Now Careers Pty Ltd v Heavenly Revamps Pty Ltd [2026] QDC 24

PROFESSIONS AND TRADES - BUILDERS - LICENCES AND REGISTRATION - whether the plaintiff failed to meet the statutory requirements of section 42 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC) regarding payment and retention of payment as a contractor

TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS - MISLEADING OR DECEPTIVE CONDUCT GENERALLY - whether the plaintiff engaged in misleading and deceptive conduct that contravenes section 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cth)

Australian Securities and Investments Commission Act 2001 (Cth)

Competition and Consumer Act 2010

Corporations Act 2001 (Cth)

Uniform Civil Procedure Rules 1999 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld)

Property Law Act 1974 (Qld)

Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51

Australian Competition and Consumer Commission v South East Melbourne Cleaning Pty Ltd (In Liq) [2015] FCA 25

Boral Resources (NSW) Pty Ltd v Armitt [2024] NSWSC 554

Cameron v Qantas Airways Ltd [1995] FCA 1304; (1995) 55 FCR 147

Hampton v BHP Billiton Minerals Pty Ltd [No 2] [2012] WASC 285

Leggott v Barrett (1880) 15 Ch. D. 306

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104

Productivity Partners Pty Ltd v Australian Competition and Consumer Commission [2024] HCA 27; (2024) 98 ALJR 1021

Sedgman South Africa (Pty) Limited & Ors v Discovery Copper Botswana (Pty) Limited [2013] QSC 105

Westpac Banking Corporation v Clark; ex parte [2015] QSC 353

West v AGC (Advances) Ltd (1986) 5 NSWLR 610

R W Haddrick for the plaintiff and the first defendant by counterclaim

The second defendant appeared on her own behalf and on behalf of the first and third defendants

Results Legal for the plaintiff and the first defendant by counterclaim

The second defendant appeared on her own behalf and on behalf of the first and third defendants

[2] This case is particularly poignant because it marks the end of a small business and the loss of a couple's home. It illustrates the risks associated with rapid growth in small business and the need to manage cash flow carefully. It also illustrates the measures some businesses have to take to recover unpaid debts.

[3] The dispute arose after the non-payment of invoices.

[4] The plaintiff, Now Careers Pty Ltd (Now Careers), operates a labour hire business that provides skilled labour to a variety of industries under its standardised terms and conditions.

[5] The first defendant, Heavenly Revamps Pty Ltd (Heavenly Revamps), operated by the second and third defendants, Mr Paul Angel and Mrs Karina Angel, is a construction business engaged in fit-out projects. Heavenly Revamps engaged contractors to undertake the fit-outs under its management and supervision.

[1] For all intents and purposes, it was, until this dispute arose, a successful small business. At all relevant times, Mrs Angel was the managing director, and Mr Angel acted as director and/or secretary.

[2] On 16 October 2023, Now Careers and Heavenly Revamps entered into an agreement for the supply of relevantly skilled labour.

[3] Over a very short period, Heavenly Revamps secured numerous contracts, leading to an escalating demand for contracted labour from Now Careers.

[4] Over five months, from October 2023 to February 2024, Now Careers supplied labour for various projects and issued invoices in accordance with the agreement.

[5] Unfortunately, Heavenly Revamps' cash flow was insufficient to make timely payments to Now Careers for the services it provided.

[6] Over several weeks, a series of meetings took place between Now Careers and the defendants in an attempt to reach an arrangement for the repayment of the monies owing. The outcome of those meetings was that Heavenly Revamps entered into a Settlement Deed which formalised the outstanding debt and set out repayment terms (Settlement Deed). Mr Angel entered into a deed of guarantee personally guaranteeing Heavenly Revamps' compliance with its obligations under the Settlement Deed. A subsequent Deed of Variation, negotiated at a subsequent meeting, which amended the debt amount and instalment obligations, was also executed (Deed of Variation) (collectively, the "Deeds of Settlement").

[7] Heavenly Revamps defaulted on the revised payment schedule set out in the Deed of Variation. Heavenly Revamps only paid the first instalment of $70,000. Now Careers took steps to enforce the deeds, including lodging a caveat over property owned by Mr and Mrs Angel, and commencing these proceedings.

[8] Now Careers contends that the defendants are in default of their obligations under the deeds of settlement, having failed to pay the agreed settlement amount.

[9] Now Careers seeks to enforce the Deeds of Settlement and guarantee against the respective defendants.

[10] The defendants contended that the deeds of settlement are unenforceable on a number of grounds, including that they were unconscionably pressured by Now Careers and the defendant by counter-claim, Mr Rhys Yorke, into entering into the deeds.

[11] For the following reasons, I find that the deeds of settlement are enforceable.

[12] Now Careers is entitled to judgment for its claim. The defendants' counterclaim is dismissed.

1. Mr Yorke - director and 25% shareholder of Now Careers;
2. Ms Emma Hill - director and 25% shareholder of Now Careers;
3. Mr Donald Stout - director of Now Careers and director of Now Careers Group, which has a 50% shareholding in Now Careers; and
4. Mr Matthew Hills - Project manager at Urban Fitout Group (UFG).

[14] The defendants called the following witnesses:

1. Mrs Angel, current managing director of Heavenly Revamps; and
2. Mr Angel, former director and secretary of Heavenly Revamps.

[15] The defendants represented themselves. Mrs Angel was the advocate for the defendants.

[16] A few days before the commencement of the trial, the defendants filed an outline of argument that raised new allegations not pleaded in their defence counterclaim. New allegations were also raised by the defendants throughout the trial.

[17] Pursuant to an agreement entered into on 16 October 2023, Now Careers provided services (i.e. labour hire), to Heavenly Revamps and issued invoices. As of 7 February 2024, Now Careers claimed that the total amount of $605,089.03 remains outstanding on the issued invoices (the Debt).

[18] Pursuant to a settlement deed and deed of variation:

1. Heavenly Revamps agreed to pay Now Careers $500,000 in full and final settlement of the Debt by way of four instalments payable between 16 February 2024 and 16 May 2024; and
2. if there was any default payment of the instalments, Heavenly Revamps agreed that:

(i) the debt would become immediately payable;

(ii) it would pay Now Careers interest on any outstanding amounts at the rate of 10% per annum calculated daily;

(iii) it would pay Now Careers' costs on an indemnity basis arising from the default and the enforcement of the settlement deed; and

(iv) it would consent to a judgment being entered against it for the balance of any debt remaining owing.

[19] Heavenly Revamps paid the first instalment of $70,000 to Now Careers on 16 February 2024. The second instalment of $200,000, due on 16 March 2024, was never paid by Heavenly Revamps. No further payments have been made by Heavenly Revamps to Now Careers since 16 February 2024.

[20] Pursuant to the Deeds of Settlement, the balance of the debt, excluding interest and costs, owed by Heavenly Revamps totals $535,089.03 (calculated as the Debt amount less the $70,000 payment).

[21] On 2 February 2020, Mr Angel entered into a written personal guarantee pursuant to which he guaranteed (Guarantee):

1. Heavenly Revamps obligations under Deeds of Settlement;
2. to pay all amounts due;
3. to pay Now Careers costs on an indemnity basis;
4. to charge in Now Careers' favour all of his estate and interest in any real property with the amount of the indebtedness under the guarantee.

[22] On 15 April 2024, Now Careers lodged a caveat over Mr Angel's interest in real property at 37-41 Philippa Road, North Maclean, Qld 4280, being Lot 28 on RP 840655, Title Reference 18321212 (Property). This Property is Mr and Mrs Angel's place of residence. Now Careers claim an interest in the Property as an equitable chargee/mortgagee pursuant to the Guarantee. Now Careers seek an order for the sale of the Property in order to realise its interest.

[23] Prior to the last amendment to the defence, the defendants had legal representation.

[24] On 30 January 2025, the defendants filed an amended defence which had not been settled by any legal representatives.

[25] The defendants contend that Now Careers' claim should be dismissed on the ground that the deeds were unenforceable. The defendant raised the following grounds in support of their primary contention:

1. The deeds had not been executed in accordance with section 127 of the Corporations Act 2001 (Cth),
2. Heavenly Revamps fulfilled its contractual obligations to the Plaintiff before litigation commenced on 10 May 2024, so no debt is owed;
3. the terms of the labour hire agreement affected the deeds of settlement, and they are therefore unenforceable and void;
4. Now Careers failed to meet the statutory requirements of section 42 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC) regarding payment and retention of payment as a contractor;
5. Now Careers failed to meet the statutory requirements of the Property Law Act 1974 (Qld) (PLA).

[26] Additionally, the Defendants counterclaim against the Plaintiff for:

1. misleading or deceptive conduct that contravenes section 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law (ACL);
2. unconscionable conduct and repudiation of contractual conditions that contravenes sections 20(1) and 21(1) of the ACL; and
3. unlawful conduct in issuing invoices and attempting to enforce obligations beyond the terms of the Agreement, contrary to the QBCC Act.

[27] The defendants' claim, as a result of the above contentions, is that the caveat over the Property is unlawfully registered and must be withdrawn.

[28] The defendants also seek relief under sections 236, 237, and 243 of the ACL and claim damages for loss suffered due to Now Careers' failure to comply with legal requirements and the manner in which the Plaintiff procured execution of the deeds.

[29] The conduct complained of by the defendants is said to have occurred at a meeting between the defendants and representatives of the plaintiff on 2 February 2024 (2 February Meeting).

[30] The defendant alleged the following occurred at the 2 February Meeting:[1]

(a) on a table in the conference room a number of documents were laid out;

(b) Mrs Angel was suffering from a migraine headache;

(c) Mrs Angel said words to the effect that she was suffering from a migraine headache and she could not participate in the discussions which were proposed to take place;

(d) Mr Yorke said words to the effect that a discussion was not going to take place and that the purpose of the meeting was for the defendants to execute the documents on the conference room table;

(e) Mrs Angel said words to the effect that she would not sign any documents because she could not read them due to her migraine headache;

(f) Mr Yorke requested that Mr Angel sign a document styled "Settlement Deed" (Settlement Deed);

(g) Mr Yorke said words to the effect that the purpose of the Settlement Deed was to make payable all of the amounts pursuant to the Invoices according to a payment arrangement;

(h) Mrs Angel said words to the effect that Mr Angel was dyslexic and that he could not read the Settlement Deed;

(i) Mrs Angel asked Mr Yorke to read the document to Mr Angel;

(j) Mr Yorke said words to the effect that he would not read the documents and that the defendants could have a lawyer read it for them;

(k) Mr Angel then said words to the effect that they needed to speak to lawyers;

(l) Mr Yorke then said words to the effect that, no matter what the defendants did, whether they saw lawyers or not, they needed to sign the documents that day and that if they did not, he would "be shutting down Heavenly Revamps';

(m) in response Mr Angel said words to the effect that, he and Mrs Angel were not going to have time to see a lawyer by the end of the day and they could not be expected to sign the documents without knowing what they were going to sign;

(n) Mr Yorke then said words to the effect that "it's just what you owe us" and that if the defendants did not sign the Settlement Deed by 5pm on that day, that he would wind up the first defendant on the same day;

(o) Mr Angel then attempted to read the Settlement Deed;

(p) Mr Angel did not understand the terms of the Settlement Deed;

(q) Mr Angel then signed the Settlement Deed;

(r) Mrs Angel said during the meeting words to the effect that she did not want to sign the document, because she had not read it and could not read it because of her migraine;

(s) Mrs Angel then signed the Settlement Deed;

(t) Mrs Angel signed the Settlement Deed because she was under the belief, because of what Mr Yorke told her, that if she did not sign the Settlement Deed Heavenly Revamps would be shut down that day;

(u) Mr Yorke and Ms Hill knew that the Mrs Angel did not read the Settlement Deed before she signed it;

(v) Mr Yorke then handed Mr Angel a document styled "Deed of Guarantee and Indemnity' (Deed of Guarantee);

(w) Mr Angel asked Mr Yorke what the Deed of Guarantee was;

(x) Mr Yorke responded with words to the effect "it just goes with the other document'; and

(y) Mr Angel then signed the Deed of Guarantee without reading it.

[31] The defendants allege that by virtue of the matters particularised above, Now Careers and Mr Yorke have engaged in conduct contrary to section 18(1) of Schedule 2 of the Competition and Consumer Act 2010 (Cth).

[32] Now Careers and Mr Yorke dispute any allegation that they pressured or interfered with the defendants causing them to enter into the Settlement Deed. The plaintiff submitted the defendants knowingly and willingly entered into the Deeds of Settlement.

1. Now Careers should be able to enforce the Deeds of Settlement; or
2. there is a statutory or equitable vitiating factor rendering the Deeds of Settlement unenforceable.

[34] Now Careers specialises in labour hire for the construction industry and warehousing manufacturing. A contracted labourer generally remains on the plaintiff's payroll unless there has been a permanent placement with a client in which case there would be a recruitment fee charged. A prospective client completes an application form and a services agreement. The host employer, not Now Careers, determines what the labour hire does and instructs the labour and supervisors. Timesheets are submitted by the labourer to Now Careers weekly. The timesheet is then provided to the client and if approved goes to Now Careers' payroll. Now Careers pays the employee and then invoices the client.[2]

[35] On October 16 2023, Now Careers entered into an agreement with Heavenly Revamps for the supply of "services" (Labour Hire Agreement).[3] A Now Careers' client account application form dated 16 October 2023 was signed electronically by Mr Angel (CAA). The CAA provided the account contact details were for Mrs Angel and that the "preferred trading terms" was 30 days with a "preferred credit limit" of $35,000.[4]

[36] In addition to the CAA, Mr Angel, on behalf of Heavenly Careers, also submitted and executed a client safety form and an acknowledgement that he had read and understood the Now Careers terms and conditions of business. The CAA, client safety form and the terms and conditions are all part of the Labour Hire Agreement.[5]

[37] There is a dispute over the meaning of the phrase "preferred credit limit" in the CAA. Mr Yorke said the "preferred credit limit" indicates what a client says they are comfortable with paying over a thirty-day period.[6] The defendants contend that the Labour Hire Agreement imposed a hard limit (i.e. $35,000) on the amounts that could be invoiced within a thirty-day period.[7]

[38] Relevant Terms and Conditions of Business include:[8]

• clause 1.1(a) - Agreement means the contract for services between the parties including our client account application form, client safety form and these terms and conditions
• clause 1.1 (o) - Services means all professional employment, recruitment and labour hired services provided by us to you under these terms
• clause 2.1 - these are the entire terms and conditions of business between the parties for the conditions upon which we provide Services to you
• clause 2.3 - you engage asked to provide Services strictly as an independent contractor
• clause 3.2 - this agreement constitutes the entire agreement between the parties relating in any way to its subject matter
• clause 3.3 - ... in circumstances where there is a pre-existing written agreement (original agreement) between customer and supplier, these terms and this agreement will constitute a variation of the original agreement whereby the terms of the original agreement are deleted, and replaced with the terms herein
• clause 3.4 - the agreement may only be varied in writing by us
• clause 4.1 - you must pay us all fees charges out-of-pocket expenses for our Services related to temporary workers
• clause 4.2 - you agree to pay the hourly charge, (plus GST) advised by us at the time of the booking of the temporary worker assignment. Your booking constitutes your acceptance of the hourly charge fees that are payable in accordance with this agreement
• clause 4.8 - you agree to verify and sign our timesheets each week including electronically via Now Careers Queensland online timesheets portal if required. Signature or online verification of the timesheets by you constitutes acceptance that the temporary workers has worked satisfactorily for the hours indicated on the timesheets. Failure to authorise timesheets does no alter your liability to pay for hours worked
• clause 4.9 - you warrant that any person signing and submitting the timesheets in respect of a temporary worker has your authorisation and power to do so
• clause 4.10 - you must pay all fees and charges for a temporary worker by the due date
• clause 4.14 - if you fail to pay our invoices on time, then without prejudice to any other remedy we may:

(b) terminate this agreement in accordance with section 18

(c) set off any other payments you have made against amounts due; or

(d) charge you interest calculated daily and compounded monthly at 2% above the Westpac reference lending rate at the date of payment and the costs of recovery (including on a full indemnity basis any legal costs)

• clause 15.1 - to secure payment of all monies you owe us for the Services, you:

(a) charge all of your interest in real and personal property...

(b) authorise and consent to us taking all actions necessary to give effect to the charge, including the lodgement of a caveat upon any title of your real property...

[39] Following the execution and submission of the Labour Hire Agreement documents, Now Careers commenced providing labour hire services to Heavenly Revamps as per Heavenly Revamps requests.

[40] Between 16 October 2023 and 2 February 2024, Now Careers supplied labour hire services to Heavenly Revamps for a range of projects located across Greater Brisbane and Toowoomba, including projects at the Emirates airport lounge at Brisbane Airport, Orion Springfield Shopping Centre, and the Greenbank RSL.

[41] Now Careers issued invoices to Heavenly Revamps in accordance with the Labour Hire Agreement. The tax invoices attached timesheets to indicate the start/end times and total hours worked by the contractors. The invoices also indicated the hourly rate assigned to the particular contractor. The tax invoice sets out the due date for payment which was 30 days from the date of issue. Heavenly Revamps determined what the contractors did on the various work sites.

[42] The timesheets in evidence indicate they were approved by Mr Angel prior to the issue of the corresponding invoice by Now Careers.

[43] At one stage, Now Careers supplied Heavenly Revamps with approximately 27 workers across Heavenly Revamps' various projects.

[44] Between late 2023 and January 2024, issues emerged between Heavenly Revamps and Now Careers regarding unpaid invoices.

[45] During this period there were ongoing communications between the parties in an attempt to resolve the payment concerns.

[46] Ms Ruth Small, Account Assistant at Now Careers, emailed Mrs Angel requesting payment of invoices payable up to 22 November 2023 totalling $224,887.16. Mrs Angel responded stating she could not pay any invoices over $10,000 until January 2024.

[47] On 8 January 2024, Ms Small from Now Careers' accounts department again emailed Mrs Angel requesting payment of the outstanding invoices from November 2023. Mrs Angel responded, explaining that one invoice had been paid in full and that the reasons for non-payment of others were "out of her control".[9]

[48] On 16 January 2024, Mr Yorke emailed Mr and Mrs Angel outlining that Heavenly Revamps owed $283,652.94 in outstanding invoices.[10]

[49] On 18 January 2024, Mrs Angel replied to Mr Yorke's email, stating: [11]

"I plan to do payments as you have outlined your email.

[50] On 19 January 2024, Ms Small emailed Mrs Angel requesting payment of invoices payable up to 13 December 2023, totalling $211,926.78. Mrs Angel responded stating she was chasing up builders for payments and would pay the invoices incrementally from 31 January 2024. Ms Small requested that payments not be delayed beyond 2 February 2024.[12]

[51] On 19 January 2024, Ms Small sent an email to Mrs Angel stating:[13]

"The agreement reached is that on or by the 31/1/2024 Heavenly Revamps will cover at least the invoices listed below up to 13/12/2023 for a total of $211,926.78."

[52] By 31 January 2024, the outstanding invoices for November and December 2023 remained unpaid. Ms Hill spoke to Mrs Angel to arrange to meet on 31 January 2024 at the Greenbank RSL where Heavenly Revamps were working on a project.

[53] On 30 or 31 January 2024,[14] a meeting was held at the Greenbank RSL (Greenbank Meeting). Present at the meeting were Mr Stout, Ms Hill, and Mr and Mrs Angel. Mr Stout said the purpose of the meeting was to gain an understanding of the defendants' business and strategies and to gain confidence in Heavenly Revamps' ability to pay the outstanding invoices.[15]

[54] Ms Hill said Mrs Angel told her Heavenly Revamps was having delayed payments from some of its clients. Ms Hill said they discussed the outstanding invoices and Mrs Angel said she should be able to get payments made and acknowledged that this was causing a significant cash flow issue for Now Careers. The outcome of the meeting was that Mrs Angel would work out a payment arrangement and make enquiries as to whether they could obtain an overdraft to pay the outstanding invoices.

[55] Mr Stout said a statement of account, which set out the amount outstanding, was taken to the Greenbank Meeting. Mr Stout said he alerted Mr and Mrs Angel that they were approximately half a million dollars in debt. Mr Stout's evidence was that in response Mr and Mrs Angel gave their assurance that they had every intention to pay that debt. To demonstrate Heavenly Revamps' intention and ability to pay, Mrs Angel showed Mr Stout her handwritten ledger, that displayed her incomings and outgoings. Mrs Angel told Mr Stout they were both confident they would be receiving progress payments from their clients of approximately $300,000 that day or overnight and that she would notify Mr Stout the next day. Mr Stout said there was discussion around Heavenly Revamps paying its outstanding debt by way of instalments. A $262,000 payment was to be processed by 9 February 2024, followed by another two equal payments of approximately $131,000, by the end of February 2024 and at the end of March 2024.

[56] Mr Stout told the Court that at this time the supply of the contractors to Heavenly Revamps was costing Now Careers approximately $100,000 per week because Now Careers had a legal obligation to ensure the hired contractors were being paid.

[57] Following the Greenbank Meeting, Now Careers agreed to continuing to provide a few contractors to allow Heavenly Revamps to continue working because, Mr Stout said, "without Heavenly Revamps' maintaining productive and delivery of their projects, that would jeopardise our situation even further".[16]

[58] No payments were immediately forthcoming following the Greenbank Meeting. Mrs Angel emailed Mr Stout and informed him the progress payments expected from Heavenly Revamps' clients were not forthcoming and that she would be applying for an overdraft. Mr Stout responded that Now Careers were put in a "precarious position" and could not continue to supply labour, He also informed Mrs Angel that Now Careers were seeking legal advice. Mr Stout also suggested another meeting the following morning to negotiate proposed solutions.

[59] On 1 February 2024, Mrs Angel sent an email to Mr Stout and Ms Hill explaining that certain Heavenly Revamps' clients had not paid as of 31 January 2024, and that Heavenly Revamps would be applying for a $300,000 overdraft.[17]

[60] On 1 February 2024, Now Careers issued an aged receivable summary indicating a total outstanding amount of $524,637.25. The aged receivable summary indicated that there were 64 outstanding invoices of which 32 were overdue (the overdue amount totalled $264,075.10).[18]

[61] On the same day, Mr Stout wrote to Mrs Angel, ceasing provision of any further services (as of 2 February 2024) to Heavenly Revamps. Although services were formally discontinued on 2 February 2024, Now Careers continued to provide trades, labour, and supervisors to Heavenly Revamps to help them deliver their projects.[19] Mr Stout requested a meeting. The email from Mr Stout informed Heavenly Revamps that Now Careers was seeking legal advice ahead of the meeting.[20]

[62] Mrs Angel advised Now Careers by email that she and Mr Angel would attend the meeting. In the email, Mrs Angel mentioned she was suffering from a migraine headache and requested that the meeting room lights not be brightly lit.[21]

[63] Mr Stout acquired a draft Settlement Deed and draft guarantee from Now Careers' lawyers ahead of the 2 February Meeting.[22]

[64] On the morning of 2 February 2024, Mr and Mrs Angel, together with Mr Yorke and Ms Hill, held a face-to-face meeting at the offices of UFG to discuss Heavenly Revamps' outstanding payments.

[65] Mr Yorke said Now Careers wanted to understand where Heavenly Revamps' projects were, what the next solution was for them to receive payment, and to discuss the draft Settlement Deed and Guarantee. Mr Yorke brought the proposed Settlement Deed and Guarantee to the meeting. Mr Yorke said they discussed the Heavenly Revamps' projects and different strategies for how Heavenly Revamps could continue to work on those projects and commence payment of the outstanding amounts.

[66] Following the discussion, the parties "agreed" to settle the dispute in accordance with the terms of the Settlement Deed. The defendants accept they entered into the deeds but deny the deeds are enforceable. Pursuant to the Settlement Deed (clause 3.2), the parties acknowledged and agreed that the deed in no way supersedes or replaces the terms of the Labour Hire Agreement. Pursuant to clause 4.2 of the proposed Settlement Deed, Heavenly Revamps were required to pay the "Debt", defined as $525,666.86, by way of three instalments - $262,833.43 was to be paid by 9 February 2024, $131,416.71 was be paid by 29 February 2024 and $130,416.71 was to be paid by 31 March 2024.[23]

[67] Following the discussions, the payment dates were struck through and amended by hand to extend the payment dates of the second and third instalment by two weeks. The amendments were initialled by Mr and Mrs Angel and Mr Yorke. Mr Yorke said the amendments to the payment dates were made to align with payments the defendants said they were hoping to receive from their clients. Mr Yorke said it was agreed by all parties that the amended dates were more suitable for Heavenly Revamps to achieve the repayment commitments.

[68] Pursuant to clause 10.10 of the Settlement Deed, Heavenly Revamps warranted that it had had the opportunity to obtain independent legal advice in respect of the Settlement Deed and that it had either obtained that advice or chosen not to retain it. Mr Yorke was adamant in his evidence that he brought clause 10.10 to the attention of Mr and Mrs Angel during the meeting approximately four times or more. Mr Yorke felt Mr and Mrs Angel had adequate time throughout the day to seek legal advice and come back to Now Careers later in the afternoon. He said that having an early meeting around 8 AM would have given them sufficient time to obtain legal advice. Mr Yorke said Mr and Mrs Angel were encouraged to come back in the afternoon but Now Careers wanted a solution to the "very large debt".[24] Mr Yorke says the purpose of both documents was explained to Mr and Mrs Angel. Mr Yorke said he also referred section 8 of the Guarantee to the attention of Mr and Mrs Angel. This section contained a warrantee that Mr Angel had had the opportunity to obtain independent legal advice.

[69] Mr Yorke's belief was the conversations he had at the meeting with Mr and Mr Angel were positive and that they had achieved a good result from the amended payment terms and that the installed updates were achievable.

[70] In relation to the Guarantee and indemnity, Mr Angel as guarantor:[25]

1. warranted and agreed that he had read and agreed to the Settlement Deed;
2. unconditionally guaranteed the due and punctual payment by Heavenly Revamps of all monies and obligations which Heavenly Revamps owed to Now Careers under the Settlement Deed; and
3. indemnified Now Careers from and against all damage, loss and costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that Now Careers may suffer or incur as a result of any liability Now Careers has.

[71] Pursuant to clause 6.1 of the Guarantee, as security, Mr Angel charged in Now Careers favour all of his estate and interest in real and personal property whether that property was held in his own right or jointly with another person.

[72] Similar to the Settlement Deed, clause 8 of the Guarantee provided that Mr Angel warranted he had had the opportunity to obtain independent legal advice prior to the signing of the Guarantee and that he had obtained advice or chosen not to obtain advice. The Guarantee was signed by Mr Angel and witnessed by Mr Yorke.

[73] During this meeting, both the Settlement Deed and the Guarantee and indemnity were signed by the parties.

[74] Mr Yorke rejected any suggestion that he had compelled Mr Angel to sign the Guarantee. Mr Yorke's evidence was that, when he provided the Settlement Deed and Guarantee to the defendants, Mr and Mrs Angel looked at the documents and that he observed them going through the pages.

[75] The timing of the meeting is disputed, with Mr Yorke stating it commenced at 8 am and Mr Angel at 10 am. Ms Hill thinks the meeting started at approximately 8:15 AM or 8:20 AM because Mr and Mrs Angel were running a little bit late. During cross-examination, Mr Hills evidence was that he could not recall the time when he let everyone into the building but as he started work at 7:30am it would have been at some time after that. So, the meeting took place sometime between 8am and 10am.

[76] Mr and Mrs Angel make allegations of duress in relation to the meeting and the subsequent execution of the deeds claiming that Mr Angel could not read or understand what he was signing due to his dyslexia and that Mrs Angel could not read the documents as a result of her migraine. Now Careers denies these allegations and responds that there was nothing to substantiate Mr Angel's claim of dyslexia.[26]

[77] Before the meeting concluded, Ms Hill left slightly early as she was on annual leave.[27]

[78] Mr Hills of UFG gave evidence of his involvement in the 2 February Meeting. UFG had done some work for Now Careers in early 2024. As a favour UFG allowed their boardroom to be used for the purposes of the 2 February Meeting. Mr Hills confirmed that he let Mr and Mrs Angel, Mr Yorke and Ms Hill into the building and took them through to the boardroom. Later he was called down to the boardroom, which is on the lower floor of the premises, to witness signatures to documents. When he entered the meeting room to witness various documents, Mr Hills could not recall whether he arrived before or after Ms Hill had left.[28] Mr Hills witnessed the signing of the Deeds of Settlement by Mr and Mrs Angel and Mr Yorke[29] and witnessed the signatures to the hand written amendments to the payment instalment schedule initialled by Mr and Mrs Angel and Mr Yorke.[30] Mr Hills evidence was that while the signing was occurring there was small talk happening between the parties, there were no raised voices and people speaking in a normal tone. Mr Hills said he detected no animosity in the room.

1. Now Careers and Heavenly Revamps entering into the Settlement Deed, with handwritten amendments to clause 4.2 which extended the due dates for payment of instalments; and
2. Mr Angel entering into the Guarantee.

[80] Two days later, on 4 February 2024, Mrs Angel sent an email to Now Careers (Mr Stout, Ms Hill, and Mr Yorke) recounting her recollection of the 2 February 2025 meeting. Mrs Angel particularised allegations of duress ("bullying"), including that she had a migraine during the meeting, and claimed she could not read the executed agreements.[31]

[81] On 5 February 2024, Ms Hill sent an email to Mrs Angel refuting her allegations and stating that Mrs Angel had incorrectly recalled what happened. Ms Hill wrote that Mr and Mrs Angel were given the opportunity to seek legal advice and were not forced to sign on the day.[32]

[82] Later that day, Mrs Angel replied, reiterating that she and Mr Angel felt intimidated by Mr Yorke and Ms Hill and stated that Ms Hill "yelled at Paul during the meeting." Mrs Angel stated her attempt at obtaining an overdraft had failed. Mrs Angel further explained the financial circumstances of Heavenly Revamps.[33]

[83] Throughout February 2024, Now Careers and the defendants were involved in ongoing email communications regarding outstanding invoices, credit limits, and settlements.

[84] On 7 February 2024, Mr Stout sent an email to Mrs Angel regarding the 5 February email exchange between Mrs Angel and Ms Hill.[34]

[85] On 8 February 2024, Mrs Angel sent an email to Mr Stout explaining and elaborating on the financial circumstances of Heavenly Revamps. Mrs Angel wrote that she looked forward to Mr Stout's reply and that she hoped she could: [35]

"count on [his] support as Heavenly Revamps clears this debt the only way it can now. Once invoice at a time as funds become available. I wish I could do more".

[86] On 8 February 2024, Mr Stout sent an email to Mr and Mrs Angel and others, requesting a revised payment schedule and initiating further discussions about the Settlement Deed.

[87] Mr Stout and Mrs Angel had a phone conversation discussing events after the 2 February Meeting and the subsequent correspondence.[36] The discussion was followed up by an email from Mr Stout to Mrs Angel arranging an in-person meeting to take place on 9 February 2024, at Brisbane Airport.[37]

[88] Mrs Angel confirmed she would attend the meeting with Mr Stout on 9 February 2024 Brisbane airport.[38]

[89] On 9 February 2024, Mr Stout flew to Brisbane from Sydney to attend the meeting with Mrs Angel at Brisbane Airport. The meeting focused on payments and the ongoing relationship between the parties.[39] Mr Stout provided Mrs Angel with an up‑to‑date schedule of debts. The parties then agreed to a revised payment schedule which Mr Stout said was confirmed by a handshake agreement.

[90] On 10 February 2024, Mrs Angel, Mr Stout, and others confirmed the agreed revised payment schedule by email. Mr Stout emailed Mrs Angel setting out what had been verbally agreed at the meeting and wrote, "Upon agreement we will proceed to revise the existing deed to reflect these terms". Mrs Angel acknowledged in her response email that an agreement had been reached, and accepted the revised schedule set out in Mr Stout's 9 February 2024 email.[40] Mrs Angel also wrote she would have a bank cheque for $70,000 prepared to give to him next week. $70,000 was the agreed revised first instalment amount due to be paid on 16 February 2024. Pursuant to this varied agreement, Now Careers agreed to reduce the debt settlement amount by over $100,000 to $500,000. Mr Stout explained:[41]

"...we empathised with Heavenly Revamps' financial situation. We felt their pain, that they were experiencing cash flow constraints. And we felt that this anomaly would be a number whereby we would forgo any margin or profits that was - that would have been obtained...We were merely trying to get as close to a figure ‑ ‑ ‑ that would at least recover the costs for the expenses paid to all the contractors."

[91] Following the meeting, Mr Stout sent an email confirming the revised payment schedule verbally agreed upon, with the total revised debt as per the amended schedule equalling $500,000. Mr Stout foreshadowed providing a formal variation to the Settlement Deed revised payment schedule.[42]

[92] Mr Stout told the Court Mrs Angel gave no indication at the meeting that she was not agreeable to entering into the proposed terms that had been discussed.

[93] On 13 February 2024, Mrs Angel sent an email to Mr Stout confirming she was having a bank cheque issued.[43]

[94] On 14 February 2024, Mr Stout emailed Mrs Angel a newly prepared Deed of Variation, requesting that she review and return the document.[44]

[95] On 15 February 2024, Heavenly Revamps paid the bank cheque of $70,000 to Now Careers towards the outstanding debt as per the Deed of Variation.[45]

[96] On 16 February 2024, Mr Angel executed the Deed of Variation, but he did not have his signature witnessed.

[97] On 19 February 2024, Mr Stout emailed Mrs Angel about the signed copy, confirming that Mr Angel would need to re-sign schedule 2 of the deed in the presence of a witness. Mr Stout also confirmed the successful deposit of a $70,000 payment.[46] Mrs Angel left a handwritten note for Mr Stout with the bank cheque which read "Just wanted to let you know how much you're appreciated".[47]

[98] The Deed of Variation dated 16 February 2024 specified that, as at that date, the debt owing for the Services supplied by Now Careers totalled $605,089.03.[48]

[99] Mrs Angel replied to Mr Stout and confirmed arrangements for Mr Angel to execute the Deed of Variation.[49]

[100] On 20 February 2024, Mr Stout sent a follow-up email regarding execution of the varied deed.[50] That same day Mr Angel executed the Deed of Variation in the presence of a Justice of the Peace. Corrections were initialled as noted in the deed and related correspondence.

[101] Then, on 21 February 2024, Mrs Angel sent the final, witnessed Deed of Variation by email to Mr Stout.[51]

[102] Pursuant to the Deed of Variation the outstanding amount was then $605,089.03, but in full and final settlement, Now Careers agreed to accept a full and final amount of $500,000 to be paid in instalments as follows:

• $70,000 by 16 February 2024
• $200,000 by 16 March 2024
• $115,000 by 16 April 2024
• $115,000 by 16 May 2024

[103] On 8 March 2024, Mrs Angel emailed Mr Stout about the upcoming $200,000 March instalment. Mrs Angel explained that Heavenly Revamps was experiencing financial hardship due to unpaid or failed contracts. The March instalment of $200,000 could not be paid in full; only $80,000 could be contributed.[52]

[104] On 14 March 2024, Mr Stout replied, indicating decisive action would be taken to address the default.[53]

[105] On 15 March 2024, Mrs Angel responded, stating Heavenly Revamps could not pay the $200,000 instalment. Instead, Heavenly Revamps proposed paying $5,000 per month until the debt was cleared, starting April 2024.[54] At this stage, $430,000 remained outstanding under the Settlement Deed (as varied by the Deed of Variation). Heavenly Revamps' proposal would have resulted in Heavenly Revamps being given over seven years to repay the settlement debt.

[106] Mr Stout replied, rejecting the $5,000 payment plan and stating that legal mitigation would be pursued to recover the outstanding balance.[55]

[107] On 16 March 2024, Heavenly Revamps defaulted on the Deed of Variation by failing to pay the due instalment.[56]

[108] On 22 March 2024, Mr Stout instructed legal representatives to pursue the outstanding debt.[57]

[109] On 5 April 2024, Now Careers' lawyers sent a letter of demand to the Mr Angel regarding payment of the debt and the personal guarantee.[58] On 15 April 2024, Now Careers lodged a caveat over Mr Angel's interest in the Property, claiming an interest as equitable chargee/mortgagee pursuant to the Guarantee.[59]

[110] On 8 May 2024, Mrs Angel emailed Now Careers' lawyers, raising the following allegations in response to the demand for payment and lodgement of the caveat over the Property:[60]

1. Heavenly Revamps was not liable under the Variation Deed due to severable, incorrect parts;
2. Mr Angel was not personally liable as he was not a director of Heavenly Revamps;
3. Now Careers was in breach by of the Labour Hire Agreement;[61]
4. claims of duress, lack of legal advice, and health issues during the signing of the deeds;
5. improper contact with clients; and
6. the Property could not be used as security.

[111] On 14 May 2024, Now Careers' lawyers replied, maintaining Now Careers' position and stating they held instructions to commence proceedings.[62]

[112] It is not in dispute that the defendants defaulted on their obligations to make payments in accordance with the Deed of Variation.

[113] During cross-examination, and on many occasions throughout the hearing, Mr and Mrs Angel became increasingly frustrated. On a number of occasions they lost their patience. It is clear from Mr and Mrs Angel's demeanour that they were very stressed throughout the course of this trial. That is understandable given that, essentially, their home was on the line.

[114] Mr Angel was at times argumentative and inconsistent. For example, on the one hand he said he relied on Now Careers to inform him that workers had appropriate worksite licences. On the other hand, he said he checked the workers "tickets" himself.[63]

[115] At one stage during Mr Angel's cross-examination, Mrs Angel was told by Now Careers' counsel to stop mouthing the answers to her husband.

[116] Despite Mr Angel having dyslexia he was able to read various documents put to him by Now Careers' counsel. When confronted with the proposition that he could read (contrary to the assertion at the 2 February 2024 meeting), Mr Angel said he was a "good reader" now and that, as a result of executing the Deeds of Settlement, he told his wife he needed to be able to read better. This was not credible. There was no medical evidence to support the assertion of dyslexia; there was no evidence of the specialised treatment that is required to treat someone with dyslexia; and no evidence of steps engaged in between 2 February 2024 to June 2025 which resulted in Mr Angel going from being unable to read to reading clearly.

[117] When Mr Angel was asked whether he took his director duties seriously his response was "what type of question is this". He also said "how am I meant to be held responsible for someone else [i.e. an accountant] who's not doing their job". When pressed Mr Angel said he followed the accountant up by calling a person called "Noel" (Mr Angel could not recall his last name) in December 2023. There is no corroborating evidence of any call to Noel. There is also a lack of credible explanation for why Mrs Angel emailed Noel on 26 November 2023 saying Mr Angel had resigned when he says he resigned on 13 December 2023. During cross-examination Mr Angel was asked if he recalled resigning and he said:[64]

No. Somebody else did it for me. I don't know. What do you think?

[118] Mr Angel then became argumentative and sarcastic:[65]

Do you recall resigning?‑‑‑No. Somebody else did it for me. I don't know. What do you think?

Well, I'm asking the question. Do you recall resigning as a director?‑‑‑Your Honour, I am being harassed on this because I've stated and stated and stated that that is my signature, that is the date that I've done it, and yet he's saying I - apparently, I was somewhere else.

[119] Mr Angel was asked about his reference to a wages book. The following exchange occurred:[66]

What's the wages book, sir?‑‑‑Exactly what it says.

Well, whose wages does it record?‑‑‑What's that got to do with this?

So I ask the questions, sir. You answer the questions. What does the wages book record?‑‑‑Wages.

[120] Mr Angel had to be directed to answer the question three times.

[121] Mrs Angel's evidence can only be given limited weight. This is due to a number of factors. First, Mrs Angel reported to Mr Stout on 4 February 2024 following the meeting that she "only [had] a vague memory of what went on". Mrs Angel accepted in cross-examination that she still only had a vague memory of what happened at the meeting.

[122] Despite the particularised pleading of what happened at the 2 February Meeting, Mrs Angel's evidence was that she:

1. had no idea what she was doing at that meeting;
2. was not part of the discussion;
3. made no decisions; and
4. could not remember how many times Mr Yorke told the defendants they could go get legal advice. She did recall he said it at least once.

[123] It was put to Mrs Angel that her version of events was not a particularly reliable version of events. In response, she then said she remembered later and it had come back in fragments. There was no medical evidence before the Court to account for this recovered memory.

[124] Accepting this evidence means that little weight can be given to Mrs Angel's evidence of what occurred at the meeting.

[125] Second, Mrs Angel obfuscated at times, was argumentative, and highly emotional. When asked repeatedly whether there was a discussion of a $35,000 credit limit at the 2 February Meeting she said she could not remember. Mrs Angel had to be directed to answer the question. Mrs Angel clearly did not want to acknowledge that she did not raise any issue of a $35,000 limit at that meeting. If her belief was that there was a hard credit limit of $35,000 it is reasonable to expect she would have raised this when confronted by the assertion that Heavenly Revamps owed more than $200,000.

[126] Third, there are concerns with respect to entries made in a diary that was put into evidence. The diary was produced after a call for it by Now Careers. A picture of a page from the diary was tendered by the defendants in support of their claim that Mr Angel was not a director at the time of executing the Deeds of Settlement The diary was described by Mr Angel as Heavenly Revamps' diary. A call was made for the diary. Mrs Angel resisted producing the diary but complied with the direction to do so. There were several inconsistencies between the evidence and some of the diary entries. The explanation for the inconsistencies was unconvincing.

[127] The diary lacked entries one would expect. For example, there is no reference to the Greenbank Meeting. Yet, the next day, 31 January 2024, there is a handwritten notation in red ink stating:[67]

"Do workers supplied have contractors licenses[sic] with QBCC and is that how they are being paid by Now Careers?"

"Tell Donald only paying as per terms of contract. All they're entitled to if workers have contractors licenses[sic] and paid that way."

[128] This was an odd notation if written contemporaneously. Mr and Mrs Angel refuted the suggestion that the notation was placed in the diary after Now Careers commenced legal action. Mrs Angel said she used red ink "so it stands out" and that it was "a reflection of how annoyed" she was about what was going on.

[129] On 16 January 2024 the following notations appear in the diary:

"What the?? A $35,000 limit on contract?!?! How come all these invoices!!""

[130] The argument concerning a $35,000 limit was not raised in the defence which had been prepared by the defendants' lawyers. It was only incorporated in the amended defence prepared by the defendants and filed on 30 January 2025.

[131] Mr Angel could not explain why this argument of a contractual payment limit had not been included in the original defence.

[132] One can only speculate as to why this ground of defence was not included in the original pleading. It is possible that those instructions were given to lawyers and for whatever reason this allegation was not included. The defendants have not waived any privilege, and it would be wrong to draw too many conclusions on this point.

[133] On 15 April 2024, the diary contains a notation in red ink written by Mrs Angel which reads:

"Tim from G W Walsh did not notify ASIC of Paul's resignation!!"

[134] Apart from the use of red ink, it is an odd notation to have been made contemporaneously. Why that date? Why would a negative fact be recorded in the diary?

[135] All of the red ink notations are self-serving and, curiously, only relate to issues that have arisen since the commencement of the proceeding.

[136] I find it very unlikely that the entries in red ink were made contemporaneously and am not persuaded they have any bearing on the issues before the Court other than reflecting poorly on the credibility of Mr and Mrs Angel. Mrs Angel refuted making these entries about Mr Angel's resignation as a director after realising the resignation date may be relevant.

[137] These features, in addition to implausibility of some of Mr and Mrs Angel's evidence, undermined their credibility.

[138] On the other hand, the evidence of Mr Yorke and Ms Hill was direct, clear, emotionless and credible.

[139] By contrast to Mr and Mrs Angel, the witnesses called by the plaintiff gave their evidence calmly and directly without obfuscation. Both Mr Yorke and Ms Hill gave appropriate concessions. The evidence of the plaintiffs' witnesses was consistent and plausible.

[140] To the extent that the witnesses differ on relevant points, I accept the evidence of the plaintiff's witnesses.

[141] The plaintiff's arguments against the enforceability of the Deeds were:

1. Ground 1 - the deeds were unenforceable pursuant to section 127, Corporations Act
2. Ground 2 - the Labour Hire Agreement overrode the Deeds
3. Ground 3 - it was unlawful for the plaintiff to issue invoices and attempt to enforce obligations beyond the terms of the Agreement contrary to the QBCC Act
4. Ground 4 - Property Law Act 1974
5. Ground 5 - the plaintiff engaged in misleading or deceptive conduct that contravenes section 18 of the Australian Consumer Law (ACL)
6. Ground 6 - the plaintiff engaged in unconscionable conduct and repudiation of contractual conditions that contravenes sections 20(1) and 21(1) of the ACL.

Ground 1 - Were the deeds unenforceable pursuant to section 127, Corporations Act?

[142] Section 127 of the Corporations Act 2001 (Cth) prescribes the manner in which a company may execute documents. The defendants disputed Mr and Mrs Angel's status as directors at the relevant times.

[143] This issue was not specifically pleaded. It was decided, however, that I would determine whether to allow the defendants to press this matter on its merits in my final judgment. Now Careers, whilst noting that this matter did not arise on the defence, indicated that they would adduce evidence to show that both Mr and Mrs Angel were indeed the lawful registered directors of Heavenly Revamps on the relevant dates. Both parties were adequately able to present their evidence and submissions about Mr and Mrs Angel's status as directors and secretary of Heavenly Revamps. Despite the lateness of the allegation, there was no apparent prejudice to Now Careers. I have decided to allow that issue to be determined.

[144] Section 127 of the Corporations Act 2001 provides for how a company may execute a document. A company may execute a document without a common seal as follow:

(1) A company may execute a document without using a common seal if the document is signed by:

(b) a director and a company secretary of the company; or

(c) for a proprietary company that has a sole director - that director, if:

(i) the director is also the sole company secretary; or

(ii) the company does not have a company secretary.

Note 1: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(5) for dealings in relation to the company.

Note 2: The requirement to sign may be satisfied electronically: see Division 1 of Part 1.2AA (about technology neutral signing).

(3A) A company may execute a document as a deed in accordance with subsection (1):

(b) regardless of whether the document signed by the director or company secretary of the company, as applicable, is in physical form or electronic form.

Note: An effect of paragraph (b) of this subsection is that, despite any common law rule, the document may be executed without the use of paper, parchment or vellum.

[145] The defendants dispute whether Mr and Mrs Angel were both directors of Heavenly Revamps at the relevant point of time, that is when the deeds were executed on 2 February 2024 and 20 February 2024.

[146] According to the ASIC records:[68]

1. Mr Angel did not resign as a director of Heavenly Revamps until 15 April 2024;
2. Mr Angel resigned as a secretary of Heavenly Revamps on 26 March 2024; and
3. the day Mr Angel was recorded as having resigned as a director of Heavenly Revamps was the day ASIC received the form requesting the change to the company's details.

[147] The ASIC records indicate that at the time the Deeds of Settlement were executed, Mr and Mrs Angel were both directors, and Mr Angel was company secretary, of Heavenly Revamps.[69]

[148] An ASIC extract is prima facie evidence that what is set out therein is sufficient proof, in the absence of evidence to the contrary: Corporations Act 2001, s 1274B(2). The question is whether there is evidence to the contrary of the information recorded by ASIC.

[149] The defendants provided the following evidence in support of their submission:

1. an email dated 26 November 2023 from Mrs Angel to "Noel", a tax agent, regarding a company restructure. The correspondence to Noel included instructions to ASIC that Heavenly Revamps now had Mr Angel as the secretary and Mrs Angel as director.[70] Despite this email, during cross-examination Mr Angel's evidence was that the actual date of his resignation as director was 13 December 2023.[71] Mr Angel provided a "resignation letter" dated 13 December 2023 and signed electronically which states:[72]

I was informed by our accountant that Heavenly Revamps should not have two directors. I am tendering my resignation as a Director of Heavenly Revamps effective immediately. I will continue in the office of secretary for Heavenly Revamps.

The material tendered in support of the defendant's submission is inconsistent. There was no evidence from the accountant.

There was no explanation for why the accountant had not acted in accordance with the instructions.

There was no evidence before the court as to the basis for the accountant's purported advice to not have two directors. No reason was proffered by the defendants.

1. An email dated 24 January 2024, from Mrs Angel to Timothy Sauer, from GJ Walsh accountants, regarding restructuring of Heavenly Revamps and requesting ASIC records be updated to reflect that Mrs Angel was the managing director and Mr Angel was the company secretary.[73]
2. On 28 March 2024, Mr Angel was told by his doctor to stop all work as company secretary for medical reasons.[74]
3. Diary entries - the defendants submitted a photograph of part of a handwritten diary showing an entry on 13 December 2023 purporting to record Mr Angel's resignation on that day.

As already discussed there was a contention regarding whether the diary entry was retrospectively written.[75] There is contradictory evidence in a handwritten diary as to the resignation date. There is a handwritten note in the diary on 23 November 2024 with the following notation "Paul resignation as director," written by Mrs Angel in a darker blue pen than the pen used for the other entries on that date.

[150] There is a handwritten note in the diary on 28 March 2024 with the following notation "Paul resigned from office of secretary," written by Mrs Angel. Mr Angel was unable explain why the notation of the resignation post-dated when ASIC received the resignation, merely referring to his accountant. No accountant was called to give evidence surrounding the resignations of Mr Angel from his position as director and secretary nor the purported attempts made by the defendants to obtain copies of their records.

[151] Mrs Angel told the Court "My diary, as you will see, is not a book that I kept accurately all of the time". She said:[76]

...it doesn't have to be correct in my book. My book is my book. I write it as I want to write it. As you can see, because I've included other things in there that you don't see in a typical company record.

[152] The evidence that attempts were made to obtain records of instructions given to accountants were implausible. There is no record of these attempts being made - no email, no letter, for example demonstrating an unanswered request. There is no plausible explanation why an accounting firm would not have retained their records after such a short period of time.

[153] Mr Angel could not recall the surname of the accountant. There was also inconsistency regarding which accountant had been instructed with respect to the lodgement of ASIC forms. Mr Angel referred to a "Noel" and the diary referred to a "Tim".

[154] The ASIC records do not reflect what is recorded in the resignation letter or in the diary entry. Pursuant to section 205A of the Corporations Act 2001, ASIC must be given notice of the resignation. This notice must be in the proper form and accompanied by a copy of the letter of resignation. There is no evidence of the proper form being completed, no evidence of the recording of the resignation in company minutes, and no corroborative evidence from the accountant or the accounting firm records regarding these instructions. The responsibility to keep ASIC records up to date rests on the defendants, not their accountant. A company officer cannot blame an accountant for their failure to comply with their Corporations Act 2001 obligations.

[155] ASIC is meant to be notified within 28 days of the resignation of a director (s 205B(5) of the Corporations Act 2001). If ASIC is notified after that 28 days, the resignation takes effect from the date ASIC was notified. Here, whatever the date Mr Angel says he resigned, ASIC was not notified until more than 28 days later. Therefore, his resignation takes effect from the date recorded in the ASIC register. That is, it takes effect from the date that ASIC is notified.

[156] Mr Angel could have applied (within 56 days of his resignation) to a Court or ASIC to amend the effective date of his resignation if it were just and equitable to do so pursuant to section 203AA. However, no such application was ever filed.

[157] On balance, considering the ASIC records and evidence, I find that Mr and Mrs Angel were properly authorised as directors to execute the deeds. This ground of defence fails.

[158] At the trial, Heavenly Revamps also sought to allege Now Careers were told Mr Angel was not a director at the 2 February Meeting. No explanation was given why this was not pleaded as part of the original particularisation of the 2 February Meeting. This issue was only raised after Now Careers' witnesses had finished giving their evidence. I disallowed this allegation to be raised at such a late stage.

[159] The explanations of the diary entries and the various coloured pens also do not persuade me that they were an accurate reflection of the dates of resignation. On balance, I am not satisfied there is evidence to the contrary of the information recorded by ASIC.

[160] This ground of alleged unenforceability fails.

Ground 2 - Were the deeds unenforceable because of the terms of the Labour Hire Agreement?

[161] The defendants submitted that Heavenly Revamps had paid Now Careers all amounts contractually owed prior to litigation. This argument rests on a finding that Heavenly Revamps were only owed $35,000 every thirty days because of the "preferred credit limit" of $35,000 in the CAA.

[162] Heavenly Revamps contended it had fulfilled its contractual obligations because the only invoices payable were two that fell due on 16 January 2024; the two invoices were for a debt on 31 January 2024. Heavenly Revamps states that, although the invoices were overdue, they were paid in full when the $70,000 was paid on 7 February 2024.

[163] Heavenly Revamps contends that no other invoices have to be paid.

[164] The argument about the preferred credit limit centers on the Labour Hire Agreement signed by Mr Angel on 16 October 2023, which stipulated a preferred credit limit of $35,000 to be paid every 30 days commencing 16 October 2023. Mrs Angel stated that Now Careers was only entitled to $35,000 every 30 days because that was what was written in the Labour Hire Agreement.

[165] The principles of contract interpretation were outlined by the High Court in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, at [46]-[52] and include:[77]

• The rights and obligations of parties under a contract are determined objectively, considering the contract's text, context (including referenced documents or statutes), and purpose.
• The interpretation of commercial contracts is based on what a reasonable businessperson would understand the terms to mean, taking into account the language, circumstances, and commercial objectives.

[166] Courts are not permitted to rewrite contracts under the guise of interpretation[78] but constructions which would result in a "commercial nonsense or working commercial inconvenience" are to be avoided.[79]

[167] If a contract is to be executed by deed, the deed represents the binding agreement, and prior contracts cannot be used to alter its terms, except in cases of fraud or mistake. I refer to Leggott v Barrett (1880) 15 Ch. D. 306, at 310, where James LJ said:

... You have no right to look at the contract either for the purpose of enlarging or diminishing or modifying the contract which is to be found in the deed itself... unless there be a suit for rescinding the deed on the ground of fraud, or for altering it on the ground of mistake.

[168] Prima facie deeds are enforceable unless defective due to invalid execution or some other equitable or statutory vitiating circumstances.

[169] There was no contention that the deeds of settlement were uncertain.

[170] The defendants were put on notice by Now Careers that they could be estopped from denying unambiguous statements in the Deed - such as the debt amount and the obligation to repay the debt.[80] This is known as estoppel by deed.[81] Those unambiguous statements contained in the deeds are binding unless there are proper grounds for rectification.

[171] Estoppel by deed is not available if there are proper grounds for recission based on equitable or statutory principles, such as the entering into a deed "upon the inducement of some false representation or misstatement of a material fact, the deed is voidable by the party so deceived or misled.... Similarly, when one or more parties enters an agreement because of some common, mutual, or unilateral mistake, the contract may be either void or voidable at the suit of either party. ... Other common vitiating factors are duress and undue influence": Halsburys Laws of Australia [140-215].

[172] This matter is concerned with the enforcement of a deed. The original Labour Hire Agreements are not sought to be enforced. The Labour Hire Agreement certainly provides context for why the Settlement Deed was entered into and the circumstances surrounding how the agreed settlement sum (the Debt) was derived, but the terms of the Labour Hire Agreement are not relevant to the enforcement of the Deeds of Settlement. Unless the defendants can demonstrate the Deeds of Settlement are voidable on the basis that they were induced on the basis of some false representation or were labouring under duress or undue influence, the Deeds of Settlement are enforceable.

[173] The construction of the Labour Hire Agreement is, however, relevant to the defendants' unconscionability argument.

[174] I do not find any ambiguity in the language used in the Labour Hire Agreement. Both parties expressly contended there was nothing ambiguous in the Labour Hire Agreement's terms, albeit then differing on its interpretation.

[175] Mr Angel accepted during cross-examination that the word "preferred" in "preferred credit limit" was a statement of preference and not an expression of restriction. Mr Angel accepted that, in entering into the Labour Hire Agreement, he accepted the terms and conditions including that:

1. the hourly charge and fees that are payable in accordance with this agreement;
2. he would verify and sign the timesheets each week; and
3. he must pay all fees and charges by the due date.

[176] There is nothing in the documents referring to a set credit limit.

[177] It was disingenuous for Mr Angel to say he thought they only owed $70,000 despite all of the requests and supply of hundreds of thousands of dollars' worth of labour. Again, no mention of this belief was referred to at the Greenbank Meeting or 2 February Meeting. That is most likely because it was not what the defendants believed. The amount of the debt outstanding as at 9 February 2024, in excess of $266,000, was recorded in the company's ledger. How then can it be said by Mr Angel that he believed only $70,000 was owing? That evidence was incredible.

[178] Mrs Angel accepted during cross-examination that there were a series of unpaid tax invoices that needed to be remitted which were owed by Heavenly Revamps by 31 January 2024. Upon receiving an email from Mr Yorke on 16 January 2024 in which he referred to current terms stating "30 days payments but also a credit limit of $35,000", Mrs Angel said:[82]

"then I realised that, actually, the only invoices that had to be paid were up to that $35,000"

[179] However, Mr Yorke's email also refers to unexpected growth that can impact the credit limit and that he and Mrs Angel had agreed to keep total amounts owing under $250,000. Mrs Angel said, unbelievably, that "I agreed to that because 35,000 is under 250,000". This evidence lacks plausibility.

[180] Pursuant to the Labour Hire Agreement, Now Careers was entitled to 50% of upfront commissions and trailing commissions paid to the defendant resulting from the services provided by Now Careers. By clause 4.1, Heavenly Revamps agreed to pay "all fees charges out-of-pocket expenses for our services related to temporary workers".

[181] Heavenly Revamps requested additional services over their preferred credit limit and Now Careers accepted. This created an enforceable obligation on Heavenly Revamps to pay.

[182] In my view, any objective businessperson would find it grossly unreasonable that, because a client had requested a minimum credit amount of $35,000, it did not need to pay anything above that amount. This is not a reasonable businessperson's interpretation. I do not believe the defendants raised that argument genuinely.

[183] Once the provision of requested services was provided as per the terms of the Labour Hire Agreement, Now Careers entitlement to the fees arose.

[184] Even if there were some ambiguity and lack of detail or precision in the contract, consideration favours an interpretation that produces a reasonable commercial result. That result is that Now Careers were entitled to be paid for the services rendered.

[185] To find the Labour Hire Agreement should be construed as the defendant indicated would be commercially unconscionable because the practical effect is that the defendant would retain moneys earned by Now Careers. Under no circumstances would this be considered a commercial result.

[186] If it was the intention of the parties that Now Careers' rights were to be extinguished on termination, then it should have been expressly provided for in the Labour Hire Agreement.

[187] It was on this basis of an entitlement to be paid that Now Careers agreed to enter into a Settlement Deed. The terms of the Deed of Settlement are clear. In clear language, the Deed of Settlement provides that Heavenly Revamps were to pay the amount owing as calculated under the Labour Hire Agreement to Now Careers by way of four instalments. The subsequent Deed of Variation represented a further flexibility on the part of Now Careers to the payment of the amounts owing.

[188] As outlined by the authorities, the Settlement Deed, Deed of Variation and Guarantee have surpassed the Labour Hire Agreement.

Had Heavenly Revamps fulfilled its contractual obligations to the Plaintiff before litigation commenced on 10 May 2024, such that no debt is owed

[189] As per the reasons above, I do not accept that the Labour Hire Agreement should be interpreted as alleged. The terms of the Deeds of Settlement (subject to their enforceability), crystalise the amount owed.

Do the terms of the Labour Hire Agreement affect the Settlement Deed, the Deed of Variation and the Guarantee, and are they therefore unenforceable and void

[190] This contention flows from the previous contention concerning a set credit limit.

[191] The Court does not accept that the Labour Hire Agreement should be interpreted as alleged. In any event, the terms of the Deeds of Settlement (subject to their enforceability), crystalise the amount owed.

Ground 3 - Were the deeds unenforceable due to a breach of the QBCC Act?

Did Now Careers fail to meet the statutory requirements of section 42 of the Queensland Building and Construction Commission Act 1991 (QBCC Act) regarding payment and retention of payment as a contractor

[192] The Defendants submit Now Careers is not entitled to payment under the Deeds of Settlement because:

1. Now Careers worked as a contractor in Queensland without the required QBCC contractor's licence and therefore it failed to meet statutory requirements for payment under section 42 of the QBCC Act;
2. the exemption allowing payment retention does not apply because the Plaintiff did not supply licensed subcontractors; and
3. section 42 of the QBCC Act prohibits the Plaintiff from receiving and retaining payments in the commercial construction sector due to non-compliance with statutory requirements.

[193] Mrs Angel queried the licence of a contracted site supervisor. Ms Hill explained the contractor has the appropriate supervisor's licence and that a general contractor's licence was not required.

[194] Now Careers submitted the defendants have not engaged with the proper construction of the prohibition set out in s 42 of the QBCC Act.

[195] Section 42 prohibits unlicensed people from carrying out or undertaking to carry out building work lest they be subject to penalty and the inability to claim compensation.[83]

[196] "Building work" is defined in Schedule 2 of the QBCC Act as follows:

(b) the renovation, alteration, extension, improvement or repair of a building; or

(c) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or

(e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or

(f) the preparation of plans or specifications for the performance of building work; or

(fa) contract administration carried out by a person in relation to the construction of a building designed by the person; or

(h) carrying out site testing and classification in preparation for the erection or construction of a building on the site; or

(i) carrying out a completed building inspection; or

(j) the inspection or investigation of a building, and the provision of advice or a report, for the following -

but does not include work of a kind excluded by regulation from the ambit of this definition.

[197] To carry out building work means (s 67A, QBCC Act):

(b) directly or indirectly, cause building work to be carried out; or

(c) provide advisory, administrative, management or supervisory services for carrying out building work.

[198] It is not in dispute that Now Careers did not hold a building contractor's licence.

[199] The issue is whether, in hiring out labour to Heavenly Revamps for the purpose of those contractors performing building work, Now Careers was required to have a licence.

[200] Mr Stout told the Court that the labour contractors supplied by Now Careers hold their own contractor licences with the QBCC. Mr Stout said:[84]

Some of the contractors [supplied to Heavenly Revamps] would have licences if they're in supervisory positions. Now Careers Queensland is required to have a labour hire licence which it possesses. It is not required to have a building construction licence. We're not a building contractor. We're a labour hire business, providing labour hiring services.

[201] Heavenly Revamps did not particularise the "building work" Now Careers was said to have been engaged.

[202] Now Careers itself was not engaged to perform any building work, but was only engaged to supply contractors for that purpose. Heavenly Revamps was the entity contracted by its clients to perform the building work. All work done for Heavenly Revamps by the contractors was done at the instruction of Heavenly Revamps.

[203] Now Careers did not have the carriage of any of the works undertaken by Heavenly Revamps.[85]

[204] Now Careers provides labour hire services it does not "carry out" any "building work" as those terms is defined in the QBCC Act.

[205] I am not satisfied on the evidence that Now Careers are in breach of the QBCC Act. Section 42 has no application such that the contention that Now Careers are not entitled to monetary consideration is misguided.

[206] There is no merit to this ground of defence, and the contention on this ground fails.

Ground 4 - Were the deeds unenforceable due to a breach of section 45 of the Property Law Act 1974?

[207] The defendants submitted that section 45 of the Property Law Act 1974 (Qld) (PLA) provides that a deed is void if not witnessed by an authorised person. The defendants submit that Mr Yorke, who witnessed the Settlement Deed's Annexure A-Deed of Guarantee and Indemnity/Deed Poll, and Mr Hills, who witnessed the Settlement Deed, were not Justices of the Peace and are therefore not authorised witnesses, with the consequence that the deeds are unenforceable.

[208] The defendants cited a decision "Westpac Banking Corp v Clark [2013] QSC 105" but that citation appears to have been "hallucinated". The decision with the citation [2013] QSC 105 is actually Sedgman South Africa (Pty) Limited & Ors v Discovery Copper Botswana (Pty) Limited [2013] QSC 105. There is a decision of Westpac Banking Corporation v Clark; ex parte [2015] QSC 353. That decision concerned the enforceability of a deed which had been assigned to another in the light of a default judgment obtained by Westpac. The issue was whether the Deed assigns Westpac's rights in the judgment to Gallop such that it can obtain leave to commence enforcement. This case has no relevance to this matter.

[209] Section 45 of the PLA as it was at the relevant time provided:

1. Formalities of deeds executed by individuals

(1) Where an individual executes a deed, the individual shall either sign or place the individual's mark upon the same and sealing alone shall not be sufficient.

(a) to be an indenture or a deed; or

(b) to be sealed;

shall, if it is signed and attested by at least 1 witness not being a party to the instrument, be deemed to be sealed and, subject to section 47, to have been duly executed.

(3) No particular form of words shall be requisite for the attestation.

(4) A deed executed and attested under this section may in any proceedings be proved in the manner in which it might be proved if no attesting witness were alive.

(a) the execution of deeds by corporations; or

(b) how instruments are validly executed under the Land Title Act 1994; or

(c) any deed executed before the commencement of this Act.

[210] This section provided that a signatory's execution to a deed needed to be witnesses by a party who was not a party to the deed. There is no special requirement for a witness to be a justice of the peace or have any other qualification. Mr Hills was not a party to the Settlement Deed and Mr Yorke was not a party to the Guarantee. There is no merit to this ground of unenforceability.

[211] The defendants assert that Now Careers and Mr Yorke breached sections 18, 20, and 21 of the Australian Consumer Law (ACL) because:

1. Section 18: Now Careers engaged in misleading or deceptive conduct by issuing invoices and enforcing obligations not aligned with the actual terms of the Labour Hire Agreement.
2. Section 20(1) and 21(1): Now Careers acted unconscionably and repudiated contractual conditions by demanding payments beyond what was legitimately owed, applying undue pressure on the Defendants.

Are the deeds unenforceable due to misrepresentation?

[212] This ground fails because, for reasons outlined above, Now Careers did not issue invoices or seek to enforce obligations contrary to the terms of the Labour Hire Agreement and therefore did not engage in any misleading and deceptive conduct.

Are the deeds unenforceable due to unconscionable conduct?

[213] The defendants allege that contrary to sections s 21 of the ACL and/or s 12CB or 12CA of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), Now Careers acted unconscionably as follows.

[214] By issuing the Deeds of Settlement, the plaintiff was engaged in conduct in connection with the supply of services within the meaning of section 21(1) of the Australian Consumer Law. The defendants allege the issuance of the Deeds of Settlement was unconscionable, rendering the deeds unenforceable, in circumstances where:

1. Now Careers and Mr Yorke were aware that Mr and Mrs Angel could not read the Deeds of Settlement during the 2 February Meeting. Mr and Mrs Angel state they did not meaningfully read or consider the Deeds of Settlement, nor did they understand the terms, effects, or liabilities created by these documents (Knowledge of Purported Vulnerability);
2. Now Careers knew Mr and Mrs Angel did not wish to sign the documents without first reading or considering them, and that both wanted to obtain legal advice before signing. Despite this, and the fact that the plaintiff had received its own legal advice, the defendants were not given the opportunity to seek or receive such advice (No Opportunity to Obtain Legal Advice);
3. Now Careers falsely represented they would wind up Heavenly Revamps in order to place pressure on the defendants to sign the Deeds of Settlement immediately (Winding Up Representation);
4. the "Winding Up Representation" was made during the 2 February Meeting to pressure the defendants into signing the documents immediately, without reading, considering, or seeking legal advice;
5. that there was no ability for the defendants to negotiate the terms of the Deeds of Settlement (Negotiation Representation);
6. Now Careers represented that the Guarantee was of no significance and that it must be signed along with the Settlement Deed (Guarantee Representation)
7. Now Careers represented the amounts of the invoices were due and payable by Heavenly Revamps to Now Careers (Invoices Representation)
8. the defendants say they were induced as they relied upon representations in entering the Deeds of Settlement and that, if the representations had not been made, they would have sought legal advice and would not have signed the Deeds of Settlement; and
9. no consideration was provided to the second defendant in exchange for signing the Guarantee. There was no reduction in the amount due under the invoices, nor any forbearance regarding payment deadlines (No Consideration).

[215] For conduct to be regarded as unconscionable_, "serious misconduct or something clearly unfair or unreasonable, must be demonstrated_" (Cameron v Qantas Airways Ltd [1995] FCA 1304; (1995) 55 FCR 147, at 178-179).[86] In this case, the court clarified the threshold for unconscionable conduct by emphasising the need for evidence of serious misconduct or clear unfairness, rather than merely improper or discourteous behaviour. Additionally, "the conduct must demonstrate a high level of moral obloquy on the part of the person said to have acted unconscionably" (Hampton v BHP Billiton Minerals Pty Ltd [No 2] [2012] WASC 285, per Edelman J as he then was, citing Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557, at [121]). This authority highlights that unconscionable conduct involves not just unfairness, but conduct that is morally reprehensible or deserving of condemnation. In practice, this means that not every unfair action will be considered unconscionable - only those involving egregious behaviour or significant moral wrongdoing meet this high standard.

[216] In Australian Competition and Consumer Commission v South East Melbourne Cleaning Pty Ltd (In Liq) [2015] FCA 25 at [116], Murphy J explained the principles underpinning a proper approach to unconscionability under the ACL:

(a) The Court must first and foremost have regard to the language of the statute rather than judicial explanations of unconscionability: PT Ltd at [101]; Director of Consumer Affairs Victoria v Scully and Another [2013] VSCA 292; (2013) 303 ALR 168 ("Scully") at [45] per Santamaria JA (Neave and Osborn JJA agreeing).

(b) "Unconscionability" is not a term of art but simply means "something not done in good conscience": Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 ("Lux") at [41] per Allsop CJ, Jacobson and Gordon JJ; Scully at [36]; Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; (2005) 148 FCR 132 at [33] per Tamberlin, Finn and Conti JJ.

(c) The court should have due regard to the remedial and beneficial objects of the legislation: Investec Bank v Naude [2014] NSWSC 165 ("Investec") at [54] per McDougall J.

(d) The court must have regard to the non-exhaustive and non-prescriptive list in s 22(1) although the presence of one or more of these matters will not be determinative to an unconscionability enquiry: Scully at [41]. However, these matters may nevertheless assist the court in illuminating the scope and meaning of unconscionable conduct: Scully at [42]; Body Bronze International Pty Ltd v Fehcorp Pty Ltd [2011] VSCA 196; (2011) 34 VR 536 at [76] per Macaulay AJA (with whom Harper and Hansen JJA agreed).

(e) The court is not constrained by the general equitable concept of unconscionability although equity's exploration of unconscionable conduct may assist the court: s 21(4)(a) ACL; Investec at [55]; Scully at [40].

(f) In determining unconscionability, the court is prevented from having regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention: s 21(3)(a) ACL.

(g) Whether or not conduct is unconscionable will depend on careful consideration of all of the conduct and involves standing back and looking at the whole episode: Lux at [44].

(h) The Court's task involves evaluating conduct by reference to a normative standard of conscience which may develop and change over time, and which must be understood and applied in the context in which the circumstances arise: Lux at [23] and [41]; Scully at [56].

(i) Notions of moral obloquy or moral tainting are relevant, but it must be recognised that it is conduct against conscience by reference to the norms of society that is in question: Lux at [41]. The task of statutory construction must focus on the text of the statute and a number of the factors in s 22 of the ACL do not necessarily involve dishonesty, sharp practice or conscious wrongdoing (eg s 22(1)(a), (b), (c), (e), (f), (h) and (j)). While conduct involving dishonesty, sharp practice or conscious wrongdoing is no doubt unconscionable, conduct which does not involve those factors may still be regarded as unconscionable. Substituting a test of "a high level of moral obloquy" for the standard of "unconscionability" is of doubtful assistance in determining whether the statutory prohibition has been contravened: PT Ltd at [101]-[106].

(j) As "unconscionability" in this context is predicated on "conduct", a person's conduct is to be distinguished from the consequences that that conduct may have on the lives of other people: Scully at [39]; Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 at [19] per French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ.

(k) A determination of unconscionability involves a broadly based value judgment, applied to the facts on which reliance is placed, to the extent that they are proved: Investec at [59]; Lux at [23].

[217] Sections 20 and 21 of the ACL relevantly provide as follows:

1. Unconscionable conduct within the meaning of the unwritten law

(1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.

(2) This section does not apply to conduct that is prohibited by section 21.

1. Unconscionable conduct in connection with goods or services

(1) A person must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a person; or

engage in conduct that is, in all the circumstances, unconscionable.

(3) For the purpose of determining whether a person has contravened subsection (1):

(a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

(b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

(a) this section is not limited by the unwritten law relating to unconscionable conduct; and

(b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

(c) in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of:

(ii) the manner in which and the extent to which the contract is carried out;

and is not limited to consideration of the circumstances relating to formation of the contract.

[218] The terms "goods" and "services" are defined in s 2 of the ACL. Those definitions are inclusive. Insofar as services are concerned, s 2 provides:

(a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and

(b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

(i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or

(ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

(iii) a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or

(iv) a contract of insurance; or

(v) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or

(vi) any contract for or in relation to the lending of money;

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.

[219] Gageler CJ and Jagot J in Productivity Partners Pty Ltd v Australian Competition and Consumer Commission [2024] HCA 27; (2024) 98 ALJR 1021 said:

[60] ...conduct is not to be denounced by a court as unconscionable unless it is "outside societal norms of acceptable commercial behaviour [so] as to warrant condemnation as conduct that is offensive to conscience".

[220] The factors set out in section 22 (Section 22 Factors) are required to be taken into account to the extent they apply to the circumstances. The Section 22 Factors are:

22 Matters the court may have regard to for the purposes of section 21

(1) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer), the court may have regard to:

(a) the relative strengths of the bargaining positions of the supplier and the customer; and

(b) whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

(c) whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and

(e) the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and

(f) the extent to which the supplier's conduct towards the customer was consistent with the supplier's conduct in similar transactions between the supplier and other like customers; and

(g) the requirements of any applicable industry code; and

(h) the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and

(i) the extent to which the supplier unreasonably failed to disclose to the customer:

(i) any intended conduct of the supplier that might affect the interests of the customer; and

(ii) any risks to the customer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and

(j) if there is a contract between the supplier and the customer for the supply of the goods or services:

(i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and

(iv) any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and

(l) the extent to which the supplier and the customer acted in good faith.

[221] The defendants did not particularise which of the section 22 factors they relied upon However, based on their description of the conduct said to be unconscionable, they fit within the categories of section 22(b), (c), (d), (i), (j) and (l).

[222] The defendants allege that Mrs Angel was suffering from a migraine. Mr Yorke acknowledged that in the email received the day before the 2 February Meeting that Mrs Angel stated she had a migraine. However, at the meeting the next day Mr Yorke said Mrs Angel told him and Ms Hill that she was comfortable and happy to engage in a meeting and that she understood the importance of the meeting. Mr Yorke said he could not confirm one way or the other whether Mrs Angel had in fact been suffering from migraines, but they had accommodated the environment in the event she was still suffering from any migraine symptoms. Mr Yorke disputes that Mrs Angel was not participating in the meeting and said she participated in the discussions. Mr Yorke denied he said there was to be no discussion and that the purpose of the meeting was for the defendants to execute the Settlement Deed and Guarantee. He also denied that Mrs Angel said words to the effect that she would not sign any documents and could not read them due to her migraine. He denied Mrs Angel said during the meeting that she did not want to sign the document because she had not read it and could not read it.

[223] Ms Hill acknowledged that she knew from the email received the day before the meeting that Ms Angel said she had suffered from migraine. As a result, she was offered water and was made comfortable prior to the meeting commenced. Ms Hill's evidence was that Mrs Angel was able to participate in the meeting and said she was fine to continue and that, when asked if she was comfortable, she answered affirmatively.

[224] Ms Hill said that both Mr and Mrs Angel looked at the documents, flicked through the pages and discussed certain points on the pages of the documents. Ms Hill said they spent approximately 20 to 30 minutes going through the documents. Ms Hill kept notes during the meeting.

[225] Ms Hill's understanding was that at the time she left the meeting everyone was happy to proceed with signing the Settlement Deed and the Guarantee.

[226] Ms Hill could not say whether Mrs Angel was still suffering from a migraine at the meeting but denied that Mrs Angel said words to the effect that she was suffering from a migraine and she could not participate in the discussions which were proposed to take place.

[227] Ms Hill denied Ms Angel said words to the effect that she would not sign any documents because she could not read them due to her migraine headache. Mr Yorke acknowledged that Mrs Angel had informed the plaintiff the day before that she had migraine, but she said she was happy to continue. Mr Yorke said the purpose of entering into the agreements enabling Heavenly Revamps to pay by way of instalments was to enable Heavenly Revamps to keep operating.

[228] Ms Hill denied the allegation that she knew Mrs Angel had not read the Settlement Deed before she signed it.

[229] In relation to the allegation that Mr Angel was dyslexic and was unable to read the Settlement Deed, Mr Yorke's evidence was that the fact that Mr Angel was suffering from dyslexia was never brought to his attention, was not mentioned at the meeting and that he had no awareness of the dyslexia or other issues with Mr Angel reading the documents. From this perspective Mr Yorke said both Mr and Mrs Angel appeared to read the Settlement Deed and did not comment on whether they understood the terms of the deed.

1. said words to the effect that Mr Angel was dyslexic and that he could not read the Settlement Deed; and
2. asked the Mr Yorke to read the document to Mr Angel.

[231] I am not satisfied on the evidence that Mr and Mrs Angel were so affected by medical conditions that they were impaired in the sense that they were unable to look after their interests. There was no medical evidence before the Court concerning their conditions at the time of the 2 February Meeting or at all. Nor is there any independent evidence of the effect of those conditions on their capacity to read and comprehend. Now Careers was not informed of Mr Angel's alleged dyslexia and had no reason to believe that Mrs Angel could not participate as they both clearly did. This is evidenced by the fact that they were able to negotiate revised dates for payments.

[232] The ability of Now Careers to meet negotiated payment deadlines was strictly within the knowledge of the defendants.

[233] Ms Hill said that Mr Yorke offered the defendants an opportunity to obtain independent legal advice on multiple occasions throughout the meeting.

[234] Ms Hill said Mr Yorke, suggested the defendants take the documents away and get their lawyers to read it.

[235] Ms Hill agreed that Mr Angel said words to the effect that they needed to speak to lawyers.

[236] The defendants were warned before the 2 February Meeting that Now Careers were seeking legal advice. This alone should have triggered the defendants to seek their own advice. Mrs Angel agreed that they were advised at least once to obtain legal advice.

[237] All parties agreed the defendants were told they could seek legal advice. Mr and Mrs Angel confirmed that they chose not to do so but without any adequate explanation for this choice. There was no attempt made by them to ask for a pause in the meeting, and they did not call the lawyers which they had engaged at the time. I am not satisfied that they were not given adequate opportunity to seek out legal advice regarding the agreement that was being presented to them for execution.

[238] Mr Yorke's evidence was that at no time did he compel Mr and Mrs Angel to sign the Deeds of Settlement. Mr Yorke told the court that he drew Mr and Mrs Angel's attention to clause 10 of the settlement agreement and clause 8 of the guarantee on three occasions informing them that they have the opportunity to obtain legal advice. Mr and Mrs Angel acknowledged in cross-examination they were told about obtaining legal advice. During the meeting Mr Yorke said he observed Mr and Mrs Angel looking at the documents. Mr Yorke said that when the documents were presented, he discussed the purpose of both documents, and he thought the conversation was positive.

[239] Mr Hills came and witnessed the signatures and said at no time did Mr and Mrs Angel give any indication that they are uncomfortable to sign the documents.

[240] Mr Angel accepted Mr Yorke told him to go and get legal advice (although he disputed how many times this was discussed). Mr Angel said he did not get advice because there was a threat by Mr Yorke that "he was going to close up Heavenly Revamps that afternoon if I didn't sign and I'd lose everything". Then he said, "There was no way we could get down to the Gold Coast, barge into their offices, right, without an appointment then get them to have a look at it." But there is no evidence of any attempt being made to contact solicitors to explain the situation they were in. Solicitors regularly have to deal with impromptu unscheduled situations. Enquiries could have been made and Mr Yorke could have been given a likely response time. They chose not to do this. This is also an unusual decision in circumstances where Mrs Angel said she could not read the Settlement Deed because of her migraine and Mr Angel said he could not read because of his dyslexia. These alleged circumstances should have made it imperative that there was at least an attempt to obtain advice. Despite the assertions they signed the documents. The defendants clearly knew the Settlement Deed was to set in place a payment plan for the money owed. There is no evidence of any surprise on the defendants part or any outrage at being asked to pay more than $35,000 for two months. The inference that can be drawn is that because they knew what they owed based on the services they acquired and did not have the now asserted belief of the interpretation of the agreement.

[241] Mr Yorke denied the allegation that he said if they did not sign the Settlement Deed by 5 PM on 2 February 2024 they would wind up Heavenly Revamps.

[242] Ms Hill was adamant in her denial that Mr Yorke said words to the effect that no matter what the defendants did, whether they saw lawyers or not, they needed to sign the documents that day and that if they did not, he would, quote, "be shutting down Heavenly Revamps".[87]

[243] Ms Hill accepted that Mr Angel said words to the effect that he and Mrs Angel, were not going to have time to see a lawyer by the end of the day and that they could not be expected to sign the documents without knowing "what we are going to sign". Ms Hill's evidence was that they also offered Mr and Mrs Angel the opportunity to take the documents away.

[244] Ms Hill denied that Mr Yorke said words to the effect that, "It's just what you owe us," and that, if the defendants did not sign the Settlement Deed by 5 pm on that day, the defendant by counterclaim would wind up the first defendant on that same day.

[245] Mrs Angel was afraid that Now Careers would wind up the company. This was a reasonable fear and expectation in circumstances where her company had not paid their debts when due.

[246] The meeting was arranged to take place with Heavenly Revamps on 2 February 2024 following a directors meeting. The directors of Now Careers wanted to know Heavenly Revamps' position. In attendance were Mr Yorke, Ms Hill, and Mr and Mrs Angel. The Settlement Deed and Guarantee were brought by Mr Yorke to the meeting, and a number of solutions were discussed including the payment of instalments, liaising with the Heavenly Revamps' clients payments and ascertaining what other bills they had outstanding. At the meeting Heavenly Revamps acknowledged the debt was owing and the dates of payment by instalment were negotiated to take into account what Mr and Mrs Angel had said was realistic in terms of their ability to pay.

[247] Ms Hill denied that there was no ability for the defendants to negotiate the terms of settlement and Guarantee.

[248] This is not a case of the parties being in an unequal bargaining position. The parties had been in several discussions and negotiations via email, at the Greenbank Meeting, at the 2 February Meeting and finally at the Airport Meeting. Now Careers gave Heavenly Revamps several opportunities to get its debt in order before the presentation of the draft deeds. A relatively unequal bargaining position does not of itself put a party at a special disadvantage.[88] All transactions have a degree of disparity. There was no getting around the fact here that the defendants owed a lot of money and Now Careers wanted to ascertain whether there was a manner of recouping that money which did not involve litigation as a first resort. That is, this is not a case of Now Careers seeking to take unfair advantage. In fact, it is the opposite.

[249] Gleeson CJ said in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51, that it is not unconscionable to assert your rights. He said:[89]

"A person is not in a position of relevant disadvantage, constitutional, situational, or otherwise, simply because of inequality of bargaining power. Many, perhaps even most, contracts are made between parties of unequal bargaining power, and good conscience does not require parties to contractual negotiations to forfeit their advantages, or neglect their own interests ...

Unconscientious exploitation of another's inability, or diminished ability, to conserve his or her own interests is not to be confused with taking advantage of a superior bargaining position ..."

[250] Even robustness in negotiations is not of itself sufficient to establish exploitation. In Boral Resources (NSW) Pty Ltd v Armitt [2024] NSWSC 554 the Court noted that:

[57]...there is nothing to stop a defendant, knowing that the plaintiff may be under economic pressures to accept the terms offered, from driving a hard bargain. The exploitation must be of some other factor which prevents the plaintiff from properly exercising, in his or her own interest, such bargaining power as he or she may have. Examples are: lack of education, relevant lack of knowledge, and lack of independent advice.

[251] There are comments of a similar nature by McHugh J in West v AGC (Advances) Ltd (1986) 5 NSWLR 610, at 621, where his Honour noted that it is inherent in any commercial transaction that a disparity in parties' bargaining power will, to some extent, exist.

[252] Mr Angel agreed the handwritten amendments to the dates of payments were made during the 2 February Meeting and initialled by him to indicate he agreed to the contents of those changes.

Whether representation made that Guarantee was of no significance

[253] Ms Hill denied that representations were made to the defendants that the Guarantee was of no significance and that it must be signed along with the Settlement Deed.

[254] I am not satisfied on the evidence that such a representation was made.[90] I also note it is standard commercial practice to have a director of a company provide a personal guarantee for the company's obligations in circumstances where the company has only $10 of share capital and no apparent assets.

Did Now Careers represent the amounts of the invoices were due and payable

[255] Yes. Ms Hill accepted that representations were made that the invoices were due and payable by Heavenly Revamps to Now Careers.

[256] For the reasons already outlined, I find on the balance of probabilities that these invoices were due and payable. There is nothing unconscionable in correctly representing what was owed.

[257] There was consideration. The payment schedule and reduction in the amount payable in the Deed of Variation was consideration given to Heavenly Revamps in return for executing the Deeds of Settlement.

[258] Mr Angel accepted during cross-examination that:

1. the typographical error in his name was corrected by Mrs Angel;
2. he authorised his electronic signature to be placed on the document;
3. he warranted that he had read and understood the Deed of Variation;
4. he read the variation with Mrs Angel's help;
5. he was telling the truth when he signed the attestation that attested that he had read and understood it, had an opportunity to get legal advice, and consented to the variation; and
6. that he signed the Deed of Variation representing that he was signing on behalf of Heavenly Revamps.

[259] Mr Angel said he had no choice about obtaining independent legal advice because he had already signed the Settlement Deed.

[260] Mr Angel took the Guarantee to a justice of peace to witness his signature. This was done on a day and time which was convenient to Mr Angel. No one from Now Careers was present during the execution of the Guarantee. Mr Angel again acknowledged he had read the Guarantee. Mr Angel agreed he understood the Deed of Variation was changing the settlement debt in the relevant recital in the original deed and the dates and amounts and timing of the instalment payments.

[261] Mr Angel signed the Deed of Variation electronically and in his natural hand on 20 February 2024.

[262] Mr Angel agreed during cross-examination that he had time to obtain legal advice about the variation but did not take the opportunity to do so because of the execution of the original Settlement Deed. This answer is contradictory to the defendants' claim that they were not afforded an opportunity to obtain legal advice. Further, I did not understand the reasons given for why advice was not sought. Perhaps, if legal advice had been sought, further negotiations could have ensued. It cannot be known what the outcome of the seeking of that advice might have achieved as the opportunity was passed up. Later, in evidence, Mr Angel said he could not remember when he went to see a lawyer about the enforceability of the deeds.

[263] Despite some difficulties in answering and assertions of not wanting to answer, Mr Angel accepted there was no pressure on him from Mr Yorke and Ms Hill to sign the Deed of Variation.[91] Mr Angel insisted that Mr Stout applied pressure in asking him to re-sign the document. That is not the sort of pressure that gives rise to an argument of duress. Mr Angel initially refused to answer whether Mrs Angel had pressured him to sign the Deed of Variation. Ultimately, he said she did not pressure him. Mr Angel was not present at the Airport Meeting where the variation to the Settlement Deed was discussed and agreed to by Mr Stout and Mrs Angel.

[264] Mrs Angel accepted during cross-examination that she negotiated the Deed of Variation with Mr Stout (even though Mr Stout was not agreeable to what she wanted). Mrs Angel accepted:

1. she spoke to the solicitors before attending the Airport Meeting;
2. a deal was reached with Mr Stout;
3. Mr Stout confirmed the agreement by email on the evening of the 9th of February;
4. the next day she responded to the email agreeing to the terms of the agreement;
5. she read the Deed of Variation before signing;
6. in relation to the acknowledgment in the Deed of Variation about legal advice, Mrs Angel said "I already knew that I'd done that"; and
7. the Deed of Variation represented the terms of the agreement she arrived at with Mr Stout.

[265] Considering all of the circumstances, I find neither Now Careers nor Mr Yorke acted unconscionably either under general law or under the statutory provisions pleaded.

[266] Throughout the trial, the defendants attempted to raise new arguments and grounds for why the deeds should be found unenforceable including:

1. that time sheets were "doctored" and inaccurate;
2. issues surrounding Now Careers' knowledge of Heavenly Revamps' financial status;
3. Now Careers were not the invoicing party; and
4. introduction of new terms into the deeds such that Heavenly Revamps would not have to make any payments until its own clients had paid.

[267] The original pleaded contention is that Now Careers should not have issued more than one $35,000 invoice every 30 days, not that the invoices were inaccurate.

[268] Halfway through the second day of trial, it became apparent that the defendants were seeking to dispute the accuracy of the timesheets upon which the outstanding invoices had been calculated. Mrs Angel submitted one of the time sheets was "doctored". First, any inaccuracies in the timesheets were not pleaded and it is too late to run such an argument at this stage. I note that until the further amended statement of claim the defendants were represented by solicitors and counsel. There is no mention of "inaccurate" timesheets in the pleadings prepared by those legal representatives. Second the amounts are not in issue. In clause 3.1 of the Settlement Deed and Schedule 1 of the Deed of Variation executed by the defendants specifically acknowledges and agrees to the amount of the debt outstanding to Now Careers. Third, if this contention was allowed to proceed, there was no evidence tendered by the defendants to support that the timesheets were inaccurate or "doctored" which is an extremely serious allegation to make. There was no evidence that they had ever brought any inaccuracies to the attention of Now Careers at the time they were issued. Four, the invoices tendered at trial noted that they had been approved by Mr Angel contemporaneously to their issue. This appeared to be a completely disingenuous attempt to avoid paying for contracted labour.

[269] In the amended defence at paragraph 4(b) the defendants do not admit the allegation that between around November 2023 and February 2024 and in accordance with the terms of the Labour Hire Agreement, the plaintiff supplied services to the first defendant and issued invoices to the extent that a total amount of $605,089.03 remained outstanding despite making reasonable inquiries and until the provision of particulars and relevant invoices. Having received the particulars and the invoices, no amendment was made by the defendants to this pleading to deny the allegation. Pursuant to rule 165(2) of the UCPR, a party who pleads a non-admission may not give or call evidence in relation to a fact not admitted, unless the evidence relates to another part of the party's pleading.

[270] There was no evidence to support this most serious of allegations.

[271] It is not pleaded that Now Careers had awareness of Heavenly Revamps' financial status at the time requests were being made for labour. Further, at the meetings, Now Careers was entirely reliant on what the defendants told them in terms of their ability to pay, when they could pay, and what income they were expected to receive.

[272] Some of the timesheets issued by Now Careers contained the name "Yorke Consulting".

[273] Ms Hill explained that she originally started Now Careers in 2005 in Sydney and that Now Careers Queensland opened in 2023. At that time, she had a company called Hill Recruitment Solutions and in 2017 that company joined Now Careers Queensland in 2023. Hill Recruitment Solutions was a business that she operated with Mr Stout. Hill Recruitment Solutions merged with Yorke consulting on 1 July 2023 and became Now Careers Queensland proprietary limited.

[274] Mrs Angel submitted this constitutes a misrepresentation. It was not. Yorke Consulting merged with Now Careers. The ABN of the business remained the same and only the name changed. That is, there was only ever one legal entity invoicing Heavenly Revamps. There was no misrepresentation such as would give rise to the ability to render the Deeds of Settlement unenforceable.

[275] This issue was not raised as a concern, contemporaneously, with the receipt of the timesheets.

[276] At the hearing Mrs Angel sought to incorporate terms that are not contained within the Deed of Variation such as that Mr Stout knew that Heavenly Revamps would only pay $70,000 and that the payment of the remaining instalments was dependent on if and when the builders paid Heavenly Revamps. This is simply implausible. There is no mention of this in the email exchanges between Mrs Angel and Mr Stout following the Airport Meeting and, more importantly, this was not included as an express term of the Deed of Variation. It is a significant variation to the actual terms of the Settlement Deed and one which would have been included if that was in fact what had been orally agreed. This was not pleaded as a term of the Deed of Variation.

[277] There is nothing pleaded by the defendants which puts the Deed of Variation into question. There was no basis contended for why the Deed of Variation was unenforceable.

[278] The fact that Heavenly Revamps applied for a credit limit of $35,000 does not absolve them from their responsibilities to pay for services requested and received. If they could not afford to hire more contract labour they should not have done so. It was not the responsibility of Now Careers to manage Heavenly Revamps' cashflow, nor did Now Careers have the knowledge to do so.

[279] Further, there were acknowledgements by the defendants up to the conduct of the trial that the invoices were outstanding. If there was any disagreement about that it was not raised by the defendants at any of the meetings with Now Careers.

[280] I am not persuaded that the defendants did not read the deeds or did not understand their terms. This is self-evident from the negotiation to change the instalment payment dates. It is also self-evident from the conduct of Mrs Angel following the meeting in seeking to renegotiate the terms. The fact that Now Careers did not agree to Mrs Angel's proposed terms or offers does not mean the defendants were at a special disadvantage.

[281] There was no independent evidence of any lack of capacity.

[282] Duress is concerned with threatened or actual unlawful conduct but "even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress".[92]

[283] The alleged "threat" here was the winding up representation. The defendants submit that because of that threat they executed the Deeds of Settlement.

[284] I am not satisfied that the evidence establishes that that threat was made. Even if the defendants thought they had been negotiating to avoid litigation or winding up, the reality is they were realistic outcomes. It would not have been an unlawful or false representation to have stated that winding up or litigation was a possible outcome of a failure to pay. Even knowing that outcome did not mean the deeds had to be executed. Oddly and contrary to the assertion of the defendants, it was actually in their interests to negotiate a payment plan.

[285] Pursuant to clause 15 of the Labour Hire AGrement, Now Careers could take a lien out or charge the property belonging to Heavenly Revamps. Whereas the Guarantee is a direct personal guarantee entered into by Mr Angel and Now Careers and enables Now Careers to charge property belonging personally to Mr Angel.

[286] In circumstances where Heavenly Revamps does not own real property, was in debt, and had only $10 worth of share capital, it was not unreasonable. In fact, it is quite commonly found in circumstances such as this, for a personal guarantee to be secured. The Guarantee is, at was put by Mr Haddrick, a collateral commitment by Mr Angel to make good on the debt that is to be paid pursuant to the Deed of Settlement.

[287] The Guarantee is also clear in its terms. No contention was made to the contrary.

[288] There is nothing unusual in a company to which money is owed insisting that a director of the company that owes the money guarantee the performance of that company. The fact of requesting a guarantee be provided does not of itself constitute unconscionable conduct. Now Careers was entitled to be paid the money due to it. Now Careers was under no obligation to enter into any Settlement Deed with flexible repayment arrangements. In those circumstances, where Now Careers agreed to allow the defendants more time to pay, it could hardly be said that it has acted unconscionably. Now Careers met with and renegotiated with the defendants on numerous occasions despite not being under any obligation to do so. Now Careers could have just commenced proceedings without any discussion with the defendants. Now Careers demonstrated considerable patience with Mr and Mrs Angel in pursuing the debt.

[289] In relation to whether the defendants were forced into some take it or leave it scenario to execute the guarantee, it is hard to see what the issue is in this respect. Either the defendants agreed to the generous payment plan and timetable or Now Careers could have legitimately insisted on full payment immediately. These agreements actually provided a more generous arrangement for payment than the defendants were entitled. There is nothing remarkable in a negotiation of this nature for a company to insist that either some form of security is provided or they are not interested in any arrangement whereby payment needs to be spread out over a particular term.

[290] Further, Mr and Mrs Angel are not unsophisticated people suffering from any particular vulnerability. They had been successful small businesspeople. They are also qualified and educated. There were no vulnerabilities that would have been apparent to the plaintiff. To counter this, the defendants said that Mr Angel could not read, something which at that time would not be known by Now Careers, particularly in circumstances where it was Mr Angel who executed the original application for credit and labour hire agreements. Further, this issue had never been raised until such time as proceedings were commenced. The extent of any lack of reading ability was also not established on the evidence at trial. I am also unconvinced that Mr and Mrs Angel would have proceeded to execute the agreements if they had been unable to read them. In this regard, Mrs Angel says she suffered a migraine and hence could not read. This is surely a reason for an adjournment of that meeting and/or time to forward the documents to their lawyers. This was something that I am satisfied Mr and Mrs Angel knew they could do, but chose not to.

[291] I am not satisfied on the evidence that the conduct of Now Careers through its representatives during the various meetings was unconscionable or contrary to accepted conduct.

[292] The purpose of the Settlement Deed is to resolve disputes or claims that may have arisen under the prior labour hire arrangements. It is intended to be final and binding. It is not intended that the disputes/arguments/contentions/differing viewpoints on the construction of the earlier arrangements could continue to be debated upon the enforcement of the settlement. It effectively overrides any prior disputes and creates an agreement to end any past and future claims or disputes either party may have. It was acknowledged by the defendants upon the execution of the Settlement Deed that the debt totals $525,066. The defendants agreed to settle the dispute as to the subject of the debt on the terms as set out in the settlement. As already noted, the defendants acknowledged and agreed that amount was outstanding, acknowledged and agreed to pay the settlement amount by way of instalments over a three month period. Mr Angel, by executing the Guarantee, warranted that he had read and agreed to the Settlement Deed and that he would indemnify Now Careers for any loss incurred resulting from Heavenly Revamps' failure to comply with its obligations under the Settlement Deed.

[293] It was suggested to Mr Angel that when the Labour Hire Agreement was entered into it was an express term that, in the event Heavenly Revamps failed to pay the invoices on time, Now Careers would suspend the services. Any assertion that Mr Yorke or Ms Hill were "threatening" at the 2 February Meeting by stating that, as a result of the tax invoices not being paid on time, they were suspending services, is not convincing. The plaintiff was simply exercising a contractual right. Mr Angel's response was not to deny those propositions but instead seek to blame Now Careers for the debt they were in. He said:[93]

Because if we were that far behind in our obligation to pay invoices ‑ ‑ ‑

It should have - it should have happened after the first time we were behind in our 35,000.

...they waited until the so-called debt that you say we have was so high

[294] Now Careers was simply exercising its rights under the Labour Hire Agreement. Pursuant to the Labour Hire Agreement, Now Careers was entitled to be paid its outstanding invoices and was entitled (see cl. 4.14) to suspend the provision of services in circumstances where invoices remain unpaid.

[295] Insistence on the enforceability of contractual terms alone cannot be said to amount to unconscionable conduct.

[296] Labour services continued to be made available to Heavenly Revamps after executing the Deeds of Settlement. It begs the question that if the amounts under the Settlement Deed were, as alleged by Mr and Mrs Angel incorrect or that they felt bullied, why would they have continued to request and receive labour hire from the plaintiff. There is no indication of any bullying claim in the email correspondence between Mrs Angel and Mr Stout following the 2 February Meeting. Heavenly Revamps did not adhere to their own preferred credit limit by virtue of their repeated and numerous labour requests made over a short period. The assertion that Now Careers somehow 'caused' Heavenly Revamps' debt is extremely unreasonable. Clearly, Mr and Mrs Angel appeared to expect Now Careers to operate as a bank with a no interest and no repayment terms.

1. The Settlement Deed, Deed of Variation and Guarantee are enforceable; and
2. I am not satisfied Now Careers and Mr Yorke have acted in breach of the ACL.

[298] The contention that the plaintiffs are not entitled to enforce the Deeds of Settlement fails.

[299] The starting point is that costs usually follow the event and are ordered to be paid on a standard basis.[94] Here the Deeds of Settlement provide that the plaintiff is entitled to its costs on an indemnity basis.

[300] The defendants are to pay the costs of Now Careers on an indemnity basis.

1. judgment be entered for the plaintiff;
2. the defendants' counterclaim be dismissed;
3. the defendants are to pay the costs of the plaintiff on an indemnity basis;
4. a declaration is made that pursuant to the Guarantee that the second defendant granted a charge and/or equitable mortgage to the plaintiff in respect of their interest in the property situated at 37-41 Philippa Road, NORTH MACLEAN, QLD 4280, being Lot 28 on RP 840655, Title Reference 18321212 (Property);
5. a declaration is made that the charge and/or equitable mortgage charges the interest of the second defendant in the Property with the payment of all monies due and owing by the second defendant to the plaintiff under the Guarantee; and
6. pursuant to section 38 of the Property Law Act 1974:

(i) there be trustees appointed for the sale of the Property (Trustees);

(ii) the Property vests in the Trustees subject to the encumbrances affecting the entirety but free from encumbrances affecting any undivided shares to be held by them upon trust to sell the Property and stand possessed of the net proceeds of sale after payment of costs and expenses, rates, taxes and costs of insurance, repairs properly payable out of income and other outgoings for the second and third defendants in equal shares; and

(iii) that upon any sale by the Trustees, the third defendant be at liberty to purchase the Property upon terms that she shall not be required to pay any deposit and that she may set off against the purchase price the value of the whole of their share in the Property.

[1] Amended Defence and Counter Claim filed 30 January 2025, court document number 5, at [41].

[2] Transcript Day 1, 26 June 2025, pages 1-19 to 1-23 (examination of Mr Yorke)

[3] Statement of Claim filed 10 May 2024, court document no. 1, at [2]; Exhibit 5: Labour Hire Agreement dated 16 October 2023; see also Transcript Day 1, 26 June 2025, pages 1-23 to 1-24 for a description of the "services".

Exhibit 5: Client Account Application Agreement; Transcript Day 1, 26 June 2025, pages 1-23 to 1-24 (examination of Mr Yorke).

[4] Exhibit 5: Labour Hire Agreement dated 16 October 2023, p 1.

[5] Exhibit 5: Labour Hire Agreement dated 16 October 2023, page 4, cl 1.1(a)..

[6] Transcript Day 1, 26 June 2025, page 1-24 at lines 5-8 (examination of Mr Yorke).

[7] Defendants' Outline of Argument filed 23 June 2025, court document no. 15, at [7] and [11].

[8] Exhibit 5: Labour Hire Agreement dated 16 October 2023, pages 4-7.

[9] Exhibits 16 to18 document this email chain between Ruth Small and Karina Angel.

[10] Exhibits 19 and 20: Email from Rhys Yorke to Karina Angel and Paul Angel on 16 January 2024 at 9:21pm.

[11] Exhibit 21: Email from Karina Angel to Rhys Yorke on 18 January 2024 at 4:33pm.

[12] Exhibit 3: Email chain between Ruth Small and Karina Angel on 19 January 2024; Transcript Day 2, 27 June 2025, pages 2-21 to 2-22, (Cross examination of Ms Hill).

[13] Exhibit 3: Email chain between Ruth Small and Karina Angel on 19 January 2024.

[14] There is some dispute about the exact date of this meeting, with the counterclaim stating 30 January 2024, Ms Hill estimating 31 January 2024, and Mr Stout also stating 31 January 2024.

[15] Amended Defence and Counterclaim filed 30 January 2025, court document no. 5, at [36]; Transcript Day 1, 26 June 2025, page 1-94, (examination of Ms Hill); Transcript Day 2, 27 June 2025, pages 2-54 to 2-55 (examination of Mr Stout).

[16] Transcript Day 2, 27 June 2025, page 2-56 at lines 46-48 (examination of Mr Stout).

[17] Exhibit 23: Email from Karina Angel to Donald Stout and Emma Hill on 1 February 2024.at 7:49am.

[18] Exhibit 26: Now Careers Pty Ltd Aged Receivables Summary; Transcript Day 1, 26 June 2025, pages 1-32 to 1-33 (examination of Mr Yorke).

[19] Transcript Day 2, 27 June 2025, page 2-56 at lines 36-48 (examination of Mr Stout).

[20] Amended Defence and Counterclaim filed 30 January 2025, court document no. 5, at [38]; Exhibit 24: Email from Donald Stout to Karina Angel and Paul Angel on 1 February 2024at 12:49pm; Transcript Day 2, 27 June 2025, page 2-60 (examination of Mr Stout).

[21] Exhibit 25: Email from Karina Angel to Mr Stout and Paul Angel on 1 February 2025 at 3:46pm.

[22] Transcript Day 2, 27 June 2025, page 2-62 (examination of Mr Stout).

[23] Exhibit 28: Settlement Deed dated 2 February 2024; Transcript Day 1, 26 June 2025, page 1-36 at lines 37-48 (examination of Mr Yorke).

[24] Transcript Day 1, 26 June 2025, page 1-41 at lines 21-22 (examination of Mr Yorke).

[25] Exhibit 29: Deed of Guarantee and Indemnity dated 2 February 2026.

[26] Amended Defence and Counterclaim filed 30 January 2025, court document no. 5, at [41]; Amended Reply filed 19 March 2025, court document no. 7, at [41(c)(ii)(B)]; Exhibit 30: Record of conversation form dated 5 February 2024; Transcript Day 1, 26 June 2025, pages 1-38 to 1-40, (examination of Mr Yorke); Transcript Day 3, 15 July 2025, pages 3-78 to 3-79 (examination of Mr Angel).

[27] Transcript Day 1, 26 June 2025, page 1-42 at lines 30-48 (examination of Mr Yorke); Transcript Day 1, 26 June 26, 2025, page 1-101 at lines 11-19 (examination of Ms Hill).

[28] Transcript Day 1, 26 June 2025, page 1-86, (examination of Mr Hills).

[29] Statement of Claim filed 10 May 2024, court document no. 1, at [5]; Exhibit 28: Settlement Deed dated 2 February 2024; Transcript Day 1, 26 June 2025, pages 1-43 to 1-45 (examination of Mr Yorke).

[30] Statement of Claim filed 10 May 2024, court document no. 1, at [5]; Exhibit 28: Settlement Deed dated 2 February 2024; Transcript Day 1, 26 June 2025, page 1-43 (examination of Mr Yorke).

[31] Exhibit 31: Email from Karina Angel to Donald Stout and Paul Angel on 4 February 2024 at 6:36pm.

[32] Exhibit 32: Email from Emma Hill to Karina Angel, Mr Stout, and Paul Angel on 5 February 2024 at 6:33pm.

[33] Exhibit 33: Email from Karina Angel to Emma Hill, Mr Stout, and Paul Angel on 5 February 2024 at 8:14pm.

[34] Exhibit 34: Email from Mr Stout to Karina Angel on 7 February 2024 at 11:10am.

[35] Exhibit 35: Email from Karina Angel to Mr Stout on 8 February 2024 at 9:58 am.

[36] Transcript Day 2, 27 June 2025, page 2-67, (examination of Mr Stout); Exhibit 36: Email from Donald Stout to Karina Angel on 8 February 2024 at 11:12am.

[37] Exhibit 36: Email from Donald Stout to Karina Angel on 8 February 2024 at 11:12am.

[38] Exhibit 37: Email from Karina Angel to Donald Stout on 8 February 2024 at 12:23pm.

[39] Exhibit 38: Email from Donald Stout to Karina Angel on 9 February 2024 at 7:26pm.

[40] Exhibit 39: Email from Karina Angel to Donald Stout on 10 February 2024 at 9:17am; Transcript Day 2, 27 June 2025, page 2-72, (examination of Mr Stout).

[41] Transcript Day 2, 27 June 2025, page 2-71 at lines 1-12.

[42] Exhibit 38: Email from Donald Stout to Karina Angel on 9 February 2024 at 7:26pm.

[43] Exhibit 59: Email exchange between Donald Stout to Karina Angel on 13 February 2024.

[44] Exhibit 40: Email from Donald Stout to Karina Angel on 14 February 2024 at 3:14pm.

[45] Statement of Claim filed 10 May 2024, court document no. 1, at [8]; Exhibit 44: Photograph of cheque for $70,000, dated 13 February 2024; Exhibit 45: Text message from Lucie Nemcova of Now Careers QLD to Donald Stout; Transcript Day 2, 27 June 2025, page 2-76 at lines 36 - 37 (examination of Mr Stout).

[46] Exhibit 46: Email from Donald Stout to Karina Angel on 19 February 2024 at 12:35pm.

[47] Exhibit 44: Photograph of cheque for $70,000, dated 13 February 2024.

[48] Statement of Claim filed 10 May 2024, court document no. 1, at [7]; Exhibit 42: Deed of Variation dated 16 February 2024, signed but not witnessed; Transcript Day 4, 17 July 2025, page 4-34 (cross examination of Mr Angel).

[49] Exhibit 46: Email from Karina Angel to Donald Stout on 19 February 2024 at 1:37pm.

[50] Exhibit 47: Email from Donald Stout to Karina Angel on 20 February 2024 at 5:17pm.

[51] Exhibit 48: Email from Karina Angel to Donald Stout on 21 February 2024 at 9:37am; Exhibit 49: Deed of Variation dated 20 February 2024.

[52] Exhibit 50: Email from Karina Angel to Donald Stout on 8 March 2024 at 1:06pm.

[53] Exhibit 51: Email exchange between Donald Stout and Karina Angel between 14 and 15 March 2024.

[55] Exhibit 51: Email exchange between Donald Stout and Karina Angel between 14 and 15 March 2024.

[56] Statement of Claim filed 10 May 2024, court document no. 1, at [9]; Exhibit 42: Deed of Variation, sch 2 (clause 4.2 of the variation specified the instalment due date).

[57] Transcript Day 2, 27 June 2025, page 2-82 at lines 4-14 (examination of Mr Stout).

[58] Exhibit 52: Letter from Results Legal to Paul Angel dated 5 April 2024.

[59] Statement of Claim filed 10 May 2024, court document no. 1, at [18].

[60] Exhibit 53: Email exchange between Karina Angel and Results Legal between 8 May 2024 and 14 May 2024.

[61] Heavenly Revamps claimed Now Careers breached clauses 8.4 and 10.8 of the Settlement Deed which concern mutual obligations of non-disparagement and confidentiality.

[62] Exhibit 53: Email exchange between Karina Angel and Results Legal between 8 May 2024 and 14 May 2024.

[63] Transcript Day 3, 15 July 2025, page 3-108 at lines 1-5, page 3-109 at lines 1-13 (cross examination of Mr Angel).

[64] Transcript Day 3, 15 July 2025, page 3-123 at lines 24-25 (cross examination of Mr Angel).

[65] Transcript Day 3, 15 July 2025, page 3-123 at lines 24-33 (cross examination of Mr Angel).

[66] Transcript Day 3, 15 July 2025, page 3-131 at lines 45-47 and page 3-132 at lines 1-9.

[67] Exhibit 58: Journal of Heavenly Revamps (July 2023 to June 2024).

[68] Exhibit 4: Company extract of Heavenly Revamps Pty Ltd, dated 26 June 2025; though there was some uncertainty about when the resignation was intended, see Exhibit 22: Email from Karina Angel to Timothy Sauer of GJ Walsh on 24 January 2024 at 12:03pm.

[70] Exhibit 6: Email from Karina Angel to "Noel" on 26 November 2023 at 3:45pm.

[71] Transcript Day 3, 15 July 2025, pages 3-128 to 3-129 (cross examination of Mr Angel).

[72] Exhibit 7: Letter of resignation from Paul Angel to Heavenly Revamps Pty Ltd dated 13 December 2023.

[73] Exhibit 22: Email from Karina Angel to Timothy Sauer of GJ Walsh on 24 January 2024 at 12:03pm. This event is supported by Exhibit 7: Letter of resignation from Paul Angel to Heavenly Revamps Pty Ltd dated 13 December 2023 and Exhibit 8: Heavenly Revamps Pty Ltd diary entry of 13 December 2023.

[74] Transcript Day 4, 17 July 2025, page 4-13 at lines 29-36 (cross examination of Mr Angel).

[75] Transcript Day 4, 17 July 2025, pages 4-23 to 4-26 and 4-29 (cross examination of Mr Angel).

[76] Transcript Day 4, 17 July 2025, page 4-102 at lines 10-12 (cross examination of Mrs Angel).

[77] See also Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544; Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640.

[78] Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544, at [98].

[79] Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640, at [35].

[80] Labracon Pty Ltd v Cuturich [2013] NSWSC 97; (2013) 17 BPR 32,497, at [105].

[81] See Dabbs v Seaman [1925] HCA 26; (1925) 36 CLR 538, at 573; Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25, at [53]-[57].

[82] Transcript Day 4, 17 July 2025, page 4-91 at lines 23-29 (cross examination of Mrs Angel).

[83] Marshall v Marshall [1997] QCA 382; [1999] 1 Qd R 173.

[84] Transcript Day 3, 15 July 2025, page 3-5 at lines 5-9 (cross examination of Mr Stout).

[85] PJS Development Pty Ltd v Tong [2003] QSC 337; [2004] 2 Qd R 172, at [7].

[86] This decision was overturned on appeal, but not in relation to this statement of principle: Qantas Airways Ltd v Cameron [1996] FCA 349; 66 FCR 246

[87] Transcript Day 1, 26 June 2025, page 1-111 at lines 44-47 (examination of Ms Hill).

[88] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 at 462 (Mason J).

[89] Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51, at [11]-[14] (Gleeson CJ).

[90] Transcript Day 1, 26 June 2025, page 1-82 at lines 8-19 (cross examination of Mr Yorke).

[91] Transcript Day 4, 17 July 2025, page 4-50 (cross examination of Mr Angel).

[92] Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, at 45 (McHugh JA).

[93] Transcript Day 4, 17 July 2025, page 4-62 at lines 42-45 and page 4-63 at lines 1-21 (cross examination of Mr Angel).

[94] Uniform Civil Procedure Rules 1999 (Qld) r 702.