IMMIX Holdings Pty Ltd v Western Port Metal Recyclers Pty Ltd [2026] VCC 211 | Case summary

[2010] NSWSC 1378IMMIX Holdings Pty Ltd v Western Port Metal Recyclers Pty Ltd [2026] VCC 211 | Case summary | Zoe

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IMMIX submits that WPMR seeks to prevent IMMIX from completing the Contract while taking advantage of its wrongdoing by retaining the deposit, due to "two main reasons".
First, IMMIX relies on WPMR's refusal to complete the Contract from 25 May 2022 until the Court's judgment on 7 October 2024, which it says caused delay. IMMIX also refers to WPMR's merger of the Business with All Steel, and its associated refusal to provide updated financial statements specific to the Business, which IMMIX contends prevented it from obtaining finance to complete the purchase.
Second, IMMIX points to WPMR's "repeated and repudiatory insistence" that the sale under the Contract was limited to assets only and did not include goodwill, or, more recently, that any goodwill was limited to the extent that it attached to the assets.
IMMIX notes that when the Business was initially offered for sale, WPMR provided up-to-date and specific financial statements enabling IMMIX to obtain an offer of finance to complete the purchase.
IMMIX submits that WPMR is subject to a duty not to "hamper the other in performance of the contract" and, if such a duty is breached, the party in breach is unable to "take advantage" of non-performance of the relevant contract. While IMMIX concedes that the Contract was "never conditional on finance", it contends that WPMR's duty not to hamper IMMIX in its performance of its obligations remains unaffected.
IMMIX further submits that WPMR's duty not to hamper has been breached in light of WPMR's refusal to complete the Contract and its defence of the proceeding until the Court's judgment on 7 October 2024, resulting in delay. Additionally, IMMIX refers to WPMR mixing the Business with All Steel, contrary to GC 10.1, which is the reason why WPMR claims they are unable to provide an update financial statement specific to the Business - despite WPMR's obligation to do so at settlement under GC 3.11(a).
As a result of these two reasons, to date, IMMIX has been unable to raise finance to complete the purchase of the Business.
IMMIX draws an analogy between WPMR's current conduct with the hypothetical alternative that WPMR "directly dissuaded" IMMIX's financier from lending funds to complete the purchase, which would be a breach of contractual duty.
IMMIX contends that while the Court has decreed specific performance, the matter remains within the Court's equitable jurisdiction and, if it becomes inequitable to enforce the decree, the Court may rescind the Contract and order damages in lieu of specific performance - even if this is due to the default of the successful plaintiff. IMMIX, in the current proceeding, claims restitution instead of damages. If WPMR were compensated for the delay in settlement, as sought by WPMR in its submissions, IMMIX contends that this would allow WPMR to impermissibly "take advantage of its own wrongdoing".
Further, IMMIX submits that while WPMR claims that the sale pursuant to the Contract is a "sale of assets only", goodwill is, in fact, "plainly included" in the sale. IMMIX refers to WPMR's concession in Mr Jade's email dated 9 December 2025 ("the Goodwill Email"), that goodwill arising from "any ... tangible asset is inseparable ... and will be conveyed at settlement". IMMIX rejects this and instead suggests that goodwill is "inseparable from the conduct of the business" at large and, therefore, cannot be severed. IMMIX further notes that it is "sufficiently clear", given WPMR's comments regarding goodwill, that they have demonstrated an intention not to perform the Contract, amounting to repudiation.
In the alternative, if the Court is unwilling to order restitution in lieu of specific performance and the Court is unable to find that repudiation has occurred, IMMIX seeks updated financial statements specific to the Business in order to enable IMMIX to seek finance to complete the purchase. While, on 8 October 2025, the parties consented to orders for WPMR to provide its financial statements, the statements provided contained figures of All Steel mixed with the Business, making them "useless for their intended purpose".
IMMIX submits that WPMR is subject to a "duty to cooperate to achieve the purpose of the contract" and must, under such a duty, provide IMMIX with updated financial statements specific to the Business - with a corresponding extension of the completion date of the Contract. IMMIX is content for these updated financial statements to be ordered on a confidential basis.
IMMIX provides an alternative, which it describes as a "poor fallback", involving WPMR sharing with IMMIX the expenses provided on 24 October 2025, such that it can explain to financiers which expenses it may be able to reduce or eliminate. IMMIX notes that pursuant to Mr Suggate's evidence, the risk of damage to WPMR's business if the expenses were shared would be "minimal at most".
Finally, IMMIX contends that the Court should dismiss WPMR's Further Amended Summons. IMMIX reiterates that WPMR seeks not only to prevent IMMIX from performing the Contract, but also to retain the deposit and claim damages - essentially, to "take advantage of its own wrong".
IMMIX contends that the Contract was executed by the parties in fulfilment of their obligations under the Heads of Agreement dated 1 March 2022 ("the HOA"), and pursuant to paragraph 4(a) of the 29 November 2024 orders. IMMIX submits that compliance with a court order cannot constitute conduct of a "trading or commercial character", and that it made no actionable representation upon which WPMR relied. In substance, IMMIX contends that WPMR's claim in this respect is an "abuse of process", as WPMR had "expressly eschewed" any defence at trial based on IMMIX's readiness and willingness to perform the Contract.
In response to WPMR's claim for its costs of the proceeding as damages, IMMIX submits that the costs incurred up to the 29 November 2024 orders are res judicata and, therefore, cannot be recovered as damages.
In reply to WPMR's primary written submissions, IMMIX submits that Mr Fincham's personal guarantee, and the additional security provided by WPMR by way of rental bond, are not matters relevant to the Court's determination. IMMIX notes that it was also required to provide the security and director's guarantee sought by the Landlord, which it did, and that the Landlord thereafter provided their consent.
IMMIX concedes that while the Landlord imposed "additional conditions" beyond IMMIX's obligations, it contends that such demands were "arguably unreasonable" and did not arise out of IMMIX's breach of the Contract. IMMIX emphasises that there is no suggestion that they provided incorrect information to WPMR, and proposes that WPMR may have satisfied the Landlord's demand with the expectation of securing IMMIX's deposit if they were to fail to complete the Contract.
IMMIX also concedes that WPMR is not subject to an express contractual obligation to provide financial statements specific to the Business. However, IMMIX reaffirms that WPMR has a "contractual duty not to hamper [IMMIX]" in its performance of its contractual obligations. IMMIX submits that WPMR breached this duty by refusing to complete the Contract from 25 May 2022 until the Court's judgment on 7 October 2024, and by mixing the Business with All Steel - such that WPMR now asserts an inability to provide financial statements to enable IMMIX to seek finance.
IMMIX notes that the abovementioned financial statements may be provided on a confidential basis should WPMR wish, pursuant to the email from Mr Sloan to the Court dated 23 January 2026 ("the 23 January 2026 email").
IMMIX refers to WPMR's primary written submissions, in which WPMR claims that, by email dated 5 December 2025 at 12:47 pm from Mr Jade to Mr Sloan, "sufficient information" was provided to IMMIX regarding the changes in the annual financial documents between the years, including a disaggregation of the assets contemplated by the sale of the Business pursuant to the Contract.
IMMIX refutes this submission and submits that Mr Jade's answers are "expressed in the most vague and general terms, with no figures save for a single total sales figure for the All Steel business over a time period that does not match any of the WPMR financial statements". Therefore, IMMIX states that even the figure provided is not possible to be disaggregated.
If, in the event the Court orders WPMR to provide updated financial statements specific to the business, IMMIX requests that the time for settlement should be extended by three months to allow IMMIX to obtain finance. While IMMIX acknowledges that WPMR's primary written submissions appear to suggest that the Business would not run at such a loss as identified by Mr Kypreos, IMMIX reaffirms that this is purely speculative and ignores Mr Kypreos' analysis.
IMMIX affirms that its form of alternative relief, requiring WPMR to provide updated financial statements, does not amount to a rewriting of the Contract - but rather, an opportunity for WPMR to "ameliorate ... the damage caused by WPMR's earlier breach of contract".
In the alternative, IMMIX submits that the Contract should be terminated, with the deposit returned as a restitutionary remedy.
Regarding goodwill, IMMIX refers to WPMR's concession that goodwill attaching to the Business will be conveyed upon settlement and, therefore, does not press this submission further. This will be reflected in the Court's consideration of paragraphs 1C and 2 of IMMIX's Proposed Orders.
Regarding WPMR's claim for damages, IMMIX refers to the warranty contained in the Contract, that they would have "full corporate power and lawful authority" (emphasis in original), suggesting that this means IMMIX would not have the "financial ability" - but rather, "legal power and authority of its board" - to give effect to the Contract.
IMMIX distinguishes the authority of Futuretronics International Pty Ltd v Gadzhis,[4] being "more limited and tentative" than suggested by WPMR. IMMIX submits that a contractual promise may imply both an intention to perform the promise and a present ability to do so. IMMIX contends that its failure to pay the sale price on 12 December 2025 - almost four years after 25 May 2022 - does not falsify any such representation. IMMIX further submits that, insofar as a contractual promise is said to amount to a representation as to future conduct, only an unconditional promise will constitute a representation.
In any event, IMMIX notes that it had reasonable grounds for making such a representation. IMMIX refers to evidence of finance approval dated 6 April 2022, as set out at paragraphs 10 to 13 of the Second Suggate Affidavit, which IMMIX says was "plainly sufficient". IMMIX also submits that WPMR's contention that third-party finance was required to be unconditional does not reflect "reality or commercial experience".
Finally, regarding IMMIX's ability to perform the Contract, IMMIX notes that WPMR "expressly eschewed any such case" during the trial and, therefore, are unable to raise the argument.
In response to WPMR's submissions that IMMIX engaged in misleading or deceptive conduct, IMMIX contends that no relevant representation was made. It submits that the Contract was executed pursuant to the parties' contractual obligations under the HOA, as expressly noted by the Court at paragraph H of "Other Matters" and in paragraph 4(a) of the 29 November 2024 orders. IMMIX submits that, in those circumstances, IMMIX's execution of the Contract was not a representation, and WPMR's execution of the Contract did not constitute reliance.
IMMIX notes that acts performed under compulsion of a court order may not constitute a representation, and that the Court will not impose liability on a party for complying with a court order. In the alternative, even if the Court were to find in favour of WPMR, IMMIX submits that the "deposit must first be brought to account", such that WPMR would only be entitled to damages if, and to the extent that, they exceed the deposit of $333,500.00.
Regarding WPMR's claim for interest, IMMIX suggests that if the Court were to agree with WPMR's submissions that the Contract was terminated on 23 December 2025, IMMIX claims that the Contract would be terminated from that date onwards. IMMIX notes that, in that case, contractual interest would only accrue on any entitlement in WPMR's benefit for interest from the "completion date" of the Contract until the date of termination.
Regarding WPMR's claim for costs up to judgment, IMMIX reaffirms that WPMR declined to press any such claim in the initial proceedings and therefore cannot raise it now. IMMIX also refers to written funding approval it obtained from the Commonwealth Bank of Australia ("CBA"), under which it would have been able to borrow the funds to acquire the Business, subject to conditions that IMMIX says could readily have been satisfied.
Finally, IMMIX submits that the issue of costs is res judicata. IMMIX notes that, pursuant to paragraph 7 of the 29 November 2024 orders, liberty to apply was only granted in respect of paragraphs 4, 5, and 6 of the 29 November 2024 orders. As paragraph 8 comprised the costs order, IMMIX submits that the Court is functus officio on the question of costs, up until 11 December 2024. IMMIX refers to the fact that the order was "pronounced and authenticated", with "no relevant liberty to apply ... granted".
IMMIX notes that while the Court may rescind its decree of specific performance, WPMR has been unable to demonstrate that such a power extends to an "authenticated and thus perfected order for costs". IMMIX further notes that while WPMR relies on Wink Singh (No 2),[5] this authority does not support the proposition that final cost orders may be varied.
In particular, IMMIX notes that Wink Singh (No 2) only provides for the vacation of an order for specific performance. However, the costs order in Wink Singh (No 2) "simply reiterated the order made in the previous judgment where specific performance had been decreed". The Court's treatment of the order for specific performance, IMMIX suggests, therefore cannot be conflated and stand for the proposition that the Court can revisit its final costs order dated 29 November 2024.
Finally, regarding WPMR's allegations relating to the Civil Procedure Act 2010 (Vic) ("CPA"), IMMIX notes that they are "quite unjustified". In particular, while WPMR alleges in their reply written submissions that IMMIX has breached its overarching obligations, there are a lack of details regarding any breach making the allegations "broad, sweeping, and most serious". Nonetheless, in response to the allegations, WPMR notes that Mr Suggate has proceeded "in the honest belief that finance would be available".
Regarding the requirement that the costs of the proceeding be reasonable and proportionate, IMMIX refers to the Second Jade Affidavit, exhibiting 656 pages of "largely duplicative material".
In response to allegations from WPMR that the accounts of IMMIX Integrated Metal Management Pty Ltd ("IMMIX IMM") were not provided or were not provided in full to WPMR, IMMIX refers to the email from Mr Sloan dated 10 November 2025 and addressed to Mr Jade and Ms Chong, which refers to an "email [from Mr Sloan dated] 1 November 2025 providing information requested by [Ms Chong] on behalf of the landlords [sic]". IMMIX notes that the email from Mr Sloan dated 1 November 2025 contains additional financial records of IMMIX IMM.
IMMIX characterises the current dispute as arising from the "continuing ramifications" of WPMR's original breach of the Contract in May 2022 and from WPMR's acquisition of All Steel and its integration with the Business, which IMMIX contends has disabled WPMR from providing updated financial statements specific to the Business that could assist IMMIX in raising finance.
Regarding the issue of finance, IMMIX refers to paragraph 9 of the Second Suggate Affidavit which discusses Mr Suggate's relationship with CBA and the banker he "dealt with", being Mr Geoff Armstrong. At paragraph 10, IMMIX describes that - after receiving the "Business Profile" of WPMR in approximately January or February 2022 - he discussed the potential purchase of the Business with Mr Armstrong and provided him with the Business Profile.
Regarding WPMR's allegations that IMMIX disclosed confidential information to third parties, IMMIX notes that "confidential information is not defined in the [HOA]" and there is uncertainty as to whether WPMR characterises the Business Profile as confidential. In any event, IMMIX notes that WPMR is not pressing a breach of confidentiality that would result in damages and, therefore, any contention on this point is irrelevant to the Court's consideration.
IMMIX concedes that the Contract is not "subject to finance". However, the records sought by IMMIX pursuant to their alternative claim are not grounded in an explicit contractual obligation. Instead, the records are sought on the basis that WPMR has - as a result of its breach of the Contract in 2022 - placed IMMIX in a position such that it is unable to raise finances based on the records that IMMIX originally provided, to which IMMIX is seeking a corresponding remedy.
In particular, IMMIX seeks such a remedy on the basis of WPMR's duty not to hamper, and WPMR's duty not to prevent IMMIX from performing the Contract. IMMIX claims that by withholding the records and information, WPMR is in breach of their duties to cooperate and not to prevent or hamper performance. IMMIX affirms that these duties do not arise pursuant to General Condition ("GC") 3.11 of the Contract.
In response to Mr Fincham's evidence that he did not know whether IMMIX required a loan, WPMR noted that it is "not usual that finance is required to complete a purchase ... of a business". IMMIX also notes that, had WPMR not refused to complete the Contract on 25 May 2022, the sale would have been completed.
IMMIX refers to GC 15 of the Contract, allowing it to disclose "Confidential Information" (as defined in GC 22.1(f)) to "any of its professional advisors, consultants and financiers for a genuine purpose but subject to confidentiality".
Regarding the implication of a "subject to finance" clause, IMMIX draws an analogy to Royal Pines Projects Pty Ltd v Brightman,[6] where an off-the-plan sale of an apartment occurred involving a 14-day settlement period once the vendor notified the purchasers that it was prepared to complete the sale. However, within a day of being notified, the purchasers asked the vendor to allow valuers access to investigate the property in order for the purchasers to raise finance, despite the relevant contract not being "subject to finance". However, due to the vendor's delay in providing permission for the purchasers' valuers to inspect the property, the purchasers were unable to raise finance and the vendor purported to terminate the contract for the purchasers' breaches.
The Queensland Court of Appeal in Royal Pines (Appeal) ultimately found for the purchasers. IMMIX recognises that, while Royal Pines (Appeal) did not involve the provision of documentation, the need to inspect the property to allow for finance is nonetheless analogous to the present proceeding. In particular, this is because "finance is commonly required for purchases of [such a] nature".
While IMMIX declines that a "substantial disadvantage" need be established, pursuant to Warren CJ in Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL,[7] it nevertheless submits that its present situation was caused by WPMR's refusal to complete the Contract on 25 May 2022 and by WPMR's mixing of the businesses, which has left WPMR unable to ameliorate the situation it created. IMMIX contends that these matters support its principal relief - namely, revocation of the decree of specific performance.
While IMMIX agrees that it was open for either party to include a "subject to finance clause" as a special condition in the Contract, IMMIX contends that there was "no ability to depart" from the HOA in any substantial sense.
Referring to an email from Mr Armstrong, as a representative of CBA, dated 6 April 2022 ("the 6 April 2022 email"), IMMIX characterises the requirements to satisfy the prospective grant of finance as "pretty light, if they were really conditions at all". At paragraphs 10 and 13 of the Second Suggate Affidavit, Mr Suggate deposed that he discussed the possible purchase of the Business with Mr Armstrong, who conveyed that CBA was prepared to grant finance of $3.15m. Such finance would depend on "formal approval", as well as the "provision of the contract of sale [to CBA] and confirmation of what entity was to be used to purchase the Business". Mr Suggate also noted that Mr Armstrong conveyed he was "confident there would be no problem with the finance being provided", if the "formal requirements" were satisfied.
At paragraph 11 of the Second Suggate Affidavit, Mr Suggate describes his discussions with Mr Tucker surrounding the financial status of the Business.
IMMIX refers to the "in principle [sic]" finance approved by CBA, noting that it was "not too difficult" for IMMIX to provide the Contract to CBA or to confirm the identity of the borrowing entity. IMMIX further rebuts WPMR's submissions that CBA's approval lacked formality, noting that a formal letter of offer is not necessarily expected in comparable circumstances, given IMMIX's "longstanding relationship" with CBA, and that WPMR's submissions amount to "counsel of perfection". IMMIX contends that, had WPMR not refused to complete the Contract on 25 May 2022, "in all probability" the Contract would have been executed at that time.
IMMIX submits that, on 20 December 2024, when the Contract was entered and provided to CBA, Mr Armstrong conveyed that the in-principle finance referred to in the 6 April 2022 email was no longer available. Therefore, Mr Suggate was left with the responsibility of finding "alternative lenders" and eventually approached Mr Kypreos, who was formally engaged by IMMIX on 2 June 2025. IMMIX suggests that this was the reason for the effluxion of time between 20 December 2024 and 8 July 2025, being the date on which Mr Kypreos provided IMMIX with "conditional approval of funding in the amount of $3,335,000" pursuant to paragraph 21 of the Second Suggate Affidavit. IMMIX states that they were not sitting on their hands throughout this period.
IMMIX refers to a letter dated 21 April 2022 from Mr Tucker to Ms Catherine Sutton, the Landlord's representative, which enclosed a business summary and the financial position of IMMIX IMM. IMMIX notes that the next item of correspondence relied upon by WPMR - a character reference for Mr Suggate - was sent by Mr Tucker to Mr Sloan on 14 February 2025.
IMMIX noted that Mr Suggate's character reference was "less reassuring" than the first character reference provided some three years earlier. IMMIX accepted that the significant financial challenges it faced, including high debt levels and restricted access to finance, were "unfortunate", but contended that it was unclear whether those matters prompted the Landlord to request further guarantees.
IMMIX concedes that the two conditions imposed by the Landlord on WPMR and Mr Fincham for the renewal of the Lease - namely, a bond greater than that stated in the Lease and a personal guarantee from Mr Fincham - were "unreasonable in the context of a retail lease". IMMIX submits that WPMR could have terminated the Contract or sought additional time to apply to the Victorian Civil and Administrative Tribunal, but that IMMIX should not be blamed for the Landlord's unreasonableness.
IMMIX next refers to an email from Mr Sloan to Mr Jade dated 9 October 2025, which attached a table setting out issues identified by WPMR concerning documents supplied by IMMIX and IMMIX's responses. In particular, at Item 5, WPMR identified an inconsistency in IMMIX's 2023 financial statements, as the accounts supplied on 18 September 2025 recorded a profit of $2,046,377.00, whereas later material recorded a loss of $14,353,633.00.
IMMIX clarified that in the 2023 financial year, it bought "millions of dollars' worth of capital equipment" which it wrote off down to zero for tax purposes, explaining the reason for the poor financial statements. IMMIX refers to paragraph 16 of the Tucker Affidavit, which emphasises that the losses recorded were due to the "use of small business tax concessions". Further, paragraph 18 of the Tucker Affidavit notes that William Buck has advised IMMIX that a comprehensive review of its reporting was required to ensure accuracy, compliance with accounting standards, and consistency with funding and governance requirements.
As deposed to at paragraph 19 of the Tucker Affidavit, upon recalculations from William Buck, IMMIX's profit for the 2023 financial year was eventually determined to be $2,046,377.00, compared to the recorded loss of $14.3m for tax purposes. Accordingly, IMMIX explains that any delay in 2025 in providing the documentation arose because the accounts needed to be prepared on a "proper accounting basis", rather than a "tax basis". IMMIX submits that it is therefore incorrect to say that it "did not use all reasonable steps to obtain the landlord's consent". IMMIX further submits that, because the landlord's consent was ultimately obtained, the dispute is now otiose.
IMMIX further seeks to rectify its written submissions, noting that the All Steel business was purchased at the start of 2023 - not 2024.
On the question whether WPMR hampered or prevented IMMIX's performance of the Contract, IMMIX refers to Marshall v Colonial Bank of Australasia Ltd,[8] noting that contracts carry a duty not to hinder the other party's performance. IMMIX submits that this principle was expressly approved by the High Court of Australia ("the High Court") in Commonwealth Trading Bank of Australia v Sydney Wide Stores Pty Ltd,[9] notwithstanding that Sydney Wide Stores overruled Marshall[10] on another point.
IMMIX also relies on Kyren Pty Ltd v Wunda Projects Australia Pty Ltd,[11] which concerned a construction contract in which the principal removed works from the contractor. The Full Court of the Supreme Court of South Australia held that the principal was not entitled to do so, stating:

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If the Court does not accept IMMIX's contention as to its primary relief, IMMIX presses alternative relief. It submits that, notwithstanding WPMR's "professed inability to create and provide updated financial statements that are specific to the business", the Court should nonetheless order WPMR to do so. Alternatively, IMMIX submits that the Court should order production of the source documents relating to the Business - as distinct from source documents relating to All Steel. IMMIX contends that this would enable it to prepare financial statements, which could then be provided to a prospective financier.
IMMIX emphasised that the production of any documents would occur on a confidential basis, as noted in the 23 January 2026 email. IMMIX acknowledged that its proposed amended orders do not presently provide for confidentiality, but seeks to clarify that this is its position. IMMIX also submits that production of source documents is a "second best option", because the financial statements produced by WPMR in October 2025 showed "substantial" variations in expenditure. IMMIX suspects that those statements were prepared on a "different basis", or that the Business was operating "rather differently" than it was in 2022.
IMMIX contends that any discussion about Mr Suggate's reasons for wishing to exit the Contract - including speculation that the Business has deteriorated - is untenable, because IMMIX "[does not] know what's happened in [the Business] ... because the figures that were provided in October are mixed with All Steel['s figures]".
Furthermore, IMMIX contends that the explanation provided by Mr Jade is expressed in only the most general terms and does not provide sufficient clarification. IMMIX notes that, while a single figure of $433,410.55 (excluding GST) for the period 25 January 2023 to 4 December 2025 is provided - said to represent total sales exclusive to All Steel - this cannot be used to "disaggregate" the October financial statements.
IMMIX contends that the Court has power to order production of the source documents pursuant to s 26 of the CPA. As to the preparation of new financial statements, IMMIX submits that the Court may grant injunctive relief requiring WPMR to prepare and provide them. IMMIX says that such relief is available because the present position has arisen from WPMR's breach of the Contract. IMMIX accepts that this would go beyond any express contractual obligation to provide updated statements, but contends that the orders are necessary to remedy the practical hampering or prevention said to have been caused by WPMR's conduct.
The third and final alternative raised by IMMIX, is that the Court should allow Mr Suggate to approach a financier with the October 2025 financial statements provided by WPMR, so that Mr Suggate can explain which expenses would not be incurred or open to a reduction. However, this is described as a "poor third" option as Mr Suggate would face challenges disaggregating the sales figures, and IMMIX, therefore, states that this option is of "quite limited utility ... [but] better than nothing" as IMMIX would still have a possibility of raising finance.
IMMIX contends that the Court is open to make this order as, notwithstanding the same subject matter of WPMR and IMMIX's businesses, the evidence suggests that the competition between them is "pretty limited" given IMMIX's "very modest" presence in the Western Port region, as per paragraphs 7 and 8 of the Third Suggate Affidavit, with six customers.
IMMIX disputes WPMR's characterisation of the warranty in Schedule 6, Clause B of the Contract, which provides:

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IMMIX notes that this passage does not suggest that Ball J contemplated revisiting any costs order made at trial.
IMMIX refers to MC Wholesaling Pty Ltd v Zheng,[35] where interlocutory costs orders made on a standard basis were later revisited after the plaintiff discontinued the proceeding and it emerged that "serious allegations" were not being pursued. The trial judge varied the earlier interlocutory costs orders to an indemnity basis. IMMIX submits that the case demonstrates the revisiting of interlocutory costs orders, in contrast to "final orders".
Finally, IMMIX cites Wink Singh (No 2),[36] where, in lieu of a decree of specific performance, the Supreme Court of the New South Wales ordered that "the defendants ... pay the costs of the plaintiff of the proceedings, as agreed or assessed". IMMIX compares this with the orders originally made in Baeg v Wink Singh Pty Ltd,[37] where the "First and Second Defendants [were ordered] to pay the Plaintiff's costs of the proceedings up to, and including, the date of the making of these orders". Comparing the two, IMMIX submits that the latter order "didn't change the effect of the first order for costs" and therefore cannot be regarded as a revisiting of the Court's discretion.
In sum, IMMIX notes that the 29 November 2024 costs order was a "final order" that was "authenticated, effective and ... can't be revisited". On IMMIX's case, the question of costs regarding this proceeding should be reserved until the making of the substantive orders the Court decides most appropriate.
In reply oral submissions, IMMIX states that WPMR contends it is "not seeking to have the trial costs order vacated" but are also "seeking [their] costs of the trial". By seeking to have costs of the trial, IMMIX contends that this is, in effect, a vacation of the 29 November 2024 orders. IMMIX notes that the orders dealing with its costs and WPMR costs are final "in respect of the loser as it is in respect of the winner".
In response to WPMR's criticism of MC Wholesaling,[38] and in particular a hypothetical raised by WPMR involving a witness giving fraudulent evidence, IMMIX accepts that this is "one situation where [the Court] can go back" to vary final orders. IMMIX submits, however, that this hypothetical does not reflect the present proceeding.
In conclusion, IMMIX submits that WPMR's claims and allegations are "misconceived and ought to be dismissed".

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WPMR notes that, because the Contract was the subject of a decree of specific performance requiring settlement on 28 November 2025, WPMR was unable to accept IMMIX's repudiatory behaviour. WPMR submits that, as the Landlord had not consented to the assignment of IMMIX's lease by 28 November 2025, the settlement date under the Contract was extended to 12 December 2025.
WPMR claimed that IMMIX "failed, refused or neglected" to pay the Contract price by 12 December 2025 and, as a result, the Contract did not settle. In response, WPMR issued a notice of default ("the Notice") to IMMIX pursuant to the Contract. WPMR suggests that IMMIX's conduct amounts to "repudiatory substantial breach" of the Contract, which remains unremedied.
Pursuant to clause 12 of the Notice, WPMR gave IMMIX until 19 December 2025 to remedy any breaches of the Contract, failing which the Contract would be terminated pursuant to GC 16.7. WPMR says that GC 16.7 operates as a self-executing clause, terminating the Contract upon non-compliance with the Notice. On these grounds, WPMR claims that it is entitled to the relief sought in paragraphs 2, 2A, and 3 of its Further Amended Summons. WPMR further claims that it is entitled to the relief set out in paragraph 4 of its Further Amended Summons, on the basis of GC 16.8 of the Contract.
WPMR submits that it is "uncontentious" that it has complied with the orders made on 8 October 2025, by providing IMMIX - on a confidential basis - with WPMR's financial statements for the financial years ending 30 June 2023, 30 June 2024, and 30 June 2025. WPMR emphasises that it consented to the 8 October 2025 orders despite the Contract being "unconditional and not subject to finance", meaning IMMIX "bore the risk" of having enough funds to pay the Contract's price.
WPMR emphasises, therefore, that it had no obligation to assist IMMIX in procuring finance to meet the purchase price, and the aforementioned provision of financial statements represented WPMR going "above and beyond" its contractual obligations. WPMR notes that as at 8 October 2025, there was no suggestion that the financial statements would be provided on anything other than a confidential basis - and, therefore, that IMMIX's request that WPMR waive its entitlement to confidentiality was "reasonably refused". This is on the basis that IMMIX's directors, officers, and employees are "competitors in the same area of endeavour and geographic region".
It is alleged that IMMIX, at no time, has sought to have its financial advisers or financiers communicate directly with WPMR.
WPMR refers to a further "series of questions in the nature of accounting and financial enquiries" from IMMIX which, although WPMR says it was not obliged to answer, it did so nonetheless, going "beyond its mere contractual obligations to assist IMMIX".
WPMR emphasises that it did not take any steps towards dissuading any prospective financier and it was "simply up to IMMIX" to receive finance to satisfy the Contract. Although WPMR's operating profit would have been an "important consideration" for a prospective financier, it was of "no relevance" to the terms of the Contract and, therefore, IMMIX's failure to secure finance does not impact its ongoing obligation to perform the Contract.
WPMR recounts that on 9 December 2025 - three days prior to the agreed settlement date pursuant to paragraph C of the "Other Matters" in the orders made on 15 December 2025 - IMMIX sought from WPMR a new, non-confidential set of financial records limited to the "Business" to be conveyed under the Contract. WPMR describes that this would have imposed a substantial burden, and that any records provided would in any event be confidential. WPMR further notes that, by email sent on 5 December 2025 at 12:47 pm from Mr Jade to Mr Sloan, "sufficient information" had already been provided to IMMIX regarding changes between the annual financial statements, including a disaggregation of the assets to be transferred pursuant to the Contract.
If the Court were to grant IMMIX the relief sought in paragraph 4 of its Proposed Orders - but the Contract still not be executed - WPMR claims that IMMIX would have the "unfair commercial advantage" of disclosure of such confidential information, as the parties would remain as competitors.
WPMR also submits that the Court should reject paragraph 5 of IMMIX's Proposed Orders, seeking a further extension of the date of settlement. WPMR states that it has "done everything it can to perform its obligations", including by providing additional security as well as a personal guarantee from Mr Fincham - both in favour of the Landlord.
WPMR identifies that the "minimum Operating Profit" required by IMMIX's financier is $881,675.15. WPMR notes that while paragraph 12 of the Kypreos Affidavit identifies WPMR's operating profits from between 2023 to 2025 as follows, being below the minimum operating profit threshold:

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In particular, WPMR refers to an acquisition of All Steel in 2023 for the price of $350,000.00, and suggests that there is "no evidence" WPMR ran the Business at such a loss to render its total operating profits as that identified by the Kypreos Affidavit, especially given the operating profit of the Business without All Steel "otherwise exceed[s] the threshold of $881,675.15."
WPMR contends that paragraph 5 of IMMIX's Proposed Orders are intended to "delay the inevitable failure or inability of IMMIX to procure third party finance" and, if IMMIX was able to procure such finance, it would have already done so by 12 December 2025.
WPMR characterises paragraphs 2 to 5 of IMMIX's Proposed Orders as an intention to "re-write the Contract's terms and conditions" which, WPMR asserts, the Court is unable to do. By compelling WPMR to assist IMMIX in procuring finance, the Court, in effect, would be rendering the Contract "subject to finance". However, WPMR states that the Contract is for the sale of assets only and, therefore, does not depend on profitability or turnover. As WPMR emphasises, the Contract is contingent upon IMMIX paying the Contract's price, which IMMIX has not done.
Regarding considerations of goodwill, as per paragraph 1C of IMMIX's Proposed Orders, IMMIX alleges that WPMR has "repudiated and remains in repudiatory breach" of the Contract.
In reply, WPMR notes the Goodwill Email (sent by Mr Jade to Mr Sloan) stated that any goodwill "will be conveyed with the assets at Settlement". WPMR refers to Commissioner of Taxation v Murray[39] and Primelife (Glendale Hostel) Pty Ltd v Commissioner of State Revenue,[40] which note that goodwill and the "conduct of the business" are inseparable.
WPMR submits that, at a case management conference on 29 January 2026, IMMIX suggested "for the first time" that goodwill attached to tangible assets, as well as the Business, is the subject of the Contract. WPMR accepts that any goodwill in the Business the subject of the Contract would be conveyed upon settlement, but submits that there is "no warranty regarding goodwill" in the Contract. WPMR also refers to Schedule 1 of the Contract, which it says "expressly excludes goodwill", notwithstanding GC 22(1)(c). WPMR submits that any tension between those provisions need not be resolved given its prior concession.
Having regard to WPMR's submissions concerning goodwill, WPMR contends that it did not repudiate the Contract. In the alternative, even if repudiatory conduct were established, WPMR submits that it has resiled from that conduct by reason of the Goodwill Email and otherwise in its written submissions. Finally, WPMR notes that any alleged repudiatory conduct was not accepted by IMMIX and is presently "incapable" of acceptance.
WPMR submits that it seeks damages due to IMMIX's repudiation of the Contract and further, or alternatively, IMMIX's misleading and deceptive conduct. Pursuant to the HOA, parties agreed to the incorporation of the "pro form terms of the Contract of Sale of Business endorsed by the Law Institute of Victoria" which reads that IMMIX had "full power and lawful authority to execute the binding heads of agreement and to perform or cause to be performed all of its obligations" thereunder.
WPMR asserts that this amounted to IMMIX warranting that it had the financial means to perform the Contract and that it either had the necessary funds or unconditional third-party finance to do so. Being a warranty as to a future matter, IMMIX, as suggested by WPMR, had the onus of proving that its conduct was not misleading or deceptive pursuant to s 4(2) of the Australian Consumer Law ("ACL").[41] WPMR submits that IMMIX's concession that it cannot pay the Contract price without assistance from a third-party financier is, therefore, contrary to the express and implied warranties alleged to have been made by IMMIX as to its capacity and power to complete the Contract. WPMR also notes that IMMIX has failed to adduce evidence that it had "reasonable grounds" to make the abovementioned warranties, including IMMIX's implied representation that it could perform the Contract.
WPMR submits that it has incurred substantial "wasted" legal costs in defending the trial commencing on 30 July 2024 and its subsequent efforts to perform its obligations under the Contract and HOA, pursuant to the Court's decree of specific performance. WPMR also notes that it made payments, as requested by the Landlord, for legal costs incurred in considering the parties' three separate requests for consent to the assignment of the Lease.
WPMR contends that IMMIX's "substantial breach" of the Contract was the reason why the legal costs expended were "wasted". Such costs, WPMR argues, would "never have been incurred" had IMMIX not misrepresented such warranties regarding its capacity to perform the HOA and the Contract. WPMR states that it entered into the HOA and Contract in reliance of IMMIX's warranties. Therefore, the wasted costs form part of the loss and damage suffered by WPMR.
Pursuant to GC 16.3(b) of the Contract, a party in default must pay interest on any overdue amount calculated at a rate of 2% higher than the rate fixed under s 2 of the Penalty Interest Rate Act 1983 (Vic), as at the date of default. WPMR submits that it served IMMIX with the Notice, pursuant to GC 16.4, which IMMIX failed to comply with.
Therefore, WPMR is claiming interest on the unpaid sum at a rate of $1,009.81 per day from 13 December 2025 until such time as the Court vacates the decree of specific performance or IMMIX's alleged breach is remedied. As at 5 February 2026, the interest payable was $55,490.05.
WPMR notes that, pursuant to paragraph A of IMMIX's prayer for relief in the further amended statement of claim dated 19 August 2024 ("FASOC"), IMMIX sought a decree of specific performance, which was granted by paragraphs 3 to 5 of the 29 November 2024 orders. The Court also ordered, at paragraph 8 of the 29 November 2024 orders, that "[t]he defendant pay the plaintiff's costs of and incidental to the proceeding, including any reserved costs, on the standard basis to be taxed in default of agreement."
Citing Windeyer J in Mehmet v Benson,[42] IMMIX suggests that as a precondition to obtaining equitable relief, IMMIX had to be "ready, willing, and able to perform" the HOA and Contract.
However, referring to paragraphs 14 and 15 of the First Suggate Affidavit, WPMR suggests IMMIX likely did not have the financial means to complete the Contract. In particular, WPMR submits that IMMIX had "no basis, let alone a reasonable basis" to believe that it had finance approval from CBA as at 6 April 2022. .
Pursuant to the Tucker Affidavit, Mr Tucker deposed that IMMIX had received "preliminary approval" to borrow the necessary funds. WPMR contrasts this with the 6 April 2022 email, discussing that the approval for finance was "in principal [sic]", lacked formality, and subject to further requirements - with an implicit entitlement to withdraw should the financier be dissatisfied with the information provided by IMMIX.
WPMR reasserts that IMMIX, by failing or refusing to pay the Contract price, has failed to perform its contractual obligations and has demonstrated that it is not "ready, willing or able to perform the Contract". WPMR therefore contends that the Court should vacate the decree of specific performance. WPMR further contends that, because the Contract in respect of which specific performance was ordered has not yet been finalised, the Court is "not functus officio" and may accordingly set aside the order for specific performance and make alternative orders
WPMR submits that, because the Court has power to set aside "substantive unperfected orders", it also has power to make "ancillary orders ... as to costs". On that basis, WPMR argues that the decree of specific performance should be vacated pursuant to its Further Amended Summons. WPMR further submits that, although costs ordinarily follow the event, the Court should vacate the costs order at paragraph 8 of the 29 November 2024 orders and exercise its discretion to make a fresh costs order
WPMR asserts that in a scenario where the purchaser fails to comply with an order for specific performance, the Court may rescind the order and substitute alternative relief that has been pleaded. Further, upon the vacation of a decree of specific performance, WPMR submits that the Court may re-exercise its costs discretion reflecting the "ultimate failure of the plaintiff's claim" - such as by reversing earlier costs orders.
Therefore, despite IMMIX's success at trial, WPMR contends that IMMIX sought specific performance of a Contract that could not "reasonably be expected" to have been performed, constituting "contempt of [the 29 November 2024] orders". WPMR notes that this is particularly "egregious" as IMMIX was the party initially seeking the decree of specific performance.
While WPMR emphasises that it does not bring a contempt application, the Court should consider IMMIX's non-compliance with the 29 November 2024 orders and IMMIX's misrepresentations regarding its ability to perform the Contract as contraventions of ss 16, 17, 20, 21, and 24 of the CPA.
Further, WPMR claims that ss 28 and 29 of the CPA are also engaged and that the Court should, therefore, make the orders sought pursuant to paragraphs 5, 5A, and 5B of the Further Amended Summons - that is, vacating the costs order at paragraph 8 of the 29 November 2024 orders and making a new costs order in favour of WPMR.
In reply to IMMIX's primary submissions, WPMR reaffirms that they have provided the following statements:

[105]

WPMR seeks to distinguish between these two types of documents. WPMR submits that the HOA Documents were provided as part of the parties' respective due diligence obligations, pursuant to the HOA. These were, however, not provided to assist IMMIX in procuring finance.
WPMR asserts that the IMMIX, "at all material times", bore the risk of having sufficient funds to pay the Contract's price. The method by which IMMIX would raise the funds required to pay the purchase price was "its own business and at its own risk", reflecting the risk allocation bargained for by the parties under the Contract.
WPMR contends that the earliest documentary evidence of IMMIX having conditional, preliminary approval for finance is the email dated 6 April 2022, sent some five weeks after the formation of the HOA. WPMR further contends that any delay attributable to WPMR in 2022 or thereafter - said to have caused any "preliminary, conditional offer of finance" to become stale - is not relevant, as the "express purpose" of the HOA Documents was unrelated to assisting IMMIX to obtain third-party finance. WPMR also submits that there was no obligation to provide information to assist IMMIX in understanding the October Documents, but that it did so nonetheless.
WPMR refers to the acquisition of All Steel by WPMR as a "purchase of assets". WPMR claims that IMMIX was informed of the approximate value of the sales, being $433,410.55, as well as market conditions informing the changes in WPMR's apparent profitability. Therefore, WPMR submits, there is "no proper basis" to allege that the provision of the October Documents was "completely defeated", and WPMR's profitability was "not relevant to the sale of its assets".
WPMR characterises IMMIX as the "uncooperative" party in the performance of the Contract. WPMR refers to having taken "extraordinary steps" to procure the Landlord's consent to the assignment of the lease, and submits that IMMIX's "lacklustre performance of its obligations" was the reason the Landlord was "unenthusiastic in consenting to the assignment of the lease". WPMR claims that, as a result, it suffered further burdens and costs. WPMR also comments that IMMIX's prospective financiers shared this lack of enthusiasm, as reflected in the imposition of "impossible conditions" prior to approving any loan.
In response to IMMIX's submissions that WPMR is under an obligation to provide "financial statements", WPMR submits that this is misconceived. Referring to GC 3.11(a) and (c), which require WPMR to provide "Financial Records of the Business reasonably required ... at settlement" to IMMIX upon request, WPMR contends that IMMIX "failed to participate in settlement".
WPMR affirms that there was no contractual obligation for it to positively assist IMMIX in procuring third-party finance, including by providing financial statements limited to the assets subject to the Contract. Hence, WPMR claims that IMMIX's failure to complete the Contract is "entirely its own failing" and that IMMIX's submission, that WPMR prevented IMMIX from raising finance to complete the purchase, is "misconceived".
WPMR notes that, under IMMIX's Proposed Orders, IMMIX seeks further financial statements which it submits "can be ordered on a confidential basis". WPMR reiterates that, by operation of GC 16.7 - providing for the conclusion of the Contract upon service of the Notice - it has no obligation to provide the documents sought. WPMR further submits that, even if the Court were to find against it on that issue, provision of the documents would not enable IMMIX to obtain loan approval and IMMIX would remain unable to meet the purchase price under the Contract.
Regarding goodwill, WPMR refers to its primary submissions and reiterates that it has not repudiated the Contract by reason of IMMIX's arguments concerning goodwill.
Regarding costs, WPMR notes that the orders made on 29 November 2024 were "not final", as the substantive relief - being specific performance of the Contract - left the Court with a "supervisory role". WPMR therefore submits that the Court is not functus officio and that the issue of costs is not res judicata.
WPMR further submits that this case presents a novel scenario: namely, a plaintiff who successfully obtained an order for specific performance and subsequently defaulted in payment of the Contract price. WPMR contends that this constitutes "new circumstances" which the Court should take into account in exercising its discretion as to costs, and that it is open to the Court to revisit the prior costs order.
WPMR refers, finally, to s 29(1) of the CPA, allowing the Court to "make any order it considers appropriate in the interests of justice" - including an order as to costs - if a party to litigation contravenes an overarching obligation.
WPMR refers to the HOA, which did not contain a "subject to finance clause" and imposed an "absolute obligation" on IMMIX to pay the Contract price at settlement. WPMR notes that the "only condition" excusing performance was if a party withdrew during the due diligence period. WPMR submits that, under the HOA, during the "Due Diligence Period" it was required to provide IMMIX with "reasonable access to [its] records" to enable IMMIX to verify the accuracy of WPMR's warranties and any matter referred to in the "Particulars and the Schedules". WPMR notes that this provision did not extend to verifying accounts or otherwise providing IMMIX with further financial information for the purpose of obtaining finance.
Further, pursuant to the HOA, as required under the "Confidential Information" heading, WPMR notes that parties cannot disclose one another's confidential information unless there is prior consent, a legal compulsion to do so, because the information is already public, or if the disclosure is to "professional advisers and employees" necessary for effecting the Contract. Again, WPMR emphasises that there is no reference to finance in the HOA. WPMR also emphasises that IMMIX would be in breach of the abovementioned confidentiality provision by supplying WPMR's accounts with a finance broker or a bank, unless one of the exceptions applied. WPMR claims that IMMIX has breached its obligation of confidentiality.
WPMR concedes that they are not seeking damages for IMMIX's purported breach of confidentiality. However, WPMR relies on those provisions of the HOA to contend that, while IMMIX submits there should be an implied term rendering the Contract "subject to finance", or effectively making completion contingent on WPMR "assisting [IMMIX] ... to obtain finance", the express "Due Diligence" and "Confidential Information" provisions of the HOA suggest otherwise.
WPMR emphasises that in response to IMMIX's contention that WPMR is subject to a "duty of cooperation" or "duty not to hamper", which requires WPMR to provide IMMIX with "further financial information", such documentation has "already [been] provided" even though WPMR was under no obligation to do so.
Acknowledging the extensive effluxion of time since the parties entered into the HOA some three to four years ago, WPMR notes that IMMIX attributes that delay to WPMR's breach of the Contract in 2023 and its resistance to the application for specific performance. WPMR says that IMMIX goes further, claiming that, as a result of the delay, IMMIX's finances have "dried up".
WPMR refers to paragraph 6 of the Second Suggate Affidavit, noting that on 1 March 2022, Mr Suggate had received a "number of documents including financial statements, tax return and depreciation schedule of [WPMR] for the year ended 30 June 2021".
WPMR next refers to paragraph 10 of the Second Suggate Affidavit, specifically to the reference that, in January or February 2022, Mr Armstrong had informed Mr Suggate that "CBA was prepared to grant finance of $3.15 million to assist with the acquisition of the Business". WPMR characterises this as "hearsay upon hearsay" and suggests that CBA's offer only amounted to "indicative approval".
WPMR notes, at paragraph 8 of the Tucker Affidavit, that Mr Tucker - who carried out accounting advisory work for IMMIX - describes CBA's approval as "preliminary". WPMR further notes that the 6 April 2022 email states that the finance of $3.15m was only approved "in principal". WPMR distinguishes this to "formal approval", suggesting that IMMIX did not receive any "letter of offering" and that "further documentation" was required.
In sum, WPMR submits that "Mr Suggate was taking a risk ... that he would have finance" - a risk "allocated by the [C]ontract". WPMR further submits that the assumption of risk was a "commercial decision" Mr Suggate made as a "businessman" and, therefore, it was no part of WPMR's obligations that the sale be subject to finance and that WPMR aid IMMIX in obtaining finance.
WPMR notes that Mr Suggate's assumption of risk that "he had to have the funds at settlement" occurred prior to any question of WPMR's breach arose, and how Mr Suggate raised such finances was not of question in the Contract. WPMR concedes that while one may feel sympathy for Mr Suggate, he had not entered an agreement "subject to finance" or with a "reasonable or best endeavours clause in relation to finance" - but rather, an "absolute obligation".
WPMR refers to GC 8.6 as "an example of ... a reasonable index (sic) clause",[43] as well as GC 3.11 which involves an obligation upon WPMR to provide financial records of the Business, to be "delivered at settlement". However, given the financial records of the Business would have been mixed at settlement, WPMR provided that an accountant would be asked to assist "if [they were] ordered to" provide such financial records by IMMIX. However, WPMR notes that the parties "didn't get to that" because settlement did not occur. Furthermore, WPMR notes that what was required were "financial records, not new accounts", defined as:

[107]

Therefore, WPMR states that they would have provided, upon IMMIX's request, "ledgers" dividing the belongings of IMMIX and All Steel - not new financial statements.
In response to any duty to cooperate, WPMR suggests that, while they accept the premise that such a duty exists, they caution the Court against "rewrit[ing] the [C]ontract ... to reallocate those sorts of risks". To support this, WPMR refers to Cirrus Real Time Processing Systems Pty Ltd v Jet Aviation Australia Pty Ltd for the proposition that "judges tend not to be engaged in commerce and are far from the best placed to assess the commerciality or otherwise of a construction".[44] WPMR submits that it is not open for the Court to rely on implied terms or the duty to cooperate to "contradict express terms" and make the Contract "more commercial, fairer, [and] operative".
With respect to its Further Amended Summons, WPMR emphasises that it is seeking a declaration that they have duly terminated the Contract by issuing the Notice, as well as a further declaration that they are entitled to retain the deposit and interest on the unpaid Contract, up until the date of judgment, as well as costs.
WPMR noted that while the length of the Second Jade Affidavit was "regrettable", considerations surrounding the CPA were front of mind.
WPMR refers to the email from Mr Sloan dated 8 February 2023, liaising directly with the Landlord's solicitors at the time, being Heinz Law. WPMR notes that they were told to "stay out of [the lease discussions]".
Certain documents were provided to Heinz Law, including IMMIX's profit and loss statements, IMMIX's consolidation business report as at June 2021, IMMIX's consolidation business report with profit and loss data as at 30 June 2022, and an estimated statement of Mr Suggate's net wealth.
WPMR explained that other documents requested by Heinz Law - including a reference letter addressing IMMIX's prior business experience and Mr Suggate's ability to operate a successful scrap metal business, and references from past landlords - were not limited to IMMIX because IMMIX, as trustee for the IMMIX Holdings Trust, had not previously operated a metal recycling business. However, WPMR noted that a related entity, IMMIX IMM, had such experience. WPMR submits that this distinction between entities was made clear by the character reference for Mr Suggate from Mr Tucker to Mr Sloan dated 14 February 2025.
WPMR refers to "alarming" aspects of Mr Suggate's character reference, including the fact that "[IMMIX IMM] has faced significant financial challenges in recent times ... limiting [their] ability to secure additional funding". WPMR emphasises that, regardless of the "changing economic circumstances", Mr Suggate's character reference supplied in 2025 would have been cause for "grave suspicions" by the Landlord.
Regarding their claim under the ACL, WPMR claims that an "implied representation" arose - first, by IMMIX's entry into the Contract, and second, IMMIX's application at trial seeking a decree of specific performance. In rebuttal to IMMIX's submissions, that a statement made to the Court is not a representation in trade and commerce, WPMR concedes that while this may be broadly true, IMMIX's act in signing the Contract - whether pursuant to a court order or not - is still a "commercial act" and, therefore, in trade and commerce.
WPMR also cites Futuretronics,[45] which involved an individual making bids at an auction but refusing to ultimately sign the contract for sale. The bidder was sued for misleading and deceptive conduct, with the relevant representation being that they "intended to sign th[e] contract" - this, WPMR suggests, falls under s 4 of the ACL, being a "representation with respect to any future matter". WPMR contends that Mr Suggate had no "reasonable grounds for believing that he had ... finance ... at any stage", and that he had only received "indicative approval" from CBA. WPMR reaffirms that Mr Suggate did not have finance upon signing the Contract on 20 December 2024.
Regarding IMMIX's submission that Mr Suggate had an "honest belief", WPMR submits that he nonetheless had no "reasonable basis" for expecting finance. In support, WPMR again refers to the character reference of Mr Suggate dated 14 February 2025, mentioning that the company has "experience restricted access to finance". WPMR asserts that as at April 2022, IMMIX only had "conditional approval".
WPMR also refers to the evidence of Mr Fincham, that he "had to sign the [C]ontract" pursuant to the 29 November 2024 orders, and was indifferent as to how IMMIX would raise finances. While WPMR admits that while Mr Suggate also had "no choice in signing the [C]ontract", WPMR differentiates that IMMIX was the party seeking specific performance of the Contract to begin with.
WPMR confirmed that IMMIX did not seek damages in its FASOC and instead sought only specific performance, as Mr Suggate "always wanted [the B]usiness". WPMR characterises IMMIX's inability to obtain finance as a commercial risk it took, with IMMIX having to bear the "consequences of [such a] risk".
WPMR conceded that since 2022, its Business - as with IMMIX's business - has changed: one of the driving factors being the fluctuations in the "global economy market for metals". Yet, WPMR emphasises that despite these changes, IMMIX still sought specific performance to purchase the Business for $3.335m, "even though it may not be worth that now". That, WPMR states, was a risk IMMIX took.
During the interim, since 2022, WPMR mentions that they underwent an "asset acquisition of a business called All Steel" which was added to the Business and run as part of the Business. WPMR concedes that it is possible for the Business to be "disaggregated in some accounts" by accountants. WPMR also mentions that the assets purchased initially, such as bins or trucks, may have been "lost or ... replaced" since the asset acquisition. WPMR confirms that while the Contract does provide for adjustments in the "valuation of stock", no adjustment exists for "acquisition of other things".
Regarding the goodwill contention, WPMR notes that it is no longer relevant and that IMMIX is entitled to "whatever goodwill attaches to the geographic location at Western Port and to the bin that's marked [WPMR]". WPMR reaffirms that a restraint of trade is also includes in the HOA.
WPMR refers to the email from Mr Jade to Mr Sloan dated 5 October 2025, noting that he had received documents and financial information from IMMIX to provide to the Landlord but required clarity on a number of documents. In particular, at Item 7, Mr Jade requested "complete figures" for IMMIX IMM.
By email dated 9 October 2025, WPMR submits that, in short, IMMIX declined to provide the abovementioned figures because they were in relation to IMMIX IMM - an entity distinct from IMMIX. Therefore, the Landlord only received "big picture" documentation.
Pursuant to paragraph 19 of the Second Suggate Affidavit, WPMR notes that Mr Kypreos was only engaged as a finance broker on behalf of IMMIX on 2 June 2025, seven months upon the Contract being executed. WPMR further notes that paragraph 21 of the Second Suggate Affidavit describes that, on 8 July 2025, Mr Kypreos provided IMMIX with "conditional approval of funding in the amount of $3,335,000". WPMR claims that this evidence is inconsistent with an email from Mr Sloan dated 10 November 2025 to Mr Jade and Ms Chong of Whitelaw Flynn Lawyers, the Landlord's solicitors, which stated:

[115]

WPMR explains that regarding the "prevention principle", as articulated by the Victorian Court of Appeal in Bensons Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd,[47] IMMIX seeks to contend that "by reason of [WPMR's] breach of obligation not to hamper, or to cooperate, [this] has prevented [IMMIX] from performing".
In reply, WPMR contends that IMMIX did not have finance when it signed the HOA, did not have it when IMMIX ran the trial, and did not have it when they engaged Mr Kypreos. Therefore, WPMR concludes that the Court cannot find that WPMR has prevented IMMIX from obtaining finance.
WPMR again refers to the fact that the Contract is not "subject to finance", with no express obligation in the Contract for WPMR to assist IMMIX in settlement. WPMR further goes as far to say that such an obligation would be "inconsistent with th[e] terms of the [HOA] and the [C]ontract".
WPMR notes that while the "Due Diligence" provision in the HOA allows IMMIX to have "reasonable access to the records of [WPMR]" in order to "verify ... the accuracy of the Vendor's Warranties; and ... any matter referred to in the Particulars and the Schedules", WPMR contends that this does not amount to a "due diligence and get finance ... [but] simply due diligence".
WPMR reasserts that its commercially sensitive information, including profit and loss accounts, must remain confidential, pursuant to the "Confidential Information" provision in the HOA. WPMR repeats that the exclusion of any "subject to finance" clause must be characterised as a "punt" on the part of Mr Suggate, and the reason for these proceedings is Mr Suggate's "buyer's remorse".
WPMR also reasserts that while it may "not [seem] very fair for Mr Suggate" given it was "[WPMR's] fault [the sale] didn't happen in March or May 2022 or 2023", and that the situation has since changed, it would nonetheless do "great violence to the [parties'] contractual obligations" in order to "dissolve the order for specific performance" for the rationale provided by IMMIX, being on the basis that WPMR has failed to comply with an implied term of the Contract.
In response to IMMIX's contention that WPMR is in breach of the Contract for not providing the additional financial information requested, and that doing so would not "cost [WPMR] much", WPMR disagrees and states that "rewriting accounts" would "cost ... a lot".
For the reasons above, WPMR rejects IMMIX's application that the declarations in paragraphs 1(a) to 1(f) of the Proposed Orders should be made,
On the matter of legal costs, WPMR contends that it is entitled to the costs of dealing with the Landlord's solicitor to obtain their consent, if IMMIX is in breach of their "best endeavours" obligation.
WPMR refers to s 26 of the CPA, noting that it was not being "tricky or clever" in providing their financial documents and distinguishing IMMIX's most recent request as requiring them to, "effectively, creat[e] new documents".
WPMR characterises its previous provision of documents to IMMIX as voluntarily "cooperating ... and trying to be efficient". However, in forming the view that IMMIX "[does not] have any money" and only has "indicative approval", WPMR is no longer willing to provide further documentation not required by the Contract. Referring to s 26 of the CPA, WPMR characterises the provision as analogous to an order for discovery, in that it permits the production of existing documents but does not compel the creation of new documents.
WPMR concedes that while parties are still under supervision of the Court pursuant to the order for specific performance. However, WPMR qualifies that s 26 of the CPA operates for the "purposes of administration of justice" and for "case management" purposes, but not to vary the nature of the Contract.
To this effect, WPMR seeks to differentiate between WPMR's "contractual duty to cooperate and not to hamper" and their obligations to act in accordance with the CPA.
WPMR concludes by characterising the key question for the Court is whether there should be an expansion of WPMR's "general duty of cooperation" such that it extends to the "very specific obligation ... to provide not just financial records at settlement, but before settlement in order to obtain finance".
In reply oral submissions, WPMR notes that IMMIX's explanation - that the disparity in profit and loss recorded in the financial year ending 30 June 2023 was due to tax write-offs - was difficult to reconcile with the position of a "reluctant or suspicious landlord", particularly given the nine-month delay before that explanation was provided. In any event, WPMR submits that IMMIX should have provided that explanation "first".
Regarding IMMIX's characterisation that they had made "reasonable endeavours" to gain the Landlord's consent, WPMR challenges this and states that IMMIX's attempts were "lacklustre [and] desultory", with any "further information provided [failing to] satisfy the landlord". WPMR distinguishes that while the Landlord was not satisfied by IMMIX's conduct, the Landlord was satisfied with Mr Fincham's personal guarantee and WPMR's additional rental bond - hence their request for it.
Regarding allegations of breach, WPMR notes that there are two key contracts, being the HOA and the Contract executed pursuant to the 29 November 2024 orders. WPMR submits that the Court cannot find that it is in breach of the Contract even if they were in breach of the HOA, and particularly given the fact that WPMR sought the performance of the Contract.
WPMR distinguishes the applicability of Versus, as it involves a lease agreement.[48] WPMR further undermines IMMIX's submissions, surrounding its claim that WPMR would be profiting from its own wrong, by emphasising that WPMR concedes IMMIX were successful in their initial claim for specific performance. Instead, in this proceeding, WPMR is contending that they are not under an obligation to act as if the Contract is "subject to finance" or subject to WPMR assisting IMMIX in obtaining finance.
WPMR emphasises that it does not seek a vacation nor reversal of the costs order made in IMMIX v Western Port Metal Recyclers.[49] However, WPMR instead seeks the costs of this proceeding and the costs of the trial, given IMMIX had prosecuted a claim for specific performance but without a reasonable basis for doing so.
In relation to its misleading and deceptive conduct claim, WPMR seeks to distinguish Little (No 3) on the basis that it involved Mr Little relying on a representation constituted by a statement made by the secretary of the Law Institute to the trial judge during the hearing,[50] which WPMR submits is "very different" from the present case, involving a decree of specific performance of a contract followed by the execution of the Contract.
WPMR further notes that IMMIX's discussion about Futuretronics[51] did not negate the proposition that by entering into the Contract or seeking specific performance, IMMIX was impliedly representing that it intended to perform and had "reasonable grounds for expecting it could perform". WPMR, therefore, contends that it can rely on the reverse onus of proof in s 4 of the ACL.
Regarding the confidentiality of documents shared by WPMR, WPMR refers to paragraph 125 of the primary decision,[52] where the Court refers to a "separate confidentiality agreement about the business profile" which is "plainly confidential" under the HOA.
In response to Royal Pines (Appeal), WPMR seeks to distinguish it as there is a "world of difference" between the sale of investment property and a sale of business. WPMR contends that for the sale of a business, if the parties are of the belief that finance will be an issue, the parties would have included a "subject to finance" clause. However, only GC 15 of the Contract refers to finance and WPMR suggests that, taken alone, it cannot be extrapolated to mean that the Contract is "subject to finance" or that WPMR is under an obligation to assist with finance.
WPMR further refers to "considerable delay" in IMMIX signing the Contract.
In response to IMMIX's characterisation of the 6 April 2022 email, WPMR presses that it was a "conditional [and] preliminary" offer. WPMR notes that two conditions still had to be met, that no contract of sale was executed, and that "there were negotiations backwards and forwards".[53]
WPMR broadly agrees with the principles from McKenna and Wink Singh (No 2),[54] emphasising that they stand for the position that the Court is able to revisit paragraph 8 of the 29 November 2024 orders. WPMR rejects IMMIX's division between the decree for specific performance which is "not final until it's been completed" and the order for costs, which is final. In particular, WPMR draws issue with such a construction as there would then be two cost orders - one which goes up to a certain point in time in the proceeding, and the second for the remaining costs of the proceeding. However, WPMR contends that as there is one proceeding, the order for costs is relevant for the entire costs of the proceeding and, therefore, the Court is open to revisit the costs order and award WPMR costs from not just the date of the Contract, but also from the trial. This, WPMR claims, is in the Court's discretion.
Should the Court choose to grant WPMR costs, this, WPMR suggests, would be for a matter of further submission.
With regard to MC Wholesaling, WPMR refers to the following extract:

[118]

Mr Fincham is the sole director of WPMR and, consistent with how he gave evidence in 2024, he remains a careful and considered witness. Mr Fincham confirmed that he swore third affidavits that are relied upon as his evidence in this proceeding.
During cross-examination, Mr Fincham noted that when entering into the HoA in 2022, he did not insist on including a contractual term that the sale of the Business be "subject to finance". Mr Fincham also noted that he did not ask for a term of the Contract to be such that if IMMIX was unable to receive external finance to complete the sale, it would have to "pay from its own resources".
Mr Fincham noted that upon entering the HoA, he understood that IMMIX had to pay the price of the Business, but had not turned his mind to where IMMIX would have received the money from. Mr Fincham also noted that when he had to sign the Contract in 20 December 2024, following the judgment dated 7 October 2024, he was of the opinion that IMMIX "had the money" as there was no "subject to finance" clause in the Contract.
In any event, Mr Fincham stated that the method in which IMMIX raised funds - that is, whether they already had a sufficient amount as cash or if they required a financier - would not have made any difference to him as "money is money".
Mr Fincham noted that, pursuant to the 29 November 2024 orders, parties were required to sign the Contract. Mr Fincham recalled signing the Contract in compliance with the 29 November 2024 orders and was of the understanding that WPMR had no choice as to whether or not to sign the Contract.
Upon the Contract being signed, Mr Fincham recalled negotiations with the Landlord surrounding their consent to transfer the Lease to IMMIX. At the time of these negotiations, Mr Fincham claims that he was not aware that if the Landlord did not consent to the transfer, the Contract would be terminated and WPMR would have to return the deposit to IMMIX. Mr Fincham stated that he became aware of that afterwards, but was unsure as to the specific date he became aware.
Mr Fincham was also aware that the Landlord imposed conditions upon their provision of consent, including that the rental bond be increased and that Mr Fincham personally guarantee IMMIX's obligations pursuant to the new lease. Mr Fincham agreed to give that guarantee.
Mr Fincham stated that since the initiation of the Lease, and up until the end of 2024, there was "always two months' rent held in the rental bond". Mr Fincham agreed that the Landlord required a further two months' rent by way of bond, in addition to the original two months' rent, as a condition of its consent. Mr Fincham noted that IMMIX also agreed to "put up [the] two months' rental bond" after settlement.
Mr Fincham explained that WPMR had agreed that the existing rental bond would remain in place from WPMR and would not be "put up" by IMMIX. He said that the purpose of leaving that bond in place, together with his personal guarantee, was to secure settlement, not to secure IMMIX's deposit under the Contract.

[122]

During oral submissions, WPMR submitted that, pursuant to the Contract, IMMIX is entitled to "whatever goodwill attaches to the geographic location at Western Port and to the bin that's marked Western Port Metal Recyclers". In support, WPMR referred in written submissions to Murray, which states that "goodwill has no existence independently of the conduct of a business and that goodwill cannot be severed from the business which created it".[57] IMMIX, acknowledging that WPMR "concedes the true position", noted that the issue was no longer pressed.
Second, as to the confidentiality of any documents the Court may order WPMR to provide to IMMIX, this issue arises only if the Court grants IMMIX's alternative relief - namely an order requiring certain financial statements to be provided by WPMR to IMMIX. Nonetheless, during oral submissions, IMMIX conceded that, due to an "oversight", the amended orders it seeks do not address the confidentiality of documents to be produced. This issue is addressed at paragraphs 8 to 14 of the Second Jade Affidavit, which describes the "unfair commercial advantage" IMMIX would obtain over WPMR if the Court were to order production on a non-confidential basis, but the Contract were not otherwise executed.
Given IMMIX's concession that it is content for documents to be produced on a confidential basis should the Court grant the alternative relief sought, this issue need not be addressed further.
Third, as to the alleged breach of confidentiality under the "Confidential Information" clause of the HOA, WPMR contends that information such as profit and loss statements could be disclosed to IMMIX's "professional advisers and employees", but not to a "finance broker or a bank". On that basis, WPMR contends that IMMIX breached its confidentiality obligations.
Ultimately, however, given WPMR's concession that it does not seek damages or any other remedy for any alleged breach of confidentiality, it is unnecessary to address that issue in further detail, except insofar as it bears upon WPMR's submission that a duty to co-operate may be implied into the Contract pursuant to Issue 1.

[128]

Although often expressed as a positive duty, the principle has at times been framed in negative terms by the High Court. In Sydney Wide Stores, it was described as an "implied mutual obligation on each party not to ... hamper the other party in performing the contract"[62] and in Peters (WA) Ltd v Petersville Ltd, as a "negative covenant not to hinder or prevent the fulfilment of the purpose of the express promises".[63] In my view, that distinction is not material.
A distinction of greater relevance in Victoria is whether the duty to co-operate arises from the "general law of contract" or through the implication of a term applying the criteria in BP Refinery (Westernport) Pty Ltd v Shire of Hastings,[64] as applied by this Court in Brad Teal Pty Ltd v EVR Group Pty Ltd.[65] The Victorian Court of Appeal in Bensons Property Group has clarified that the better view is the latter.[66] That approach was also applied by Derham AsJ in Ventura & Anor v Ventura & Ors.[67]
Here, both parties accept the existence, in principle, of a general implied duty to co-operate. The question is how that duty operates on the facts of this Contract, and, in particular, whether it required WPMR to provide updated financial statements of the Business.
In oral submissions, WPMR relied on Cirrus, submitting that judges are not well placed to assess the commerciality of a contractual arrangement[68] and, therefore, should not "contradict express terms". I accept the general proposition. However, I note that the appeal in Cirrus succeeded because it concerned the interpretation of the defined term "Base Date", which had already been "defined differently and in express temporal terms" in contrast to the trial judge's construction.[69]
I observe that, although the High Court has recognised that considerations of commerciality and the "commercial purpose or objects" of a contract may inform the meaning of contractual terms,[70] such considerations cannot override express terms absent "absurdity or inconsistency".[71]
The settled test for implication of a term remains that established by the Privy Council in BP Refinery: the term must be reasonable and equitable, necessary to give business efficacy to the contract, so obvious that it goes without saying, capable of clear expression, and not inconsistent with any express term.[72]
For completeness, although not raised by the parties, I note that GC 8 is titled "Entire Agreement and Acknowledgement". However, the following passage from Isaacs J in Hart v MacDonald supports the proposition that an entire agreement clause does not preclude the implication of a term into a contract:

[134]

WPMR submitted that the Contract, and in particular the deletion of the "subject to finance" clause, reflected a contractual allocation of risk to IMMIX - namely, that IMMIX assumed the "risk that is allocated by the [C]ontract that [they] would have finance". WPMR characterised this as a "commercial decision" made by Mr Suggate as a "businessman".
In my view, that mischaracterises the effect of the above correspondence. It is more accurately understood not as a general reallocation of risk, but as reflecting the parties' specific circumstances at the time - namely, that IMMIX had effectively already procured finance from CBA, subject to two high-level administrative steps required for finalisation. While WPMR disputes that characterisation, I refer to my findings under Issue 4, where the CBA offer is examined in greater detail.
I further note that the same correspondence is in direct tension with Mr Fincham's evidence that he had not turned his mind to how IMMIX would satisfy the purchase price.
In any event, the duty to co-operate as formulated above is reasonable and equitable because it does not alter the fundamental bargain struck by the parties. The deleted "subject to finance" clause, being the former "GC 7", makes the operation of the Contract conditional upon the purchaser obtaining approval of a loan for not less than a specified amount. By contrast, the duty implied here is limited: it requires WPMR to assist, where reasonably necessary, IMMIX in obtaining finance so as to give effect to the Contract.
Under such a duty, if WPMR took all reasonable steps to assist IMMIX in obtaining finance and IMMIX nonetheless failed to do so, IMMIX may still be found to have repudiated the Contract. The duty is, therefore, distinct from a "subject to finance" clause and operates, in my view, reasonably and equitably to give practical effect to the parties' commercial dealings.
Second, as to business efficacy, I return to Royal Pines (Trial) and Royal Pines (Appeal).[80] As mentioned above, those proceedings concerned the sale of building units on the Gold Coast. The applicants relied on clause 8.5, which provided that settlement would not occur earlier than 14 days after the respondent provided notice of plan registration.
On the morning of 1 July 2024, the applicants in the proceeding sought access to the lots so that financiers could inspect them, notwithstanding that the contract was not "subject to finance". That afternoon, the respondent notified the applicants that settlement was due on 16 July 2024. After repeated follow-up emails, access was provided on 8 July 2024. At first instance, and on appeal, the Court held that the respondent had breached its duty to co-operate because the delay had the practical effect of "hamper[ing], frustrat[ing], or render[ing] impossible the process [of] permitting access for finance purposes to the completed property".[81]
In those proceedings, the respondent unsuccessfully advanced a submission similar to WPMR's here - namely, that the contract contained no "subject to finance" clause.[82]
WPMR sought to distinguish Royal Pines (Trial) and Royal Pines (Appeal) on the basis that there is a "world of difference" between the sale of investment property and the sale of a business.[83] I am not persuaded by that characterisation.
The Queensland Court of Appeal, in Royal Pines (Appeal), observed:

[138]

Read in context, that passage supports the conclusion that a transaction of the present kind - a sale of business - may likewise be expected to involve finance. More importantly, the email on 25 February 2022 at 11:35am indicates that the parties were expressly told that IMMIX had "already secured the necessary loan facility from [its] lending institution". It is, therefore, clear that the parties contemplated finance as a practical necessity to completion of the Contract_._ The fact that IMMIX did not then need to rely on a duty to co-operate does not mean that such a duty, as framed above, did not exist.
Further, and as I have cited above, GC 15.3(b) expressly permits disclosure of confidential information to "professional advisors, consultants and financiers for a genuine purpose". For that clause to have operative effect, the parties must be taken to have contemplated disclosure of financial information to financiers, and it is reasonable to infer that the purpose was to obtain finance for the transaction. I am, therefore, satisfied that the implied duty, as formulated, is necessary to give business efficacy to the Contract.
Third, the duty is capable of clear expression: WPMR was required, where reasonably necessary, to assist IMMIX in obtaining finance for the purchase of the Business so as to give effect to the Contract.
Fourth, this duty is not inconsistent with any express term of the Contract. It is supplementary in nature. It does not contradict any express obligation but, rather, it imposes an additional responsibility on WPMR in aid of performance.
For those reasons, I find that an implied term formed part of the Contract, the content of which was that WPMR owed a duty to co-operate by assisting IMMIX, where reasonably necessary, in obtaining finance for the purchase of the Business so as to give effect to the Contract.
The next question is whether WPMR breached that duty. WPMR submits that it did not, and contends that it not only sought to perform the Contract according to its obligations but went beyond them, including by offering additional security in the form of a rental bond from WPMR and a personal guarantee from Mr Fincham. I note that considerations relating to the bond and personal guarantee fall outside the duty to co-operate as framed by IMMIX, which is confined to the acquisition of finance, and will, therefore, not be considered here.
I summarise below the relevant correspondence bearing upon whether WPMR took all reasonable steps to assist IMMIX to obtain finance.
Pursuant to the exhibits of the affidavit of Mr Suggate sworn on 1 October 2025, by email from Mr Sloan to Mr Jade on 2 September 2025 at 5:56pm, Mr Sloan stated as follows:

[171]

As to my client taking action to pursue finance, it has been doing so since October 2024 when Her Honour handed down her reasons for judgment. Conditional finance had been obtained but it was subject to establishing the ongoing level of profitability of business, which has been extremely difficult to do without current financial statements of the business. My client has been handicapped by not having the current financial statements for the business it has purchased. I did not receive those financial statements until 24 October 2025 (and then only on a confidential basis limited to its lawyers, external accountant and financiers). Any approval of finance is likely to be subject to convincing the financiers of the viability of this business and explaining its current position compared to the represented position in March 2022-nearly 4 years ago-when my client purchased the business and had approval of finance for that purpose (The contract was entered into on 119/20 December 2024 via court- why would your client pursue if it couldn't perform the contract not subject to finance or performance etc? this doesn't make sense accordingly). In case you had not noticed, the economy wide financial position, particularly the interest rate regime, has changed substantially since March 2022 resulting in the original approval of finance from the Commonwealth Bank of Australia being no longer available ( this was subject to a Contract of Sale, which your client refused to do- so it was approved it was conditional ). That position needed to be reconsidered in view of the current economic and interest rate environment (The contract was entered into on December 2024- why would your client pursue if it couldn't perform the contract- doesn't make sense James, also what part of As is , Where is Basis, Asset sale only with no goodwill is not being understood, not subject to finance or performance etc? you have also had many without prejudice offers/solutions on a commercial basis set to you which you refused). My client has been pursuing that and needs unfettered access to the business financial statements to further its application. See above response.

[248]

IMMIX also relies on the Full Court of the Supreme Court of South Australia in Kyren,[92] which cited Blackburn J in Roberts v The Bury Improvement Commissioners for the proposition that "no person can take advantage of the non-fulfilment of a condition the performance of which has been hindered by himself".[93]
WPMR, on the other hand, submits that the prevention principle does not apply because IMMIX did not have finance when it signed the HOA, did not have finance when the trial commenced on 30 July 2024, and did not have finance when it engaged Mr Kypreos on 2 June 2025. WPMR, therefore, submits that the Court cannot find that WPMR prevented IMMIX from obtaining finance.
The question before me is whether there is a "sufficient causal relationship" between WPMR's breach of its duty to co-operate and IMMIX's inability to obtain finance and, therefore, complete the Contract.[94] For the reasons below, I find that there is.
The email correspondence between Mr Jade and Mr Sloan from 2 September to 5 December 2025 makes clear that serious concerns were raised about the financial documents provided by WPMR. As reflected in the questions posed by Mr Sloan, those concerns included significant increases in cost of goods sold, workers' compensation premiums, salaries and wages, truck expenses, business insurance, and rent.
Had WPMR made reasonable efforts to assist IMMIX in obtaining finance, including by providing disaggregated financial information, I consider that it was likely that IMMIX would have obtained finance. I am, therefore, satisfied that WPMR's breach of its duty to co-operate bore a sufficient causal relationship to IMMIX's inability to settle the Contract on 12 December 2025.
Secondly, as to the warranty provisions, I do not accept WPMR's characterisation of clauses 1 and 2 of Schedule B as amounting to a warranty that IMMIX had sufficient funds to complete the transaction. That construction is unduly narrow and does not adequately account for the balance of the text.
I accept IMMIX's submission that the warranties are directed to IMMIX's legal and corporate capacity, as a "duly incorporated" entity with "full corporate power" and lawful authority, to enter into and perform the Contract. As IMMIX submitted, the warranties are concerned with matters of "internal authority" - for example, corporate or "board authority" - rather than a freestanding warranty of available funds.
For the reasons set out above, I find that IMMIX did not wrongfully repudiate the Contract and, as a consequence, WPMR did not validly terminate the Contract by its Notice, notwithstanding IMMIX's inability to complete the Contract on 12 December 2025.

[252]

I am unable to find in favour of WPMR's submissions for the following reasons.
First, regarding the prosecution of the trial commencing 30 June 2024, the principal case relied on in support of IMMIX's defence is Little (No 3).[95] In that case, the appellant contended that a "representation ... [was] made to Southwell J [the trial judge] on behalf of the second-named respondent" during the first instance hearing, causing Southwell J to issue an order restraining the appellant from acting and practising as a solicitor.[96] WPMR distinguishes Little (No 3) on the basis that the appellant there relied on an alleged representation made by the second respondent to the trial judge, as opposed to seeking an order for specific performance of a Contract.
I find that WPMR's position is nonetheless untenable in light of the principles the Victorian Court of Appeal adopted in reaching its conclusion. In particular, I refer to Kaye and Beach JJ's reference to Bowen CJ in Re Ku-Ring-Gai Co-operative Building Society (No 12) Ltd, describing the terms "trade" and "commerce" as referring to "mutual communings, the negotiations verbal and by correspondence, the bargain, the transport and the delivery which comprise commercial arrangements".[97] Further, s 2(1) of the ACL defines "trade or commerce" as "includ[ing] any business or professional activity".
Kaye and Beach JJ in Little (No 3) were of the opinion that the second respondent's comments were not "part of a commercial arrangement".[98] Similarly, I adopt the view that WPMR cannot contend that IMMIX's prosecution of the trial commencing 30 June 2024 could be so characterised. The trial was prosecuted, and the orders for specific performance were sought, with the intention of enforcing a commercial arrangement that had already been entered into.
The trial did not constitute a negotiation in which the terms of the Contract were being agreed upon by the parties - rather, it concerned breach and whether the Court could order performance of the Contract. I cannot accept that the prosecution had the character of "trade or commerce" as required by s 18 of the ACL.
Second, regarding WPMR's claim that the execution of the Contract constituted a misleading and deceptive representation, I note WPMR's reliance on Futuretronics,[99] which involved the defendant making the only genuine bid in an auction and having the property knocked down to him, but ultimately changing his mind and refusing to sign a written contract in accordance with the terms of the auction. Justice Ormiston was of the view that the defendant had made a misleading representation as to a future matter - namely, that he would execute the contract.
The distinguishing factor between Futuretronics and the present proceeding is that the relevant "conduct" alleged by WPMR - namely, IMMIX's execution of the Contract on 20 December 2024 - was performed pursuant to an order for specific performance of the Court, and not voluntarily. The question is whether that execution may constitute "conduct", which is defined in s 2(2) of the ACL as follows:

IMMIX Holdings Pty Ltd v Western Port Metal Recyclers Pty Ltd

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