Savills (NSW) Pty Ltd v ATF CTH Pty Ltd

Solicitors: BBW Lawyers (Plaintiff) Eakin McCaffery Cox (Defendant) File Number(s): 2017/293995

Introduction

1. By amended statement of claim filed on 26 March 2018 Savills (NSW) Pty Ltd (the plaintiff) claimed commission pursuant to an alleged agency agreement pursuant to which it was retained by ATF CTH Pty Ltd (the defendant) to sell certain property, as defined in the agreement, located at 9-25 Commonwealth Street, Surry Hills (the site). In the alternative, the plaintiff claims damages for unconscionable conduct on the part of the defendant in encouraging it to do work on the basis of an assumption that it was the defendant's exclusive agent for the sale of the property.
2. The defendant denied that there was any concluded agreement in writing with the plaintiff. In the alternative it submitted that, if there was a concluded agreement with the plaintiff in the form for which the plaintiff contended, the terms of the agreement did not entitle the plaintiff to any payment. Further, the defendant contended that there was no unconscionability on its part and that, in any event, the evidence adduced by plaintiff was not sufficient to prove any loss arising from the alleged unconscionable conduct.
3. I note that the hearing was conducted in person in my courtroom. The only witness who gave evidence remotely was Peter Keenan, who gave evidence via audio-visual link from Melbourne. He was provided with documents in the course of his cross-examination by a solicitor who was separately retained for that purpose.

The facts

1. Before turning to the legal claims and defences it is necessary to set out in some detail the facts. Except where necessary for the narrative, the issue of credibility will be addressed separately.

The defendant's business

1. The defendant is a property developer, the principals of which are investors: Jian Shi, Jingfei Wang and Jiachen Xue, each of whom is based in China. In 2014 it purchased the site with a view to developing a single tower which would comprise hotel, retail and residential components. Mr Shi approached Chang Liu, the son of long-standing friends, and recruited him to help establish a company to manage the development on behalf of the defendant. To that end, ATF Development Pty Ltd was incorporated on 19 May 2014. It subsequently changed its name to Andev Pty Ltd (Andev). On 30 June 2014 a development and management deed was executed by the defendant and Andev, which provided that Andev was to arrange for the existing improvements to be demolished and to design and construct the new development on the site which would comprise a single tower with a hotel as well as residential and retail components.
2. At all material times, Mr Shi was the sole director of Andev. Andev occupied an office on level 35, 50 Bridge Street, Sydney. About every 4-6 weeks, Mr Shi would travel to Australia for a period of 3-7 days. During that time he would visit Andev's office. Mr Shi speaks Mandarin but not English.
3. Mr Liu was employed by Andev. He is a native Mandarin speaker and is also fluent in English. His roles included data entry and preparation of management accounts. Mr Liu also acted as a conduit and translator between Mr Shi and others associated with Andev, the defendant and those who dealt with them. I accept the description of Peter Keenan (referred to below) that Mr Liu was Mr Shi's "trusted eyes and ears on the ground in … Sydney".
4. Andev employed Frank Iemma as its development manager for the site. I accept that he was, as Mr Keenan described him, the gatekeeper to Mr Shi although they spoke no common language. Mr Iemma and Mr Liu worked closely. Grace Shao was Andev's office receptionist. Ms Shao was also bilingual in Mandarin and English and, from time to time, would also provide translation services to Mr Shi. While Mr Iemma gave instructions to Mr Liu, as he was senior to him at Andev, Mr Liu ultimately reported to Mr Shi. Whenever Mr Iemma needed instructions from Mr Shi, he would use Mr Liu as a go-between. Mr Shi would consult with the other two directors of the defendant before communicating the defendant's position or decision to Mr Liu to be passed on to Mr Iemma. When Mr Shi visited Australia he would meet with Mr Liu and Mr Iemma but rarely attended external meetings and would leave Mr Liu and Mr Iemma to carry out his instructions.

The plaintiff's business

1. The plaintiff's business had several divisions. Its hotels division had two arms: advisory and transactions on the one hand and project management on the other. Both Michael Simpson and Peter Keenan worked in the hotels division. Mr Keenan worked for the plaintiff from October 2015 until April 2018. For the first six months he was the associate director of hotels, tourism and leisure in the project management arm of the plaintiff's business. He was promoted to the position of National Director, head of hotels, tourism and leisure also within that arm. He and Mr Simpson were at the same level: Mr Simpson was head of the advisory and transaction arm of the hotels division and Mr Keenan was head of the project management arm of that division.
2. For the period up to March 2017, when the plaintiff moved its business premises from 50 Bridge Street, Sydney (where Andev's offices were also located) to Governor Phillip Tower, Mr Simpson and Mr Keenan worked on the same floor, level 6. After the move they were on different floors in the same building.

The proposed development of the site

1. In July 2015, the defendant spoke to Colliers with a view to engaging the firm as its selling agents for the site. At that time, Knight Frank had already been appointed agents for the site.
2. On 2 September 2015, the Land and Environment Court approved a development application for the site, which authorised the demolition of the existing improvements on the site and the erection of a building with retail floor space, hotel rooms and residential apartments.
3. By early January 2016, the defendant and Andev had terminated the agency agreement with Knight Frank, which was, accordingly, no longer authorised to offer the site for sale.
4. On 20 January 2016, Gus Moors of Colliers sent Mr Iemma and Mr Liu a draft agency agreement for the appointment of Colliers as the defendant's exclusive agents to sell the hotel stratum of the site. The agreement provided that Colliers was to have exclusive selling rights from 20 January 2016 until 11 March 2016. Although there is no complete executed version of this document in evidence, I understood it to be common ground that the defendant had appointed Colliers in early 2016 to be its exclusive agent to sell the hotel stratum of the proposed development on the site. However, the precise terms of the agreement are not revealed by the evidence. Mr Liu recalled that Colliers was engaged "to test the market".
5. An Information Memorandum was prepared by Colliers which contained, by way of introduction, the following narrative: "Colliers International has been exclusively appointed to offer for sale the hotel stratum component of the proposed luxury mixed use development, located at 9-25 Commonwealth Street, Sydney."

The plaintiff's role with respect to the project management of the site

1. In about March 2016 Andev sought proposals from consultants to do project management work to develop the site. Mr Keenan put in a proposal, which was accepted by Andev and the defendant. Mr Keenan said: "I'm very risk averse, I had a signed contract before I started one minute of work …"
2. The agreement provided for a lump sum fee for the work, a portion of which would be billed monthly. As a consequence, Mr Iemma and Mr Keenan met weekly. Mr Liu usually attended these meetings so that he could report to Mr Shi. Mr Keenan understood that Mr Liu represented Mr Shi at these meetings, although he had no authority except to communicate with Mr Shi to pass on information or requests and obtain instructions.

The involvement of Michael Simpson

1. Mr Keenan understood that the plaintiff wanted the various arms of its business to share business opportunities within their respective operations. To that end, on 8 March 2016, Mr Keenan emailed Michael Simpson with a view to the transaction and advisory part of the hotels division (for which Mr Simpson was responsible) providing services to Andev and the defendant. Mr Keenan sent further emails to Mr Simpson providing him with more information about the defendant. By email dated 15 March 2016, Mr Keenan wrote to Mr Simpson as follows: "In relation to the below, we will be submitting our PM [project management] proposal this Friday and thought that I would check to see if you would like me to include a brief summary of your division[']s services within our proposal to provide them with food for thought? If so, could you please flick something through so that I can include as part of our submission."
2. At 9.18am on 18 March 2016 Mr Keenan sent his draft submission to Mr Simpson, which included an outline of services which could be provided by "Savills Hotel Agency" and said, in part: "The expertise within the team is capable of putting forward unique asset realisation strategies and disposition services, as well as specific management and consultancy services."
3. A follow-up email was sent by Mr Keenan at 9.39am. The evidence does not reveal any response by Mr Simpson at this stage.
4. On 30 March 2016 Mr Keenan met with Mr Iemma and proposed an introduction to Mr Simpson the following day. At that point, Mr Iemma was interested in obtaining advice regarding the design of the hotel development from the advisory arm of the plaintiff's hotel division. On 5 April 2016, Mr Simpson emailed his proposal to Mr Iemma. His covering email included the following: "Without trying to sound overly arrogant, I believe we offer market leading advice in this space, and would be pleased to provide you with client references confirming this should you require."
5. In substance, the proposal set out the ways in which the plaintiff's hotels arm could improve the planning and design of the hotel proposed for the site. The scope of work outlined in the proposal limited the services to be provided at that stage to the following: "Advise on the optimal hotel product, recognizing that the Client has an existing DA and architectural plans: • Recommended scale and quality of hotel which will determine commensurate star rating • Number, size and configuration of hotel rooms • Number and size of other facilities (including F&B facilities, fitness and recreational facilities) as required • Adequate back of house facilities."

The opportunity offered to Mr Simpson by Richard Doyle

1. In about April 2016, Richard Doyle, group general counsel for Staywell Holdings Pty Ltd, contacted Mr Simpson and asked him to act on behalf of two entities to sell the Park Regis Sydney Hotel located at 27 Park Street, Sydney. Mr Simpson did not accept the retainer.
2. Subsequently, the vendor, for whom Mr Doyle acted, sold the hotel on about 28 August 2016 to a Chinese consortium for $46 million. The press article in evidence said that Colliers handled the sale which included a 15-year long management agreement. The terms of the agreement are not in evidence. Nor is there evidence which establishes what Colliers was paid.
3. At 6.42pm on 28 August 2016, Mr Doyle emailed Mr Simpson as follows: "Thank you for suggesting we speak with Gus [Moors from Colliers] - was a smart recommendation which I will remember. You can let your Japanese clients know they should have come on board - they would have made good money. I will be back in the office Monday and would like to touch base with you to see if you can find an asset for us to buy. Wil [sic] explain what I am looking for on Monday when I am back."
4. Mr Simpson responded: "Thanks for the note - congratulations on the sale. It is a good result. At the same time we had our discussion I had just listed 9-25 Commonwealth Street Sydney so I took on that assignment (on a sole exclusive basis) and thought that my time was best served looking after the client's Interests - which is why I didn't try to find a buyer for yours - only so many hours in the day, as you well know."
5. I do not accept that the reason Mr Simpson refused Mr Doyle's offer for the agency was that he was retained by the defendant. Mr Simpson did not submit a proposal to the defendant for the agency until 31 May 2016, which was significantly after he had been contacted by Mr Doyle. I consider Mr Simpson's response in August 2016 was self-serving and designed to provide corroboration for his claim that there was a signed agency agreement between the plaintiff and the defendant when he knew that not to be the case.

The proposed appointment of the plaintiff as agent for the sale of the hotel

The plaintiff's proposal

1. As referred to above, although Mr Simpson's arm of the plaintiff's business was prepared to provide design services at an hourly rate, Mr Simpson was keen for the plaintiff to be appointed as the agent for sale of the hotel, for which the potential reward was much greater. On 30 May 2016 he sent an email to Mr Iemma which attached a document entitled, "Disposition Proposal and Strategy - Boutique Hotel". The covering email said as follows: "Please see attached our short form proposal in relation to the disposition of the hotel. I note the following: • As instructed and in view of the time, it is very much a short form summary without the publishing and livery that we would normally adopt for such an important transaction and client. Given our relationship with you and our recent discussions, I hope this does not prejudice us. • The attached document deals with the proposed sale only, and does not cover one of the key points we discussed on our call on Friday, namely the continuation of the design work. This is deliberate so that the attached document was properly 'quarantined' from the rest of what is going on so you can evaluate the decision to offer it to the market separately. However, as discussed, we strongly recommend that you continue to run the three 'separate' streams in parallel - namely the design with WB, the preparation of the PPRI Project Brief which the PM team are progressing, and the marketing and sales materials. • Should the successful investor have a particular adverse perception of the interior design, they can pay for the cost to change it to their preferred scheme. I look forward to discussing this with you further tomorrow."
2. I accept Mr Simpson's admission in cross-examination that the sale of the residential stratum of the development would not be within his department, unless, potentially, one buyer wanted to buy the residential component as well as the hotel component. He also accepted that he would not deal with the retail component of the development since that would be within another of the plaintiff's departments. His proposal was solely concerned with the sale of the hotel.
3. The executive summary proposed an agency fee "for a sole exclusive mandate, 1.25% of gross realisation, plus 5% of any amount over $68.2m (fees quoted are exclusive of GST)." The document included a "campaign timetable" which proposed an effective appointment by 6 June 2016 and a one week international road show in the EOI [expressions of interest] phase commencing on 20 June 2016 and a date for exchange of a "binding sale contract" on 16 September 2016.

The meeting on 31 May 2016 and its aftermath

1. On 31 May 2016 there was a meeting in the boardroom at Andev's offices which commenced at about 9.30am. Mr Iemma and Mr Simpson met to discuss the proposed appointment of the plaintiff as agent for the sale of the hotel component off-the-plan. Mr Simpson made a contemporaneous note of the meeting which was exhibited to his affidavit. Mr Liu also attended the meeting and became aware for the first time that Mr Simpson wanted the agency for the sale of the hotel. Mr Liu understood that any such agreement had to be between the agent and the defendant because it was the defendant, and not Andev, which owned the site.
2. During the course of the meeting, Mr Iemma mentioned that Colliers had charged 1% commission, which was less than the plaintiff's proposal. He told Mr Simpson that he would prefer that the base commission remained at 1% commission but was agreeable to an incentive fee. It was mentioned that Mr Iemma was dealing with a potential buyer in China. Mr Iemma also disclosed that the defendant, and not Andev, was the owner and that it had three directors. Mr Iemma invited Mr Simpson to send a draft agency agreement.
3. Mr Simpson admitted that he understood that work done by an agent in advance of a binding agency agreement was done at the agent's risk.
4. At 12.11pm on 31 May 2016, Mr Simpson emailed Mr Keenan and Ms Chu, who also worked in the project management team with Mr Keenan, to ask for details of the title of the site and client details so that he could insert them into a draft agency agreement. At 3.31pm, Mr Keenan sent an email to Mr Simpson attaching his "final proposal" and terms and conditions which contained the details which Mr Simpson needed to insert into the draft agency agreement.
5. This led to the preparation of the first of the versions of the agency agreement which passed between Mr Simpson and Mr Iemma. These versions were also sent, or given, to Mr Liu so that he could report to Mr Shi.
6. At some point during this period, Mr Liu spoke to Mr Shi and told him that the plaintiff was asking for a "sole exclusive mandate" with a 1.25% gross realisation and 5% incentive fee. Mr Shi responded: "Go back to Frank and negotiate the terms. I don't like exclusivity. I have spoken to some agents with a background in dealing with Asian clients and I want the ability to sell the hotel or the land by myself or through other directors."

The events from 3 June 2016 until the international roadshow

The morning of 3 June 2016

1. Mr Simpson's evidence was that on the morning of 3 June 2016, a Friday, he was in his office and printed out the final version of the agency agreement which had been produced the previous day, signed it, but inexplicably did not have it witnessed, and took it to Mr Iemma's office and asked the receptionist to give it to Mr Iemma. He neither copied nor scanned the executed version. He said that he delivered it to Mr Iemma himself because it was "a little bit ceremonial", notwithstanding that Mr Iemma was not there to receive it. For the reasons given below I do not accept that he ever executed the agreement or delivered the signed document to the defendant's offices.

The lunch on 3 June 2016 at Ucello

1. At some time prior to 2 June 2016, Mr Keenan had arranged to host a lunch at a restaurant in the Ivy complex in George Street called Ucello. Catherine Hyland and Kylie Chu from his project management team were invited to attend as were Mr Iemma and Mr Liu (from the defendant, as clients). Milton Lloyd from Mijollo Architects and Jacqui Senior from Woods Bagot, interior designers, came too as they were working with Mr Keenan's team to provide project management services.
2. When Mr Keenan invited Mr Liu, who was referred to by his Anglicised name, Leo, to the lunch he said words to the following effect: "Leo, I want to invite Andev to lunch because you had been working with me and others to try to obtain the construction certificate for the Site. Ordinarily the CC [construction certificate] process would often take a lot longer than had occurred in our case as we had finished 80% of the work to obtain a construction certificate within six months."
3. When Mr Simpson heard about the lunch, he asked Mr Keenan if he could attend as he was trying to develop his relationship with Mr Iemma with a view to being appointed exclusive agent for the sale of the hotel on the site. Mr Keenan agreed to Mr Simpson coming to the lunch.
4. I do not accept Mr Simpson's evidence in [38] of his affidavit sworn 1 February 2019 about the justification for the lunch as follows: "Mr Keenan and I had previously said to Mr Iemma that we should go to Ucello restaurant to celebrate Savills' appointment to sell the Commonwealth St Property via my group and also Savills' appointment, via another Savills' group (Hotel Project Management) headed by Mr Keenan, to provide project management services to ATF for the development of the Commonwealth Street Property."
5. Nor do I accept Mr Simpson's evidence that "[t]here were lots of handshakes at the lunch" in so far as he intended to imply that the lunch was celebratory or congratulatory. There was no cause for celebration since Mr Simpson knew that there would be no binding agreement without Mr Shi's signature.
6. In his second affidavit sworn on 21 October 2019, Mr Simpson deposed, in answer to Mr Liu's affidavit referred to above: "The lunch was to celebrate the two appointments which Savills accepted from ATF and Andev, namely the appointment to sell the Property via my group, and the appointment to project manage the development of the Property by Savills Project Management division, of which Mr Peter Keenan was a director. The Hotels division and the Project Management Division, each of which are operated under a separate profit and loss statement, shared 50% each of the cost of that lunch, as is customary when two divisions each have an appointment in respect of their own discrete services."

What occurred between 3 June 2016 and 24 June 2016

1. In his affidavit of 1 February 2019, Mr Simpson deposed that he had met with Mr Iemma on 7 June 2016 to discuss the items that they needed to start the sale campaign for the site. He deposed in the same affidavit that, on an unspecified date, he had a telephone conversation with Mr Iemma to the following effect: Mr Simpson: "I am not getting on a plane until I get a copy of our signed agency agreement." Mr Iemma: "Don't worry, I'll make it happen."
2. I do not accept this evidence. In cross-examination, Mr Simpson was asked whether he asked Mr Iemma when the signed agreement (which Mr Simpson said that he had signed and delivered to reception on 3 June 2016 before the lunch) would be returned and Mr Simpson volunteered, for the first time, that he had asked for it on 7 June 2016 (the Tuesday following the lunch on the previous Friday) and also on 20 June 2016 when he had forwarded other documents.
3. When it was put to Mr Simpson in cross-examination that 7 June 2016 was too early for an ultimatum (given that he did not get on a plane until 3 July and did not book the ticket until a couple of days before), he maintained that he had done it in a "colloquial manner" and had prefaced the ultimatum with the word "mate". I do not accept this evidence.
4. On 8 June 2016, at 1.40pm Mr Iemma sent Mr Simpson an email attaching a report from Woods Bagot which he asked him to review. At 3pm that day, Mr Simpson sent an email to Mr Keenan and Ms Chu, which was copied to Mr Iemma asking for a plan of the ground floor with a view to making sure that a luggage storage area could be on the ground floor so as not to raise investor concern or "guest dissatisfaction". There was no mention in the email about the agreement which Mr Simpson said that he had signed and given to Andev's receptionist.
5. On 10 June 2016, there was an exchange of emails between Mr Simpson and others about "hotel visuals". Mr Simpson said, by email: "the sooner we get the renders [for digital images] going the better as we cannot go to market without them". Later that day, Ms Senior informed Mr Simpson and Mr Iemma that the "renders and full hotel pack will be issued on the 27th of June".
6. As referred to above, Mr Simpson maintained in cross-examination on 13 July 2020 that he had a distinct recollection of asking Mr Iemma for the signed agreement on 20 June 2016, although he had not previously referred to it in any of his affidavits. He said that he had asked for it because he "also sent him some documents around that time". This was presumably a reference to an email Mr Simpson sent to Mr Iemma at 2.17pm on 20 June 2016 which attached a "CA" (confidentiality agreement) for investors to sign and a term sheet, to be reviewed by Andev's lawyers. He also sent an executive summary and said that the draft Information Memorandum would follow. The following exchange in cross-examination is significant: "Q. If you were sufficiently concerned on 20 June to raise it with Mr Iemma, why then didn't you raise it in this email? A. I couldn't answer that."

The alleged receipt of the signed counterpart agreement on 24 June 2016

1. As referred to above, in his affidavit sworn 1 February 2019, Mr Simpson made no reference to having followed up Mr Iemma about the agreement at any specified time between the morning of 3 June 2016 and 24 June 2016. However, in his evidence he nominated 7 June and 20 June 2016 as occasions when he had asked for the agreement, although there was no reference in the numerous emails which passed between the two of any such request having been made.
2. In his affidavit sworn 1 February 2019, Mr Simpson said the following occurred (in [40]): "A copy of the Agreement was provided to me by Mr Iemma at a meeting on 24 June 2016. I noted that the Agreement had been signed by Mr Shi on behalf of ATF. The signature was both in English and what I understand to be Chinese. The English words said 'Jian Shi' and were written in a style that seemed to me to be of a non-native English speaking person. Whilst the Agreement had commenced on 3 June 2016, I understand that there was some delay in me receiving the counter signed copy from ATF, as the Agreement had to be executed by Mr Shi who resided in China, after it was sent to him there and then the original returned to Australia."
3. He expanded on the meeting at [43e] of his affidavit and said: "On 24 June 2016 at 10am I met with Mr Iemma to review the draft Information Memorandum I had submitted to Mr Iemma and to finalise any amendments to it. At some point in that meeting, Mr Iemma handed to me the signature page of the Agreement (as discussed previously in paragraph 36 of this affidavit). Mr Shi's signature on the Agreement was in the same style and to the best of my lay eye, the same signature as appears on the confidentiality agreements signed by Mr Shi, to which I refer more fully below."
4. In cross-examination, Mr Simpson confirmed that the document he received from Mr Iemma was a copy and did not have ink on it. When he was cross-examined about the inconsistency between the version he had given in [40] of his affidavit that the agreement had been handed over and what he had said in [43e] of his affidavit that only the signature page had been handed over, Mr Simpson was unable to explain it. Mr Simpson gave evidence that Mr Shi's signature was not witnessed. He could not explain why he did not ask Mr Iemma to go back to Mr Shi to get the signature witnessed.

The promotion of the hotel component by the plaintiff

1. On 3 July 2016, Mr Simpson left for the roadshow. He went to Singapore and Hong Kong to promote the proposed hotel on the site. In much of the documentation, the plaintiff was identified as the defendant's exclusive agent for the sale. While he was away and on his return, he reported by email to Mr Iemma as to the responses received from prospective purchasers. While Mr Simpson was away, Mr Iemma told Mr Liu, who told Mr Shi, that Mr Simpson had met with a couple of prospective purchasers in Asia.
2. At around this time, after Mr Simpson had already left for Asia, Mr Keenan spoke with Mr Iemma, who told him that Mr Shi was not interested in signing an exclusive agency agreement in the event that he brought his own buyer to the table. Mr Iemma told Mr Keenan that, in those circumstances, Mr Shi did not see why he should be paying a commission to another party which may not have had any involvement in the sale. After this conversation, when Mr Simpson had returned from the roadshow, Mr Keenan asked him how he expected to get the agreement signed, given Mr Shi's attitude. Mr Keenan recalled that Mr Simpson responded, on this or another occasion, in a similar way as he had before he had left: "they better f - ing well sign this thing because I'll be, I'll be, you know, majorly pissed off if they don't." I do not accept Mr Simpson's denial of the admission he made to Mr Keenan that, shortly before he got on the aircraft for the roadshow, he did not have a signed agency agreement. For the reasons given below, I prefer Mr Keenan's evidence to that of Mr Simpson and accept Mr Keenan's evidence.
3. Mr Wood SC, who appeared on behalf of the plaintiff, put to Mr Keenan in cross-examination (presumably on instructions) that Mr Simpson had told him that he was not getting on the plane until he had received a signed agreement. Mr Keenan did not recall that he ever said that.
4. Mr Iemma told Mr Liu about an offer which was made by a company called Mulpha to buy the hotel for an amount of $63,240,000. Mr Liu passed on the key terms of the offer, including price and settlement date, to Mr Shi.
5. Throughout July and August 2016, Mr Simpson and his team continued to work promoting the proposed hotel through an expression of interest process. Mr Simpson introduced Mr Boultwood to Andev. For some period, it looked as if Aligned would purchase the proposed hotel from the defendant. Aligned was interested not only in the hotel stratum but also in the retail stratum on the site. There was an unregistered plan or strata subdivision which set out the various lot numbers for these different components on the site. Aligned/Glenmarie offered to purchase the hotel and retail components for $70,600,000.

The defendant's change of plans

1. At around this time, the tender process which had been conducted by Mr Keenan's project management team resulted in construction costs that were, as Mr Keenan described them, "high enough to make the owners question whether the development was viable or not." Mr Keenan's view was that the defendant had already incurred substantial costs in obtaining approval of the development application from the Land and Environment Court, which also made the development non-viable. Mr Liu came to the conclusion that the feasibility for the development of the site no longer met the defendant's expectations in terms of time and cost returns. When Mr Liu provided Mr Shi with the numbers both in writing and verbally, Mr Shi said: "I will take that information to the directors and we'll have to discuss whether to proceed to develop the site or sell the site undeveloped. Please hold off the sale of the hotel."
2. Mr Liu passed on Mr Shi's response to Mr Iemma. On 19 December 2016, there was a meeting between Mr Iemma and Mr Simpson for which Mr Simpson made and retained a file note. Mr Iemma informed him that the defendant had been approached to sell the undeveloped site and that the offer would be acted on that week. Mr Iemma told Mr Simpson that the offer was not based on the Development Application but was an offer for the undeveloped site itself. He said that two of the three of the defendant's partners wanted to "move on", although Mr Shi did not. Mr Iemma also informed Mr Simpson that Aligned's deal "has holes". As a result of this conversation, Mr Simpson appreciated that there was at least a possibility that the defendant would sell the whole undeveloped site to a third party rather than sell the hotel and retail components to Aligned.
3. Nonetheless, on 22 December 2016, Mr Iemma emailed Mr Boultwood to confirm that Andev was agreeable to continuing the exclusivity period in accordance with the heads of agreement. This period was extended by consent to the end of January 2017.
4. The plaintiff's change in position, which arose from doubts about the viability of the transaction, led to a marked change in the regularity with which Mr Simpson and Mr Iemma communicated with each other. They had communicated regularly earlier in 2016. However, by late 2016 and early 2017, there was little communication between them.
5. Mr Keenan knew that the plaintiff and Mr Iemma were negotiating the sale of the hotel with Mr Boultwood and observed that Mr Simpson became frustrated when it became apparent that this transaction would not go ahead because the defendant no longer considered the development to be viable.

The sale of the site through different agents

1. On 3 February 2017, Mr Simpson wrote to Mr Iemma to tell him that he had heard from a "few people" that they had been offered the site that week. He asked whether the site was on the market and where that left the plaintiff if it was. Mr Iemma responded by email that day: "I have been advised that the site is not formally on the market. There may have been some talk from the 2 overseas based directors that I am not aware of to others. Can you advise on who is calling and from where?"
2. In February 2017, the Development Application for the site was modified by Sydney City Council on the defendant's application.
3. Knight Frank and Massari Corporation Pty Ltd (Massari) were retained by the defendant to sell the site. The evidence does not include a full, executed copy of the agency agreement. The period defined as the "Exclusive Agency Period" was 9 February 2017 to 9 May 2017 although this clause was struck through and a reference was made to "Annexure C". This annexure was not tendered. The agreement was signed by one of the plaintiff's directors on 16 February 2017.
4. On 15 February 2017, Mr Simpson sent an email to Mr Iemma proposing a meeting on Friday 17 February 2017 at Bertoni, a café in the city, to discuss "the status of where things are at" with the site. Mr Iemma agreed to meet at 10am on 17 February 2017.
5. At 6.30pm on 16 February 2017, Seil Kim of Millinium Inmark sent an email to Mr Simpson which attached an Information Memorandum which was similar, but not identical, to the one which Mr Simpson had not only used in his marketing campaign for the hotel but also had already sent to Mr Kim as part of the plaintiff's sales campaign. Millinium Inmark was an investment manager which Mr Simpson understood might be interested in purchasing the site. The Information Memorandum attached to Mr Kim's email omitted from the executive summary on page 4 the entries for car parks, deal structure, sales process and agent's details. Mr Kim said in the covering email: "Can you please check the facts on the attached."
6. Mr Simpson responded at 6.36pm to Mr Seil's email in the following terms: "That's my f[…]ing IM that someone has ripped off and taken my details off. Was it Walter Chu that sent it to you."
7. Mr Simpson had been told by Mr Kim that Mr Chu had sent him the second version of the Information Memorandum.

The plaintiff's move to different premises

1. By late 2016, the plaintiff had arranged to move from its premises in Bridge Street, Sydney, to Levels 24 and 25 of the Governor Phillip Tower. By message dated 16 December 2016, Simon Fenn, the plaintiff's managing director, informed staff that the office move was likely to take place on the weekend of 25 and 26 March 2017. He said: "One crucial initiative is the reduction of the amount of paper files we store in the office. Good progress has been made so far, but we still have some further reductions to achieve before we move."
2. Mr Fenn sent a further message on 30 January 2017 in which he confirmed that the first day in the new offices would be 27 March 2017. He also said the following: "In preparation for the move to Activity Based Working (which requires desks to be cleared at the end of each day), we have turned our attention on [sic] the completion of activities that are required before we move. A pressing matter is the reduction of paper files stored in the office. Every staff member is now asked to review their desk space and pedestal and begin clearing out all documents that aren't needed, or digitising the content of paper files." [Emphasis in original.]
3. The plaintiff moved from the Bridge Street premises to Governor Phillip Tower on 25 March 2017 in preparation for Monday 27 March 2017. Mr Simpson's evidence was that he did not look for the agency agreement before the move and that the signature page signed by Mr Shi was unable to be located after the move because the move was so chaotic and the decluttering was so rushed. I do not accept this evidence. It is, in my view, telling that Mr Simpson was able to locate three significant file notes which he had made in the course of his dealings with the defendant, dated 31 May 2016, 2 June 2016 and 19 December 2016. That he retained and was able to find these documents for the purposes of his evidence indicates a more strategic management of documents than he was prepared to admit to. In cross-examination, he said that he "pretty much [retained] things that [he] was working on at that particular point in time".
4. At the time of the plaintiff's move, Mr Simpson appreciated that there was a serious issue about whether the plaintiff would receive commission from any eventual sale of the site. He was furious that Mr Iemma denied that the plaintiff was entitled to commission and already had in mind that it would be necessary to sue the defendant to obtain commission since the defendant's position was that it was not obliged to pay any commission. In these circumstances, it is inconceivable that Mr Simpson would not have even bothered to look for the agreement (had it existed) before the move on 25 March 2017 when the heated conversation he had had with Mr Iemma must have still been very fresh in his mind. Yet, that is the version of events that he would have me accept. When seeking to explain the destruction of the documents in advance of the move, Mr Simpson said on a number of occasions words to the effect of: "I didn't say that we were clever in how we threw out documents". I regard this apparent explanation as no more than a tactic designed to obfuscate the inconsistency between the position Mr Simpson seeks to advance in the litigation with the incontrovertible facts and narrative.

The contract for sale of the site

1. On 17 July 2017, the defendant entered into a contract for the sale of the site with WR Sydney Pty Ltd atf WR Sydney Unit Trust (WR Sydney) for an amount of $70.5 million. This sale settled on 17 January 2018. Massari was named as the agent with Knight Frank as the co-agent. The property sold was "the whole of the land" described by title reference.
2. Clause 46 of the contract provided: "46. Assignment of Vendor's development application 46.1 On and from the date of Completion, the Vendor assigns to the purchaser all of the Vendor's rights, title and interest in the Vendor's DA and all applications, reports, plans, drawings, submission and other documents prepared by or on behalf of the Vendor in connection with the Vendor's DA (Reports)." [Emphasis in original.]
3. Mr Liu stopped working for Andev in December 2017. However, he continued to assist Mr Shi with these proceedings and also with matters concerning the Australian Taxation Office.

Witnesses who were not called

1. Neither Mr Shi nor Mr Iemma was called to give evidence. Mr Wood submitted that a Jones v Dunkel inference could be drawn against the defendant in relation to Mr Shi that his evidence would not have assisted the defendant's case. He did not contend that such an inference ought be drawn in relation to Mr Iemma.

The plaintiff's claim for commission

1. By email sent on 10 August 2017, Mr Simpson attached an invoice for the advisory services provided and for the agent's commission said to be owing under the alleged agency agreement. Fees relating to the advisory services amounted to $11,688 and the alleged agent's commission amounted to $797,000. There was also a claim for disbursements of $13,817.03. The total claimed was $904,755.53. The time sheet entries for design consultancy were set out in an attached document. The sum of these entries was $11,688. It was common ground that the amounts for design consultancy services and disbursements had been paid.

Claim based on alleged unconscionable conduct

1. Mr Simpson said that he had undertaken a "detailed review" of calendars, emails, files and papers to estimate that he had spent 540 hours promoting the sale of the hotel. His charge out rate was said to be $550, which formed the basis of the plaintiff's claim for $297,000.

Documents

1. As is apparent from the above narrative, the plaintiff was able to produce neither an agency agreement signed by Mr Simpson, nor a signature page with Mr Shi's signature on it. For the reasons given above, I do not accept that these documents were ever signed.
2. By letter dated 26 June 2018 the plaintiff served a list of categories of documents for discovery by the defendant. The categories of discovery included category 8, which sought documents evidencing communications between the plaintiff and the defendant in relation to the plaintiff being granted exclusive selling rights in respect of the site.
3. On 27 June 2018, the defendant allowed its email service to lapse, which led to Microsoft deleting all of Andev's emails associated with the transactions the subject of these proceedings. Mr Liu learned of this in about April 2019. I am not prepared to infer that the defendant's conduct in allowing its email service to lapse had anything to do with the proceedings. As it had sold the site, the defendant no longer needed Andev, which had been incorporated for the specific purpose of managing the development of the site.
4. Orders for discovery were made in 2018. On 4 February 2019, the Registrar directed that the defendant give verified discovery by 1 March 2019. On 16 February 2019 the defendant provided verified discovery (verified by Mr Shi) to the plaintiff. It was common ground that the defendant had not discovered any signed version of an agency agreement with the plaintiff. The only documents in category 8 which were discovered were emails and text messages between the parties.
5. When Mr Liu switched his mobile phone two years ago, he deleted from his old phone all of his personal data, including WeChat messages to Mr Shi, so that he could sell it. I accept his evidence that he did not play a role in the discovery process which the defendant was required to undertake for the purposes of the proceedings, although in 2019 he was asked to provide whatever he could by way of documents. I also accept Mr Liu's evidence that he was not told about the notice to produce referred to below.
6. On 4 December 2019, the plaintiff's solicitors sent a notice to produce to the defendant's then solicitors following the service of Mr Liu's affidavit affirmed on 19 August 2019. The notice sought various categories of documents pertaining to the proceedings, including documents relating to the defendant's engagement of the plaintiff to sell the hotel on the site. Ms Lou, the solicitor with day-to-day conduct of the matter asked for an extension to 17 January 2020. On 15 January 2020 the plaintiff's solicitors wrote to Ms Lou and Warwick La Hood (who was also acting on behalf of the defendant), reminding them of the notice to produce and requiring production by 17 January 2020.

The relevance of the defendant not calling Mr Shi or Ms Shao

1. Mr Wood relied on the principle in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 and contended that I ought infer that Mr Shi's evidence would not have assisted the defendant's case. The principle in Jones v Dunkel permits a trial judge to draw an inference if the judge thinks it appropriate to do so as part of the fact-finding process. It does not, however, require that the inference be drawn: Nominal Defendant v Rooskov [2012] NSWCA 43 at [98] (Campbell JA).
2. In the present case, the evidence comfortably satisfied me that no agency agreement between the plaintiff and the defendant was ever executed. In these circumstances, the inference that the evidence of Mr Shi would not have assisted the defendant's case does not alter the conclusion.
3. The same considerations apply to the circumstance that the defendant did not call Ms Shao, Andev's receptionist to whom Mr Simpson said he had handed the agreement on 3 June 2016.

Mr Simpson

1. Mr Simpson gave his evidence in a polished way which indicated that he had studied the documents in the court book. I did not, however, derive any particular insight from his demeanour. The poise and confidence which Mr Simpson displayed in the witness box was consistent with his occupation of selling hotels, whether constructed or not, for developers. Although Mr Simpson initially gave the impression in the witness box that he was cavalier with documents, it soon became evident that he was well-acquainted with their forensic use. His email to Mr Iemma dated 16 March 2017 in which he purported to attribute statements to Mr Liu (which I am satisfied were not made) serves as an example. Further, he was careful to retain his own file notes of important meetings. Had the agency agreement been executed by Mr Shi, Mr Simpson would have safeguarded the executed signature page since he appreciated its importance to his entitlement to a commission.
2. Mr Simpson sought to align his version of events with incontrovertible evidence, such as the lunch on 3 June 2016 and the provision of other documents to Mr Iemma on 20 June 2016. He sought to explain the absence of a signed agency agreement by reference to the decluttering which was required by the plaintiff's move. There was a marked cleverness, forensic convenience and dishonesty about the version which he would have me accept, namely: although he and Mr Shi had each signed the agreement, neither his signature nor Mr Shi's signature had been witnessed; he had delivered the signed agreement to Mr Iemma (of which he had taken no copy) and Mr Iemma had not been in the office at the time; the signature page had been handed over by Mr Iemma at a meeting which Mr Keenan was supposed to attend but could not because he was detained in another meeting; and the signature page he had received from Mr Shi had been lost in the move because Mr Simpson regarded it of so little importance that he did not even look for it, notwithstanding his knowledge prior to the move that the defendant denied that it was liable to pay the plaintiff commission. While this version accounts for the lack of documents, I do not accept it.
3. In significant respects which are identified above, Mr Simpson's evidence was at odds with the narrative incontrovertibly established by the contemporaneous documents. What McLelland CJ in Eq said in the following passage from Watson v Foxman (1995) 49 NSWLR 315 at 319 applies not only to conversations but to a witness's recollection of events generally: "... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

Mr Keenan

1. As Mr Keenan was, as of April 2018, no longer an employee of the plaintiff, he did not have access to any of the file notes he made at the time. Nonetheless, his recollection of dates and events was relatively good. He was subpoenaed by the defendant to give evidence although he had worked for the plaintiff. It was put to him in cross-examination that he had ultimately been made redundant, which he accepted. I accept his denial of the allegation of misconduct put to him. I do not accept that he had any animus towards either Mr Simpson or the plaintiff. He was relevantly disinterested and had no motive to help the defendant or harm the plaintiff. He impressed me as someone who was trying to tell the truth as he recalled it.
2. He gave his evidence in a straightforward way and appeared to be trying to give his genuine recollection of what occurred. He was hesitant about incriminating or criticising Mr Simpson but did so when necessary to answer the questions asked of him truthfully. On several occasions he was pressed in cross-examination about his concern about Mr Simpson's preparedness to do the roadshow without a signed agency agreement. Mr Keenan maintained his view that it was Mr Simpson's responsibility to "extract" a signed agreement and that Mr Keenan would have been overstepping his own responsibilities by telling Mr Simpson "how to run his business unit". Further, Mr Keenan frankly accepted that he would not necessarily have known when or whether the agency agreement was actually signed.
3. To a significant extent, Mr Keenan's recollection was corroborated by contemporaneous documents and by Mr Liu's evidence.
4. Although he did not have access to contemporaneous documents, he was able to put a date or a period on events by reference to when he started with the plaintiff (late 2015) and when he was promoted to the position of National Director (about six months later). Thus, he was able to recall that he had spoken with Mr Simpson before he had gone overseas in June or July 2016. The most significant parts of his evidence related to the lunch on 3 June 2016, including its purpose, and the admission made to him by Mr Simpson on about 1 July 2016 that he still did not have a signed agency agreement and the subsequent admission on Mr Simpson's return. I accept Mr Keenan's evidence.

Mr Liu

1. The continuing financial and personal relationship between Mr Liu and Mr Shi means that Mr Liu cannot be regarded as a disinterested witness. Nonetheless, he gave his evidence in a careful, unguarded way and made appropriate concessions. I accept that he was not asked to obtain Mr Shi's signature for the agreement and that he would have been asked to obtain it if there had been final agreement on its terms. I also accept his evidence about the lunch on 3 June 2016 and the last contact he had with Mr Simpson set out above.

The relationship between the parties

1. In substance, the issues in the case relating to whether there was a signed agreement come down to two hypotheses. The plaintiff's case is that there was a signed agreement; that Mr Simpson would never have gone on a roadshow without one; and that, but for there being a signed agreement, the defendant would never have allowed the plaintiff to deal with prospective purchasers on its behalf. An alternative hypothesis is that both Mr Simpson and the defendant knew that no agency agreement had been signed but the defendant was content to clothe the plaintiff with authority to promote and market the hotel component of the site and would, had the hotel component been sold other than as a consequence of an introduction by Mr Shi to one of his friends or associates, have been content to pay commission to the plaintiff notwithstanding the lack of signed agreement. The plaintiff has failed to discharge the onus of establishing the first hypothesis on the balance of probabilities. Indeed, the defendant has persuaded me of the alternative hypothesis: namely, that both parties knew that there was no signed agreement and were prepared to proceed regardless.
2. The alternative hypothesis is consistent with Mr Simpson's relatively greater appetite for risk than Mr Keenan. It is not inconsistent with the defendant's understanding that Mr Simpson was going on a roadshow as the defendant's agent to sell the hotel part of the site. The alternative hypothesis is also consistent with Mr Liu's understanding that, notwithstanding that no agency agreement had been signed, had the sale of the hotel component to Aligned gone through, the defendant would have paid the plaintiff a commission calculated in accordance with the formula that had been agreed between Mr Simpson and Mr Iemma. This hypothesis is also consistent with Mr Iemma's comment in the email of 9 October 2016 to the effect Mr Simpson will have to work to earn his commission.

Claim for damages for breach of agency agreement

1. It was common ground that, at the relevant time, s 55 of the Property and Stock Agents Act 2002 (NSW) relevantly provided: "55 No entitlement to commission or expenses without agency agreement (1) A licensee is not entitled to any commission or expenses from a person for or in connection with services performed by the licensee in the capacity of licensee for or on behalf of the person unless: (a) the services were performed pursuant to an agreement in writing (an agency agreement) signed by or on behalf of: (i) the person, and (ii) the licensee, and … ..."
2. It is not a bar to a claim for commission under an agency agreement that the written version has been lost, misplaced or destroyed since its existence may be proved by secondary means: s 48 of the Evidence Act 1995 (NSW). The contents of the document must be proved on the balance of probabilities: s 142 of the Evidence Act.
3. For the reasons given above, the plaintiff has not established that there was a written agency agreement. Accordingly, the plaintiff's claim based on the alleged agency agreement fails.

Whether the plaintiff would have been entitled to commission had the agency agreement been signed in the form of the final draft

1. My obligation as a trial judge requires me to make all necessary findings of fact. Therefore, even though I have rejected the plaintiff's claim for commission it is necessary to address whether, in any event, the plaintiff would have been entitled to commission resulting from the sale to WR Sydney in 2017, had the agency agreement been signed in the form of the final draft.

The alleged agency agreement

1. The Sales Inspection Report and the relevant terms of the alleged agreement are set out above. Whether the plaintiff is entitled to commission depends on the meaning of "Property" in the agreement. In substance, the plaintiff contended that the word "Property" included the sale of the land located at the site, that is, the fee simple. Thus, it argued that the sale of the fee simple to WR Sydney triggered its entitlement to commission. The defendant submitted that "Property" included only the hotel component of the proposed development and that as there had been no sale of the hotel component, the plaintiff was not entitled to commission. It was common ground that the plaintiff had not introduced WR Sydney to the site and that WR Sydney had purchased the fee simple.
2. As set out above "Property" is defined to mean the property described in the Sales Inspection Report (that is, the hotel to be delivered by the defendant on the site) "and includes, but is not limited to, any proposed development to be undertaken on that property". The plaintiff submitted that because the hotel was a proposed development on the site, "Property" included a sale of the fee simple with the DA for the hotel. The defendant submitted that the words "that property" in the definition of "Property" could not include the defined term because that would be circular. It submitted that the words "that property" meant the hotel, because that was the property described in the Sales Inspection Report. Thus, according to the defendant's argument, the only proposed developments which would be included in the definition of "Property" were developments to the hotel, since this was the only property described in the Sales Inspection Report.
3. Where there is an ambiguity in a contract, evidence of the surrounding circumstances is admissible to establish the factual matrix to ascertain the objective intention of the parties to the contract: Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337 at 352 (Mason J); [1982] HCA 24.
4. The relevant surrounding circumstances are as follows. As set out above, Mr Simpson's division was the hotels division of the plaintiff. He did not purport to have expertise or offer services in the sale of property other than hotels, whether already developed or to be sold off-the-plan. He eschewed expertise in selling retail or residential developments or real estate in the form of land and accepted that he would have referred prospective vendors of those forms of property to other divisions within the plaintiff's business. The proposal put forward by the plaintiff reflected its expectation that its expertise in transactions of hotel developments was what was required and sought by the defendant. All the literature which the plaintiff disseminated to potential purchasers represented that what was to be sold was the hotel component of the yet-to-be-constructed development. The proposed development involved the creation of strata titled land, whereby particular units in the strata plan would comprise the hotel component; other units would compose the retail component and there would also be units for the residential component. The common areas would be owned by an Owners Corporation, of which unit holders would be members.

Claim for damages for unconscionable conduct

1. The sole alternative basis for the plaintiff's claim is for damages under s 236 of the Australian Consumer Law for statutory unconscionability contrary to s 21 of the Australian Consumer Law. I note that there is no claim for damages for misleading or deceptive conduct and no allegation that the defendant is estopped from refusing to pay commission to which the plaintiff would otherwise be entitled.

Whether the defendant's conduct was unconscionable

1. The unconscionability claim, as particularised, is, in substance, that the defendant behaved unconscionably by encouraging the plaintiff to spend time and effort on the negotiations with Aligned to sell the hotel and then resolving to sell the land through a different agent, thereby depriving the plaintiff of the commission to which it would otherwise have been entitled and causing the plaintiff to incur expenses for which it would otherwise not be compensated.
2. The authorities establish that, in order to establish statutory unconscionability, the plaintiff must prove some moral fault or moral responsibility or that the defendant's conduct amounts to serious misconduct which is plainly unfair and unreasonable: Qantas Airways Limited v Cameron (1996) 66 FCR 246 at 262 (Davies J) and 283-284 (Lindgren J, Lehane J agreeing).
3. The principal difficulty with the unconscionability claim as framed is that the evidence established that the reason the defendant decided not to develop the site and sell the components, including the hotel component, was that the estimate of construction costs made the development unviable. The defendant's decision not to proceed was made towards the end of 2016 on the basis of the construction costs worked out by the plaintiff's project management team which was led by Mr Keenan. It is always open to an owner who has retained an agent on commission to decide not to proceed with a sale. This is one of the vicissitudes which is built into the agent's commission and reflects the risk/reward ratio implicit in the fee payable on a successful sale. It was not unconscionable for the defendant to decide not to pursue the development. Mr Simpson became aware of the defendant's concerns about viability at about the same time as Mr Keenan's team was providing the figures as to construction cost. No decision was made by the three directors of the defendant until Chinese New Year 2017.
4. Once the decision had been made to sell the land, rather than the hotel component, there was no real question of Mr Simpson's team being an appropriate agent, since Mr Simpson had no particular expertise in selling land and the plaintiff had only been appointed to sell the hotel component. In these circumstances, there was nothing unconscionable about the defendant choosing to retain Massari and Knight Frank as its joint agents to sell the fee simple. Although it became hypothetical, I am satisfied that the defendant would have paid commission to the plaintiff had the sale to Aligned completed. I note that the defendant also paid the plaintiff's disbursements, which included printing costs and the cost of flights and accommodation for the road show.

What damages flow from the alleged unconscionability

1. Because I am obliged to make all relevant findings of fact, irrespective of my findings of liability, it is necessary to address the claim for damages for unconscionable conduct. Damages are claimed under the following four heads: 1. damages for the plaintiff's overheads while performing work for the defendant; 2. damages for the lost opportunity to sell the site or to be appointed the agent to sell other properties; 3. compensation for the management time thrown away in "managing the [defendant's] repudiatory and unconscionable conduct"; and 4. damages for the damage to the plaintiff's good name and reputation.
2. Mr Wood accepted that there was no evidence of category (1).
3. As to (2), as I have found above, the defendant was entitled to change its mind and sell the fee simple rather than the strata titles in the developments to be constructed on the site. I do not accept that the plaintiff lost the opportunity to sell the Park Regis by reason of anything the defendant did. There is therefore no basis on which to assess what, if any, opportunities the plaintiff has lost.
4. As to (3), Mr Simpson gave evidence that he had spent 540 hours promoting the sale of the hotel for the defendant and that his charge out rate was $550 per hour. There was no evidence to enable me to work out how much of this time was spent in which period. There is therefore no sensible calculation that could be made. Further, the plaintiff would only be entitled to its cost of Mr Simpson's time and not its profit from that time. There is no evidence as to how much of the $550 per hour relates to the plaintiff's overheads and what constitutes profit.
5. As to (4), there is no evidence that the defendant's conduct damaged the plaintiff's reputation. Mr Boultwood understood that the sale to Aligned could not proceed because the defendant had changed its mind about developing the site. If anything, it reflected on Mr Shi and not on the plaintiff. Mr Boultwood appreciated that Mr Simpson had been working hard on the transaction and was disappointed by the defendant's change of mind.
6. Mr Wood contended that, although the evidence of loss was sparse and inexact, I was obliged to do the best I could to calculate the damages, that being the role of the trial judge.
7. As was said in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83 (Mason CJ and Dawson J); [1991] HCA 54 (Amann): "The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can."

Costs

1. I have not heard the parties on costs. I am not aware of any reason to depart from the general rule that costs follow the event: UCPR, r 42.1. However, I will make provision in the orders for an application for a different order if there are matters which either party wishes to put.

Orders

1. For the reasons given above, I make the following orders: 1. Judgment for the defendant. 2. Unless any party applies for a different costs order by written application to my Associate within 7 days, order the plaintiff to pay the defendant's costs.

Amendments 03 August 2020 - heading before [116] - "plaintiff's" replaced by "defendant's" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2020