Inline Partners Pty Ltd v Hadden

Evidence

1. The plaintiff relied on an affidavit in chief of Mr David Mah Chut sworn 16 June 2022, and a bundle of ASIC searches in respect of companies referred to elsewhere in the evidence. Mr Hadden relied on two affidavits sworn by him on 10 November 2021 and 21 November 2022, and several documents produced by the plaintiff pursuant to a Notice to Produce. Mr Mah Chut and Mr Hadden were each cross-examined.
2. Both Mr Mah Chut and Mr Hadden gave evidence on affidavit and were cross-examined. Neither Mr Marskell for the plaintiff, nor Mr Ratnam for the defendant, made any submissions adverse to the credit of the other party's witness. I find each witness gave evidence in an open and forthright way, and I have no reason to doubt that each witness was doing his best to assist the Court. I accept each of them as a witness of truth.

Issues

1. The key issues in dispute were: 1. Whether there was a contract with respect to the work performed by the plaintiff. 2. If so: 1. Who was a counterparty to that contract; 2. If a counterparty to that contract was the defendant, what were the relevant terms as to work and payment; 3. Has the plaintiff demonstrated a prima facie entitlement to payment in accordance with the disputed invoices; and 4. Has the defendant demonstrated that the plaintiff is disentitled to payment under the contract on the bases that the work performed was not done exclusively for him or that the rate had not been agreed. 1. If no contract is established, has the plaintiff made good his claim in restitution in the following respect: 1. Was work performed at the request of the defendant; 2. Did the defendant accept a benefit from the performance of that work; and 3. Is the plaintiff's claim for payment reasonable.
2. The parties each submitted that the accounting services were provided pursuant to a contract. Neither party was able to point to any express agreement, either by way of an orthodox offer and acceptance analysis or otherwise. Both parties' primary position was that the proceedings could be determined by reference to a claim in contract and the plaintiff's restitutionary claim arises only if the Court is unable to find the existence of a valid contract on the evidence.

Factual findings

1. Inline, the plaintiff, is an accountancy practice which is the successor to a number of earlier entities through which Mr Mah Chut and his wife, Ms Christy Lim, provided accountancy and bookkeeping services. Following the purchase of an accountancy practice called Canavan & Co in about 2002, Mr Mah Chut commenced working for Mr Hadden and various entities of which he was a director.
2. Mr Hadden, the defendant, is a director and shareholder in a number of companies, engaged in various activities such as construction, development and interior design.
3. Mr Mah Chut and Ms Lim continued to provide accountancy and bookkeeping services to Mr Hadden and entities of which he was a director from about 2002 until September 2020. They did so through a number of companies and/or firms, including those known as Plus Advisory, Dalchristie and CDMC Chartered Accountants. The present plaintiff, Inline, commenced trading in about 2019 and, after a period of overlap with CDMC Chartered Accountants, has been the primary vehicle through which Mr Mah Chut and Ms Lim provide accountancy and bookkeeping services. No issue was taken with the changes in the companies or firms providing the services. Indeed, an invoice raised by CDMC Chartered Accountants was relied upon by the defendant in support of a contention as to the course of dealing between the parties.
4. Mr Hadden started Nickaz Constructions Pty Ltd ("Nickaz Constructions") approximately 30 years ago. It was his main trading company which provided cashflow for his other commercial endeavours. Other corporate entities which formed part of the Hadden Group were funded by Nickaz Constructions by way of inter-company loans. Mr Hadden was a director of at least the following entities: 1. Nickaz Investments 2 Pty Ltd; 2. Hadden Property Holdings Pty Ltd; 3. Hadden Corporate Pty Ltd; 4. Nickaz Group Pty Ltd; 5. Nickaz Investments 1 Pty Ltd; 6. Nickaz Investments 2 Pty Ltd; 7. Nickaz Investments 3 Pty Ltd; 8. Nickaz Investments 4 Pty Ltd; 9. Nickaz Investments 5 Pty Ltd; 10. Nickaz Investments Box Hill Pty Ltd; 11. Nickaz Money Place Pty Ltd; and 12. Hadden Superannuation Fund Pty Ltd.
5. In the course of the trial, there was some discussion as to what constituted "the Hadden Group", which was a term that appeared in the internal records of the plaintiff. It was used interchangeably with the term "the Nickaz Group". The term had been used by the plaintiff as an administrative expedient to identify work performed for Mr Hadden and his associated corporate entities identified above, even though there was no entity by that name. The hearing proceeded on the basis that the term embraced each of the entities identified in the previous paragraph, together with Mr Hadden personally and, prior to their separation and divorce, his wife Nicole.
6. Within the Hadden Group, ASIC records show that Nickaz Constructions was not the holding company for any of the other group members identified in those records. In each of Nickaz Investments 1 Pty Ltd, Hadden Property Holdings Pty Ltd, Nickaz Investments 2 Pty Ltd, Nickaz Investments 3 Pty Ltd, Nickaz Investments 5 Pty Ltd, Nickaz Investments Box Hill Pty Ltd and Nickaz Investments 4 Pty Ltd, the shares are beneficially held by Mr Hadden, personally, or Mr Hadden and Ms Hadden personally. While he is the sole shareholder in Hadden Corporate Pty Ltd, Mr Hadden does not hold those shares beneficially.
7. Nickaz Money Place Pty Ltd, in which Mr Hadden and Mr Mah Chut were shareholders (not beneficially), has been deregistered. Mr Hadden formerly beneficially owned the entire issued share capital in ACN 133 271 968 Pty Ltd, formerly Nickaz Group Pty Ltd.
8. Nickaz Constructions did not hold any ownership interest in any of these entities. On the evidence, there were also trust arrangements in place but those arrangements and where the legal and beneficial interests lay were not explored. The ownership structure of the corporate entities in evidence was parallel in the sense that Mr Hadden, or Mr Hadden and Ms Nicole Hadden, owned beneficially the entire issued share capital in each company. Although there was a suggestion that each was a special purpose vehicle for the undertaking of particular projects, the only evidence as to how any such project might benefit Nickaz Constructions, as opposed to Mr Hadden as the beneficial owner of some or all of the issued share capital in those entities, lay in the inter-company loan arrangements described at paragraph 20 above. The evidence did not disclose the terms of those arrangements or any benefit accruing to Nickaz Constructions thereunder.
9. Mr Mah Chut, in his evidence, described Mr Hadden as ultimately his true client because he provided instructions and was, either directly or indirectly, the beneficiary of the services provided. The ownership structure of the Hadden Group corroborates this evidence, which I accept.
10. There was no express retainer agreement between any accounting practice operated by Mr Mah Chut and Ms Lim (including the plaintiff) and any person or entity on behalf of Mr Hadden or any member of the Hadden Group. Not only was there no written retainer, but neither party adduced any evidence of any conversation by which any agreement was reached as to the terms on which Inline (or its predecessor practices) would provide any accounting or bookkeeping services to Mr Hadden or any company or trust with which he was associated.
11. Rather, accountancy and bookkeeping services were provided by Inline and its predecessor practices on instructions from Mr Hadden, provided from time to time by telephone or by email. Inline (or its predecessors) rendered an invoice during or on conclusion of the provision of those services.

Invoicing practice

1. According to Mr Mah Chut, over the course of his dealing with the Hadden Group since 2002, many invoices had been issued to different members of the Hadden Group. No such invoices were in evidence, however, that period fell outside the date range of documents called for in a Notice to Produce issued to the plaintiff on 18 January 2023. Mr Mah Chut's evidence in this regard was not contradicted. Mr Mah Chut conceded that Mr Hadden had never personally paid Inline for services provided by it, and he could not recall whether any earlier iteration of the accountancy practice invoiced Mr Hadden personally for annual or ongoing services.
2. For the period 2018 to September 2020, other than the disputed invoices, the only invoices that had been issued and paid had been issued to Nickaz Constructions and a superannuation fund associated with Mr Hadden. Apart from the superannuation fund invoice, which was not in evidence, the invoices were: 1. An invoice of 19 August 2019 raised by CDMC Chartered Accountants and issued to Nickaz Constructions, which related to a number of accounting services for different entities within the Hadden Group. That invoice related to end of year compliance for the 2018 and 2019 financial years, the creation of a new entity, attending to payment arrangements with the ATO, ASIC requirements of group entities, Division 7A and FBT requirements, and attending to matters relevant to Mr Hadden's separation and divorce. It was in the sum of $30,852.80 (including GST). 2. Invoices raised by Inline and issued to Nickaz Constructions between August 2019 and June 2020 for the provision of bookkeeping services and subscriptions to Xero and Approval Max.
3. Inline's WIP was recorded in Xero. The identity of the client for each item of work was recorded in Xero by the person performing the work. Invoices were generated on that basis of that information, although the recipient of the invoice was not necessarily the client identified in Xero. Different Inline employees adopted different approaches as to how the identity of the entity for whom work was provided was recorded. Ms Lim, for example, appears to have recorded work for each entity within the Hadden Group by reference to that entity, whereas Mr Mah Chut was less precise, often describing the entity as Nickaz Constructions even when the work appeared to be for another entity within the Group. Mr Mah Chut reiterated, in his evidence, that these were matters of internal administrative convenience and were irrelevant to the identity of the party that was ultimately invoiced, provided that the invoice was a member of the Hadden Group.
4. Bookkeeping and subscription invoices for the Hadden Group in the period 2018 to 2020 were all issued to Nickaz Constructions. Mr Mah Chut drew a distinction between bookkeeping and accounting services, which were different lines of work. Inline continued to invoice Nickaz Constructions for these services even after the first tranche of disputed invoices was issued. Bookkeeping was invoiced monthly whereas accountancy services were invoiced on an ad hoc basis, whenever Inline saw fit. Mr Mah Chut said that it was up to him as to which member of the Group would be invoiced and there had never been any discussion as to whom those invoices would be issued.
5. Over the relevant period, Mr Mah Chut's charge out rate varied between $200 and $280 per hour. Ms Lim's charge out rate was $400 per hour. Rates varied according to the work that was being provided. Other staff were charged out at lower rates. There were no discussions between anyone from Inline and Mr Hadden or anyone else on his behalf or on behalf of the Hadden Group concerning charge out rates or any change to them.
6. In around October or November 2019, Mr Mah Chut, Ms Lim, Mr Hadden and Mr Hadden's solicitor attended a meeting where, according to Mr Hadden, a conversation to the following effect took place: Mah Chut: I am sorry to say that we have made some mistakes on your Division 7A loans, some of these as far back as 2012. Hadden: Well, what can be done? Lim: We'll do what we can and we won't charge of course. It is our mess and we have insurance to cover these things. Hadden: … and what about the inter-company loans? Lim: We'll fix those up as well.

1. Ms Lim did not give evidence and no explanation for her failure to do so was proffered. Mr Mah Chut did not dispute or qualify Mr Hadden's account, which I accept.
2. Mr Hadden engaged Wayne Fraser of Maxim Accounting as his accountant sometime after November 2019 but, according to the plaintiff's time records, it continued to perform work for the Hadden Group until the relationship between the parties finally broke down and Inline ceased providing services to Mr the Hadden Group in September 2020.
3. On 7 April 2021 external administrators were appointed to Nickaz Constructions and it went into liquidation on 3 June 2021. Mr Mah Chut denied being aware of any financial difficulty being experienced by Nickaz Constructions and no evidence suggested he was so aware at any stage. The first tranche of disputed invoices were issued more than 12 months before administrators were appointed to Nickaz Constructions.

The disputed invoices

1. The six disputed invoices and the work they reflect are addressed below. I find, as a fact, that the work as invoiced was performed in each case.

Invoice I001004

1. Invoice I001004 was issued by Inline to Mr Hadden on 31 March 2020 for work in respect of the verification of a Company Statement received from ASIC and the preparation of minutes and declarations of solvency for various members of the Hadden Group. According to the invoice, Nickaz Constructions was not among them. This work was performed on an annual and ongoing basis by Inline and its predecessors. According to Inline's WIP report, the work was performed between 9 January 2019 and 23 March 2020. The invoiced amount was $1,611.50 (including GST). The invoice has not been paid.

Invoice I001006

1. Invoice I001006 was issued by Inline to Mr Hadden on 31 March 2020 for work in respect of an ATO audit of Nickaz Constructions relating to fringe benefits tax returns and the provision of further information as requested by the ATO. According to the WIP report, the work was performed between 14 October 2019 and 27 March 2020. The invoiced amount was $3,489.20 (including GST). The invoice has not been paid.

Invoice I001007

1. Invoice I001007 was issued by Inline to Mr Hadden on 31 March 2020 for work in respect of a family law matter between Mr and Ms Hadden. In the context of their separation and eventual divorce, on 24 June 2019 Ms Hadden, by her solicitors, sought full and frank disclosure by Mr Hadden of his financial position, which required the assembly and production of Mr Hadden's financial records, including certain records relating to corporate members of the Hadden Group. According to the WIP report, the work was performed between 29 October 2019 and 10 March 2020. The invoiced amount for that period was $12,881.00 (including GST). The invoice has not been paid.

Invoice I001009

1. Invoice I001009 was issued by Inline to Mr Hadden on 31 March 2020 for work in respect of the preparation of financial statements for the Hadden group for financial years 2018 and 2019, as well as the preparation, lodgement and assessment of income tax returns for those years. According to the WIP report, the work was performed between 23 April 2019 and 1 April 2020 and was performed for Hadden Group entities. The invoiced amount was $27,674.90 (including GST). The invoice has not been paid.

Invoice I001010

1. Invoice I001010 was issued by Inline to Mr Hadden on 31 March 2020 for work in respect of corrective action required by the ATO in respect of Division 7A of the Income Tax Assessment Act 1936 (Cth), including further workings and calculations. According to the WIP report, the work was performed between 24 September 2019 and 27 March 2020. This work relates to the subject of the conversation at paragraph 33 above. The invoiced amount was $22,444.40 (including GST). The invoice has not been paid.

Invoice I001428

1. Invoice I001428 was issued by Inline to Mr Hadden on 2 September 2020 primarily for work in respect Mr Hadden's family law proceedings, however, some entries in the WIP report and invoice relate to the Division 7A issues referred to above. According to the WIP report, the invoiced work was performed between 28 April 2020 and 31 July 2020 and was performed for Mr Kazan, personally, and various corporate members of the Hadden Group, including Nickaz Constructions. About half of the time recorded in the WIP report relates to the Division 7A matters identified above in connection with Invoice I001010. The invoiced amount was $3,130.00 (including GST). The invoice has not been paid.

Consideration

1. As both parties contended that the relationship between Inline and a member or members of the Hadden Group for the provision of accountancy and bookkeeping services was governed by a contract, the critical questions, as identified at paragraph 15 above, are the identification of the correct party and the relevant contractual terms.
2. The existence of a contract between an accountant and a client for the provision of professional services may be implied or inferred: Townsend v Roussety & Co (WA) Pty Limited [2007] WASCA 40 at [77]. Although, in this case, there was no evidence of an offer and acceptance according to the classic taxonomy of contract law, I am satisfied that there was an agreement for the provision of professional accounting and bookkeeping services between the plaintiff and one or more persons or entities from the Hadden interests' camp.
3. Similarly, there can be no real doubt that the parties shared an intention to create legal relations and that consideration is established. In consideration for the performance of professional services, there was at least an implied obligation to pay for those services.
4. In my view, subject to the following, the elements of a contract for the provision of accountancy and bookkeeping services have been made out.

Who were the contracting parties?

1. The plaintiff says that Mr Hadden was a counterparty to the contract, such that, at the plaintiff's election, he could be invoiced for services provided to himself and to the Group. Mr Hadden says that he was not personally a party in the sense of being personally liable on the contract, but that Nickaz Constructions was so liable for services provided to it, to members of the Group and to Mr Hadden personally. Accordingly, the plaintiff has sued the wrong party.
2. The identity of contracting parties is to be determined objectively, by examining and construing any relevant documents in the factual matrix when they were created and ascertaining between whom the parties objectively intended to contract: Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299 at [28]. Where documents are silent or ambiguous (or, it may be added, non-existent), but there is undoubtedly a contract, the identity of the parties must be determined objectively from the surrounding circumstances: Air Tahiti Nui at [28], Barroora Pty Ltd v Provincial Insurance Ltd (1992) 26 NSWLR 170 at 174. See also the comments of Kourakis CJ in Davies v Apted [2013] SASCFC 92 at [4] and [5].
3. Post-contract conduct can be considered to ascertain the identities of the parties, as the issue is one of contractual formation, rather than construction: Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 at [59], Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509; [2012] VSCA 262 at [31]. The legal onus is on the party asserting that a particular party is, in fact and law, a party to the contract: Dennis Pethybridge at [59].
4. In the present circumstances, there was, by the time of the disputed invoices, a long history of dealings between Mr Mah Chut and Ms Lim, on the one hand, and Mr Hadden and entities associated with him, on the other. In the period before 2018, various entities were issued with invoices, which were paid. The parties agreed that there was no conversation from 2018 by which any existing billing practice would be modified and there was no evidence of any express agreement prior to that time as to which member (or members) of the Hadden Group would be liable to pay invoices raised by any of the accountancy practices operated by Mr Mah Chut and Ms Lim.
5. This practice and Mr Mah Chut's evidence that he determined which entity to invoice strongly indicate that Mr Hadden and the Hadden entities for which work was performed were each parties to the contract with Inline or its predecessor accountancy practices for the provision of accountancy services to them. Clearly there may be more than one contracting entity from amongst the Hadden Group. There is no reason why Mr Hadden cannot have personally been a party such that he may be liable to pay for services provided to him or to members of the Group in which he had an interest.
6. Mr Ratnam relies heavily on the 19 August 2019 CDMC Chartered Accountants invoice and bookkeeping invoices issued in the period 2018 to 2020 as supporting his contention that the objective circumstances indicate that Nickaz Constructions, or at any rate, not Mr Hadden, was liable to pay the invoices for accountancy services. He further contends that the benefit of the services primarily accrued to the corporate entities of the Group and that Mr Hadden was not solely the beneficiary of the services provided.
7. I am not satisfied that the 19 August CDMC Chartered Accountants invoice and the bookkeeping invoices establish the objective circumstances from which an inference can be drawn that Nickaz Constructions would be liable for all invoices for accountancy work done for members of the Hadden Group. A single accounting invoice over a period of two years is insufficient, in my view, to ground an inference that Nickaz Constructions was the only proper recipient of an invoice.
8. In my view, Mr Hadden was personally a party to the contract such that he could be issued with the six invoices in dispute. The objective circumstances that support this conclusion include Mr Mah Chut's evidence that various entities within the Group had been invoiced in the past. Moreover, only Mr Hadden appears to have had an interest in every company or trust that comprised the Hadden Group. The issued share capital of each entity was beneficially owned by Mr Hadden, either alone or together with Ms Hadden. On the other hand, Nickaz Constructions was neither a holding company nor subsidiary of any other corporate member of the group. Objectively, there would be no reason for Nickaz Constructions to be the sole party liable to pay for accountancy services provided to other companies in which it had no equity interest, still less services provided to Mr Hadden personally, as was the case with invoices I001007 and I001428.
9. Mr Mah Chut correctly described Mr Hadden as the ultimate beneficiary of all accountancy services as the businesses were his in a practical sense, both in terms of management and in terms of beneficial ownership. In circumstances where neither the creation of the contractual relationship nor the conduct of the relationship indicated that Nickaz Constructions was the sole contracting party on behalf of the Hadden Group, I am satisfied that at least Mr Hadden and Nickaz Constructions were parties to the contract with Inline and its predecessors.
10. It might also be noted that, as a matter of convenience, Inline could direct invoices to a single entity in respect of work done for that entity and others. The convenient course appears to have been adopted. It does not follow, however, that the single recipient of an invoice could not be Mr Hadden.
11. The routine work the subject of invoices I001009 and I001004, such as financial statements, solvency statements, preparation of company minutes and tax returns, was for various members of the Hadden Group, including but not limited to Nickaz Constructions. Similarly, the Division 7A work the subject of Invoice I001010 was for various members of the group, including Mr Hadden as the borrower. The family law work, the subject of invoices I001007 and I001428, was for Mr Hadden, personally in a direct sense, and not for the benefit of any corporate entity, including Nickaz Constructions. Invoice I001006 was for Nickaz Constructions.
12. As a practical matter, Inline directed all of these invoices to Mr Hadden in March and September 2020. I find that it was entitled to do so under the contract.

Terms of the agreement and charge out rates

1. As to the relevant terms of that agreement, Mr Marskell, relying on Taget, outlined entirely unobjectionable terms of the agreement the plaintiff says may be inferred or implied on the basis of the evidence of the relationship between the parties. Those terms are: 1. The client to provide instructions in a timely manner; 2. The client to pay invoices within a reasonable time; 3. The accountants to act in accordance with their instructions; 4. The accountants to perform work with due care, skill and diligence; and 5. The accountant to charge a reasonable fee.
2. While not expressly agreeing with Mr Marskell's formulation (which had, of course, not been pleaded due to the plaintiff's adoption of the short form procedure allowed under r 14.12 UCPR), Mr Ratnam did not proffer any alternative formulation or contend that any of those terms would fall foul of Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, or fail to meet the tests in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266.
3. On the basis of the evidence of the history of the relationship between the plaintiff and its predecessors and the Hadden interests, I accept that the above terms formed the practical basis of their relationship and I find a contract to the effect outlined above.
4. The rates charged by Inline, while not the subject of express agreement, appear reasonable for professional accountancy services. The Defence does not assert that the rates are unreasonable, merely that they were not expressly agreed. I do not find that there was a term requiring express agreement. I further find that the rates were within the obligation set out in paragraph 60(5) above.

Breach

1. There was no challenge by the defendant, in the context of the contract claim, to the adequacy of the performance by the plaintiff of the work it was retained to perform. This was in issue on the quantum meruit claim but does not arise on the facts as I have found them.
2. Mr Hadden contended, by way of defence, that he was not liable because the work was not solely for his benefit. For the reasons set out above, I have not accepted that submission. Further, he contended that he was not liable because an hourly rate had not been agreed. On the view I have taken that the contractual obligation was to pay a reasonable sum for the services and my finding that the plaintiff's charge out rates were reasonable, I also reject that submission.
3. I find that the failure of Mr Hadden to pay the disputed invoices was in breach of the contract, as I have found it, and that he is indebted to the plaintiff in the sum claimed.

Quantum meruit claim

1. In light of the parties' approach to the contract claim and my finding that there was a contract between Inline and Mr Hadden for the provision of accountancy services, which was breached by Mr Hadden's failure to pay the six disputed invoices, there appears to be no utility in resolving the alternative claim on the quantum meruit. In my view, the question of quantum meruit does not, and cannot, arise because of my finding as a fact that the parties' relationship was governed by a valid and binding contract.

Conclusion, orders and costs

1. The plaintiff has succeeded and is entitled to payment by the defendant of the sum of $71,544.00, together with interest and costs. Costs ordinarily follow the event and I see no reason to depart from that presumptive position in this case. I will order the defendant to pay the plaintiff's costs as agreed or assessed on the ordinary basis but will also grant the parties leave to apply for any variation to that costs order within seven days of the date of these reasons.
2. I have accepted the plaintiff's interest calculation of $2,166.45 to the date of commencement of the proceedings, and together with a further $8.04 per day from the date of commencement to the date of this judgment (being 774 days). That calculation yields interest of $2,166.45 + $6,222.96, which equals $8,389.41.
3. The orders of the Court are therefore:
4. Judgment for the plaintiff in the sum of $79,933.41 (inclusive of interest).
5. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis as agreed or assessed. 1. Grant liberty to the parties to apply to vary order (2) herein, by email to my associate identifying the order they seek, within 7 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2023