1. In essence, TTM's claim is that in June 2016 it entered into an agreement with Concourse to provide Concourse with services in relation to the promotion and commercialisation of the Buggy.
2. TTM asserts that it provided services to Concourse from June 2016 to August 2016 and rendered invoices to Concourse for the work it undertook for those months. Concourse has paid for the months of June and July 2016 but has failed to pay the last invoice for the month of August 2016 (the relevant invoice dated 4 September 2016), in the sum of $9,344.50.

1. Concourse asserts that it is not liable to TTM, as TTM:
   • (a) breached essential terms of the relevant contract between the parties; and/or
   • (b) had engaged in misrepresentation.

1. In respect of the breach of contract allegation, Concourse asserts that:
   • (a) TTM had contractually promised Concourse that:
     • (i) the Buggy would be in Drummond Golf's stores for sale to the public; and
     • (ii) 6,000 units or a substantial amount of the Buggy would be sold.
   • (b) The above promises were essential terms of the contract between the parties.
   • (c) TTM failed to fulfil the promises and as a result breached essential terms of the contract.

1. Further or alternatively to the breach of contract allegation, Concourse asserts that TTM had engaged in misrepresentation in that it had promised that the Buggy would be in Drummond Golf's stores, which induced Concourse to enter into the agreement with TTM. Concourse alleged that by reason the agreement was void ab initio.

1. The parties do not dispute that TTM and Concourse had a contractual relationship with each other and that TTM undertook some work for Concourse. It is not disputed, for example, that TTM prepared documents, worked with Concourse in formulating strategies, gave advice as to the packaging of the Buggy, and organised the warehousing of the Buggy. The parties also agree that TTM rendered invoices to Concourse and Concourse has paid all but one of the invoices that TTM issued.
2. It follows that unless Concourse succeeds in its defence, TTM is entitled to the monetary relief it seeks.
3. Therefore, the issues for determination are:
   • (a) Did the contract between the parties include the terms as alleged by Concourse?
   • (b) If so, did TTM breach those terms?
   • (c) Further or alternatively, did TTM make the alleged misrepresentation to Concourse?
4. Before I discuss the issues, I wish to first deal with the evidence of the parties.

1. The parties agree that in around October 2015, Mr MacKay and Mr Morgan met each other at a conference in Sydney, where both of them delivered presentations (October 2015 meeting). Mr Morgan gave evidence that at the October 2015 meeting, Mr MacKay asked him questions about commercialising products.
2. Subsequently the two men met in Sydney in around December 2015 (December 2015 meeting). Mr Morgan's evidence was that the two men discussed how they could work together in respect of the commercialisation of the Buggy. Mr MacKay did not deny that the two met in December 2015, however, he asserted that they met again in Sydney on 5 January 2016 and that it was then that they talked about how they could work together (January 2016 meeting).
3. Mr MacKay asserted that it was during the January 2016 meeting that Mr Morgan pointed out that he was a director of Drummond Golf and told Mr MacKay words to the effect, "[the Buggy] was absolutely what Drummond Golf was looking for". Concourse asserts that Mr Morgan's assertions amounted to a representation by TTM that Drummond Golf would take the Buggy. Mr MacKay's evidence was that he believed that the representation was true because Mr Morgan was a director of Drummond Golf, and had it been someone other than Mr Morgan who had made the representation, "there was no way" that he would have "engaged Mr Morgan" and that he would have later "expanded the arrangement". To demonstrate, when questioned by Mr Morgan that he had never asserted to Mr MacKay that he could influence the purchase by Drummond Golf as a director of Drummond Golf, Mr MacKay replied, "Your position in Drummond Golf was the key reason" why Concourse had entered into an agreement.
4. Under cross-examination, when Ms Nikou put to Mr Morgan that he had said to Mr MacKay at the December 2015 meeting, "[The Buggy] is exactly the sort of thing that Drummond Golf is looking for", Mr Morgan answered, "not on that day". When Ms Nikou then asked Mr Morgan whether he said those words on another day, Mr Morgan appeared to first backtrack and replied that he could not recall, but then later denied saying such words at any stage.
5. Also under cross-examination, Ms Nikou put to Mr Morgan that during the January 2016 meeting, he had told Mr MacKay that he was certain that he could get the Buggy to Drummond Golf stores and other retailers. Mr Morgan denied saying this.
6. In contrast to the line of questioning by Mr Nikou, Mr MacKay did not give evidence that Mr Morgan used the express words that he would get the Buggy into Drummond Golf. However, Mr MacKay's evidence was that every conversation that he had with Mr Morgan regarding the Buggy was "to get everything right to target Drummond Golf", such as from packaging of the Buggy, which was pelletised because that was what Mr Morgan had advised Drummond Golf wanted, to the marketing, branding and launch of the Buggy into Drummond Golf stores. Mr MacKay also gave evidence that at one time, Mr Morgan had told him that he had spoken to the Chief Executive Officer and other directors of Drummond Golf and "they were really excited about the proposition of having Concourse products into Drummond Golf and selling them through". Mr MacKay was not able to indicate when those conversations took place.
7. In response, Mr Morgan asserted that he never promised to have the Buggy in Drummond Golf stores and only agreed to facilitate meetings between Concourse and Drummond Golf officers and to introduce Concourse to Drummond Golf. Mr Morgan did admit that from at least April 2016, he informed the CEO of Drummond Golf, Mr Jamie Cook, that he, as opposed to TTM, was advising Concourse on the Buggy product and that Mr Cook should be aware of the review.

1. The parties agree that in February 2016, Mr Morgan and Mr MacKay engaged in further discussions concerning the commercialisation of the Buggy. Mr Morgan contended that in February 2016, he, personally, and Concourse, entered into an agreement whereby he would provide his services to Concourse four days a month, for which he would be paid $5,500 per month (being two days' worth of services at $2,250 per day) and receive an allotment of shares in Concourse for the other two days that he would work per month (February 2016 agreement).
2. Mr Morgan asserted that the terms of the February 2016 agreement were set out in email correspondence between Mr MacKay and Mr Morgan on 16 and 18 February 2016. The parties do not dispute that on 16 February 2016, Mr MacKay sent an email to Mr Morgan, which stated:[1]

As discussed I've been very happy to date with the work you've done with us. I think we'll work very well together in accelerating the achievement of our objectives.

A[t] the rate of $2,000 per day we can pay you 1 day per month in cash and the rest in equity. We could agree [to] a 6 month block then obviously extended if it continues to work well for both of us.

1. I day per week. $2,000 cash and $6,000 in shares per month.

1. 1.5 days per week. $2,000 cash and $10,000 in shares per month.
2. On 18 February 2016, Mr Morgan sent a reply email to Mr MacKay,[2] relevantly stating:

Thank you very much for your proposal and the support and confidence you have shown in our business relationship so far.

As I have indicated I believe very strongly in the Concourse product and the potential for the future.

Initially, I would propose to dedicate one day per week ... I will discount my daily rate by 10% to $2250 plus Gst and I would propose to bill for 4 days per month, but convert two days to equity.

I hope this can be a workable compromise as I have enjoyed working with you, like the way you think, operate and get things done. I would like to [be] part of the Concourse story.'

1. Mr Morgan's email was signed off by him as "Chris Morgan/ Principle [sic]/ TTMARQUET P/L".
2. Both parties agree that the terms of the engagement as set out in Mr Morgan's email of 18 February 2016 were agreed to but they disagree on the identity of the parties who entered into the agreement.
3. As mentioned, Mr Morgan asserted that the February 2016 agreement was between himself personally and Concourse. In contrast, Concourse argued that the agreement in February 2016 was between TTM and Concourse and that this was the original agreement that required TTM to advise Concourse regarding the packaging, marketing and selling of the Buggy through Drummond Golf, and that the parties subsequently varied this agreement in June 2016.

1. Mr Morgan asserted that it was not until June 2016 that TTM and Concourse entered into the agreement that is the basis of TTM's claim.
2. Mr Morgan asserted that the terms of that agreement were contained in a letter dated 10 June 2016 from TTM to Concourse (First June 2016 letter).[3] Whilst acknowledging that the First June 2016 letter contained terms of the agreement between TTM and Concourse as at June 2016, Concourse asserted that:
   • (a) It received the First June 2016 letter by email on 5 June 2016 and the version of the letter Concourse received was formatted differently to the copy of the letter produced by Mr Morgan, even though the contents of the two versions, save for the dates of the letters, were the same.
   • (b) The First June 2016 letter was a variation of the initial agreement between TTM and Concourse in February 2016, and that the terms of the letter contained additional services that were to be provided by TTM.
3. The First June 2016 letter was on a TTM letterhead and headed "Take to Market in market sales and distribution support for CONCOURSE in Australia/NZ" and relevantly stated:

... I [being Mr Morgan] am writing to set out and detail the proposed role of the take to market team in the launch, sales and in market support administration management of the Concourse Golf product.

... I propose that take to market TTM Brand Partner [being the trading name of TTM] Team be appointed to lead the Concourse infiltration of the market.

I have attached a TTM Brand Partner Introduction which includes a summarised Concourse Year 1 Sales Plan. Initial sales target [for] the first year will be 4750 units of the [Buggy].

Based on an expected ex Warehouse price to resellers of $263 (Including GST) this will mean a Year 1 sales target of [$1,249,200].

It is planned to reassess and reforecast sales after the first period sales campaign.

... Simply put to achieve the budgeted sales of $1,249,000 [sic] costs are identified as follows:

... TTM will warehouse, sell, pick, invoice and otherwise fully support sales of the product in market. (Called on ground in market support)

TTM will bill its services on a monthly cost recovery basis.

Sales and warehousing costs will commence from the initiation of this agreement and represent 60% of the agreed budget figure of $169,900 or $101,940 in the initial sales campaign period(s)

The $101,940 with [sic] be invoiced in monthly instalments of $8495 plus GST commencing 1 June 2016, the amounts will be representative of a 50% time allocation for sales personnel and facility utilization. [sic] with the balance $ 67,960 paid as 5% rebate on sales as they occur ex warehouse.

Our Sales and Warehouse base will be located at Unit 21 94 Keys Rd Moorabbin.

1. When I asked Mr MacKay how the figure in the First June 2016 letter of 4,750 units of the Buggy to be sold was determined, he said that it was a sales "target" that both he and Mr Morgan had mutually agreed was "achievable". That is the highest that Mr MacKay put the evidence to me.
2. Together with the First June 2016 letter, TTM provided Concourse with a document that contained information about TTM trading as TTM Brand Partners (TTM Brand Partner presentation).[4] It contained a diagram of the key personnel of TTM including Mr Morgan. It also contained the "Year 1 Take to market plan" for Concourse and identified "4 Targets" being "Smart Consumers", "Golf Retailers", "Golfers" and "Golf Pro's". Under "Golf Retail", it identified "Green Grass & CLUBS", "Dept Stores" and "Car Companies".
3. Under "CONCOURSE Distribution Targets", the TTM Brand Partner presentation identified Drummond Golf as a target under "Specialist Golf Retail" along with "Key Golf Retailers". It also identified other targets such as Rebel, AMART, David Jones, Myer, Farmers, BMW, Mercedes, AUDI and Porsche.
4. In addition to the First June 2016 letter, TTM also sent Concourse a letter dated 28 June 2016 (Second June 2016 letter),[5] which relevantly stated:

Our specialist skill and expertise of infiltrating markets with highly innovative product is a great fit for Concourse.

Whilst this agreement is focussed on the CBM 3W3S [being the Buggy] in Australia, we plan to detail the inclusion of the CBM 2W2S and the NZ launch in the coming months. The work we do this year will provide an important platform for the launch of the Concourse Smart Wheels in 2017.

Minimum volume year one: 6,000 units for the Concourse CBM 3W3S as per the FY17 Sales Commitment Schedule sent 28 June 2016.

Drummond Golf will have effective retail exclusivity for the first year whilst they continue to purchase the full monthly retail production allocation. Whilst we are confident in Drummond's commitment, in the event that the full monthly retail allocation is not purchased - the product will be offered to the other golfing retail channels as set out below:

1. In addition to the Second June 2016 letter, Concourse also produced a document titled, "Sales Commitment FY17" dated 28 June 2016, which was prepared under TTM's name (Sales Commitment FY17).[6]
2. The Sales Commitment FY17 referred to the Buggy and identified the shipment date of the Buggy into Australia and the number of the Buggy to be delivered to TTM's warehouse, Unit 21 94-105 Keys Rd, Moorabbin, Victoria. It also set out the total number of buggies to be dispatched during the next few months starting from November 2016, with the total figure of buggies being 6,000.
3. Mr Morgan's evidence was that the figures stated in the Sales Commitment FY17 were targets that TTM and Concourse wanted to achieve - they were not figures that TTM had committed to and were not part of the terms of the agreement between the parties. Mr Morgan asserted that it was Mr MacKay who had asked Mr Morgan's help to prepare the document, and it was created to support Concourse's application for a trade line facility with its lender. To illustrate, Mr Morgan produced a copy of an email from Mr MacKay to Mr Morgan on 20 June 2016 which he asserted had the Sales Commitment FY17 attached for Mr Morgan's review.[7] In response Mr Morgan sent a reply email to Mr MacKay on the same day stating, "Looks ok David".[8]
4. When asked about the figures in the Sales Commitment FY17, Mr MacKay's evidence was that the figures were those and he and Mr Morgan had discussed and agreed were achievable sales figures.
5. The figure of 6,000 units of the Buggy in the Sales Commitment FY17 was a significant increase from the figure of 4,750 stipulated in the First June 2016 letter. The evidence from Mr MacKay was that both figures were targets that were considered as achievable at the time the respective documents were created. Further, I note that in the First June 2016 letter the expected year 1 sales amount was $1,249,200, whereas in the Second June 2016 letter the minimum year 1 retail revenue was $1,190,000.

1. The parties do not dispute that in around July 2016, TTM produced a document as a means of pitching the Buggy to Drummond Golf (Pitch document).[9] The Pitch document relevantly stated:

Concourse Golf are launching the next generation golf buggy and are looking to work closely with a leading golf group to introduce the product to the market in an exciting format and maximising todays [sic] communication channels.

... We are seeking to support the market entry of the [Buggy] with close store support to capitalise on the demand creation activity undertaken by Concourse Golf throughout the launch phase and beyond.

Charge out price [of the Buggy] $270.00(incl. GST)

... Concourse plans to actively promote the [Buggy] via its website, thru Social media and press optimisation.

... We plan to nominate Drummond Golf in ALL media, PR and Web if we are collaborating.

... We propose in recognition to offer Drummond Golf stores (participating) a sales rebate commission for sales into the relevant DG store territory for the duration of the launch phase.

1. Subsequently, Concourse and TTM gave presentations to Drummond Golf in respect of the Buggy. Whilst Mr Morgan did not participate in the presentations, a member of the TTM team, Mr Brendan Denning, and Mr Mackay gave the presentations.

1. The parties agree that subsequent to the First June 2016 letter, TTM sent invoices to Concourse for the months of June, July and August 2016. Concourse has paid the first two invoices. The invoice for the month of August 2016 was dated 4 September 2016 in the sum of $9,334.50, which Concourse has not paid (outstanding invoice),[10] which amounts to TTM's claim.
2. The only tax invoice I was shown was the outstanding invoice and it relevantly stated:

David [i.e., Mr MacKay] this is a different payment account than the one for payment to CM

1. The "CM" was a reference to Mr Chris Morgan. The direct debit account stated in the outstanding invoice was "TT Marquet".

1. Both parties agree that it was not until early September 2016 that Concourse indicated to TTM that it wished to end the arrangement with TTM. On 6 September 2016, Mr MacKay sent Mr Morgan an email (6 September 2016 email) relevantly stating:[11]

From our recent discussions I wanted to confirm, as of the end of August we are unable [to] continue with the full services of TTM. Also as discussed I would like to be able to continue working with you on a 2 day a month basis paid in shares.

... It is great news that you've been able to make the sale to Mercedes Benz for the 10 units that you mentioned today. Please let me know the detail of this as soon as you are able so we can progress it.'

1. Interestingly, at this stage there was no indication from Mr MacKay that he was in any way disappointed with TTM's services. Indeed, it appears that Mr MacKay was keen on keeping what he stated as the continuing working arrangement that Concourse had with Mr Morgan personally, as opposed to TTM. The email evidences that Mr MacKay clearly distinguished Mr Morgan's services with the services of TTM.
2. Although Mr MacKay was not able to identify when Drummond Golf made the decision not to stock the Buggy in its stores, it seems that by the 6 September 2016 email, Concourse was aware of Drummond Golf's decision. This is because:
   • (a) According to Mr MacKay, the whole premise for engaging TTM was to have Drummond Golf take the Buggy, and the fact that by 6 September 2016 TTM was focusing sales to Mercedes Benz supports the conclusion that Drummond Golf had informed the parties that it would not be taking the Buggy.
   • (b) The Pitch document to Drummond Golf was prepared in July 2016, approximately two months before the email.
3. The evidence before me was that Drummond Golf's decision not to take on the Buggy was not due to any issues with the marketing or packaging of the Buggy, but rather that Drummond Golf did not want the Buggy in its stores. Mr MacKay gave evidence that after the presentations to Drummond Golf, Drummond Golf's response was words to the effect, "We're not even certain that we're even going to stock this product at all, don't put it in our system yet. If we did stock it we would be strongly recommending stores not take more than 1 unit."
4. At the time of the 6 September 2016 email, TTM's last two invoices for the month of July and August were still outstanding.
5. According to Mr Morgan, which was not refuted by Mr Mackay, from 6 September 2016 to 8 September 2016, there were telephone discussions between Mr MacKay and Mr Morgan where Mr Morgan told Mr MacKay that the stocks of the Buggy being stored at TTM's warehouse would not be released until TTM's invoices were paid. There was no evidence led that Mr MacKay raised any issues about TTM's service during those conversations.
6. Rather, on 7 September 2016, Mr MacKay sent Mr Morgan an email (7 September 2016 email), stating:[12]

As discussed today I have been able to pay the July invoice for $4,950 tonight. I apologise for the delay and hope to be able to pay all invoices as a priority from sales in the coming weeks, which is why we need the stock moved quickly.

Irrespective of sales results I will be able to have the other July invoice paid within 2 weeks from other sources.

1. As with the 6 September 2016 email, Mr MacKay did not raise any issues with TTM's service in the 7 September 2016 email and in fact indicated that payment would be made "irrespective of sales results".
2. On 8 September 2016, Mr MacKay sent an email to Mr Morgan (8 September 2016 email) where Mr MacKay stated:[13]

July Invoice TTM7161 $9334.50 Payment will be received by 21/9/16

Aug Invoice 820162 $4950.00 Payment will be made by 14/10/16 or earlier

Aug Invoice TTM8161 $9334.50 Payment will be made by 14/10/16 or earlier

The objective will be to have the shares issued after the share split before Christmas 2016.

1. Interestingly, the 8 September 2016 email identifies three invoices - two for the month of August. In the email, one of the invoices for August is identified with a "TTM" prefix (TTM invoice) whereas the other one simply has numbers (other invoice). The amount of the TTM invoice is the same as the amount stated for the July invoice, which has the same prefix. That amount seems to accord with the fee structure stipulated in the First June 2016 letter. The amount of the other invoice is significantly less than for the other two invoices.
2. As with the 6 September 2016 and 7 September 2016 emails, Mr MacKay did not raise any issues with TTM's service in his 8 September email, and continued to pursue an arrangement whereby Mr Morgan, as opposed to TTM, could continue to provide assistance to Concourse, as evidenced by the statement about the share issue.
3. Subsequent to the 8 September 2016 email, Concourse paid the invoice for the month of July 2016 on or about 21 September 2016. Upon payment, the stock of the Buggy held in TTM's warehouse was released to Concourse, with the outstanding invoice being the only invoice unpaid.
4. Mr MacKay's evidence was that he did not raise any issues about TTM throughout this time because he was seeking to get the stock back. This is despite his indication of wanting a continuing relationship with Mr Morgan in his 6 September 2016 and 8 September 2016 emails. I do not consider Mr MacKay's assertion as credible.
5. Over a month after the 8 September 2016 email, on 13 October 2016, Mr MacKay sent an email to Mr Morgan (13 October 2016 email) relevantly stating:[14]

I would like to get some confirmation of some of the key outcomes that TTM has put in place.

Firstly regarding the Mercedes Benz dealership that you have agreed price and volume of 8 units per month with. The wholesale price that we have set for the [Buggy] is $337.50 however as discussed I understand that you have agreed a price with them of $270. ... Can you please provide me a forward order for this agreement and the details of the dealership to enable us to best service them.

Regarding the Kicking Tee and your discussions with Rebel. I am keen to secure this outcome. ... You said that they will take the existing 3000 units we have in stock and were likely to need another 2000 for next year. I am happy to sell these under the same arrangement. Can you please send me a purchase order for the 3000 units?

1. Despite the substance of the 13 October 2016 email, both parties agree that no sales of the Buggy eventuated.
2. On 19 October 2016, Mr Morgan sent an email to Mr MacKay stating "Can you update me please on the overdue payments. I am relying on these amounts as promised."[15]
3. On the same day, Mr MacKay responded by email, "I am also waiting on confirmation of the key outcomes from my previous email to enable payment."[16] The outcomes that Mr MacKay was referring to were those in respect of Mercedes Benz, Kicking Tee and Rebel, as outlined in his 13 October 2016 email. As with previous emails, Mr MacKay made no mention of the failure of TTM to secure Drummond Golf.
4. I now turn to the issues for determination.

Was the alleged misrepresentation to Concourse made by TTM?

1. Although Concourse put its misrepresentation case as a further or alternative case to its breach of contract allegation, given the chronology of events, it is appropriate that I deal with this allegation first.
2. Essentially, Concourse alleges that it was induced to enter into the contract with TTM in February 2016, which was varied in June 2016, because Mr Morgan had represented to Mr Mackay during the January 2016 meeting that he was a director of Drummond Golf and that the Buggy was absolutely what Drummond Golf was looking to sell at its stores. Concourse argues that was a representation that Drummond Golf would take the Buggy.
3. Further, Mr MacKay's evidence was that that representation by Mr Morgan was believable because Mr Morgan had portrayed himself as (as he was) a director of Drummond Golf, and Mr Morgan's position as director was the "key reason" that Concourse engaged TTM.
4. The first issue to consider is whether, if Mr Morgan did say those words to Mr MacKay, he said them on behalf of TTM.
5. If one is to accept Mr MacKay's evidence about what Mr Morgan was to have said, I am satisfied that Mr Morgan had said those words on his own behalf and not on behalf of TTM.
6. Despite Concourse's position that the legal relationship was always between TTM and Concourse, I do not agree. Rather, what I have found from the evidence is that any alleged representation made by Mr Morgan was made by him personally, and subsequently, Mr Morgan and Concourse entered into an agreement in February 2016 for Mr Morgan to assist Concourse in respect of the Buggy. The relationship then expanded in June 2016 such that Concourse also entered into an agreement with Mr Morgan's company, TTM, for it to assist Concourse in respect of the Buggy as well.
7. The following evidence support my findings:
   • (a) The substance of the pre-contract discussions between Mr Morgan and Mr MacKay in late 2015 and January 2016 demonstrate that Mr Morgan was negotiating with Mr MacKay terms in which he would personally assist Concourse.

Indeed, Mr MacKay emphasised the fact that what was attractive to him was Mr Morgan's statement that he was a director of Drummond Golf and the Buggy was "absolutely what Drummond Golf was looking for". Concourse did not present any evidence that this alleged statement from Mr Morgan had been made by Mr Morgan on behalf of TTM. Further, Mr MacKay asserted that if Mr Morgan had not made the alleged pre-contract representation, "there was no way" that he would have "engaged Mr Morgan" and would have "expanded the arrangement".

Given this, Concourse appears to be saying that, as Mr Morgan was also a director of TTM at the time of the representation, Mr Morgan's statement ought to be taken as coming from TTM. I am not persuaded by such argument. Based on that rationale a person who wears multiple hats and occupies directorships in various companies would be making representation on behalf of anyone of those companies at any give time.

(b) The substance of the email correspondence between Mr Morgan and Mr Mackay in February 2016 evidence that the February 2016 agreement was between Mr Morgan and Concourse. For example, the emails discussed payment arrangements for Mr Morgan's services. The arrangement consisted of Concourse providing Mr Morgan with shares in Concourse (as part of a sweat equity arrangement), which was also referred to by Mr MacKay in his 6 September 2016 and 8 September 2016 emails to Mr Morgan. This arrangement between Mr Morgan and Concourse was separate to the arrangement between Concourse and TTM, as acknowledged by Mr MacKay in his 6 September 2016 email.

Further, despite Mr Morgan signing off in his 18 February 2016 email as the "Principle [sic]" of TTM, I am not satisfied that the mere sign off means that the agreement was between TTM and Concourse. In any event, the email was sent well after Mr Morgan had made the alleged pre-contract representation in respect of the Buggy and Drummond Golf.

(c) It was not until the First June 2016 letter that TTM set out the terms of its engagement with Concourse. The letter provided the scope of TTM's proposed involvement and the specific fee structure for TTM. There was no reference in the letter to any prior agreement or that the terms were a variation of an existing agreement. The substance of the letter is contrary to Concourse's assertion that the agreement in February 2016 was with TTM.

(d) The TTM Brand Partner presentation, which was provided to Concourse with the First June 2016 letter, set out the marketing strategy TTM proposed in respect of the Buggy and identified various members of the TTM team. No evidence was given by Mr MacKay that the structure and operation of TTM were discussed in any detail prior to June 2016. Rather, discussions pre-June 2016 focused on Mr Morgan's personal experience and his position in Drummond Golf.

(e) Mr MacKay gave evidence that Mr Morgan was paid for all of the meetings they had from January, February, March, April, May, June and July 2016. Despite this, Concourse did not present any documentary evidence that the work undertaken prior to June 2016 was that of TTM. Rather, the evidence is to the contrary.

(f) Consistent with my finding that the February 2016 agreement was between Mr Morgan and Concourse, the outstanding invoice distinguished the payment details of TTM and previous payment details that related to Mr Morgan personally.

This is exemplified by the directive to Mr Mackay contained in the outstanding invoice that the payment details for the invoice were different to those for "CM", being Chris Morgan. That is, the tax invoice appears to evidence that Concourse had previously made payments to an account designated for Mr Morgan rather than for TTM.

Similarly, the 8 September 2016 email identified two invoices for August 2016 - the TTM invoice, which stated an amount that was consistent with the fee structure contained in the First June 2016 letter, and the other invoice, which had an amount that was not and which was not identified as a "TTM" invoice.

1. Even if I am wrong in finding that Mr Morgan, instead of TTM, made any alleged representation, I am not satisfied that Mr Morgan's words amounted to any misrepresentation. Mr Morgan's words, if they were said, were not a representation that Drummond Golf would take the Buggy. They do not convey that meaning. As mentioned above, Mr MacKay conceded that at no time had Mr Morgan expressly said to him that Drummond Golf would take the Buggy.
2. Rather, Mr MacKay's evidence was that subsequent conversations with Mr Morgan were "to get everything right to target Drummond Golf". The operative words are "to target", which convey something that is a goal rather than a certainty or guarantee.
3. Further, Mr MacKay's evidence that Mr Morgan had told him that he had spoken to the Chief Executive Officer and other directors of Drummond Golf and "they were really excited about the proposition of having Concourse products into Drummond Golf and selling them through", did not amount to a representation that Drummond Golf would take the Buggy. According to Mr MacKay, it was a "proposition" that Drummond Golf was excitedly considering. The fact is, Drummond Golf did consider the Buggy and chose not to take stock of it.
4. Considering Mr MacKay's evidence, the words that Concourse alleges Mr Morgan said appear to be, in essence, sales pitches given by someone wanting to get a customer's business. At best, they amount to puffery in respect of what the representor considered as being the likely, but not certain, outcome.
5. If I am wrong on this point and TTM misrepresented to Concourse as Concourse alleges, I would have dismissed Concourse's misrepresentation defence on the basis that Concourse did not rely on the alleged misrepresentation.
6. On one hand Concourse asserts that TTM had represented that Drummond Golf would take the Buggy. On the other, Mr MacKay's evidence demonstrated that throughout TTM's engagement, both TTM and Concourse where trying to have the Buggy presented in a way that would be acceptable to Drummond Golf. It is clear that Concourse understood that Drummond Golf's acceptance of the Buggy was not mere formality. A prime example of this is the Pitch document.
7. What is striking about the Pitch document is that it is a proposal to Drummond Golf for it to collaborate with Concourse. It is neither a heads of agreement nor a contract. It is clear from the language of the document, such as, "[we] are looking to work closely", "[w]e plan to nominate", "if we are collaborating", and "[w]e propose", that the document does not convey any certainty that Drummond would take up the Buggy - in fact, the contrary is the case.

Did TTM have a contractual obligation to sell the Buggy to Drummond Golf or to sell 6,000 units (or a substantial amount) of the Buggy?

1. TTM asserts that the terms of its contract with Concourse were set out in the First June 2016 letter. TTM asserts that under the contract it was required to promote, market and store the Buggy, but it was not a term of the contract that TTM had to ensure that the Buggy would be taken up by Drummond Golf or that any sale of the Buggy would be achieved.
2. Concourse asserts that TTM had contractually promised that Drummond Golf would have the Buggy into its stores for sale to the public, and that there was a further term of the contract that TTM would sell 6,000 units or at least a substantial amount of the Buggy, whether or not this was via Drummond Golf or by other means. Concourse submits that both terms were essential terms of the contract.
3. Concourse primarily relies on the contents of the Second June 2017 letter and the Sales Commitment FY2017 (collectively "June 2016 documents") to assert the existence of the alleged essential terms.
4. I am unable to agree with Concourse that the terms of the contract between TTM and Concourse included the two alleged essential terms. In reading the contents of the June 2016 documents as well as the First June 2016 letter, I find that no such terms were contained in the contract.
5. In respect of the alleged term that Drummond Golf would have the Buggy in its stores, the evidence does not support this proposition. This is because:
   • (a) The First June 2016 letter, which sets out the proposed role of TTM, makes no express reference that TTM had to ensure that Drummond Golf took the Buggy. In fact there was no specific mention of Drummond Golf at all. Rather, the reference was to "the market" in "Australia/NZ".
   • (b) The Brand Partner presentation identified Drummond Golf as but one of many other retailers and distribution targets for the Buggy. A mere reference to Drummond Golf being a target, even if the primary target, cannot amount to an express term that TTM had to ensure that Drummond Golf would accept the Buggy. It is clear that the document merely identified the retailers to target.
   • (c) Similarly, whilst the Second June 2016 letter refers to Drummond Golf, there are a number of other retailers identified in the document. Further, the statement, "Drummond Golf will have effectively retail exclusivity for the first year" in the Second June 2016 letter must be read with the rest of the document, such as, "Whilst we are confident in Drummond's commitment, in the event that the full monthly retail allocation is not purchased...".

The parties were aware that it was one thing to offer Drummond Golf "retail exclusivity", it was quite another for Drummond Golf to accept that offer. At best, words of the Second June 2016 letter demonstrate that there was an erroneous aspiration or expectation from TTM that Drummond Golf would take the Buggy. But that is a separate issue to whether such words amounted to a contractual promise by TTM.

(d) The substance of the Pitch document is consistent with the conclusion that even after June 2016, TTM and Concourse were working on the premise that there was no guarantee that Drummond Golf would accept the Buggy.

(e) Mr Mackay conceded that at no time had Mr Morgan expressly said to him that Drummond Golf would take the Buggy. Therefore, one cannot even deem that the alleged essential term was oral and neither can it be said that such a term was implied.[17]

1. In respect of Concourse's allegation that the contract included an essential term that TTM would sell 6,000 units or at least a substantial amount of the Buggy, I find that there was no such term. This is because:
   • (a) Based on Mr MacKay's evidence, the 6,000 units of the Buggy identified in the Second June 2016 letter and the Sales Commitment FY17 were targets that both parties were aiming to achieve but were not a figure set in stone.
   • (b) The first mention of a unit amount was in the First June 2016 letter. In that letter, the figure of 4,750 units of sale "to achieve" was mentioned. Further, the First June 2016 letter stated, "It is planned to reassess and reforecast sales after the first period sales campaign. (Launch to December 31 2016)."
   • (c) Consistent with the wording in the First June 2016 letter, Mr MacKay's evidence was that the figure of 4,750 units did not mean that TTM had to sell 4,750 units of the Buggy. Rather, that figure and the revised figure of 6,000 units contained in the Second June 2016 letter were targets that both he and Mr Morgan considered were achievable, and ones that were subject to review and reassessment. Indeed, when I enquired, Mr MacKay conceded that the targets were ones that might need to be changed subject to what the situation was moving forward.
   • (d) Despite the use of the word "commitment" in the header of the Sales Commitment FY17, the figure of 6,000 units was not a fixed commitment by TMM. To argue that the use of the word "commitment" was in reference to TTM's contractual obligations is one interpretation. However, that interpretation is inconsistent with the evidence presented by Mr MacKay and the documentary evidence as I have discussed.

For example, a comparison of the First June 2016 letter and the Second June 2016 letter demonstrates that the amounts and figures contained in the two letters were not ones that TTM had to contractually achieve. The first year target revenue amount of $1,249,200 stated in the First June 2016 letter changed to $1,190,000 in the Second June 2016 letter. Likewise, the unit figure of 4,750 in the First June 2016 letter subsequently changed to 6,500 units in the Second June 2016 letter.

(e) Concourse's assertion that the contract contained a term promising sales to Drummond Golf is somewhat confusing and inconsistent with its assertion of a term that there be 6,000 units of sale or a substantial amount. In this regard Concourse's position changed slightly from the start of the hearing to the end.

At the start, the position, as I understood, was that there was a term that required all the sales to go to Drummond Golf. By the end, the argument was that there was a term that required TTM to sell 6,000 units or a substantial amount, whether or not they went to Drummond Golf. I was neither told what that substantial amount was nor was I provided with an explanation of how that could be reconciled with a purported term that Drummond Golf had to take the Buggy.

Further, the assertion that a term of the contract was that 6,000 units would be sold or a substantial amount appears to be a paradoxical argument, as if the figure of 6,000 units was a fixed commitment, I fail to see how there could be an alternative requirement that a substantial amount be sold. Accordingly, even on Concourse's submissions there is uncertainty as to the exact term and how it would operate such that the argument is without merit.

1. For the reasons set out above, I have found for TTM. TTM did provide services to Concourse, albeit not to the satisfaction of Concourse, which it ought to be paid for.
2. Given that TTM has succeeded in its claim, I have exercised my discretion under section 115B of the Victorian Civil and Administrative Tribunal Act 1998 and have ordered that Concourse reimburse TTM the application fee of $292.70.

[1] Exhibit R3 of the Respondent's documents.

[3] Exhibit C1 of the Application's documents and R4 of the Respondent's documents.

[4] Exhibit R4 of the Respondent's documents.

[5] Exhibit R6 of the Respondent's documents.

[6] Exhibit R5 of the Respondent's documents.

[7] Exhibit C6 of the Applicant's documents.

[9] Exhibit R2 of the Respondent's documents.

[10] Exhibit C2 of the Applicant's documents.

[11] Exhibit C3 of the Applicant's documents.

[12] Exhibit C5 of the Applicant's documents.

[14] Exhibit R7 of the Respondent's documents.

[17] Whilst Concourse did not submit that the term was implied, even if it had, I would have found that it would not have satisfied the test under BP Refinery (Westernport) Pty Ltd v Hastings Shire (1977) 180 CLR 266, 283.