Newshore Nominees Pty Ltd As Trustee for The Commercial & Equities Trust v Durban Roodepoort Deep, Limited [2004] WADC 57

Newshore Nominees Pty Ltd As Trustee for The Commercial & Equities Trust v Durban Roodepoort Deep, Limited [2004] WADC 57 - WADC 2004 case summary — Zoe

[39]

"Simply put the plaintiff's case is that Mr Mostert, on behalf of the defendant, orally engaged Mr Bryer [the plaintiff] in August 1999 to assist the defendant in maintaining and increasing DRD's share price. Pursuant to that engagement Mr Bryer met with brokers, fund managers, etc in Europe and the USA and reported back to Mr Mostert (both in person and by telephone) between September 1999 and April 2000. The plaintiff rendered an invoice in the amount of $247,000 for Mr Bryer's services in April 2000 for work done in the preceding seven months. The defendant paid that invoice."

"In early May 2000 Mr Mostert asked Mr Bryer to essentially carry out a feasibility study (in the sense of 'sounding out' possible contributors) as to the raising of US$75 million to assist the defendant with the buy-out/merger of a group of African companies involved in the mining/resources industry. In this regard Mr Bryer travelled to Hong Kong and Singapore. Upon Mr Bryer's return to Perth on 19 May 2000 Mr Mostert contacted Mr Bryer about an extended assignment. Mr Mostert informed Mr Bryer that the defendant was vulnerable to a hostile takeover by a number of companies. Mr Mostert repeated the request of early May 2000, as it was part of the plan to thwart the hostile takeover of the defendant, and added to it a request that Mr Bryer find a "cornerstone investor" who would invest US$40 million in the defendant. It is this engagement that these proceedings relate to. The defendant has not paid the plaintiff for work undertaken by Mr Bryer in that engagement.

In early May 2000 Mr Bryer was concerned that if the defendant was taken over there might be a dispute as to the plaintiff's engagement by the defendant. Accordingly Mr Mostert and Mr Bryer confirmed that the engagement should be recorded in writing. Mr Bryer (on behalf of the plaintiff) signed a document headed 'Service Agreement' on 19 May 2000. Mr Mostert signed that document on behalf of the defendant on 21 May 2000. Because of the history of dealings as set out above between Mr Bryer and Mr Mostert Mr Bryer reasonably understood that Mr Mostert had been mandated by the defendant's Board to sign the document and engaged Mr Bryer to proceed as discussed."

[53]

17 Without going into a detailed analysis of Bryer's evidence on what he did he generally gave evidence that he had carried out his brief as described in the Service Agreement and as directed orally by Mostert. Much complaint was made by counsel for DRD about Bryer's evidence of activities and services provided that went beyond those pleaded. There may have been some merit in counsel's complaints, however given the defence case that no work was done by the plaintiff, and given the lack of prejudice to the defence case and the view I take of the plaintiff's case, I do not think the numerous pleading points need to be further addressed.

18 It is Newshore's case that in carrying out his brief Bryer attended a meeting in Hong Kong between 22 and 24 May 2000. Bryer had been in Hong Kong only days earlier, but he was initially there on other business. It appears that although his negotiations with Mostert concerning this new assignment may have taken place in Hong Kong, he did not go to Hong Kong on 16 May for that purpose.

19 In his affidavit sworn in opposition to an application brought in the Supreme Court to set aside a statutory demand, Exhibit 8, at par 27, Bryer made reference to a trip to Hong Kong from Perth between 22 and 24 May 2000. (See Exhibits A125-129). As I have said there is no doubt he undertook that trip. There is no claim for any earlier Hong Kong trip in that affidavit.

20 Yet in Exhibit A227, which is Newshore's schedule of alleged expenses the subject of this action, there is clear reference to a claim for expenses for the trip to Hong Kong between 16 May and 20 May. (See Exhibit A113). I make further reference to this below.

21 Putting that aside, as a generalisation, it appears to be beyond doubt that Bryer did indeed, apart from going to Hong Kong on 22 to 24 May, travel to Sydney on 18 June. (Exhibit A130, 131). It also appears he travelled to Sydney on 22 June. (Exhibit A101-A107). There is also no doubt Bryer travelled to Sydney on or about 11 July for several days (Exhibits A155, A149-A153, perhaps A26, A228 and A148). Bryer did indeed go to the places that he says he did, when he did. The airline tickets, boarding passes, invoices, itineries and the like provide convincing proof.

22 It is also clear that as a result of taking these trips Bryer incurred associated expenses. What is really in dispute is what function he performed whilst he was on these business trips, whether or not he has already been adequately compensated and how reasonable is his claim if he has not.

23 As I have stated Bryer gave evidence about his activities. He had a convincing sort of presentation and demeanour in the witness box in evidence in chief as indeed did the plaintiff's other witness, Mostert.

24 It was Bryer's evidence that discussions with Mostert concerning his brief to find a cornerstone investor, etc, occurred whilst they were in Hong Kong conducting other business. He said Mostert agreed to engage Newshore to carry out various tasks but there was a concern about a risk of DRD being taken over by another company. Accordingly, Bryer felt it would be prudent to obtain some form of written agreement, which he drafted himself to protect his interests. (Exhibit A119; p 7 above). He sent that to Mostert on 19 May and Mostert signed it on 21 May 2000.

25 Bryer's evidence was that there were many oral instructions given to him by Mostert and much of the detail unexpressed in the written service agreement was covered in oral briefing. Thereafter, as a generalisation, Bryer said that he fulfilled his obligations in seeking to obtain a cornerstone investor.

26 Bryer's evidence was that over a period of some 71 days between 20 May and 30 July, he worked 64 days. He did not produce any written records to substantiate this claim.

27 Newshore's case was that it was Bryer's usual practice to "charge in the order of $A100,000 per calendar month or A$25,000 per week". (Paragraph 29 Exhibit 8). It was asserted that this equated to an hourly rate of $250 for "a 100 hour week". Bryer asserted that it was common place during this period for him to spend 100 hours or more per week. Given there are only 168 hours in a week this leaves an average of 9.7 hours per day for attending to the necessaries of life including rest.

[84]

53 To a large extent the correspondence that passed between the parties at this time, to which I have made reference above, speaks for itself. None of the source documents, financial records and the like requested by DRD in the correspondence after 8 August were ever provided by Newshore or Bryer to DRD. At trial some of the documents relating to travel and accommodation expenses were put in evidence but that was the extent of it.

54 In his evidence Bryer alleged, as I have indicated, that he worked for 64 days during the claimed period between 20 May 2000 and 30 July 2000. In other words he worked for 64 of 71 days. He alleged that he was working 14 and sometimes 18 hour days at $250 per hour.

55 Bryer asserted that Newshore's account for the period was in reality some $224,000. He said however that he sent an account for only $189,800, some $35,200 less (giving a 15.6 per cent discount). He said this was in consideration of "prompt payment".

56 On any view this was a generous discount. It is very surprising, given what he says about it, that there was no reference to Newshore's generosity on the face of its invoice Exhibit A224.

57 Furthermore the invoice is sent, and the discount given, in circumstances where Bryer knew the men with whom he had been dealing, namely Mostert and Stratton, were no longer with the company. I also note that nowhere in its contemporaneous and subsequent correspondence does Newshore mention anything about having given a discount.

58 In its form and substance, the invoice A224 has striking similarities with the interim invoice rendered to DRD dated 20 June 2000 relating to work with the Sun Hung Kai Group in Hong Kong. (A380/A381 previously discussed). It is difficult to reconcile these two invoices and the amounts claimed, bearing in mind the earlier invoice was paid.

59 Looking more closely at Invoice Exhibit A224 its structure seems to me to be quite curious. There is no means of knowing how the fee is computed. There are generalised assertions relating to work allegedly completed in May and June and then the total for the period, which includes all expenses apparently, and also obviously fees, is $175,600.

60 There is then a claim for only $14,200 for July being a month in which Newshore alleges that it was engaged full-time in pursuit of DRD's interests.

61 It is not possible to reconcile Newshore's assertion that charges were rendered to DRD on the basis of days worked at $3,500 per day for July (14 hours per day at $250 per hour). The point was taken by counsel for DRD in final submissions in an analysis of amounts claimed for July. It was suggested that for the month of July, assuming only three days were taken off, this left 27 working days at $3,500 per day equals $94,500. Adding that to the claim for expenses spelt out in Exhibit A227, which might be in the region of $6,800 or so, and it can be seen the sum of approximately $101,000 should be claimed for July. Yet in Exhibit A224 only $14,200 is claimed.

62 Looking at it from another angle, given there were allegedly 11 days in May and 30 days in June worked, this amounts to 41 days. For this period the invoice reflects a charge of $175,600. Even assuming Bryer worked every day of the 41 days this amounts to $4,283 per day which, at $250 per hour, gives 17.1 hours per day worked for every one of the 41 days. That is clearly absurd.

63 Alternatively $175,600 divided by $3,500 (daily rate) equals 50.2 days. The claim for $175,600 for May/June is inherently implausible at the hours and rate asserted by Bryer.

64 I am again left with a feeling of disquiet about Bryer's assertions that he has completed the hours of work he states. Newshore's fees seem exorbitant, its claim exaggerated. What Bryer actually did is difficult to know. I would accept however that he did go to the places he says he did and expended some energies on behalf of DRD but as to how much remains a mystery.

[152]

"These Vista Blue documents to which I just took you including the proposal for a preliminary fee of $400,000 US in your letter of 10 September 1999, the date at which these letters were prepared and the fact that they refer to promotional activities in Europe and USA is consistent with the fact that your arrangement in this period with DRD was through Vista Blue and not through Newshore?---No. At both - at that period of time - No it was both.

Are you saying that DRD engaged you, engaged Newshore through you, for you to engage in promotional activities on its behalf at this very time in September and October 1999?---No, Vista Blue was promoting stock on the United States. Newshore could not do so.

Didn't you say at page 144 of the transcript that the work you did involved making phone calls to associates, that included the United States?---Yes.

And then having made those appointments you would begin your rounds?---Yes correct.

Presumably, that included travelling to the United States?---Yes of course it does.

Are you saying the promotional activities performed in the United States were performed by Vista Blue?---Yes.

And in other countries by Newshore?---Yes.

In other countries by Newshore?---Not every other country but mostly yes.

But isn't it the case if you look Mr Bryer at Vista Blue's invoice of 1 November 1999 for $150,000?---Yes.

That Vista Blue has charged DRD for promotional activities carried out in Europe?---Yes correct.

And yet you say that at the same time Newshore was also charging for promotional activities carried out in Europe?---Correct.

Why was it do you say that DRD retained both Vista Blue and Newshore to provide those services?---Vista Blue promoted shares only. That's what it did. It was to keep - it was to firm the share price, to make people interested, to bring the company to the attention of the stock market. In the United States it required a track record. In other countries it did not.

So you're saying that Newshore did not provide services in the United States?---No, it also provided service in the United States where no track record was required. There are certain big brokerage houses - not only brokerage houses but private clients who won't deal with a company that they don't recognise.

For what purpose would Vista Blue not meet with the brokers of that kind in the United States?---It did meet with them.

Was that you on behalf of Vista Blue meeting with these brokers?---I and others.

Well you on behalf of Vista Blue?---No. I said 'I and others' and it would involve, for example, a law firm in the United States, in New York in particular, that arranged such lobbying and introductions.

How would you decide whether a meeting that you attended was going to be charged by Vista Blue and which meeting was going to be charged by Newshore?---Because we handled a specific job which was finished ultimately by Vista Blue and then Newshore took over after that.

Alright so...?---Where it was required where there's a great deal of money to be expended on promotional activities, Vista Blue did it, because its responsibility was to pay the bill.

When do you say that the Vista Blue part of the services and the Newshore part started?---It was no specific time. It was in fact overlapped many times. It would make no difference.

You said that when the Vista Blue part of the project finished, Newshore commenced its operation?---No, it didn't commence. It was already running its operation and there may be some overlap but its of no consequence.

Vista Blue charged for expenditures incurred by it in relation to the activities in which it engaged?---Yes some of the expenses of course.

Which expenses didn't it charge?---Well its total fee was all paid to an off-shore company so it makes its own arrangements and pays its own bills."

[155]

135 As I have mentioned Mostert was a former director of DRD who left the company in early August 2000, following which Newshore rendered its invoice the subject of these proceedings. Mr Mostert was called to give evidence by the plaintiff. It was through Mostert that Bryer frequently dealt when conducting the business of either Vista Blue or Newshore with DRD.

136 Charles Mostert was also a witness who was impressive initially when giving his evidence in chief. In most respects Mostert's evidence was supportive of Bryer. This is certainly so as to the commercial history of dealings between the parties prior to May 2000 and as to the alleged formation of the agreement, the services agreement, upon which Newshore sues. Mostert generally supported Newshore's case that work was done pursuant to the services agreement and that Newshore had an entitlement to be paid.

137 There was clearly no love lost between Mostert and his former employer DRD. At T461 Mostert agreed that DRD was currently pursuing "very substantial claims" against him in the Supreme Court of Western Australia. Mostert could not be described as an independent witness.

138 All of the prior payments made by DRD to Newshore or Vista Blue which are not the subject of this action, were made either by DRD or DRD Australasia when Mostert was the Chief Financial Controller of DRD. As I have mentioned, Mostert, or Stratton who was another employee based in Perth, seem to have accepted Newshore's and Vista Blue's earlier accounts with hardly any query at all. Nor was there any evidence produced which established whether the fact of these payments was ever raised with DRD by either Mostert or Stratton or anybody else. In my view these matters do not reflect favourably upon Mostert given the office he held with the defendant.

139 With respect to one area in particular, I had great concerns about Mostert's credibility and reliability as a witness. This related to the issue of what was agreed with Newshore concerning the method of calculation of fees. In the fourth paragraph of the document said to be the written part of the service agreement (Exhibit A119) which was signed by Mostert as Chief Financial Officer of DRD on 21 May 2000, in the fourth paragraph, it says that it was a term of the service agreement that fees be "based on time spent".

140 In par 16 of the statement of claim it is pleaded that the agreed daily rate for the provision of services was $3,500. Alternatively, it is pleaded in par 17 and par 18 that there was an implied term that the defendant would pay the plaintiff reasonable remuneration and having regard to the complexity of the services, and Bryer's expertise and experience, $3,500 per day is alleged to be a reasonable rate. It is also claimed that that rate was consistent with the previously paid fee of $247,000.

141 In his evidence at T401, in examination-in-chief, Mostert was asked about the method of calculation of fees and he appeared to lose much of his confident presentation. He became defensive, he stuttered and he was uncertain and seemed uncomfortable. He was vague about the matter and his evidence was inconsistent with Bryer. And this was in evidence in chief. I will set out some of what he said:

[156]

"Mr Mostert can I take you back to the 1999 period and Mr Bryer on the subject of payment to him what discussion or agreement did you have with Mr Bryer as to how he or the entity in whose name he rendered the invoice was to be paid?---I looked towards Mr Bryer to discharge the services that we had agreed upon. The companies that he had used in order to receive payment for those services were at his elect. I never questioned him as to why he had chosen particular companies to receive those payments.

How did you arrange the amount of the - sorry, how did you arrange the amount of the payment of the company in whatever name it was rendered?---The amount of the payment was using a rule of thumb as a percentage of what I believed was the value of the services rendered to me. If I can explain, for market making we had issued a number of shares, those shares had a value, a market value. To maintain the market value of those shares I equated his fee to a percentage of that market value.

What was the percentage?---For market making was less than one per cent. Less than half a percent.

Okay, that's market making. What about the other function you have described?---The other function for raising funds, bench mark would be around about five to six per cent. We agreed to a fee much lower than that. Also agreed that it would cover his costs of transport, accommodation and out-of-pocket expenses.

Doing the best you can now, can you remember how much the fee was that you agreed to with Mr Bryer for the loan finance raising?---I'll have to take a guess. Three per cent, three and a half per cent. That's to the best of my recollection?

(T402) Did you have that discussion again at the time of the visits to Hong Kong and Sydney and the Auto Caps proposals?---Yes, our discussions were on an ongoing and regular basis. ...

Did you have a discussion with Mr Bryer that you can recall on about 19 or 21 May about how much was to be paid to him for producing offers, as you have described them in your evidence?---Yes. Although we had discussions on specific items, I always treated the fee as an all encompassing fee because while he was assisting us to raise finance, he also had the duties of market making, hence the fee that we had agreed on was for all three categories of service.

How much was that fee?---There were specific invoices rendered; one for $240,000 and two invoices for $63,000 that's what we had agreed upon. Plus then there was other ongoing work. As you would see from this agreement, it was for a 12 month period.

Yes was there any discussion about a fee for the Auto Caps transaction?---Not specifically. We wrapped that all up in the total fee we had paid him but the bench mark that I used in setting the total fee was approximately the three and a half per cent of the offer, of $10,000,000."

[171]

158 No such letter was tendered in evidence. Neither was the Stratton affidavit.

159 There was no reference to Mostert being expressly "mandated" to enter into agreements such as that the subject of the trial in any other document. Some of the minutes of meetings of the directors of the defendant were tendered in evidence. Exhibit 14A was the minutes of the meeting of the Board dated 21 July 1999. Exhibit 13A was minutes of the meeting of 14 April 2000. Each of those minutes contained a reference to the passing of resolutions during the previous quarter which were to be ratified by the Board. A perusal of the sorts of resolutions requiring ratification reveals that the Board was informed about and had a role to play in relatively minor events in the company's business. For example, in exhibit 13A item No 7, the resolution of 9 March 2000 there is a reference to the ratification of a resolution to enter into an agreement with an advertising company to install an advertising sign at a monthly rental.

160 It seems to me that given the nature of the matters which were resolved and required ratification by the defendant Board, that it is inconceivable Mr Mostert would have been authorised as the plaintiff alleged without it being minuted. The more so, given the significance of the brief, namely a company taking steps, allegedly, to secure its somewhat precarious financial position. And yet there is no evidence it ever was. The absence of that evidence seems to me to suggest that Mostert was not ever expressly authorised to act on behalf of the defendant to enter into the agreement the subject of this action or to commit funds of this dimension to professional services. Mr Mostert's sworn word to that effect is not sufficient to persuade me that it was so.

161 The case put by the plaintiff perhaps relies more heavily on an assertion that Mostert had implied authority. The proposition briefly seems to have been that Mostert, being the Financial Director of the defendant and the CEO for the defendant's "Australian leg" (T378) at the relevant time, had authority to engage professionals. It was put that Bryer was a professional and therefore Mostert would not need to report to the Board upon such a matter.

162 The only documentary reference, and an oblique one at that, to the business of the company for which the plaintiff says it was providing services is in the minutes of a meeting of directors of DRD held in South Africa on 25 July 2000 which Mostert attended, and which occurred a few days before he resigned. (Exhibit A322-331 - par 10 on p 7 headed "DRD Australia Report"). The "Annexure B" referred to in the opening sentence, being a review for the quarter ended June 2000 tabled by Mostert at the meeting is Exhibit A316-321.

163 The minutes pick up the first two paragraphs of Mostert's review and state as follows:

[187]

174 In cross-examination of Bryer counsel for the defendant showed to him and later tendered Bryer's affidavit sworn 10 November 2000. The affidavit was sworn in opposition to an application made in the Supreme Court to set aside the plaintiff's statutory demand made pursuant to the Corporations Act. The affidavit became Exhibit 8.

175 Counsel for the defendant made use of some references made by Bryer in the affidavit in his attack on Bryer's credit (T294 et seq). The affidavit had been sworn in the said Supreme Court proceedings before the proceedings the subject of this action were commenced in this Court.

176 In his affidavit Bryer sets out his assertions about the history of this matter, about how the alleged agreement was formed, its terms, and his assertions about performance. The affidavit contains a comprehensive summary of the oral evidence that Bryer gave for the plaintiff in this trial with some variations.

177 Counsel for the plaintiff submitted that Bryer's prior affidavit having been tendered by the defendant, the assertions favourable to the plaintiff not being challenged by counsel for the defendant became evidence of the facts stated. It was submitted the affidavit should therefore be taken as additional evidence that supported Bryer's viva voce evidence even though it was also from Bryer. Counsel for the plaintiff referred to comments in Cross on Evidence, 5th ed, at pars 17570-17575 at T567 and to the well known authority of Walker v Walker [1937] HCA 44; (1937) 57 CLR 630.

178 I had difficulty in following counsel's argument. The affidavit was tendered by the cross-examining party who had produced it to the witness. Perhaps it can be said that the affidavit, having become evidence, is evidence of the facts stated in it. Although it is an affidavit, and one sworn in legal proceedings albeit in a different court, I doubt that it is as significant as counsel asserts. It is a prior consistent statement by the witness. It is self-serving. There was no suggestion of recent fabrication. I attribute little weight to it as a document and do not agree that it is significant evidence in support of the plaintiff's case, additional to the viva voce evidence of Bryer. (See Jones v Sutherland Shire Council (1979) 2 NSWLR 206 (Ct of App) at 219).

[189]

179 On 9 November 2001 the parties were ordered to give discovery on oath (Exhibit 27).

180 By letter dated 14 October 2002 the defendant's solicitors wrote to the plaintiff's solicitors "asking for production of the relevant financial statements of Newshore including the relevant taxation return and ledger details showing the income earned by Newshore in the financial year ending 30 June 2000" (letter referred to at T340 in cross-examination of Bryer - but never tendered).

181 In cross-examination of Bryer commencing at T339, he was pressed on the issue of the need to produce documentation particularly relating to the invoice of $247,000 rendered to and paid by the defendant. Bryer indicated in cross-examination that he did not want to produce such documents. Counsel for the plaintiff then mounted an argument upon the basis that as the plaintiff was not seeking the sum of $247,000 from the defendant, and as the defendant was not seeking that the plaintiff repay that amount, that the entire issue was a collateral issue in respect of which it was not appropriate that orders for discovery be made.

182 In response counsel for the defendant pointed out that it was the plaintiff who had caused the previous payment to be relevant to the trial by pleading the transaction that resulted in the payment and by seeking to incorporate by reference to that payment a number of important matters relating to the claim the subject of the action.

183 As I indicated during argument the issue of the payment of the $247,000 was made relevant by the plaintiff and the surrounding documentation is discoverable.

184 Without analysing in detail every exchange that took place between myself and counsel as appears from T340-344 I do not think counsel could have been in any real doubt about whether or not an order was made.

185 In the result, by the next day, Bryer, having stated that the records existed, produced none. He was examined about this at T359. His counsel did his best to control the damage but the fact remains that no documents were produced.

186 Counsel for the defendant made much of this matter in his submissions at T554-560. In essence it was submitted that the plaintiff's failure amounted to a refusal to comply with the order for discovery which should result in judgment being ordered against the plaintiff:

[198]

198 I have already reviewed the evidence of both Bryer and Mostert as to how the plaintiff's remuneration was to be calculated and it is clear that the evidence is inconsistent. By reason of the findings I have made about the quality of the evidence adduced on behalf of the plaintiff, as I have indicated, I am not satisfied that the agreed rate was either $100,000 per month, $25,000 per week, $3,500 per day, or $250 per hour.

199 Apart from invoices which were silent on the point, there was no clear documentary support for any particular rate of remuneration or method of calculation of fees. As I have mentioned there was an absence of records of time spent. Furthermore, Mostert, who was called to give evidence by the plaintiff, was not asked in chief and gave no evidence about hours spent by Bryer.

200 In the absence of any conclusion about what was agreed concerning rates of remuneration I then turn to the question of whether it can be said that there was an implied term of the agreement that the plaintiff would be paid reasonable remuneration.

201 In my view there was an implied term of this agreement that the plaintiff would be paid reasonable remuneration for services provided. Such a term is essential to give business efficacy to the agreement. I do not think any further discussion of the law is necessary.

202 However, I have considerable difficulty in identifying what evidence can be relied upon in order to assess what would be a reasonable rate of remuneration. The plaintiff asserts that a reasonable rate of remuneration is $3,500 per day. It was argued that that rate was the basis of calculation of fees rendered in previous invoices in respect of a different agreement, for allegedly similar services, which invoices were paid by the defendant to the plaintiff.

203 For the reasons that will be obvious in these remarks I do not accept that argument. It is not clear from any previous invoices that that was the rate charged and paid. I do not accept Bryer's evidence in relation to that issue given it is unsupported by any other evidence apart from, perhaps, Mostert's evidence.

204 Bryer's evidence was that $3,500 per day was based upon a 14 hour day at $250 per hour.

205 The sum of $250 per hour, in isolation, would not seem to be excessive. The assertion that a person worked for 14 hours a day for a brief period may be plausible, it seems to me, but I do not accept that the plaintiff worked for 64 days out of 72 days, for 14 hours a day (or, according to Mr Bryer, up to 18 hours a day). I think defence counsel's observations in closing about this issue have some merit where at T525 he said:

[204]

211 It is the assessment of the number of hours that Mr Bryer worked between 20 May and the end of July that is the most difficult task. I do not accept his evidence that he worked the hours per day he claims over the days he claimed. Mostert does not support him except generally, and there is little other evidence upon which I can rely.

212 The only piece of evidence that provides an arguable basis upon which an assessment of hours, and indeed rates, could fairly be made comes from the plaintiff itself. It is the interim invoice discussed at p 12 et seq above; Exhibit A380 as expounded in Exhibit A381.

213 As I have previously noted, the interim invoice rendered by Newshore to DRD was for the period 10 May-4 June 2000, being about 25 days. Allowing for weekends that period could be said to be about 20 working days.

214 For this period, Newshore claimed and was paid US$10,000 as fees, or about A$16,600 which, over the 20 day claimed period, averages at A$830 per day, or A$4,150 per week. That is how Newshore valued its services for a period prior to the period the subject of this action and overlapping some 15 days with the term of the alleged contract now sued upon.

215 Bryer in examination-in-chief on 18 December 2002 said the interim account was rendered because the work that he was doing had become very expensive (T195). He asserted the work charged was not the same as that being sued for. I do not accept that evidence for the reasons I have already explained and also because it is inconsistent with the terms of the invoice.

216 Bryer did not say he worked any harder or longer on his brief after 4 June. He did not really differentiate between his account of the extent of the work he did that culminated in the interim invoice and the work that culminated in the invoice on which Newshore sues. Indeed, Bryer suggested the invoice was not for his services at all!

217 In cross-examination Bryer suggested the interim invoice only covered out-of-pocket expenses (T248). This flies in the face of the document. (See T300-303). I have already said Bryer's evidence about the interim invoice and his efforts to explain away what the document states were unsatisfactory.

[208]

As will appear, that was an understatement.

221 The interim invoice - Exhibit A380-381, discussed above, was rendered for "work done during the period 10 May 2000 to 4 June 2000 inclusive. It refers to hotel accommodation Hong Kong dollars 9,916. It has references to "transport, meals..." US$4,405, to telephone and communication charges, of US$6,410, and to "fees" of US$10,000.

222 Referring to Exhibit A227 the first item relating to hotels, which is the second section, refers to accommodation at the JW Marriott in Hong Kong for two periods in May which in Hong Kong dollars (totalling Exhibits A113 and A128) equals $9,916. This is the sum referred to in the interim invoice which, indisputably, was paid. Bryer dealt with this at T288.

223 By inference the claims for airfares to Hong Kong in May would relate to the same period although they are not specified other than that they occurred in May. These items appear at the head of the list in Exhibit A227. They are not supported by any records or receipts whatsoever. They could well have been paid as part of the payment of the interim invoice.

224 I would not be prepared to make any allowance for airfares to Hong Kong because I think they could well have been paid already.

225 As for the trip to Sydney in July 2000 which was not paid by DRD I would be prepared to make allowance given there is no doubt Bryer went to Sydney and given it was not in a period covered by any other invoice. The other airfares were paid by DRD.

226 As to the claim for the Ritz Carlton in Sydney in July I would also be prepared to allow that although there was no receipt.

227 Photocopying, etc, results in a claim of $482. This is a mere estimate unsupported by documentation. I would not allow that.

228 Hertz Rentacar - given Bryer was in Sydney in July I would allow that at $585.32 although there are no receipts.

229 Private meeting room rental - there is no documentation whatsoever and I would not allow that.

230 Optus mobile accounts seem to me to be excessive. However, it is certainly plausible that there would have been some allowance for Bryer's personal mobile costs. I would allow that at $1,000.

231 Taxis, trains and ferries is unsupported by documentation. I would not allow that.K

232 The claim for away from home allowance of $300 per day for 32 days is unsubstantiated in any way. It is an estimate and I would not make any allowance for that.

233 Therefore I allow the following expenses:

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Judgment (212 paragraphs)

Newshore Nominees Pty Ltd As Trustee for The Commercial & Equities Trust v Durban Roodepoort Deep, Limited [2004] WADC 57 (31 March 2004)

Parties

Cases Cited (12)