and:
'All databases and screens have been designed - functionality is to be tested. Implement/integrate with Delphi programming converted to SQL."
69 Cross-examination of Mr McNamara about the meeting was as follows:
"Q. Now, I suggest to you that, in the course of the conversation, Mr Zimmer said words to the effect, 'How will the completion of SQL be fast-tracked'?
A. I can't remember the exact words or expressions like 'fast-tracked'. SQL came up very late in the meeting. My recollection is that it certainly didn't have the importance of the previous items but, I'm sorry, I can't remember 'fast-tracked'.
Q. Well, it was important enough to be raised at the meeting though?
A. I can't answer how Manfred felt. It was important, yes. It was raised at the meeting.
Q. I suggest to you that a person called Kevin was nominated as being the person who would be in charge of the project?
A. Yes, that sounds consistent.
Q. And Mr Zimmer then went on and said words to the effect, 'According to the original schedule the project was to take eight weeks. You have done some work already. Can I be guaranteed that it will be completed in eight weeks'; do you remember words to that effect being spoken?
A. I'm sorry, I can't remember the word 'guarantee'. I can't remember a similar emphasis.
Q. Well, I'll break it down Was there anything mentioned about the original schedule?
A. There may have been. Sorry, I can't remember.
Q. Well, when you look at your notes, obviously if you look at page 1 of your notes?
A. Yes.
Q. It would suggest at about halfway through the meeting the subject of SQL was discussed?
A. No, that is incorrect.
Q. Well --
A. Towards the end of the meeting.
Q. You have two pages of document and I apologise if I am jumping too quickly but, as I understood, these were tendered on the basis these were the notes taken at the meeting?
A. Not too quickly, just the wrong conclusion. The second page, reference to a meeting later that day with BMC, Bettina Murray, a potential client.
HIS HONOUR: Q. That is a different meeting, the second page?
A. That's correct, your Honour.
RUNDLE: I'm sorry, I didn't hear that.
HIS HONOUR: The second page is a different meeting.
RUNDLE: Q. Are you suggesting it has anything to do with this case?
A. Absolutely not. I just wanted to be thorough and copy both sides of the sheet of people [scil. paper] from my day book to indicate where the notes for the meeting started and finished.
Q. Well, putting that aside, obviously, at some stage, I take it it was the end of the meeting, that words were uttered that the SQL conversion was behind schedule, or had not been completed?
A. Yes, words to that effect, which I have noted here, yes.
Q. And that some work had already been undertaken?
A. Correct.
Q. And I suggest to you that the next step was, 'Well, when can it be completed', in other words, to be completed in eight weeks?
A. That is where, I'm afraid, my memory and my notes are blank.
Q. I take it that Richard Steyn agreed with the proposition that it could be completed within eight weeks?
A. I don't remember that. If you are suggesting that a firm date was agreed, I am sure I would have recorded that in notes.
Q. Well, did you hear words being uttered by Mr Zimmer to the effect that he would like a commitment that the conversion will be completed by mid-June?
A. I'm sorry, I can't remember 'mid-June', but it is certainly fair to say that the tone of those words are consistent with my recollection, yes.
Q. And he further went on, 'Do you all agree that it can be done and that you will complete it by then'?
A. No, I don't - I don't think it was as succinct as that.
Q. Well, you agree with the first part, but not the second part?
A. Sorry, do you mind repeating what you were saying?
Q. 'I would like a commitment that the conversion will be completed by mid-June?'
A. No, I expressly said I don't remember the phrase 'mid-June'. The tone is consistent with what I remember Manfred's manner to be at the meeting so, looking --
HIS HONOUR: Q. Looking for some commitment?
A. Looking for some commitment, yes.
RUNDLE: Q. Do you have any recollection of some commitment being given?
A. Yes, a commitment to try, a commitment to garner resources, a sincere sense of, yes, 'Look, Richard is back from overseas. We can now move ahead', but this was more the earlier part of the meeting, the internet projects. The projects that we discussed in the in the early part were the ones that were causing him a concern."
70 After August 1999, the first defendant was engaged in three related tasks for the plaintiff. The first was the ongoing maintenance of the existing Paradox system. That was a task of continuing attention to problems as they developed. The second was the development and refinement of the system allowing customers to communicate with the plaintiff via the Internet to lodge requests for access to certain documents and otherwise to manage their relationships with the plaintiff. The third was the conversion of the Paradox system to the SQL system. Priorities among these tasks were the subject of evidence and submissions. The defendants put store by Mr Steyn's letter to Mr Zimmer dated 22 April 1999 in which Mr Steyn said that the SQL conversion "should not occur until after the Internet project had been completed". When taken to this in the witness box, Mr Zimmer pointed to the word "should" and distinguished it from "must". He also said that he did not understand there to be a need to complete the Internet project first. It was Mr Steyn's position that the priority referred to in the 22 April 1999 letter prevailed at all times and that his continuing dealings with Mr Zimmer were always on that basis.
71 In order to make good its claims that the first defendant committed contractually to one of several alternative completion dates for the SQL conversion, the plaintiff points, in succession, to a conversation between Mr Zimmer and Mr Steyn in late October 1999, Mr Steyn's letter of 2 November 1999 to Mr Zimmer, the 23 page proposal document of February 2000 and the conversation at the meeting on 17 April 2000. It is necessary to look at these in turn.
72 The plaintiff says that a contractual commitment to a completion date for the SQL conversion was first accepted in the late October 1999 conversation between Mr Zimmer and Mr Steyn. Mr Zimmer's version of the conversation as related in his affidavit is as follows:
"In late October 1999 in the Plaintiff's offices, Richard Steyn and I had a conversation to the following effect:
I: 'I agree to what you have outlined. Important however is that you, or to be more specific Liquid Vision will complete as per your time table. My business is suffering and I need to see an end to all the problems we are experiencing now. It is causing stress to everyone involved.'
He: 'I understand and that is why I gave you a list of phases.'
I: 'That list says 10 weeks from start to completion. Is that a she'll be right list, or some thing I can rely on? What I am asking you is, will that be a definite time table?'
He: 'Definite'.
I: 'And you won't let me down!'
He: No and I started to dome preliminary work already. Basically we can start full time on 17 November 1999.'
I: 'That means we will be running on SQL end of February first week March.'
He: 'Yes, but you will have to add two weeks for fixing bugs you might find. That's normal and wont stop you running on SQL.'
I: 'In other words come hail or rain we are running on SQL mid March?'
He: 'Yes'. "
73 Mr Steyn denies that the conversation was in these terms. His affidavit relates a conversation to the following effect:
"I said:
'I estimate that the MS-SQL project will take about 10 weeks of fulltime involvement.'
He said:
'While the paradox table problems are annoying, it is not threatening to my business. As long as you are progressing the MS-SQL Project and keeping me updated I will be satisfied.'
I said:
'Resources could be used on the basis of approximately two full time days per week - meaning that the project could take around 6 months to complete. Rather than having a formal timetable, work would be done when it could be and not according to dates for specified milestones. Liquid Vision would invoice you on a weekly basis.'
He said:
'I am happy with that.' "
74 Mr Steyn further says that he sent Mr Zimmer a letter outlining this general approach. This is the letter of 2 November 1999 the material part of which has already been set out (paragraph 9 above). I pass to the content of that letter, since I consider it relevant to the claim based on the conversation of late October 1999.
75 It is immediately clear, in my judgment, that the letter of 2 November 1999 was not the source of any contractual promise as to the time of completion of any part of the work. There was reference to items to be resolved "before we can start", thus indicating that a start date was uncertain. It was later said that the content of stages would be "decided by Liquid Vision and UDSC as we work through the analysis phase" - in other words, the scope of works was not settled and was to be the subject of further discussion and decision by the parties. There was then a list of phases with a time for each indicated but, with start time and exact work content uncertain, there is no basis on which the time periods against the several phases (an aggregate of about nine weeks) can be said to lead to any conclusion as to the deadline for completion of the work. The final paragraph spoke of payment at the rate of $500 per day per person with a minimum of two days per week - in all, $1,000 per week, assuming that one person was to work on the project. At that rate, the cost of $20,000 to $30,000 would have indicated a possible duration of 20 to 30 weeks. In summary, the letter provides no basis for a finding that the first defendant promised to complete, as pleaded, "by about mid-March 2000, or alternatively by a date before mid-March 2000".
76 This assessment of the letter of 2 November 1999 is sufficient to justify a conclusion that, on the balance of probabilities, the conversation of late October 1999 was as Mr Steyn related it rather than as Mr Zimmer related it. The letter of 2 November 1999 simply would not have been written by someone who had said, as alleged by Mr Zimmer, "Come hail or rain we are running on SQL mid March". The letter's reference immediately to "Issues to resolve before we can start" is entirely at odds with any such certainty. Someone who had given a firm contractual commitment to a finish date would not have written a letter as inconclusive and qualified as that of 2 November 1999.
77 The next source of contractual promise as to completion date asserted by the plaintiff is the formal and detailed proposal document of February 2000. I have already referred to the nature and content of that document, including the outline of tasks or phases and their interrelated timings for a period 7 February 2000 to 20 March 2000. It was Mr Steyn's evidence, and I accept, that the time line in the 6 February 2000 document was a more detailed version of the time scale outlined in the 2 November 1999 letter. As I have already noted (at paragraph 13 of these reasons), the indicated timing reflected in the 6 February 2000 document was on the apparent basis of full time work by one person over seven weeks, with the dates 7 February 2000 to 20 March 2000 appended. This entailed roughly the same overall quantity of work as would have been done by one person working two days a week for 20 weeks, being the pattern apparently envisaged by the 2 November 1999 letter. Again, however, there was no contractual promise as to timing by the first defendant any more than there was, on the plaintiff's part, any contractual commitment to take and pay for services at the rate involved in full time work by one person.
78 The fourth possibility to be examined is that the first defendant made, through its officers, a contractual promise as to completion date of the SQL conversion at the meeting of 17 April 2000. I have already referred to Mr Zimmer's "agenda" document prepared in advance of that meeting and to the items in it. There can be no doubt, in my view, that the whole of the first page - encompassing the headings "Internet error elimination" and "Fast tracking" are about the Internet project. I do not accept Mr Zimmer's evidence that "Fast tracking" referred to the SQL conversion. This is because there appears in the agenda document, after "Fast tracking", an item labelled "Suggestion for item (b)" which obviously relates back to one of the points (a) to (e) concerning "Internet error elimination" since there is no other "(b)". The reference back to "item (b)" after "Fast tracking" can only mean that the subject with which "Fast tracking" was concerned was the subject that included "item (b)", that is, "Internet error elimination". I accept Mr Steyn's evidence that, as regards the content of the "Agenda" document, only the part on the second page specifically marked "SQL Conversion" was concerned with the SQL conversion work. I consider that Mr Zimmer's evidence was distorted by an incorrect recollection or reconstruction as to the meaning and significance of the "Fast tracking" reference.
79 This factor of unreliability carries over, in my view, into the remainder of Mr Zimmer's evidence of what happened at the meeting. His affidavit said that he asked (referring to the SQL conversion), "Can I be guaranteed that it will be finished in 8 weeks", that Mr Steyn said, "Yes", and that there was "a general nodding of heads" indicating "Yes". Mr Steyn denies that he gave any such agreement, saying that he could not have done so as he had just come back from the United States (the meeting was on a Monday - he had returned at the weekend), from which I infer that he had not fully caught up with the state of things, by discussion with colleagues, in a way that would have enabled him to give a commitment. Added to this is the nature of some of the items against the "SQL Conversion" in Mr Zimmer's agenda. These indicate that it was not clear in Mr Zimmer's mind, before the meeting, what SQL conversion actually entailed and whether the work had priority or was "fill in". Such a state of mind would have been inconsistent with a belief that a contractually binding completion date was in place before the meeting. The long series of questions in the agenda showed a desire for understanding on Mr Zimmer's part. Indeed, Mr Steyn's affidavit says that Mr Zimmer took the opportunity to clarify his understanding of the existing scope of the MS-SQL project "and to indicate that there were extra items that he would like to add to the project" - something that did not surprise Mr Steyn in the light of Mr Zimmer's email of 3 April 2000, being the email in which, referring to rewriting in SQL, Mr Zimmer said, "we have not even discussed the proposal!"; and concluded, "We obviously need to talk". Not unnaturally, it seems to me, Mr Steyn viewed the 17 April 2000 meeting as such a "talk". I accept Mr Steyn's evidence that, so far as timings for SQL conversion were concerned, there was no more than an indication of "time frames" within the context of other priorities. Mr Steyn accepted that Mr Zimmer may have asked for a guarantee as to time but that he gave none. I consider that answer to be consistent with the uncertainties that surrounded the SQL project at that time.
80 Mr McNamara's evidence about the 17 April 2000 meeting was generally consistent with Mr Steyn's but with the added feature of certainty that Mr Zimmer did ask when the SQL conversion would be "ready" which I accept means, in the context, completed. This was reflected in Mr McNamara's notes taken at the time. Significantly, Mr McNamara's following note refers to design of certain components having been completed and certain plans for testing and other matters but says nothing about a date or period. If a completion date had been promised, it would have been logical for Mr McNamara's note against the question of when the SQL conversion would be "ready" to have referred to what was said by way of promise. This, coupled with Mr McNamara's evidence that no commitment was given as to timing, bears out Mr Steyn's version of relevant events rather than Mr Zimmer's.
81 My finding is that the first defendant did not, by words spoken by its officers or agents at the meeting of 17 April 2000, make a contractual promise as to the time by which the SQL conversion would be completed.
82 Returning to the aspects of the statement of claim alleging contractual promises as to completion of the SQL conversion and having regard to my findings regarding the conversation in late October 1999, the 2 November 1999 letter, the 6 February 2000 proposal document and the 17 April 2000 meeting, I conclude that the plaintiff has failed to discharge its onus of showing that the contract between the plaintiff and the first defendant for the performance of services included either of the terms pleaded as to the time for completion of those services, being the terms referred to in sub-paragraphs (b) and (c) of paragraph 4 of these reasons.
83 I turn next to the plaintiff's case against the first defendant based on the Trade Practices Act and the Fair Trading Act. The substance of that case centres mainly upon the alleged representations of the first defendant already noticed, being those in the conversation of late October 1999, the letter of 2 November 1999, the proposal document of 6 February 2000 and the meeting of 17 April 2000. There is also reliance upon a number of subsequent alleged representations consisting of requests by Mr Zimmer for indications as to when the SQL conversion would be completed and replies by Mr Steyn.
84 As to certain components, the findings already made dispose of the Trade Practices Act and Fair Trading Act claims, both against the first defendant directly and by way of accessorial responsibility on the part of the individual defendants. According to those findings, the representations referred to in paragraphs 11(a) to 11(d) of the statement of claim were not made as alleged. I proceed therefore to consider the other alleged representations, being those in paragraphs 11(e) to 11(l).
85 Paragraph 11(e) of the statement of claim pleads a representation in the week commencing 27 November 2000 that the SQL conversion would take place on or about 2 December 2000. The representation is said to have been made by Mr Steyn in a conversation with Mr Zimmer. According to Mr Zimmer's affidavit, he:
"… had a conversation with Richard Steyn to the following effect:
He: 'We will be doing the conversion this Saturday.' "
86 Mr Steyn denies having had this conversation with Mr Zimmer. He said in his affidavit that, at the time in question, he had recently become aware that the plaintiff had leased a new warehouse, as a result of which it had become necessary to undertake a "complicated process" of changing the Paradox system to include the new premises. He also deposed to having told Mr Zimmer in November 2000 that this would place restrictions on his ability to spend time on the SQL conversion, added to which it would be inappropriate to effect the conversion while the move to the new warehouse was occurring. Furthermore, the email of 29 November 2000 quoted at paragraph 24 above, sent by Mr Steyn only two days after the conversation related by Mr Zimmer as having been the source of the representation said to have been made by Mr Steyn on 27 November 2001, is inconsistent with any such representation having been made. These factors, coupled with my earlier observations as to why the evidence of Mr Steyn is to be preferred in relation to other matters where there is a conflict between Mr Zimmer's account and Mr Steyn's, cause me to prefer Mr Steyn's evidence here also, with the result that I find that the representation alleged in paragraph 11(e) of the statement of claim was not made.
87 Paragraph 11(f) of the statement of claim relies on representations in the email of 29 November 2001 quoted at paragraph 23 above to which reference has just been made. This email conveyed, in my judgment, no more than an expression of hope or aim, without any connotation of firm expectation or assurance - an expression, moreover, that was highly conditional, introduced, as it was, by the words "I think that if …". It is not of the character sought to be attributed to it by paragraph 11(f) of the statement of claim.
88 Paragraph 11(g) of the statement of claim alleges a representation by email of 10 January 2001 from Mr Steyn that the SQL conversion would commence the following week. The email is quoted at paragraph 26 above. The words used simply do not support the claim. The references to starting "the planning of the MSSQL switch over" and to "full focus on getting this done during the two weeks from next Monday" do not amount to the representation pleaded.
89 Paragraph 11(h) pleads a representation that the SQL conversion would be completed in the very near future, once the quarterlies were finished and the monthlies were compared. This is said to have been conveyed by the email of 9 April 2001 quoted at paragraph 40 above. The representation pleaded does not emerge from that email. In particular, there was nothing suggesting "the very near future".
90 Paragraph 11(i) pleads a representation that the SQL conversion would probably be completed by about 30 April 2001. This is said to come from the email of 20 April 2001 quoted at paragraph 44 above. Again, the representation pleaded is not conveyed by the email which merely speaks about the "chances that it will be ready" by a particular day "are high".
91 Paragraph 11(j) pleads a representation that the SQL conversion would take place at the end of the week in which 28 May 2001 occurred. It is said to have been conveyed by an email of that date. The email is quoted at paragraph 50 above. It did not convey the representation pleaded. Mr Steyn referred to an expectation of conversion at the end of the week, having earlier said, "… I cannot commit to a date".
92 Paragraph 11(k) of the statement of claim pleads a representation on 24 July 2001 that the first defendant was ready to transfer across to the SQL system. The representation is said to be conveyed by an email of that date, being the email referred to at paragraph 53 above. That email did contain the representation pleaded, the explicit statement being:
"We're ready to do the transfer across to the SQL system."