision note for key decisions, followed by a recommendation for award (RFA), or a recommendation for variation (RFV). These recommendations then had to be assessed by senior officers who, in turn, made a further recommendation. Depending upon the monetary value involved there followed a need for approval by a Contract Committee and then the formulation of a document executed by a director or directors of INPEX. For contracts or variations over US $10 million the approval of joint venture partners was required and for contracts over US $40 million approval of the parent company, INPEX Corporation, was also necessary. Save for a limited set of circumstances a tender process was required for contracts over US $10 million.

[157] The 2012 Accommodation Agreement related to 40 apartments for a five year period only, and required the detailed approval process which we have described and, of which, Halikos was aware. In negotiating and finalising the 2012 Accommodation Agreement Halikos was provided with a document which included a detailed analysis of the proposal and was signed by eight different INPEX personnel and had provision for signing by the Contracts Committee and four senior management people including the President Director.[59]

[158] In the circumstances, to suggest that a much larger agreement (with a value exceeding $100 million on one view) relating to many more apartments and extending over a period of 15 years, could be the subject of a variation to the Accommodation Agreement, without undergoing at least a similar approval process, is implausible. To suggest that such an agreement could be entered into in such an informal way and "confirmed" by a two paragraph letter drafted and amended on the spot by officers of INPEX at the low level of Mr Kildare (who was in the Corporate Coordination division with the title of General Manager of that Division) and/or Mr Wheeldon (whose title was Project Manager - Construction) is, as we have said, fanciful.

[159] Even if Mr Weeks' evidence about the discussions on 17 January 2014 had been accepted (which was not the case) the evidence was simply to the effect that Okawa san in the presence of Sakamoto san directed Mr Wheeldon (with Mr Kildare's assistance) to finalise the amount of accommodation needed and then "negotiate or finalise" an agreement with Halikos. There is no suggestion in that evidence that Mr Wheeldon or Mr Kildare could enter into any binding agreement or sign any documentation binding INPEX. The evidence was limited to negotiating and the negotiators reaching an agreement. It does not suggest that once agreement had been reached the known normal processes for INPEX completing an agreement before it became legally binding were not required.

[160] Of course, and in addition, the claimed direction came from Okawa san to Mr Wheeldon who was to be assisted by Mr Kildare. Mr Kildare was to be no more than an assistant to the person the subject of the direction and, therefore, if ostensible authority was conferred, it could only have been upon Mr Wheeldon. Mr Wheeldon was not present on 13 February 2014 when Halikos claimed the contract was entered into and could not be said to have exercised any ostensible authority vested in him on that occasion.

[161] This ground of appeal is not made out and is dismissed.

[162]

[162] Halikos asserts that the trial judge erred in finding that there was no intention by those participating in the events of 13 February 2014 to enter into binding legal relations as a result of what occurred on that date.

[163] In the Reasons the trial judge noted, correctly, that it was strictly unnecessary to consider this ground in light of her Honour's findings about Mr Wheeldon's and/or Mr Kildare's lack of authority to contract on behalf of INPEX. As we have determined that ground 8 should be dismissed it is also unnecessary for this Court to consider this ground. Our discussion and conclusions about ground 5 also demonstrate that neither party had formed the necessary intention at that time. Nor could such an intention be objectively inferred[60] from the conduct of the parties and the events and circumstances of 13 February 2014.

[164] This ground of appeal must also fail because we have accepted the conclusions of the trial judge at R [77] that, given the general consistency of the evidence of Mr Wheeldon and Mr Kildare with the objective documentary evidence, and the relative inconsistency of the evidence of Mr Dignan and Mr Weeks with that evidence, the evidence of Mr Kildare and Mr Wheeldon is to be preferred where there is a conflict; and the evidence of Mr Weeks and Mr Dignan as to what transpired at the meeting on 13 February 2014 is to rejected.

[165] However, we make the following brief observations about her Honour's finding that there was no intention to enter binding legal relations on the part of those present at the meeting on 13 February 2014.

[166] The trial judge rejected the evidence of Mr Weeks and Mr Dignan about what occurred on 13 February 2014 and, in so doing, rejected Halikos' claim that there was an intention to enter into binding relations at that time. In addition, her Honour observed that, even if the evidence of those witnesses was accepted, it would not have assisted Halikos' claim in contract. Her Honour considered the surrounding circumstances and observed, correctly in our opinion:[61]

[171]

[175] Ground 11 contends that when considering the claim for conventional estoppel the trial judge erred in finding that the parties did not adopt a mutual assumption that they had entered into a binding agreement on 13 February 2014. Halikos pleaded that on or about 13 February 2014 Halikos and INPEX "adopted the assumption that [Halikos] had entered into a legal relationship with INPEX in terms of the Additional Accommodation Variation and that it and INPEX would be bound by those terms", and that the parties continued their relationship until about 15 October 2014 on the basis that that assumption was a mutual assumption.[65]

[176] Ground 12 contends that when considering the claim for estoppel by representation, the trial judge erred in finding that Halikos did not establish that the representation it relied upon was ever made.

[177] The representation relied on was that "INPEX made a promise and/or gave an assurance to [Halikos] that the parties had entered into the Additional Accommodation Variation, or that it would execute the Variation Document, and would be bound by its terms".[66] Halikos claimed that "induced by that promise or assurance, Halikos assumed that the Variation Document would be executed, and in reliance on that representation Halikos acted to their detriment in terminating existing leases at 105 Mitchell Street, demolishing the existing buildings and constructing H105, entering into a new lease over H105, borrowing funds and forgoing other developments and investments."[67] Halikos asserted that if the trial judge "had regard, or sufficient regard, to the evidence" referred to in ground 4, her Honour ought to have found that the representation said to have been relied upon by Halikos was made by INPEX.

[178] Ground 13 contends that when considering the claim for misleading or deceptive conduct the trial judge erred in finding that INPEX did not make the representations relied upon by Halikos. Halikos had pleaded that on or about 13 February 2014 INPEX represented to Halikos that it (INPEX) required an additional 225 apartments and hotel rooms, required Halikos to provide that accommodation until 28 February 2029, would pay Halikos for providing that accommodation until 28 February 2029 at the rates and on the terms set out in the Additional Accommodation Variation, and if Halikos undertook the development of H105, INPEX would take and pay for such additional accommodation, and that INPEX made the representation pleaded to in the estoppel by representation claim.[68]

[179] Counsel for Halikos referred to this commitment during the hearing, and during the trial as a "binding commitment", but did not particularise the nature or form of the commitment alleged. The trial judge stated that the essence of the claim was an allegation that Messrs Dignan and Weeks made known to INPEX that Halikos was proposing to build H105 as a purpose built building for INPEX and that it would only go ahead with the development if INPEX made a binding commitment "either to 'take H105' or in terms of the pleaded Additional Accommodation Variation" and that "in reliance on those representations and conduct by INPEX Halikos terminated existing leases" and did the other things referred to in ground 12.[69] Again, Halikos asserted that had the trial judge had "proper regard to the evidence", the trial judge ought to have found that the representations relied upon by Halikos were made by INPEX.

[180] By and large all three claims were based upon the same alleged conduct, which consisted of discussions, phone calls, meetings and correspondence, prior to and after 13 February 2014. The trial judge identified the post contractual conduct that Halikos relied on at R [236] and indicated, by way of footnote, where she had already dealt with those matters in some detail earlier in the Reasons.

[181] For each ground Halikos asserted that the trial judge "failed to have any regard to" and "failed to have any proper regard to" much of the evidence about conduct on and after 12 February 2014. Halikos contended that had the trial judge had "proper regard to that evidence" (in terms of the estoppel by convention and misleading or deceptive conduct claims) or "regard to, or sufficient regard" (in terms of the estoppel by representation claim) her Honour ought to have found in favour of Halikos for those claims.

[182] Essentially, Halikos relied upon the expansive attack on the trial judge's fact-finding, the subject of ground 4, to support these grounds. We have dealt with those attacks elsewhere and concluded that there is ample cogent evidence, particularly documentary evidence, to support the conclusions of her Honour.

[183] As to ground 11, the trial judge dealt with this matter in some detail in R [258] to [268]. At R [265] and [266] the trial judge summarised the findings of fact she had made relevant to this ground. It is not necessary to repeat those findings here. Her Honour then went on to conclude at R [267] that:

[173]

[184] Those conclusions were supported by contemporaneous relevant documentation. This included the documents referred to by her Honour in R [267]:

(a) the email from Mr Weeks to Mr Wheeldon and Mr Kildare on 17 February 2014, in the immediate aftermath of the 13 February 2014 meeting, which enclosed a copy of the Variation Document in Word format and described it as a 'final draft of the Variation'; and

(b) the Halikos Accommodation Proposal which Halikos prepared and gave to Mr Wheeldon in late March or early April 2014, the contents of which were, in substance, a proposal to enter into an agreement to provide accommodation services to INPEX, with the 13 February 2014 letter being described in this context only as a 'letter of intent'. The Halikos Accommodation Proposal was therefore inconsistent with there being a binding agreement already in existence, Halikos assuming that to be the case, or INPEX having represented that to be the position.

[185] As INPEX pointed out, her Honour also referenced other emails and correspondence[70] more generically to the effect that Mr Wheeldon, Mr Kildare and Okawa san made clear, and Mr Weeks and Mr Dignan understood, that there was no binding agreement in place. INPEX identified the following (amongst other relevant emails and correspondence) which were expressly addressed elsewhere in the Reasons:

(a) an email from Mr Weeks to Mr Kildare dated 18 March 2014 attaching a further draft of the Variation Document and seeking a meeting with Okawa san to 'finalise the discussions and proceed'. That email was inconsistent with an agreement having been concluded on 13 February 2014;[71]

(b) an email from Mr Kildare to Mr Weeks dated 16 April 2014 which unequivocally conveyed to Halikos that INPEX was yet to decide whether to agree to the Variation Document;[72]

(c) Halikos' submission to INPEX on 28 July 2014 of an expression of interest to provide accommodation for the operations phase of the Project which included a proposal to provide accommodation in H105.[73] The obvious inference from that expression of interest was that Halikos did not consider itself already bound to provide that accommodation and INPEX already bound to accept it; and

(d) a letter from Mr Dignan to Okawa san dated 20 August 2014 which, in terms, suggested that the parties had been involved in negotiating a document for over six months which was only at that point ready to be signed. That letter was inconsistent with an agreement having been reached and finalised on 13 February 2014.[74]

[186] We accept INPEX's submission that the contemporaneous documentary evidence, particularly that to which the trial judge expressly referred and relied upon, was cogent evidence which plainly supported the correctness of her Honour's conclusion that the alleged representations were not made.[75] Accordingly, both estoppel claims necessarily failed.

[187] Further, as counsel for INPEX added, our rejection of the two agreements issue (raised by ground 5) and the reasoning underlying that rejection, makes it clear that both parties were continuing to negotiate a single broader accommodation services provider agreement on the assumption that there was no binding agreement in place or that the parties were or would be bound by the alleged AAV.

[188] Grounds 10, 11 and 12 are not made out.

[189] To the extent that the misleading or deceptive conduct claim depends upon the same representations as those relied upon for the estoppel by representation claim (ASOC [58](e)), ground 13 must fail for the same reasons as ground 12. However, this ground was directed at the trial judge's conclusions at R [274].

[190] Her Honour had rejected Halikos' contentions that Mr Dignan and Mr Halikos had, subjectively, decided that they would only go ahead with the development of H105 if they got some kind of binding pre-commitment from INPEX, and found that even if they did have such a subjective intention, they did not communicate it to INPEX. Her Honour added that:

[248]

[234] Paragraph 4 of Schedule A challenges the trial judge's findings at R [32], [35], [36], [38] and [40], again on the basis that the trial judge failed to have regard to particular evidence, mainly oral evidence of Messrs Wheeldon, Kildare and Dignan. In their written submissions counsel for Halikos provided transcript references to support their contentions in [4.7] apart from [4.7.6] (which was not further mentioned), [4.8], [4.9], [4.11] and [4.12]. No transcript reference was provided for [4.10] and the reference to the "Construction, Commissioning and Operations phases" was altered to "the Project".

[235] As is pointed out in the INPEX Schedule the evidence referred to in [4.7] to [4.9], [4.11] and [4.12] was referred to in the Communications Schedule, in Halikos' Written Closing Submissions and some of it was referred to in INPEX's Written Closing Submissions. There is no reason to suppose that the trial judge did not have regard to that evidence.

[236] INPEX also contended that some of the summaries of the evidence do not accurately or fairly reflect the effect of the evidence. This criticism was made of each of the seven assertions in [4.7]. Without conducting an unnecessary and exhaustive review we note that perusal of the materials suggests that some, perhaps most, of the INPEX's complaints are justified.

[237] INPEX's criticism about the accuracy of Halikos' summary of evidence is made good for the assertion in [4.7.1] that Mr Wheeldon gave evidence that he confirmed to Mr Weeks in about November 2013 that "INPEX needed additional apartments". In their written submissions Halikos referred to Mr Wheeldon's evidence at page 1452 of the transcript. Perusal of transcript pages 1451-2 shows Mr Wheeldon saying "no" when he was asked "whether on about 4 November 2013 [he was] having discussions with Mr Weeks over the provision of apartments in 105 Mitchell Street." He went on to agree that they did have many discussions about the need for apartments in Darwin. He answered "yes" to the next question: "Did you confirm to him at the time that you needed apartments; yes or no?" and then to the question: "And did you confirm to him at the time that you were still trying to determine the number of apartments that you needed?" When further pressed concerning the "term - that is for how long you would need those apartments" he said: "Well, it would be - it would be determined by JKC and their manning numbers, not by myself." Hence the trial judge's comment at the end of R [33] that Mr Wheeldon "also said that the project (i.e. the Ichthys Project, not necessarily INPEX) would always need rooms."

[238] INPEX also identified contemporaneous documents which, coupled with the apparent logic of events, support the findings challenged.

[239] In any event, it is not apparent how the evidence referred to by Halikos in the particulars is relevant to, or could rationally affect the correctness of the findings challenged. It really does not matter who requested the meeting with Messrs Okawa and Sakamoto, who was asked to arrange the meeting and who suggested that Halikos write a letter outlining its proposals preparatory to having such a meeting.

[240] As the trial judge said, Mr Dignan's letter of 6 December 2013 was unambiguous. Indeed, the fact that the letter made no reference to seeking a binding or written commitment from INPEX, let alone qualifying the clear statement that: "We are about to commence construction ...", justifiably raised concern about the reliability of Mr Dignan's evidence not only about what was said during the meeting of 6 December but also about the important issue as to whether he or anyone else told INPEX that Halikos required such a commitment before commencing construction. Such a concern justifiably led to the trial judge being sceptical about other evidence of Mr Dignan.

[277]

[247] INPEX also contended that the trial judge adopted a proper approach to fact-finding, and the findings are correct. We agree, at least with the trial judge's rejection of Halikos' assertions that they told anyone at INPEX that they would not proceed with the H105 project without a written commitment by INPEX to take accommodation in that building. Amongst other things her Honour was quite right to place considerable weight upon the PowerPoint presentation referred to at R [41] - [44].

[248] In [5.5] of Schedule A, Halikos contended that the trial judge failed to have any regard to the commercial logic and sense of Mr Dignan's evidence that he would not abandon the existing profitable business and leases over 105 Mitchell Street and take on a large loan facility and outlay substantial capital to build H105 without a written commitment. Similar contentions are made elsewhere in Schedule A, including [4.11], [4.12] and [6.7]. This topic was dealt with in the Communications Schedule and in the written closing submissions of both parties. There is no evidence to support this contention. The trial judge addressed the written commitment contention at many points in the Reasons, and rejected that contention particularly as it was not consistent with the objective contemporaneous evidence. Further, there was no evidence to suggest that the undertaking would be speculative or uncommercial at a time when, as the parties were well aware, there was a significant shortage of accommodation in the Darwin CBD.

[249] As to the clause 3 point, even if Mr Wheeldon had given the impression that clause 3 could be utilised for the purposes of Halikos providing additional accommodation for INPEX, it was clear before 13 February 2014 that a decision note would still have to be prepared as part of the normal INPEX approval process, even if the matter was to proceed by way of variation of the 2012 Accommodation Agreement.

[250] We do not consider that the trial judge erred in making the findings challenged in paragraph 5 of Schedule A.

[299]

[265] In our opinion this was the more relevant part of his evidence. We do not consider her Honour's failure to note the removal of the words "and provide an agreement" material.

[266] More importantly, even if her Honour had accepted Sakamoto san's initial evidence that Mr Weeks or Mr Dignan said words to the effect that Halikos "wanted endorsement from Inpex for the proposal by then", or that there was a reference to INPEX providing "an agreement", that would not be inconsistent with her Honour's refusal to accept that Mr Dignan said that Halikos "would not go ahead with the redevelopment" "without" a "binding" "written" agreement from INPEX. There is a big difference between the word "endorsement" and the words "binding" or "written" agreement.

[267] Counsel for Halikos also took the Court to parts of the cross examination of Sakamoto san. Sakamoto san said he did not recall whether or not at the meeting he used the words "provide an agreement" in the context of what INPEX could do within the next two weeks. He said he could have used words like "commitment", "agreement" or any kind of "support". Again, we do not see how this can be said to be evidence inconsistent with her Honour's rejection of Mr Dignan's evidence about this matter, namely that: "Halikos would not go ahead with the redevelopment of 105 Mitchell Street without a binding written agreement from Inpex."

[268] Counsel for Halikos then took the Court to Sakamoto san's email to Mr Wheeldon on 18 February. Counsel drew our attention to the sentence: "The difficult side of the proposal for us is making such a commitment, especially in the short time" and a later sentence: "Also, their request is based on single source procurement using existing contract." Counsel said that this was a reference to working under clause 3 of the original Accommodation Agreement of 2012 (which related to the provision of 40 apartments over a period of five years).

[269] Counsel for Halikos then took the Court to the Summary at p 38 of the Booklet where there is reference to "a prompt commitment [that] would allow construction to commence" and to the reference at p 33 to "demolition of existing building" on 31 January 2014. Counsel contended that Sakamoto san's reference to two weeks being too short for INPEX to make a commitment was a reference to the two weeks between the date of the meeting and the date when the existing building was to be demolished. While there is some confusion about Sakamoto san's answers about these questions, even if he was referring to that two week period, we do not consider that advances Halikos' criticism of her Honour's important finding at R [63](a).

[270] Halikos then challenged R [63](c) where her Honour rejected Mr Dignan's evidence that "Mr Wheeldon said that he had already run the numbers and that INPEX needed the accommodation that Halikos was proposing, or that he said that INPEX needed every bit of accommodation it could get for the project."

[271] Counsel for Halikos pointed out that Mr Kildare said that: "Wheeldon said that further accommodation was needed because the workforce was going to increase" in response to something Sakamoto san had said. Mr Wheeldon also said that he had "run the numbers and that he needed additional accommodation". Also, in his evidence, Mr Wheeldon accepted that he said: "Inpex needs every bit of accommodation it can get for the project."

[272] We agree that her Honour's rejection of that evidence on the part of Mr Dignan or Mr Weeks appears inconsistent with the evidence of Mr Kildare and Mr Wheeldon himself. It may be that her Honour's inclusion of the word "already" was intended to convey her understanding that Mr Wheeldon was said to have stated that he had completed his enquiries and estimates as to the number of units likely to be required. In any event, if it be an error, we do not see that as an important or relevant error on her Honour's part.

[273] Halikos then challenged R [63](e) where her Honour did not accept that Okawa san said, "I want the 148 rooms in 105 Mitchell but also need more." Counsel took the Court to a reference to "148 additional Apartments and Hotel suites" at H105 on the second page of a document (a draft "Variation Document") which was 1 of 2 documents attached to an email from Mr Weeks dated 18 January 2014 sent to a number of people including Okawa san headed "105 Mitchell Street Proposal." We fail to see how that can be evidence of Okawa san having said the words alleged.

[274] Halikos then challenged her Honour's findings at R [63](f) and (h) with reference to things allegedly said by Okawa san to Mr Wheeldon or Mr Kildare that they should "finalise" how many rooms were needed over and above the 148 in H105, and that Mr Wheeldon should "finalise the agreement and get things moving".

[275] Counsel for Halikos directed the Court to Mr Wheeldon's evidence where he accepted the proposition that Okawa san said: "Chris and Sean, you are to finalise the amount of additional accommodation needed as soon as possible." Counsel also referred to Mr Kildare's evidence at page 1606 of the transcript. There occurred the following exchange:

[306]

[279] Counsel for Halikos then took us to the Booklet (referred to in [253] above) and referred to the "two propositions." As to the first proposition counsel referred to the underlined words in the Summary of the Booklet: "A prompt commitment would allow construction to commence and accommodation deadlines to be met." Counsel contended that Halikos was saying that "we can proceed straight away if we get a prompt commitment." Presumably this is the sentence to which senior counsel was referring earlier when he said that "the statement in the critical presentation says that Halikos will not proceed without a commitment from INPEX." We reject counsel's contentions about the meaning and effect of those words. They do not suggest anything like that asserted by counsel, either in the course of oral submissions, or in the various challenges in Schedule A, namely that Halikos would not proceed with the construction of the building at 105 Mitchell Street without a binding or written commitment from INPEX of some kind.

[280] The second proposition concerns the views expressed by the trial judge at R [67] to the effect that it is highly likely that "the discussion ... centred around the accommodation needs of the Ichthys Project" (cf Schedule A [6.4]) and the negotiation of "a broader accommodation services agreement with Halikos, not limited to the provision of accommodation in a single building" (cf Schedule A [6.5]). We see no reason to disagree with those views. Indeed, there were frequent references in the Booklet to the Project and its accommodation needs. Obviously a major part of the discussion involved H105 and the effect that its availability would have on the overall needs of others, particularly others involved in the Ichthys Project. Counsel agreed that the trial judge's views about this do not exclude the possibility that the discussion also involved specific accommodation in H105.

[281] There are detailed responses to the numerous assertions about this topic in the INPEX Schedule. Apart from the matters raised during the oral submissions, there seems to be no challenge by Halikos to those responses. As is the case in respect of all the evidence referred to in Schedule A there is no reason to suppose that the trial judge did not have regard to it, even if she did not expressly refer to it.

[282] INPEX contended that some of Halikos' summaries of the evidence do not accurately or fairly reflect the effect of the evidence. This criticism was made of assertions in [6.7] (re the presentation), [6.10] (re Mr Wheeldon's evidence), [6.11] (re Mr Kildare's evidence), [6.12] and [6.8] (re Sakamoto san's evidence). Counsel for INPEX identified and provided detailed transcript references in support of its contentions, very little of which was challenged by Halikos.

[283] With regards to [6.7] INPEX said (at [86]), and we accept:

[308]

[284] INPEX also contended that Mr Wheeldon's oral evidence is not accurately referred to in particulars [6.10.2], [6.10.3], [6.10.5], [6.10.6], [6.10.7] or [6.10.8]. For example, as to [6.10.2], INPEX points out that Mr Wheeldon was referring to things that Mr Kildare had said at the meeting, not things that he (Mr Wheeldon) said. There are other examples where it was the cross examiner who used the particular words quoted - for example "this is going to be great for INPEX" - but the witness did not give a clearly affirmative or unqualified answer.

[285] Further, as to [6.10.2], INPEX contended that evidence is not relevant to the challenged findings - at most it is evidence that Mr Kildare held views about Halikos' or Mr Halikos' ability to assist INPEX in Darwin. We accept that submission. That evidence is not relevant to the findings about what was discussed at the 17 January 2014 meeting or INPEX's willingness to enter into an agreement with Halikos of the kind alleged within such a short time.

[286] The same applies to many of the other findings challenged by Halikos. Even if a number of the findings challenged by Halikos were erroneous, such error is of no relevance to the issues for which this meeting is important, primarily the authority issue, and also, perhaps, the reliance on a binding commitment issue.

[287] INPEX also contended that Mr Kildare's oral evidence is not accurately recorded in particulars [6.11.2] and [6.11.3]. Although a small point, Mr Weeks' email of 18 January 2014 refers to a discussion of "our proposal" to use clause 3 of the 2012 Accommodation Agreement, rather than such a proposal emanating from an INPEX participant. In any event none of these matters, even if the trial judge failed to expressly refer to them, are such as would be likely to have warranted different findings to those challenged.

[288] Halikos was also critical of the trial judge's failure to expressly refer to and take into account the evidence of Sakamoto san, when he used or acceded to the use of the term "commit" or "commitment".[109] As we have already said there was considerable vagueness about the precise meaning and context of those words. Sakamoto san's evidence about two weeks being "too short to provide commitment, agreement, or any kind of support" was ambiguous and could not be said to render the trial judge's findings wrong.

[289] Halikos also relied on a number of things said and done after the Perth meeting as supporting their contentions as to what was said and agreed at that important meeting. They contended that her Honour failed to have regard to "the content of the entirety of Mr Weeks's email of 18 January 2014" ([6.15]), "the content and context of Mr Dignan's email of 29 January 2014" ([6.16]), "correspondence on 26 February 2014 between Mr Okawa and his personal assistant" ([6.9]) and "Mr Weeks's contemporaneous handwritten notes (unchallenged) of a meeting with Mr Okawa on 21 March 2014" ([6.17]).

[290] On 18 January 2014 (the day after the meeting), Mr Weeks sent an email, with two documents attached, to Okawa san, Sakamoto san, Mr Dignan, Mr Kildare and Mr Wheeldon. The email stated:

[315]

[292] Contrary to Halikos' assertion in [6.15] of Schedule A, it is clear that her Honour did have regard to Mr Weeks' email of 18 January 2014. Halikos has not endeavoured to explain how else her Honour should have had regard to it. During oral submissions before this Court counsel agreed that at most, the email shows that Halikos was seeking to enter into an agreement with INPEX along the lines of that referred to in the email.

[293] Moreover, notwithstanding extensive challenges to her Honour's findings Halikos did not challenge the findings in the last two sentences of R [69], namely that the email "demonstrates an understanding by Mr Weeks that INPEX was to complete its review of the Project's accommodation requirements in Darwin before it would commit to any binding agreement with Halikos" and that: "This review was not complete by 13 January (sic) 2014."

[294] Similarly, contrary to Halikos' assertion in [6.16] of Schedule A it is clear that the trial judge did have regard to Mr Dignan's email of 29 January 2014. See R [72] to R [73] quoted and referred to in [309] to [311] below. Again, Halikos has not endeavoured to explain how else her Honour should have had regard to that email.

[295] The emails of 26 February 2014, referred to in [6.9] of Schedule A, between Okawa san and his personal assistant related to an article in the Northern Territory News entitled "First look at new luxury tower" published that day. Amongst other things the article announced the imminent construction of "Halikos Hospitality's 18 story luxury apartments" and quoted Mr Weeks saying that: "the hotel would put an extra 180 rooms on to the market, alleviating the pressure on existing CBD hotels and increase their ability to service the tourism and business events market"; "the complex would only be available to Ichthys subcontractors and other major projects contractors in Darwin" and that "D (sic) 105 would incorporate the iconic Lizard's Bar and Grill." It also stated that "Inpex NT general manager Sean Kildare welcomed the project" and quoted him as saying: "INPEX welcomes developments such as this that increase Darwin's available capacity and provide quality accommodation for the corporate and business travelling market."

[296] Using the subject heading "Re: Accommodation in Darwin: HALIKOS" Anri Kitaguchi wrote in her email to Okawa san:

[322]

[302] Halikos has relied on the 17 January 2014 meeting in Perth as the basis for their contentions:

(a) about the ostensible authority of Messrs Kildare and Wheeldon and (possibly) Davies to reach and bind INPEX to the agreement said to have been made on 13 February 2014; and

(b) to prove that Halikos informed INPEX that it would not construct H105 unless it had a binding or written commitment from INPEX to occupy and pay rent for a minimum number of rooms over the next 15 years.

[303] In the process of challenging the trial judge's findings on these two issues, Halikos embarked upon the lengthy process of asserting numerous failures on the part of her Honour to refer to substantial parts of the evidence in the course of her Reasons. With the assistance of INPEX's detailed analysis of Halikos' allegations we consider that the complaints are not made out, or to the extent that they may have some merit, they are not such as to warrant interference with the trial judge's findings.

[304] Moreover, even if the Halikos' evidence had been accepted as to what was said at the Perth meeting, it does not follow that the trial judge should have reached a conclusion in Halikos' favour on either of these issues. None of the words or actions said to have emanated from either or both of the directors of INPEX during, or for that matter before or after, the 17 January 2014 meeting can reasonably be construed, either by Halikos or by a Court, as establishing on the balance of probabilities that INPEX authorised Mr Kildare, Mr Wheeldon or Mr Davies to commit INPEX to a binding contract of this magnitude.

[305] At best the purpose, content and outcome of the meeting was for Halikos to present its proposal to senior members of INPEX in the hope that INPEX would enter into a legal agreement of the kind alleged. At that stage there were a number of significant matters yet to be considered. These included rather basic matters such as whether there should be an agreement for four years (as asserted by Mr Dignan[111]) or 15 years[112], whether there should be a broader accommodation provider agreement[113], to what extent any agreement should accommodate persons additional to those employed by INPEX, and whether INPEX's needs could be met by using clause 3 of the Accommodation Agreement instead of the normal decision note approvals process for a contract of this magnitude.

[306] Her Honour's findings have not been demonstrated to be wrong. Rather, the findings are, in our opinion, supported by the evidence and compelling.

[379]

[330] Paragraphs 7 to 11 of Schedule A challenge many of the findings made by the trial judge at various places including in R [71], [73], [78], [79], [80], [81] and [82] (first sentence only). Many of these are findings similar to those previously considered by us in other findings. These include discussions and instructions given to Mr Wheeldon about negotiating the terms of a broader accommodation services agreement ([7.1] re R [71], [75] and [76]), the commitment issue ([7.2] re R [73]), and discussions concerning numbers including requirements for the whole Project ([8.1], [8.2] re R [78](a) & (b) and [9.2] re R [80]). Others concern Mr Wheeldon's reference to the need for a decision note and the approvals process ([8.3] re R [78](c)), discussion on 6 February regarding advice from INPEX Legal about the use of clause 3 without a tender ([9.1] re R [79]), the drafting and sending of the draft variation agreement sent on 7 February 2014 ([10.1] regarding R [81] - [82]), and Mr Wheeldon's response to the further draft sent to him on 12 February ([11] re R [92]).

[331] Clearly the parties were not contemplating and were not in a position to enter into any agreement on 13 February 2014, the day after the further draft was provided by Mr Weeks. So much is apparent from the findings which Halikos have not challenged, including that Mr Weeks in his email of 7 February 2014 strongly suggested that the figure of 250 was inserted into the draft variation document as a basis for future discussion; Mr Wheeldon then told Mr Weeks to "drop it down to 225 and we will leave that as the base for us to prepare a decision note"; and that Mr Wheeldon had not received and did not discuss final numbers with Mr Weeks prior to 24 February 2014.[127]

[332] We have already discussed the commitment issue and found no error in the trial judge's conclusions that no relevant commitment was sought by Halikos or promised by INPEX.[128]

[333] Similarly, we have found no errors in the trial judge's findings about the broader accommodation services agreement discussions and the instructions given to Mr Kildare and Mr Wheeldon which, if established, would have been materially relevant to the issues at trial. We repeat our observations made earlier at [302] to [306].

[334] Furthermore, we find no relevant error in her Honour's conclusions about who said what and when and to whom about accommodation requirements (the "numbers" issue) during the discussions prior to 13 February 2014.

[380]

[335] The trial judge noted that the various participants gave totally different evidence about what happened after Mr Weeks sent the revised draft variation agreement on 12 February 2014, and in particular what was said at the meeting of 13 February 2014 and the context in which the letter of 13 February 2014 was prepared and signed.[129]

[336] It is not necessary for us to dwell on the numerous criticisms made of the trial judge's other findings of those events. Even if Halikos' versions of what was said and done on 13 February 2014 were accepted, no binding contract of the kind alleged was entered into. There are a number of different bases for this conclusion.

(a) This follows from our discussion and conclusions about ground 5 including the ongoing discussions and negotiations about a broad accommodation services provider agreement and Halikos' belated attempts in July to split that agreement into two separate agreements, the first of which was aimed at securing a contract for the 225 / 150 apartments.

(b) This also follows from our agreement with the trial judge that neither Mr Kildare nor Mr Wheeldon had authority, actual or ostensible, to complete an agreement of the kind alleged. Not only did the facts not support such a conclusion, it follows as a matter of law that such authority could not have been conferred in the manner alleged.

(c) Further, we have agreed with the trial judge's conclusion that whatever the desires of Halikos there was no intention on the part of INPEX to enter into a legally binding contract on 13 February 2014.

[337] There was substantial disagreement between Mr Kildare on the one hand and Messrs Dignan and Weeks on the other as to what was said and done at the meeting on 13 February 2014. In short Mr Dignan and/ or Mr Weeks deposed that: Mr Kildare was given a hard copy of the revised draft variation agreement and he asked Mr Weeks to make a number of changes to it, which he did on the spot; Mr Kildare said that no RFA would be required as it was a variation of the 2012 Accommodation Agreement; Mr Kildare said that INPEX's Legal team had signed off on the variation; Mr Kildare agreed to provide a commitment in writing by signing a letter that Messrs Dignan and Weeks had prepared and that Mr Davies (Mr Wheeldon's deputy) had authority to sign the letter.[130]

[338] Mr Kildare's evidence was quite different. He said that he was not given nor shown a copy of any draft variation agreement and that agreement was not discussed at the meeting. The meeting began with Mr Weeks repeating what he had said to Mr Kildare on the telephone the day before about Halikos' need for a letter from INPEX setting out its interest in a broad accommodation agreement. During the telephone conversation Mr Weeks told Mr Kildare that he had been talking to other accommodation providers around Darwin about INPEX's accommodation needs and INPEX's suggestion that Halikos prepare a proposal to manage all of INPEX's accommodation needs in the Darwin CBD. Mr Weeks said that he was having difficulty pulling the Halikos proposal together because other accommodation providers would not speak to them as they did not believe INPEX was asking Halikos for such a proposal. He said that he needed some form of note, or letter or "something from INPEX" that Halikos could show the other providers so that Halikos could put a proposal together. Mr Kildare said he would speak to Mr Wheeldon and get back to Mr Weeks.[131]

[339] Mr Kildare deposed that at the meeting on 13 February 2014 he said that anything INPEX provided in writing was subject to final approvals from INPEX and that Mr Weeks said, "Yes," and that he understood that. Mr Kildare said that he had discussed the matter with Mr Wheeldon and that Mr Wheeldon had agreed to provide a letter, but that the letter had to be subject to all final approvals from INPEX. He deposed that Mr Weeks pulled up a draft letter on his computer. After he had a quick read of the document, Mr Kildare pointed to the screen after the sentence that begins "In the interim," and said that this was "subject to" either final approvals or a final contract. (He could not recall which exact words he used, except "subject to".) Mr Weeks said words to the effect of, "Yes, yes, yes - understood." Mr Kildare was not given a hard copy of the letter at the meeting. Mr Kildare then telephoned Mr Davies and made arrangements for him to sign the letter in the absence of Mr Wheeldon.[132] He said that when he later saw the signed letter, it did not contain the change he had requested.

[340] Her Honour accepted the evidence of Mr Kildare and found that the meeting occurred substantially as he deposed. Her Honour said:

[491]

6.6. the commercial logic and sense of Mr Dignan's evidence that he would not abandon the existing (profitable) Top End Hotel business (at 105 Mitchell Street), terminate leases (also profitable) (at 105 Mitchell Street), demolish the existing premises (at 105 Mitchell Street), take on a large loan facility, and outlay substantial capital building H105 without a written commitment;

6.7. the wording of the presentation document provided and discussed during that meeting, which required a "prompt commitment" from INPEX to allow construction of H105 to commence and accommodation deadlines to be met, together with Mr Dignan's evidence that he required a binding agreement and commitment from INPEX before the development would go ahead;

6.8. the content of Mr Sakamoto's email sent on 18 January 2014 to Mr Wheeldon in which he set out that a difficult side of the Halikos proposal was "making such commitment", and his subsequent oral evidence that the two-week period of time mentioned was too short for INPEX to provide a "commitment, agreement, decision or any kind of support";

6.9. the subsequent correspondence on 26 February 2014 between Mr Okawa and his personal assistant which revealed that there was a discussion within INPEX that Halikos sought a commitment from INPEX at that meeting;

6.10. Mr Wheeldon's oral evidence that:

6.10.1. Mr Sakamoto's use of "commitment in a short time" was a reference to making a commitment to Halikos based upon the matters discussed at the 17 January meeting;

6.10.2. during the meeting, he said that Halikos's service was "fantastic" and "world class" and that it had the required expertise to provide the solution to INPEX's accommodation issues;

6.10.3. during the meeting, he said that Halikos's proposal was an attractive one and was going to be great for INPEX;

6.10.4. during the meeting, he said that INPEX needed every bit of accommodation that it could get for the Project;

6.10.5. during the meeting, he said there was a discussion that H105 would allow Halikos to meet INPEX's accommodation requirements in 2015 and beyond;

6.10.6. at the end of the meeting, Mr Okawa said that the proposal is what INPEX wants, that Mr Wheeldon and Mr Kildare were to finalise the amount of accommodation needed as soon as possible, with Mr Kildare to assist Mr Wheeldon (Mr Kildare also gave evidence to this effect);

6.10.7. it was not inconsistent with his memory that during the meeting Mr Okawa said "I want a broader, longer term accommodation solution covering the three phases of the project" and "I'm happy and I agree with what is proposed"; and

6.10.8. he read Mr Weeks' email of 18 January 2014 and would have corrected the position if he thought it incorrectly described what happened at the 17 January meeting;

6.11. Mr Kildare's oral evidence that:

6.11.1. during the meeting, Mr Wheeldon said that INPEX needed more accommodation and that he had "run the numbers";

6.11.2. during the meeting, Mr Dignan said that H105 could support INPEX's accommodation requirements and avoid negative press issues, and that the building would be dedicated to INPEX; and

6.11.3. the first paragraph of Mr Weeks' email of 18 January 2014 - which referred to a discussion that the proposal could be dealt with under the existing accommodation agreement - was a reasonable reflection of what was discussed during the 17 January meeting;

6.12. Mr Sakamoto's oral evidence that H105 was to be purpose built to provide the project with a local accommodation solution, and that there was a discussion that H105 could relieve negative publicity for INPEX;

6.13. Mr Okawa's oral evidence that he did not have a clear recollection of the events of that meeting, notwithstanding the contents of his affidavit;

6.14. Mr Okawa's oral evidence that there was a discussion that Halikos planned to build a new building that would provide dedicated accommodation for INPEX personnel, and that it could provide a solution to the accommodation problem previously identified by the Chief Minister (Mr Giles);

6.15. the content of the entirety of Mr Weeks' email of 18 January 2014;

6.16. the content and context of Mr Dignan's email of 29 January 2014; and

6.17. Mr Weeks' contemporaneous handwritten notes (unchallenged) of a meeting with Mr Okawa on 21 March 2014, which include "HO thanked us and spoke that this was what INPEX wanted and direction when we met in January. Longer - broader - construction - oper." (addressed further in [19.4] below).

[506]

In respect of the finding at R [96] that, as to the events of 12 February 2014, the evidence of Mr Kildare is to be preferred to that of Mr Weeks, including because Halikos rather than INPEX was pressing for a concluded agreement, the trial judge failed to have any, or any sufficient, regard to:
- 12.1. the body of evidence that INPEX wanted a solution to the accommodation issues raised by the Chief Minister;
- 12.2. the evidence of Mr Weeks and Mr Wheeldon (oral evidence) concerning problems Mr Wheeldon had previously experienced as a result of going out to tender for accommodation;
- 12.3. the evidence addressed above in relation to the 17 January meeting, including Mr Wheeldon's evidence that it was not inconsistent with his memory that during the meeting Mr Okawa said "I want a broader, longer term accommodation solution covering the three phases of the project" and "I'm happy and I agree with what is proposed";
- 12.4. the evidence addressed above in relation to the 29 January meeting and Mr Dignan's email of 29 January;
- 12.5. Mr Wheeldon's oral evidence that at the meeting with Messrs Dignan and Weeks on 6 February 2014:
  - 12.5.1. he requested a copy of the draft variation agreement with the number of 250 rooms included in it;
  - 12.5.2. he requested including the number of 250 in that document;
  - 12.5.3. he discussed putting tentative minimum numbers in that document; and
  - 12.5.4. he discussed that the document would proceed by way of a variation to the existing agreement;
- 12.6. the content of Mr Weeks' email of 12 February 2014;
- 12.7. Mr Wheeldon's oral evidence that by Mr Weeks' email of 12 February 2014, Mr Wheeldon understood that Mr Weeks believed that the parties could move forward on the basis of an instruction to secure accommodation, without any decision note, whilst the Variation Document was being executed;
- 12.8. Mr Weeks' evidence that he was confident that Halikos could provide the 225 apartments requested by Mr Wheeldon at that time without needing to speak to other accommodation providers;
- 12.9. Mr Wheeldon's (and any other INPEX witness's) failure to corroborate Mr Kildare's evidence as to the purport of the letter allegedly requested by Mr Weeks; and
- 12.10. the apparent acceptance by the trial judge of the evidence of Mr Kildare that the letter allegedly requested by Mr Weeks at that time did not concern an agreement (it was just to show other developers).
In respect of the findings at R [104] to [106] and [111]:
- 13.1. that the meeting on 13 February 2014 (13 February meeting) occurred substantially as Mr Kildare deposed;
- 13.2. that the evidence of Mr Dignan and Mr Weeks was inherently implausible;
- 13.3. that it was inconceivable that Mr Kildare would purport to finalise the terms of an agreement with Halikos of the kind alleged;
- 13.4. not to accept Mr Weeks' evidence that Mr Wheeldon had told him that he was happy with the revised draft variation agreement and that INPEX's legal team had signed off on the variation;
- 13.5. that there is no reason why Mr Wheeldon would have told Mr Weeks that the lawyers had "signed off" on the revised draft variation agreement;
- 13.6. that Mr Weeks' evidence that Mr Kildare said "I am happy with the Variation Document. It is correct and is all that is required. The RFA for the first agreement was fully signed off and that is all that's needed for the variation" is implausible;
- 13.7. that there was no reason at all why Mr Kildare would tell Mr Weeks and Mr Dignan that the INPEX internal processes were not necessary;
- 13.8. that Mr Weeks' evidence was inconsistent with later documents and other communications;
- 13.9. to accept Mr Kildare's evidence about Mr Weeks' explanation as to why Halikos wanted the letter dated 13 February 2014 (13 February letter), that he requested the words "subject to" be inserted and that he made it clear that anything INPEX provided in writing was subject to final approvals from INPEX;

[508]

13.10. Mr Kildare's inconsistent oral evidence in relation to the words "subject to" (which he allegedly wanted incorporated in the 13 February letter):

13.10.1. that they were of great significance;

13.10.2. that he saw the need to include them because he did not want Halikos to be under a misunderstanding;

13.10.3. that he included them for completeness;

13.10.4. that the inclusion of these words was not an important step and did not seem important to him at the time; and

13.10.5. that he did not see the letter as a whole being important or that the omission of these words was a problem;

13.11. Mr Kildare's evidence that although he was sent the letter and acknowledged it did not contain the words "subject to" he did not take any steps to correct this because the letter as a whole was not important;

13.12. the evidence of Messrs Dignan and Weeks that:

13.12.1. while Mr Kildare dictated changes to the Variation Document, Mr Weeks typed them into his computer, and the computer monitor was a large television screen visible from all parts of the room;

13.12.2. after Mr Kildare finished making changes to the Variation Document, a copy of that document was printed out and given to him;

13.12.3. while Mr Kildare dictated changes to the letter, Mr Weeks typed them into his computer, and the computer monitor was a large television screen visible from all parts of the room;

13.13. Mr Weeks' contemporaneous handwritten notes (unchallenged) of that meeting which are consistent with his and Mr Dignan's evidence;

13.14. Mr Davies' (of INPEX) evidence that Mr Kildare described the letter as "a letter of intent for accommodation" and that Mr Kildare said to him in respect of it "... it's all good. Chris knows about it";

13.15. the evidence of Messrs Dignan and Weeks that Mr Weeks emailed the draft letter to Mr Davies, Mr Kildare and Mr Dignan in Mr Kildare's presence, and that a hardcopy of the signed letter was given to Mr Kildare before he left that meeting;

13.16. Mr Wheeldon's evidence that upon reviewing Mr Weeks' email of 17 February 2014, he thought that Halikos thought that they has an agreement in place;

13.17. Mr Weeks' contemporaneous notes (unchallenged) of a meeting with Mr Kildare on 25 March 2014 which record Mr Kildare saying in response to questioning about the signing of the Variation Document "You have your letter and don't need to worry"; and

13.18. Mr Weeks' contemporaneous notes (unchallenged) made during a meeting with Mr Kildare on 26 May 2014 which record Mr Kildare saying at that meeting "we are an honourable company and we will stick to the agreement" and "you have got your letter it's as good as money in the bank".

[509]

In respect of the findings at R [107] and [108] that the 13 February letter does not signal unambiguously that it is intended to bind INPEX, and that Messrs Dignan and Weeks were well aware that Mr Kildare would not have agreed to sign an unambiguously binding document, the trial judge failed to have any, or any sufficient, regard to:
- 14.1. the terms of the letter of 13 February 2014, including the subject line "Variation to Existing Contract 800575";
- 14.2. the terms of the letter, which are inconsistent Mr Kildare's explanation for the existence of the document;
- 14.3. the inconsistency between Mr Kildare's evidence that "subject to" was to be included as he did not want Halikos to be under a misunderstanding, and his purported explanation that the letter was to show to third parties;
- 14.4. the differences between the 13 February letter as signed by INPEX and the earlier draft which was no more than an agreement to agree;
- 14.5. Mr Wheeldon's evidence that the letter should not have been signed and that he disagreed with it;
- 14.6. Mr Okawa's oral evidence that the letter was a significant document;
- 14.7. Mr Weeks' contemporaneous notes (unchallenged) of a meeting with Mr Kildare on 25 March 2014 which record Mr Kildare saying in response to questioning about the signing of the Variation Document "You have your letter and don't need to worry";
- 14.8. Mr Weeks' contemporaneous notes (unchallenged) made during a meeting with Mr Kildare on 26 May 2014 which record Mr Kildare saying "you have got your letter it's as good as money in the bank";
- 14.9. Mr Wheeldon's email of 21 July 2014 in which he confirmed that the 13 February letter was to stand as the first agreement in respect of additional accommodation and his oral evidence to this effect (addressed further in [31] below);
- 14.10. the body of evidence that immediately after the 13 February meeting, Halikos put in train the development of H105; and
- 14.11. the evidence of Messrs Halikos and Dignan that they would not have developed H105 without a commitment from INPEX.

[533]

23.9. the contents of the covering email to Mr Weeks' letter of 11 April 2014, which set out "From correspondence received on the 13th February 2014 from INPEX Operations Australia Pty Ltd we confirm we have secured the additional 225 apartments/hotel rooms";

23.10. Mr Okawa's evidence that he would have expected Mr Wheeldon and Mr Kildare to have read the correspondence and to have informed him and Halikos if they identified anything in it that was wrong, and that they did not do so;

23.11. Mr Kildare's oral evidence that he likely read the correspondence at the time;

23.12. Mr Wheeldon's oral evidence that:

23.12.1. he read and understood the email and letter, including that it referred to the 13 February letter and the press releases;

23.12.2. at that time he was getting concerned that Halikos was in fact proceeding on the basis that it had entered into an agreement with INPEX for a specific number of rooms;

23.12.3. at that time he understood that Halikos was saying that it had in effect locked in an agreement with INPEX under the 13 February letter;

23.12.4. he accepted that rooms in H105 could be used for the purpose of the variation; and

23.12.5. he understood from his discussions with Halikos representatives that they proposed to develop H105 to provide rooms for INPEX in relation to a specific agreement for the provision of rooms;

23.13. Mr Wheeldon's email to Mr Kildare on 14 April 2014 following receipt of Mr Weeks' email in which Mr Wheeldon asked Mr Kildare "how do we want to play this", and Mr Kildare's response that they have a chat over a coffee or beer at the end of the day;

23.14. the statement in Mr Kildare's email of 16 April 2014 that the announcement will be ready to go sometime after Easter, and the fact that the email on its face deals with issues relating to the wider accommodation services provider agreement;

23.15. Mr Wheeldon's oral evidence that as at about 17 April 2014 he said to Mr Dignan that the variation would be signed in May;

23.16. Mr Kildare's oral evidence that by 24 April 2014 he had formed the impression that there was a link in Mr Dignan's mind between the development of H105 and the negotiation of the variation;

23.17. Mr Wheeldon's oral evidence that the reference to the decision note in his email of 7 May 2014 concerned the broader accommodation services provider agreement;

23.18. the evidence of Messrs Dignan and Weeks and the contents of the Variation Document that for the initial period of the variation to 28 February 2015, Halikos was only obliged to provide apartments and rooms when INPEX requested them;

23.19. Mr Wheeldon's oral evidence that at the 29 January meeting two separate agreements (one specific to rooms in H105, and the other being a broader accommodation services arrangement) were discussed; and

23.20. Mr Wheeldon's oral evidence that the reference to the decision note in his subsequent email of 7 May 2014 concerned the broader accommodation services provider agreement.

[545]

In relation to the finding at R [197] that it is difficult to know what to make of Mr Wheeldon's email of 21 July 2014, the trial judge failed to have any regard to:
- 31.1. the title of the email "Confirmation" in circumstances where Mr Dignan had been seeking a confirmation of the variation, including by his email to Mr Wheeldon of 11 July 2014;
- 31.2. Mr Wheeldon's oral evidence that his reference in the email to the "original letter" was a reference to the 13 February letter, whilst the phrase "suffice for the first agreement" meant that the letter would suffice for the agreement embodied in the Variation Document specific to additional accommodation;
- 31.3. Mr Wheeldon's text message to Mr Dignan sent on 21 July 2014 confirming that he had sent the email to Mr Dignan; and
- 31.4. the evidence that each of Messrs Wheeldon, Kildare and Dignan separately forwarded Mr Wheeldon's email to Mr Weeks within 20 minutes of it having been sent by Mr Wheeldon.
In relation to the finding at R [200] that Mr Weeks' letter to Mr Okawa dated 21 July 2014 does not state that there has been a concluded agreement in terms of the pleaded Additional Accommodation Variation, the trial judge failed to have any, or any sufficient, regard to:
- 32.1. the sentence in the letter "I have received today confirmation from INPEX that the original letter signed on 13th February 2014 is suffice for the agreement 800575/2 calling for 225/150 hotel and apartments as agreed by both parties";
- 32.2. Mr Wheeldon's oral evidence that:
  - 32.2.1. he understood that the letter being referred to was his email to Mr Dignan sent that day;
  - 32.2.2. this letter was a matter of consequence; and
  - 32.2.3. it fell to him to correct anything in it that was incorrect, and that at no time did he correct anything in it; and
- 32.3. Mr Okawa's oral evidence that he would have expected Messrs Wheeldon and Kildare to have read the letter and that if anything in it appeared untrue, to have done something about it including correcting Mr Weeks, and telling him (Mr Okawa). Mr Okawa could not recall either of Mr Wheeldon or Mr Dignan doing that, and the absence of any evidence that Mr Wheeldon or Mr Kildare ever corrected Mr Weeks on his letter.
In relation to the finding at R [202] not to accept that Mr Wheeldon said to Mr Dignan in about July 2014 that the agreed variation for the 225/150 apartments and hotel rooms was unaffected by a tender from INPEX Operations, the trial judge failed to have any sufficient regard to:
- 33.1. Mr Weeks' contemporaneous notes of the meeting with Mr Kildare on 25 March 2014 (unchallenged), which record Mr Kildare saying in response to a query about the signing of the Variation Document "you have your letter and don't need to worry";
- 33.2. Mr Weeks' notes made during the meeting on 26 May 2014 (unchallenged) which record Mr Kildare saying at that meeting "you have got your letter it's as good as money in the bank"; and
- 33.3. Mr Wheeldon's email of 21 July 2014.
In relation to the finding at R [207] that the correspondence referred to in R [205] and [206] is in terms of a proposal, the trial judge failed to have any regard to:
- 34.1. Mr Weeks' evidence that the emails concerned the broader accommodation services provider agreement which was still being negotiated at that time;
- 34.2. Mr Wheeldon's oral evidence that at the 29 January meeting two separate agreements (one specific to rooms in H105, and the other being a broader accommodation services arrangement) were discussed; and
- 34.3. Mr Kildare's email of 18 August 2014, which forwarded Mr Weeks' email of 14 August 2014 to Mr Okawa, and asked "what do we need to do to get Sakamoto-san to sign these off?" (referring to the two variation documents, including the document recording more formally the agreement entered into on 13 February 2104).
In relation to the finding at R [208] to accept the evidence of Mr Kildare as to what occurred at the meeting on 19 August 2014, the trial judge failed to have any regard to:
- 35.1. Mr Kildare's oral evidence that at that meeting Mr Dignan told him that Halikos was proceeding on the basis that the 13 February letter had given rise to a binding agreement;
- 35.2. Mr Kildare's email of 19 August 2014 to Mr Wheeldon in which Mr Kildare sought Mr Wheeldon's advice as to what he should do about the Halikos issue, including suggesting that Mr Dignan be referred to Mr Sakamoto, asking Mr Dignan to wait until Mr Wheeldon returned from leave or "handball[ing]" Mr Dignan to Mr Okawa; and
- 35.3. Mr Kildare's late change of evidence (via his second affidavit) that although he originally deposed that all of the events that the trial judge found occurred at the meeting on 19 August 2014 took place at a meeting on 26 May 2014, they actually took place on 19 August 2014.
In relation to the findings at R [211] concerning Mr Dignan's letter to Mr Okawa dated 20 August 2014 that:
- 36.1. the portion of Mr Dignan's letter underlined by the trial judge was inconsistent with Halikos's contention that the deal had been finalised on 13 February 2014; and
- 36.2. it is noteworthy the letter speaks of the many hours of work having culminated in a "mutually agreeable" (not "agreed") document only now ready to be signed,

[550]

In relation to the finding at R [217] that Mr Dignan's email to Mr Okawa of 11 September 2014 is inconsistent with the evidence given by Mr Dignan that he believed no decision note was necessary for the pleaded Additional Accommodation Variation, the trial judge failed to have any, or any sufficient, regard to:
- 38.1. Mr Wheeldon's oral evidence that he had referred to the decision note in his email of 7 May 2014 in relation to the broader accommodation services provider agreement only;
- 38.2. Mr Dignan's evidence that he understood that the decision note was just an INPEX internal process and that Mr Wheeldon had told him it had been completed and circulated in any event; and
- 38.3. the body of evidence that Messrs Wheeldon and Kildare reassured Mr Dignan not to worry and that he had the 13 February letter and Mr Wheeldon's email of 21 July 2014.
In relation to the finding at R [219] to accept the evidence of Mr van der Linden (of INPEX) (and implicitly the truth of the facts stated) that, at a meeting with Mr Weeks on 29 September 2014, Mr van der Linden commented that the numbers looked different to what INPEX needed and said that no-one would agree to a 6% per year increase, the trial judge failed to have any regard to:
- 39.1. Mr Kildare's email of 26 September 2014 to Mr van der Linden and Mr Davies with the subject "Tidying up after Chris Wheeldon's departure" in which Mr Kildare, among other things, referred to the Halikos issue as remaining unfinished and stated "for some reason, [it] sits in my in-tray" and sought to discuss and agree how the issue would be resolved "now that Chris had departed and left us holding this baby";
- 39.2. Mr van der Linden's email of 27 September 2014 to Mr Sakamoto and Mr Bon (of INPEX) in which Mr van der Linden stated he had been in contact with Mr Kildare the previous day and set out, among other things, the following matters:
  - 39.2.1. "Representation had been made to Halycos [sic] by CW than an additional 225 apartment units for the period running from feb 2014 to feb 2029; then going to 150 from 2019 to 2029!!";
  - 39.2.2. "A letter issued on Inpex letterhead confirming the same was issued on 13 February this year. This letter was signed by R.Davies acting under CW's instructions- (the man himself conveniently being on 'R&R')";
  - 39.2.3. "The provision of these additional units would be executed under a variation to the existing accommodation contract";
  - 39.2.4. "Based upon these representations, Halycos [sic] have apparently started the development of a block on 105 Mitchell street";
  - 39.2.5. "Halycos [sic] had been led to believe that the signed variation would be forthcoming by CW, hence their phone call to Sean when the news of his departure broke";
- 39.3. the subsequent email correspondence between Mr Okawa, Mr Bon and Mr van der Linden in the period to 29 September 2014, including Mr Okawa setting out that there was a "long story" which he would tell Mr Bon in full when they met in Tokyo;
- 39.4. the email correspondence in the period 27 to 29 September 2014 between Messrs Okawa, Sakamoto, Bon and van der Linden, concerning the Halikos issues and how Mr Wheeldon should be handled;
- 39.5. Mr Okawa's oral evidence that he raised in an email the suggestion on about 29 September 2014 that a demand should be made upon Mr Wheeldon to pay compensation; and
- 39.6. Mr Okawa's email of 30 September 2014 to Craig Hunter (of INPEX) in which he set out "CW made an unreasonable over commitment to Halikos regarding the new accommodation for INPEX workforce" and sought advice as to whether compensation could be obtained from Mr Wheeldon, even if a deed of release was signed.
In relation to the finding at R [221] that Mr Weeks' email of 30 September 2014 and Mr Dignan's email of 7 October 2014 are consistent with the terms of the agreement still being negotiated, the trial judge failed to have any, or any, sufficient regard to:
- 40.1. the minutes of the meeting (unchallenged) between Mr Okawa and Messrs Dignan and Weeks on 10 October 2014 (which meeting followed the above correspondence), which record "HO [Mr Okawa] acknowledged INPEX gave written instructions to Halikos to secure the additional accommodation as set out in the variation. (Letter dated 13/02/14 from INPEX Operations Australia Pty Ltd is referred)".
In relation to the finding at R [236(n)] not to accept that in a telephone conversation on 30 October 2014 Mr Kildare said to Mr Weeks to the effect that at a meeting of key INPEX personnel earlier that day, INPEX's legal counsel had stated that INPEX was both legally and morally obligated to comply with the Additional Accommodation Variation, the trial judge failed to have any regard to:
- 41.1. Mr Weeks' note of that conversation (unchallenged) in which he recorded "SK advised the legal counsel informed them that INPEX was both legally and morally obligated to the additional accommodation in the variation.
In relation to the finding at R [250] that Messrs Weeks and Dignan were disabused well before 13 February 2014 that they could circumvent INPEX's internal processes by casting the new agreement as a variation of the existing Accommodation Agreement, the trial judge failed to have any, or any sufficient, regard to:
- 42.1. Mr Wheeldon's oral evidence that in 2013 he had told Messrs Dignan and Weeks that clause 3 could be used to obtain additional accommodation;
- 42.2. Mr Kildare's oral evidence that Mr Wheeldon discussed the use of a variation (ie clause 3) at the meeting on 10 January 2014;
- 42.3. the contents of Mr Weeks' email of 18 January 2014;
- 42.4. Mr Dignan's and Mr Week's evidence that at the 29 January meeting there was no mention of INPEX requiring additional internal processes to be completed and that it was their understanding that a variation for additional accommodation could be made legally binding by a letter of instruction under clause 3;
- 42.5. Mr Dignan's evidence that at the 29 January meeting, Mr Kildare confirmed that Mr Wheeldon had the authority to vary the existing Accommodation Agreement;
- 42.6. the contents of Mr Dignan's email of 29 January 2014, including the statement the "basis of our discussions was to seek a mutually agreed variation";
- 42.7. Mr Wheeldon's oral evidence that at the meeting of 6 February 2014, he discussed with Messrs Dignan and Weeks that the document would proceed by way of a variation to the existing agreement;
- 42.8. Mr Wheeldon's oral evidence that by Mr Weeks' email of 12 February 2014, Mr Wheeldon understood that Mr Weeks believed that the parties could move forward on the basis of an instruction to secure accommodation, without any decision note, whilst the Variation Document was being executed; and
- 42.9. Mr Wheeldon's oral evidence that he had referred to the decision note in his email of 7 May 2014 in relation to the broader accommodation services provider agreement only.
In relation to the findings at R [273]:
- 43.1. not to accept that Messrs Dignan and Halikos had subjectively decided they would only go ahead with the development of H105 if they got some kind of binding pre-commitment from INPEX; and
- 43.2. that even if they did have such a subjective intention, they did not communicate it to INPEX,

Parties

Applicant/Plaintiff:

Halikos Hospitality Pty Ltd & Ors

Respondent/Defendant:

INPEX Operations Australia Pty Ltd [2020] NTCA 4

Legislation Cited (1)

Consumer Act 2010

Cases Cited (31)

Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39, Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17, Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28, Fox v Percy [2003] HCA 22; [2003] 214 CLR 118, John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451, Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993, Lemongrove Services Pty Ltd v Rilroll Pty Ltd [2019] NSWCA 174, Nais and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 77; (2005) 228 CLR 470, Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, Watson v Foxman (1995) 49 NSWLR 315, applied

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93, Aneve Pty Ltd v Bank of Western Australia Ltd [2005] NSWCA 441, Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215, Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458, Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603, Fuge v Commonwealth Bank of Australia [2019] FCA 1621, Gardenisle Pty Ltd v Johnson [2019] WASC 271, Grandulovic v Borg Warner (Australia) Pty Ltd (Unreported, NSWCA, 1 December 1987), Ingot Capital Investments v Macquarie Equity Capital Markets (No. 6) , , ; , , ; , ; , , ; , ; , ; , ; , , , ; , ; , ; , , , ; , ; , ; , , referred to

Australia Pty Ltd [2020] NTCA 4

Ground 10. The trial judge erred in holding at R [264] that the principles applicable to estoppel by convention are those set out in Waltons Stores (Interstate) Ltd V Maher [1998] HCA 7; (1988) 164 CLR 387, [34] per Brennan J.

That disadvantage particularly arises in a case such as the present where the judge based his conclusion, to a significant extent, on the credibility of the principal witnesses. However, if a conclusion based on credit is shown by uncontroversial facts or uncontested testimony to be erroneous, the appellate court is obliged to intervene: Fox v Percy ... at [28]. One instance where this may occur is where contemporaneous and apparently reliable documentary evidence is contrary to the credibility based finding of the trial judge: State Rail Authority of NSW v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3; (1999) 73 ALJR 306 at [62] - [63], [93].

(2002) 209 CLR 95

(2004) 140 FCR 17

(2001) 4 VR 28

(2019) 93 ALJR 993

(2005) 228 CLR 470

(2016) 90 ALJR 679

(1995) 49 NSWLR 315

(1989) 19 NSWLR 158

(1988) 164 CLR 387

(1938) 60 CLR 336

(2006) 80 ALJR 458

(1908) 7 CLR 549

(2009) 76 NSWLR 603

(2013) 250 CLR 392

(1954) 91 CLR 353

(2018) 264 CLR 541

(2014) 86 NSWLR 226

(1989) 170 CLR 146

(2004) 218 CLR 451

(2005) 220 ALR 211

(2009) 230 FLR 396

(1985) 159 CLR 466

(1999) 73 ALJR 306

(2017) 263 CLR 85

(1979) 142 CLR 531

(2005) 79 ALJR 1816