Mead Property Investments Pty Ltd v P & M Galea Pty Ltd

Category: Principal judgment

Parties: Mead Property Investments Pty Ltd (Plaintiff/Cross-
Defendant)
P & M Galea Pty Ltd (Defendant/Cross-Claimant)

Representation: Counsel:
J Pokoney (Plaintiff/Cross-Defendant)
A Maroya (Defendant/Cross-Claimant)
Solicitors:
Fortis Law (Plaintiff/Cross-Defendant)
Mahony Law (Defendant/Cross-Claimant)

File Number(s): 2022/380006

Publication restriction: Nil

JUDGMENT

1. In 2018, Mead Property Investments Pty Ltd (‘MPI’) was appointed by Mr John Cauchi and Mr Frank Cauchi (collectively, with Mr John Anthony Cauchi, ‘the Cauchi parties’) as the project manager for a subdivision of their property in Box Hill, NSW (‘the Cauchi land’). Mr John Cauchi is the sole director and shareholder of MPI (Mr John Cauchi’s 2 September 2023 affidavit paragraph 4).

2. Relevantly, the Cauchi land shared a boundary with a property in Rouse Hill acquired by P & M Galea (‘PMG’) (‘the PMG land’), and also shared a boundary with property owned by Mr Sevario Polistina and Mr David Polistina (‘the Polistina parties’) (‘the Polistina land’).

3. Following negotiations, the Cauchi parties and PMG executed a deed providing for a land swap and the sharing of development costs to facilitate the subdivision of the Cauchi land and the PMG land in a subdivision scheme which included the Polistina land.

4. MPI paid various expenses, costs and fees for the works associated with the subdivision. After the registration of the subdivision, MPI sought a contribution to the payment of those sums from PMG, the Cauchi parties and the Polistina parties.

5. PMG denied that it was liable to pay the costs sought from it by MPI. In these proceedings, MPI seeks to recover portion of the costs it outlaid in relation to the subdivision from PMG.

6. PMG has cross-claimed against the Cauchi parties for alleged overpayments made under the land swap deed and for costs paid by PMG to a third party.

The hearing

7. At the hearing, two affidavits of Mr John Cauchi, dated 2 September 2023 and 15 April 2024, were read in the plaintiff’s case. An expert report by Mr Christopher Suarez was tendered.

8. In the defendant’s case, three affidavits of Mr Paul Galea, dated 16 October 2023, 6 May 2024 and 16 September 2024 were read. Four expert reports of Mr Jonathon Saxon, dated 4 October 2023, 1 May 2024, 6 May 2024 and 4 September 2024 were tendered.

9. Mr John Cauchi gave oral evidence in the plaintiff’s case. Mr Galea gave oral evidence in the defendant’s case. Mr Suarez and Mr Saxon gave concurrent evidence.

Uncontested Facts

10. The Cauchi parties conceived of a scheme to subdivide the Cauchi land in early 2018.

11. Mr John Cauchi said that he entered into a loan agreement to finance the development of the Cauchi land on 25 June 2018 and, at about the same time, appointed MPI as the principal contractor to manage the development (Mr John Cauchi’s 2 September 2023 affidavit, paragraphs 7 and 8). Project surveyors were engaged as project managers.

12. Shortly after appointing MPI, Mr John Cauchi began discussions with Mr Galea, a shareholder of PMG, which was then in the process of acquiring the PMG land, with a view to the possible inclusion of the PMG land in the subdivision planned by the Cauchi parties. Similar discussions were held between the Cauchi parties and the Polistina parties with respect to the Polistina land. Mr John Cauchi and Mr Galea had several discussions from mid-2018 to February 2019.

13. A development application for the subdivision of the Cauchi land, the Polistina land and the PMG land was lodged with the Hills Shire Council (‘the Council’) sometime in February or March 2019. The development application was approved on 30 April 2019. It involved the creation of forty-nine residential lots, five residue lots and one stormwater management lot, with associated works.

14. Mr John Cauchi changed project managers on 1 July 2019, engaging Orion Consulting Engineers Pty Ltd (‘Orion’) to take over from Project Surveyors.

15. An application to vary the development approval was submitted to the Council on about 19 December 2019. It was approved on 15 October 2021. The amended plan created an additional residential lot.

16. The Cauchi parties’ solicitors, Platinum Property Law, prepared a deed to document an agreement between the Cauchi parties and PMG. In about July 2020, Platinum Property Law sent a draft land swap deed to PMG’s solicitor at the time, Solutions Law. The Cauchi parties and PMG, both directly in conversations between Mr John Cauchi and Mr Galea and through their solicitors, negotiated the terms of the deed between July 2020 and March 2021. Platinum Property Law generated and distributed several drafts of the deed which were discussed in the negotiations.

17. On 22 December 2020, Mr Joshua Pineda, of Orion, sent Mr John Cauchi an email which said:

As discussed in our meeting earlier today, I have talked to Paul Galea about expectations during the subdivision development.

I note that I communicated:

- He was responsible for all development costs within his Lots 2 and 3 of DP 546799 (271 and 269 Annangrove Road).

- You would be responsible for the works within yours.

- Based on previous agreements, the land swaps to create his 243, 244 and 245 and yours 229,231, 242, 246 are generally equal and so there will be no cash exchanged for this swap.

- Lot 230 will require he purchase your land for the balance of the lot at the rate of $775/sqm.

I will finalise the directions with Paul and hope to get an answer from him ASAP. Depending on what he says this will require an amended deed or otherwise, a different pathway forward.

18. On 19 March 2021, the Cauchi parties and PMG entered into the Land Swap Deed. The parties to the deed are P & M Galea Pty Ltd ACN 001 957 419 on the one hand and “John Cauchi and John Anthony Cauchi and Frank Cauchi” on the other hand. MPI is not a party to the Land Swap Deed and the deed states that it was executed as a deed.

19. The Land Swap Deed included the following provisions:

2.2 Boundary adjustment

(a) To ensure that the parties achieve the best subdivision potential from their Land and that all residential lots in any subdivision in respect of the Site are in the name of only one of the parties the parties have agreed to the Draft Plan and to the following matters:

(a) Galea agrees to, as soon as possible, transfer to Cauchi the Galea Land Swap Land free of all Encumbrances and will arrange for their legal representatives to provide the relevant Transfer Document, via PEXA, or as otherwise required, for the Galea Land Swap Land upon request from the Project Manager; and

(b) Cauchi agrees to, as soon as possible, transfer to Galea the Cauchi Land Swap Land free of all Encumbrances and will provide the relevant Transfer Document, via PEXA, or as otherwise required, for the Cauchi Land Swap Land upon request from the Project Manager; and

(c) Cauchi agrees to transfer Cauchi Lot 230 to Galea as a fully serviced lot, within twenty one days of registration of the Draft Plan by the LRS.

(b) The parties acknowledge that the areas being transferred to each other are not of equal value and that Galea will pay Cauchi the Difference Sum at the time Cauchi Lot 230 is transferred to Galea by Cauchi via the PEXA platform.

20. In clause 1.1(v) of the Land Swap Deed, “Project Manager” is defined to mean Orion.

21. “Difference Sum” is defined in clause 1.1(m) of the Land Swap Deed to mean:

(m) Difference Sum means the amount that Galea shall pay Cauchi for the Cauchi Land Swap Land as shown in Item 12 of Annexure A.

22. Annexure A, in Item 12, says, under the heading “Area Transferred to Galea m²” and in line with the heading “Difference Sum”, $558,785.00.

23. The Land Swap Deed provides, in clause 1.1(x):

(x) Works means the works and activities associated with the landswap set out in clause 4 of this Deed and in Annexure C.

24. Annexure C to the Land Swap Deed says:

Annexure C – Works

The parties agree that the below Works will be undertaken and paid for by each other:

1. Construction Costs of Roads and Services and Other Fees.

As per Western Earth Moving Pty Ltd (WEM) documents dated January 2021.

2. Costs associated with Lots 229, 230, 231, 242 and 246 in the Draft Plan will be borne by Cauchi including the cost of roads/fronts, council and statutory contributions;

3. Costs associated with Lots 245, 244 and 243 will be borne by Galea including the cost of roads/fronts, council and statutory contributions;

25. The Western Earth Moving Pty Ltd (‘WEM’) documents are provided in Exhibit JAC-1 at p 191 – 196. The documents provide a detailed breakdown of the works to be performed by WEM for the subdivision and the cost of those works attributed to the Cauchi parties, the Polistina parties and PMG. A “Summary of Offer” is provided on the first page of the WEM documents. It says that the total cost to Galea of all works, including GST, is $308,910.73.

26. PMG entered into a contract with WEM with respect to the costs of the works to be undertaken by WEM in relation to PMG’s land (see Court Book p B782). PMG paid WEM pursuant to the terms of this contract. The Cauchi parties had a separate contract with WEM.

27. The Land Swap Deed provides, in clause 4.1:

4.1 Works

The parties agree that:

(a) they will engage Western Earth Moving Pty Ltd (WEM) to undertake the Works and will sign any required contracts with WEM within one day of the date of this Deed to reflect the works to be undertaken in relation to their individual land;

(b) Galea will be responsible for all payments associated with the development and servicing of lots shown as 245, 244 and 243 on the Draft Plan;

(c) Cauchi will be responsible for all payments associated with the development and servicing of lots shown as 229, 230, 231, 242 and 246 on the Draft Plan;

(d) each party undertakes to pay within seven (7) days of receipt of an invoice all council and statutory authorities fees in relation to their lots referred to in clauses 4.2(b) and (c); and

(e) should either party pay an amount outstanding by the other to WEM, or another contractor, they shall have a caveatable interest in the land owned by the other in relation to which the payment was made, until that amount is repaid to them. Any caveat must be lifted to allow registration of a plan of subdivision but can then be re-lodged over the minimum number of lots to secure the amount outstanding.

If there is any breach of this clause 4.1(d) each party irrevocably appoints the other as its attorney to withdraw the Caveat and shall pay the applicable registration fee and $550.00 (plus GST) on account of that party’s legal fees.

28. The Land Swap Deed further provides, in clause 4.3(b):

(b) From the date of a party taking possession of, or accessing the other’s Land:

(a) the parties acknowledge that they are then the person with the management and control of the Land for the purposes of Part 2 of Work Health and Safety Act 2011;

(b) the parties acknowledge that Cauchi is the principal contractor in relation to the Works for the purpose of Chapter 6 of the Work Health and Safety Regulations 2011 in relation to any joint Works;

(c) each authorises the other to exercise such authority of the other as is necessary to enable each to discharge its obligations and responsibilities under clause 4.3(b);

(d) despite any other provision the parties acknowledge that Cauchi may engage another principal contractor in accordance with the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011 and authorise that person to have the necessary management and control of the relevant Land to perform their duties as principal contractor. In this case the person so appointed, and not the original party, will be the principal contractor for the purposes of the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011.

29. The subdivision was to be completed in two stages. MPI was the principal contractor for the first stage, which pre-dated the Land Swap Deed. The Cauchi parties appointed MPI as the principal contractor for the second stage.

30. The Land Swap Deed, in clause 6.1 provides:

6.1 Costs

Galea must pay the legal costs associated with this Deed of $3,500.00 plus GST and disbursements in relation to the negotiation and preparation of this Deed, on, or before the date of the Deed.

31. Upon the completion of the subdivision, the participants owned the following lots:

32. PMG owed 4 lots, being Lots 243, 244, 245 and 230.

33. The Polistina parties owned 6 lots.

34. The Cauchi parties owned 40 lots.

35. On 24 March 2022, Mr Galea received an email from Platinum Property Law to which was attached a document described as “our client’s Tax Invoice for payment and reimbursement to our client”. It was asserted, in the email, that “Mr Cauchi has paid all Subdivision costs, and these are to be shared between the parties”. The tax invoice set out the following, under the heading “Fees & Disbursements – as per Figures Supplied by Orion Consulting”:

Set out the Table at B594 of the Court Book.

33. PMG did not pay the invoice.

34. MPI’s claim for damages is substantially a reflection of the invoice as to cost items and, with some minor adjustment to the figures, as to quantum.

Mr John Cauchi’s evidence

35. Mr John Cauchi referred, in his affidavits of 2 September 2023 and 15 April 2024, to the discussions that he had with Mr Galea prior to entering into the Land Swap Deed. Mr John Cauchi said that he met Mr Galea on “various occasions”, but did not specify how many occasions, where the meetings occurred or when. Mr John Cauchi set out his understanding of an agreement with Mr Galea, without providing the details of each conversation or the precise basis for his understanding.

36. In his second affidavit of 15 April 2024, Mr John Cauchi says, at paragraph 2:

2. In paragraphs 69, 73, 74 and 93 of my First Affidavit, I say that certain matters were “agreed” by the defendant. I base that evidence on what I believed to be the effect of the Land Swap Agreement in the overall circumstances where the Cauchi parties, the defendant and Polistina lodged a combined Development Application (DA) which by the date of the Land Swap Agreement (19 March 2021) had been approved by Council with fees and costs being paid by the plaintiff as and when those costs for the DA were incurred. I do not recall that there were separate conversations with any representative of the defendant where a separate agreement was reached on the matters addressed in those paragraphs.

The paragraphs of Mr John Cauchi’s first affidavit listed in paragraph 2 of his second affidavit set out costs paid by MPI in relation to the subdivision and assert, in summary, that it was Mr John Cauchi’s understanding that those costs would be shared.

37. In his second affidavit of 15 April 2024, Mr John Cauchi says, at paragraph 4:

4. In relation to paragraph 12 of my First Affidavit, where I say the Cauchi Party and the Galea party reached agreement, the conversations occurred between me and Paul Galea. As the conversations occurred over 5 or 6 years ago, I do not remember the words that were spoken, however, the gist of the conversation was as set out in sub-paragraphs (a) to (e) in that:

a. we would swap certain parcels of land within the Cauchi Property and the Galea Property;

b. we would lodge a development application with The Hills Shire Council (Council) to develop the Cauchi Property and the Galea Property and there was a likelihood that Polistina would also be part of the DA;

c. each party was to contribute to the DA costs and all expenses incurred in respect of complying with the development conditions imposed by the Council, including but not limited to, consultant costs, payment to relevant authorities, and construction costs relating to development outside the lots owned by the parties;

d. if any development costs were incurred and paid by a party, the other party would reimburse the party who paid the development costs; and

e. each party was to pay their own costs for the development within their property and the land each party would own following the land swap.

38. In his second affidavit of 15 April 2024, Mr John Cauchi says, at paragraphs 13 and 14:

13. …The plaintiff invoiced the defendant and Polistina 25% each for their share of the Edwards Road Construction Cost. Although the invoice sent to the defendant dated 23 March 2022 claims $84,512.00, I have explained in paragraphs 86 to 89 of my First Affidavit that after sending that invoice, I received further information from Orion Consulting which meant that the correct figure was $113,002.32 being 25% of the total Edwards Road Construction Cost of $452,009.26 and I have included that amount in my claim against the defendant.

14. I decided on behalf of the plaintiff that I would charge the defendant with 25% of the cost of the Edwards Road upgrade. The reason that I did that was that neither the Polistinas, the Cauchis or the Galeas obtained any direct benefit from the upgrade of Edwards Road, which was imposed by the Council as a condition of consent for the whole of the DA. Although I thought initially that the amount should be divided three ways, between the parties, I eventually decided that Polistina and Galea should contribute only 25% each.

39. In cross-examination, Mr John Cauchi agreed that he had been paid “about $560,000” for Lot 230. He was paid that sum by PMG.

40. In cross-examination, Mr John Cauchi could recall that he had many conversations with Mr Galea in the period prior to the execution of the Land Swap Deed, but he could not recall how many conversations or the detail of the conversations. This is not surprising, because the conversations in question occurred six to seven years prior to the hearing.

41. Mr John Cauchi agreed, in cross-examination, that there was no discussion or agreement about a possible share of profits in the scheme. He said:

My land was my land. Paul’s land was Paul’s land.

42. Mr John Cauchi agreed, in cross-examination, with the proposition:

Q … the instructions you gave your consultants ended up finding expression in the land swap deed; that’s right, isn’t it?

A. Yeah, yeah.

Mr Galea’s evidence

43. In his affidavit of 16 October 2023, Mr Galea says that he discussed the land swap between PMG and the Cauchi parties with Mr John Cauchi prior to the execution of the Land Swap Deed. Mr Galea said that he understood that no binding agreement would come into existence until there was an executed, written agreement.

44. Mr Galea says that he did not consider PMG to have agreed to be a co-developer or a joint venturer with the Cauchi parties. He denied that the matters set out at [37], above, were agreed with Mr John Cauchi, and said that the whole of the agreement was set out in the Land Swap Deed. In his affidavit, and in oral evidence, Mr Galea said, in summary, that he had never agreed to contribute financially to the overall development scheme.

45. Mr Galea says that PMG paid WEM under its contract with WEM.

46. In his affidavit of 16 September 2024, Mr Galea says that he sought and received, from Mr Joshua Pineda of Orion, the project manager, an assurance that the calculations as to what was payable by PMG to the Cauchi parties in the Land Swap Deed under Item 12 of Annexure A were correct. Mr Galea says, at paragraph 12:

12. Thereafter, the Defendant paid without further calculation or analysis, the monies said to be owing by the Defendant to the Cauchi brothers pursuant to the Land Swap Deed being:

a) $558,785 being the net amount payable by the Defendant to the Cauchi brothers as set out in Item 12 of Annexure A to the Land Swap Deed; and

b) Legal costs of $3,500 plus GST payable pursuant to Clause 6.1 of the Land Swap Deed.

Annexed hereto and marked with the letter “B” is a true copy of the receipt for the abovementioned payments made by the Defendant to the Cauchi brothers.

47. The annexed receipt is entitled “Statement of Adjustment” and records the payment of the sums set out in [46] above by PMG, through its solicitors, Solutions Law, to Platinum Property Law, the Cauchi Parties’ Solicitors.

The Land Swap Deed

48. The Land Swap Deed is an inter partes deed. The parties to the Land Swap Deed are PMG and the Cauchi parties.

49. In Wollongong Coal Ltd v Gujarat NRE India Pty Ltd [2019] NSWCA 135, Leeming JA, with whom Bathurst CJ and McCallum JA agreed, said:

55. Secondly, at common law, only a person expressed to be a party to a deed inter partes could sue on the deed. Thus there was a series of cases in which grantees or covenantees were nonsuited because they were not named as a party. In Gardner v Lachlan (1836) 8 Sim 123; 59 ER 49, Sir Lancelot Shadwell VC said that “I have always understood the settled rule of law to be that a party not named in a deed, cannot recover by means of it, if it be a deed between parties”. (The qualification recognised that deeds poll were different.) Conversely, if a person was named as a party, he or she could sue on the deed even though he or she had not executed the deed. In Morgan v Pike (1854) 14 CB 473; 139 ER 195, Jervis CJ concluded that “the covenantor may be sued upon his covenants, although the deed may not have been executed by the covenantee”. Cresswell and Williams JJ expressed the same view. The position is explained in D Ibbetson and E Schrage, “Ius quaesitum tertio: A Comparative and Historical Introduction to the Concept of Third Party Contracts” in E Schrage (ed), Ius quaestium tertio (Duncker & Humbolt, Berlin, 2008), p 26:

“In the case of deeds inter partes, ie where the document itself specified who the parties were, all that was needed was that the intended beneficiary be named as a party. While the person undertaking the obligation had to put his seal on the document, there was no such requirement in the case of the beneficiary: naming was sufficient.”

…

50. MPI is not a party to the Land Swap Deed. MPI is not named in the Land Swap Deed. At common law, MPI has no standing to sue on the Land Swap Deed.

51. The Conveyancing Act 1919, in s 36C, modifies the common law position and provides:

36C Persons taking who are not parties

(1) A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant, or agreement over or respecting land or other property, although the person may not be named as a party to the assurance or other instrument.

(2) Such person may sue, and shall be entitled to all rights and remedies in respect thereof as if he or she had been named as a party to the assurance or other instrument.

52. An “assurance”, as the word is used in s 36C of the Conveyancing Act 1919, is a deed or instrument of conveyance. MPI is not assisted by the section.

Oral or implied agreement

53. There is no evidence of any alternative written contract or deed under which MPI could sue PMG in the terms set out in the statement of claim.

54. Understandably, given the time that elapsed between the conversations and the documentation of the conversations in his affidavits, Mr John Cauchi could not recall the detail of the conversations that he had with Mr Galea leading up to the execution of the Land Swap Deed.

55. PMG referred, in its written submissions, to Watson v Foxman (1995) 49 NSWLR 315 (‘Watson v Foxman’), where McLelland CJ in Eq said, at 318 – 319:

Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as “misleading”) within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not … attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case.

56. PMG submitted, and I accept, that it is clear from Shun Sheg Pty Ltd v Lei *(*No 2) [2024] NSWCA 105 at [11] , Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd *(*No 2) (2008) ATPR 42-240 at [41] and Heydon on Contract at [2.330] that the “strictures” set out in Watson v Foxman are applicable in the wider contractual context.

57. The evidence falls well short of establishing on the balance of probabilities that an oral contract came into existence in the course of the conversations between Mr John Cauchi and Mr Galea prior to the execution of the Land Swap Deed.

58. I am fortified in this conclusion by the evidence that there was considerable negotiation of the terms of the Land Swap Deed between the parties, with the involvement of their solicitors. It is clear that there was no concluded agreement until the execution of the Land Swap Deed.

59. Even if an oral agreement had come into existence in the course of the conversations between Mr John Cauchi and Mr Galea, there has been no suggestion that MPI was a party to such an oral agreement. MPI was appointed as “the principal contractor to manage the development” by Mr John Cauchi in about 25 June 2018 with respect to the first stage of the subdivision, which pre-dated the Land Swap Deed and the conversations leading to the Land Swap Deed (see Mr John Cauchi’s 2 September 2023 affidavit paragraphs 7 – 9). Mr John Cauchi says that he appointed MPI under clause 4.3(b)(d) of the Land Swap Deed (set out at [28] above) (see Mr John Cauchi’s affidavit of 2 September 2023 at paragraph 43). There is no evidence that PMG was informed of the appointment. Even if there had been, there is nothing in the Land Swap Deed which binds PMG to share the costs of MPI. Clause 4.3(b)(d) suggests that the role of the principal contractor relates to compliance with the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011 rather than the expenditure of funds on behalf of the parties to the Land Swap Deed.

60. The Cauchi parties argued that a contract between MPI and PMG could be implied from their conduct. It was asserted that “it is clear” that there existed “a commercial relationship” between MPI and PMG. I do not accept that submission. On the evidence before me, the only commercial relationship established on the evidence for MPI was with the Cauchi parties, starting in June of 2018, well prior to the involvement of PMG in the subdivision. Involvement in the same project does not necessarily give rise to a commercial relationship. It has not been established, on the balance of probabilities, that essential elements of a contract, came into existence between MPI and PMG.

Agency argument

61. It was alleged in clause 18 of the Amended Statement of Claim, and MPI argued, that the parties to the Land Swap Deed appointed MPI to be the principal contractor and that a relationship of agency therefore arose between MPI and PMG.

62. PMG was not involved in any way with the appointment of MPI as the principal contractor or with the giving of instructions to MPI in its performance of its function. Clause 4.3(b)(d) of the Land Swap Deed expressly provides that “Cauchi may engage another principal contractor in accordance with the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011”, which does not support MPI’s argument.

63. An agency relationship between MPI and PMG has not been established on the balance of probabilities.

Unjust enrichment/quantum meruit claim

64. MPI submitted that PMG must have known that MPI was undertaking work towards facilitating the subdivision and was enriched by MPI’s work in a manner which is unjust.

65. Mr Galea made it clear in cross-examination that he did not know who Mr John Cauchi was using to facilitate the development. He was aware of Mr John Cauchi and his brother and WEM, but he was not specifically aware of MPI. There was no evidence that he was told about MPI prior to the registration of the subdivision. The plaintiff’s submissions that it should be implied that PMG requested MPI to undertake work must be rejected. Mr Galea’s evidence consistently indicates that he thought of the subdivision of part of his land, to yield three lots, as a minor add-on to the Cauchi parties’ much larger, 40 lot, development.

66. A claim for quantum meruit is a claim for reasonable remuneration for services rendered. In order to succeed in such a claim, it is necessary to prove that there was a request by the defendant for the plaintiff to do the work and a breach of a promise to pay for the work. A request may be implied if the defendant acquiesces to the performance of the work in the knowledge that it is not being done gratuitously (see Restitution Law in Australia 4th edition K Mason, JW Carter, GJ Tolhurst LexisNexis 2021 at [119]).

67. It has not been established on the evidence, on the balance of probabilities, that PMG expressly or impliedly requested MPI to do any work or that there was a promise to pay MPI in relation to any work. No relationship or interaction between PMG and MPI has been proven.

68. The basis for claims for restitution in relation to unjust enrichment and quantum meruit have not been made out.

Conclusion on the plaintiff’s claim

69. The plaintiff has not succeeded in proving any of the claims set out in its statement of claim.

70. Mr Saxon and Mr Suarez provided detailed evidence in relation to the quantum of the plaintiff’s claims. It is not necessary to consider that evidence in the context of the plaintiff’s claim because no basis has been established for any liability to MPI on the part of the defendant. It is also not necessary to consider the meaning of the terms of the Land Swap Deed relied upon by the plaintiff in circumstances where the plaintiff has no standing to sue the defendant on the Land Swap Deed.

Cross claims

71. PMG claims that it overpaid the Cauchi parties for land involved in the land swap under the Land Swap Deed.

72. Annexure A to the Land Swap Deed sets out, in a table, the area of the land to be transferred from the Cauchi parties to PMG and from PMG to the Cauchi parties. The difference in area is 485.9m² to be transferred from the Cauchi parties to PMG. The table provides for a transfer rate of $1150 per square metre.

73. Mr Saxon, in his report, said that a valuer, Ms Lynette Savage, valued undeveloped land in the area of the Cauchi land at $335 per square metre. He provided Ms Savage’s report as an annexure to his report.

74. It was Mr Saxon’s opinion that, while $1150 per square metre was a fair market rate for developed land in late 2020, and therefore an appropriate rate for Lot 230 (365.4m²) “as a fully serviced lot after registration”, it was an excessive rate for the balance of the land to be transferred to PMG which was undeveloped (120.5m²). On the basis of Ms Savage’s report, Mr Saxon believed that $335 per square metre would have been a fair market rate for 120.5m² of undeveloped land transferred to PMG from Galea under the Land Swap Deed.

75. The parties to the cross claim are PMG as cross-claimant and John Cauchi, John Anthony Cauchi and Raymond Cauchi as executor of the estate of the late Francis (Frank) Cauchi.

76. There is no doubt that the contract provides for a rate of $1150 per square metre for the land being swapped and does not distinguish between “developed” and “undeveloped” land for this purpose.

77. In its cross-claim, PMG seeks to have the Court override the plain terms of Annexure A and substitute an outcome which reflects what Mr Galea and Mr Saxon believe ought to have been agreed.

78. As the Cauchi parties pointed out, Mr Saxon’s analysis does not take into account the fact that the land contributed by each party to the land swap was priced at $1150 per square metre. No indication is given in the Land Swap Deed as to the basis for that figure, but it was applied to the land of both parties. Having said that, clearly, if the price were inflated it would be to the benefit of the party contributing the most undeveloped land to the swap. However, it cannot be assumed that “fair market value” was the basis of the price agreed.

79. I am not persuaded that there is any basis in law to interfere with the clear provisions of Annexure A to the Land Swap Deed. I note that the price has been paid and the land transferred.

80. The second claim in the cross-claim is a claim that the invoice from WEM to PMG was inflated.

81. WEM is not a party to the cross-claim. There is no basis for an award against WEM in these proceedings.

82. The cross-claims have not been made out.

Orders:

83. The following orders will issue:

84. Judgment for the defendant.

85. The proceedings are dismissed.

86. Judgment for the cross-defendant.

87. The First Cross-Claim is dismissed.

88. I will hear the parties as to costs.

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