Lewis v Lewis [2022] QSC 208

PARTNERSHIP - DISSOLUTION AND WINDING UP - DISSOLUTION BY THE COURT - GENERALLY - where the parties are brothers - where the parties were equal partners in a partnership - where the plaintiff seeks a declaration that the partnership was dissolved on or about 21 January 2019 in accordance with ss 42 and 47 of the Partnership Act 1891 (Qld) - where it is uncontentious that the Court ought to make this declaration - where the defendant brings a counterclaim for payment of unpaid wages, together with interest - whether unpaid wages and interest ought to be recognised and discharged in any final settlement of accounts before distribution of any surplus

CONTRACTS - PARTICULAR PARTIES - PARTNERS -where the defendant was employed by the partnership - where there was never a written contract or agreement setting out the terms of the defendant's employment by the partnership or his remuneration - whether the parties entered into verbal agreements as to the defendant's wages - whether, if established, verbal terms should be implied into those agreements - whether, if established, one of the agreements was abandoned or superseded - whether, if established, the defendant was paid in accordance with the agreements - whether, if established, the defendant is entitled to remuneration under the agreements

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - FORM OF PLEADING - STATEMENT OF MATERIAL FACTS ETC. NOT EVIDENCE - where the defendant gave evidence about a conversation between the parties - where the defendant had not pleaded this conversation - whether the purported conversation was a material fact that had to pleaded by the defendant - whether the purported conversation was a matter that if not stated specifically may take the plaintiff by surprise - whether the defendant failed to comply with rr 149(1)(b) and (c) of the Uniform Civil Procedure Rules 1999 (Qld)

LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS - SIMPLE CONTRACTS, QUASI CONTRACTS AND TORTS - GENERALLY - where the plaintiff's solicitors wrote to the defendant's solicitors raising that the defendant's counterclaim was time-barred by the operation of s 10(1)(a) of the Limitations of Actions Act 1974 (Qld) - where the defendant then filed an amended defence and counterclaim - whether the earlier counterclaim was time-barred - whether the amended counterclaim is time-barred

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - TIME FOR AMENDMENT - where the defendant filed a further amended defence and second further amended counterclaim - where the defendant made these amendments after a request for a trial date was filed - where the defendant did not seek leave to make the amendments - whether the defendant made these amendments after a relevant period of limitation had ended - whether the amendments constituted pleading of a new cause of action - whether the defendant was required to seek leave to sanction the amendment of his pleading

Limitations of Actions Act 1974 (Qld) s 10(1)(a)

Partnership Act 1891 (Qld), s 27(1), 35, s 42, s 47

Uniform Civil Procedure Rules 1999 (Qld) r 149(1)(b), r 149(1)(c), 376(4), r 378

ACN 070 037 599 Pty Ltd v Larvik Pty Ltd [2008] QCA 416, cited

Byrne v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24, cited

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24, cited

Diransson Pty Ltd v Hassan El Dirani [2019] NSWSC 617, cited

Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15, cited

Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64, cited

John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451, cited

• [1] Richard and Robert Lewis are brothers. Richard is the elder by four years. For many years their late father, Harold Lewis, ran cattle on a property at Emerald known as "Wilga Downs". On 10 October 1981, when Richard and Robert were young men aged 24 and 20 years respectively, their father died after suffering a heart attack at a bull sale. The two brothers then inherited Wilga Downs and another farm property their father had owned named "Trafalgar". Trafalgar was a property of approximately 1,000 acres. Half of the property was scrub, and the other half was used for irrigation farming, leased under share farming arrangements for the purpose of growing crops.
• [2] Richard and Robert returned to Emerald for their father's funeral and to attend to necessary matters following his death. Whilst in Emerald, they agreed to hire a man named Gavin Mestrez as an onsite manager for the day-to-day management of the cattle business at Wilga Downs. This was an immediate necessity, as someone had to be present to look after the cattle. After the funeral, Richard returned to Brisbane, but Robert remained in Emerald for a time to oversee the running of the Trafalgar property.
• [3] In February 1982, Robert left Australia to go backpacking in Europe. Whilst he was away, Richard assisted with the administration of their late father's estate and the necessary management and running of the farm properties. Robert returned to Australia in October 1982.
• [4] Upon Robert's return, Richard and Robert decided they would continue to run the farming business on the two properties but would retain Mr Mestrez at Wilga Downs. Thus, "R.J. & R.H. Lewis" (the "Partnership") was born. Richard and Robert were equal partners in the business. The Partnership was never formally documented in any written agreement.
• [5] The decision to continue running the farming business was by no means a certainty. Both young men had no formal training or qualifications in farming. Although they had each worked on the property from time to time when they were younger, they both had limited practical experience. Each had since left Emerald to study science degrees at university, Richard undertaking a PhD and Robert having commenced his undergraduate degree but having deferred his studies shortly after his father's death.
• [6] After discussing the matter with Richard, Robert agreed to move back to Emerald to oversee the farming business for the Partnership. Richard remained at university and eventually completed his doctorate.

(a) whether Robert received remuneration in relation to the period between 1 November 1982 to 30 June 1988. This includes issues as to: disputed facts regarding conversation between the parties; whether, on the facts, the parties entered into the "1982-1988 Wages Agreement" (as alleged by Robert) and the effects of certain payments and accounting records of the Partnership;

(b) whether, if established, certain terms should be implied into the 1982-1988 Wages Agreement (namely, the "Reasonable Sum Implied Term", the "Lump Sum Interest Implied Term", and the "Interest Implied Term");

(c) whether the parties entered into the "1989 Wages Agreement" (as alleged by Robert), which turns on disputed facts;

(d) whether, if the 1989 Wages Agreement is established, Robert is entitled to wages for the periods from 1 January 2013 to 30 September 2013 and 1 July 2017 to 30 September 2018, based on that alleged agreement (which includes controversial issues as the work the parties undertook for the Partnership);

(e) whether, if established, the 1989 Wages Agreement was abandoned or superseded;

(f) even if Robert establishes an entitlement to remuneration, whether his claim for remuneration is time-barred by the operation of s 10(1)(a) of the Limitations of Actions Act 1974 (Qld) in respect of the periods from 1 November 1982 to 30 June 1988 and 1 January 2013 to 30 September 2013; and

(g) the quantum of remuneration (if the above issues are resolved in favour of Robert).

• [18] In order to determine these matters, it is first necessary to set out the material evidence in respect of key events throughout the life of the Partnership and of the purported conversations had over time between Robert and Richard about Robert being paid by the Partnership for his work.

• [19] Robert was the first of the two brothers to find out about the death of their father. On or about 11 October 1981, Robert drove to Byron Bay to tell Richard. The two brothers had a discussion there about what was to be done with the farms. They agreed that Wilga Downs could not be left without someone to run it because the cattle needed to be resupplied. They also discussed which of them should travel to Emerald to attend to management of the farm properties.
• [20] Robert gave evidence that Richard told him that his (Richard's) degree was more important, so Robert had to defer his studies and go up to Emerald to look after the property.
• [21] Richard denied that suggestion and gave evidence that they discussed different options, including whether Robert could go up and that Robert had agreed to do so.
• [22] It is not necessary that I resolve any factual dispute with respect to this conversation as it is not the basis for Robert's Remuneration Claim and it is uncontentious that Robert deferred his studies and travelled to Emerald to attend to the farming business.
• [23] Both brothers went to Emerald for their father's funeral and, whilst there, they cleaned up the Wilga Downs property and arranged to hire Mr Mestrez to be the onsite manager at that property. When Mr Mestrez commenced that role in late 1981 or early 1982, Robert returned back to Brisbane.
• [24] From February to October 1982, Robert travelled overseas and went backpacking in Europe. Whilst he was away, Richard oversaw Trafalgar and Wilga Downs (with the assistance of Mr Mestrez). The share farming arrangement at Trafalgar continued, with Merv Williams and Robert Gnech each leasing portions of the property to grow crops.
• [25] In about May 1982, Richard purchased a residential investment property at 127 Birdwood Terrace, Toowong. The property was purchased for the Partnership, in the names of both brothers.
• [26] While Robert was overseas, Richard wrote him a letter (the "Yates Letter").[1] In that letter, Richard advised Robert that Merv Williams had decided not to continue his lease and that things were "...pretty grim out there with poor cotton yields and low crop prices..." Richard also wrote:

"I think now would be a good time to start doing some farming ourselves. The next crop to be planted is soya beans which need to be planted late December. I might contract some deep ripping out but you will have to come back in early November so we can buy a tractor (maybe we can use the International to start with), a scarifier, offset plough, planters for wheat and soya beans etc. ... Have you purchased your ticket? You should have by now. If not, purchase it A.S.A.P. and for early November or late October. It is very important if you want to start farming that you come back this early. We really haven't got much choice. You could live in the house on the irrig farm which should be finished by late November..."

• [27] The house to be built on the irrigation farm was a Logan modular kit home which had previously been purchased by Harold Lewis but had been left unassembled on the Trafalgar property. The home was later erected by a man named Tony O'Brien. Richard at first, and then later Robert, arranged for the necessary cleaning, finishing and connection of utilities for the home.
• [28] Robert returned to Australia on 9 October 1982. It was around this time that the brothers entered into the Partnership to operate the farming business at Trafalgar and Wilga Downs.

• [29] When Robert returned, Richard collected him from the airport and drove him to the Birdwood Terrace house. During that trip, the pair had a conversation about what was to happen with the properties. The contents of that conversation are in dispute.
• [30] Richard's evidence was that they talked about the management of Trafalgar and how they should farm it. Richard's recollection was that Robert was keen to farm and that when he asked Robert if he was still interested in farming, Robert said "yes". Richard recalled saying to Robert that he would get paid for the work and Robert agreed.[2]
• [31] Robert's evidence about this conversation was that Richard told him there was no one to farm part of Trafalgar, that it was a good time for them to start farming and that he should continue to defer his studies and go to Emerald to look after the farm.[3] Robert recalled that after a few days he agreed, adding that he thought that over time Richard had convinced him to go up there.[4] Robert contends this conversation amounted to an oral agreement that formed a term of the agreement of Partnership, whereby he agreed to defer his studies and move to Emerald in order to run and farm both the Trafalgar and Wilga Downs properties on behalf of Richard and himself as there was no one else to do so.[5]
• [32] Richard denied telling Robert that he had to defer his studies and maintained that he thought Robert had returned from Europe at this time as he wanted to farm.[6]
• [33] In support of his evidence, Robert identified a draft of a letter he had written to "Aunty Betty", which he described as containing a contemporaneous record of the car conversation.[7] His evidence was that he wrote the draft letter just after he arrived in Emerald in October 1982, probably seven to ten days after returning from overseas. The draft letter relevantly includes the following:

"Richard and a few friends met me at the airport and Richard then proceeded to give me the news. Well to cut things short he said 'you will have to work on the farm.' So as you may have guessed I'm in Emerald... I thought it would have been so different from Europe but it's all life and you really have to try to make the most of it no matter how indifferent one may feel."

• [34] Robert gave evidence that he did not actually send the letter, he just kept it.[8]
• [35] Whilst the draft letter to Aunty Betty may be some evidence of Robert's state of mind or feelings at the time it was written, I do not consider the contents of the draft letter to be particularly probative of what was actually discussed between Richard and Robert in the car conversation. The draft letter was never sent. It is a brief, undetailed and general description of the car conversation and Robert's subsequent move to Emerald. It does not proport to be a verbatim note of what was discussed.
• [36] In any event, there is no dispute that Robert agreed to move back to Emerald and manage the farm business for the Partnership, which came into existence at or about this time.

• [37] In addition to inheriting the farm properties, Richard and Robert also inherited a residential property at Theresa Street, Emerald. In 1982, the property was leased and occupied by a tenant. Because the Theresa Street property was tenanted and the Logan home had not yet been erected on the Trafalgar property, Robert lived with the brothers' grandmother for a time when he first returned to Emerald.
• [38] Richard gave evidence that in late 1982, he and Robert had a discussion at the front fence of the Theresa Street property. Richard stated that he asked Robert to confirm if he wanted to farm and Robert said that he did. Richard then said to him that he would get paid a wage of $16,000 a year, which was similar to that being paid to Mr Mestrez for managing the property at Wilga Downs, to which Robert agreed. Richard gave further evidence that they also agreed that Robert would live in the Theresa Street property, and have his car, electricity and phone expenses covered, but would otherwise cover his own day-to-day living expenses. According to Richard, it was after this conversation that Robert began managing the Trafalgar property.[9]
• [39] Robert denied having any such conversation at Theresa Street in 1982.[10]
• [40] Robert's evidence was that shortly after he arrived back at Emerald and started working for the Partnership, he asked Richard to start paying him wages, or to organise how he could be paid wages and that Richard told him, "...I couldn't be paid wages because a partner can't be paid a wage, and I had to live off drawings."[11]
• [41] Richard denied saying this to Robert.[12]
• [42] Objection was taken to Robert's evidence of this conversation on the basis that it had not been pleaded. I allowed the question and indicated I would deal with the issue of the admissibility of this evidence following closing submissions.[13] I will return to this issue later.
• [43] Robert described the work he performed for the Partnership for the period 1 November 1982 to 30 June 1988, in respect of both the Trafalgar and Wilga Downs properties, as follows:

I was the farm manager on Trafalgar at that point in time, and also did the upper management of Wilga Downs and Trafalgar, which was basically running the Partnership, doing admin, legals, accounting, dealing with the accountant and paying bills, paying wages, organising - negotiating employees' wages, dealing with government departments, doing census each year, doing the insurance reviews every year for our equipment and our buildings, generally running the businesses... I did tractor driving and cotton harvesting, planting crops, planning which paddocks we were going to plant and, depending on - and which crops we were going to plant, depending on the market prices, and selling all the - all the produce, all the [indistinct] crops and the cotton, marketing those crops.[14]

• [44] Richard confirmed in his evidence that when Robert started to run the Trafalgar farm, he also took over the day-to-day management of the financial accounts and returns of the Partnership and paying the bills.[15]

• [45] By 1983, Robert was living in the house that had since been erected on Trafalgar.
• [46] Richard gave evidence that in early 1983 he had a further conversation with Robert about farming. Richard stated that Robert had had a good crop of soya bean that year and Richard had asked him if he liked farming. Robert told him that he wanted to keep farming.[16]
• [47] Although Robert's case was opened on the basis that he would give evidence "...that in or about July of 1993 (sic. 1983) after the harvesting of the soybean crop for that year, Richard asked him if he would like to continue farming to which Robert responded that, given he had missed re-enrolling at university for that year, he would continue on",[17] Robert did not give such evidence. The proposition was however put to Richard in cross-examination, which he denied, stating, "No, just said that he liked farming."[18]

• [48] Robert gave evidence he had a conversation with Richard in late 1989 about his wages. Robert stated that at that time he had not been paid wages for a long time and it had got to the point where he was going to leave if he was not paid a wage. He said he told Richard he needed to be paid a wage for the work he had been doing on the farms or he was going to move back to Brisbane and find a job somewhere else.[19] He further said Richard agreed he should be paid a wage for the work he was doing. Robert gave further evidence that they then discussed the business not being able to afford to pay Robert at the time and Robert suggested it could be put "on the books" as a loan to the business, with interest being charged at halfway between the bank's term deposit rate and their overdraft rate. According to Robert, he proposed a wage amount of $40,000 (per annum), to which Richard agreed.[20]
• [49] This alleged conversation is referred to in the pleadings as the "Defendant's Wages Discussion", which, on Robert's case, culminated in he and Robert entering into the "1989 Wages Agreement".[21]
• [50] Robert gave evidence this conversation occurred over the telephone and he made a diary entry about it, which he identified.[22] Robert also identified some earlier diary entries he had made as notes to himself about seeing the accountant to work out how he could be paid wages and for the amount owing to him to be recorded on the financial statements.[23]
• [51] Robert identified subsequent diary notes, which he stated were made by him about his unpaid wages as notes to himself.[24]
• [52] Robert identified another diary note, dated 5 March 1990, as a note of a further conversation he had with Richard about his wages for the period 1983 to 1988.[25] Objection was taken to evidence of this conversation as it had not been pleaded. I allowed the evidence to be given, but again indicated I would consider the matter further in due course. I will return to the question of the admissibility of this evidence later.[26]
• [53] Robert stated that, in accordance with the , he was paid by the Partnership after 1989 by way of a loan that accumulated, as the business was not able to afford to pay him. He stated that he was paid interest on the loan and the amounts owing to him were also recorded as wages to a partner, but he was not actually paid those amounts at the time. He also stated there was no agreement as to what wage he might be paid by the Partnership for multiple years into the future and that he and Richard would discuss what he was to be paid for a given year when a change was going to be made.

• [59] Richard gave further evidence that the unresolved unpaid wages discussion he had had with Robert in late 1989 or early 1990 was resolved in a subsequent discussion in around April 1991. According to Richard, this conversation occurred at the Theresa Street property. Richard stated that on that occasion Robert had mail for him which he brought to Theresa Street. Richard further stated that the pair then went down to one of the local pubs at Emerald and had lunch where they discussed the matter of Robert's unpaid wages.
• [60] Richard recalled Robert said he should be paid $30,000 a year for wages. Richard said he responded that he was happy for $30,000 per year to apply for the 1991 financial year, but for the previous period in the 1980s he suggested an average wage of $20,000 a year, and that the debt owing to Robert would be paid back each year by $20,000 a year over six payments. Richard gave further evidence he told Robert that he deserved to be paid interest over that period and after doing a quick calculation he suggested an amount of around $25,000 might be appropriate for past wages and that Robert would probably get another $25,000 in future wages with interest. Richard stated he suggested the accountant would finally determine what interest should be paid. Richard further stated he told Robert that he had done quite a lot of work for the Partnership while Robert was overseas and the first year of Robert's wages should be "off-set" on account of Richard's contributions. Richard said Robert agreed.[41]
• [61] On Richard's case, this conversation was where the agreement was reached as to Robert's entitlement to wages, together with interest, for the past period and for his wages going forward.[42]
• [62] Richard identified some handwritten notes that he had made on the back of the front page of the mail that he had opened when it was delivered to him by Robert at the Theresa Street property, as notes made by him whilst he and Robert were talking over lunch at the pub about Robert's unpaid wages.[43]
• [63] Richard gave further evidence that, following the discussion at the pub, he and Robert discussed the matter again and there was a change in the arrangement. According to Richard, this further discussion occurred in the backyard of the Theresa Street property in late 1991. Richard stated that at that meeting Robert said he had talked to the accountant, who had suggested future interest should be charged at a rate halfway between their current borrowing rate and their deposit rate so that it would be fair for both sides. Richard gave evidence Robert said that he was doing the payments for his unpaid wages starting one year early, commencing in the 1989 financial year. Richard gave further evidence that Robert said he was not going to take the unpaid wages in hand but was going to put it in a loan owed him.

• [74] In 1996 the Partnership recorded a net profit of $126,537.74, which prompted the establishment of the Trust the following year.[58] In his evidence, Robert was taken to page 9 of the R.J. & R.H. Lewis profit and loss account for the year ended 30 June 1996,[59] where it was recorded under the heading "Distribution to Partners" that each of Richard and Robert received $63,268.87 (totalling the profit amount of $126,537.74). Robert stated neither amount was paid to them and the profit amounts were put back into the business to cover previous debts in order to run the business.[60]

• [75] Robert gave evidence that when the Trust was established in 1997, it took over the irrigation farming side of the business at Trafalgar. [61] Robert stated that he remained in Emerald running the businesses but then started being paid by both R & R Lewis Enterprises Pty Ltd, the Trustee on behalf of the Trust, and by the Partnership. He gave evidence that thereafter he was paid by both entities to run the businesses in Emerald.[62]
• [76] Richard gave evidence that from the point the trust was established, Robert was working on Trafalgar and it was the Trustee that employed him on behalf of the trust.[63]

• [77] The residential property at Birdwood Terrace was sold in 2004. Robert gave evidence that the Partnership declared a profit for the 2004 year, mainly as a result of the sale of the Birdwood Terrace property. He gave further evidence that the sale proceeds were paid back into the business. Robert was shown the financial report for the Partnership for the year ended 30 June 2004, which had been prepared by the Partnership's then accountants.[64] Robert gave evidence the profit amount recorded on page 10 of the report of $484,600.77 largely reflected the sale of the Birdwood Terrace property. Robert gave further evidence the figure of $242,300.39 recorded on page 6 of the document under the item "Partners' Funds", being a recorded profit for Robert, was not received by him but instead went back into the business.[65] Robert stated that he understood the figures under "Total Partners' Funds" showed that the funds from the sale of the Birdwood Terrace property had gone in to reduce the Partnership losses or drawings and to reduce the negative equity in the Partnership from the previous year.
• [78] In 2000, Robert bought Richard's share of the Theresa Street property. In 2004, Robert sold the block of land at Theresa Street for about $250,000 and the house was removed and relocated to Trafalgar for Robert and his family to live in.[66]
• [79] Richard gave evidence that at about this time he and Robert discussed the arrangement of how Robert would be paid, and Robert had said he should be paid $60,000 a year as that was what managers in the area were being paid. Robert also asked to be paid an additional $10,000 for doing the book-keeping for both Trafalgar and Wilga Downs. Richard said he agreed to this arrangement as he had no other choice.[67]
• [80] Thereafter, Robert's wife, Kris Lewis, assisted with the bookkeeping for the Partnership.

• [81] In February 2006, Robert suffered a heart attack. As a result, he moved from Emerald to Palmwoods on the Sunshine Coast. After that time, he was not doing much "hands-on" work for the businesses anymore, except for when he went to Emerald.[68] Robert described the work that he continued to do for the Partnership from 2006 onwards as:

Still doing the upper management of both properties and doing all the admin, dealing with the accountants, lawyers, government departments, insurance. All the general administration of the business at that point in time. Paying wages.[69]

• [82] Richard disputed the nature and extent of the work Robert performed for the business after his heart attack. Richard's evidence was that Robert could no longer manage Trafalgar and that he instead appointed a series of managers to do the day-to-day management after that period, but he still continued to take a wage of $40,000 a year.[70]
• [83] It is to be noted that various on-site managers were employed at different times to manage the farm properties. From 1989, John Winks was the on-site manager for Trafalgar. In 2000, George Sypher took over the role and remained there until 2003. John Tompson managed Trafalgar from 2006 to 2007 and then again from mid-2013 to July 2018. Jamie Baldwin was appointed to the role in 2010.
• [84] Gavin Mestrez remained as the onsite manager for Wilga Downs from about late 1982 until 2013.

2008 - "Equalisation of accounts"[71]

• [85] Robert gave evidence that the amounts owing to him for wages that were accrued as a loan by him to the Partnership for the period from 1989 onwards were finalised and "evened out in 2008 by the accountant when he totalled up our books". Robert further stated he had taken money out of the loan account at different times and even put some money back into the business as well.[72]
• [86] The balance sheet for the Partnership as at 30 June 2008 records a nil balance against the liability for loans owed to each of Richard and Robert.[73] In contrast, the financial statements for the year ended 30 June 2007 recorded liabilities of $475,833.87, for a loan owing to Robert, and $85,506.85, for a loan owing to Richard.[74]
• [87] Richard's case is that Robert was paid for his claimed wages for the 1982-1988 period because, by 30 June 2008, Robert's loan to the Partnership (which had included accrued amounts representing Robert's wages for both the 1982 to 1988 period and from 1989 onwards) was fully paid. In support of that contention, Richard points to the fact that Robert admitted to having received the amounts set out in each of the "Wages Schedule", the "Distribution Schedule" and the "Loan Schedule" annexed to Richard's Answer to Robert's Second Further Amended Counterclaim. [75]
• [88] In cross-examination, Robert did not accept that all loans owed to him by the Partnership were settled in full in 2008. Robert drew a distinction between the "on the books" Partnership loan to him for his wages from 1989 onwards and the "off the books" Partnership loan to him for his unpaid wages from the earlier period 1982 to 1988.[76] Robert maintained that it was only the "on the books" loan that had been settled in 2008.

2012 - Partnership issues and Robert's "resignation"

• [89] Richard gave evidence that towards the end of 2012, he discussed the management of the Partnership and farming business with Robert at Robert's Palmwoods house. He stated he was very concerned at the time as they had a debt of over $1.5 million and he wanted to reduce the interest they were paying. He further stated he suggested to Robert neither of them should take wages going forward but both of them should put equal effort into the farming, which would mean Richard would increase his effort into the farm.[77]
• [90] Richard gave further evidence that following that discussion, he and Robert went to Suncorp bank to try to negotiate a better interest rate than what they were presently being charged. He stated this was around October 2012. According to Richard, they met with the account manager and during the course of the meeting, after Richard stated that neither of them would be taking a wage, Robert said, "No I don't agree to that. I'm still taking a wage."[78]
• [91] Notwithstanding this purported statement by Robert, it is apparent from his 2013 wages claim that he claims an entitlement to unpaid wages for the period from 1 January to 30 September 2013, pursuant to the terms of the 1989 Wages Agreement, for work he contends he did for the Partnership during that period.
• [92] By late 2012, there were various matters causing tension between Richard and Robert. The Partnership was making losses and was significantly in debt.[79] Richard did not consider Robert was able to satisfactorily explain why they were making such large losses. Richard wanted the accounts of the business to be audited and wanted an independent bookkeeper employed.[80] Richard also suspected Mr Mestrez had been stealing from the Partnership and suggested to Robert that action should be taken to investigate the matter. Robert did not necessarily agree with Richard's views on these various matters.
• [93] It is to be noted that at that point in time Kris Lewis was still providing bookkeeping services to the Partnership. Richard gave evidence that she stopped performing that role in around September 2013, and he took over the books.[81]
• [94] On 25 December 2012, Robert sent Richard an email in which he informed Richard he was resigning from running the business.

"I am surprised at the haste with which you have tendered your resignation from your paid position managing our properties on Xmas day. While this was made without discussion, I do believe it is for the best as it will ensure that we now both equally contribute to running both farms with equal accountability starting from today. I am up for the challenge and trust you are as well..."

• [97] In his evidence, Robert stated he understood Richard's email "... was saying that I'm not actually resigning. We had to share the work from that point on." He further stated that he continued to do the work he had previously been doing because Richard had not taken up any of the work after that period.[85]
• [98] Richard disputes the nature and extent of the work Robert did for the business from this point onwards. Richard gave evidence that he became heavily involved and the amount of work he was doing went up considerably. He further stated that whilst Robert did some work in 2013, John Tompson had been engaged by that stage and he was managing both properties.[86]

• [99] Robert gave evidence that despite the exchange of emails on Christmas Day 2012, he continued to work as he had previously been doing from 1 January 2013 onwards until 30 September 2013. He gave evidence the work he was doing was:

Still the overall, general running of the Partnership at that point of time, paying wages, paying bills, preparing stuff for the information for the accountant and the bookkeeper, dealing with the government departments again, legal, accounting, and I picked cotton in that 2013 year as well.[87]

• [100] Robert stated he was not paid for the work he did for the Partnership during that period.[88]
• [101] By his counterclaim, Robert claims an entitlement to reasonable remuneration for his oversight and management of the Partnership properties for the period 1 January 2013 to 30 September 2013 in the sum of $30,000, being three quarters of the annual remuneration previously paid to him for his oversight and management properties as at December 2012. Robert contends that this entitlement arises from the 1989 Wages Agreement.[89] Robert further claims that he is entitled to interest on the unpaid wages for the period 1 January to 30 September 2013 at a reasonable rate of 9.6375%.[90] During the course of the trial, Robert's counsel indicated that the interest rate of 9.6375% was not maintained for any of the periods concerned and instead pressed Robert's claim for interest in accordance with a schedule provided during closing submissions.[91]
• [102] Richard disputes Robert's claim for an entitlement to wages for this period. Richard's evidence was that, consistent with his 25 December 2012 email, Robert stepped down from his roles and he took over in relation to both properties.[92]
• [103] Richard gave further evidence that John Tompson replaced Gavin Mestrez as manager in 2013. He further stated that Robert's involvement then in the management of the farm at Trafalgar was in the nature of giving advice to John Tompson and picking crops for the 2013 year.[93]
• [104] Richard further stated that despite Robert stepping down, when he checked the accounts in early 2013, he discovered Robert was still taking a wage (a monthly wage equivalent to a salary of $40,000 a year) after he said that he would not.[94] This was a point of contention between the brothers.

• [105] Sometime in 2013, Malcolm Elks became the accountant for the Partnership. As a result of the deteriorating relationship between Richard and Robert, commencing on 25 September 2013 and continuing through until 26 June 2015, Mr Elks facilitated a series of meetings between the pair to discuss their partnership affairs and to attempt to resolve various disputes.[95]
• [106] Richard gave evidence that the first of these meetings occurred shortly after 24 September 2013, on which date he had sent an email to Robert and his wife Kris Lewis raising a number of complaints and concerns and advising of a scheduled meeting with Mr Elks.[96] Amongst the concerns raised by Richard in his email was inadequate accounting, the need for an independent bookkeeper to be appointed, the further wages being drawn by Robert since his resignation (that Richard claimed appeared to be unreasonable and unjustified), and a growing debt problem for the Partnership.
• [107] Richard identified an email chain between himself, Robert, Malcolm Elks and others as a series of emails that were exchanged following the meeting with Malcolm Elks on 25 September 2013.[97] During the course of the mail exchange, Richard and Robert made various assertions, including by Richard that Robert had taken unauthorised wages after his resignation. For his part, Robert denied that assertion in the email chain stating:[98]

"As discussed with you previously I agreed to stop taking wages once the workload became equal. From the date of my resignation from the Trust until now you have not attempted to take over any of the general running of the businesses and it has been left to me so therefore I feel I am entitled to keep the small amount of wages I have been paid since my resignation to be fair restitution for my work done and I will not accept your demand of this to be taken as drawings."

• [108] Richard identified a further email of 31 October 2013 which he sent to Robert and Mr Elks ahead of a scheduled meeting to be held on 1 November 2013.[99] Richard gave evidence that the email set out his expectations going into the scheduled meeting. He gave further evidence that during the course of the meeting there were discussions about the wages paid to Robert from January 2013 and that it was discussed that Robert would take the wages by way of an adjustment to the loan (owing to him). Richard stated there was also discussion in that meeting about Robert's claim to be paid $30,000 for cotton picking for that year, which Richard considered was unjustified and overpriced.[100]
• [109] Richard identified a copy of the minutes of the 1 November 2013 meeting and confirmed they were an accurate record of the meeting.[101]
• [110] The 1 November 2013 minutes record at 7(g):

"[T]here was discussion in relation to Robert's wages being taken as personal drawings from January 2013. It was indicated by M.E. that according to the MYOB records, the amount of wages for Robert between 1 January and 30 June 2013 was $13,842. It was resolved to delay discussion of Robert's wages until the partners' timesheets had been tabled and considered."

• [111] Richard further identified minutes of a subsequent meeting of the Partnership on 29 November 2013 and confirmed they were an accurate record of what was discussed at the meeting.[102] Richard stated that he recalled the issue of Robert's wages being raised again at that meeting and that Robert agreed to take them as personal drawings. He further stated that the issue of Robert's invoice for cotton picking was discussed again and a new figure was proposed.[103] The minutes of the 29 November 2013 meeting record that there had been considerable discussion between Richard and Robert in relation to Robert's wages since 1 January 2013 and that Robert agreed to reduce his wages by the net amount received, being $12,078. The minutes also record that in relation to the cotton-picking invoice, whilst Robert's invoices totalled $30,000, Richard maintained that the invoices should be $17,800, and that they eventually agreed to split the difference so that Robert should be paid $23,900 plus GST. The minutes further record that it was resolved that rather than paying the two adjustments (to wages and the cotton-picking invoices) in cash that they would be made against Robert's drawings and the difference between Richard's and Robert's loan accounts in the two entities would attract interest at the rate of 5% after 30 June 2013.[104]
• [112] Richard identified further minutes of a meeting of the Partnership held on 26 June 2015 as an accurate record of what was said at the meeting.[105] At point 6, under the heading "General Business", the minutes record the following:

"a) The partners undertook not to draw any further personal drawings or repayment of loans from the business before the next meeting on 16 October.

Both partners expressed the desire to include in the minutes a submission concerning their relationship with each other & the conduct of the Partnership business, Richard's submission is attached.

Richard confirmed the $30,000 drawn by him out of the bank account and later matched with a draw to Robert will not be paid back."

• [113] Richard gave evidence that in 2015, at about the time of the meeting, they had made profits in the Partnership and that he and Robert each received a distribution of $75,000.[106] He gave further evidence that in 2017, both he and Robert received payments of $150,000 each in respect of repayment of loans to the Partnership.

21 September 2015 - Suggested dissolution of the Partnership

• [114] By letter dated 21 September 2015,[107] Robert's solicitors wrote to Richard, advising:

"We are instructed there have been a number of issues with respect to the Partnership business for a number of years and that the relationship between you and our client has broken down to such an extent that it is no longer reasonable or possible for each of you to remain in business/partnership."

• [115] The solicitors' letter further advised that Robert "...would like to dissolve the Partnership on an amicable basis" and thereafter set out a proposal for how that might be done, including as to the sale of the Wilga Downs and Trafalgar properties and other assets of the business.
• [116] With respect to the distribution of sale proceeds, the letter stated:

"On the sale of the partnership properties there could be an interim distribution of some of the sale proceeds, however an amount will need to be held in a Trust Account of a firm of solicitors pending the accountants providing advice on the liabilities for tax and any other liabilities so that the balance monies could then be applied to payment of liabilities and once all of the liabilities have been paid surplice funds (if any) then remaining can be distributed."

• [117] Richard gave evidence that he agreed the properties should be sold and the Partnership dissolved.[108]
• [118] The Wilga Downs property was eventually sold on or about 25 July 2017. The Trafalgar property was sold on or about 31 July 2018.

• [119] Richard identified an email, dated 12 July 2017, sent to Robert and copied to others, in which he advised he was stepping down from his current role of managing the Wilga Downs and Trafalgar accounts.[109] In that email, Richard wrote:

"As you know, I took on the role of managing Wilga and Trafalgar accounts ~3.5 years ago to work towards getting our businesses back on track financially. We additionally agreed I would take responsibility for the sale of Wilga and its cattle, with you taking responsibility for the sale of Trafalgar."

• [120] Richard's email concluded with the following:

"As you are aware, I have not been financially rewarded for my role in running the business over the last 3.5 years. I continue to believe this approach is in the best interests of our business and that you should also perform this role without financial reward...However, if you prefer to revert back to a paid role or to enlist professional support, I will need to be proportionally and equivalently financially compensated for my past services to the business to ensure fairness and equity is maintained going forward."

• [121] On 13 July 2013, Robert sent an email to his wife, Kris Lewis.[110] The email has the subject "letter" and is addressed to "Richard". It appears to be a draft for a letter from Robert to Richard about the work Robert claimed he had been doing for the Partnership. In that email, Robert wrote:

"I have during the past 3.5 years managed all of Trafalgar a $1,000,000 business and some of Wilga Downs a $400,000 business working closely with our manager John Tompson. I have spent several weeks in Emerald annually working for our businesses...

1/ As we have shared the work load for the last 3.5 years neither of us should be paid for the last for the past 3.5 years.

2/ I will be engaging a bookkeeper to do MYOB and pay wages which will be charged to the business. It is in the best interest of both of us that our accounts accurate and very up to date in this potentially high tax year.

3/ For clarity moving forward we need to both sign a standard business agreement.

4/ I will need to be reimbursed for travel, office expenses, communications expenses and any other genuine tax deductible business expenses.

If these four points can't be agreed on the business can't move forward."

• [122] Despite composing this apparent draft letter, Robert did not send it to Richard. Rather, on 14 July 2017, Robert sent an email to Richard in which he advised that he did not agree with Richard's analysis of the previous 3.5 years but that he was also stepping down from his role. He suggested they would have to pay someone else to fill their roles until Trafalgar was sold, as he was pursuing other interests. He further stated that he would continue to play an "equal role in all decisions affecting our business going forward" and advised he would continue to do the crop marketing and would handle most of the Trafalgar sale process.[111]

• [123] Robert gave evidence that in the period 1 July 2017 to 30 September 2018, he performed work for the Partnership. According to Robert, that work involved finalising the sale of Wilga Downs, the preparation of the Trafalgar property for sale and the continuation of running both businesses. Robert stated that Richard had stepped down from his work for the Partnership in July 2017, because he was too busy with overseas commitments and travel.[112]
• [124] By his counterclaim, Robert contends that he is entitled to, but has not been paid, reasonable remuneration for his oversight and management of the Partnership properties for the period 1 July 2017 to 30 September 2018.[113] Robert contends his entitlement to be paid wages for that period is a result of the 1989 Wages Agreement. As with the claim for the 2013 period, Robert also claims an entitlement to interest on his unpaid wages for the period 1 July 2017 to 30 September 2018.[114]
• [125] Richard disputes Robert's claim.

• [126] On 4 September 2017, after the sale of Wilga Downs, Richard and Robert signed a written agreement which provided for the settlement of outstanding issues arising out of their Partnership and allowed for the distribution of sale proceeds from their solicitors' trust account as well as the division and distribution of $300,000 held in the Partnership's Suncorp bank account at the time.[115]

• [127] On 31 July 2018, following the sale of the Trafalgar property, the balance of the sale proceeds in the amount of $2,208.220.01 was paid into the trust account of Welsh & Welsh Solicitors. On 3 and 4 August 2018, further amounts were received in the trust account in respect of the deposit paid by the purchasers for the sale of Trafalgar ($192,225) and the net proceeds of the sale of the equipment of the business ($333,350.26).
• [128] In subsequent correspondence, Richard sought Robert's consent to authorise an equal split of the sale proceeds. Robert did not agree.

• [129] On or about 7 December 2018, Robert sent Richard a letter demanding payment of monies he claimed were owed to him from the Partnership.[116] Robert gave evidence that he sent the demand to Richard because there were still monies owed to him from the Partnership that needed to be finalised before they could divide the proceeds of the sale of the Partnership properties.[117]
• [130] Robert's letter of demand included the following particularised claims:

"(a) For managing Trafalgar from 1/11/1982 until 30/6/1989:

Total including interest to 31/12/2018 - $1062375, plus interest @ 10% per annum of $291/day from 31/12/18 until resolved.

For managing our farm interests in the Partnership and trust from 1/1/2013 - 30/9/2013:

$30,000 + interest @ 10% per annum from 1/10/2013 - 31/12/2018 = $15499 interest.

+ interest @10%/annum or @12.46/day from 31/12/18 until resolved.

At the rate of $1200/week fee from 1/7/2017 until 30/9/2018 being 65 weeks = $78000 + interest @ 10%/annum from 30/9/2018 to 31/12/18 = $1950 interest.

+ interest @10%/annum or @22/day from 31/12/18 until resolved."

• [131] Richard gave evidence that he received Robert's letter on 7 December 2018. He stated that the claims within the letter for money owed to Robert for managing Trafalgar from 1 November 1982 until 30 June 1989 were Robert asking for money that he had already been paid.[118] Richard further stated that the claim for amounts owing from 1 January 2013 to 30 September 2013 had not been asked for previously as they had agreed that neither of them would be paid at that time, and that no claim had been previously made for amounts owing for work done after the sale of the two properties.[119]

• [132] It is agreed that by letter dated 21 January 2019, Robert gave notice to Richard through his solicitor, that the Partnership was immediately dissolved pursuant to s 35 of the Partnership Act.
• [133] Section 35 of the Partnership Act provides:
  1. Dissolution by expiration or notice

(1) Subject to any agreement between the partners, a partnership is dissolved -

(a) if entered into for a fixed term - by the expiration of that term;

(b) if entered into for a single adventure or undertaking - by the termination of that adventure or undertaking;

(c) if entered into for an undefined time - by any partner giving notice to the other or others of the partner's intention to dissolve the partnership.

(2) In the last mentioned case the partnership is dissolved as from the date mentioned in the notice as the date of dissolution, or, if no date is so mentioned, as from the date of the communication of the notice.

• [134] In those circumstances, it will be appropriate to make the declaration sought by Richard that the Partnership was dissolved on 21 January 2019.

• [135] As noted above, various objections were taken to certain evidence sought to be given by Robert about matters that were about the content of conversations that were not pleaded. I allowed this evidence to be given on a provisional basis and indicated that I would rule upon the question of admissibility in each case in due course.
• [136] The first and principal objection arose during the cross-examination of Richard. Robert's counsel put to Richard that in June 1993 he had a conversation with Robert about what he should be paid in respect of his unpaid wages. It was put that this was a conversation which happened at Emerald on 25 June 1993. Richard denied any such conversation.[120] It was suggested to Richard that in that conversation Robert proposed he should be paid $150,000 but Richard suggested $100,000 would be fairer. Richard denied this was the case and maintained that the $100,000 amount came up in the conversations in 1989 and 1990. Richard's counsel objected to this line of questioning on the basis that the asserted conversation on 25 June 1993 had not been pleaded and that as a result Richard had approached the case on a mistaken basis. Robert's counsel accepted that the conversation had not been pleaded but submitted it was a matter of evidence, consistent with Robert's case, that the parties had not arrived at any concluded agreement in 1992.[121]
• [137] On the question of admissibility, the issue for me to determine is whether this conversation should have been pleaded and, if so, whether Richard has been taken by surprise and denied procedural fairness by its omission from Robert's pleaded case.
• [138] Whilst there is some discrepancy in the pleadings between what is asserted by Robert in his Further Amended Defence about the Theresa Street Meeting (i.e. that he and Richard agreed that he should be paid a "reasonable rate of remuneration for his work, together with interest") and what is pleaded in his Second Further Amended Counterclaim (that he and Richard agreed he would be paid "remuneration" by the Partnership in consideration for his work for the Partnership for the period 1 November 1982 to 30 June 1988), I do not accept Richard's complaint that he has approached the case on a mistaken basis.[122] It is made plain in the Second Further Amended Counterclaim that Robert contends that the amount he was to be paid for his unpaid wages, and the lump sum for interest to that time, was not finalised during the . Although Robert pleads there was an express oral term agreed to that he would be paid remuneration, he also pleads there was no agreement as to the actual amount. The pleadings further make plain that Robert contends it was an implied term of the that he would be paid remuneration calculated by reference to a "reasonable wage". The evidence given by Robert about the and the was consistent with the pleaded case in those respects.

• [151] A partnership is the relationship that exists between two or more persons carrying on a business in common with a view of profit.[132] The rights, obligations and duties of partners amongst themselves will largely be determined by the nature of their relationship and the terms of their partnership agreement. A partnership agreement may be written or oral. Partnership is a relationship springing from agreement, express or implied.[133] The relationship is ultimately contractual.[134]
• [152] The Partnership Act regulates some aspects of the terms of the relationship between partners. Given that the partnership relationship is contractual in nature, certain provisions of the Partnership Act will not apply if a partnership agreement provides to the contrary.
• [153] Of particular relevance to the present case is s 27(1) of the Partnership Act, which provides:
  1. Rules as to interests and duties of partners subject to special agreement

(1) The interests of partners in the partnership property and their rights and duties in relation to the partnership must be decided, subject to any agreement express or implied between the partners, by the following rules -

(a) all the partners are entitled to share equally in the capital and profits of the business, and must contribute equally towards the losses whether of capital or otherwise sustained by the firm;

(b) the firm must indemnify every partner in relation to payments made and personal liabilities incurred by the partner -

(i) in the ordinary and proper conduct of the business of the firm; or

(ii) in or about anything necessarily done for the preservation of the business or property of the firm;

(c) a partner making for the purpose of the partnership, any actual payment or advance beyond the amount of capital which the partner has agreed to subscribe, is entitled to interest at the rate of 6% per annum from the date of the payment or advance;

(d) a partner is not entitled, before the ascertainment of profits, to interest on the capital subscribed by the partner;

(e) every partner may take part in the management of the partnership business;

(f) no partner is entitled to remuneration for acting in the partnership business;

(g) no person may be introduced as a partner without the consent of all existing partners;

(h) any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners, but no change may be made in the nature of the partnership business without the consent of all existing partners;

(i) the partnership books are to be kept at the place of business of the Partnership (or the principal place, if there is more than 1), and every partner may, if the partner thinks fit, have access to and inspect and copy any of them. (emphasis added)

• [154] In accordance with the opening words of s 27(1), the interests of partners in the partnership property and their rights and duties in relation to the partnership will be determined by the rules prescribed by that section, subject to any express or implied agreement between the partners to the contrary.
• [155] Just as with any other contract:

(a) the terms of a partnership agreement may be written, oral, implied by a course of conduct or any combination of those things, and such terms may be express, or implied by reference to the objectively determined intention of the partners as appearing from the entire facts of the case; and

(b) the question of intention is one of fact determined by what would be objectively conveyed by what was said and done by the parties and not the subjectively held intentions of the parties.[135]

• [156] In the present case, Robert asserts the existence of two contracts, comprised entirely orally and not recorded in writing, being the 1989 Wages Agreement and the 1982-1988 Wages Agreement. Robert contends that these contracts had the effect of displacing the rule that would otherwise apply under s 27(1)(f) of the Partnership Act, whereby no partner is entitled to remuneration for acting in the partnership business.
• [157] As noted earlier, Robert contends that by the 1982-1988 Wages Agreement he and Richard reached an express oral agreement that Robert was to be paid a sum of money plus interest until fully paid, representing reasonable remuneration for the work that he had undertaken for the Partnership for the period from 1 November 1982 to 30 June 1988. Robert further contends that further terms of this agreement are to be implied in fact, being the Reasonable Sum Implied Term, the Lump Sum for Interest Implied Term and the Interest Implied Term.
• [158] Whether such an agreement was reached, and whether any such implied terms were part of it, are matters that I must decide to determine Robert's Remuneration Claim.
• [159] In terms of the applicable principles with respect to the implication of a term in fact, the position is well-settled, at least where there is a formal contract complete on its face. In Codelfa Construction Pty Ltd v State Rail Authority (NSW),[136] Mason J (as his Honour then was) stated:

"...the conditions necessary to ground the implication of a term were summarized by the majority in B.P. Refinery (Westernport) Pty. Ltd. v. Hastings Shire Council [1977] 52 ALJR 20, at p 26: "(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.[137]

• [160] These criteria form the essential foundations for the implication of a term as a question of fact. In the case of informal contracts, these requirements remain relevant but perhaps, in their own terms, not all equally decisive of implication. A rigid approach to their application is to be avoided.[138]
• [161] In Hawkins v Clayton, Deane J relevantly stated:[139]

"...there are sound reasons for resisting the temptation to attempt to formulate a precise mechanical test for determining what terms, if any, should be implied in a case where the parties have not sought to spell them out. Such a precise mechanical test would introduce an element of inflexibility which would be likely to lead to injustice in the circumstances of particular cases...The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties."

• [162] In Byrne v Australian Airlines Limited,[140] Brennan CJ, Dawson and Toohey JJ[141] accepted Deane J's observations in Hospital Products Limited v United States Surgical Corporation, [142] that a rigid approach to the application of the B.P. Refinery[143] criteria should be avoided in cases where there was no formal contract, and emphasised that in such cases it was first necessary to arrive at some conclusion as to the actual intention of the parties before considering any presumed or imputed intention. Their Honours went on to confirm that the test to then be applied with respect to any implied terms was the test stated by Deane J in Hawkins v Clayton set out above.
• [163] Generally, the parole evidence rule (which prohibits the use of extrinsic evidence to construe a contract except in cases of ambiguity) applies in respect of implied terms. The general principle is that "...it is not legitimate to use as an aid in the construction of [a] contract anything which the parties said or did after it was made."[144] However, post-contractual conduct is admissible to determine the existence and formation of a contract (although it is not admissible on the meaning of a contract and in construing it).[145]
• [164] The question of whether post-contractual conduct is admissible for the purpose of determining whether a term should be implied in a contract is not settled.[146]
• [165] In any event, according to the objective theory of contract, the focus is upon the intentions of the parties at the time of the alleged agreement and the task of construction is objective.[147]
• [166] Where issues arise with respect to the construction of a commercial contract, the meaning of the terms of the contract are to be determined by what a reasonable businessperson would have understood those terms to mean. That exercise will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract.

• [167] It is accepted by both parties that resolution of the Remuneration Claim and the subsidiary issues will turn upon the findings I make in respect of the various disputed conversation and events I have outlined above.
• [168] Robert submits that his evidence of these matters ought to be preferred over that of Richard because:

(a) his version of events flows logically from the facts and is far more plausible;

(b) the financial statements of the Partnership and the Wages Schedule support his version of events and do not support Richard's version of events;

(c) the contemporaneous letters, diary entries and other documents support his version of events; and

(d) his version of events is far more credible than Richard's.

• [169] Conversely, Richard submits that Robert's evidence should not be accepted and his evidence should instead be preferred over that of Robert because:

(a) Robert was not a reliable or credible witness;

(b) Robert tailored his case to suit the narrative he sought to pursue;

(c) the documents Robert relied upon to support his oral evidence were either incomplete, unreliable or selective and, hence, they cannot be relied upon to support his oral evidence;

(d) the contemporaneous documents and objective facts support Richard's version of events; and

(e) it is inherently unlikely that the agreements asserted by Robert were entered into.

• [170] Richard also submits that even if I was satisfied of Robert's version of events, I would nevertheless dismiss Robert's claim as:

(a) if the 1989 Wages Agreement is established, it was nevertheless abandoned or superseded by subsequent agreement between the partners, such that Robert has no entitlement to the claimed wages from 2013 onwards; and

(b) in any event, Robert's claims for the periods 1982 to 1988 and 2013 are time-barred.

• [171] Both parties submit that issues of credibility are key to resolving this proceeding.
• [172] I agree.

• [173] Robert bears the onus of proof in respect of establishing his Remuneration Claim. The applicable standard of proof is the balance of probabilities.
• [174] Robert's claim rests upon proof of oral agreements said to have been formed many years in the past. As was observed by Sackar J in Diransson Pty Ltd v Hassan El Dirani,[149] in a case where the conduct said to give rise to contractual relations was based upon conversations which occurred many years before trial:

"[461] In such cases the discharge of the relevant onus often provides considerable difficulties for a Plaintiff. Absent some objective and contemporaneous support, the alleged reiteration many years after the event of verbal exchanges which importantly are said to consummate contractual relations and/or alternatively induced a particular form of conduct, are often difficult to prove.

[468] The more reliable guide especially in cases where the cause of action is based solely or substantially on oral testimony is to seek and identify if possible relevant corroboration, which of course may take many forms.

[469] Obviously any contemporaneous documents such as memoranda, letters, emails or perhaps diary entries may provide a context in which, unless themselves capable of being discredited as contrived, the plausibility and credibility of the asserted oral communication can be evaluated.

[470] In addition with oral contracts, unlike written contracts, post contractual conduct if objectively sustainable may be relied upon not only to prove the existence of a contract but in addition its terms (see e.g. Australian Estates v Palmer [1989] NSWCA 11, 50; Re Centura Global Holdings Pty Ltd (2016) 111 ACSR 185; [2016] NSWSC 62 [64]-[67]; Gestion Pty Ltd v Kit Digital Aus Pty Ltd (in liq) [2014] NSWSC 1547 [11]).

[471] However post contractual conduct can be a two edged sword. Whilst it may be that post contractual conduct points either to the existence of a contract or one of its terms, a failure to complain for example may have the inverse consequence. In other words, if a person asserts a cause of action based on reliance upon certain contractual relations, but then failed in circumstances where it might have been thought appropriate to complain about the way in which they were being treated, the absence of the complaint may well amount to an admission that no contract or no promise of the sort alleged was made in the first place (see e.g. Textralian Enterprises Pty Ltd v Perpetual Trustees Victoria Ltd [2000] NSWCA 176 [85]; Raphel Shin Enterprises Pty Ltd v Waterpoint Shepherds Bay Pty Ltd [2014] NSWSC 743 [104])."

• [175] In making those observations, Sackar J endorsed the comments made in John Holland Pty Limited v Kellogg Brown & Root Pty Ltd,[150]where Hammerschlag J had similarly stated:

"Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712; Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319."

• [176] It is also pertinent to bear in mind the remarks of White AJA in ACN 070 037 599 Pty Ltd v Larvik Pty Ltd, where her Honour stated:[151]

"When considering conflicting accounts of events that occurred well in the past...it is as well to recall the observation of Lord Pearce[152] that with every day that passes the memory becomes fainter and the imagination becomes more active. Even though the witnesses may be honest, the probabilities must be carefully weighed and, in the process, contemporary documents and incontrovertible facts play an important part."

• [177] These various observations are not confined to a case brought by a plaintiff. They of course apply with equal force in the case of a defendant who brings a counterclaim premised upon alleged oral agreements said to have given rise to contractual relations.
• [178] Having regard to the evidence in light of these considerations, and for the reasons that follow, I am not actually persuaded of the occurrence of the material conversations and events as recounted by Robert, and I am therefore not satisfied Robert has discharged his burden of proving his Remuneration Claim.

• [179] I do not find it objectively more likely, logical or rational that Robert's version of events is what actually occurred. In my view, the contemporaneous notes and records and the objective facts and circumstances established by the evidence do not support Robert's Remuneration Claim. Indeed, in my opinion the evidence of these matters shows that Richard's account of critical conversations and agreements between the two brothers is the more likely.
• [180] I find Robert was not a reliable witness in terms of his account of the historical conversations and dealings with Richard concerning his Remuneration Claim. Further, in significant respects which I will address in more detail below, I find Robert was not a credible witness. For these reasons, I prefer the evidence given by Richard with respect to the material aspects of the disputed facts underlying Robert's Remuneration Claim.
• [181] With respect to the car conversation, as I have noted above, I do not consider it necessary to resolve the conflicting evidence on what was discussed in this conversation as it is not necessary for determination of Robert's Remuneration Claim. There is no doubt that whatever the conversation was, Robert deferred his studies, moved to Emerald and then began working for the Partnership, managing and overseeing the farm business.
• [182] With respect to the Return to Emerald conversations, I prefer the evidence of Richard and I find the brothers had a discussion at the front fence of the Theresa Street property in late 1982, in which Robert confirmed that he wanted to keep farming and the pair agreed that he would receive a wage similar to that being paid to Mr Mestrez, as well as having various expenses covered.
• [183] I reject Robert's contrary account that there was a conversation shortly after he returned to Emerald, in which Richard told him that a partner could not be paid a wage and he would have to live off drawings. It seems to me inherently unlikely that Robert would have refrained from paying himself a wage between 1982 and 1988 on this basis, yet he never raised the matter again with Richard in subsequent discussions in the following years regarding his entitlement to be paid wages. It seems extraordinary in my view that Robert would not have brought this up again, nor sought to have it clearly documented in any of his various notes, emails or the meetings facilitated by Mr Elks. Further, Robert gave no explanation in his evidence as to why or how the position later changed to one where he discovered he could receive payment of a wage as a partner.

• [194] I accept Richard's evidence that during the April 1991 discussion with Robert, he made handwritten notes on the back of a page from the mail that Robert had brought to give to him at the Theresa Street house.[154] In terms of supporting Richard's recollection of the occurrence and timing of the conversation, I consider it to be a highly significant circumstance that the front side of the page contains printed details that show it to be graduate magazine correspondence from the University of Queensland for the period "Winter 1991". Further, it contains the following invitation slip details:

"Graduates are invited to the Annual General Meeting of Convocation. (Story page 7.) If you wish to attend, please return this section to The Warden of Convocation, J.D. Story Building, The University of Queensland, QLD, 4072, by June 1991." (my emphasis).

• [195] In my view, the notes written by Richard (and kept by Robert) provide clear and compelling support for Richard's account of the relevant conversation and agreement with respect to both Robert's past and future wages and the interest that would be payable to Robert. In my view, they are the most significant and reliable contemporaneous notes of the discussions between Robert and Richard concerning Robert's Remuneration Claim.

• [196] The relevant portion of the handwritten notes reads:[155]

• [197] In my view, these notes support Richard's evidence that in about April 1991, he and Robert had a discussion in which they agreed Robert would be paid a wage of $30,000 per year from 1989 onwards, which would be recognised as a loan accruing interest until paid, and that he would be paid six instalments of $20,000 per year for the previous years from 1982 to 1988, together with a lump sum amount (to be agreed) in respect of past interest on those unpaid wages.
• [198] I do not accept the submission that the other various contemporaneous notes and records provide independent support for Robert's account and his Remuneration Claim. Indeed, I consider they are instead largely consistent with Richard's account and support the evidence he gave of the critical disputed conversations and events in question.
• [199] Robert's diary note of 23 June 1989[156] contains the words "Accountant... paying me wages". It is consistent with Robert making a note to himself about wanting to speak to the Partnership accountant about payment of his wages. It is also consistent with Robert wanting to discuss with the accountant how wages could be paid for the current, future or previous years, in circumstances where he had not been paid a wage up until that time. Nevertheless, I do not consider the note adds credence to Robert's evidence that he had not been receiving a wage up until this point because in 1982 Richard had told him that partners could not be paid a wage and could only take drawings. The note makes no reference to that issue and no other subsequent note or record was put into evidence documenting this previous understanding or showing that Robert had later received information or advice from the accountant (or anyone else) that he could in fact be paid a wage and how that could be done. Robert did not explain in his evidence how he came to this apparent realisation.
• [200] Similarly, Robert's diary note of 18 August 1989[157] does not support his evidence of the purported earlier conversation in 1982. The diary entry contains the notes "Record of AMT owing to RH on statements" and "more current Financials 87-88 for QIDC". The notes do not in terms refer to "wages" owing to Robert for the years 1982 to 1988; rather, they are consistent with Robert making a note of information that was required to be included in the financial statements to be provided to QIDC for the years 1987 to 1988. I do not accept that the note "amount owing to RH" refers to wages owing to Robert. No evidence was given by Robert to explain why amounts owing to him as wages were, or should be, recorded "on statements", or what these statements were.

A hundred and ninety thousand...The total amount was - at that point, because it was seven years, it was more interest. It was 80,000 lump sum interest and 210,000 for wages, added up to the 190 plus 100.[164]

• [207] To my mind, this explanation simply did not make sense and did not appear to accord with the entries Robert had written. There is no reference in the note to $80,000 for interest nor a total amount of $290,000. Further, there was no evidence that by this time Robert had proposed or discussed with Richard interest being charged on his 1982 to 1989 unpaid wages, let alone agreeing on an applicable rate. I found Robert's effort to reconcile the darker and lighter diary entries to be a convenient and contrived attempt to construe the contents of a contemporaneous note in a way favourable to his case.
• [208] The further diary entry made by Robert on 5 March 1990[165] contains various notations about "82-83", "83-84" and "84-85" and other matters that appear to be past events. It also includes the note, "Rich wants to take 1 year off my wages to equalise." Again, I do not consider this note supports Robert's evidence. In my view, the diary entry is again consistent with Richard's evidence of Robert confronting him in late 1989 or early 1990 for payment of $100,000 owing for past wages since 1982, but the matter not being resolved at that time. Richard stated in cross-examination that following that discussion, he and Robert needed to have further discussions and confirmed:

...we had discussions that didn't come to a - a conclusion and so I specifically went out to Emerald in 1991 to have those exact discussions which were recorded on that note. [166]

• [209] It is particularly significant to my mind that the note refers to Richard wanting to take one year off Robert's wages to equalise. That is precisely part of the agreement that I am satisfied was subsequently reached in the April 1991. I consider Robert's evidence in cross-examination that "That's where we were trying to work out what the - what I would be paid for the '83 to '88 period" is consistent with Richard's evidence of the matter having been raised by Robert, but as yet no agreement had been reached. The diary notes are consistent with ongoing discussions having occurred following the 1989 conversation recounted by Richard and subsequent agreement being reached between he and Robert at the April 1991 meeting.
• [210] The further diary note made by Robert on 1 August 1990[167] does not provide independent support for Robert's version of events. The diary entry contains the note "Me ... 30,000/year + Bonus ... paid the same way as Johns". Robert's evidence was that this was him "discussing with myself what I thought I should be paid for the pre-1989 period and being similar to what John Winks was receiving".[168] He accepted in cross-examination that this was not an agreement that he would be paid anything; rather, it was a record of what he desired to be paid, or a negotiating point that was just one of the options.[169]
• [211] I again consider the diary note made by Robert is consistent with the discussion recounted by Richard of what was said during the Emerald pub meeting in 1991 and consistent with the notes Richard made at the time on the back page of the mail, particularly regarding the yearly amount of $30,000 Robert was seeking to be paid.[170]
• [212] It is pertinent to note that the Exhibit 2, the Agreed Tender Bundle, did not contain copies of any excerpts of diary entries for 1991 or 1992, these being respectively the relevant years in which Richard contends the meeting and conversation at the Emerald pub occurred and Robert in contrast contends the Theresa Street Meeting occurred.
• [213] The next diary entry in time was 1 July 1993.[171] As noted above, objection was taken by Richard's counsel to the manner in which Robert sought to give evidence about the contents of this document. Ultimately, Robert's counsel did not pursue the matter. Accordingly, apart from identifying the document as a page out of one of his diaries. containing a note written by him, there was no further admissible evidence given by Robert as to why he made the note or what the note represented.

• [215] I infer the entry is a note made by Robert concerning payment of his wages from 1989 onwards, following agreement with Richard. Given that the note was made in 1993, it is consistent with either Richard or Robert's account of an agreement to pay Robert's wages from 1989 onwards.
• [216] The next diary entry in time was 3 March 1994.[172] It contains the note "Jobs Rich agree wages". Robert's evidence was that he made this entry because he and Richard still had to agree on the wages from 1982-1988. Robert further stated that it was a note to himself as a job that he needed to do.[173]
• [217] Similarly, the next diary entry of 28 April 1994[174] included the note "Richard agreement wages". Robert's evidence was that this too was made for the same reasons.[175]
• [218] The next diary entry was made on 27 June 1994.[176] It contained the note "work out tot owing me for wages" and then on the following line underneath "11 yrs". Robert gave evidence that he made this entry to work out the total owing to him, including interest, for the 1983 to 1988 years, plus interest.[177]
• [219] A further diary entry Robert gave evidence about was from 16 December 1995.[178] The relevant note there read, "Richard work out - total wages to me". Robert again gave evidence that he made the entry at that time to work out his total wages owing for the period 1983 to 1988.[179]
• [220] In my opinion, these various diary notes do not provide independent support for Robert's account. They do not in terms refer to wages owing to Robert for the earlier period from 1982 to 1988. The evidence of what the notes refer to is ultimately supplied by Robert. I do not agree with his evidence in that respect. It is a bootstraps argument. Robert points to vague, general notes in the diaries as evidence that supports his claim yet, to be referrable to his claim, the entries only make sense with the explanations provided by Robert. The entries that refer to Richard and "agreement wages" are not of themselves clearly referrable to there being no agreement yet as to the amount of Robert's past wages.

...I don't actually know where the 35 figures. I was being paid 35 in '94/95, '95/96

...And I was paid 40,000 in '89 and '90 and 50,000 in '91, 2, 3 and 4.

...I'm not sure exactly where 35 came from. It could've been Richard because I had been paid 35 at that point in time and we might've just filled all the figures without going back and finding out exactly what I was paid at that point.[182]

• [225] This evidence was inconsistence with the evidence he had only just given that the figures were the "actuals" from the "financials". When asked further questions in cross-examination about that evidence, Robert stated that Richard may have suggested the "35" figures in discussions, but that was incorrect.[183]
• [226] In my view, the 5 April 1996 diary entry does not provide independent support for Robert's evidence concerning his claim for unpaid wages for the 1982 to 1988 period. On the contrary, I consider the notes and Robert's evidence about them are a prime example of the unreliability of his evidence. The notes, and Robert's evidence about them, are internally inconsistent and confusing. Further, they are inconsistent with Robert's evidence that in 1989 there was an express agreement reached that he would be paid $40,000 per year and his evidence that in 1990 the "financials" for the Partnership were amended to include payment of his wages in the amount of $40,000, and that $40,000 for wages was paid for the 1989 and 1990 years, as evidenced by the financial statements.[184] The diary notes and Robert's evidence about them are also inconsistent with the amounts received by Robert set out in the agreed Wages Schedule.[185]
• [227] Robert also relies upon various financial statements and records as independent, objective evidence supporting his evidence and his Remuneration Claim. In particular, he relies upon the contents of the R.J. & R.H. Lewis Partnership financial statements for the year ended 30 June 1989,[186] a letter from Wilkes & Stewart, the Partnership accountants, dated 7 March 1990[187] and excerpts of the Partnership financial statements for the years ended 30 June 1990 and 30 June 1991.[188]
• [228] I do not accept that these documents provide independent, objective evidence supporting Robert. On their face, the documents do appear to provide support for Robert's account. However, as with the diary notes, in each instance the significance and import of the contents of the documents that Robert relies upon ultimately depends upon Robert's evidence about them and what he says they record being accepted as reliable and credible. I do not find Robert's evidence on these issues, and his evidence in many other respects, to be reliable and credible.

"We are enclosing your amended Income Tax Return together with the amended Partnership Return for the year ended 30 June 1989."

• [232] Robert gave evidence that the letter enclosed an amended Partnership Return for the year ended 30 June 1989. He further stated that the amended Return recorded his $40,000 wage for the 1988 to 1989 year as a loan to the business.[190]
• [233] Robert was then taken to the excerpts of the Partnership financial statements for the years ended 30 June 1990 and 30 June 1991. Within those documents, Robert identified the Balance Sheet as at 30 June 1991, as showing an amount of $86,000 recorded against a loan to Robert Lewis for the 1990 year. Robert gave evidence that that figure reflected two payments for wages of $40,000 each year for the 1989 and 1990 years, plus $6,000 in interest which had been calculated at 15% on $40,000. Robert further identified the amount of $147,180 recorded against the entry for a loan in his favour for the 1991 year as showing that another $50,000 had been added for his wage for that year, plus interest on the $86,000. Robert stated that he thought the interest rate was around 13% at that point in time.[191]
• [234] Robert then further identified the balance sheet for the year ended 30 June 1990, which he stated showed the amendment for the 1989 year to include the $40,000 for his wage in that year's figures. Robert gave further evidence that his hand-written notation on this document, "amended letter", referred to the Wilkes & Stewart letter of 7 March 1990, "amending those financials and adding $40,000 in". He added that the amount of $40,000 included for the 1990 year on that page, above which he had written the word "draft", was not the actual final financial as it had not yet included his extra $40,000 for the next year (1990 year) and the interest at that point in time. As I understand Robert's evidence on this point at that time, the balance sheet for the year ended 30 June 1990 only showed the loan owing to Robert was $40,000, which was simply the $40,000 from the previous 1989 year carried forward and without interest being calculated or any additional wage for the 1990 year being added.[192]
• [235] Robert then identified within the Schedule 2 trading statement for the year ended 30 June 1991, amounts of $40,000 for the 1989 year and $50,253.40 for the 1991 year, recorded under the heading "Wages - Partner". Robert gave evidence that this showed his wages of $40,000 for the 1990 year and $50,000 for the 1991 year, together with some other small amount for which he may have been reimbursed.

...it can be the first or last payment. One of those payments is the additional payment because these wages were backdated one year. So the arrangement originally was to go from 1990 for six years, but Robert amended the 1989 tax year and brought payments forward one year, so everything was brought forward one year including payment of wages.

... Because it was brought forward one year. There's one year of wages already covered, so there only needed to be five instalments of $20,000 and then the sixth instalment would be for interest.[196]

• [241] Whilst the position was perhaps not made entirely clear, as I understand the evidence and the relevant entries in the Wages Schedule, the effect of Richard's evidence was that by bringing the start date for payment of Robert's wages forward from 1990 to 1989, there only needed to be five more years of $20,000 backpay covered, together with one payment of $20,000 for past lump sum interest. The "sixth" backpay instalment was accounted for by backdating the commencement of payment of Robert's wages to 1989. Accordingly, for the financial year ended 30 June 1989, the amount of $40,000 could represent an "on the books" wage amount of $20,000 together with $20,000 for past interest, and for the financial year ending 30 June 1990, the amount of $40,000 would reflect $20,000 for the "on the books wages" together with $20,000 backpay. Thereafter, in accordance with the agreement to pay ongoing wages at the amount of $30,000 per year from 1991 onwards, each of the next four entries of $50,000[197] in wages paid for the financial years ending 30 June 1991 through to 30 June 1994, reflected $30,000 in yearly "on the books wages" plus $20,000 for the backpay instalments.
• [242] In my opinion, the Loan Schedule and the Wages Schedule, together with Richard's evidence about what it records, support Richard's version of events and are evidence that Robert has in fact been paid for the work he performed in the years 1982 to 1988, in accordance with the agreement he formed with Richard in 1991.
• [243] Ultimately, I do not consider the accountant's letter and the financial statement for the Partnership provide independent objective support for Robert's account. In particular, I do not accept that they provide independent evidence demonstrating that the agreement reached between Robert and Richard as to his ongoing wages must necessarily have happened in 1989 (consistent with the 1989 Wages Agreement and inconsistent with the April 1991 Emerald pub meeting).
• [244] There are three features of the documents which cause me to have doubts in this respect. First, the excerpts of the financial statements for the years ended 30 June 1990 and 30 June 1991 are incomplete and undated. There is no reliable evidence as to when the documents in the form in which they appear in the tendered exhibit were created. Second, to the extent that the balance sheet for year ended 1990 within the excerpted financial statements is said to provide evidence consistent with the accountant's amendment letter, I note that the loan entries in favour of Robert cannot be the final entries in any amended financial statement. As noted above, the loan amount for the 1990 year recorded in that document is only $40,000. It is therefore not the complete and final version of the balance sheet for that year or, to the extent that it also includes 1989, the previous year. In a similar vein, the profit and loss statement for the year ended 30 June 1990 within the excerpt cannot be a correct and final document. Third, acceptance of Robert's evidence relies upon finding as a fact that the accountant's letter of 7 March 1990 enclosed the amended financial statements for the Partnership for the year ended 30 June 1989, containing figures that were consistent with Robert's evidence. Although Robert gave evidence that the amended financial statements were included with the letter, I do not accept this is so. The letter itself plainly refers to enclosing the amended Partnership Return for the year ended 30 June 1989. This in my view is clearly referrable to the Partnership Tax Return. In cross-examination, Richard did not unequivocally accept that the letter enclosed the amended financials showing the 1989 amendment at that time. That being so, other than Robert's evidence which I do not accept, there is no evidence as to when the amendments were made to the 1989 and 1990 financial records of the Partnership to reflect the payment of ongoing wages to Robert.

• [245] A principal reason why I do not accept Robert's version of events, and why I prefer the evidence of Richard to that given by Robert about the various past conversations and events concerning Robert's Remuneration Claim, is that I did not find Robert to be a credible witness. I have doubts about the veracity of the evidence he gave on many of the material factual issues in dispute. I consider Robert was prepared to, and did at times, provide convenient, contrived and reconstructed evidence that suited a narrative he put forward in support of his Remuneration Claim.
• [246] It was submitted on Robert's behalf that Richard was not a credible witness because in response to Robert's original claim that there was an implied term of the Partnership that Robert would be paid reasonable remuneration for his work, Richard did not plead the existence of any alleged agreements in respect of the payment of wages to the Defendant said to have arisen during the various meetings across 1989-1991, so as to:

(a) displace an implied contractual term of remuneration with an express contractual term of remuneration; or

(b) assert that Robert had no claim against the Partnership, because he had already been paid for his work.

• [247] A point was also raised about the discrepancy in Richard's evidence of the discussion with Robert at the pub in Emerald where Richard says agreement was reached about payment of Robert's past and future wages. Richard's evidence was that this occurred in April 1991, but his pleadings assert the discussion occurred in around late 1989 or early 1990.[199]
• [248] I do not consider these matters reflect adversely on Richard's reliability or credibility. On the contrary, I found Richard to be a straightforward and credible witness. The asserted failure to plead the existence of alleged agreements is of no moment. In his first filed reply and answer to the further amended counterclaim, Richard pleaded that there had been an agreement reached in around 1993 at the house at Theresa Street in respect of Robert's claimed unpaid wages.[200] Whilst the date and further particulars of that meeting changed in subsequent pleadings and differed from the evidence given by Richard at trial, I do not consider this to be a matter that affects the reliability or credibility of Richard's evidence. Ultimately, Richard's evidence (and no doubt his recollection of the events) was supported by the handwritten notes he made at the meeting in April 1991. Those notes were kept by Robert since that time but were disclosed by him before trial in the course of the proceedings.
• [249] In contrast, the reasons why I have concluded Robert was not a credible witness are as follows.
• [250] First, it defies logic and is simply not plausible that for almost 30 years Robert continued to have an unpaid claim for wages from the 1980s, yet he did not raise this with Richard until his letter of demand of 7 December 2018. The failure to raise his Remuneration Claim with Richard earlier in time has not been plausibly explained by Robert, particularly in circumstances where Robert was in control of the books and records and accounts of the Partnership and Trust and where there were numerous opportunities and occasions (detailed further below) where common sense dictates the claim would have been raised by Robert had it existed.
• [251] Second, Robert was paid an agreed wage by the Partnership, which was recorded and recognised in the Partnership financial statements, from the financial year 1989 onwards until at least 1995. There is no credible reason why, in my view, Robert would have treated the wages he did receive as "on the books", yet the wages he claims he was entitled to for the 1980s were "off the books" and not recorded. I do not accept Robert's explanation that the reason why these wages were not recorded was because he and Richard were yet to agree on the amount payable. It seems to me that this would be all the more reason to document what was owed to him (at least in general terms) and to have that recognised by the Partnership as an outstanding liability, lest the details of the claim be lost or diminished over time. Aside from the diary notes identified by Robert, which were vague and non-specific, Robert did not keep any record of what he says he was owed for the unpaid wages from 1982 to 1988. Further, if Robert did believe he had such a claim from the 1980s and the amount owed to him was yet to be agreed, it seems odd that he stopped making notes to himself about it after 16 December 1995 (being his last diary entry apparently of that kind in evidence). This behaviour seems to me to be inconsistent with his claim and more consistent with his wages from the 1980s having been paid by the Partnership.

(a) Robert's reliance at trial on his own, recent, handwritten comments on the Partnership balance sheet for the financial year ended 1991. The handwritten notes were not contemporaneous records; rather, they were recent notations made by Robert in what was obviously an attempt to support his interpretation of the document and lend credence to his evidence with respect to the 1989 Wages Agreement. Robert did not volunteer the fact that the notes were recent additions when at first giving evidence about the documents;

(b) Robert's reconstruction of his diary notes. As I have already noted above, it was apparent that at times Robert was not giving evidence of any true recollection of events that occurred at the time he made the notes; rather, he was interpreting the notes in a way that would support his Remuneration Claim;

(c) Robert's evidence with respect to the extent of Richard's involvement with the farm was contradicted by objective documentary evidence on occasions. For example, Robert gave evidence that Richard visited the farms "maybe once every year or two"[205] yet documents tendered in evidence showed that Richard travelled to Emerald in excess of twenty-four times in the period 2013 to 2017;[206] and

(d) Robert sought to elevate the significance and importance of his role and the work he was doing above that performed by the onsite manager Mr Tompson, which was contradicted by his own contemporaneous statements. In the document headed "Statement Read to the Meeting 26/6/16 by Robert Lewis",[207] Robert wrote:

"... on TRAFALGAR: ... The previous two managers prior to John Tompson were very average though were the pick of a poor bunch of applicants. My heart attack in February 2006 and subsequent move to Palmwoods made supervision of unreliable managers difficult ...

... On WILGA: ... None of this recent upturn in our businesses would have been possible without our honest, hardworking and knowledgeable manager, John Tompson. Who is an excellent irrigation farm and cattle farm manager. John does 90% of all management on both properties. I would like to remind Richard it was my idea to have one manager run both properties ...

I would like to remind Richard that I manage the irrigation farm and Richard manages the cattle farm." (my emphasis).

• [258] Eighth, Robert's approach to disclosure of relevant documents was less than satisfactory and some of his explanations about missing documents reflected poorly on his credibility. For example:

(a) Robert produced other diary entries with torn pages. His explanation for the missing pages, that "[I] probably used it for a note...I'd go down the paddock irrigating and you need a piece of paper to write irrigation numbers on... and also for maybe a list of things I had to get from town", was, to my mind, contrived and unconvincing;[208]

(b) Robert's late disclosure of the Partnership tax returns for the financial years 1990 to 1998, his personal tax returns for the years 1990 to 1998, and Richard's personal tax returns for the financial year 1990 to 1998. This disclosure only occurred after Robert had positively asserted, through his solicitors, that he did not have personal tax returns prior to the financial year ended 2008. His explanation that he found the documents when he went looking for a 1998 financial document but had not earlier found the other documents in response to questions from Richard's lawyers in 2020 was also unconvincing;[209]

(c) Robert only produced a complete general ledger for the Partnership for the financial year ended 2001. No other years were produced and therefore it was not possible to confirm the payment of wages to employees for other years with any particularity, beyond the total figures recorded in the financial statements;[210]

(d) The copy of the Yates Letter produced by Robert was obviously incomplete and missing pages. Robert's explanation when challenged about the missing pages, that the letter was incomplete when he received it and that in respect of the missing pages, "Well, Richard was on a boat. It probably blew off," was in my view a prime example of Robert's willingness to give convenient and contrived evidence to suit his own version of events.[211] This example is of some particular significance as Richard gave evidence, which I accept, that there were additional pages in which he suggested selling Trafalgar or that Robert would get paid if he wanted to come back and farm;[212] and

(e) Robert's late production, at trial, of his self-serving note to "Aunty Betty", being a draft of a letter that he never sent but which he relied upon as evidence supporting his version of events.

• [259] Ninth, the changing nature of Robert's case, as discussed in more detail below, causes me to doubt the veracity of the Remuneration Claim Robert advanced at trial. It is implausible that Robert would not have recalled and included in his pleaded case from the outset the various direct conversations and express oral agreements that he now says form the basis of the 1982-1988 Wages Agreement and the 1989 Wages Agreement and the failure to present his case in this way from the outset has not been adequately explained.

• [260] It is apparent from the course of the pleadings that the case put by Robert in support of the Remuneration Claim changed significantly over time. In my opinion, the nature and effect of the changes in Robert's pleaded case were not adequately explained and undermined the case presented by Robert at trial.
• [261] The proceeding was originally commenced by Richard by originating application filed on 7 January 2019. Thereafter, following an order that the proceeding continue as if started by a claim, Richard filed a statement of claim on 24 January 2019.[213]
• [262] Robert filed his first defence and counterclaim on 21 March 2019.
• [263] The Remuneration Claim advanced in the first counterclaim was based on an asserted implied term, described as the "Remuneration Term", said to arise from the Partnership agreement, whereby Robert had agreed to defer his studies and relocate to Emerald to oversee and manage the Partnership properties_._ The Remuneration Term was set out as follows at paragraph 6 of the first counterclaim:

"It was an implied term of the parties' agreement that, prior to the sharing of the profits of the Partnership's business, the defendant would receive a reasonable remuneration for his oversight and management of the Partnership Properties on behalf of the Partnership ('the Remuneration Term')."

(a) there was no claim for contractual interest and only $212,500 was sought in respect of wages from 1982 to 1988;

(b) a total of $318,000 was claimed for wages (including the periods 1 January 2013 to 30 September 2013 and 1 July 2017 to 30 September 2018);

(c) the entire claim for wages was based on the Remuneration Term; and

(d) there was no allegation to the effect that payment of remuneration would be delayed pending the Partnership generating sufficient income or profits to do so.

• [265] On 21 March 2019, Richard's lawyers wrote to Robert's lawyers requesting particulars of the defence and counterclaim filed 21 March 2019 and raising limitation issues, pointing out that the claims for remuneration prior to 20 March 2013 were time-barred.[214]
• [266] Following that correspondence, Robert filed an amended defence and amended counterclaim on 15 April 2019. The amended counterclaim reformulated the Remuneration Term as follows:

"It was an implied term of the parties' agreement that, when the business operated by the Partnership was financially viable enough to enable such a payment, prior to the sharing of the profits of the Partnership's business, the defendant would receive a reasonable remuneration for his oversight and management of the Partnership Properties of behalf of the Partnership ('the Remuneration Term')."

(a) no contractual entitlement to interest was claimed, however interest was claimed under s 58 of the Civil Proceedings Act 2011 (Qld); and

(b) all claims for remuneration remained pursuant to the alleged implied Remuneration Term, which now introduced a contingency trigger: that the payment of reasonable remuneration would only occur when the Partnership was financially viable enough to enable such a payment.

• [268] On 12 April 2019, Robert's lawyers wrote to Richard's lawyers explaining the amendment to the defence and counterclaim and responding to the limitation issue previously raised by Richard's lawyers.[215] The letter stated the following with respect to the limitation issue:

"Our client has amended his counterclaim such as to make clear his assertion that he was to be paid reasonable remuneration for the work undertaken by him on behalf of the Partnership when the Partnership was financially strong enough as to allow such a payment, which our client says did not occur until the sale proceeds of the Trafalgar Property were realised by the Partnership.

Accordingly, even if assessment was to be made by reference to the date of any nominal breach of contract, as opposed to your client's repudiation of the contract, our client's claim remains within the applicable limitation period and is not statute-barred."

• [269] On 7 May 2019, Robert filed an amended defence and further amended counterclaim, being the third version of the counterclaim. Paragraph 6 of the further amended counterclaim pleaded the Remuneration Term as follows:

"It was an implied term of the parties' agreement that, when the business operated by the Partnership was financially viable enough to enable such a payment, had generated sufficient income as to allow for the distribution of profits between the Partnership, prior to the sharing of the profits of the Partnership's business, the defendant will receive a reasonable remuneration for his oversight and management of the Partnership Properties on behalf of the Partnership ('the "Remuneration Term').

(a) there was no contractual interest component claimed, with interest remaining claimed under the Civil Proceedings Act;

(b) the claim for wages was still based on the Remuneration Term; and

(c) the contingency trigger for payment of the claimed reasonable remuneration had changed from when the Partnership was "financially viable enough to enable such a payment" to when the Partnership had "generated sufficient income as to allow for the distribution of profits between the Partnership".

• [271] On 2 June 2021, Richard filed his Amended Statement of Claim. On 12 July 2021, Robert filed his Further Amended Defence and Second Further Amended Counterclaim.
• [272] The trial was conducted on these versions of the pleadings.
• [273] With respect to the fourth, and current, version of the counterclaim:

(a) it no longer asserts an implied Remuneration Term based on the Partnership agreement. Instead, Robert's Remuneration Claim is now based on new agreements with express terms and corresponding implied terms as to the quantum of remuneration and interest claimed. The new allegations of fact were made in respect of discussions in 1982 and 1992, wherein Robert asserted the parties came to the 1989 Wages Agreement and the 1982-1988 Wages Agreement;

(b) the claim for unpaid wages from 1982 to 1989 is now $318,000; and

(c) contractual interest is claimed for the first time on the remuneration for unpaid wages for the period 1982-1989, in the amount of $823,946.51.

• [274] Although the amendments to this version of the defence and counterclaim were purportedly made pursuant to r 378 of the UCPR, no order was made by the Court to that effect, and leave was not sought or obtained to make such amendments under that rule.
• [275] That rule provides that before the filing of the request for trial date, a party may, as often as necessary, make an amendment for which leave from the Court is not required under the UCPR. In this matter, the request for trial date was filed on 1 April 2022. Richard claims that because of the limitation issue previously raised, Robert was required to seek leave to make an amendment under r 376(4) of the I and that he failed to do so. I will return to this issue in due course when dealing with the limitation issue.
• [276] Richard submits that Robert's case has fundamentally changed over time to suit his purposes, particularly after limitation issues were raised. Richard submits that it may be inferred that Robert concocted or reconstructed the newly pleaded conversations from late 1989/1990 and 1992 to bolster his case. This assertion was put to Robert in the course of his cross-examination. He accepted that the specific conversations now pleaded in respect of 1989-1990 and 1992 were not referred to in his earlier defence. However, he rejected the proposition that they had now been raised to suit his narrative and were not true.[216] Robert insisted that the conversations had now been pleaded after he had discussed the matter with the "QC" (which I infer was Queen's Counsel then acting for him).
• [277] In my opinion, the current version of Robert's Remuneration Claim as pleaded in the Further Amended Defence and Second Further Counterclaim are radically different from that which was pleaded in previous versions. The changes are fundamental and of a nature so significant that it defies logic and reason that the particular conversations which Robert now claims occurred and which he relies upon as the basis for express agreement and implied terms had not been identified and pleaded in earlier versions of his pleadings. I do not consider that Robert's explanation, to the effect that the current amendments were made on the basis of advice from Queen's Counsel, provides an adequate explanation. Even if this is accepted, it does not explain why the conversations were not identified and pleaded in the earlier versions. It is consistent with Robert providing a further and different version of facts in more recent times. Consequently, in those circumstances, I do draw the inference that Robert concocted or reconstructed the conversations to bolster his case.

• [278] Given the findings I have made with respect to the substance of Robert's Remuneration Claim it is also not strictly necessary that I consider whether his claim, or any part of it, is time-barred.
• [279] Nevertheless, as this issue and the related issue of the changes in Robert's pleaded case were the subject substantial submissions made by the parties, I will indicate the view I have formed.
• [280] Had it been necessary for me to decide the point, I would have concluded that Robert's claim for unpaid wages for the periods 1 November 1982 to 30 June 1988 and 1 January to 30 September 2013 are statute barred by operation of s 10(1)(a) of the Limitation of Actions Act.
• [281] Robert's action is founded on simple contract, namely a debt owed to him by the Partnership for agreed, but unpaid, wages, or for breach of contract.[217] Accordingly, s 10(1)(a) of the Limitation of Actions Act provides that such an action shall not be brought after the expiration of six years from the date on which the cause of action arose.
• [282] If Robert had an entitlement to unpaid wages for these earlier periods (which I have not found established), then in my view his cause of action for the unpaid wages from the 1980s would have arisen around 1989 or 1990 (being the time of the alleged 1982-1988 Wages Agreement) and the limitation period for his action in that respect would have expired in around 1996 at the latest. With respect to his claim for unpaid wages in 2013, his cause of action would have arisen by 30 September 2013 at the latest, and the limitation period for that claim would have then expired by 30 September 2019.
• [283] On Robert's pleaded case (which I do not accept), the agreement reached with Richard was that he was to be paid his wages from 1982 to 1988, together with a lump sum representing accrued interest, when the business operated by the Partnership had "generated sufficient income or other money as to allow for the distribution of profits between partners, prior to the sharing of the profits of the Partnership business". On that basis, Robert contends that his cause of action in respect of the unpaid wages and interest from the work done in the 1980's did not arise until that contingency was triggered by the sale of Trafalgar in 2018. Consequently, Robert argues, his claim is not time-barred.

I said to Richard, "Well, we can't afford to pay now, so we'll just have to wait till the business could afford to pay me and you (sic. "he") agreed that that's what we should do in the future."[218]

• [285] In closing submissions, Robert's counsel accepted on this issue, and in terms of what was proven in respect of the express term concerning the contingency:

"...obviously, the pleadings aren't what the court has to go on, it's the evidence, and Robert Lewis' evidence being that he would be paid when the business operated by the partnership could afford to pay him."[219]

It was nevertheless submitted that according to the applicable principles of construction of contracts, the appropriate businesslike or commercial construction of the term according to Robert's evidence was that he would be paid only when "the business had generated enough profit to trigger a profit share occurring between the partners."[220]

• [286] I reject that submission. Such an approach goes beyond an exercise of the proper construction of an express oral term of a contract and instead urges a finding that the words used by Robert in his evidence of what was said should be read and understood in precisely the same way as the case was pleaded.
• [287] In any event, on either the pleaded case or the evidence given by Robert about this term, I consider the earlier claim would be time-barred as the contingency would have been triggered earlier in time. The financial records and statements of the Partnership show that there were sufficient profits generated by the Partnership in the financial year ended 1996 and again in the financial year ended 2004 "to allow for" the distribution of profits. The business "could afford" to pay Robert at earlier times. It is beside the point that any such profits were not actually distributed and received as they were instead retained in the business and used to reduce negative equity.
• [288] In addition, I also agree with the further points raised by Richard concerning the need for leave to have been sought by Robert to amend his pleadings pursuant to r 376(4) of the UCPR and his failure to seek and obtain such leave before filing the fourth version of his counterclaim.
• [289] It is apparent that when first pleaded in the counterclaim filed on 21 March 2019, Robert's Remuneration Claim was premised solely upon an implied term (referred to as the "Remuneration Term") said to have arisen from his purported agreement with Richard that he would defer his university studies and relocate to Emerald in order to oversee and manage the Partnership Properties on behalf of the Partnership. This remained the basis of Robert's Remuneration Claim until the filing of the fourth version of his counterclaim on 12 July 2021,[221] at which point the basis of the Remuneration Claim expanded to include, inter alia, factual allegations of the late 1989 or early 1990 Defendant's Wages Discussion and the late 1992 Theresa Street Meeting. On the basis of these alleged conversations, Robert pleaded express oral agreements formed between himself and Richard, referred to as the 1989 Wages Agreement and the 1982-1988 Wages Agreement, and further terms to be implied in fact.

• [291] I am not satisfied Robert has established his entitlement to any of the supposed unpaid wages, or interest amounts, that are the subject of his Remuneration Claim. Accordingly, it will be appropriate to make the necessary orders that are sought to wind up the Partnership, without recognition of any liability owed to Robert by the Partnership in the terms of his Remuneration Claim.

• [292] I make the following orders:
  1. The Defendant's counterclaim is dismissed.
  2. I declare the Partnership between the Plaintiff and the Defendant was dissolved on 21 January 2019.
  3. I order that the business and affairs of the Partnership be wound up.
  4. I order that for the purposes of the winding up of the Partnership:
     1. a final settlement of accounts be undertaken by an accountant to ascertain the assets of the Partnership available for distribution;
     2. such accountant to be appointed by written agreement between the Plaintiff and the Defendant within 14 days of these orders, and failing such agreement, the Plaintiff is to arrange for the appointment of an accountant nominated by the Chief Executive of the Institute of Chartered Accountants; and
     3. after the final settlement of accounts, the assets of the Partnership are to be distributed in accordance with sections 42 and 47 of the Partnership Act 1891 (Qld), without deduction for the Defendant's Remuneration Claim.
• [293] I will hear the parties as to costs and any other orders required.

[1] A copy of the handwritten letter is Exhibit 2-PLA001; a typed version of the letter is Exhibit 2-PLA002.

[3] It is to be noted that Robert's original claim, as pleaded in paragraph 3 of his Counterclaim filed 21 March 2019, was premised upon an oral agreement made on or about 9 October 1982 that he would defer his studies and relocate to Emerald in order to oversee and manage the Partnership properties on behalf of the Partnership. Robert further claimed, at paragraph 6 that it was an implied term of this agreement that, prior to the sharing of the profits of the Partnership's business, he would receive a "reasonable remuneration" for his oversight and management of the Partnership properties.

[5] Second Further Amended Counterclaim at paragraphs 3, 3A, 4.

[21] Further Amended Defence at paragraph 24B(c)(ii)A and (iii); Second Further Amended Counterclaim at paragraph 5A(a).

[23] T2-15:29 - T2-16:19; Exhibit 2-DEF001 (23 June 1989) and DEF002 (18 August 1989).

[24] T2-21:19-45 and T2-26:12-45; Exhibit 2 - DEF004 (8 September 1989), PLA028 (16 December 1989); DEF006 (1 August 1990).

[25] T2-22:1 - T2-23:7; Exhibit 2 - DEF005 (5 March 1990).

[34] The handwritten notes were not made contemporaneously with any of the events recorded in the financial statements or the events in 1990 or 1991 as recounted by Robert. He confirmed that the notes were only made by him "very recent[ly]" and probably a couple of weeks before trial: T2-26:15-27.

[39] T1-23:42 - T1-24:2 and T1-25:4-27.

[42] Amended Statement of Claim at paragraph 28E. It is to be noted that contrary to this evidence, the pleadings assert that this conversation, and the subsequent follow up conversation at Theresa Street, occurred in "around late 1989 or early 1990".

[43] Exhibit 2-PLA029; T1-29:28 -T1-30:27.

[48] Further Amended Defence at paragraph 24B(c)(ii)B and (iv); Second Amended Counterclaim at paragraphs 5A(b), 5B

[49] Further Amended Defence at paragraph 24B(c)(ii)B and (iv); Second Amended Counterclaim at paragraphs 5A(b), 5B-5E.

[50] Further Amended Defence at paragraph 24B(c)(4); Second amended counterclaim at paragraph 5B(a) -(c).

[51] Second amended counterclaim at paragraph 5C-5E.

[55] T2-33:12 -T2-34:32; Exhibit 2- DEF 009 (3 March 1994), DEF 010 (28 April 1994) and DEF 011 (27 June 1994).

[56] T2-34:22 - T2-35:2.; Exhibit 2-DEF014 (15 December 1995).

[58] Exhibit 2-PLA089 at p6 (Farm Profit and Loss Statement for the year ended 30 June 1996); TLA069-R&R LEWIS PROPOSED RECONSTRUCTION (a document providing a diagram and notes with respect to the creation of the proposed Lewis Family Trust).

[61] Exhibit 2 - PLA069 (The Lewis Family Trust Deed) is dated 14 March 1997.

[75] Amended Reply and Answer at paragraph 7D(c)(iv)A and the annexed schedules; Second Further Amended Counterclaim at paragraphs 29C(1)(a) and 35.

[76] T2-49:10-18; T2-68:21-43; T3-22:40 - T3-23:31.

[79] I note that within Exhibit 2-PLA120 (2011-2012 Partnership Financials) - the balance sheet for the R.J. & R.H. Lewis partnership records net assets of -$1,110,224.18 as at 30 June 2012 and in PLA122 (2012-2013 Partnership Financials) - the balance sheet for the RJ & RH Lewis partnership records net assets of -$1,309,509.36 as at 30 June 2013.

[89] Second Further Amended Counterclaim at paragraph 9(b).

[90] Second Further Amended Counterclaim at paragraph 9AC.

[97] T1-38:43 - T1-39:40; Exhibit 2-PLA008.

[98] Exhibit 2-PLA008, email from Robert to Richard on 27 September 2013 at 5:30pm.

[99] T1-39:42 - T1-40:7; Exhibit 2-PLA009.

[104] Exhibit 2-PLA037 at 3(c) and (d).

[105] T1-42:45 - T1-43:4; Exhibit 2-PLA051.

[113] Second Further Amended Counterclaim at paragraph 9(c).

[114] Second Further Amended Counterclaim at paragraph 9AC.

[121] See Further Amended Defence at paragraph 24B(c)(2)B and paragraph 24B(c)(4)G - wherein it is pleaded that the Plaintiff and the Defendant did not finalise the amount the Defendant was to be paid for the unpaid wages or the lump sum for interest to that time during the Theresa Street Meeting alleged to have taken place in or about late 1992; Second Further Amended Counterclaim at paragraphs 5B, 5C and 5D - in respect of the asserted Reasonable Sum Implied Term.

[127] Citing in support of that argument Crusader Marine Holding Pty Ltd (in liq) v Ballantyne [2011] QSC 152 per Applegarth J at [163]-[165].

[128] Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211 at [64], per Jackson J.

[129] Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286, per Mason CJ and Gaudron J. Rule 157(a) of the UCPR similarly requires a party to include in a pleading particulars necessary to define the issues for, and prevent surprise at, the trial.

[132] Section 5(1) Partnership Act 1891 (Qld).

[133] Booth v Booth [1935] HCA 15; (1935) 53 CLR 1 at 27.

[134] Pooley v Driver [1876] UKLawRpCh 350; (1876) 5 Ch D 458 at 472 per Jessel MR.

[135] In accordance with Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at 178-179.

[136] (1982) 149 CLR 337 at 347.

[138] Hardingham v RP Data Pty Limited [2021] FCAFC 148 at [82(23)] per Greenwood J (with whom Rares J agreed).

[139] (1988) 164 CLR 539 at 572-573. Deane J had made similar statements earlier in Hospital Products Limited v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 121.

[142] [1984] HCA 64; (1984) 156 CLR 41 at 121.

[143] B.P. Refinery (Westernport) Pty Ltd v Hastings Shire Council (1994) 180 CLR 266.

[144] See Agricultural and Rural Finance Pty Ltd v Gardener [2008] HCA 57; (2008) 238 CLR 570, per Gummow, Hayne and Kiefel JJ at [35]; Construction, Forestry, Maritime Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; [2022] 398 ALR 404 at [176], per Gordon J; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 398 ALR 603 at [109] per Gordon and Steward JJ.

[145] See Nurisvan Investment Ltd v Anyoption Holdings Ltd (2017) VSCA 141 at [77] (and the authorities cited therein).

[146] As discussed in Regreen Asset Holdings Pty Ltd v R [2015] VSCA 286 at [135] to [140].

[147] Mount Bruce Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 184 at [46] to [51], per French CJ, Nettle and Gordon JJ.

[148] Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640, per French CJ, Hayne, Crennan and Kiefel JJ at [35]); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd at [46]-[48], per French CJ, Nettle and Gordon JJ.

[149] [2019] NSWSC 617 at [463]- [471].

[150] [2015] NSWSC 451 at [94].

[151] [2008] QCA 416 at [6].

[152] O_nassis & Calogeropoulis v Vergottis_ [1968] 2 Lloyd's Rep 431 at 31.

[153] Although Robert's case was opened on the basis that in 1989 he discovered a partner could in fact be paid a wage (T2-2:36-38), Robert did not give any evidence to that effect.

[155] This is of course only an approximation of the handwritten notes.

[158] Although no evidence was given about it, I infer that QIDC is the acronym for the Queensland Industry Development Corporation.

[162] The latter figure appeared to me to be "$140,000" but Robert gave evidence that it was "$190,000" (T2-86:36-45).

[166] T1-71:32-T1-72:40 - referring to the notes he made on the back page of the mail (Exhibit 2; PLA029).

[185] Annexed to the Answer to the Second Amended Counterclaim at p 23.

[197] It is to be noted that the figure for the financial year ended 30 June 1991 was actually $50,253.40. Robert gave evidence that the additional $253.40 was probably a reimbursement for something.

[199] Amended Statement of Claim at paragraphs 28E-28G.

[200] Reply and Answer at paragraph 7(m). It is to be noted that at paragraph 19 of his Reply to Richard's Answer, filed 2 July 2019, Robert admitted the occurrence of the "1993" meeting at Theresa Street but claimed different matters were discussed in that conversation. It is apparent from the particulars given at that time that Robert was describing details of both the conversation he later claimed was had over the telephone in 1989, leading to the 1989 Wages Agreement and the conversation he later contended occurred in 1992, styled as the Theresa Street Meeting, and which he contends led to the 1982-1989 Wages Agreement.

[201] To the point where the claim for interest payable on the wages said to be owed from 1 November 1982 to 30 June 1988, as claimed in the Second Further Amended Counterclaim filed 12 July 2021 was $776,870.35.

[203] Second Further Amended Counterclaim at paragraphs 5C(c), 5E and 9AC (where it is asserted that the reasonable rate of interest to which he is entitled is 9.6375%).

[207] Exhibit 11-Minutes of Partnership Meeting 26 June 2015 (full copy of Exhibit 2-PLA051). It is to be noted that the date 29/6/16 is obviously a typographical error. The statement is signed and dated 11 July 2015.

[208] T2-81:29 - T2-82:46; Exhibit 15 (bundle of diary notes).

[209] T2-70:29 - T2-77:36; Exhibits 12-14.

[213] The various iterations of the pleadings are contained in the paginated folder - MFI "C".

[217] Although, at paragraph [10] of the Second Further Amended Counterclaim, Robert also pleads repudiation of the contract, he has not pleaded any claim for damages for breach of contract.

[221] Second Further Amended Counterclaim, filed 12 July 2021.

[222] Which would have necessitated consideration of the principles summarised by Bond J (as his Honour then was) in Firstmac Ltd & Ors v Hunt & Hunt (a firm) [2018] QSC 258 at [17]- [30].