Plaintiff v Defendant

Supreme Court of Victoria|2009-04-08|Before: Hollingworth J

Restitution - Unjust enrichment - No binding contract - Recovery on quantum meruit basis for services rendered - Plaintiff assisted defendant in having defendant's land included in urban growth boundary - Defendant's land increased in value - Whether plaintiff entitled to quantum meruit award based on 20% of the increased value of the land - Whether plaintiff has established that all work done for benefit of defendant

1 The defendant, Mrs Richmond, owns a large parcel of former farming land, located in Bulban Road, Werribee. With the increase of Melbourne's urban boundaries, the Richmond land now sits 3.5 kilometres from the Werribee town centre, and borders a number of new and established housing developments.

2 The defendant, Peet Ltd, is a company based in Western Australia. Peet has developed numerous residential housing estates, including in Victoria.

3 In July 2002, Peet was negotiating with Steve Carter, the owner of land adjoining the Richmond land, about a possible option to buy the Carter land. During that process, Peet learned of the existence of the Richmond land.

4 In about August 2002, Peet representatives began discussions about the Richmond land. Although the land is in Mrs Richmond's name, other family members, particularly her son, Colin Richmond, were heavily involved in negotiations and decisions in relation to the land. Colin Richmond told Peet that the Richmonds were interested in doing a joint venture for the development of the Richmond land and had been in negotiations with other parties to that end. He asked whether Peet would like to make a presentation to them. Peet did so in October 2002.

5 Also in October 2002, the Minister for Planning gave a direction under the Planning and Environment Act 1987, introducing the "Werribee Growth Area" and the concept of the "Urban Growth Boundary" ("UGB"). The effect of the direction was, that in order for the Richmond land to be developed, the UGB would need to be realigned so that the land was included within it. The land would then need to be rezoned, before it could be subdivided and developed. At that time, the Richmond land was zoned "Rural Use". The UGB was a new and unknown concept in Victorian planning law, so there was no established practice or guidelines for bringing land into the UGB.

6 In late December 2002, Mrs Richmond and Peet executed a memorandum of understanding ("MOU"), which anticipated the future execution of binding heads of agreement, setting out the terms upon which the Richmond land would be developed or sold after it had been included in the UGB and rezoned. Although several draft heads of agreement were circulated between the parties between 2003 and 2005, a binding contract was never executed.

7 In the meantime, Peet organised or undertook a number of steps to have the Richmond land included in the UGB, either by its own staff or by engaging third parties with particular expertise.

8 A realignment of the UGB, to include the majority of the Richmond land, was gazetted in November 2005. There is no dispute that the inclusion of the Richmond land in the UGB increased its value by $15.7 million, from $13 million to $28.7 million.

9 After a steady deterioration over a period of time, by early 2006, the relationship between the Richmonds and Peet had irretrievably broken down. By an email received on 13 January 2006, the Richmonds instructed Peet to do no further work in connection with the land.

10 In January 2007, Peet commenced this proceeding.

11 By its statement of claim, filed on 16 January 2007, Peet sought relief on a number of alternative bases:

(a) Contract: Peet alleged the existence of a binding contract with Mrs Richmond, whereby it would carry out work to have the Richmond land included in the UGB, rezoned and developed, and share the profits of sale of each of the sub-divided lots. The contract was said to be partly constituted by discussions between Colin Richmond and Anthony Lennon, a director of Peet, on 19 September 2003, and partly implied by conduct. Peet claimed that Mrs Richmond had repudiated the contract, and it sought specific performance or damages in lieu;

(b) Estoppel: Alternatively, Peet alleged that Mrs Richmond was estopped from denying that she was bound by the terms of the contract, because she had stood by while Peet performed the contract, believing that it was bound by it;

(c) Unjust enrichment: Alternatively, Peet alleged that, by reason of its actions, the value of the Richmond land had been greatly increased by its inclusion in the UGB, and it would be unjust for Mrs Richmond to retain that benefit. It sought the entire amount of the increase in value; [2]

(d) Quantum meruit: Alternatively, Peet alleged that it was entitled to remuneration and compensation for the work it had done and the expenses it had incurred in relation to the Richmond land, on a quantum meruit basis.[3]

12 The statement of claim contained no particulars of the actual amount sought in respect of any of the claims.

13 In her defence, Mrs Richmond denied the allegations based in contract, estoppel and unjust enrichment. However, she admitted that Peet was entitled to remuneration on a quantum meruit basis and provided details of various requests she had made to Peet, seeking information about Peet's costs and expenses. It is clear on the evidence that Mrs Richmond has, since at least 2005, indicated a willingness to pay Peet for its actual work and expenses on a quantum meruit basis.

14 The parties filed lay witness statements in late 2007 and early 2008.

15 Peet did not provide any details of the amount of its claim until November 2007 - some 10 months after the proceeding was commenced - when it filed the first expert report of Michael Dwyer, an accountant ("the first Dwyer report").

16 Revised witness statements were filed in late August 2008, including a supplementary report by Mr Dwyer, dated 26 August 2008 ("the second Dwyer report").

17 On 10 September 2008, Peet provided formal particulars of its loss and damage for the first time. It sought more than $63 million damages in respect of the contract claim, and $15.7 million in respect of the unjust enrichment claim.

18 As far as the quantum meruit claim was concerned, Peet sought to be compensated on three alternative bases:

(a) $15.7 million, being the whole of the increase in value of the Richmond land before and after inclusion in the UGB;[4]

(b) Alternatively, $3,510,995.78, being the sum of:

(i) The amount paid by it to various suppliers and consultants in connection with the inclusion within the UGB ($463,744.73 including GST); and

(ii) $3,047,251.05, being 20% of the increase in the value of the Richmond land, less the amount paid to suppliers and consultants;

(i) The amount paid by it to various suppliers and consultants ($463,744.73); and

(ii) No less than $815,965.00 in respect of Peet's own time, effort and expertise related to the inclusion in the UGB.

19 During a directions hearing on 12 September 2008, Peet indicated that it intended to amend its statement of claim, and on 17 September 2008 it delivered the proposed amendments. The principal proposed amendment was to allege that Mrs Richmond owed Peet a fiduciary duty, the content of which was not specified. The fiduciary duty was said to arise by virtue of the parties having begun to implement a joint venture project.

20 Mrs Richmond objected to the proposed amendments on a number of grounds, including embarrassment and a failure to plead material facts. Peet sought an opportunity to consider further its proposed amendments. On 26 September 2008, I reserved to the trial date the question of whether Peet would be given leave to amend.

21 On 2 October 2008, a further proposed amended statement of claim was delivered, in which the proposed fiduciary duty claim was more fully articulated.

22 During opening submissions on the first day of the trial, Peet's senior counsel said that Peet no longer pressed the application to amend the statement of claim, or its claims in contract, estoppel or unjust enrichment. As far as the quantum meruit claim was concerned, Peet abandoned the claim for $15.7 million, being the entire increase in value of the Richmond land, but persevered with the two alternative bases mentioned in paragraphs 18(b) and (c) above.

23 Peet also claims penalty interest on any amount which it is awarded. Mrs Richmond says that a commercial rate of interest, such as 7%, should be awarded. I will hear further from the parties in relation to interest, and any outstanding GST issues, after the publication of these reasons.

Scope of the current disputes about the quantum meruit claim

24 There is no dispute that the work done by Peet, or by third parties at its request, in connection with the inclusion of the Richmond land in the UGB, was done at the express or implied request of Mrs Richmond.

25 That work included the preparation of concept plans, general infrastructure design, a business case for the development of the land, briefing papers, project evaluation and economic modelling. Peet was involved in the selection, appointment and briefing of consultants in all disciplines necessary for the project, including archaeology, ecology, vegetation, geotechnology including drilling, road and rail transport, public transport infrastructure, traffic modelling, aerial topography, water supply and water recycling, sewerage reticulation, drainage infrastructure, town planning, land surveying, site analysis, flora and fauna description, and drainage.

26 The project included the preparation of plans for the land and its environs, including concepts for redevelopment, statement of existing conditions, hydrology, environmental features, schools, general site analysis, pipeline alignment, railways, traffic conditions and population growth and projections. It included attendances on local council members, participation in community meetings, workshops, forums and presentations, and lobbying (by external lobbyists and Peet staff). Submissions and lobbying were also required to various government departments, including V/Line, City West Water, the Wyndham Smart Growth Committee, the Department of Sustainability and Environment, and to the Wyndham City Council regarding a proposed amendment to the Wyndham planning scheme concerning flood control.

27 Both of the alternative bases on which a quantum meruit is still pursued seek payment of the sum of $463,744.73, being the amount allegedly paid by Peet to various suppliers and consultants in connection with the inclusion of the Richmond land within the UGB ("the third party claim").

28 Mrs Richmond does not dispute that Peet is entitled to receive around $350,000 to $356,000 in respect of the third party claim, but she does dispute Peet's entitlement to four specific items, which are discussed in detail below.

29 In addition to the sum of $463,744.73, the first quantum meruit claim also seeks the recovery of $3,047,251.05, calculated as follows ("the 20% claim"). If the amount of the third party claim is deducted from the amount of the increase in the value of the Richmond land ($15.7 million), that leaves a balance of $15,236,255.27. 20% of $15,236,255.27 is $3,047,251.05.

30 Peet's primary submission is that it is entitled to an award based on 20% of the uplift in the value of the Richmond land because, before it began any work on the project, it agreed with Mrs Richmond that it would receive 20% of the ultimate profit of the joint development project. It says that agreement was reflected in the legally unenforceable MOU, executed in December 2002, and in draft heads of agreement which were prepared while work was ongoing.

31 Mrs Richmond disputes that Peet is entitled to any amount calculated on such a percentage basis. In particular, she denies that there was any such percentage profit agreement, even in principle.

32 In addition to the sum of $463,744.73, the alternative quantum meruit claim also seeks payment of not less than $815,965, in respect of Peet's own time, effort and expertise related to the inclusion in the UGB ("the internal costs claim").

33 Mrs Richmond raises a number of objections to Peet's calculation of internal costs. She says Peet should receive no more than $370,000 to $395,000 in total for its internal costs.

34 In Pavey & Matthews Pty Ltd v Paul[5], the majority of the High Court confirmed that the right to recover payment of a reasonable remuneration or compensation on a quantum meruit no longer depends on any implied contract, but on a claim to restitution based on unjust enrichment.[6]

35 Where there is an enforceable contract, no question of reward on a quantum meruit will ordinarily arise, and the plaintiff must sue on the contract.

36 In some cases, the parties clearly intend to be legally bound by a contract, but the contract is nevertheless void or unenforceable, for reasons such as uncertainty or illegality. There may be other cases where, although the parties have reached agreement as to the content of an anticipated contract, the parties do not yet intend to be legally bound. In such cases of an ineffective contract, a quantum meruit may be awarded.

37 The principles to be applied in assessing a quantum meruit claim were not in dispute and were comprehensively discussed in the decision of Byrne J in Brenner v First Artists' Management Pty Ltd[7], a case which has been widely followed and applied. The following points of principle[8] are of particular relevance here:

(a) The court's task is not to assess damages for breach of contract, as a quantum meruit claim presumes that no contract exists. Therefore, the court is not concerned with compensating a plaintiff for what it might have earned in the future under the ineffective contract;

(b) The fundamental yardstick is what is a fair and reasonable remuneration or compensation for the benefit actually or constructively accepted by the defendant;

(c) Where the services have been performed at the request of the defendant, or under an ineffective contract, the fair value of the work will ordinarily be calculated at a reasonable rate for the work actually done. The assessment must have regard to what the defendant would have had to pay for that work under a normal commercial arrangement. Although the actual cost to the plaintiff is not irrelevant in calculating what is a reasonable remuneration, the court is not concerned with compensating the plaintiff for its loss;

(d) Where the parties have agreed upon a price for certain services to be performed and those services have in fact been performed, but for some reason their agreement is ineffective or no longer on foot, the agreed price is evidence of the value that the parties themselves put on the services performed. But, although it may be received as evidence of the appropriate remuneration, it is not determinative of it.[9] Where the court has regard to the agreed remuneration or agreed mode of calculating remuneration, it is entitled to modify that to determine what is, in all the circumstances, a fair recompense;

(e) In many cases, the appropriate method of assessing the benefit of the work is by applying an hourly rate to the time involved in performing those services. In that case, the court may have regard to the rate of remuneration which is commonly accepted in the relevant industry, for comparable tasks and expertise;[10]

(f) Where the services are of such a kind that it is difficult or impossible to assess the number of hours involved or to itemise the precise services, the court is entitled to make a global assessment, or to reduce or increase the remuneration which can be proved with some certainty, in order to reflect the fair and reasonable value;[11]

(g) If it is customary in the industry for such services to be recompensed on a commission basis, the court may have regard to what is a reasonable commission and to apply it where appropriate.[12]

38 Peet largely relied upon the first and second Dwyer reports, with some limited verification by Peet officers or employees.

39 Most of Peet's lay witness statements were filed on the same day as the first Dwyer report and did not contain any verification of the figures in that report.

40 Each of the amended lay witness statements, filed in August 2008, contained a series of similar formulaic statements, to the effect that the witness had read the appendices to the relevant Dwyer reports, which are discussed below. As to each relevant appendix, the witness simply said that the entries under the witness' initials, as to the activities and times given "are true and correct as to the minimum times [the witness] was so engaged". The verification paragraphs have simply been inserted at the end of the witness statements and, with the few exceptions discussed below, bear little relationship to the rest of the witness statement.

41 Peet also called expert evidence from Jamie Andrew Govenlock, a town planner, and Brian Dudakov, a valuer, about the increase in value of the Richmond land; however their evidence is not discussed in these reasons for decision, as it was uncontroversial.

42 None of the consultants or other third parties gave evidence.

44 Mr Liali started working for Peet in 2000 as a project management assistant. He was later promoted to project manager and acquisitions manager. He was based in Melbourne.

45 He was involved in the discussions with Steve Carter, and the attempts to secure an initial deal with Mrs Richmond in 2002. He was also heavily involved with discussions about and considering the draft MOU and heads of agreement. Like all the Peet witnesses, he did not differentiate between work he was doing for the benefit of Peet in securing a deal, and work done in relation to the UGB.

46 Mr Liali was away on leave from late May until early September 2003. He left Peet altogether around late October 2003.

47 He did not give evidence as to what other projects he was working on, the proportion of his time spent on the Richmond project, or how long he actually or ordinarily spent on particular types of task.

48 He merely provided the formulaic verification of appendices 5, 5a to 5h and 6 to the first Dwyer report and appendices 9 to 11 to the second Dwyer report.

49 Mr Liali said he did not speak to Mr Dwyer or anybody from Mr Dwyer's office, for the purpose of assisting Mr Dwyer to prepare his reports.

50 Mr Mulder joined Peet in June 2002 as a development manager and project manager. In late 2004, he became an operations manager.

51 His first involvement with the Richmond project was in March 2003, and over the next couple of months he appears to have become increasingly involved with the project. When Mr Liali was away on leave from May to September 2003, Mr Mulder took over his role. He also took over that role when Mr Liali left Peet in October 2003.

52 Mr Mulder's witness statement provides detail of numerous meetings and communications. Some of those matters relate to the inclusion of the Richmond land in the UGB, others are clearly for Peet's personal benefit in securing a deal with Mrs Richmond.

53 Mr Mulder is the only Peet witness who gave evidence as to the proportion of time which he spent on the Richmond project. He said that at the relevant time, he was mostly working on other Peet projects at Brimbank and Cardinia Lakes, which took up about 70% of his time. He said that the Richmond project took up about 15 to 20% of his time, and miscellaneous other work took up the rest of his time. That Richmond estimate includes both time spent for the benefit of Peet itself, as well as for the benefit of Mrs Richmond.

54 He said that Peet did not keep records of the time spent on the various project activities, but that experience soon familiarised him with how long major activities would occupy. Meetings with Mr Nicol (who acted on behalf of the Richmonds), including travel time, typically took around three hours; project control and strategic planning meetings usually took at least between 1.5 and 2 hours; and typing minutes and agendas typically took about one hour.

55 Mr Mulder says he believes he worked over 410 hours in preparing, sending and reading emails for the Richmond project; nearly 500 hours in meetings (including preparation, attendance, preparing minutes, travelling and internal reporting); more than 45 hours working on reports, submissions and presentations (including taking instructions, correspondence and review); and over 55 hours authorising consultants' invoices.

56 In addition to that specific evidence, Mr Mulder also provided the formulaic verification of appendices 5, 5a to 5h, and 6 to the first Dwyer report and appendices 9 to 11 to the second Dwyer report.

57 In cross-examination, Mr Mulder said he spoke to Mr Dwyer in the latter half of 2007. He had two or three meetings with Mr Dwyer, which went for about an hour each. He also met with Mr Dwyer's assistant, Neil McLean, on three or four occasions. The meetings with Mr McLean were lengthy, in which Mr Mulder spent at least four hours going through documents with Mr McLean. He provided consultants' reports, business case papers and briefing papers to Mr Dwyer's firm, Dwyer Corporate.

58 Tony Lennon ("Mr Lennon"), is the son of Anthony Wayne Lennon ("Mr Lennon Snr").

59 He started working with Peet in Perth in late 1991 and became a director in 1997. In 1999, he moved to Melbourne to set up Peet's first interstate office.

60 Mr Lennon was involved in some of the initial attempts during 2002 to secure a deal with Mrs Richmond, and in considering the terms of the MOU. He also attended some of the more important meetings and was kept informed about a number of aspects of the Richmond project. He was also involved in the attempts after 13 January 2006 to secure a deal with Mrs Richmond.

61 He did not give evidence as to what other projects he was working on, the proportion of his time spent on the Richmond project, or how long he actually or ordinarily spent on particular types of task.

62 He merely provided the formulaic verification of appendices 5, 5a to 5h to the first Dwyer report and appendices 9 to 11 to the second Dwyer report.

63 A further 100 hours of meeting time was located for him between the first and second Dwyer reports, but there is no evidence that he had any involvement in that process.

64 Mr Lennon did not speak to Mr Dwyer or anybody from Mr Dwyer's office for the purpose of assisting him to prepare the reports.

65 Mr Hemsley has been a non-executive director of Peet since 1985. He became the managing director in 1991. After Peet became a listed company, he became the chief executive officer.

66 Although he was involved in some strategic decisions, he had no day to day involvement in the management of projects.

67 His first involvement in relation to the Richmond project was in September 2002, when he approved Peet putting together a proposal for Mrs Richmond. He attended an important meeting on 21 November 2002 by teleconference, and a few other meetings in 2003 and 2004. He also sent and received a few emails. He spent time in 2006 in connection with Peet's attempt to retain some role with the Richmond land.

68 Mr Hemsley attended directors' meetings. Like the other directors, he gave no evidence as to how long directors' meetings took, or what proportion of directors' meetings, over what period of time, concerned the Richmond land.

69 He did not give evidence as to what other projects he was working on, the proportion of his time spent on the Richmond project, or how long he actually or ordinarily spent on particular types of task.

70 He merely provided the formulaic verification of appendix 5b to the first Dwyer report and appendices 9 to 11 to the second Dwyer reports.

71 Mr Hemsley did not speak to Mr Dwyer or anybody from Mr Dwyer's office for the purpose of assisting him to prepare the report.

72 Mr Davies joined Peet in 2001 and is based in Perth. He is currently Peet's national business development support manager.

73 He had quite limited involvement in relation to the Richmond land. He did some work in September to November 2002 on preparing cashflows; this was clearly done for the purpose of Peet securing the initial deal with Mrs Richmond. He spent some more time on cashflows in early 2004. His witness statement shows that during 2003 to 2005, he spent a few hours here and there, primarily reviewing some documents related to the Richmond land.

74 Mr Davies did give evidence as to the number of hours he spent on some, but not all, tasks. Otherwise, he gave the formulaic verification of appendices 5f and 5b to the first Dwyer report and appendices 9 to 11 to the second Dwyer report.

75 No evidence was led as to whether or not Mr Davies spoke to Mr Dwyer or Mr Dwyer's staff.

76 Anthony Wayne Lennon is the father of Mr Lennon. He joined Peet as its managing director and controlling shareholder in 1985. After Peet became a public company in August 2004, his role changed to that of non-executive chairman of the board. He is based in Perth.

77 His short witness statement was tendered into evidence, without him being required to attend for cross-examination.

78 He attended a few relevant meetings, but had no involvement in the day to day running of the Richmond project. He made no estimate of the amount of time he had spent on the project. He simply provided the formulaic verification of appendix 5b to the first Dwyer report and appendices 9 to 11 to the second Dwyer report.

79 In his first and second reports, Mr Dwyer set out the nature of the task which he was asked to do by Peet's lawyers.

80 Mr Dwyer was asked to provide Peet with a report encompassing the hours expended by Peet employees and the costs of their suppliers and consultants in relation to the work the subject of the court proceedings, and to report on what he considered reasonable payment for work actually carried out by Peet, its employees, agents and contractors, on the quantum meruit claim.

81 Mr Dwyer was given the discovered documents, which he reviewed. The documents included minutes of meetings, correspondence, schedules containing consultants' costs, and reports, presentations and submissions prepared both by Peet and by consultants.

82 The first Dwyer report said that Mr Dwyer had "detailed discussions with Peet employees", who produced additional records including archived calendar appointments and general ledger transaction listings. In cross-examination, it became apparent he had spoken primarily to Mr Mulder and two of his (unnamed) assistants, and that two of Mr Dwyer's staff, who did not give evidence, had helped him with the task. He did not speak to any Peet lay witness, except Mr Mulder.

83 Because Peet did not charge on a time basis, Mr Dwyer had to reconstruct from the documents provided the time expended, and then apply what he considered an appropriate hourly rate for each relevant employee.

84 The first Dwyer report said that, in order to determine an appropriate hourly rate, he took into account a number of factors, including the rates charged by the third party consultants Peet engaged in relation to the Richmond land; the nature of the work conducted by Peet; the expertise and experience of Peet and its personnel; and rates generally charged by other consultants within the industry. However, in cross-examination, he conceded that he had not actually been instructed as to the expertise and experience of the Peet staff involved with the Richmond land.

85 Mr Dwyer was asked in cross-examination about his discussions with other industry participants. He initially said that "some" industry participants he examined would have charged a success fee in conjunction with hourly rates, but did not reveal the names of those to whom he spoke. He later said that he spoke to one person - the "executive manager, general manager" of a similar-sized development company to Peet, which had similar-sized projects. That person's background was as a real estate agent in a large Melbourne firm; he had been with the development company for a number of years, and Mr Dwyer felt that this person understood the task Mr Dwyer had in terms of determining an appropriate hourly rate.

86 Mr Dwyer was told by that person that his company "would normally charge a fee on a contractual basis, and charging by hourly rates is not normally the way they would charge for their work, but in the event they were asked to provide consultancy services on an hourly basis, their rates would be such and such". Mr Dwyer agreed that the rates he allocated to Peet staff were the rates of people with professional expertise who do not charge success fees. Mr Dwyer said in re-examination that the information this person provided in relation to his company's structure, salary levels at senior level and rates they would expect for certain consulting jobs provided Mr Dwyer with comfort as to the rates he had adopted in his report.

87 The first Dwyer report said that he researched guidelines issued by "appropriate professional bodies" and rates charged for projects of similar nature and size. The report said he discussed "rates charged generally by senior industry participants not associated with Peet or this project". He noted that most industry participants charged on a fixed fee, percentage of cost or success fee basis, not on an hourly rate.

88 He said another way of considering appropriate rates was to consider the salaries charged by directors and executives and to compare them with professions such as lawyers and accountants, who do charge based on hourly rates. Whilst the type and amount of overheads for these professionals may differ from those of property consultants such as Peet, he believed that the comparison of salary, or profit to proprietor levels, was "a useful benchmark".

89 Mr Dwyer said that based on his own evidence and research, project management fees between 2 and 6% are charged, dependent on the size and difficulty of the project.

90 Although in his first report, Mr Dwyer said he had been told by Peet that gross realisations for the Richmond project were expected to be approximately $500 million, and that the project had reached 15% completion, no witness gave evidence to support such an assumption.

91 The first Dwyer report contains 11 relevant[13] appendices. They are:

Schedule of the hourly rates charged by third party consultants engaged by Peet

Summary of the amount then claimed for internal Peet time of some $696,507.50

Time spent by Peet employees on pre-meeting tasks (preparation for meetings), said to be sourced from minutes of meetings, calendar appointments and email correspondence in available records

Time spent by Peet employees on post-meeting tasks[14]

Time spent by Peet employees travelling to meetings[15]

The weekly allowance for Peet employees for internal discussions/meetings about the Richmond project

Time spent by Peet employees in relation to third party consultants, including allowances for instructions and discussions with the consultants, correspondence, review of documents and provision of feedback and final review of the report/presentation/submission

The weekly allowance for Peet employees for sending, receiving and reviewing email correspondence (at a set allowance of 18 minutes per email)

Summary of a "conservative estimate for the review, discussion, authorisation and payment of consultants' invoices"

92 In the second Dwyer report, dated 26 August 2008, Mr Dwyer said that Peet's solicitors had provided him with further discovered documents, which may affect the conclusions in the first Dwyer report. He said he applied the same methodology to the new documents to determine the quantum of the reasonable payment, and identified an additional 318.4 hours expended by Peet on the Richmond project. The same hourly rates were applied to each relevant Peet employee.

93 The further discovered documents provided to Mr Dwyer included calendar appointments, minutes of meetings, correspondence, reports and submissions and witness statements filed by both parties. From these documents, Mr Dwyer identified additional meetings in relation to the project, including more than 100 further hours for Mr Lennon. As Mr Dwyer acknowledged that it may have been the case that only a portion of the extra time identified was spent solely in relation to the Richmond land, Mr Dwyer allowed 0.2 hours for preparation, 1.3 hours for Richmond-related discussions within each meeting and 0.5 hours for post-meeting tasks.

94 The second Dwyer report results in a conclusion that over $119,000 of further time was justified.

95 Mr Dwyer said he believed that estimate was conservative and reasonable, because it was evident from the documents and discussions with Peet employees that the Richmond project was one of the most significant projects being undertaken by Peet at the time. Unfortunately, that assumption is not supported by the Peet lay witnesses. The only Peet witness who even tried to estimate the proportion of time he spent on the Richmond project was Mr Mulder, the project manager, who estimated it took up around 15 to 20% of his time; and that estimate included both work for inclusion in the UGB and work done to secure the deal. From their witness statements, it is evident that all the other Peet witnesses were spending significantly less time on the inclusion in the UGB than Mr Mulder.

96 In around August 2004, there were about 20 different land projects where Peet was either seeking development approval or rezoning, but it is not clear whether all these projects were in Victoria. During the course of his employment with Peet, which began in June 2002, Mr Mulder said he had been involved in a number of subdivision developments in Victoria, including: Brimbank Gardens; Tarneit Rise; Greenvale Rise; Cardinia Lakes; Point Cook; and Brookland Greens in Cranbourne.

97 Other than the reference to those 20 projects, it is not clear to what extent, and how many, Peet projects, were ongoing during the period in which Peet was working on the inclusion of the land in the UGB.

98 The second Dwyer report contains 5 further relevant[16] appendices:

Summary of the further discovered documents Mr Dwyer relied upon in drawing conclusions regarding the allocation of time in the second Dwyer report

Schedule of the discovered documents Mr Dwyer relied upon for the purpose of drawing his conclusions in the first Dwyer report

Time spent by Peet employees on meeting preparation, attendance, post-meeting tasks and travel (additional to that identified in the first Dwyer report), identified from calendar appointments contained in the further documents provided to Mr Dwyer

Time spent by Peet employees on meeting preparation, attendance, post-meeting tasks and travel (additional to that identified in the first Dwyer report), identified from other documents contained in the further documents provided to Mr Dwyer

Summary of the changes in times allocated in the first Dwyer report for meeting preparation, attendance, post-meeting tasks and travel, revealed by the further discovered documents provided to Mr Dwyer, including Peet's lay witness statements

99 Mr Dwyer conceded that there were errors in the report, and that some of the appendices could have been adjusted, but maintained that the overall time allocation was reasonable. He said it equated to some 2,500 hours over a period of nearly 4 years, which equated to 7 or 8 hours a week for 2 people. Having regard to the amount of material and the size of the Richmond project as against the other parts of Peet's business, Mr Dwyer believed that Peet employees (and in particular Messrs Lennon and Mulder) had spent a substantial amount of time on the project, probably more than 7 or 8 hours a week.

100 Peet seeks $463,744.73 (including GST) in respect of amounts allegedly paid to third parties for work done in connection with the inclusion of the land in the UGB. Recovery of this amount is sought as part of Peet's claim on either quantum meruit basis.

101 Mrs Richmond does not dispute Peet's entitlement to recover in respect of many of the third party payments, details of which are listed in appendix 6 to the first Dwyer report. However, she does dispute the following items:

(a) Certain amounts claimed, in respect of which Peet has not provided invoices or other evidence of actual payment;

(b) Expenses which relate to work done by Tract Consultants Pty Ltd ("Tract") in part for the adjoining Carter land;

(c) Expenses which relate not to the inclusion of the Richmond land in the UGB, but to work done by lawyers, Ponte Earle, for the benefit of Peet in striking a deal with Mrs Richmond; and

102 There are a number of items listed in appendix 6 to the first Dwyer report, for which Mr Dwyer did not sight any invoice from the third party, or any evidence that the expense had, in fact, been paid.

103 Mrs Richmond says that Peet should not be allowed to recover in respect of 13 such items, listed in annexure H to the Richmond submissions. Those items total $59,787.16 (including GST) or $54,351.96 (excluding GST), and cover the period from January 2004 to August 2005. In so far as there are unproven payments for Tract, they are dealt with separately below.

104 Some of the items which fall into this category appear on their face, to be possible duplications of items for which there are invoices and proof of payment, particularly some of the Nicol group items. Others, such as the single reference to "SKM" of $33,693.00, do not appear to be mere duplications.

105 Mr Dwyer was taken to a number of these and similar items in cross-examination. He said that the list in appendix 6 "would have been" extracted from the general ledger account. Where there was no invoice or proof of payment "we made further enquiries as to whether dates paid could be provided and within the time frame of [the first Dwyer report] they weren't able to be provided." Mr Dwyer said that he and his staff made no further enquiries about these items in the 15 months after the first Dwyer report was prepared.

106 Mr Dwyer said that because he had not been provided with information that such items either had or had not been paid, they were included in the report.

107 Peet did not adduce any evidence as to how, or when, or by whom, the general ledger was created or reviewed, and it was not tendered in evidence. Nor did Peet lead evidence from the consultants themselves, as to whether the amounts claimed had been paid or were payable, or related to work for the Richmond land.

108 In her closing submissions, Mrs Richmond does not attack all of the third party items for which there was no invoice and no proof of payment. There are other items in appendix 6, totalling around $30,000 (including GST), which appear to fall into this category and could also have been the subject of attack by Mrs Richmond.

109 In the circumstances, it is not fair and reasonable for Peet to recover in respect of these amounts, which ought to have been capable of simple proof.

110 Conclusion: I will disallow the 13 items identified by Mrs Richmond. That leads to a deduction of $59,787.16 (including GST) from the amount of the third party claim.

111 Tract provided strategic and statutory planning expertise. In particular, Tract prepared a written submission to the Wyndham Smart Growth Committee, for the purpose of the application for inclusion of the Richmond land in the UGB. Tract also prepared a similar written submission seeking the inclusion of the adjoining Carter land in the UGB.

112 Peet claims a total of $94,986.80 for Tract's work in relation to the Richmond land. That figure is comprised of 32 items in appendix 6 to the first Dwyer report, with entries spanning the period from January 2003 to August 2005.

113 There is no dispute that Tract actually did the work identified in the invoices, or that (subject to a few exceptions discussed below) Peet paid Tract for that work. Messrs Mulder and Liali both gave unchallenged evidence that Tract's expertise was important to the process of having the Richmond land included in the UGB.

114 However, Mrs Richmond says the court should conclude that the sum paid to Tract was excessive, as the work was completed for the benefit of both the Richmond and Carter lands.

115 A comparison of the Richmond and Carter land submissions certainly shows considerable overlap in the data used in both submissions. Mr Lennon conceded that some of the same data appeared in both submissions. However, he said that there was a difference in the work done by Tract for the Richmond and Carter lands, in that Tract had greater involvement in formulating strategies to have the Richmond land included into the UGB, including a lot more work in the design of the concept plan and structure plan, and that they were involved in more meetings and discussions concerning the Richmond land.

116 That some Richmond land data was apparently copied into the Carter submission is also supported by one of two invoices from Tract to Peet relating to the Carter land, which were tendered into evidence; they were dated January and February 2003 and totalled $5,397.97. The January invoice included in the description of services "Transfer of data/images from Peet-Richmond", but gave no indication of how much of the invoiced amount of $3,723.88 was referable to that task.

117 If it were established that Peet and Tract had unfairly allocated as between the two landowners the true costs of Tract's work in relation to the Richmond and Carter lands, that might be a matter which would lead to some adjustment in favour of Mrs Richmond. But the evidence here is insufficient to establish any such unfairness.

118 Mr Dwyer was challenged in relation to the Tract payments, but had no personal knowledge about the nature of Tract's work in relation to the Carter land. Any such cross-examination should have been addressed to one of the lay witnesses.

119 Mr Liali's evidence that Tract separately invoiced Peet in relation to the Richmond and Carter projects was not challenged.

120 Mr Lennon was asked, but did not know, whether the two invoices referred to above were the only invoices received from Tract in relation to the Carter land.

121 Mrs Richmond's counsel did not cross-examine any other Peet witnesses, or lead any other evidence, as to how much Mr Carter had been charged for work done by Tract for the Carter land. The court simply does not know the total amount charged to Mr Carter over the relevant period.

122 Nor does the evidence allow the court to draw any conclusions as to the exact process by which the two submissions were prepared, precisely what work was done by Tract in respect of the two pieces of land, or how Tract made whatever decisions it did as to the allocation of costs. For example, I note that the Richmond land is considerably larger than the Carter land (430 versus 87 hectares), but have no evidence as to whether that might have had any impact on the scale of the work or the allocation of costs. As mentioned above, Mr Lennon's evidence was to the effect that Tract did considerably more work in respect of the Richmond land.

123 I am satisfied that, subject to the few exceptions discussed below, Peet did pay Tract for its work in connection with the inclusion of the Richmond land in the UGB, which work was of benefit to Mrs Richmond.

124 However, the following Tract items identified in appendix 6 appear to involve possible duplication:

125 There was no explanation given by Mr Dwyer or any other witness as to what the date in the first column ("Date (per Peet schedule)") signifies.

126 It is quite possible that these entries in fact reflect only two, not six, separate payments. There are only two invoices which have been sighted, one for $1,376.28 and the other for $2,009.21. It is evident from Tract's invoices that it charged professional fees on an hourly basis, plus actual disbursements and GST. Up to half a dozen Tract staff appear to have worked on the project, charging at different hourly rates. It seems highly improbable that exactly the same staff would work exactly the same combination and number of hours in different months. That is supported by the fact that none of the other 32 Tract items are in the same amount as any other item.

127 The first 7 January 2003 entry of $1,376.25 appears to be a clear duplication. There is no invoice for it and no record of its payment, and it is in exactly the same amount as the previous entry. There is a record of a payment of only one of these three items, being $1,376.25 on 15 August 2003, for an invoice dated 31 May 2003, which was not tendered in evidence. Only one invoice for these three items was tendered, being the invoice dated 31 May 2003 for $1,376.28, but, according to Mr Dwyer, there is no record of it having ever been paid. No other evidence was led as to these payments.

128 The same reasoning applies to the three items which are all in the sum of $2,009.21, for which there is only one actual invoice and the same invoice date for two of the entries.

129 Whilst it may well be that these six entries reflect only two actual invoices and payments, Mrs Richmond only challenges two of the six entries. She does so on the basis that, in the absence of any invoice or proof of payment, the entries should not be allowed. For the reasons given in the previous section of these reasons, I accept that argument.

130 Conclusion: It follows that a total of $3,385.46 will be deducted in respect of the payments to Tract.

131 Mrs Richmond disputes Peet's entitlement to a sum of $4,811.15 paid to Ponte Earle, solicitors.

132 Appendix 6 to the first Dwyer report lists a total amount of $4,811.15, for Ponte Earle. That figure is broken down into two payments, one of $4,734.15 dated 7 April 2003 and one for $77.00 dated 9 November 2006. Nothing in either Dwyer report indicates who Ponte Earle were, or to what precise services the payments relate.

133 In cross-examination, Mr Dwyer said he was not aware whether Ponte Earle were a law firm. He had no personal knowledge of, and made no enquiries as to, the services to which the payments relate.

134 The only other evidence concerning Ponte Earle is an email dated 17 March 2003, from Leon Ponte Jr of Ponte Earle, Business Lawyers, to Marco Liali and Tony Lennon of Peet. Attached to the email is a marked-up version of the first draft of the heads of agreement, reflecting Ponte Earle's suggested changes to that document.

135 Mrs Richmond argues that the email and attachment prove that Ponte Earle were engaged by Peet, to give legal advice to Peet, in relation to draft contractual documents. On no view was that to the benefit of Mrs Richmond.

136 Peet does not dispute that the payments relate to legal advice to Peet concerning the heads of agreement. But it argues that work directed to formalising joint venture documentation was of benefit to the joint enterprise. It says that work need not be narrowly referable to the UGB in order to be compensable under the quantum meruit.

137 Whilst I accept that work need not only refer to the UGB to be compensable, I do not accept that it is fair and reasonable that Mrs Richmond pay for Peet's lawyers to provide it with advice as to how to protect its own commercial interests. As a matter of general fairness, in the absence of some contrary agreement, each side should bear its own costs of negotiating and documenting any deal between the parties.

138 In fact, in so far as the parties turned their minds to this topic, clause 8 of the MOU (the only clause which was binding) provided that Peet would pay one half of Mrs Richmond's reasonable legal costs in connection with the preparing and settling of the MOU, the heads of agreement and other relevant agreements and, otherwise, each party was to bear its own legal costs of such work.

139 Conclusion: The sum of $4,811.15 will be disallowed.

140 The third party claim for $463,744 is inclusive of GST.

141 Mrs Richmond says this figure should be GST-exclusive. She says that Mr Dwyer should have reduced the figure to 10/11ths of that figure, to take account of the GST input credit benefits which would have accrued to Peet on payment of the invoices.

142 Mr Dwyer said he was not a GST expert, but accepted that the net out of pocket expenses to Peet would have been the net amount, not the GST inclusive amount.

143 No evidence was led by Peet as to its tax position, or as to when and how much it has claimed by way of input credits. But, given that it would have been entitled to claim them, it is not fair and reasonable for it to charge Mrs Richmond the grossed up amount.

144 Conclusion: The GST on third party payments should be disallowed.

Summary of conclusions on the third party claim

145 Peet's pleadings seek $463,744.73 (including GST) on the third party claim. The Dwyer reports only purport to verify $463,744.72, so I shall use that figure.

146 For the reasons given above, I have concluded that the following deductions should be made:

147 Deducting those three items from $463,744.72 leaves a total of $395,760.95 (inclusive of GST). If GST ($35,978.27 is 1/11th of $395,760.95) is then deducted, that leaves a net figure of $359,782.68 (being 10/11ths of $395,760.95).

148 Peet says that it has always worked on development projects on the basis it takes a percentage of the profits of the project. In that sense, it runs the risk that a project might not proceed. Peet says that it is for this reason inappropriate to award remuneration on the basis of an hourly rate for work completed.

149 Peet's claim to a percentage of the increase in value of the Richmond land is based on the MOU and draft heads of agreement. Peet says that a 20% profit figure consistently appeared in the MOU and the various draft heads of agreement (which themselves were still being negotiated right up until the inclusion of the land in the UGB), and that should be taken into account when determining the value of the services it provided.

150 Peet acknowledges that the MOU is not legally enforceable as a contract, but says that it nevertheless represents a meeting of the minds between the parties as to what was to occur. In that sense, it reflects an agreement as to the manner in which the remuneration on quantum meruit ought be determined.

151 In so far as the MOU itself provides that Peet was to bear most of the initial costs of the development in any event, Peet says that would be relevant if it had sued in contract, but not to the quantum meruit claim, which is based upon principles of unjust enrichment.

152 The 20% claim is not based on any evidence as to industry practice or the like.

153 Peet led some evidence in relation to the usual basis on which it charged.

154 I accept that Peet did not ordinarily charge on a simple hourly or fee-for-service basis. Precisely how much it did charge seems to have varied, depending on the structure of the development.

155 For example, Mr Liali said that, during his time at Peet, some projects were syndicated. Syndicates typically comprised 700 to 1000 shareholders in an unlisted public company. Peet would act as project manager and sales and marketing manager, and receive reimbursement from the sale of lots. He said Peet would receive total fixed fees in the order of 7-9% (plus GST) gross revenue from the sale of lots,[21] upon the project achieving expectations.

156 It seems that there were other Peet development projects which were carried out as a joint venture, and others which were wholly owned by Peet. Messrs Liali and Davies said that the fee structure in respect of joint venture agreements was "quite different", but did not explain what they were.

157 Whilst I accept the general proposition that Peet ordinarily works on some sort of percentage basis, the evidence is insufficient to enable me to draw any conclusion as to any "usual" percentage that Peet might charge. In particular, there is simply no evidence of any other project in which Peet has received 20% of any profit (either net or gross).

158 It is necessary to examine the MOU and the draft agreements in some detail, to explain why I reject Peet's suggestion that the parties had always agreed in principle that Peet would receive a 20% profit share.

159 In the MOU, Peet and Mrs Richmond agreed that, except for clause 8 (which dealt with the legal costs of preparing certain contract documents), the MOU was only a statement of their mutual intent and was not legally binding on them (clause 11.1).

160 Peet and Mrs Richmond agreed to use their best endeavours to agree upon and execute a legally binding heads of agreement document, pursuant to which Peet would carry out the "planning phase", which would cover the inclusion of the Richmond land in the UGB, and the rezoning of the land ready for development or sale (clause 4.1).

161 The MOU said that the heads of agreement were to provide that, after the successful completion of the planning phase, Peet would have the option (exercisable within 90 days after completion) to develop the Richmond land on behalf of Mrs Richmond, buy the land from Mrs Richmond, or act as her agent to sell the land (clause 5).

162 If Peet chose to develop the land, it was to enter into a development agreement and carry out the development in accordance with certain principles set out in schedule 2 of the MOU (clause 5.1.1). In that event, Peet had to offer Mrs Richmond the opportunity to join in the development of the land, through a joint developer ("the developer"), which would be a trust, company or partnership formed by Peet and Mrs Richmond or their nominees (clause 5.2.1 and schedule 3).

163 If Mrs Richmond chose to proceed with that joint development route, then the following would happen (clause 5.2.3 and schedule 3). The developer would appoint Peet as the manager of the project, for which Peet would be paid "not more than 9% of the actual proceeds received from the sale of each lot." In return for designing, sub-dividing, marketing and selling the land, the developer would receive a development fee of 90% of "the amount payable by the purchaser for the land."

At a glance

Court

Decision date

Before

Source

Judgment (370 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)