TJ & P Pty Ltd as trustee for the Post Family Trust v Agrinova Pty Ltd

("first representation", "second representation", "third representation" and "fourth representation" are my labels, added for ease of reference in the analysis which follows).

1. Secondly, Mr and Mrs Van Vlymen were encouraged by and relied upon such conduct when:

(1) on about 15 July 2019 and 23 December 2019, Mr Keleher on behalf of Mr Van Vlymen wrote to the receiver or his solicitors requesting an assessment of the balance outstanding owing to Mr Wong pursuant to the November 2016 Deed;

(2) between about 10 January 2020 and 12 February 2020, Mr Van Vlymen instructed Keleher Lawyers to provide legal services to Mr and Mrs Van Vlymen in relation to their interests in respect of a loan agreement between Agrinova and CSA;

(3) they provided personal guarantees in respect of the loan from CSA to Agrinova;

(4) they retained Keleher Lawyers, who in turn retained Mr Somerville, to provide legal services to communicate and negotiate with the legal representatives of Mr Wong and the receiver with a view to agreeing the balance owing to Mr Wong under the November 2016 Deed; and

(5) they caused the relisting of Supreme Court proceeding 2015/60753 before Justice Sackar and briefed Mr Leopold and Mr Somerville, thus becoming liable for their own legal fees and potentially liable for legal fees incurred by Mr Wong and the receiver.

1. Thirdly, Agrinova's conduct created in Mr and Mrs Van Vlymen an assumption that if Mr and Mrs Van Vlymen acted in the manner described in [262] above, then Agrinova would take the steps set out at [261] above.
2. Fourthly, Mr and Mrs Van Vlymen's reliance upon that assumption has been to their detriment in that:

(1) Mr and Mrs Van Vlymen incurred legal expenses and liabilities in pursuing a settlement and judgment on the balance outstanding to Mr Wong, in an amount (as clarified in closing submissions) totalling $1,279,135.00; and

(2) Mr and Mrs Van Vlymen are now, jointly and severally, liable with the Van Vlymen entities, for a judgment debt in the order of $7,074,000 to Mr Wong.

1. Fifthly, Agrinova was aware that Mr and Mrs Van Vlymen were acting in reliance upon Agrinova's conduct and upon the assumption, and that reliance upon the assumption would cause significant detriment to Mr and Mrs Van Vlymen if Agrinova were to resile from it.
2. Sixthly, Agrinova unconscionably departed from that assumption.
3. Finally, Mr and Mrs Van Vlymen are entitled to relief in a form which gives effect to the assumption, alternatively compensation for the moneys expended in reliance upon the assumption.
4. The applicant's claim was expressed to be a claim in equitable estoppel, based upon representations alleged to have been made by Agrinova. That claim, as expressed, was not one exclusively based upon promissory estoppel or exclusively based upon proprietary estoppel, although both expressions were used at various points during the hearing.
5. In my view, there is little to be gained from analysing the estoppel case as one solely of promissory estoppel or solely of proprietary estoppel as, for the purposes of the present case, the result does not turn on such distinctions. Rather, it is convenient to address the estoppel claim by reference to estoppel arising from resiling from a promise as explained by the High Court of Australia in Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126 and which is broad enough to cover both promissory and proprietary estoppel. The fundamental purpose of each is the same, namely "protection against the detriment which would flow from a party's change of position if the assumption (or expectation) that led to it were deserted" (footnotes omitted): Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 at 511 [1] (French CJ, Kiefel, Bell and Keane JJ).
6. Kramer v Stone was delivered after judgment had been reserved in this proceeding. The parties were provided an opportunity to address Kramer v Stone and they did so, in particular by reference to the elements of equitable estoppel which arises by reason of encouragement from a promise as explained by the plurality (Gageler CJ, Gordon, Edelman and Beech-Jones JJ) at 135 to 136 ([36] to [41]).
7. I address the applicant's estoppel claim below by reference to those elements.
8. Before doing so however, I note that Agrinova submitted, by reference to Kramer v Stone, that: (1) the plurality identified different elements for estoppel by acquiescence; and (2) the applicant's submissions concerning estoppel based upon the 2 April 2020 letter had adopted language more apt to estoppel by acquiescence and had done so without mentioning estoppel by acquiescence or addressing the matters required to be proved to establish such a claim. Agrinova's submission is noted but this straw man need not be addressed further. It is tolerably clear that the applicant did not advance any case based upon acquiescence; rather its case was squarely based upon the making of express representations.
9. The requirements of equitable estoppel which arises by reason of encouragement from a promise were described by the plurality in Kramer v Stone at 135 to 136 ([36] to [41]) as follows:

[36] In Waltons Stores (Interstate) Ltd v Maher, Brennan J set out six requirements for an equitable estoppel which, as senior counsel for David submitted and as explained below, were formulated at a level of generality sufficient to include an equitable estoppel which arises by reason of encouragement by the making of a promise as well as an equitable estoppel which arises by reason of acquiescence. When the focus is only upon an equitable estoppel which arises by reason of encouragement from a promise, the elements that must be satisfied can be refined as follows.

[37] First, as with the requirement for representations in estoppels by representation generally, there must be a "clear and unequivocal" promise made by the party estopped (the promisor) to the party who relies upon the promise (the promisee). Of its nature, the clear and unequivocal promise will generally concern some representation about future conduct.

[38] Secondly, a reasonable person in the promisor's position must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct. This is what is meant by references, including throughout this appeal, to the promise being an "encouragement" for the promisee to act.

[39] Thirdly, the promisee must have relied upon the promise by acting or omitting to act in the general manner that would have been expected. In order to establish reliance, it is ordinarily necessary for the promisee to show not merely that the promise was one factor taken into account in motivating the promisee's action or omission but that the promisee would not have acted or omitted to act in the absence of the promise. In other words, it must usually be shown that the promisee's reliance "made a difference to [the promisee] taking the course of action or inaction".

[40] Fourthly, the consequence of the promisee's reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made. Unlike the recognition of a gift, or the enforcement of a testamentary promise under a valid will, or the enforcement of a contractual promise, it is the existence of detriment arising from reasonable reliance upon an unfulfilled promise that completes the recognition of the estoppel and moulds the remedial response. As this Court has repeatedly held, "[i]t is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise". Hence, the relief is "moulded accordingly to prevent th[e] detriment". In cases where the detriment suffered by a plaintiff is "a relatively small, readily quantifiable monetary outlay on the faith of the [defendant's] assurances" then, apart from interest, the likely equitable relief ordered will be compensation in the amount of the monetary outlay. By contrast, where the detriment suffered "involves life-changing decisions with irreversible consequences of a profoundly personal nature", the likely equitable relief will be to require fulfilment of the assumption upon which the plaintiff acted, such as by a conveyance of rights, or an assessment of the monetary value of the assumption.

[41] Once these elements are satisfied, it is commonly said that conscience requires that A redress the detriment suffered by B. As has been repeatedly emphasised by this Court, the description of circumstances as unconscionable "is to characterise the result rather than to identify the reasoning that leads to the application of that description".

(footnotes omitted)

C.2 A clear and unequivocal representation as to future conduct?

1. The first requirement is the existence of a clear and unequivocal promise by Agrinova to Mr and Mrs Van Vlymen as to future conduct (Kramer v Stone at 135 [36]).
2. In Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1 at 16 [35], French CJ, Kiefel and Bell JJ explained:

It has long been recognised that for a representation to found an estoppel it must be clear. In Low v Bouverie it was said that the language used must be precise and unambiguous. This does not mean that the words used may not be open to different constructions, but rather that they must be able to be understood in a particular sense by the person to whom the words are addressed. The sense in which they may be understood provides the basis for the assumption or expectation upon which the person to whom they are addressed acts. The words must be capable of misleading a reasonable person in the way that the person relying on the estoppel claims he or she has been misled. The statement that the tenants would be "looked after at renewal time" is not capable of conveying to a reasonable person that the tenants would be offered a further lease.

(footnotes omitted)

1. See also Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406 at 436 to 437 (Mason and Deane JJ).
2. The contended promises were alleged to have been made both orally (at the 30 October 2018 meeting) and in writing (in the letters).

C.2.1 Representations at the 30 October 2018 meeting

1. The evidence as to what was said at the 30 October 2018 meeting is the recollection of those who attended and gave evidence of that meeting (see [73] to [79] above). As noted at [75] and [80] above, there are no notes of the meeting. Nor are there any contemporaneous documents touching upon what was said at the meeting.
2. In John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94] to [95], Hammerschlag J (as the Chief Judge in Equity then was) provided a convenient summary of the approach to be adopted when a party seeks to establish a cause of action based upon spoken words:
   1. Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712; Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521; Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 at 319.
   2. The sensation of feeling an actual persuasion, after a contest, that an event has happened or that something exists is one which is well known and recognised by experienced trial judges for what it is.
3. To similar effect are the following observations of the Full Court of this Court (McKerracher, Robertson and Lee JJ) in CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [44] to [48]:
   1. The relevant principles are well-established, not in dispute and were referred to by the primary judge, but it is worth revisiting them given both their importance to the consideration of the appeal and the submission that his Honour could not have reached the requisite level of satisfaction so as to sustain the findings made if those principles were applied properly ...
   2. After referring to the very significant effluxion of time since the February Meeting and the tendency of persons to view past events more favourably to their own interest than a detached observer, his Honour directed himself to the seminal caution of McLelland CJ in Eq in Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 as to proof in a case where reliance is placed upon spoken words as making out a case of misleading and deceptive conduct. At 318-319, the Chief Judge in Equity explained, in an oft-quoted passage:

Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described [sic] as "misleading") within the meaning of s 52 of the [TPA]..., it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.

Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the [TPA] ... in the absence of some reliable contemporaneous record or other satisfactory corroboration.

(emphasis added by primary judge)

1. The primary judge then made reference to the truth that a mere mechanical comparison of probabilities, independent of any belief in the reality of a fact, cannot justify a finding that it occurred: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at 479-482 [29]- [38] per Weinberg, Bennett and Rares JJ.
2. It is worth pausing to state that the central task for the primary judge on liability was assessing whether Dr Berry and GSC had proved, on the evidence adduced, that the pleaded contravening conduct had occurred in accordance with s 140(1) of the Evidence Act 1995 (Cth) (EA). Relevantly, in doing so, the court was to take into account: (a) the nature of the cause of action; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. These mandatory considerations specified in s 140(2) of the EA reflect the need to be mindful that the more serious the allegation or the consequences of what is contested, the more a court will have regard to the strength and weakness of evidence in coming to a conclusion: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia at 480 [30]. Additionally, as the primary judge recognised, a party bearing the onus will not succeed unless the whole of the evidence establishes a reasonable satisfaction on the preponderance of probabilities such as to sustain the relevant issue (Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 at 403 per Dixon J); and the "facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied": Jones v Dunkel ; at 305 per Dixon CJ.

1. For the following reasons, I feel no actual persuasion that Mr Hogg on behalf of Agrinova made any of the first to fourth representations at the 30 October 2018 meeting.
2. As to the first three representations, with the exception of Mr Van Vlymen, none of those present and who gave evidence suggested in any sufficiently clear manner that any of those representations had been made.
3. Mr Van Vlymen's evidence, which is set out at [74] above, included the following statements attributed to Mr Hogg:

We all are aware that Wim needs to pay the money he owes to Patrick Wong to gain control of the Solomon Island assets. So Agrinova's proposal to Wim is that Agrinova will pay the balance outstanding that Wim and Margriet owe Patrick Wong.

Agrinova will pay the receiver's fees required to retire the receiver appointed over the shares in Wim's companies.

Agrinova will pay Wim's legal fees that he needs to incur to finalise all matters with Patrick Wong under that November Deed.

Agrinova will allocate units in the Agrinova Unit Trust to Wim and Margriet or which ever company they want to use to hold the units. Agrinova will allocate the units on a pro-rata basis based on the net value of Wim and Margriet's assets transferred to Agrinova as a proportion of Agrinova's total assets, the valuation of the Solomons assets will depend on the identification of final amounts paid by Agrinova to pay out Patrick Wong and on a formal valuation of all Agrinova's assets.

Wim, you will need to take whatever action you need to take to confirm the amount payable to Patrick Wong so Agrinova can make that payment...

(emphasis added)

1. This evidence suggests that Mr Hogg made express statements that Agrinova would pay the amount owing to Mr Wong, together with fees owing to the receiver and Mr Van Vlymen's legal fees (i.e. the first three representations). In stark contrast, none of Mr Hogg ([76] to [77] above), Barney Hughes ([78] above) or Mr Ramakrishnan ([79] above) provided evidence of such statements having been made.
2. I do not accept Mr Van Vlymen's evidence as an accurate or reliable account of what was said by Mr Hogg, in light of the evidence of the applicant's other witnesses who attended that meeting, namely Mr Hogg, Barney Hughes, and Mr Ramakrishnan; and because Mr Van Vlymen's evidence carries with it an air of artificiality and of reconstruction in the sense referred to by McClelland CJ in Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 at 319 (which passage is reproduced at [280] above within paragraph 45).
3. This is particularly so in circumstances where, if Mr Hogg had made the statements attributed to him by Mr Van Vlymen, then those statements would have been a matter of signal importance to Mr Van Vlymen in circumstances where he had previously been unable to obtain finance to make the payment to Mr Wong, yet there is no evidence that Mr Van Vlymen: (1) made a contemporaneous note of such statements; (2) sent any contemporaneous correspondence of a confirmatory nature to anyone else present at the meeting; or (3) contemporaneously conveyed to Mrs Van Vlymen, his solicitor or indeed anyone else that such a momentous event had occurred.
4. I accept - relevant to the first representation - that there is evidence concerning calculation of the allocation of units: (1) involving subtraction of the value of "funds paid to Mr Wong" (Mr Hogg and Barney Hughes); and (2) being based on the value of the net equity that was contributed (Mr Ramakrishnan) which might be considered to be consistent with an accounting for funds to be contributed by Agrinova on behalf of Mr and Mrs Van Vlymen. However, such evidence is also consistent (and probably more consistent) with such contributions being made by other proposed unit holders (namely the Stott and Hughes families). Moreover, it falls well short of the clarity required to found such a representation.
5. In summary, the evidence falls well short of establishing that the first to third representations were made at the 30 October 2018 meeting.
6. As to the fourth representation, it is plain that there was a discussion concerning a joint venture involving the creation of a unit trust and the allocation of units in exchange for the transfer of assets by Mr and Mrs Van Vlymen (or the Stott family or the Hughes family). However, for the reasons set out above, I do not accept that such discussion included that the calculation of allocation of units to be issued to Mr and Mrs Van Vlymen was to be dependent upon the identification of the final amounts payable by Agrinova in accordance with the first to third representations (and in particular that Agrinova was to be the source of funding). It follows that I am not persuaded that the fourth representation was made at the 30 October 2018 meeting.

1. The letters are in a different category.
2. The 12 July 2019 letter, which is reproduced at [119(2)] above, contains an unequivocal and clear representation by Agrinova to Mr Van Vlymen via his solicitors that Agrinova was in a position to satisfy the outstanding amount owed to Mr Wong, including the costs required to retire the receiver and that it was in a position to do so whether that amount was determined inter partes or by the Court. This statement amounted to the making of the first and second representations in terms clearly able to have been understood by Mr Van Vlymen in that sense: see Crown Melbourne at 16 [35] ([275] above).
3. The 23 December 2019 letter, which is reproduced at [141] above, referred to previous correspondence (which, it must be inferred, includes the 12 July 2019 letter) and stated that:

Agrinova remains and is now pressing to meet the outstanding payment owed by Wym Van Vlymen to Patrick Wong pursuant to the agreement between those parties commonly known as the November 2016 Deed.

1. The 23 December 2019 letter continued by asking for urgent advice as to the amount payable on settlement and asking for arrangements to be made for such settlement to occur.
2. This letter is an unambiguous repetition of the first and second representations.
3. The 2 April 2020 letter, which is reproduced at [209] above, referred to the 23 December 2019 letter and stated that Agrinova remained:

...ready, willing and able to meet the payment owed by Mr Van Vlymen to Mr Wong, pursuant to and in accordance with the formula agreed between two parties, in the 4 November 2016 Deed.; and

... ready, willing and able to settle and we await the final Court determination as to the exact figure, to enable finalisation of this matter as soon as possible.

1. The 2 April 2020 letter also contained a statement that Agrinova required "proper figures to be determined, so payment can be made", as well as an open offer in the amount of $6,650,000. The provision of this letter was a further unambiguous repetition and confirmation of the first and second representations.
2. I note that the 12 July 2019 and 23 December 2019 letters were signed by Richard Stott, who was not a director of Agrinova as at either of those dates. I do not regard this as detracting from the conclusion that the representations contained therein were conveyed by Agrinova, particularly in view of the involvement of Mr Hogg, who was a director of Agrinova as at each of those dates, in either the drafting, the adoption or the dissemination of those letters.
3. No such doubt attends the 2 April 2020 letter which Mr Hogg, who was a director of Agrinova as at that date, drafted, signed and sent.
4. Thus, I am satisfied that by each of the letters Agrinova made the first and second representations.
5. However, I am not satisfied that, by the letters, Agrinova made the third or fourth representations. Neither the payment of legal fees nor the allocation of units is mentioned in the letters.
6. In the analysis that follows I will refer to the first and second representations together as the promise.

C.3 Expectation or intention that Mr Van Vlymen would rely upon the promise?

1. The second requirement is that a reasonable person in Agrinova's position must have expected or intended (or Agrinova must have actually expected or intended) that Mr Van Vlymen would rely upon the promise by some action, omission or course of conduct (Kramer v Stone at 135 [38]).
2. I am satisfied both that: (1) Agrinova actually expected or intended Mr Van Vlymen to rely upon its promise; and (2) a reasonable person in Agrinova's position must have held such an expectation or intention.
3. These conclusions are readily drawn from the terms of each of the letters, each of which was drafted or approved by Mr Hogg, together with the provision of those letters to Mr Keleher, the solicitor for Mr Van Vlymen. Further, Agrinova was plainly aware as at the date of each of the letters that Mr Van Vlymen was desperate for such funding.

1. The third requirement is that Mr Van Vlymen must have relied upon the promise by acting or omitting to act in the general manner that would have been expected (Kramer v Stone at 135 [39]).
2. In this regard, as the plurality explained in Kramer v Stone at 135 [39]:

... In order to establish reliance, it is ordinarily necessary for the promisee to show not merely that the promise was one factor taken into account in motivating the promisee's action or omission but that the promisee would not have acted or omitted to act in the absence of the promise. In other words, it must usually be shown that the promisee's reliance "made a difference to [the promisee] taking the course of action or inaction".

1. I am satisfied, for the reasons that follow, that Mr and Mrs Van Vlymen acted in reliance upon the promise, by acting in a manner that would have been expected, when Mr Van Vlymen, via Mr Keleher, took steps in early March 2020 to relist Supreme Court proceeding 2015/60753 and filed the notice of motion of 26 March 2020 in order to determine the amount owing to Mr Wong.
2. In this regard, the "real question" to be determined is as to "the appropriate inference to be drawn from the whole of the evidence": Sidhu at 524 [64].
3. In light of the nature of the promise, which I am satisfied was objectively intended to be acted upon, and the context in which it was made - as described above but including in particular Mr Van Vlymen's desire to pay out Mr Wong and to re-gain control of his Solomon Islands assets having been thwarted from doing so by his impecuniosity - reliance upon the promise is a natural and obvious consequence of Agrinova's conduct in making the promise, and a fair inference arises that Mr Van Vlymen did rely upon the promise: see, e.g., Gould v Vaggelas [1984] HCA 68; (1984) 157 CLR 215 at 236 and 238 (Wilson J); Ricochet Pty Ltd v Equity Trustees Executor & Agency Co Ltd [1993] FCA 99; (1993) 41 FCR 229 at 234 (Lockhart, Gummow and French JJ); Hanave Pty Limited v LFOT Pty Ltd [1999] FCA 357; (1999) 43 IPR 545 at 555 to 556 ([45] to [46]) (Kiefel J, Wilcox J agreeing); Addenbrooke Pty Limited v Duncan (No 2) [2017] FCAFC 76; (2017) 348 ALR 1 at 124 [502] (Gilmour and White JJ); and Mikkelsen v Li [2023] VSCA 255; (2023) 72 VR 325 at 346 [95] (Ferguson CJ, Beach and McLeish JJA).
4. To adopt the language used by the plurality in Sidhu at 525 [69], the promise was objectively likely to have had a significant impact on someone in the position of Mr Van Vlymen.
5. I am mindful that when drawing inferences from the nature of the impugned conduct, care must be taken, for the reasons explained by Gummow, Hayne, Heydon and Kiefel JJ in Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at 351 to 352 [143], including that such a process of reasoning "must always attend closely to all of the evidence that is adduced that bears upon the question being examined". See also Sidhu at 524 [64].
6. The facts described above suggest that the promise was in fact relied upon. In particular:

(1) on the same day that the 12 July 2019 letter was sent to Mr Keleher on behalf of Mr Van Vlymen, Mr Keleher wrote to Mr Birchall on behalf of Mr Wong and to the solicitor for the receiver providing a copy of the 12 July 2019 letter - which Mr Keleher described as "confirming that [Agrinova] is in a position to satisfy the outstanding amount owed by Mr Van Vlymen to Mr Wong pursuant to the November Deed including the cost to retire the Receiver" - requesting the provision of particular information, and noting his instructions to relist the matter before Justice Sackar if there was a delay in the provision of the information requested (see [119(3)] above);

(2) on the same day that the 23 December 2019 letter was sent, Mr Keleher for Mr Van Vlymen sent that letter to Mr Birchall for Mr Wong and to Mr Doble for the receiver, and sought an urgent response (see [144] above);

(3) on 8 January 2020 - and shortly after the 6 January 2020 meeting of the directors of Agrinova which included a discussion of integration of assets including the Solomon Islands assets into Agrinova (see [150] and [153] to [156] above) - Mr Keleher, on behalf of Mr Van Vlymen, wrote to Mr Doble repeating the request for information made in his 19 December 2019 email (see [163] above);

(4) on 12 February 2020, Mr and Mrs Van Vlymen signed guarantees supporting the CSA Facility (see [172] to [176] above);

(5) on 2 March 2020, Mr Keleher wrote again to Mr Doble stating, in part (see [184(1)] above):

As you are aware, Agrinova Pty Ltd (Agrinova) is providing the necessary funds to finalise the subject outstanding payment to Mr Wong and retire the receiver. Agrinova has requested the following additional information be provided by your client ...:

...

We are instructed that, subject to receipt of the above information and confirmation of the final settlement figure (either by agreement between the parties or judgment), our client is in a position to settle this matter. ;

(6) on 3 March 2020, Mr Keleher wrote to Mr Birchall in terms that included (see [185] above):

Please note that, subject to the completion of the financier's due diligence, we are instructed that Agrinova Pty Ltd is ready, willing and able to draw down on the funds sufficient to settle the outstanding payment to your client (such amount to be resolved by agreement or judgment) and therefore we request that you provide your client's answers to the above questions as a matter of urgency. ;

(7) in early March 2020, Mr Keleher took steps to relist Supreme Court proceeding 2015/60753 (see [186] above); and

(8) on 26 March 2020, the notice of motion was filed (see [204] above).

1. Such reliance occurred on the basis of the promise as expressed in the 12 July 2019 and 23 December 2019 letters (as the reiteration and confirmation of the promise in the 2 April 2020 letter was yet to occur).
2. I am also satisfied that Mr and Mrs Van Vlymen continued to rely upon the promise - by continuing to pursue the notice of motion - after the 2 April 2020 letter.
3. In this regard, on the day following the 2 April 2020 letter, Mr Keleher on behalf of Mr Van Vlymen continued correspondence with Mr Birchall on behalf of Mr Wong and with Mr Doble on behalf of the receiver, stating (see [211(1)] above):

...

Please find attached a letter from Agrinova Pty Ltd dated 2 April 2020 the contents of which is self-explanatory.

Please note that it is Agrinova Pty Ltd, not Capital Securities Australia, that is providing the funding to resolve the matter between our clients.

...

1. Agrinova made several submissions to the effect that Mr Van Vlymen placed no reliance (or no reasonable reliance) upon the representations made in the letters in circumstances where Mr Van Vlymen was aware that the true position was that Agrinova was not in a position to fund the payment to Mr Wong. This was sometimes couched in terms of a reason to deny relief to Mr Van Vlymen on the basis that a person seeking relief in equity must have "clean hands".
2. One such submission was that the 23 December 2019 letter was a "sham" set up between Mr Hogg and Mr Van Vlymen or his representatives. This submission was unburdened by any reference to the evidence. In view of the gravity of the premise of this submission it should have been (but was not) put to Mr Hogg and Mr Van Vlymen in cross-examination before being made. Regrettably, it was not. I reject the submission.
3. Another such submission was that there was no reasonable reliance on the 2 April 2020 letter because Mr Van Vlymen was aware that CSA had withdrawn its funding from 25 March 2020 (see [203] above).
4. I do not accept this submission. The premises implicit within it - (1) that Agrinova's only source of funding was CSA; (2) this was known to Mr Van Vlymen; and (3) this remained the case as at 2 April 2020 on which date the promise was reiterated in the most strident of terms - have not been established and were not put to Mr Van Vlymen in cross-examination.
5. Further, the 3 April 2020 letter from Mr Keleher (see [211(1)] above) included:

Please note that it is Agrinova Pty Ltd, not Capital Securities Australia that is providing the funding to resolve the matter between our clients.

1. Agrinova also relied upon the absence of direct evidence from Mr and Mrs Van Vlymen that they had relied upon the promise. However, the presence or absence of such evidence is a matter of little moment.
2. Direct evidence of reliance, including what would have occurred had the true position been known, might well be regarded as carrying little weight and self-serving: see Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd [1992] FCA 550; (1992) 38 FCR 471 at 481 to 483 (Beaumont, Foster and Hill JJ); Wilson v Arwon Finance Pty Ltd [2020] WASCA 137 at [227] (Quinlan CJ, Pritchard and Vaughan JJA); Elanor Funds Management Ltd v Alceon Group Pty Ltd [2024] FCAFC 121 at [285] (Bromwich and Thawley JJ). In Wilson, Quinlan CJ, Pritchard and Vaughan JJA explained at [227]:

Often a reliance finding will be established by inference from the objective facts. On occasions - as occurred in the present case - a witness will give direct evidence to the effect that he or she took particular steps (or refrained from taking particular steps) on the faith of or induced by an understanding or belief brought about by a representation or other conduct on the part of another. Any such evidence is inherently self-serving. It will usually be treated with caution and scrutinised carefully by a trial judge in much the same way, and for much the same reasons, as a trial judge will carefully consider the veracity and reliability of hypothetical evidence (where such evidence may be lead). Such hypothetical evidence is normally assessed in light of the surrounding objective facts and circumstances. Unless objective evidence confirms its reliability such evidence often has little probative value. Demeanour can play little part in accepting the evidence; it may, however, be ground for rejecting the evidence. The last observation demonstrates that rejection of a party witness' direct evidence of reliance may result in him or her failing to establish reliance.

(citations omitted)

1. Thus, I am satisfied that Mr and Mrs Van Vlymen continued reasonably to rely upon the promise until Mr Van Vlymen was told on 19 May 2020 that Agrinova had resiled from it (see [230] to [236] above).
2. From 19 May 2020, there was no reasonable basis for reliance upon the promise.

C.5 Detriment as a consequence of reliance upon the promise?

1. The fourth requirement is that the consequence of Mr and Mrs Van Vlymen's reliance must be detriment if the promise is not fulfilled, in the sense that they will be left in a worse position, as a consequence of reliance upon the promise than if the promise had not been made (Kramer v Stone at 135 to 136 [40]).
2. As noted above, Agrinova resiled from the promise on 19 May 2020.
3. The non-fulfilment of the promise is not relevant detriment. Rather, it is the conduct of Mr Van Vlymen in acting upon the promise that is relevant: see e.g., Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at 121 to 122 [35] (Gleeson CJ, McHugh, Gummow and Callinan JJ); Sidhu at 522 to 523 [58]; Kramer at 135 to 136 [40]. See also the analysis of Doyle J in Manassen Holdings Pty Ltd v Commercial & General Corporation Pty Ltd [2019] SASC 171 at [244] to [254]. At [253] to [254] his Honour stated:
   1. Finally, the plaintiffs rely upon the non-payment of the daily fee for the period following 30 November 2016 as detriment sufficient to found its estoppel. However, the difficulty with this is that, generally at least, the mere non-receipt of the anticipated benefit of the promise is not relevant or sufficient detriment. As Brennan CJ explained in Commonwealth v Verwayen:

The relevant detriment in a case of equitable estoppel is detriment occasioned by reliance on a promise, that is, detriment occasioned by acting or abstaining from acting on the faith of a promise that is not fulfilled. The relevant detriment does not consist in a loss attributable merely to non-fulfilment of the promise.

1. The rationale for this approach lies in an understanding that the object of promissory estoppel is not the protection of the expectation interest that contract law seeks to protect. Rather, its object is the prevention of the unconscionable infliction of detriment. And while, in a lay sense, it might be said to be harsh or unfair not to adhere to a promise, equity requires something more than the making and threatened non-fulfilment of a promise before it will intervene. A similar point emerges from the passages of Brennan J's reason in Walton Stores (Interstate) Ltd v Maher, extracted earlier in these reasons.

1. The analysis of Doyle J was upheld on appeal: Commercial & General Corporation Pty Ltd v Manassen Holdings Pty Ltd [2021] SASCFC 40 by Livesey J at [142] to [160], with Stanley J agreeing at [1] and Nicholson J agreeing at [7].
2. Mr and Mrs Van Vlymen plainly suffered detriment in reliance upon the promise, principally a liability for legal fees incurred in connection with the re-agitation of Supreme Court proceeding 2015/60753 for the purpose of determining the amount owing to Mr Wong. They were also exposed to a potential liability (which subsequently crystallised) for legal fees incurred by Mr Wong in his response. I am comfortably satisfied that such detriment would not have occurred but for the re-agitation of Supreme Court proceeding 2015/60753, including the filing of the notice of motion, in reliance upon the promise.

1. Thus, adopting the expression used by the plurality in Kramer v Stone at 136 [41], I am satisfied that conscience requires Agrinova redress the detriment suffered by Mr and Mrs Van Vlymen. I turn now to address remedy.
2. The applicant submitted that:

(1) there is nothing inequitable in holding Agrinova to the assumed state of affairs, namely, that Agrinova would stand behind Mr and Mrs Van Vlymen and ensure the payment of the amount owing to Mr Wong;

(2) the minimum equity is relief by way of equitable compensation, and related relief, putting Mr and Mrs Van Vlymen in the position they would have been in if Agrinova had not departed from the promise. If Agrinova had not departed from that promise, then the amount owing to Mr Wong would have been paid and Mr and Mrs Van Vlymen would have become part of the Agrinova joint venture. Accordingly, this is one of those cases in which the quantification of equitable compensation coincides with the quantification of damages for breach of contract;

(3) the Court should order Agrinova to pay, by way of equitable compensation:

(a) $1,279,135.00 as compensation for the legal costs and expenses incurred by Mr Van Vlymen in Supreme Court proceeding 2015/60753, or incurred by Mr Wong in that proceeding and payable by Mr Van Vlymen;

(b) $7,074,000 being the amount payable to Mr Wong pursuant to the 2 September 2020 orders;

(c) $5,900,000, as the loss of the value of the allocation of units in the Agrinova Unit Trust;

(d) $6,075,000 representing the diminution in value of the shares in Orbis and its wholly owned subsidiary, PIHL, as a result of the fees owing by Orbis and PIHL to Hall Chadwick arising out of the administration/liquidation of Orbis, in which Mr and Mrs Van Vlymen held an indirect 100 per cent interest; and

(e) $325,897.08, for fees payable to Mr and Mrs Van Vlymen's trustee in bankruptcy, Mr Sampson, and the disbursements incurred by Mr Sampson,

1. For the reasons explained below, Agrinova should be required to provide compensation with respect to some legal costs and expenses, but not otherwise.
2. Relief in equity based upon estoppel arising out of the abandonment of a promise is directed at addressing the detriment caused to the promisee in changing their position in reliance upon the promise. Such relief is not directed at fulfilling the expectation created by the promise (albeit that in a particular case addressing the detriment may require the fulfilling of such expectation).
3. As Livesey J explained in Manassen Holdings at [143], [146] to [147] and [156]:
   1. The plaintiffs maintain that, assuming the representee proves substantial detriment, the analysis should commence with the proposition that the promise or representation is to be fulfilled. On the plaintiffs' approach, if the relief sought is not disproportionate to the detriment suffered, then sufficient reliance will be made out. However, to reason in this way confuses the question of detriment with the appropriateness of the remedy sought. The correct approach, as applied by the trial Judge, is to first ascertain the detriment caused. To do otherwise converts the claim to a contractual claim, rather than a detrimental reliance claim. The claim in contract compensates for lost expectations, while the claim in estoppel compensates for detriment sustained in reliance. The two measures ought not be conflated.

...

1. The High Court has consistently held that it is the act of detrimental reliance which forms the basis of a promissory estoppel, and not merely the departure from the representation made. After all, "[i]t is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise".
2. The point of the passage cited from Sidhu v Van Dyke is that it explains that there must be detrimental reliance: that is, some detriment must flow from the defendant's change in position. It is not sufficient that the defendant has, on one view, breached a promise. The plaintiffs' conduct in acting upon the promise must occasion detriment. To do otherwise coverts the claim to a contractual claim for loss of expectation. This approach was reinforced later in Sidhu v Van Dyke where the plurality quoted from Waltons Stores (Interstate) Ltd v Maher:

In Waltons Stores (Interstate) Ltd v Maher, Brennan J said:

"The protection which equity extends is analogous to the protection given by estoppel in pais to which Dixon J referred in Grundt v Great Bouler, ie, protection against the detriment which would flow from a party's change of position if the assumption (or expectation) that led to it were deserted."

...

1. The point to be drawn from the passages from Sidhu v Van Dyke set out above is that, in some cases, the appropriate relief will be the enforcement of the assumption or the expectation, while in other cases, the appropriate relief is something less, because to hold the defendant to the promise would be wholly disproportionate to the detriment suffered by the plaintiffs. That is a point different to the contention propounded by the plaintiffs, and tends only to emphasise that the mere non-fulfillment of a promise is not sufficient to give rise to a promissory estoppel.

(footnotes omitted)

1. In Kramer v Stone the plurality explained at 135 to 136 [40]:

... it is the existence of detriment arising from reasonable reliance upon an unfulfilled promise that completes the recognition of the estoppel and moulds the remedial response. As this Court has repeatedly held, "[i]t is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise". Hence, the relief is "moulded accordingly to prevent th[e] detriment". In cases where the detriment suffered by a plaintiff is "a relatively small, readily quantifiable monetary outlay on the faith of the [defendant's] assurances" then, apart from interest, the likely equitable relief ordered will be compensation in the amount of the monetary outlay. By contrast, where the detriment suffered "involves life-changing decisions with irreversible consequences of a profoundly personal nature", the likely equitable relief will be to require fulfilment of the assumption upon which the plaintiff acted, such as by a conveyance of rights, or an assessment of the monetary value of the assumption.

1. Thus, it is necessary to identify the relevant detriment and then mould relief accordingly. As explained above, the relevant detriment is limited to the fees for which Mr Van Vlymen became liable in Supreme Court proceeding 2015/60753 between about early March 2020 and 19 May 2020.
2. The obviously appropriate remedy is compensation (including interest) for that expenditure.
3. This is not a case where performance of the promise is necessary or appropriate. The present facts are far removed from those in cases such as Giumelli, Sidhu and Kramer v Stone. In particular, the detriment suffered by Mr Van Vlymen could not on any reasonable measure be said to have involved "life-changing decisions with irreversible consequences of a profoundly personal nature" as was the case for the promisees in each of Giumelli, Sidhu and Kramer v Stone. The relevant detriment suffered by Mr Van Vlymen was purely financial, readily quantifiable, and suffered over a relatively short period (between early March 2020 and 19 May 2020).
4. The evidence does not allow for any precise determination of the costs incurred by Mr and Mrs Van Vlymen on the one hand, or by Mr Wong on the other, between early March 2020 and 19 May 2020.
5. The evidence concerning such costs is limited to the tax invoices rendered by Mr Leopold, Mr Somerville and Keleher Lawyers, which cover (but are not limited to) the period from early March 2020 to 19 May 2020; and to the 2 September 2020 orders which quantified the costs payable to Mr Wong.
6. Mr Leopold's tax invoices record costs of: (1) $33,033.00 for the period from 20 April 2020 (when he was retained) to 30 April 2020; and (2) $33,891.00 for the period from 1 May 2020 to 19 May 2020, a total of $66,924.00.
7. Mr Somerville's tax invoices record costs of: (1) $3,562.50 to 2 March 2020; (2) $16,775.00 for the remainder of March 2020; (3) $25,162.50 for the period from 6 to 28 April 2020; and (4) $31,212.00 for the period from 28 April 2020 to 19 May 2020, a total of $76,712.00.
8. Mr Keleher's tax invoice refers to total costs of $330,000.00. It is dated 6 May 2021 (i.e. well after the relevant events and the commencement of this proceeding) and contains a general narrative of work undertaken but no means of identifying the dates on which such work was done or the amounts attributable to particular time periods. Nor is there identification of the hourly rate or the number of hours claimed. Doing the best I can with the information available and taking into account the pattern of incurrence of costs over time shown in the invoices of Mr Leopold and Mr Somerville and the likelihood that the costs rendered by Mr Keleher were not restricted solely to Supreme Court proceeding 2015/60753, I conclude that Mr Keleher's costs for the period up to 19 May 2020 were in the order of $155,000.00.
9. The total of $66,924.00, $76,712.00 and $155,000.00 is $298,636.00, which I will round to $300,000.00. From this total there must be subtracted the $15,000.00 paid by Agrinova on 6 April 2020.
10. The applicant seeks to quantify the costs payable to Mr Wong by reference to the costs orders which formed part of the 2 September 2020 orders and which the applicant contends is an amount of $601,090.00. Agrinova contends that those costs orders amount to $517,364.00.
11. In my view these costs orders do not provide a reliable indication of the costs incurred by Mr Wong up to 19 May 2020 in circumstances where: (1) these costs orders (unsurprisingly) do not specifically address this time period; (2) the costs payable to Mr Wong under the 2 September 2020 orders extended beyond those associated with the determination of the amount owing to Mr Wong. I prefer to estimate the costs payable to Mr Wong arising out of the re-agitation of Supreme Court proceeding 2015/60753 and up to 19 May 2020 as an amount of the same magnitude as the costs incurred by Mr and Mrs Van Vlymen to that point, namely $300,000.00.
12. The other heads of compensation sought by the applicant (see [331(3)(b) to (e)] above) are not detriment arising from a change in position by Mr Van Vlymen in reliance upon the promise. Such compensation would be wholly disproportionate to the detriment occasioned.
13. Further, the moneys payable to Mr Wong were a debt that Mr and Mrs Van Vlymen owed Mr Wong under the November 2016 Deed and could have been the subject of action by Mr Wong at any time. It was not detriment caused by the adoption of a change of position in reliance upon the promise. Mr and Mrs Van Vlymen would have been in the same position in any event (cf. Sidhu at 531 [92] per Gageler J).
14. The applicant contended to the contrary, submitting that a point of no return was reached on 28 April 2020 when Mr Wong filed his amended statement of claim (see [226] above). The applicant relied, in this regard, upon the following statement of Mr Birchall in his affidavit (as written):

Had I become aware that, as appears to be case from the Bransgroves-Keleher Emails, CSA had withdrawn the CSA Funding by the end of March 2020, I would have immediately informed Mr Wong and sought instructions from him. Based on my beliefs about Mr Wong's attitude to that issue (as deposed to above), I am highly confident that he would have instructed me to:

(a) bring that information to the attention of Sackar J immediately, with a view to aggressively pursuing an application to dismiss, or at least stay pending a revival or replacement of the CSA Funding, the Van Vlymen NoM; and

(b) if successful, refrain from pressing the amended relief sought in the 2015 Proceeding and filing of the 2020 Summons.

1. The reference to: (1) the "Van Vlymen NoM" is to the notice of motion; (2) the "amended relief sought in the 2015 Proceeding" is a reference to the amended statement of claim filed on 28 April 2020; and (3) the "2020 Summons" is a reference to a summons filed by Mr Wong to overcome a procedural objection taken by Mr Van Vlymen, and filed in response to the notice of motion.
2. The applicant relied on this paragraph in support of a submission to the effect that: (1) the promise caused Mr and Mrs Van Vlymen to file the notice of motion; (2) the notice of motion caused Mr Wong to file his summons/amended application; (3) the filing of the summons/amended application led to the making of the order on 2 September 2020 requiring payment of $7,047,000 to Mr Wong; and (4) thus reliance upon the promise caused that liability to Mr Wong.
3. I do not accept that submission for the following reasons.
4. First, it relies upon evidence from Mr Birchall which is, at its highest a statement of Mr Birchall's belief. Secondly, it is conditioned upon: (1) the proposition that CSA had withdrawn funding by the end of March 2020; and (2) the making of a successful application to Justice Sackar for the dismissal or stay of the notice of motion. Thirdly, it is inherently unlikely that Mr Wong would have forever abandoned a debt of such magnitude.
5. Thus, there should be an order for compensation for the legal fees for which Mr and Mrs Van Vlymen became liable and which were incurred between the beginning of March 2020 and 19 May 2020, in an amount of $585,000.00 ($300,000.00 less $15,000.00, plus $300,000.00).

1. The applicant's case involves the following contentions.
2. First, at the 30 October 2018 meeting Agrinova - through Mr Hogg acting within the scope of his actual or apparent authority as a director of Agrinova - made an offer to Mr Van Vlymen (contended offer) to the effect that:

(1) Agrinova would pay the balance outstanding owed to Mr Wong pursuant to the November 2016 Deed;

(2) Agrinova would pay the fees and expenses required to retire the receiver;

(3) Agrinova would pay the legal fees and expenses that Mr and Mrs Van Vlymen would incur in finalising all matters with Mr Wong to complete their obligations under the November 2016 Deed;

(4) Agrinova would allocate units in the Agrinova Unit Trust (for which Agrinova was the corporate trustee) to Mr and Mrs Van Vlymen or their nominee, where the allocation of such units was to be done on a pro-rata basis based on the net value of Mr and Mrs Van Vlymen's assets transferred to Agrinova as a proportion of Agrinova's total assets, the valuation of Mr and Mrs Van Vlymen's assets to be dependent on the identification of final amounts payable by Agrinova in accordance with (1) to (3) above and on a formal valuation of all of Agrinova's assets;

(5) in consideration of Agrinova's actions described in (1) to (4) above, Mr and Mrs Van Vlymen would - so as to crystallise the amount payable by Agrinova pursuant to (1) to (3) above - do all things necessary to formalise the amount owing to Mr Wong so as to enable Agrinova to pay that amount; and

(6) in consideration of Agrinova's actions described in (1) to (4) above, Mr and Mrs Van Vlymen would be obliged to transfer or cause to transfer to Agrinova Orbis's shareholding in PIHL in consideration for Agrinova carrying out the actions described in (1) to (4) above, resulting in Agrinova becoming the sole shareholder of PIL and OSTI and thereby having 100 per cent ownership of ICSL, PMSL, Cross Pacific and Pacific Finance.

1. Secondly, at the October 2018 Meeting, by an oral acceptance conveyed by Mr Van Vlymen to Mr Hogg, Mr and Mrs Van Vlymen accepted the contended offer.
2. Thirdly, Mr and Mrs Van Vlymen and Agrinova thus entered into a legally binding contract on the terms and conditions set out in the first contention above (the contended agreement).
3. The respondents deny each of Agrinova's contentions.

1. In Richards v Han [2022] FCA 1539 at [97] to [98], Halley J set out a convenient summary of relevant principles:

1. The principles governing proof of the existence of a binding oral agreement are well established and can be summarised as follows:

(a) a binding agreement is made where a reasonable person would believe that, based on their words and behaviour, the parties intended that a contract be formed: John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 (Holland) at [93]-[94] (Hammerschlag J); > > (b) the test is an objective one, which in most cases can be administered by determining whether there has been an offer by one party to be bound on certain terms accompanied by an unqualified acceptance of that offer communicated by the other party to the offeror: Holland at [93]-[94]; Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424; [1954] HCA 20, 457;

(c) consideration of surrounding circumstances and post contractual conduct is permissible when the existence or terms of an oral contract are in issue: Brendan Wilfred King v Robert Lawrence Adams [2016] NSWSC 1798, [63] (Sackar J);

(d) the conduct of the parties must be "capable of proving all the essential elements of an express contract": Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 (Heydon JA, as his Honour then was);

(e) where it is alleged that a binding agreement was reached during the course of a specific conversation, the Court must be persuaded that the parties intended to be bound by a contract on the terms alleged "in the course of the discussion": Sparway Pty Ltd v Lakkis [2017] NSWSC 1465 at [55]- [67] (Darke J);

(f) in the absence of any reasonably contemporaneous memorandum or other record of the agreement, the plaintiff's credibility in terms of both his truthfulness and reliability become a central issue in the proceedings: Arcaba v K&K Real Estate Pty Limited [2016] NSWSC 1793 (Arcaba) at [91] (Hall J);

(g) in cases where a party seeks to rely upon spoken words to show the existence of a contract, the Court must feel an "actual persuasion" of the occurrence or existence of the contract: Holland at [94] (Hammerschlag J); Diransson Pty Ltd v Hassan El Dirani [2019] NSWSC 617 (Diransson) at [465] (Sackar J);

(h) when considering conflicting accounts of events that occurred well in the past, it is pertinent to bear in mind that "with every day that passes the memory becomes fainter and the imagination becomes more active": Lewis v Lewis [2022] QSC 208 at [176] quoting White AJA in ACN 070 037 599 Pty Ltd v Larvik Pty Ltd [2008] QCA 416 at [6]; and

(i) absent some objective and contemporaneous support, the alleged reiteration many years after the event of verbal exchanges which are said to consummate contractual relations and/or alternatively induced a particular form of conduct, are often difficult to prove: Diransson at [463] (Sackar J).

1. The following additional relevant principles emerge from Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 at [59]- [64]:

(a) an agreement that is incomplete will not give rise to an enforceable contract;

(b) an alleged contract will fail for incompleteness if, even though the parties have used clear language, a term which is regarded as essential as a matter of law has not been agreed;

(c) if the parties have not agreed on all essential terms, for example because they have left on such term to be settled by future agreement, the contract is incomplete no matter what the parties themselves may think; and

(d) if the parties have not reached consensus on the essential terms of the contract, there will be no binding contract notwithstanding that one of the parties has commenced work referable to the agreement.

(1) in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at 105 [24] Gaudron, McHugh, Hayne and Callinan JJ explained:

"It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty." [Australian Woollen Mills Pty Ltd v The Commonwealth [1954] HCA 20; (1954) 92 CLR 424 at 457 per Dixon CJ, Williams, Webb, Fullagar and Kitto JJ]. To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet '[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts' [South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130 at 154 per Windeyer J]. ;

(2) the magnitude and complexity of the subject matter of the alleged contract will bear upon the likelihood that the parties intended to reach legally binding terms in an informal manner: Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2018] FCA 174 at [13] (Colvin J); Dig It Landscapes Pty Ltd (in liq) v Bupa Aged Care Australia Pty Ltd (No 2) [2024] FCA 31 at [137] (Jackson J); .

(3) as to subsequent conduct:

(a) in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; (2015) 329 ALR 1 at 113 to 114 [722], Edelman J explained:

... in cases involving a dispute about an oral contract, evidence of subsequent acts of the parties can be used to resolve the questions of what was said at the time of the alleged contract and the context in which a reasonable person would have understood the words to have meant in the manner and circumstances in which they were spoken.

(citations omitted; emphasis in original) ; and

(b) it is fallacious to infer from subsequent conduct which is not inconsistent with an alleged contract that the conduct actually took place because of the alleged contract: Heydon J D, Heydon on Contract: The General Part (LawBook Co, 2019) at [2.110].

1. I accept on 30 October 2018 that there was a lengthy discussion between those present - Mr Van Vlymen, Mr Hogg, Mathew Stott, Barney Hughes and Mr Ramakrishnan - concerning a potential joint venture between the Stott, Hughes and Van Vlymen families, which included a discussion of a broad concept involving those families transferring assets to Agrinova in return for the issue of units in a unit trust.
2. However, I am not satisfied that the contended agreement was made, for the following reasons.
3. First, for the reasons set out at [278] to [289] above, I am not satisfied that Mr Hogg made the contended offer. This is sufficient reason to find that the contended agreement was not made.
4. Secondly, the recollection of those persons who were present at the 30 October 2018 meeting and who gave evidence - Mr Van Vlymen, Mr Hogg, Barney Hughes and Mr Ramakrishnan - taken as a whole is not suggestive of any binding contract having been reached on that day. In this regard:

(1) Mr Hogg's summary of the course that was determined that day was that the Stott, Hughes and Van Vlymen families "would continue in moving towards a joint venture" ([76(2)(a)] above) and "further work needed to be completed to re-work the joint venture project without BFB" ([72(2)(b)] above) and that "... this is what we need to look at" (see [76(4)] above);

(2) Barney Hughes had a similar recollection that Mr Hogg stated that "the families can continue to move towards a joint venture ... I am not particularly confident that Millennial Equity will continue to be willing to enter into a funding arrangement without BFB, so further work will need to be completed to rework the project without BFB" ([78(2)] above) and that he said "I agree and this is what we need to look at" ([78](5) above); and

(3) the expressions of agreement described in the accounts given by Mr Hogg and Barney Hughes in this context are at best expressions of agreement to take further steps prior to any party being contractually bound.

1. Thirdly, none of this is gainsaid by the surrounding circumstances which obtained as at 30 October 2018, including the fact that the Stott family was looking for a joint venture partner, or the circumstances of the BFB bid.
2. Fourthly, neither Mr Van Vlymen nor Mr Hogg (on behalf of Agrinova) was naïve in matters of commerce. To the contrary, they each had considerable experience. If there was (objectively) an intention to enter into a legally binding agreement of the magnitude of the contended agreement - involving the merger of three sets of landholdings of multiple properties both in Australia and the Solomon Islands and with a combined value of many millions of dollars - then one would usually expect it to have been recorded in writing.
3. Fifthly, if contrary to the above, the contended offer was made and accepted, this did not create a legally binding agreement where much remained to be agreed including, critically, the price to be paid for the assets of Mr and Mrs Van Vlymen including the extent of the "discount" to be applied (see [76(2)(g) and (h)], [78(4)] and [79(1)] above).
4. Sixthly, subsequent events do not suggest that the contended agreement was reached on 30 October 2018.
5. The applicant submitted that the following steps would not have been taken unless Agrinova and Mr and Mrs Van Vlymen intended to enter into a binding agreement on 30 October 2018:

(1) the inspection by Richard and Mathew Stott and Barney Hughes of various landholdings for purchase;

(2) Mr Hogg's dealing with various financiers and in particular with ANZ and CSA;

(3) the 12 July 2019 letter (see [119(2)] above);

(4) the 12 July 2019 letter from Mr Keleher on behalf of Mr Van Vlymen to the receiver (see [119(3)] above);

(5) the appointment on 1 August 2019 of Mathew Stott as a director of Agrinova (see [126] above);

(6) the letter from Agrinova to CSA dated 12 December 2019 (see [136] above);

(7) the 23 December 2019 letter (see [141] above);

(8) the transfer in December 2019 and February 2020 of the assets of the Stott and Hughes families respectively to Agrinova (see [133] and [177] above); and

(9) the appointment of Brandon Hughes as a director of Agrinova on 27 January 2020 (see [166] above).

1. I do not accept this submission. It may be accepted that the conduct described in the previous paragraph is not inconsistent with the contended agreement and that some of it is consistent with the existence of the contended agreement. However, it does not follow that the conduct took place because of the contended agreement or that the conduct is probative of the existence of the contended agreement.
2. The subsequent conduct described above is perfectly consistent with an evolving relationship as the Stott and Hughes families "moved toward" a joint venture which may or may not have included Mr and Mrs Van Vlymen and their assets. There is also subsequent conduct that is difficult to reconcile with the existence of the contended argument. For example, the creation of a veto vested in the Stott family company Avondale Agricultural over the issue of further units in the Agrinova Unit Trust (see [106] above), and the absence of disclosure to the Family Court of the use of the Agrinova Unit Trust as a vehicle for the merger of the assets of three families (see [129] and [130] above).
3. Finally, if the contended agreement had been made, one might expect there to have been some contemporaneous reference to it. There is none.
4. Similarly, there was no protest or assertion of the contended agreement when the promise was withdrawn on 19 May 2020.
5. Further, several months later: (1) on 18 August 2020, Mr Keleher wrote to Richard Stott asserting an "agreement between Agrinova and our client" ([240] above); (2) on the same day, Mr Long on behalf of Richard, Mathew and Erin Stott requested a copy of "the agreement between Mr Van Vlymen and Agrinova Pty Ltd that your refer to" (see [241] above); (3) on 26 August 2020 Mr Keleher sent a further letter to Richard Stott, which again referred to an agreement between Agrinova and Mr Keleher's (now plural) clients. Despite providing some detail of the basis of an alleged estoppel, no reference is made to an alleged oral agreement reached on 30 October 2018 (see [242] above); and (4) on the same day, Mr Long again requested a copy of the alleged agreement (see [243] above). If there was an oral agreement reached on 30 October 2018, which Mr Van Vlymen claimed had been breached, one might have expected Mr Keleher's letters to have made some reference to such an agreement.
6. For the foregoing reasons, I feel no persuasion that the contended agreement was reached on 30 October 2018. It follows that the claim based on contract fails at the outset. It is unnecessary to consider questions of breach or damages (or whether to allow the respondent's application at the end of the hearing to amend its defence with respect to one aspect of the claimed damages).

1. The claim in estoppel succeeds in part. The claim in contract fails. As there are interest calculations to be made and there may be questions of costs to be resolved, I will make orders for conferral as to the form of orders that ought be made.

I certify that the preceding three hundred and seventy-eight (378) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.