Waller Projects Pty Ltd v F.W. Estate Pty Ltd [2025] QSC 16

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS - where there is contested evidence as to the formation of an oral agreement - where the witnesses' recollections of the conversation allegedly giving rise to the agreement substantially varied - whether an oral agreement was formed between the parties

EQUITY - GENERAL PRINCIPLES - FIDUCIARY OBLIGATIONS - GENERALLY - where, if an oral agreement was not reached, there is a dispute as to whether Waller and Dowling Yeppoon, by Mr Quinn and Mr Dowling respectively, held a mutual confidence that, where a potential project or opportunity became known to either party that the party considered suitable to acquire and to develop jointly, that party could refer the opportunity to the other party, and any activities carried out by the parties in respect of such a project or opportunity would be carried out for their joint advantage only - whether the alleged mutual confidences give rise to the fiduciary obligations

EQUITY - GENERAL PRINCIPLES - FRAUDULENT AND INNOCENT MISREPRESENTATION - GENERALLY - where a dispute arose as to various non-disclosures and misrepresentations -- whether, if those non-disclosures were found to have been made, they gave rise to a right to rescind the alleged agreement

EQUITY - GENERAL PRINCIPLES - EQUITABLE DEFENCES - where there was an extended period of delay and inaction by the plaintiffs in circumstances where they knew the defendants were expending considerable time and effort to develop land - whether the delay, coupled with the plaintiffs' conduct during that period, rendered it such that it would be unjust to grant the declaratory relief or award and account or equitable compensation

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, cited

B.M. Auto Sales Pty Ltd v Budget Rent A Car System Pty Ltd (1976) 51 ALJR 254, cited

Baburin v Baburin (No 2) [1991] 2 Qd R 240, cited

Birtchnell v Equity Trustees, Executors and Agency Co Ltd [1929] HCA 24; (1929) 42 CLR 384, cited

Bourseguin v Stannard Brothers Holdings Pty Ltd [1990] QSC 273, cited

Bourseguin v Stannard Brothers Holdings Pty Ltd [1994] 1 Qd R 231, cited

Beckford v Wade (1805) 17 Ves 87, cited

Blue Mirror Pty Ltd v Tan & Tan Australia (in liq) [2024] NSWCA 253, cited

Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253, cited

Coomber v Coomber [1911] UKLawRpCh 45; [1911] 1 Ch 723, cited

Edmonds v Donovan [2005] VSCA 27; (2005) 12 VR 513, cited

Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218, cited

Fysh v Page [1956] HCA 13; (1956) 96 CLR 233, cited

Gibson Motorsport Merchandise Pty Ltd v Forbes [2006] FCAFC 44; (2006) 149 FCR 569, cited

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John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1, cited

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Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, cited

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Mills v Haywood [1877] UKLawRpCh 221; (1877) 6 Ch D 196, cited

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Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17; (2011) 278 ALR 291, cited

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United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1984-1985) 157 CLR 1, cited

D L K Atkinson KC with K E Stoyle for the plaintiff and defendants by counterclaim

M S Stewart KC with D C Clarry for the defendants and plaintiffs by counterclaim

Robinson Neilsen Legal for the plaintiff and defendants by counterclaim

AJ & Co for the defendants and plaintiffs by counterclaim

• [1] This is a trial of separate questions. At a high level, the litigation involves disputes between the Quinn and Dowling families, including their various family companies. On 9 December 2015, the first defendant ("FW Estate"), a Dowling family company, became the registered proprietor of, and thereafter developed, a parcel of land at Jimboomba ("the Jimboomba Property"). The plaintiff ("Waller"), a Quinn family company, contends that the acquisition and development of the Jimboomba Property occurred in breach of fiduciary duties owed to it by the fourth defendant ("Dowling Yeppoon"), a Dowling family company and the sixth defendant, Mr Craig Dowling ("Mr Dowling"). FW Estate is alleged to have knowingly participated in the breaches of fiduciary duty.
• [2] Waller identified "two separate sources" for the alleged fiduciary duties.[1] The primary case was that the fiduciary duties were owed by reason of an agreement, referred to in the pleadings and in these reasons as "the General Agreement". The primary case alleged that the General Agreement was an oral agreement made on 3 July 2011 by the third defendant by counterclaim ("Mr John Quinn") and Mr Dowling or alternatively by Mr Quinn and the fourth defendant by counterclaim, Mrs Rory Quinn ("Mrs Quinn") and Mr Dowling and the third plaintiff by counterclaim, Mrs Nicola Dowling ("Mrs Dowling"). At that time, Mr Quinn and Mrs Quinn are alleged to have acted on behalf of the ninth defendant by counterclaim ("Q Fabrics"). Mr and Mrs Dowling are alleged to have acted on behalf of the fourth plaintiff by counterclaim ("Dowling Developments"). Within the primary case, Waller alleged that the General Agreement was novated to Waller and Dowling Yeppoon or alternatively was a pre-registration contract for their benefit. In the further alternative, Waller alleged that the General Agreement was made by Waller and Dowling Yeppoon on 6 October 2012 or alternatively between 6 October 2012 and 30 November 2012. The General Agreement was alleged to have established a joint venture known as "the QD Joint Venture". By reason of the joint venture established by the General Agreement or alternatively by reference to a clause of a "concluded template" of a Shareholders' and Unitholders' Trust Deed which had been discussed and explained, fiduciary duties were alleged to have been owed. The secondary case was that fiduciary duties were owed by reason of a relationship of mutual confidence between Waller, acting through Mr Quinn, and Dowling Yeppoon, acting through Mr Dowling. It has been convenient to refer to these two alternative cases as the General Agreement case and the Relationship case.

• [3] The pleadings have been amended on numerous occasions. The current pleadings are comprised of the fifth statement of claim,[2] sixth defence,[3] and fourth reply and answer.[4] As each party placed varying significance on the timing and content of some amendments, it is convenient to provide a synopsis of the history of amendments.
• [4] On 11 June 2019, Waller commenced this proceeding against the first to seventh defendants by way of a claim and statement of claim ("the first statement of claim"). On 19 July 2019, Waller discontinued against the fifth defendant. On 19 July 2019, the first to fourth, sixth and seventh defendants filed the first defence.[5] On 30 March 2021, Waller filed the second statement of claim.[6] On 12 October 2021, the first to fourth, sixth and seventh defendants filed the second defence[7] which added a counterclaim by Dowling Yeppoon against the first to eighth defendants by counterclaim. On 25 November 2021, Waller filed the first reply and answer.[8] On 25 March 2022, the first to fourth, sixth and seventh defendants filed the third defence.[9] On 22 July 2022, the second to eighth defendants by counterclaim filed a notice of intention to defend. On 21 March 2024, Waller filed the third statement of claim[10]. On 2 April 2024, the first to fourth, sixth and seventh defendants filed the fourth defence.[11] On 8 April 2024, Waller filed the second reply and answer.[12] On 17 April 2024, Waller filed the fourth statement of claim[13]. On 18 April 2024, the first to fourth, sixth and seventh defendants filed the fifth defence,[14] adding the second to fourth plaintiff by counterclaim and ninth defendant by counterclaim. On 24 April 2024, Waller filed the third reply and answer.[15] On 8 July 2024, the first to fourth, sixth and seventh defendants filed the sixth defence.[16] On 15 July 2024, Waller filed the fourth reply and answer.[17] On 17 July 2024, Waller filed the fifth statement of claim.[18]

(a) Question 1: Was the General Agreement made as alleged in paragraphs 10(a) to (f) of the fifth statement of claim?

(b) Question 2: If the answer to Question 1 is "yes":

(i) did the General Agreement give rise to the fiduciary obligations alleged in paragraphs 46 to 51A of the fifth statement of claim?

(ii) further or alternatively, was a term of the General Agreement that the obligations set forth in the SUD Fiduciary Duties Clause would apply to all dealings between Waller and Dowling Yeppoon in connection with the QD Joint Venture as alleged in paragraph 10(h) of the fifth statement of claim?

(iii) are Dowling Yeppoon, Mr Dowling, Mrs Dowling and/or the fourth plaintiff by counterclaim ("Dowling Developments") entitled to a declaration that the General Agreement is void, or an order for rescission of the General Agreement as alleged in paragraphs 10(h), 10(j), 44C and 46A and 47A and 47B of the sixth defence?

(c) Question 3: Further or alternatively:

(i) did Waller and Dowling Yeppoon, by Mr Quinn and Mr Dowling respectively, hold a mutual confidence that, where a potential project or opportunity became known to either party that the party considered suitable to acquire and to develop jointly, that party could refer the opportunity to the other party, and any activities carried out by the parties in respect of such a project or opportunity would be carried out for their joint advantage only?

(ii) did the alleged mutual confidence give rise to the fiduciary obligations alleged in subparagraph 10(g) and 10(i) of the fifth statement of claim?

(iii) did Waller and Dowling Yeppoon owe the fiduciary obligations alleged in subparagraph 10(g) and 46 to 51A of the fifth statement of claim?

(d) Question 4: Was the acquisition by FW Estate of the Jimboomba Property made in breach of any fiduciary duties owed by Dowling Yeppoon or Mr Dowling to Waller, as alleged in paragraphs 11 to 30 and paragraphs 52(a) and (b) of the fifth statement of claim?

(e) Question 5: Is Waller precluded from obtaining relief by reason of any of the matters pleaded in paragraphs 1 to 10, 10A,[19] 11 to 28, 30 and 30C, 41 to 41C and 44C of the sixth defence?

• [6] The parties agreed a list of issues in respect of each of the separate questions. Several parties and proposed parties did not participate in the trial but gave undertakings to abide and be bound by the determination of the trial.[20] In these reasons, where I refer to the defendants, I am referring to the defendants who actively participated in the trial, being the first to fourth, sixth and seventh defendants.

• [7] Evidence in chief was given by the witnesses adopting their respective witness statements. Waller called as witnesses Mr Quinn and Mrs Quinn. Mr Quinn was cross examined over days one to seven of the trial. The defendants called Mr Dowling, Mrs Dowling, Mrs Mabel Wynne ("Mrs Wynne"), Mr John Littler ("Mr Littler") and Mr Brian Gassman ("Mr Gassman"). Mr Dowling was cross examined over days seven to nine of the trial.
• [8] The credit of Mr and Mrs Quinn and Mr and Mrs Dowling fell to be assessed in determining whether the General Agreement was made. By the end of the trial, Waller's written submissions focused principally upon the Relationship case, whilst noting that the General Agreement case was "not abandoned". According to those submissions, credit was not "central" to the Relationship case because of the existence of what was described as "a robust documentary record that speaks for itself". In that context, it may be observed that Waller did not allege that the parties had executed a formal document which, on its face, recognised or purported to establish a fiduciary relationship as between Waller and Dowling Yeppoon in respect of the acquisition and development of the Jimboomba Property. The "robust documentary record" relied upon by Waller was a record essentially comprised of emails, handwritten file notes, correspondence and the drafting and execution of deeds and contracts, the latter in connection with other projects. That documentary record was interspersed with disputed conversations.
• [9] To the extent that, by submitting that credit was not "central" to the Relationship case, Waller was suggesting that the Court could decide the issues raised by the Relationship case without careful regard to the credit of Mr Quinn and Mr Dowling, I reject that submission. The Relationship case required attention to the actual circumstances of the alleged relationship, which included many informal documents and some significant disputed conversations. Waller bore the burden of proof in respect of establishing the relationship. An important issue was whether the circumstances were such that Waller, acting through Mr Quinn, was entitled to expect that Dowling Yeppoon, acting through Mr Dowling, would act in relation to the Jimboomba Property in Waller's interests in and for the purposes of the relationship. In the context of any relationship which existed, Waller sought to demonstrate that Mr Quinn was relevantly vulnerable and placed faith and confidence in Mr Dowling. Mr Quinn gave evidence in chief about the "features of the relationship as I observed and remember them". He said that he was conscious that he could not self-deal with "an opportunity that had been brought for consideration by Craig to me, or vice versa". He gave evidence in chief about the "nature of the relationship between me and Craig". The defences to the Relationship case which alleged non-disclosures, representations and reliance involved credit considerations. There was also the defence of laches which required consideration of all relevant circumstances including determining the period of delay and the proper characterisation of conduct during the interval. Mr Quinn gave evidence about his subjective reasons for his conduct during the period of delay and his understanding of what was occurring during that time. It was not possible to resolve the issues raised by the Relationship case, including the defences, without having regard to the credit of Mr Quinn and Mr Dowling in particular.

(a) As to Mr Quinn, he appeared to me to be a witness who was more intent on stating matters which might advance his or his family's interests in the litigation rather than providing his actual recollection. From time to time, he added detail to his recollection without being able to explain why that detail had not been included in his witness statements. On important matters he also tended to be evasive and self-serving. His credit was further damaged by his involvement in, and his answers in cross examination about, the circumstances in which the second defendant by counterclaim ("CCH Stradbroke") obtained an order from this Court on 16 April 2019. Generally, I have not accepted Mr Quinn's evidence unless it was against his interests or was otherwise evidenced or supported by objective facts, contemporaneous documents or other evidence.

(b) As to Mrs Quinn, she too appeared to me to be more intent on stating matters that she considered might assist her or her family's interests in the litigation, rather than providing her actual recollection. At times her evidence was noticeably self-serving. At other times, her evidence was rambling and convoluted. Although not a significant matter, I was unimpressed with her demeanour in the witness box where she appeared as a distracted witness, who was apparently trying to stay ahead of the questioning. She did not appear to me to be reliable and I have given her evidence little weight.

(c) As to Mr Dowling, he was unimpressive when cross examined about issues which had recently been alleged by the defendants concerning non-disclosures and representations by Mr Quinn. When giving evidence about the events in the lead up to the purchase of the Jimboomba Property by FW Estate, he appeared intent on conveying a narrative explaining Mr Quinn's involvement which was inconsistent with contemporaneous documents, contrived and self-serving. Generally, I have not been prepared to accept his evidence unless it was against his interests or otherwise evidenced or supported by objective facts, contemporaneous documents or other evidence.

• [12] As a matter of further general observation, many of Mr Dowling's emails contained syntax and other grammatical errors. In these reasons I have set out emails as they were written by Mr Dowling.

Initial dealings between Mr Quinn and Mr Dowling

• [13] Mr Quinn had practised as a solicitor for 26 years between 1980 and 2006. His work as a solicitor had largely involved assisting clients with commercial transactions. When he retired as a solicitor, he began to invest in real estate, carry out property development and operate businesses. He had extensive experience in property development, planning, subdivisions and litigation.
• [14] Mr Dowling had worked in the construction industry since 1989. In 2003, he had joined Buildev Development Pty Ltd ("Buildev") as a development partner. Buildev was a large private property developer which undertook residential, commercial, industrial and retail developments. Mr Dowling acquired particular skills in interrogating cash flows and he had a general knowledge of building costs. He had contacts in the civil construction industry.
• [15] Mr Quinn and Mr Dowling first met on 20 December 2007 at a meeting arranged by a Mr Power. The meeting was attended by Mr Dowling in his capacity as an employee of Buildev. The meeting had been arranged as an opportunity for Mr Quinn to be introduced to Buildev's business and its representatives. From the beginning of 2008, Mr Quinn had been finding it difficult to obtain finance for construction and development and to make sales amid the economic downturn known as the GFC. Mr Quinn kept in touch with Mr Dowling after the meeting. Mr Dowling understood that Mr Quinn represented "The Quinn Group" which was a development organisation with a property portfolio comprising several properties including a property known as the Outlet Centre, situated at Eagleby near exit 35 ("the OC").
• [16] On 28 October 2008, Mr Quinn had met with Mr Dowling in relation to the OC. Mr Quinn provided material to Mr Dowling at that meeting. On 31 October 2008, Mr Dowling, in his capacity as Development Director at Buildev, sent a letter to the Quinn Group marked to the attention of Mr Quinn. The letter referenced "the Project" as involving Buildev and the Quinn Group and the OC. The purpose of the letter was to "set out the terms on which [Buildev] will proceed with this Project". The proposed terms included Buildev acquiring a 50% interest in the Project at a purchase price of $6.5 million. Buildev would contemporaneously with the payment of the purchase price "assume 50% of the existing debt subject to the total debt being capped at $41 million." Any additional debt would be the responsibility of the Quinn Group. There was a due diligence period of 60 days. The last two paragraphs of the letter read as follows:

"Upon acceptance of the terms set out above, we will send to you a draft Contract and draft Co-Venture Deed for review.

This offer is subject to the preparation and execution of complete legal documentation containing terms satisfactory to both parties".

• [17] Mr Dowling said that the material provided by Mr Quinn had included some cashflows which had included a "debt number". He recalled that Buildev had by reference to that material undertaken an internal calculation as to "what we thought the land and the opportunity might be worth". He conceded that at the time of the letter he did not know the amount of the debt or the identity of the funder. He said that he wished to use the due diligence process to ascertain the amount of the debt and "the worth of the Quinn Group". I accept that at the time of the letter, Mr Dowling had been provided with cashflows and a "debt number" but had not confirmed the amount of the debt, the identity of the funder and the worth of the Quinn Group. I accept that he wished to use the due diligence process to understand more about the viability of the Project, including confirming the debt and the funder. The proposal in relation to the Project as outlined in the letter did not proceed.
• [18] On 26 February 2010, Buildev (by a Mr Luke McGuire) sent an email to Mr Quinn and Mr Rob Boylan in respect of a property situated at Yawalpah Road in Coomera. The Coomera property was half owned by a Quinn family company Quinnco Pty Ltd ("Quinnco") and another company Trimglint Pty Ltd, which I infer was a company controlled by Mr Boylan. The email attached a "Term Sheet" by which Buildev offered $10 million for 50% of the Coomera property and stated that Buildev looked forward to "receiving your comments/differences in relation to the Term Sheet and any differences you see in relation to the land value we ascertained". In March, Mr Dowling on behalf of Buildev conducted some "brief due diligence" on the property which involved reviews of preliminary approvals and development permits. The parties did not reach an agreement about commercial terms.
• [19] On 16 March 2010, Mr Dowling sent Mr Quinn an email in relation to another Quinnco property, the Alma Park Zoo. As of 16 March 2010, Mr Dowling was "open to undertaking the development of the land on which the zoo was located with Mr Quinn." By his initial email, Mr Dowling proposed a meeting with Mr Quinn which would involve "[j]ust a discussion between John Quinn and Craig Dowling". By a further email sent 12 minutes later, Mr Dowling said "maybe its something we JV will discuss who are the parties when we meet could be something I might be interested in if you are open to this" (as per original). Mr Quinn replied by an email in which he materially stated that if a deal was not done with another party with whom he was then in advanced negotiations, he would "likely proceed with it myself". Mr Dowling then replied "Its ashame you wouldn't JV as I would like too do a development with you John".

"As advised I would sell 50% of this project upon the payment to [Quinnco] of $3 million, and the lodgement of $7 million in a trust account for payment of the balance construction sum to Hutchinson Builders. I would also cede priority to income distributions behind the incoming JV partner such that the new JV partner would receive their 50% of the net revenue ahead of an income distribution to [Quinnco]. On this basis the final debt against the project will be $25m.

The critical step in this investment is to get the builder back on site. ... Please advise if you have an interest in this project and, if so, what information you will need in order to properly evaluate the opportunity."

Mr Dowling and Mr Quinn develop a business relationship

• [22] On 9 December 2010, Mr Quinn and Mr Dowling met at a tavern near the OC. Mr Quinn took a file note of the discussion. Mr Dowling accepted that at this meeting he wanted to find out whether there was an opportunity for him to work as a consultant. He said in cross examination "I wanted to talk about [Mr Quinn's] projects and whether I could actually add value as a consultant to uplift his projects, we spoke about those things, that's what we spoke about on that day".
• [23] In cross examination, it was suggested to Mr Dowling that, during the 9 December 2010 meeting, there had been a discussion between Mr Quinn and Mr Dowling about Mr Dowling "becoming a joint venture partner" and that the next day Mr Dowling telephoned Mr Quinn to say that he had discussed the matter with Mrs Dowling and he was "keen to come on board". Mr Dowling rejected this suggestion. In his evidence in chief Mr Quinn had recalled a conversation during the meeting on 9 December 2010 in which Mr Dowling had said "that we could join forces as two families ... to take on further projects after we had satisfied ourselves that they were worthwhile" and there was then some differentiation between new projects and existing Quinn Group projects. Mr Quinn recalled that Mr Dowling had telephoned him the next day to say, after having discussed the matter with his wife, he was keen to "come on board". Mr Quinn understood this to mean "joining forces generally in the manner we had discussed". Mr Quinn recalled that Mr Dowling had said the structure of the relationship should be mixed. He recalled this discussion:

"For new ventures, [Mr Dowling] said, we should split the equity 50/50 with a Quinn Group entity providing the capital and receiving "a coupon", (which I was aware from my experience in financing projects to mean an amount of interest payable on the investment). He said for existing Quinn Group projects they should be valued and brought into the relationship at that value. He said that both sides should then share the upside above that value".

• [24] Mr Quinn's note of the 9 December conversation makes no reference to a particular conversation along the lines recalled by Mr Quinn or as put to Mr Dowling. Mr Quinn's note of the 10 December telephone conversation is relevantly as follows:

Has spoken to his wife and he would like to come on board.

Re the structure he thinks it would be a bit of both ie

1. New ventures 50/50 with separate JQ entity providing the capital and receiving a coupon.
2. Existing JQ projects to be valued and brought in at $X and then the upside to be shared based on the value add by CD.

I asked Craig to put what he proposed in an email to me which he sd he would do"

• [25] It may be observed that Mr Quinn's file note spoke in terms of "he would like to come on board" not "they would like to come on board".
• [26] I make the following findings in relation to the 9 December 2010 meeting and the 10 December telephone conversation:

(a) during the 9 December 2010 meeting there was significant discussion about the OC site and potential or prospective tenants for that site;

(b) during the 9 December 2010 meeting there was discussion about whether Mr Dowling might add value to Mr Quinn's or the Quinn Group's projects, including the OC, working as a consultant and Mr Quinn was open to that prospect;

(c) at around this time, Mr Dowling was considering his work options because Buildev had recently been bought out by Mr Nathan Tinkler and the future conduct of the Buildev business was unclear;

(d) at or around this time, Mr Dowling was also facing or experiencing difficulties managing a large debt of around $1.5 million with the ATO, and he was not then in a position to provide any significant capital to an existing or new project;

(e) there was no discussion at the 9 December 2010 meeting to the effect that Mr Dowling would become a joint venture "partner" or that the two families would "join forces" and "take on further projects after we had satisfied ourselves together that they were worthwhile";

(f) the discussion on 10 December 2010 was essentially along the lines of Mr Quinn's file note;

(g) a material aspect of the discussions on 9 and 10 December 2010 concerned whether Mr Dowling might in the future act as a consultant on Mr Quinn's or the Quinn Group's existing projects and on new projects whereby he would be remunerated by a share in the profits without having to contribute capital;

(h) notably the 10 December 2010 discussion ended on the basis that Mr Dowling would put what he proposed for the future in an email.

• [27] On 2 January 2011, Mr Quinn emailed Mr Dowling and relevantly said that he would like to start the new year by "moving forward in some manner with The OC" and that his thoughts were "to press on with the projectregardless of the naysayers and prove them all wrong". The email then said "Did you have any ongoing interest in this opportunity or any thoughts on how to get the construction restarted? I am keen to finalise something sooner than later". On the same day, Mr Dowling responded by email:

" ... I agree we are going achieve great results ... I also have another couple of ideas how to get construction funding moving I haven't stopped on it. I am pleased you have made a decision to move forward with the OC John as it will be a ...a good solid project. ... I will jot down some thoughts could you also John think of the value you will put on your projects so we can commence formalising our arangement."

• [28] I find that, as at January 2 2011, Mr Quinn was still awaiting an email from Mr Dowling as to what he "proposed" and Mr Dowling was yet to "jot down some thoughts" on the arrangement.
• [29] On 6 January 2011, Mr Dowling sent an email to Mr Quinn in the following material terms":

1. Place a value over the existing assets and then we share in the upside on a 50/50 basis, as i would not be on title some security would be required for to protect the interest ie 2nd mortgage or caveat etc. John can you please let me have those values so we can start exploring structures.
2. New projects - 50/50 Quinn group provide the seed capital for DA etc. and will paid a coupon. We then look at the exit strategies of each opportunity do we sell outright sell down 50% or have a (Gordon) provide the seed capital and capital for a 50% interest (Quinn Group/Dowling) manage the development for a development fee. John i have a number of great opportunities John we can do well out of.
3. Craig Dowling be paid a consulting fee or salary (we need to discuss John and i would like to do this face to face)."

• [30] The reference in the email to a "Gordon" was to Mr Gordon Saul and was intended to be a reference to high net worth individuals who might be prepared to provide funding for a particular project. With apparent reference to the OC, Mr Dowling also said in the email "Peter from the CBA likes the project and could come up with a funding option however John I don't have the capacity on my own (maybe you can think of a way")". The email also included a balance sheet for Dowling Holdings and correspondence from the ATO.
• [31] Later on 6 January 2011, Mr Quinn responded by way of a brief email which relevantly stated that his "thoughts" were to "put OC in at 24.5 and Yeppoon in at 32 with a coupon on my equity pending payment of it". The email added that Mr Quinn would "respond in more detail" later and "like[d] the thought of ... a Gordon providing some seed capital".
• [32] Mr Dowling was cross examined on the basis that his 6 January email was about "an arrangement where you're involved in multiple sites and you're effectively partners in something." As to this arrangement, it was further suggested to Mr Dowling that "it was never part of your intention to formalise it in writing it was just about having an understanding of an arrangement between you and him". Later however, it was suggested to Mr Dowling that the "potential arrangement" or "understanding" which existed as at "the end of the day on 6th January" involved two families, the Dowlings on one side and the Quinns on the other. Mr Dowling rejected each of these suggestions. Notably it was not suggested to Mr Dowling in cross examination that he was, or his family were, proposing to share in losses or liabilities associated with any project.
• [33] Clearly according to the plain language of the 6 January emails, an arrangement was yet to be negotiated or agreed. Mr Dowling accepted in cross examination, and I find, that his 6 January email proposal was very much a proposal for future discussion, which involved exploring options on a "project by project" basis. Mr Dowling gave evidence, borne out by the terms of his 6 January email, that his proposal, which was expressed as a starting point, was about "a structure that we hadn't worked out at that point in time" and "wasn't between our two families". I accept that evidence. I find that Mr Dowling's clear preference at around this time was for him to share in "the uplift" of projects as a consultant.

"I continued to negotiate with Craig to see whether there was an arrangement with him that could be made to work. I also negotiated separately with other parties, including investors in Sydney and a Chinese company. I kept Craig apprised of these negotiations and discussed with him whether, if I proceeded in doing a deal with the Chinese company, there might be an opportunity for him to become involved. I continued to use Craig as a sounding board for the OC property and to float ideas with him."

• [40] I accept that evidence as it is consistent with emails sent by Mr Quinn to Mr Dowling in relation to the OC. Late in the afternoon of Saturday 2 July 2011, Mr Quinn sent an email to Mr Dowling and a Mr Warren Preston noting that he had met with "my Chinese group again on Friday" and "confirmed that they are in agreement with our proposal to JV the leasing of 5000m2 at the OC as a forerunner to the acquisition and development of a total of 40,000m2 (in 2 stages) at Coomera". The email then set out 9 categories of steps and transaction documents that Mr Quinn considered were "necessary in order to implement the proposal". The categories of steps and transaction documents included registering new companies, establishing new unit trusts and entering into various shareholder and unitholder agreements. In respect of one company to be registered, Outlet Centre Developments Pty Ltd, Mr Quinn's email requested Mr Preston and Mr Dowling to "Provide him with full details of the entities you want to have holding the shares and the units".

• [41] The vendors of the land the subject of the Bellmere project were a couple called Maxine and Roy Demeza. On 17 and 18 May 2011, Buildev had made a conditional offer and received an amended offer from the vendors. The Buildev offer was for $1,725,000. The vendors' counter offer was for $1,750,000. Buildev's investment Board regarded the project as "too small scale" and Buildev did not pursue the negotiations any further.
• [42] On 30 May 2011, Mr Dowling emailed Mr Quinn about Bellmere. Mr Dowling's email attached documents including Buildev's offer and the vendor's counter offer. Mr Dowling had advised the vendors that Mr Quinn would be making contact. His email to Mr Quinn on 30 May 2011 materially stated:

"Can you ring [the vendors] as I have said you have an interest in this and just have a general chat. They have ALL approvals DA, OPW, Electrical Retic disclosure plans are available for collection (we just need to pay $3900). It has been tendered I think we can save money based on my review. The revenues we have allowed are a bit light but conservative. John ring me before discussing with them this is a simple project John".

• [43] Mr Quinn made contact with the vendors and received some documents. On 2 June 2011, Mr Quinn sent an email to the vendors in these terms:

"I spent yesterday afternoon with Craig and went over the documents you sent me thoroughly with him ... We have decided to proceed with the purchase and would like to go to contract as soon as possible based on terms as advised by Craig in his earlier discussions. ... We will be incorporating a special purpose vehicle to undertake the purchase, so the name of the purchaser should be left blank on the contract at this stage. We anticipate finalising the new Company on Monday and will provide details to you as soon as they become available".

• [44] On 3 June 2011, the vendors sent an email to Mr Quinn which attached the draft contract, special conditions and a plan of proposed lots.
• [45] On 5 June 2011, Mrs Dowling, on behalf of Mr Dowling, sent Mr Quinn a draft Unitholders' Deed, under cover of a handwritten note from Mr Dowling which relevantly read:

"John, This document seems to relate more to an existing project with existing debt. I have made general comments in Clause 6 Financial Matters, which needs to relate to newco rather than existing debt structure extra. We also need to look @ Tag Along Drag along if one wants to exit both exit. I am doing this with you and your family, and the same with you to mine. Hope my comments make sense but in general seems like document works well".

• [46] Mr Dowling had made handwritten comments on the attached draft Unitholders' Deed. In respect of that draft:

(a) Clause 3.2 did not formally label the unit holders as fiduciaries but recognised that they owed obligations to each other including obligations not to place themselves into positions of conflict and not to make undisclosed profits;

(b) Clause 3.3 provided that the rights and obligations of the unitholders were several. Mr Dowling wrote beside that clause "John this relates to one party can be liable for the entire debt. Can we discuss";

(c) Clause 5.3 provided for a situation of voting deadlock at Board level. Mr Dowling wrote beside that clause "John, I believe voting is unanimous and deadlocks are not required";

(d) Clause 13 provided for restrictions on transfer. Mr Dowling wrote beside that "Tag along drag along. One sells all out";

(e) Clause 20.12 was headed 'Entire understanding" and provided:

"(a) This document contains the entire understanding between the parties as to the subject matter of this document.

(b) All previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this document are merged in and superseded by this document and are of no effect. No party is liable to any other party in respect of those matters.

(c) No oral explanation or information provide by any party to another ... constitutes any collateral agreement, warranty or understanding between any of the parties".

• [47] Later on 5 June 2011, Mr Quinn emailed Mr and Mrs Dowling and attached the proposed contract for Bellmere and copied them into correspondence with the vendors. Mr Quinn noted in his email to Mr and Mrs Dowling "You will see I have not at this point sought to reduce the price by the amount of the commission pending their agreement to the Put and Call Option Agreement". I infer from this that the intention of Mr Quinn and Mr Dowling was to seek to reduce the amount of the asking price by an amount reflective of an agent's commission, but Mr Quinn decided to defer that negotiation until such time as the parties had a put and call option in place.
• [48] At around this time, Mr Quinn indicated that Q Fabrics would hold the units for the Quinn family. Mr Dowling indicated that Dowling Developments would hold units for the Dowling family.
• [49] On 7 June 2011:

(a) Bellemere Developments Pty Ltd ("Bellmere Developments") was registered and its directors and equal shareholders were Mrs Dowling and Mr and Mrs Quinn's daughter, Clare Quinn;

(b) Dowling Developments was registered and its director and shareholder was Mrs Dowling;

(c) The Dowling Equity Trust was established with Dowling Developments as the trustee.

• [50] On 7 June 2011, under a subject heading "The Bellmere Unit Trust", Mr Quinn emailed to Mr Dowling a further version of the draft Unit Trust Deed. The email relevantly stated "we can go through in more detail at 4 pm today".
• [51] On 13 June 2011, Mr Quinn emailed Mr Dowling inquiring whether he had "made any changes to the Draft Trust Deed yet?". By this time it appears that there were in circulation drafts of a "Unit Trust Deed establishing the Bellmere Unit Trust" and of a "Shareholders and Unit Trust Deed in relation to the Bellmere Unit Trust". Later that day, Mrs Dowling emailed Mr Quinn pdf files containing Mr Dowling's handwritten amendments to each draft.
• [52] As regards the draft of the Unit Trust Deed:

(a) In relation to a proposed clause 14.3(b) which contemplated the trustee with consent setting aside sums as reserves, Mr Dowling wrote "in writing";

(b) In relation to a proposed clause 22(a) which contemplated that the trustee might by oral resolution revoke, add to, release, delete or vary all or any of the trusts or powers declared in the document, Mr Dowling placed a box around the words 'by oral" and wrote "delete".

• [53] As regards the draft of the Shareholders and Unit Trust Deed:

(a) Proposed clause 4.2 described the relationship of the participants as joint venturers who owed fiduciary duties to the other participants in relation to the conduct of "the Project". Proposed clause 4.2(x) identified a duty "not to carry on any business of any nature in Brisbane or on the Gold Coast that would compete with the Project". Beside that clause, Mr Dowling wrote "John, If I sign this I technically have interest in Buildev. I understand the intent of 4.2(x) are you happy knowing the interest in Buildev. That will come to an end";

(b) Proposed clause 4.3 dealt with rights and obligations of the participants and noted that the participants rights and obligations "under this document are several". Beside that proposed clause, Mr Dowling wrote "John, we should be jointly responsible for debt and liability"

(c) Proposed clause 7.5 provided that committee meetings should be convened once every three months. Mr Dowling changed three months to two months and wrote "Three months means there would only be two meetings possibly three".

• [54] On 15 June 2011, Mr Demeza as grantor and Bellmere Developments, as trustee for the Bellmere Unit trust, entered into a put and call option deed in respect of the Bellmere property ("the Bellmere Put and Call Option Deed"). The call option fee was $10,000 inclusive of GST. The due diligence period was 21 days.
• [55] On 21 June 2011, Mr Dowling sent an email to Mr Quinn under the subject Bellmere which materially stated, "We need to finalise the unit trust and shareholder agreements can you please bring two final version so I can leave a set with Luis and we should look to execute shortly". Mr Quinn responded by email later that day "I will bring docs with me".
• [56] It is accepted that a Unit Trust Deed and a Shareholders and Unit Trust Deed for the Bellmere project were never executed. There was conflicting evidence as to whether the deeds were ever settled or finalised. In his primary statement Mr Quinn gave evidence that by 3 July 2011, "the terms of the Bellmere UTD and the Bellmere SUD were "well advanced" and the clause dealing with fiduciary duties was in its final state". As part of an exhibit to his primary statement, Mr Quinn had included clean versions of the drafts. Those versions relevantly contained:

(a) Proposed clause 4.2 of the draft Shareholders' and Unitholders' Deed which recognised that the participants owed a fiduciary duty to each other "in relation to the conduct of the Project", "the Project" being relevantly defined essentially as the acquisition and development of the Bellmere land;

(b) Proposed clause 18(c) of the draft Shareholders' and Unitholders' Deed by which the parties acknowledged that they were not relying upon any oral account or arrangements and that the "conditions and stipulations in this document constitute the only agreement between the parties";

(c) Proposed clause 20.1 of the draft Shareholders' and Unitholders' Deed which recognised that the deed would continue in force for so long as the participants directly or indirectly controlled the Project;

(d) Proposed clause 24.14 which contained an "Entire understanding clause in the following terms:

"(a) This document contains the entire understanding between the parties as to the subject matter of this document.

(b) All previous negotiations, understandings, representations, warranties memoranda or commitments concerning the subject matter of this document are merged in and superseded by this document and are of no effect. No party is liable to any other party in respect of those matters.

(c) No oral explanation or information provided by any party to another:

(i) affects the meaning or interpretation of this document;

(ii) constitutes any collateral agreement, warranty or understanding between any of the parties."

• [57] In cross examination, Mr Quinn gave evidence that, as at 3 July 2011, the terms of the deeds had been "finalised". In cross examination he recalled that he had delivered the deeds in their "final form" to Mr Dowling on 21 June 2011. He produced during cross examination what he said were the finalised deeds. However, on 18 July 2011, Mr Dowling sent a further email to Mr Quinn under the subject Bellmere which said "We should finalise unit and shareholder deeds".
• [58] I make the following findings in relation to the Bellmere project and the state of the relationship which existed as between Mr Quinn and Mr Dowling as at, and before the meeting of, 3 July 2011:

(a) Bellmere was a small project which was properly described by Mr Dowling as a simple project.

(b) As at 30 May 2011, when Mr Dowling first emailed Mr Quinn about Bellmere, Mr Dowling and Mr Quinn had not made any agreement as between themselves or on behalf of their families as might constitute something loosely labelled a joint venture in relation to property development opportunities.

(c) In particular, the email correspondence of 6 January 2011 had not led to further discussions resulting in any concluded agreement.

(d) Mr Quinn and Mr Dowling were exploring opportunities on a project by project basis without any agreed structure for their participation in the event a project was to be pursued.

(e) In that regard, in relation to the OC, Mr Quinn had continued to negotiate with Mr Dowling to see whether there was an arrangement with him that could be made to work but he had also negotiated separately with other parties, including investors in Sydney and a Chinese company.

(f) As of 17 May 2011, Mr Quinn had made it clear that he was yet to receive anything in the nature of a "binding commitment" from Mr Dowling in respect of the OC and if Mr Dowling was to participate in that opportunity they would have to "sign off on the deal" and a JV agreement would have to be "executed up front".

(g) In relation to Bellmere, Mr Dowling specified on 5 June 2011 that "I am doing this with you and your family, and the same with you to mine" because that matter required confirmation at that point in time. The reference to "this" was to the Bellmere Project.

(h) Even though Bellmere was a small, simple project Mr Dowling and Mr Quinn entered into negotiations about the content of a proposed Unit Trust Deed and a proposed Shareholders and Unit Trust Deed for the project. Those negotiations involved substantive matters and reflected an objective concern on the part of Mr Dowling and Mr Quinn to ensure that important aspects of the relationship between the participants in the Project would be governed or evidenced by writing.

(i) The Shareholders and Unit Trust Deed was negotiated to the point where it contained clear statements to the effect that the executed document was to reflect the entire agreement and exclude any reference to previous informal or oral arrangements.

Mr Dowling's knowledge of Mr Quinn's financial position prior to 3 July 2011

• [59] Mr Dowling accepted that as at on or about 3 October 2010, the date of an email he received from Mr Quinn, he was aware that the OC site had been sitting dormant since late 2008, there was a large debt owed in respect of the site of at least $15 million and there were "enormous costs to complete". The costs to complete as advised by that email totalled $17 million. Mr Dowling was taken to an email sent by Mr Quinn on 18 February 2011 addressed to Tim Wright in which Mr Quinn had said "if you and Craig are unable to succeed in getting The OC over the line then I die (financially)". Mr Dowling accepted that by at least February 2011, he knew that it would probably be catastrophic for Mr Quinn financially, if he could not get the debt on the OC refinanced.[22]
• [60] On 22 February 2011, Mr Quinn emailed to Mr Dowling a draft of an email which he proposed to send to Mr Saul. The email noted that the "current debt" on the OC was $16,380,000 and was repayable on 29 March 2011. The email spoke of the prospect of Mr Saul acting as a funder to the project and acquiring a one third interest. The sought after funding was to be provided on a short term basis as the email stated "it would be our intention to secure long term debt as soon as possible at which time your debt component plus accrued interest would be repaid". The email also made reference to another Quinnco property, Yeppoon, which had $9.5 million in debt with $3.5 million due for repayment on 21 April 2011 and $6 million due for repayment on 21 October 2011. Mr Quinn requested a meeting with Mr Saul to discuss "how the numbers would fall on the basis of you providing the debt funding on [Yeppoon]".
• [61] Mr Saul was ultimately not prepared to fund the OC. By an email to Mr Saul dated 1 March 2011, to which Mr Dowling was copied, Mr Quinn described Mr Saul's unwillingness to "proceed further with the OC" as a "body blow". Mr Quinn also stated in the email that it was "critical" that construction at the OC should commence, that there was an "added difficulty of having to repay Angus $13m on 29/3/11" and that he required "short term assistance". Mr Dowling said in cross examination that confronted with these facts as related by the email, at this point in time, he "didn't know [that Mr Quinn] was in financial distress". He seemed to suggest that the values ascribed to the OC and Yeppoon were an answer to Mr Quinn's financial predicament. He described those properties as being "very substantial in value". That evidence tended to ignore the realities that Mr Quinn was in urgent need of refinancing the very significant debt on the OC, had been unsuccessful in obtaining finance and was openly stating that recommencing construction was critical to obtaining value from the OC. I also find that on 22 March 2011, Mr Dowling had received a telephone call from a mortgage broker, who advised him that he considered that the OC had a "stink on it as it has been shopped all over the place". Further, by no later than 23 June 2011, Mr Dowling knew that the debt owed to Hutchinson Builders was $3.55 million and was secured by a second mortgage on the OC.

(a) The OC site had been sitting dormant since late 2008, there was a large debt owed in respect of that site of at least $16 million which had been due for repayment on 29 March 2011 and there were "enormous costs to complete".

(b) The builder, Hutchinson, had long since left the site, was owed $3.5 million and had a second mortgage over the property.

(c) Mr Quinn had been seeking "short term" finance from Mr Saul and also dealing with a Chinese company and a Sydney consortium but had not been able to obtain finance.

(d) It was likely to have been catastrophic for Mr Quinn from a financial perspective if he could not get the debt on the OC refinanced.

• [63] During the afternoon of Friday 1 July 2011, Mr Quinn sent an email to Mr Dowling in which he relevantly said, "Rory and I are trying to arrange to meet you at yours for a late lunch on Sunday if that suits". Mr Dowling replied by email later that afternoon to the effect that he had spoken to Mrs Dowling and Sunday was suitable. It is uncontroversial that Mr and Mrs Dowling and Mr and Mrs Quinn met at the Dowling's house on the Goat Track in Highvale near Samford for lunch on Sunday 3 July 2011.
• [64] Mr Quinn recalled that on or shortly before 1 July 2011, Mr Dowling suggested to him that they should have lunch with their wives. Mr Quinn recalled Mr Dowling saying that now that "we had done our first deal in Bellmere" they should make sure that "an ongoing relationship involving lots of projects in the terms we had been discussing, was going to work with our partners". Mr Dowling denied that conversation. He said the idea of a lunch came from Mr Quinn by the email sent on 1 July 2011. Mr Dowling recalled that, at the time, he and Mr Quinn had yet to discuss "a number of things ... regarding the viability of developing the Bellmere land". Mr Dowling recalled that they had not yet prepared a detailed feasibility for the development and "that was the main reason for meeting together on 3 July 2011". I prefer Mr Dowling's evidence on this matter. As a matter of objective reality, as at 3 July 2011, no deal had been done on Bellmere. Rather, the due diligence period was about to expire. The Bellmere project was also the first project to be pursued by the two families. It is more likely that the purpose of the lunch was to enable the feasibility of the project to be discussed and for Mr and Mrs Quinn to meet Mrs Dowling before the families made any commitment to the Bellmere project.
• [65] By the time of the trial, the attendees at the lunch were being asked to recall discussions at a meeting which had occurred some thirteen years earlier. The only contemporaneous note of the discussions was a document containing Mr Quinn's handwritten notes, which he described as "the minutes I made of the meeting". The discussions at the meeting as recalled by Mr and Mrs Quinn were significantly different to the discussions recalled by Mr and Mrs Dowling. As a general observation, Mr and Mrs Quinn each purported to recall precise, granular detail about wide ranging topics of discussion at the lunch. The respective recollections of Mr and Mrs Dowling tended to be more general and limited.

"I do not generally provide this level of information to parties with whom I engage in one-off transactions and there was nothing unique about the Bellmere opportunity (on its own) in particular that warranted a different approach".

• [68] This was a somewhat obtuse point of distinction drawn by Mr Quinn, given that the draft deeds then in existence in relation to the Bellmere project contemplated the parties being involved in a joint venture attended by fiduciary obligations. Mr Quinn recalled revealing the following information to Mrs Dowling. Bankwest had appointed receivers to three Quinn Group entities in April 2010 when he had signed a contract to sell the Plaza Hotel in Cairns for $11.3M and the receivers had sold the hotel for $5.5M. The companies that owned the OC and Yeppoon were under financial pressure. Quinn Group had entered a payment plan with the ATO to pay down a tax debt which had led to the Quinn Group losing an approximate $1M deposit on three units in Dubai. Under cross-examination, Mr Quinn recalled a further matter of financial detail disclosed to Mrs Dowling, which had not been referred to in his statement or reply statement. Under cross examination he recalled having volunteered that he was being personally sued by Bankwest for an amount exceeding $10 million.[24]
• [69] Mr Quinn recalled that there was discussion about Bellmere and "how it might be developed". In his primary statement he recalled that there was discussion about Bellmere "for a while". In his reply statement, he said that the discussion about Bellmere "took the majority of the meeting but by no means all of it". Under cross examination he said that the discussion about Bellmere took at least an hour and he accepted that the discussion included reference to a plan, possible layouts and potentially altering the lots. He "stepped [Mrs Dowling] through the documents for Bellmere", namely the proposed Unit Trust Deed and proposed Shareholders and Unit Trust Deed for the project. He explained that the deeds recognised "certain fiduciary obligations" which he began to read to Mrs Dowling. As he started reading clause 4.2 of the Shareholders and Unit Trust Deed and items (i) to (x), Mrs Dowling interjected and said she understood what the clause meant. At this point Mr Quinn said that "all the future projects would have a UTD and an SUD in the same terms".
• [70] Mr Quinn recalled Mr Dowling going to his home office and printing out a document headed "Dowling Developments and Associated Companies Workbook". This document was referred to during the trial as "the First Workbook". Mr Quinn said that he recognised the First Workbook as containing "a list of projects that [Mr Dowling] and I had determined might be viable and worth pursuing". The status of each of the opportunities was generally discussed and he made brief handwritten notes on the printout. In respect of the OC, Mr Quinn explained that he was pursuing an opportunity to sell that property to a Chinese company which had agreed to buy the property for $27M. He explained that the $27M would pay out Angas Securities and provide a surplus. He told Mr and Mrs Dowling that his loan from Angas Securities had expired on 30 June 2011 and he was in default. Mr Quinn said to Mr and Mrs Dowling that if the negotiations with the Chinese purchaser fell through "there would be an opportunity to pursue this project as a joint venture opportunity". Mr Quinn exhibited to his statement the document which he said was the spreadsheet with his handwritten notes "made at the meeting (and no other notations)".

(a) at 3.34pm on 3 July 2011, to Mr Quinn, attaching a spreadsheet titled, "Dowling Dev Project Status"; and

(b) at 3.40pm on 3 July 2011, to Mr Quinn, a blank email with the subject line, "Bellmere - Due Diligence expiring 6th July 2011".

• [78] Mrs Dowling provided her recollection about the lunch meeting in her statement in which she also responded to the primary statements of Mr and Mrs Quinn. She recalled that Mr Dowling had told her that Mr Quinn wanted to do a development together in Bellmere and that Mr Quinn and his wife wanted to meet Mrs Dowling. Mr Dowling had said to her that the Quinns were coming over for a late lunch on a Sunday and he had said there was deadline of some kind approaching for the Bellmere project. She recalled initial pleasantries and interactions with the Dowling children. The adults sat down at a dining table inside the home because it was winter and it was cold outside. She recalled "the conversation turned to Bellmere". Mr Quinn said the development would be undertaken by two companies, Dowling Developments and Q Fabrics, through another company, Bellmere Developments. She recalled thinking it was strange that a fabric company would be involved in property development. Mr Quinn said that Q Fabrics was his daughter's company and that she wanted to get into property. She remembered seeing documents on the dining room table which she recognised as plans and lot layouts. Mr Quinn and Mr Dowling began talking about the "ins and outs of the Bellmere development, how much it would cost and which consultants would be involved". As time was getting on, she left the discussion to prepare lunch, which was wraps. She did not make any contribution to or participate in any meaningful way in the ongoing discussion about Bellmere. She recalled the discussion mainly being between the two men. At about 3.30pm the Quinns went to leave and Mr Dowling went to his office and "came back with paper, which he gave to Mr Quinn". She could not recall what Mr Dowling said about that document. She did recall that "Mr Quinn did not make any notes on the papers that Craig handed the Quinns as they were leaving".
• [79] Mrs Dowling could not recall whether Mr Dowling had invited Mr Quinn to "explain to Nicky everything we were proposing to do". She denied that Mr Quinn had stepped her through any document or read out any clauses to her. She denied that there had been any discussions about the proposed Unit Trust Deed and proposed Shareholders and Unit Trust Deed for the Bellmere project, fiduciary duties, an ongoing relationship or alliance, future projects, template documents to govern future projects, the Quinn's financial difficulties or a joint venture for future projects. She denied that there was any agreement made to form a joint venture. She denied that Mr Quinn had said "the two families would form an alliance and become a joint venture". Her recollection was that Mr Quinn did not say anything about how the families would do business together generally in the future. The only joint venture she understood was being discussed concerned the Bellmere development. She recalled that the focus of the discussion was on Bellmere. She added "I do not even remember that a decision was made to go ahead with that development at the meeting." Mrs Dowling stated that she "had never heard the word 'fiduciary' before this litigation and [she] recall[ed] asking [her] solicitor what that word meant after this litigation was commenced".

(a) The lunch was suggested by Mr Quinn as an opportunity to further discuss and consider the Bellmere project and for Mr and Mrs Quinn to meet Mrs Dowling.

(b) Aside from pleasantries and social conversations, the substantive discussion concerned the Bellmere project.

(c) The substantive discussion occurred in the dining room. There was discussion that the development would be undertaken by two companies Dowling Developments and Q Fabrics through another company Bellmere Developments. Mr Quinn said that Q Fabrics was his daughter's company and that she wanted to get into property and this project would be a good learning opportunity.

(d) There were documents on the dining room table comprising plans and lot layouts.

(e) Mr Quinn and Mr Dowling spoke about how much the Bellmere development would cost and which consultants would be involved. As the discussion became more detailed, Mrs Dowling left the discussion to prepare lunch, which was wraps.

(f) Mrs Dowling did not make any contribution to or participate in any meaningful way in the ongoing discussion about Bellmere. The ensuing discussion about Bellmere was mainly between the two men.

(g) During the meeting, Mr Quinn made no financial disclosure to Mrs Dowling or the meeting generally.

(h) There was no discussion about fiduciary duties or the proposed Unit Trust Deed and proposed Shareholders and Unit Trust Deed for the Bellmere project.

(i) There was no agreement or consensus reached to the effect that there was to be a "QD Joint Venture" to be carried out by Q Fabrics and Dowling Developments to acquire and develop real estate jointly in the future.

(j) There was no agreement of any such kind reached at the meeting.

(k) At about 3.30pm the Quinns went to leave. It is likely that at around this time, there was some limited, general discussion about the First Workbook to the effect that Mr Dowling had a document which contained important dates, including for Bellmere, and described potential projects which had been discussed as between Mr Dowling and Mr Quinn to different extents to that point in time.

(l) Mr Quinn asked for a copy of the First Workbook. Mr Dowling went to his office and came back with a copy of the First Workbook. He gave that document to Mr Quinn and Mr Quinn asked for an emailed version. Mr Quinn did not make any notes on the document and the Quinns then left.

• [91] As to Mr Quinn's recollection to the effect that at the very end of the meeting, Mr Dowling had said words to the effect that it had been a good meeting and that "we would move forward together to look at opportunities together, as two families", I am not satisfied that those words were said. I reject Mr Quinn's evidence to the effect that there had been a shaking of hands for the purpose of signifying an agreement had been reached. The reality at this point in time was that Mr Quinn and Mr Dowling had been exploring, and were no doubt intending to continue to explore, business opportunities on a case by case or project by project basis. In any such case, their liabilities and obligations to each other or any of their entities were yet to be negotiated and identified.

The period between 3 July 2011 and the Jimboomba opportunity

• [92] On 5 July 2011, Mr Quinn sent an email to the Bellmere vendors, copying in Mr Dowling, which relevantly gave formal notice under clause 2.1 of the Bellmere Put and Call Option Deed that Bellmere Developments had "satisfied itself regarding due diligence".
• [93] On 6 July 2011, Outlet Centre Developments Pty Ltd ("Outlet Centre Developments") was incorporated. The initial directors were Mr Quinn, Mr Dowling, Mr Holtzer and Mr Preston. The company had 100 issued shares. Mr Quinn held 30, Mr Dowling held 30, Mr Preston held 30 and Mr Holtzer held 10.
• [94] By 13 July 2011, Mr Quinn and Mr Dowling were about to commence due diligence on Couran Cove and, for that purpose, access confidential documents. On 13 July 2011, Mr Dowling sent an email to Mrs Quinn which was copied to copied Mr Quinn and Mrs Dowling. The subject line was "Couran Cove". The email relevantly stated:

Good morning I am signing a CA for the above (for JQ and I) under Dowling Developments Pty Ltd ATF Dowling Equity Trust and a payment of 10,000 refundable deposit is required to get access to the data room.

We will transfer from our account can you please transfer $5,000 and Nicky will send a receipt to you confirming payment.

JQ do you want a simple deed confirming we are doing this together on a 50/50 I am happy if you do please advise".

• [95] The reference to "a CA" was to a confidentiality agreement. Mr Quinn replied to Mr Dowling's email as follows "Craig, your confirmation in this email is sufficient for us. We will arrange for the funds to be transferred today".
• [96] Mr Dowling was cross examined about his 13 July 2011 email. It was suggested to him that at the 3 July 2011 lunch, "you discussed ... what you were doing with Couran Cove was part of the 50/50 arrangement". It was also suggested to him that the "simple deed" he referenced in the email was not a deed to be confined to the payment of $10,000 but rather was to govern the parties' relationship in respect of the Couran Cove project more generally. Mr Dowling rejected each of these suggestions. He notably said that the simple deed was to "control the payment of the fund". He said that, at this point in time, "there wasn't confirmation that we were doing a project. We hadn't even understood whether it was suitable to acquire Couran Cove." He added that "if the due diligence under that confidentiality agreement was satisfactory and we got a termed paper put forward, I was happy to explore that on a 50/50 basis.".
• [97] I accept Mr Dowling's evidence about these matters. I find that when he referenced a "simple deed" in his 13 July 2011 email he was contemplating a deed that was limited to governing the relationship between the parties concerning the $10,000 payment required to access confidential documents relating to Couran Cove. At this point in time there was no "Couran Cove project" as such as Mr Quinn and Mr Dowling had not conducted due diligence and had not formed a view as to whether they should pursue the acquisition of Couran Cove. It is also noteworthy that the 13 July email spoke in terms of Mr Dowling signing the confidentiality agreement "under Dowling Developments" but for "JQ and I" and that the email sought Mr Quinn's confirmation that "we are doing this together on a 50/50". I find that Developments executed the confidentiality agreement in respect of Couran Cove on behalf of Mr Quinn and Mr Dowling. The confidentiality agreement was not executed for the benefit of Dowling Developments or Q Fabrics.
• [98] On 18 July 2011, Mr Dowling sent an email to Mr Quinn with subject "Bellmere" which stated "We should finalise unit and shareholder deeds".
• [99] In or about July 2011, Mr Quinn and Mr Dowling were still considering the prospect of developing Yeppoon. On 28 July 2011, Dowling Yeppoon was registered and on 29 July 2011 the Dowling Yeppoon Trust settled. It was not suggested to Mr Dowling in cross examination that, upon or after its registration, Dowling Developments novated the General Agreement to Dowling Yeppoon. A company, Shelf Company Services Pty Ltd ("Shelf Company"), was used to register Dowling Yeppoon. Shelf Company's invoice for this service was paid by Quinnco, which treated the amount of the payment as a loan to Dowling Yeppoon. On or about 29 July 2011, Dowling Yeppoon entered into a put and call option agreement to purchase a half share of the Yeppoon properties. In cross examination, Mr Quinn described "the essence" of that transaction as having required Mr Dowling to "contribute a total of $6 million in cash, which he didn't have, but which he sought to raise via an information memorandum being prepared by PricewaterhouseCoopers".

"[Counsel]: So this isn't a list of the joint venture projects or the projects which were caught by the [General Agreement] and the fiduciary duties attendant upon it?

[Mr Quinn]: No, it was a list of opportunities that we were considering at the time.

[Counsel]: Was there a list ever drawn up of the projects that were the subject of the general agreement and caught by the fiduciary duties?

• [108] Mr Dowling described the Second Workbook as a spreadsheet prepared by Mr Quinn "with various work-related matters that I had discussed with [him] from time to time". He said that the spreadsheet did not contain a list of property developments that he and Mr Quinn had discussed undertaking exclusively or jointly but "general work-related matters that had come up in the course of my conversations with Mr Quinn". Mr Dowling accepted that he had discussed North McLean with Mr Quinn at some point and that a Mr Brian Wearing had been involved. He accepted that he had discussed Raceview Bunnings and Beattie Road. He accepted that Stafford, Innes Park and Sand Mine had also been the subject of general conversations with Mr Quinn. By way of further explanation of the items on the Second Workbook, Mr Dowling said in cross examination:

"Some of these things were opportunities that I was having just general conversations with Mr Quinn about ... things that I was actually looking at. They were not anything other than that."

• [109] Mr Dowling interpreted the reference to "QD" as being a reference to Quinn Dowling. He said "QD" was an abbreviation referencing Mr Quinn's surname and Mr Dowling's surname. He never understood "QD" to be a reference to "some oral joint venture between the Quinn and Dowling families". He had never heard Mr Quinn use the term "QDJV" or "QD Joint Venture". Mr Dowling said that at the time of receiving the Second Workbook he was unsure why Mr Quinn had prepared the document or sent it to him. Under cross examination, Mr Dowling said "I don't know why [the Second Workbook] was sent through". He then agreed with the proposition that the receipt of the Second Workbook "came as a bolt out of the blue".
• [110] I reject Mr Quinn's evidence that the reference to "QD" was the name that he and Mr Dowling used to describe the way the families had joined up in an overarching joint agreement. As I have found, the General Agreement had not been made. Further, Mr Quinn's evidence in this regard was contradicted by other evidence he gave in which he claimed to have used the expression "QD joint venture" or "QD JV" in "every conversation" when he was describing the agreement that bound Mr Quinn and Mr Dowling when they discussed what to do with particular projects.[30] By the expression "QD Joint Venture" he said he was describing or referencing an established binding relationship. He was adamant that he used those particular expressions "because there was a joint venture between the Quinn family and the Dowling family". Anomalously, the expressions "QD Joint Venture" or "QDJV" were never used by Mr Quinn or Mr Dowling in any contemporaneous document. I accept Mr Dowling's evidence, and I find, that the reference to "QD" was simply intended and understood to be an abbreviation referencing Quinn Dowling in circumstances where the parties had not entered into any overarching agreement giving effect to a joint venture.
• [111] I reject Mr Dowling's evidence to the effect that he was unsure why Mr Quinn had prepared, and sent to him, the Second Workbook. On 5 August 2011, Mr Dowling had sent an email to Mr Quinn which materially read, "I will send through a full update on all projects on Saturday". I infer from this email that Mr Dowling had discussed with Mr Quinn providing an update on the status of all potential projects that had been discussed as between Mr Dowling and Mr Quinn. Mr Quinn then seems to have undertaken the task of preparing the Second Workbook. The purpose of preparing the Second Workbook was to provide a record of the status of each of the 22 items, which had been discussed at varying levels as between Mr Quinn and Mr Dowling. I further find that the Second Workbook contained a list of items or projects which had been discussed at varying levels between Mr Quinn and Mr Dowling and did not contain a list of projects or property developments which Mr Dowling and Mr Quinn had discussed undertaking exclusively or jointly or had agreed to undertake exclusively or jointly.

"I have tried to be as comprehensive as possible, because sometimes the mere mention of a matter sparks a thought process that can lead to a result. Where I have requested comments from you or where you are able to add to what I have said can you be equally comprehensive back to me, as likewise your comments may spark a thought process for me that may lead to a result. It will take a massive joint effort but I am sure the answer lies in there somewhere".

• [114] As to this last passage of the email, it was suggested in cross examination to Mr Dowling, and he accepted, that Mr Quinn was suggesting that "if he threw ideas on paper and you threw ideas on paper that you might find a solution?". Mr Dowling rejected the suggestions that, at this time, he and Mr Quinn "were working together collaboratively to explore opportunities" and the preparation of the Third Workbook was part of that process. He accepted that he had been "looking at things and I was talking to Mr Quinn, discussing them on a project by project basis". Mr Dowling gave evidence to the effect that some of the projects on the Third Workbook were "dead", as is apparent from Mr Quinn's comments and some of the items were not projects but rather his industry contacts. He recalled that at this time Bellmere was the subject of an attempt at renegotiation, He considered that, as regards the projects identified in the First Workbook, "they were pretty well all dead here" and the balance of the projects were "projects that we were discussing on a project by project basis". On 31 October 2011, Mr Dowling sent an email to Mr Quinn which provided his "brief comments' in relation to the Third Workbook and stated that Mr Dowling would "keep on expanding".
• [115] I find that the purpose of preparing the Third Workbook was to provide an update on the status of projects which had been discussed at varying levels as between Mr Quinn and Mr Dowling. I further find that the Third Workbook contained a list of items or projects which had been discussed at varying levels between Mr Quinn and Mr Dowling and did not contain a list of projects or property developments which Mr Dowling and Mr Quinn had discussed undertaking exclusively or jointly or agreed to undertake exclusively or jointly. I reject Mr Dowling's evidence that at this time, he and Mr Quinn were not working together collaboratively to explore opportunities. I accept Waller's submission that the Third Workbook was the product of collaborative work and the sharing of information with a view to possibly pursuing particular projects. I find that at this time, Mr Quinn and Mr Dowling were working together to explore possible opportunities and the Third Workbook was prepared as part of that cooperative process. The Third Workbook did not evidence commitments or undertakings but rather a collection of ideas and possibilities.
• [116] It is uncontroversial that no further workbooks were produced after the Third Workbook.

I have been pondering on our conversation of yesterday re the above and your uncertainty when I asked whether your interest in it would be held via a QD entity. I admit to being perplexed given that I introduced the opportunity and even prepared the terms sheet that was submitted to commence the negotiation process.

I guess I had assumed that QD would have the equity in the project subject only to how much of the equity was necessary to be given away in order to secure the property. That is certainly what we have discussed all along."

• [120] Mr Quinn provided his recollection of the conversation of 11 January 2012. He said that he had inquired as to the status of the opportunity and Mr Dowling mentioned that there was a contract in place. Mr Quinn said he asked Mr Dowling "which QD entity would be the shelf company and Mr Dowling had replied that he was uncertain whether "it would be a QD entity or one of his own". It is noteworthy that in his email, Mr Quinn did not refer to or assert the existence of the alleged General Agreement. Mr Quinn said that shortly after his email, Mr Dowling rang him. Mr Quinn's evidence was as follows:

"He told me that the position was that he had acquired the interest in the property with Gordon Saul, but that he had an obligation to contribute his share of the equity in cash, and that if we (which I took to mean QD) were able to come up with the cash then the interest held by Dowling in the name of Dowling Developments would be a QDJV asset but that if we were unable to come up with the cash his agreement with Gordon Saul was that he would forfeit the share held by Dowling Developments. Whilst I could not quite reconcile these statements with Craig's apparent prevarication the previous day, I did not take the matter further. I felt that I had adequately conveyed my expectation that opportunities introduced by one or the other of us would belong to the joint venture and Craig had appeared to me to accept the position set out in my email. I do not recall that I ever followed up Craig about Heritage Gardens after this, as my strong sense was that, at the time he was not in a position to come up with the cash".

• [121] Mr Quinn did not produce any file note of the conversation preceding or following his email. Mr Dowling gave no evidence about any phone conversation before or after the email. He said that he remembered reading the email but thinking that Heritage Gardens was something that he was purchasing himself. I accept that a phone conversation occurred prior to the 12 January 2012 email. I find that during that conversation, Mr Quinn inquired whether Mr Dowling's interest would be held via a Quinn Dowling entity and Mr Dowling informed Mr Quinn that he was uncertain whether the interest in Heritage Gardens would be held by him or a Quinn/Dowling entity. I otherwise reject Mr Quinn's recollection of each conversation. Mr Quinn's recollection was not supported by any contemporaneous file note or document. I do not accept that Mr Dowling ever used the expression QDJV. As to the second conversation, the terms of the email did not ask for further discussion or an explanation from Mr Dowling. Had the second conversation occurred, I do not accept that Mr Quinn would have been prepared to proceed on the basis that there was no record of that conversation in circumstances where he had apparently not been able to reconcile statements made by Mr Dowling. I do not accept that in such circumstances Mr Quinn would have been content to proceed on the basis that he had adequately conveyed an "expectation". I found Mr Quinn's evidence about the second conversation to be a self-serving, reconstruction. I find that the email conveyed no more than that Mr Quinn had made an assumption, but he was not necessarily insisting upon that assumption being upheld or vindicated.
• [122] By in or about August 2012, Mr Quinn and Mr Dowling were in negotiations in relation to the purchase of Couran Cove. On 8 August 2012, Mr Quinn emailed Mr Dowling about what Mr Quinn proposed to say to a Mr John Punch, a solicitor from the firm SPG lawyers. Mr Quinn was then proposing for SPG lawyers to act on behalf of Mr Quinn and Mr Dowling and their interests in relation to the Couran Cove purchase. The email relevantly said "I propose to simply advise him that you and I are in a JV together to purchase [Couran Cove], but that because of FH involvement I am to remain a silent partner in all respects. I think it may be a good idea for you to try and have a meeting with John and another lawyer there [Matthew Brook]... Please reinforce the confidentiality of the transaction as walls have ears on the Gold Coast and I don't want this to get out of the bag until the Vendor has signed on our terms." The reference to "FH" was to Ferrier Hodgson, the receivers of Couran Cove. Under cross examination, Mr Dowling resisted the suggestion that he knew that the reason why Mr Quinn was to remain a silent partner was because he had a chequered financial history and was known to Ferrier Hodgson from previous dealings. Mr Dowling claimed that he "didn't make much of" Mr Quinn having to remain a silent partner and had no understanding as to why Mr Quinn was to remain a silent partner. I reject this evidence. From this point, Mr Dowling effectively became the public face of the Couran Cove purchase. He became the sole director and shareholder of companies involved in its acquisition. I find that he knew from 8 August 2012, that because of Mr Quinn's financial reputation with the vendors of Couran Cove, Mr Quinn's involvement in the acquisition could not be disclosed to the vendors.

"... we elected to acquire each component in a different entity. However, we created an umbrella company in trust of which Couran Cove Holdings was trustee, and that would be... essentially the joint venture vehicle and have the unit trust and the shareholders and unit holder's agreement as part of it. Each of the other companies that were formed - I'll give you an example, we formed CCH Infrastructure to hold the infrastructure assets at Couran Cove- they were unit trusts in which Couran Cove Holdings, the parent, held 100% of the units, so that they were effectively subsidiaries of Couran Cove Holdings. That was the case almost exclusively but the company that was engaged to operate the business of Couran Cove was a company without a trust. That was CCH Services Pty Ltd. That was accompany in which Couran Cove Holdings had shareholding but it wasn't a trust as such ... we decided that outside of the QD joint venture, each family should ... acquire ...31 strata-titled home units-... CCH Stradbroke was nominated from the Quinn family and CCH Dowling was nominated from the Dowling family for that purpose. ... those units were agreed to sit outside of what we were doing as QD".

• [135] As at on or about 30 November 2012, CCH Stradbroke was negotiating to mortgage a number of its units at Couran Cove to PPY Developments Pty Ltd ("PPY"). Mr Dowling received correspondence from PPY's solicitors on that date pertaining to the proposed mortgage.
• [136] Further, late in the afternoon on the day of settlement of the Couran Cove acquisition, Mr Quinn sent Mr Dowling an email under the subject "CCH: Moving Forward". The email relevantly concluded:

"I am keen to let the dust settle for a couple of days and then sit down with Rory yourself and Nicky and crack a bottle of champagne to celebrate what is the first chapter in the QD story. All 4 of us deserve a giant pat on the back for getting this across the line".

• [137] Later that evening, Mr Dowling replied "JQ, Agree totally mate you are a great partner. Here is to our future". In cross examination in relation to this email exchange, Mr Dowling was asked "So you're contemplating here that there'll be more projects in the future between the two of you?". He replied "At that point in time, yes, it was an exciting time and we would have looked at projects on a project by project basis". Mr Dowling conceded in cross examination that at the time when "we bought Couran Cove", Mr Quinn's financial position was of no concern to him. He explained that answer by reference to the circumstance that the arrangements with respect to Couran Cove were with Waller, a company he knew to be a trustee of a unit trust.
• [138] On or about 5 December 2012, Mr Dowling, as the director of CCH Stradbroke, executed mortgages in favour of PPY as mortgagee.
• [139] On 7 February 2013, CDOC Pty Ltd ("CDOC") was registered with Mr Dowling being the sole director and shareholder. As the company name suggests, CDOC was registered as "a vehicle for acquiring the OC".
• [140] On 4 March 2013, an article appeared in the Gold Coast bulletin entitled "Banks close in on Quinn as property plummets". The article relevantly referred to one bank, NAB, attempting to take possession of the Quinn's home and another bank, BankWest, chasing them for more than $11 million. The article referred to receivers having been appointed over the OC, Angas Securities being owed $15 million and Hutchinson builders $9 million. Mr Quinn forwarded the article to Mr Dowling by email. Mr Dowling said that in response to that email and having read the article, he didn't make any inquiries of Mr Quinn as by that time, "I'd actually purchased Couran Cove with them". However, Mr Dowling accepted that, at this time he was "very concerned" about Mr Quinn's financial status. Mr Dowling said that from this point he didn't make inquiries of Mr Quinn and the only projects he contemplated undertaking with Mr Quinn "related to Couran Cove in my mind".
• [141] On 8 April 2013, Mr Dowling sent an email to Mr Quinn under the subject "General". The email relevantly said "Whilst on the plane I have completed the check list in bullet point I will expand tonight in the hotel room and send through. I have reviewthe last two months emails and created from this on all our projects for QD etc".

"-1yr horizon: Contract in growth areas as much residential/commercial (retail land) with sufficient flexibility to get out if we need to.

-2nd yr-Development of assets in yr 2 Preference to JV- sell down risk

• [146] The file note then has a section headed "Opportunities". Under that heading, the following appears:

• [147] I make the following findings about the 13 November 2013 meeting. There was such a meeting at which Mr Dowling provided his vision of a 3 year plan in which QD, being an abbreviation of the surnames of Mr Quinn and Mr Dowling, might pursue property development opportunities. The vision encompassed entering contracts in growth areas during the first year, developing assets in the second year with a preference to joint venture to sell down risk with the possibility of an IPO in the third year. There was no mention of a "QD Joint Venture" or an all encompassing Joint Venture. The meeting identified opportunities as listed in the file note which might be explored as part of the visionary plan.
• [148] On 21 November 2013, Mr Quinn sent an email to Mr Dowling in relation to a parcel of land situated at 81 Caloundra St, Landsborough. In his email, Mr Quinn relevantly said "You may think I am completely mad but I have followed through on the land being sold by the Receiver ... and I think we should take the opportunity to make an offer". By later that afternoon, Mr Dowling had caused CDOC to register its interest to enter into negotiations to purchase 81 Caloundra St Landsborough for $815,000 subject to due diligence.
• [149] In December 2013, Mr Dowling and Mr Quinn considered an opportunity to obtain management and letting rights in a Port Douglas property called Latitude 16. Mr Dowling wrote about that opportunity in an email to Mr Quinn sent on 3 December 2013, "John, We should try and obtain exclusive DD for a period of 90 days this may be a good opportunity ... What are your thoughts."
• [150] On 24 January 2014, Mr Quinn's proposal for a Personal Insolvency Arrangement was accepted by his creditors. Mr Dowling was advised of that outcome by an email from a solicitor who appeared at that meeting on behalf of Stradbroke. On 4 February 2014, the Gold Coast Bulletin published an article headed "Property investor John Quinn dodges bankruptcy in $300k insolvency agreement". The article referred to Mr Quinn being "under water to the tune of $93 million" and to the $300,000 being paid by the owner of Couran Cove, Mr Dowling.
• [151] On 10 February 2014, Mr Quinn emailed Mr Dowling in relation to a luxury yacht, Atlantic Princess, that was then available for purchase for $1.2 million. Mr Dowling replied by email:

"John, I have seen this and love it we should look at getting it. Great value."

• [152] Mr Dowling said in cross examination that the yacht was "not something that I was looking at buying for us personally, it was something I was looking at for Couran Cove".
• [153] On 11 February 2014, PPY's lawyers served upon Stradbroke's lawyers notices of default under the mortgage and exercise of power of sale. On 12 February 2014, Mr Quinn sent an email to Mr Dowling which expressed surprise at the issuing of the notices and indicating that Mr Quinn would find out more and come back to Mr Dowling. Mr Dowling replied by email stating "John, This is not good". On 12 February 2014, Mr Dowling emailed Mr Brook, Stradbroke's lawyer asking for advice as to "what are the steps and affect on me as a director and personal". Mr Brook advised Mr Dowling about the limit on the amount that could be claimed under the mortgage ($2 million). Mr Brook noted that PPY would have the option to sell the property the subject of the mortgage, appoint a receiver to the land or take possession of the land. Mr Brook added "From a personal perspective, if CCH Stradbroke Pty Ltd is subject to receivership and/or external control, then if a credit report is conducted on you as a 'Director' of companies, the credit searcher would be able to see that you were the Director of a company that was subject to receivership. We are sure that yourself and John will appreciate the consequence on the Resort if receivers are appointed to units".
• [154] On 12 February 2014, a DOCA proposal was being circulated in respect of Quinnco. Mr Quinn sent an email that afternoon to Mr Paul Box of QBM lawyers indicating that CCH Stradbroke would be requesting that he attend a meeting on 18 February 2014 to vote in favour of the DOCA. On 13 February 2014, Mr Dowling emailed Mr Box, copying in Mr Quinn, seeking advice as to the implications and liability of the DOCA for Mr Dowling as a director of CCH Stradbroke. On 14 February 2014, Mr Dowling emailed Mr Box, copying in Mr and Mrs Quinn and relevantly stated "... I cannot make a decision on the DOCA and must have it held pending your advice". On 17 February 2014, Mr Box had not yet received documents which he needed to review to provide advice to Mr Dowling. On 18 February 2014, Quinnco's creditors approved a deed of company arrangement for Quinnco. Mr Box appeared at the meeting representing Stradbroke.
• [155] As at 4 March 2014, Mr Dowling was refusing to sign the DOCA. Emails exchanged between Mr Dowling and Mr Quinn on 4 March 2014 reveal that Mr Dowling remained concerned about the availability and source of funding for the PPY liability. He sent an email to Mr Quinn which relevantly said "... in the event of a receiver being appointed this will impact the whole resort in personal reputation corporate reputation and value which will be a big problem for me. Hence why I need to know where the funds are coming from". Mr Quinn sent an email to Mr Dowling relevantly asserting that if CCH Stradbroke did not sign the DOCA then Quinnco would go into liquidation which would "change my life considerably". Mr Quinn advised Mr Dowling of his understanding that there was "no liability to you personally by signing it". Mr Dowling continued to refuse to sign the DOCA and in an email sent on 4 March 2014 relevantly said "Whilst you say the PPY is unrelated that may or may not be the case as this could affect me personally. I have for weeks waited patiently to understand how your funding the PPY $2mil, and still waiting to get certainty, what I do know if the funding isn't in place it will have a massive implication to my family". The record of emails evidences that Mr Dowling's concerns about the funding for the PPY liability remained unresolved as at in or about June and July 2024.

(a) In April 2014, they discussed an opportunity to purchase an Abel Rent-A-Car business;

(b) In June 2014, they were involved in discussions about the possible pursuit of a development opportunity at Stafford. As at 17 March 2015, Mr Quinn and Mr Dowling were still looking into that opportunity and discussing, by email at least, the suitability of a draft proposed contract and special conditions;

(c) In October and November 2014, Mr Dowling and Mr Quinn were engaged in discussions about the prospect of purchasing a property at Toolakea, in Townsville. On 6 October 2014, Mr Quinn sent Mr Dowling a copy of the Toolakea Term Sheet for his perusal and asked Mr Dowling to contact him so that "we can discuss in detail". Mr Quinn noted that the term sheet was "not a contract and was not binding";

(d) On 3 December 2013, Mr Dowling had emailed Mr Quinn saying that they should try and get "exclusive [due diligence] for a period of 90 days" in respect of an opportunity described as Latitude 16 at Port Douglas. That opportunity was still under consideration as at 9 October 2014, when Mr Quinn emailed Mr Dowling and said "I will leave it to you to submit an offer if you think worthwhile";

(e) As at 14 March 2014, Mr Quinn and Mr Dowling were exploring an opportunity for Couran Cove Holdings to enter into a joint venture arrangement with Buyco Pty Limited ("Buyco") for the purpose of further developing Couran Cove and acquiring a property in Wandoan. Those negotiations were continuing as at 20 September 2014 at which point there was a draft joint venture agreement under consideration;

(f) As at 12 February 2015, Mr Quinn and Mr Dowling were considering an opportunity in relation to an entity called "Home Australia", a national building company. Mr Dowling and Mr Quinn corresponded about, inter alia, a lengthy series of some 23 questions to be directed to the vendor and broker. On 17 March 2015, Mr Dowling sent an email to Mr Quinn inquiring whether he had presented an offer in respect of the Home Australia opportunity, to which Mr Quinn replied "in train at the moment".

• [158] None of these opportunities were realised or came to fruition. The findings I have made about the 13 November 2013 meeting and the pursuit of opportunities after that meeting, wholly undermine the suggestion made by Mr Dowling in cross examination that, from in or about March 2013, because of his awareness of Mr Quinn's financial problems, the only opportunities he pursued with Mr Quinn were opportunities related to Couran Cove or which would extricate Mr Dowling and his family from Couran Cove. I reject that evidence.

• [159] The Jimboomba Property was a large rural property known as "Four Wynnes" situated at 348-474 Cusack Lane, Jimboomba.
• [160] In 2008, Mr Dowling and Mr Littler, who was then a purchasing officer at Buildev, had met with the owner of the Jimboomba Property, Mrs Wynne. At the time, Mrs Wynne was interested in selling the Jimboomba Property. Mr Dowling and Mr Littler introduced themselves to Mrs Wynne and inspected the Jimboomba Property. At the time, the global financial crisis was unfolding and Buildev did not proceed any further in relation to the Jimboomba Property.
• [161] In early 2014, Mr Gassman, a town planner became aware that the Logan City Council was updating its Planning Scheme and seeking submissions. The Jimboomba Property was designated as "Rural". A change to the planning scheme would make the development of the Jimboomba Property more feasible. Mr Gassman obtained Mrs Wynne's consent to put forward a submission to the Council to have the area in which the Jimboomba Property was situated, reclassified to Emerging Communities. Mr Gassman was known to Mr Dowling. Mr Gassman spoke to Mr Dowling about the Jimboomba Property and the submission that had been made by his firm to the Council.
• [162] By January 2014, Mr Littler had left Buildev and had been a real estate agent for some five years. He had remained in contact with Mrs Wynne. At some time prior to 9 January 2014, Mr Littler had contacted Mr Dowling and confirmed that Mr Dowling might be interested in the Jimboomba Property. On 9 January 2014, Mr Littler sent an email to Mr Dowling regarding the Jimboomba Property. The email attached Mr Dowling's handwritten notes from the 2008 discussions and noted that "Saturday morning would suit me for a chat with [Mrs Wynne] and property inspection, wait your reply".
• [163] Mr Dowling recalled that he was interested in exploring the possibility of developing the Jimboomba Property. He recalled that sometime in January 2014, he had asked Mr Quinn if he could "set up a meeting with John Littler for me". He recalled giving Mr Quinn Mr Littler's phone number. Mr Dowling provided quite a detailed recollection that Mr Adani had been in the office at the time. Mr Dowling had been extremely busy and was, effectively, too busy to arrange, either by phone or email, a meeting for his own benefit with Mr Littler. He had received and taken a phone call from Mr Quinn which lasted for a couple of minutes and during that phone call made the request of Mr Quinn. Mr Quinn recalled that, sometime in January 2014, Mr Dowling had spoken to him about the Jimboomba Property and described it as "a cracker" and was anxious to confirm that the property was still available. Mr Quinn recalled that Mr Dowling had told Mr Quinn that he should get Mr Littler into Mr Quinn's office for a chat. There was no file note of that conversation.

A quick response to some quiries at yesterdays meeting.

Yes ... to the question about water. The adjoining estate across the road has mains water and as we thought only biocycle - home sewerage treatment plants. The township of Jimboomba has sewage. The population of Jimboomba as of census 2011 was 11,837."

• [170] By 20 March 2014, Mr Quinn and Mr Dowling had apparently not had any further discussion about or concerning the Jimboomba Property. On that date, Mr Gassman emailed Mr Dowling in the following terms:

Reason for the missed call ..... will you chase up that Wynne block at Jimboomba please? Am getting calls from others and am putting them off. Thanks Mate."

• [171] Mr Dowling forwarded the email to Mr Quinn with the message "John Did you meet use and john littler". On 21 March 2014, Mr Quinn sent an email to Mr Dowling which advised that Mr Littler had confirmed "the meeting for 10.30am tomorrow to meet at the Jimboomba shopping centre". Mr Quinn ended the email by saying "I will see you there then".
• [172] On 21 March 2024, Mr Quinn opened a file in the name "Bellmere Developments Pty Ltd re Jimboomba Property". At the time, the directors and shareholders of Bellmere Developments were Mrs Dowling and Clare Quinn. Mr Quinn gave evidence in chief that he opened the file in that name following a discussion with Mr Dowling. Mr Quinn recalled that in that discussion, "we agreed that as Bellmere Developments had already been established as a QD joint venture vehicle, there was no need to incorporate a new entity". In re-examination, Mr Quinn said "I had proposed prior to the meeting at Jimboomba that Bellmere Developments be used as a vehicle for that opportunity, and whilst Bellmere had as its unitholders Q Fabrics and Dowling Developments, all opportunities since Couran had Waller Projects and Dowling Yeppoon as the participants in the QD joint venture and there was no question that those participants would participate in the Jimboomba opportunity as well." There is no file note of the discussions referred to by Mr Quinn in chief or in re-examination.
• [173] In his evidence in chief, Mr Dowling denied that there had been any conversation on or around 21 March 2014 in which he and Mr Quinn had agreed that "as Bellmere Developments had already been established as a QD joint venture vehicle, there was no need to incorporate a new entity". He said that at this time, he had not started due diligence, had not determined whether it was viable to acquire the Jimboomba Property and not given any thought to what vehicle might be used to acquire the property. He also denied that there was any reference to a "QD Joint Venture vehicle". It was not suggested to Mr Dowling in cross examination that there had been any such discussions about Bellmere Developments. It was not suggested to him that the file had been opened with his knowledge or consent. Rather, the height of what was put to Mr Dowling was that, at the meeting at Jimboomba, Mr Quinn "had a file he was creating in the name of Bellmere Developments?". Mr Dowling answered that question by saying he had no recollection of Mr Quinn having such a file. I accept Mr Dowling's evidence on this issue. I reject Mr Quinn's evidence in chief and re-examination concerning the alleged discussions with Mr Dowling about using Bellmere Developments for the Jimboomba Property. I find that there were no such discussions.

Thankyou for your time today, and giving Craig and I the opportunity to discuss the potential purchase of your Jimboomba property. Craig has already spoken to Brian Gassman, and hopefully by the middle of next week we will have a better understanding of the potential yield, the process and the timing. I will try to get a broad outline of the proposal to you by the end of next week."

• [182] On 28 March 2014, Mr Quinn sent Mr Dowling an email which relevantly said:

On Saturday last week we advised Sue Wynne that we would seek to have an offer to her in writing by the end of this week. I am conscious of the nuances within the family and the further complications of Sue providing titles as security for the development funding, and that you think we should do this vendor funding as stage 2 of a 2 step process. My concern is that unless the agreement is made up front for the provision of titles it will then be impossible to get her to agree at a later stage when the values have increased as a result of the work done by the Purchaser. I have drawn to email as per our discussions, and if it is to be amended this can be simplified fairly easily."

• [183] The email then included a proposed offer to Mrs Wynne. Mr Dowling gave evidence that prior to receiving this email, he had not had any discussions with Mr Quinn about the formulation of an offer. I reject that evidence as the email on its face objectively reflects discussions having occurred, including about vendor funding. Mr Dowling gave implausible evidence, which I reject, that when he received the email from Mr Quinn, he knew that it was referencing discussions which had never occurred but he "just didn't feel the need ... to correct him".
• [184] On 29 March 2014, Mr Quinn followed up Mr Dowling with an email which read:

"Craig, Did you have any further thoughts on this. I think we need to get something to Sue this weekend."

• [185] Mr Dowling replied to Mr Quinn by email "Ok we need to start somewhere".
• [186] Later, on 29 March 2014, Mr Quinn sent an email to Mrs Wynne copied to Mr Littler and Mr Dowling under the subject Four Wynnes. The email provided as follows:

Further to our discussions last weekend please find below the terms of an offer on the Four Wynnes property and the steps as we see them towards completion of any Contract to purchase the property with the purchaser being a Special Purpose vehicle ("SPV") incorporated specifically to undertake this venture:

1. SPV would enter into a contract with SW at a purchase price of $8m ("the Purchase Contract");
2. The Purchase Contract would provide for the right for SPV to make the required applications to Logan Council; enter upon the land for the purpose of achieving a MCU/DA/OPW (a sunset clause of 4 years to be provided); require SW to sign such documents as might be required to be submitted to Council; effect a subdivision of the land into say 5 master lots; effect a subdivision of each master lot; market and sell lots within each master lot in the name of SW with the sum of $25,000.00 of the net proceeds of sale to be paid to SW on settlement of the sale of each Lot and deducted from the sale price in the Purchase Contract; carry out the works necessary in order to create separate titles within each of the master lots; and perhaps most importantly allow a mortgage to be secured against the land (as a third party mortgage) to cover the cost and expense of doing all of the above including the working capital required by SPV in undertaking the subdivision(s);
3. The mortgage referred to in para 2 above would be a loan to SPV, but secured against the land and thereby would require SW to enter into the loan agreement with the financier with a corresponding indemnity to be provided by SPV;
4. All monies advanced under the third party loan would be non recourse to SW personally;
5. We would suggest that a specific Power of Attorney be granted by SW in favour of SPV to ensure the prompt and efficient turnaround of any dealings required during the development;
6. The Estate is to be named 'Four Wynnes' and SW is to retain the first right to name the streets and parks within the estate;
7. In order to defer the liability for Stamp Duty the contract will need to be conditional on all approvals being granted on conditions satisfactory to SPV in all respects and be structured as a Put and Call Option Agreement pending the approvals having been granted by Logan Council;
8. All sums referred to are exclusive of GST;
9. SPV will provide the appropriate covenants on delivery and performance.

Sue, there will no doubt be a lot of detail required to flesh out the final agreement but we need to start somewhere, and I would appreciate your feedback on the above in the first instance.

• [187] In his evidence in chief, Mr Quinn volunteered "I would concede, immediately, that the offer was not pitched at a level that was likely to be attractive". He explained that concession by reference to some six aspects of the offer: the price, the contract was to be conditional on all approvals being obtained, the purchaser had the benefit of a put and call option, there was a four year period to complete, the purchaser was only to make payments when selling lots and then only $25,000 would be paid from the net proceeds of sale and there would be a mortgage on the land. It may also be observed that the offer contemplated Mrs Wynne entering into a loan agreement with a financier on the basis that she would have no recourse to the loan and be indemnified by a yet to be identified special purpose vehicle. That feature was being advanced by Mr Quinn and Mr Dowling in circumstances where Mr Littler had said to Mr Quinn that Mrs Wynne would not suit a joint venture and preferred an outright sale. It is also noteworthy that the offer requested Mrs Wynne's "feedback on the above in the first instance".
• [188] On 9 April 2014, Mrs Wynne sent an email in these terms:

I have considered the terms and price of an offer to purchase my property, Four Wynnes.

The time frame, conditions and price are unacceptable to me, there fore I do not wish to continue negotiations.

• [189] On 9 April 2014, Mr Quinn forwarded Mrs Wynne's email to Mr Littler and Mr Dowling with the message "John, perhaps you should contact Sue and ask her to advise the terms that would be acceptable so Craig can ascertain whether or not it is viable to continue and/or to make a further offer."
• [190] On 15 April 2014, Mr Littler sent an email to Mr Quinn, copied to Mr Dowling which relevantly said:

"Sue wishes to sell and has agree to continue to negotiate under some new conditions. At this stage there has been no mention of Deposit or payments on the way though. Sue is quite aware to achieve a MCU it will take time therefore has agreed to a conditional contract subject to receiving same. Settlement to be on or before 90 days of receiving MCU ... At this stage there has been no mention on receiving a DA/OPW. Price at this stage is still negotiable. All of the above is subject to final agreement from Sue and is open to discussion. At this stage please forward correspondence through myself". It set out some relevant factors in any offer and continued, "All the above is subject to final agreement from [Mrs Wynne] and is open to discussion".

• [191] Mr Quinn's 9 April email had suggested that Mr Littler might obtain information as to the terms that would be acceptable to Mrs Wynne so that Mr Dowling could ascertain whether or not it was viable to continue or to make a further offer. Under cross examination, Mr Quinn accepted that the 15 April email from Mr Littler provided "only a fraction" of the information needed to enable Mr Dowling to make an assessment as to whether it was viable to proceed to make an offer. Earlier, Mr Quinn had implausibly resisted the proposition that at the time of his 9 April email, a lot more information was required before any decision could be made to proceed. In cross examination, Mr Quinn said that a joint discussion was required as between him and Mr Dowling as to whether to make a further offer and such a discussion in fact occurred on 15 April 2014. He had made no reference to that discussion in either of his two statements nor had he made a file note of the discussion. His recollection of the discussion provided for the first time under cross examination was as follows. The discussion occurred after the receipt of Mr Littler's 15 April email, when Mr Quinn telephoned Mr Dowling. The discussion was a lengthy discussion concerning the Jimboomba Property. The conversation "centred around the email and the price that we should pay for it whether we should make another offer to Mrs Wynne at that point or not". Mr Quinn and Mr Dowling were unable to agree upon a price and agreed to "let the position sit for the time being". I reject Mr Quinn's evidence about a discussion with Mr Dowling on 15 April 2014 which I regard as self serving and contrived. The notion that there was an agreement to "let the position sit for the time being" is inconsistent with an email that Mr Quinn sent to Mr Dowling on 2 May 2014, which reads "Do you want me to recast the offer to accord with [Mr Littler]'s thoughts?". The terms of that email strongly suggest that there had been no discussion on 15 April. It is uncontroversial that Mr Dowling never responded to Mr Quinn's 2 May 2014 email. I find that as at and from 9 April 2014, Mr Quinn adopted a position whereby he was effectively deferring to Mr Dowling to decide whether any further offer should or could be made to Mrs Wynne in respect of the Jimboomba Property.
• [192] I make the following findings about the dealings and relationship between Mr Dowling and Mr Quinn and their related companies to this point in time in relation to the Jimboomba Property:

(a) The alleged General Agreement had not been made;

(b) Mr Dowling had introduced the Jimboomba Property to Mr Quinn;

(c) They had not exchanged or been privy to any material confidential information in relation to the Jimboomba Property;

(d) They had not incurred any expenses or made any payments in relation to the Jimboomba Property;

(e) They had not secured any exclusive rights to negotiate for the acquisition of, or to otherwise deal with, the Jimboomba Property;

(f) They had not entered into any agreements by which they assumed liabilities in relation to the Jimboomba Property;

(g) They had not formed any view or made any assessment as to whether it was economically feasible for them to acquire the Jimboomba Property;

(h) They had not yet undertaken sufficient work on, or sufficiently investigated, the Jimboomba Property, such as to enable them to make an assessment or form a view as to whether the Jimboomba Property could be acquired on terms that made it a good investment.

(i) They had not agreed upon the terms on which they could or would seek to acquire the Jimboomba Property;

(j) They had not discussed or agreed upon the structure and the corporate vehicles for any possible acquisition of the Jimboomba Property;

(k) They had made an offer to purchase the Jimboomba Property which, objectively, was uncommercial and unrealistic and which neither genuinely expected would be accepted. Notably, the offer had requested "feedback", as if an acceptance was not in contemplation.

• [193] Mrs Wynne gave evidence to the effect that she formed a view that Mr Quinn was not genuine, and she did not think that she would have been prepared to sell the Jimboomba Property to him. She explained that her view that Mr Quinn was "not genuine" arose because "he wanted to pay for small lots and I wanted to sell the whole lot at once". Mr Littler recalled that Mrs Wynne had said to him that "she did not like Mr Quinn" and if Mr Quinn remained involved "there would be no further discussions". I understood the substantive effect of Mrs Wynne's evidence to be that she thought the 29 March offer, as made by Mr Quinn and Mr Dowling, was not a genuine offer. I find that the 29 March offer was not a genuine offer in the sense that it was not an offer which was made in the expectation that it would be accepted or seriously considered. I accept the defendant's submission to the effect that the offer described a markedly uncommercial transaction. Mrs Quinn may well have been offended by the offer and held some resentment towards Mr Quinn as the offer was made under his signature (albeit with the permission of Mr Dowling). I have placed little weight on Mr Littler's evidence about Mrs Wynne not being prepared to deal further with Mr Quinn. I find that Mrs Wynne remained prepared to sell the Jimboomba Property, including to a purchaser that represented Mr Quinn's interests, so long as the price and terms were ultimately acceptable to her.

• [194] Before, during and after the events I have dealt with in relation to the Jimboomba Property, other matters and events were unfolding at Couran Cove. I make the following findings by reference to admitted documents or admissions or concessions made by Mr Quinn during his cross-examination.
• [195] The public reporting of Mr Quinn's financial difficulties had caused unrest amongst owners at Couran Cove. Mr Dowling received complaints and letters expressing concern about Mr Quinn's involvement in the financial affairs and management of Couran Cove. On 7 March 2014, Mr Dowling sent an email to Mr Quinn in which he asked Mr and Mrs Quinn to immediately resign as the asset managers at Couran Cove, which he described as being in "the best interests of CCH". On 8 March 2014, after having first provided a draft to Mr Quinn, Mr Dowling sent an email to Unit Holders at Couran Cove under the subject "Setting the Record Straight". In the email, Mr Dowling referred to his request to Mr and Mrs Quinn to resign as asset managers "to avoid any perception that their ongoing involvement will be detrimental to the business". The email noted that "Quinn Group have resigned effective immediately and will have no further involvement in the day to day operation of the Resort".
• [196] On 8 March 2014, Mrs Quinn sent an email to Mr and Mrs Dowling in which she expressed her devastation at "the false accusations being bandied about" concerning the Quinns. She described Mr Quinn as "the most honest and trustworthy, straight down the line person and black letter lawyer that I have ever met". She referred to the Quinns having "sweated blood" for Couran Cove. She thanked Mr and Mrs Dowling for their "unwavering faith, trust, support and loyalty". She added "You will also always have our faith, trust, support and loyalty ... John thinks a great deal of you Craig. He is lucky to have you as a friend".
• [197] In early-2014, the Couran Cove resort needed funding to keep the business afloat. Messrs Dowling and Quinn discussed CCH Infrastructure borrowing money. There was no prospect of borrowing other than on the security of real estate. On 14 March 2014, Mr Quinn sent Mr Dowling an email attaching a spreadsheet of units at Couran Cove indicating those which were subject to existing mortgages. Mr Quinn accepted that he sent this spreadsheet to Mr Dowling at Mr Dowling's request to inform Mr Dowling about what possible units were available as security to raise the money needed to keep the resort afloat.

• [199] One of the residential units on this list (Lot 191, BRP 106919) was owned by Stradbroke with the other units being owned by Holdings and subject to existing mortgages which meant they would not be available to be used as security for the loan from the ANZ Bank.
• [200] On 17 March 2014, Mr Quinn sent Mr Dowling an email which had the subject line "CCH Infrastructure Pty Ltd: ANZ" and relevantly stated:

Please find to follow the units put forward for this funding, showing the correction. I put a line through the one unit that has changed and provided the correct one next to it:

L191 BRP 106919 Lot 203 BRP 106918"

• [201] Lot 203 BRP 106918 was owned by Stradbroke.
• [202] Mr Dowling, at around this time, had been "casting around" for appropriate residential units that [Mr Quinn] or [Mr Dowling] or one of the Couran Cove companies had in order to satisfy the ANZ Bank's requirement for security so that a $1M [loan] could be borrowed by CCH Infrastructure to fund Couran Cove Holdings. Mr Dowling said to Mr Quinn that Mr Dowling did not have any Dowling units available and enquired whether "[we would] be willing to put up a [CCH Stradbroke] unit as security and my recollection is that we agreed to either one or two units to be provided for that purpose". At this time all of the units owned by Dowling were mortgaged.
• [203] On 21 March 2014, Mr Quinn sent Mr Dowling an email which raised an issue as to whether residential units already mortgaged as referred to in the email to Mr Giovanos had been offered to ANZ by way of security. On 30 April 2014, Mr Jamie Smith, a solicitor employed by Short Punch & Greatorix Lawyers emailed Mr Dowling and Mr Quinn with the subject line "CCH Infrastructure Pty Ltd - transfer of lots from CCH Stradbroke Pty Ltd" and relevantly stated:

"We confirm that all of the lots have registered in the name of CCH INFRASTRUCTURE PTY LTD. Jamie will send you a separate email with the Registration Confirmation Statements."

• [204] Mr Quinn then sent an email to Mr Dowling which relevantly asked Mr Dowling to confirm that "... these are the Units we discussed at the beginning of April, namely Rooms 2081 and 2902". Mr Dowling sent an email by reply to Mr Quinn which said:

We are raising funding to keep everything going as I have advised, we have no choice. Once the next round of funding comes through Brian is working on $10m this will be payout or the JV which ever is first."

• [205] Mr Dowling had told Mr Quinn that he was working with a Mr Brian Butler to refinance the debt on Couran Cove and that "as soon as that happened the units will be transferred back to [CCH Stradbroke] unencumbered". Mr Dowling and Mr Quinn were working on the BuyCo opportunity which provided for a $12M loan over securities at Couran Cove and "whichever of those opportunities occurred first in time, then the units of [CCH Stradbroke] would be transferred back to it". Mr Quinn believed that Mr Dowling would have transferred the CCH Stradbroke units back "had either of those opportunities arisen".
• [206] Mr Quinn telephoned Mr Matthew Brook of Short Punch and Greatorix Lawyers shortly after receiving Mr Smith's email of 30 April 2014 to find out which units were the subject of the 30 April email from Short Punch and Greatorix. Mr Brook told Mr Quinn which CCH Stradbroke units had been transferred to CCH Infrastructure.
• [207] The ANZ Bank made a loan in the amount of $1M to CCH Infrastructure.
• [208] On 26 May 2014, Mr Quinn sent an email to Mr Dowling "in strict confidence", which referred to an earlier meeting and "lengthy discussions with our family and [Waller]" and proposed for Waller to exit Couran Cove by offering up its units in the CCH trust. Mr Quinn noted "I am happy to remain as your personal advisor should you wish". In the email, Mr Quinn stated that "[m]y recent adverse publicity and the Quinn family's current financial circumstances" would potentially impede the future conduct and development of Couran Cove. The email acknowledged that "the PPY issue" remained unresolved. The email also contained this passage:

"The Quinn family (excluding Rory and I) apart from [CCH Stradbroke] has a $1.5m loan to [Holding], and with the recent transfer of the 5 [Stradbroke] Units to [Infrastructure] further loans of circa $1.3m (we acknowledge that you have committed to retransfer those 5 Units back to [Stradbroke] at your own cost, and we are relying on you doing so. This would obviously form part of any agreement for [Waller Projects] to exit. As you know we were extremely surprised that the transfer of these Units was undertaken without consent or even any discussion with us as representatives of the beneficiaries), together with a 50% interest in the net equity of CCH."

• [209] That passage stated that the "transfer" of the CCH Stradbroke units had occurred without "any discussion with us as representatives of the beneficiaries". According to Mr Quinn's concessions in cross-examination, CCH Stradbroke had accepted or been willing to put up one or two CCH Stradbroke units as "security". Mr Quinn's email to Mr Dowling of 30 April 2014 had also referred to a discussion at the beginning of April about units 2801 and 2901. It is unclear whether, by his 26 May email, Mr Quinn was attempting to make a distinction between units merely being offered as security and units being transferred for security purposes. There had certainly been discussion about some CCH Stradbroke units being offered as security and it would have been wrong to suggest otherwise. The passage of the email also apparently conveyed something akin to an acceptance of the position that CCH Infrastructure owed CCH Stradbroke "further loans of circa $1.3m" in consequence of the transfer of Stradbroke's units. The $1.3M figure reflected a recent Taylor Byrne valuation. There was also an acknowledgement by Mr Quinn that Mr Dowling had made a commitment to retransfer the five CCH Stradbroke units back to CCH Stradbroke "at your own cost". Presumably upon that retransfer, the loan of $1.3M was to be forgiven by CCH Stradbroke and/or the Quinn family.
• [210] On 27 May 2014, Waller removed CCH Stradbroke as the trustee of the CCH Stradbroke Trust.
• [211] On 11 June 2014, Mr Quinn sent an email to Mr Dowling, again "in strict confidence", referring to his earlier 26 May email, subsequent discussions and a request from Mr Dowling that Mr Quinn put forward his thoughts on the terms on which Waller might exit its investment in Couran Cove. In the email, Mr Quinn noted that the Quinn group was unable to "provide meaningful support to the debt requirements of the enterprise". The email referred to the Quinns removal as assets managers and their loss of an ongoing income stream. The email then outlined an 18 point proposal by which Waller might exit the investment at Couran Cove. The proposal linked payments to be applied in satisfaction of Mr Quinn's personal insolvency agreement and Quinnco's DOCA obligations and contemplated a "survival fund ... pending Quinn group being able to regroup and obtain another fee paying consultancy".
• [212] Mr Quinn's emails of 26 May and 11 June 2014 did not make any reference to any overarching relationship between the families or entities they controlled or to any ongoing commitments or obligations owed as between the families or entities they controlled outside of the Couran Cove investment.

" ... the only reason CCH remains financially alive today is because (Waller Projects) via (CCH Stradbroke) had managed to retain a number of securities unencumbered and 6 of these worth in excess of $1.5m were transferred without the knowledge or consent of [Waller Projects] in order to raise debt and enable the CCH Group to pay its creditors as and when they fell due."

• [214] On 5 August 2014, Mr Dowling ceased to be a director of CCH Stradbroke.
• [215] Between 5 February 2015 and 17 June 2015, Dowling Yeppoon negotiated the buy- out of Waller's interests in Couran Cove.
• [216] By September 2015, Mr Quinn appears to have resiled from his previous recognition of a loan to CCH Infrastructure in the amount of the collective value of the transferred CCH Stradbroke units. Relevantly, on 30 September 2015, Mr Quinn emailed Mr Dowling in these material terms:

"The transfer of these 6 Home Units was done without the knowledge or consent of [Waller Projects] and in direct breach of the terms of the Trust Deed dated 5th October 2012. As at the date of the Transfer the Home Units had a collective value of $1,575,000 in accordance with the valuation prepared by Taylor Byrne dated 19 April 2014 as set out in the Schedule attached. ... Your actions as referred to above constitute:

(c) A Criminal act(s) including but not limited to Fraud, Stealing, Dishonesty, Conspiracy - refer to The Criminal Code of Queensland."

• [217] On 13 November 2015, Mr Quinn sent an email to Mr Dowling, copied to, inter alia, Mr Lachlan McIntosh, who had bought Mr Dowling out of Couran Cove, in which he referred to Mr Dowling as "nothing but a thief ... and a compulsive liar".
• [218] On 17 December 2015, Mr Quinn caused CCH Stradbroke to commence proceedings in this court against CCH Infrastructure, Mr and Mrs Dowling and the ANZ Bank ("the Stradbroke litigation"). The statement of claim in the Stradbroke litigation alleged an intention to defraud Stradbroke of six units including Lot 203. It was alleged that the ANZ Bank, in making the loan and taking the securities, acted in concert and fraudulently with CCH Infrastructure and Mr and Mrs Dowling.

The Jimboomba Property is acquired and developed by FW Estate

• [219] Mr Dowling gave evidence in chief to the effect that by May 2014, his relationship with Mr Quinn had broken down because of the issues at Couran Cove and Mr Quinn's dire financial situation and he was not discussing with Mr Quinn undertaking any new property developments together. I do not accept that evidence. Despite the strains in the relationship caused by the events at Couran Cove, the PPY mortgage and the financial position of Mr and Mrs Quinn and their related entities, Mr Quinn and Mr Dowling continued to discuss business opportunities. Mr Dowling said that his understanding based on his experience of dealing with Mr Quinn at Couran Cove was that Mr Quinn did not have any ability to contribute capital. He also said that it did not occur to him that he needed to seek permission from Mr Quinn to negotiate the terms on which Mr Dowling might acquire the Jimboomba Property. As to these latter two matters, they appear to me to be objectively likely and I accept Mr Dowling's evidence in this regard. Mr Quinn's emails to Mr Dowling dated 26 May and 11 June 2014 had made it plain that the Quinns had no available capital of any substance and Mr Dowling, as subsequent correspondence indicates, did not make any attempt to conceal from Mr Quinn the fact that he had pursued and entered into a contract in respect of the Jimboomba Property.
• [220] In or about May 2014, Mr Gassman telephoned Mr Dowling and told him that Mrs Wynne had contacted him and was not comfortable dealing with Mr Quinn. That phone call appears to have led to Mr Dowling, later in May 2014, speaking to Mr Littler about the Jimboomba Property. On 21 May 2014, Mr Littler sent Mr Dowling an email in which he outlined the broad terms and conditions of purchase which Mr Dowling had communicated to him that morning. The proposed terms and conditions materially involved a purchase price of $8,500,000, a deposit of $20,000, the contract being conditional upon the purchaser receiving a development approval/material change of use from the local council and the purchaser paying the vendor $25,000 every six months until the issue of a development approval/material change of use.
• [221] Between 17 July 2014 and August 2014, Mr Dowling negotiated the purchase of the Jimboomba Property. He incorporated FW Estate as the trustee of a discretionary trust. On 23 August 2015, FW Estate, as purchaser, and Mrs Wynne, as vendor, entered into a contract for the sale of the Jimboomba Property. The purchase price was $10 million inclusive of GST. The deposit was $20,000. The contract was expressed to be conditional upon the purchaser obtaining a "Satisfactory Development Approval" which was defined to include a material change of use for residential purposes. In October 2015, the Jimboomba Property was re-designated "Emerging Community". On 9 December 2015, FW Estate became the registered owner of the Jimboomba Property. FW Estate subsequently developed the land with AVJennings into a large estate.

Mr Quinn's knowledge of, and conduct in relation to, FW Estate's acquisition and development of the Jimboomba Property

• [223] Mr Quinn gave evidence about a meeting with Mr Dowling on 3 March 2015 in which the Jimboomba Property was discussed. He recalled that Mr Dowling had "volunteered that he had arranged for the Jimboomba property to be under contract". He also recalled that Mr Dowling had communicated the following matters: there was a put and call option and a two year settlement period, the price was $10 million, Mr Dowling had paid $45,000 and there were further modest payments to be made periodically, Mr Dowling had received advice that the Jimboomba Property could be subdivided into 1,246 residential lots, together with a large retirement village and Herron Todd White had opined that the blocks would have a value of $32,000 each in their present state. Mr Quinn also recalled that "Craig said to me that the contract was a QD opportunity" and the "put and call option was something he would send to me". Mr Quinn said that "it seemed to me that the terms of the deal were somewhat similar to my initial proposal ... because the land was to be locked up for a relatively long period at a modest cost whilst inquiries were made of the local authority and State Government." He said that "he was taken aback by this information", as Mr Dowling had not responded to his 2 May 2014 email and there had been no subsequent discussion about the Jimboomba Property.
• [224] Mr Quinn said he "quizzed" Mr Dowling about his having negotiated and entered a contract without his involvement but his concerns were reduced because Mr Dowling had volunteered the information, the terms were "relatively good" and Mr Dowling "indicated" that it was a QD opportunity and said that he would forward the put and call option. Mr Quinn made a file note of the meeting. In relation to the Jimboomba Property, the file note relevantly records "CD has land under contract". The note makes reference to a "Put & Call", "2 yrs to settle", "1246 res lots + large retirement village", "$10m", "HTW saying $32k per block as is", "CD will send thru the Put & Call". There is no mention in the file note of "QD" or of the contract being a "QD opportunity" or a "QD contract". In his evidence in chief, Mr Dowling could not recall this discussion. Under cross examination he rejected suggestions that he had told Mr Quinn that he had taken a contract "for QD" and that he had mentioned a "put and call option". He said he would not have used those words as he had, in fact, caused FW Estate to sign a conditional REIQ contract. He said that at this time "I didn't need - feel the need to discuss anything with Mr Quinn about Jimboomba at all".

"DD Can you tell me though, we have heard along the grapevine that you might consider that you have an interest in something that Craig is doing in Jimboomba, do you know anything about that, like have you ever mentioned that to anybody

JQ Ah, well, I think there might have been a discussion about that

DD OK, because that is one of the things we are are going to want released, like Craig is telling me that, well for a start my understanding, unless you guys have ever put any money into it, but if you assert an interest in that you are going to have to let me know because that is one of the things I specifically seek a Release on, so do you assert an interest in that or not

JQ Well the actual deposit for the payment of the deposit has come out of our money

DD When you say our money can you just be more specific because I am going to need to get instructions on it, what do you mean by that

DD OK, all right, I will have to get some instructions because I think this is one of the issues that we are going to need to ventilate and get rid of because we just can't have you knocking each other on the head forever and a day, it has to come to an end one way or another, so I will definitely, so what do you wan time to talk to Craig about it that regard, what do you assert you have. What xxxx think you have (over talking)

JQ Well we haven't made any assertions at this point in time, we have made no assertions at this point in time, however we are aware that our money has gone to pay the deposit, I went with Craig to negotiate the terms of the Contract, I prepared the Terms of the Offer, I delivered the Terms of the Offer to the Vendor, the Vendor initially rejected those and then Craig has gone back, apparently and been able to sign up an option over the property subject to rezoning, that is all I know at this stage

DD Obviously, there is two sides to the story, I will talk to Craig about that because obviously he wants a Release of everything ...

JQ He is not going to get a release of everything David.

JQ So, where did that come from by the way regarding Jimboomba

DD Well you said to me it's only a Release in relation to Couran Cove and I know the only other thing that Craig is doing is Jimboomba, so that is why I asked you point blank what it is you said about Jimboomba because it is obviously something about that and Craig has mentioned to me that somebody had said to him somewhere along the way you realise John has inferred an interest in Jimboomba and I think Craig has gone I don't know how it's a separate entity, its this and that, and you have obviously got your version of events so that is how it has come up

JQ ... I haven't even looked at any depth at the Jimboomba claim I can tell you.

JQ ... but if it is the case that he has used money from our funds to pay the deposit and it was a matter that was part of a business relationship involving the two families, you are saying I should just walk away from that ...

DD No what I am saying to you is you are going to need to weigh out what you are getting out of Couran against these other Claims and the validity of them and the maximum amount you think you can extract from that and make a decision. Because if you want to maintain those other Claims you are just going to have to give up what ever you are getting out of Couran because Craig wants to walk away he is not getting anything out of it....

DD .... I am just going to have a high level discussion with Craig about it for now I am not going to inflame the situation but I need to tell you me what you are prepared to do and what I am prepared to do

JQ I wouldn't even mention it at the moment, don't enflame him, it will make his chest worse.

DD OK I will wait for you to come back to me when do you think you will get back to me.

• [233] I make the following findings about the conversation between Mr Quinn and Mr Dowd on 18 February 2016:

(a) Mr Quinn made no mention of the General Agreement or the QD Joint Venture;

(b) Mr Quinn made no mention of a fiduciary relationship having existed by reason of a course of dealing between the parties;

(c) Mr Quinn made no mention of any discussions he had previously had with Mr Dowling in which Mr Dowling had acknowledged or accepted that the Jimboomba Property was a QD Joint Venture opportunity or a QD opportunity;

(d) At this time, Mr Quinn had not "looked at" the basis for a claim in respect of the Jimboomba Property;

(e) Mr Quinn made no reference to Q Fabrics or Waller, Dowling Developments or Dowling Yeppoon;

(f) At this time, Mr Quinn could not articulate the basis for a claim other than to say that the claim arose "if it is the case" that the deposit was paid using money from the CCH bank account and the Jimboomba Property was a "matter that was part of a business relationship involving the two families";

(g) At Mr Quinn's insistence, Mr Dowd indicated that he would not raise the matter of Jimboomba with Mr Dowling until such time as Mr Quinn had further considered the possible claim he wished to advance in respect of the Jimboomba Property and come back to him, which Mr Quinn indicated he would do on the following Monday or Tuesday.

• [234] Mr Dowd was not called as a witness by the defendants. Mr Dowling did not give evidence of any discussion with Mr Dowd following on from Mr Dowd's conversation with Mr Quinn. I find that as of 18 February 2016, Mr Dowling had heard from unidentified people that Mr Quinn may wish to assert a claim in respect of the Jimboomba Property. I find that during his 18 February 2016 conversation with Mr Quinn, Mr Dowd raised this matter with Mr Quinn and Mr Quinn advised that he had not looked at any such claim in depth and did not commit to the basis on which such claim was to be advanced. I find that Mr Quinn insisted that Mr Dowd not raise the matter with Mr Dowling at that time and indicated to Mr Dowd that he would come back to Mr Dowd on the following Monday or Tuesday after he had given further consideration to the possible Jimboomba claim. There is no evidence that Mr Quinn ever came back to Mr Dowd on the following Monday or Tuesday or at any time thereafter.
• [235] Following his discussion with Mr Dowd, in mid to late February 2016, Mr Quinn conducted searches of Council planning records and discovered that FW Estate had applied for a preliminary approval for a material change of use. At around and from this time, Mr Quinn accepted, and I find, that he was deliberately, consciously monitoring the progress of the development of the Jimboomba Property being undertaken by FW Estate with a view to bringing a claim against Mr Dowling. He searched the Council's records again in August 2016 and discovered a planning and development committee recommendation of 19 July 2016. He said that he delayed bringing proceedings because he was "heavily engaged" with the sale of Couran Cove, "heavily engaged" in relation to the Stradbroke proceedings and was aware that planning approvals had not been finalised and "we had time to bring that claim". I find that since in or about February 2016, Mr Quinn monitored the development of the Jimboomba Property with a view to bringing a claim against Mr Dowling. In late April 2019, as a result of a release to the Australian Stock Exchange, Mr Quinn learned that AVJennings was to acquire the remaining 50% of the Jimboomba Property and the purchase would be settling in June 2019. Mr Quinn then caused a caveat to be lodged over the Jimboomba Property on 30 May 2019. On 31 May 2019, Mr Quinn caused to be served 17 letters to various parties, including AVJennings, advising of Waller's caveat lodged over the Jimboomba Property the previous day.

• [237] Question 1 is: "Was the General Agreement made as alleged in paragraphs 10(a) to (f) of the [fifth statement of claim]". It is agreed that in respect of all of the issues raised by Question One, Waller bore the burden of proof.
• [238] The pleading of the General Agreement is quite convoluted.
• [239] The first aspect of the pleaded case is that the General Agreement was made at the lunch meeting on 3 July 2011. That agreement is alleged to have been an oral agreement between Dowling Developments and Q Fabrics. The agreement is alleged to have been made by Mr Quinn (alternatively Mr and Mrs Quinn) acting for Q Fabrics and Mr Dowling (alternatively Mr and Mrs Dowling) acting for Dowling Developments. The General Agreement is alleged to have been an agreement that Q Fabrics and Dowling Developments would carry out a joint venture, being the QD Joint Venture, to acquire and develop real estate jointly. Having regard to my earlier findings, I find that the General Agreement was not made at the lunch meeting on 3 July 2011. As I have found that the General Agreement was not made, it follows that there was no later novation of such an agreement by Dowling Developments to Dowling Yeppoon and/or by Q Fabrics to Waller. Waller ultimately abandoned the allegations that there was an agreement in the nature of a pre-registration contract for the benefit of Waller and Dowling Yeppoon.
• [240] The second aspect of the pleaded case was to the effect that the General Agreement was "formed by Waller and Dowling Yeppoon" on 6 October 2012 or alternatively between 6 October 2012 and 30 November 2012. The use of the word "formed" was embarrassing in that it did not make clear whether a new agreement was alleged to have been made on the identified dates or whether there was alleged to have been a variation of the earlier agreement alleged to have been made on 3 July 2011. Waller's written submissions on this issue[32] did not clarify the position and, if anything, revealed the fragility of the allegations. In any event, having regard to my earlier findings in relation to the General Agreement, the email of 5 October 2012 and the conversation of 6 October 2012, the General Agreement was not made or varied or formed by Waller and Dowling Yeppoon on 6 October 2012 or between 6 October 2012 and 30 November 2012.
• [241] Accordingly, my answer to Question 1 is No.

• [242] Question 2 is: "If the answer to Question 1 is yes:

(a) Did the General Agreement give rise to the fiduciary obligations alleged in paragraphs 46 to 51A of the [fifth statement of claim]?

(b) Was a term of the General Agreement that the obligations set forth in the SUD Fiduciary Duties Clause would apply to all dealings between Waller and Dowling Yeppoon in connection with the QD Joint Venture as alleged in paragraph 10(h) of the [fifth statement of claim]?

(c) Are Dowling Yeppoon, Mr Dowling, Mrs Dowling and/or [Dowling Developments] entitled to a declaration that the General Agreement is void, or an order for rescission of the General Agreement as alleged in paragraphs 10(h), 10(j), 44C and 46A of the [sixth defence] and 47A and 47B of the [counterclaim as contained in the sixth defence]?"

• [243] As will be apparent, Question 2 was required to be answered, if my answer to Question 1 was Yes.
• [244] As to Question 2, because my answer to Question 1 is No, it is not necessary for me to answer Question 2.
• [245] Although it is not necessary to answer Question 2, there were issues raised by that question as to whether certain representations, described as Financial and Good Partners representations, were made by Mr and Mrs Quinn, Q Fabrics and/or Waller and relied upon by Mr and Mrs Dowling in entering into the General Agreement. The defendant relevantly bore the burden of proof in relation to those issues.
• [246] I have made findings as to Mr Dowling's knowledge of Mr Quinn's financial difficulties as of, and immediately prior to, 3 July 2011. Relevantly, Mr Dowling knew that:

(a) the OC site had been sitting dormant since late 2008, there was a large debt owed in respect of that site of at least $16 million which had been due for repayment on 29 March 2011 and there were "enormous costs to complete";

(b) the builder, Hutchinson, had long since left the site, was owed $3,5 million and had a second mortgage over the property;

(c) Mr Quinn had been seeking "short term" finance from Mr Saul and also dealing with a Chinese company and a Sydney consortium but had not been able to obtain finance;

(d) it was likely to have been catastrophic for Mr Quinn from a financial perspective if he could not get the debt on the OC refinanced.

• [247] I have also found that in March 2013, Mr Dowling had been "very concerned" about Mr Quinn's financial status. Further, despite Mr Quinn's personal insolvency arrangement, the funding issues with the PPY mortgage and the issues with the Quinnco DOCA, Mr Quinn and Mr Dowling continued to discuss and explore business opportunities between April 2014 and at least March 2015.
• [248] Against the background of the evidence and these findings, I am not satisfied that, as at 3 July 2011, any of the pleaded representations had been made to Mr Dowling. Even if they were, Mr Dowling's subsequent conduct in relation to his dealings with Mr Quinn make it objectively, highly unlikely that, had the representations been made, as at in or about 3 July 2011, he would have relied upon them to discontinue negotiations and decline to enter into any agreements, on his behalf or on behalf of Dowling related entities, with Mr Quinn or any Quinn related entity. I also do not accept that Mrs Dowling's views about Mr Quinn would in any way have been determinative of whether Mr Dowling, acting on his own behalf or on behalf of Dowling related entities, would have continued to negotiate and enter into agreements with Mr Quinn or any Quinn related entity. In that regard, the evidence demonstrates to my satisfaction that the exploration and pursuit of potential business opportunities and projects on behalf of Dowling family interests was consistently undertaken by Mr Dowling without any apparent consultation with Mrs Dowling.

• [249] Question 3 is: "Further or alternatively:

(a) Did Waller and Dowling Yeppoon, by Mr Quinn and Mr Dowling respectively, hold a mutual confidence that, where a potential project or opportunity became known to either party that the party considered suitable to acquire and to develop jointly, that party could refer the opportunity to the other party, and any activities carried out by the parties in respect of such a project or opportunity would be carried out for their joint advantage only?

(b) Did the alleged mutual confidence give rise to the fiduciary obligations alleged in subparagraph 10(g) and (i) of the fifth statement of claim?

(c) Did Waller and Dowling Yeppoon owe the fiduciary obligations alleged in subparagraph 10(g) and 46 to 51A of the fifth statement of claim?

• [250] In Hospital Products Ltd v United States Surgical Corporation,[33] Mason J delivered a judgment which, although dissenting in the result on the facts, is regarded as "an important and correct statement of principle".[34] The judgment makes reference to "accepted fiduciary relationships" as being relationships of trust or confidential relations.[35] In Gibson Motorsport Merchandise Pty Ltd v Forbes,[36] Finn J said that the fact that one party to a relationship subjectively trusted another, be it in the course of negotiations or otherwise, "is neither necessary for nor conclusive of the existence of a fiduciary relationship". After making that important observation, his Honour noted an apparent inconsistency of position when courts speak of a fiduciary as a person "occupying a position of trust and confidence" and of a fiduciary relationship as being one in which "one party is shown to repose substantial trust or confidence in the other".[37] His Honour resolved that apparent inconsistency by identifying the distinguishing obligation of a fiduciary as the obligation of loyalty. His Honour remarked that once the character of the obligation was understood "the apparent inconsistency ... evaporates".
• [251] The accepted or traditional fiduciary relationships include, but are not limited to, the relationships of trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company and partners. Mason J identified the critical feature of these relationships as being that "the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense".[38] The relationship gives the fiduciary "a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position".[39] Where Mason J used the expressions "for", "on behalf of" and "in the interest of", that language signifies that the fiduciary agrees or undertakes to act in a "representative" character in the exercise of his or her responsibility.

"The fact that the arrangement between the parties was of a purely commercial kind and that they had dealt at arm's length and on an equal footing has consistently been regarded by this Court as important, if not decisive, in indicating that no fiduciary duty arose."

• [253] However, care is required to not overstate the position. In Hospital Products,[44] Mason J made the following cautionary observations:

"There has been an understandable reluctance to subject commercial transactions to the equitable doctrine of constructive trust and constructive notice. But it is altogether too simplistic, if not superficial, to suggest that commercial transactions stand outside the fiduciary regime as though in some way commercial transactions do not lend themselves to the creation of a relationship in which one person comes under an obligation to act in the interests of another. The fact that in the great majority of commercial transactions the parties stand at arm's length does not enable us to make a generalisation that is universally true in relation to every commercial transaction. In truth, every such transaction must be examined on its merits with a view to ascertaining whether it manifests the characteristics of a fiduciary relationship."

• [254] That the present case does not fit within any clearly established category of fiduciary relationship and involves commercial conduct, is not necessarily a barrier to the recognition of a fiduciary relationship. The High Court has recognised that in a case not involving a traditional category of fiduciary relationship which occurs in a commercial context, the critical feature of the fiduciary undertaking or agreeing to act for or on behalf of or in the interest of another person in the exercise of a power or discretion which will affect the interest of that other person in a legal or practical sense is to be found by reference to the facts.[45] In Coomber v Coomber,[46] Fletcher Moulton LJ famously observed:

"Fiduciary relations are of many different types ... There is no class of case in which one ought more carefully to bear in mind the facts of the case ... than cases which relate to fiduciary and confidential relations and the action of the Court with regard to them."

• [255] The inquiry into the facts is concerned with matters of substance. Hence, as Finn J observed in Gibson Motorsport,[47] merely ascribing the label "joint venture" to a business relationship does not of itself render that relationship fiduciary for some or all of its purposes. In Edmonds v Donovan,[48] an authority upon which Waller placed particular reliance, the facts involved an agreed joint venture in which profits were to be shared concerning a particular project.
• [256] An exemplar of a decision involving careful regard to the facts is United Dominions Corporation Ltd v Brian Pty Ltd.[49] The High Court considered a joint venture involving three parties, UDC, SPL and Brian. The three parties had been joint venturers in land development. UDC acted as the principal financier with the balance of the funds being provided by SPL and Brian. The percentage participation of each joint venturer had been set. By September 1973, the parties had each made substantial payments to SPL which was acting as the project manager for the development of the land. On 24 October 1973, before the joint venture agreement was concluded, SPC mortgaged the land to UDC as security for borrowings by SPL. UDC was aware that the land registered in the name of SPL was held by it in circumstances which required SPL to account to its intended partners. Two further mortgages, each of a subsequently acquired adjoining parcels of land, were executed by SPL in UDC's favour. Unknown to Brian, the mortgages each contained a collateralization clause which had the effect of subjecting the land to debts incurred by SPL which were extraneous to the joint venture. The joint venture agreement was executed in July 1974. The land development realised a substantial profit but Brian did not receive from UDC either repayment of its contributions or its agreed share of the profit. UDC claimed to retain all profits because of the collateralization clauses and to apply the profits in reduction of amounts owing to it by reason of borrowings made by SPL in relation to two other projects with which Brian had no connection whatsoever. Default occurred under the mortgages and SPL went into liquidation. Brian contended that the collateralization clauses breached the fiduciary duty which UDC owed to it as a joint venturer.

"To the extent that that submission involves a general legal proposition that the relationship between prospective partners or joint venturers cannot be a fiduciary one until a formal agreement is executed, it is clearly wrong. A fiduciary relationship can arise and fiduciary duties can exist between parties who have not reached, and who may never reach, agreement upon the consensual terms which are to govern the arrangement between them. In particular, a fiduciary relationship with attendant fiduciary obligations may, and ordinarily will, exist between prospective partners who have embarked upon the conduct of the partnership business or venture before the precise terms of any partnership agreement have been settled. Indeed, in such circumstances, the mutual confidence and trust which underlie most consensual fiduciary relationships are likely to be more readily apparent than in the case where mutual rights and obligations have been expressly defined in some formal agreement. Likewise, the relationship between prospective partners or participants in a proposed partnership to carry out a single joint undertaking or endeavour will ordinarily be fiduciary if the prospective partners have reached an informal arrangement to assume such a relationship and have proceeded to take steps involved in its establishment or implementation."

• [258] The joint judgment then analysed the facts in the following way:[52]

"In the present case, the relationship between UDC, Brian and SPL had plainly assumed a fiduciary character prior to 24 October 1973 when SPL gave the first of the mortgages to UDC. By that time, the arrangements between the prospective joint venturers had passed far beyond the stage of mere negotiation. Each had, by then, agreed to be, and been accepted as, a participant in each of the proposed joint ventures, if both or either of them went ahead. Each had made or agreed to make financial contributions towards the costs of the project or projects in which it or he had agreed to participate. SPL was acting as agent for the proposed joint venturers in relation to the establishment of each of the joint ventures and as trustee of those funds with which it had already been entrusted. In so far as Brian was concerned, it was a fundamental element of the substratum of the fiduciary relationship that then existed that the subject land, which was being purchased with joint venture funds for joint venture purposes, would be held available to be devoted to any ensuing joint venture or joint ventures and that Brian, as an accepted joint venturer who had already made financial contribution towards the proposed hotel joint venture, was and would remain able to participate in the net profits in accordance with its share in the relevant joint venture. ... the participants in each of the then proposed joint ventures were 'associated for ... a common end' and the relationship between them was 'based ... upon a mutual confidence' that they would 'engage in [the] particular ... activity or transaction for the joint advantage only'. It matters not, for present purposes, whether that relationship is seen as that which may exist between prospective partners or joint venturers before the terms of any partnership or joint venture agreement have been settled or whether it is seen as a limited preliminary partnership or joint venture to investigate and explore the possibilities of an ultimate joint venture or ventures. On either approach, it was a fiduciary one."

• [259] Gibbs CJ relevantly reasoned as follows:[53]

"UDC was not a financier dealing at arm's length with SPL and entitled to leave it to SPL to disclose the terms of the mortgage to the persons, including Brian, for whom SPL was acting, but was in a relationship with those persons which, if not one of partnership, was one between persons who, intending to become partners, had already embarked on the partnership venture, of which the execution of the mortgage was an incident. Moreover, UDC knew that it would be contrary to the understanding between the parties, later to be elevated into a formal agreement, if SPL were to grant the mortgage on terms to which Brian did not agree and for purposes unconnected with the joint venture. There was no reason to believe that Brian had agreed or would agree to the inclusion of the collateralization clause, which was so obviously adverse to its interests. Although it is not easy to attempt to define the circumstances in which a fiduciary relationship will be found to exists... there was, in the circumstances of the present case, a relationship between UDC and Brian based on the same mutual trust and confidence, and requiring the same good faith and fairness, as if a formal partnership deed had been executed."

• [260] The facts in UDC v Brian have been cited as an example of a "collaborative" or "horizontal" relationship to which the notion of mutual trust and confidence was readily able to be applied.[54] However, whether or not a relationship between joint venturers is fiduciary depends upon the form of the particular venture and the content of the obligations the parties are undertaking.[55] In Gibson Motorsport,[56] Finn J said:

"If there be trust and confidence present in a business relationship and if it be claimed that the trust and confidence is a building block in establishing that the relationship was a fiduciary one .... it must be shown that that trust was given, that that confidence was reposed, in a context which was capable of attracting, and did attract, a duty of loyalty. In a setting such as the present this would necessitate it being shown that, having regard in particular to what had been agreed and done and to what in consequence each party could properly anticipate would be done, their relationship was such that each could reasonably expect the others to act in their mutual interest to the exclusion of each's own several interest in relation to at least a part or parts of the [subject matter] ..... Put shortly, if trust and confidence in another is to be relevant, it must relate to a reasonable expectation of loyalty."

• [261] Equity is less concerned with the classification of a relationship than it is with the substance of the relationship. The concern of equity is with whether the relationship is founded on "mutual trust and confidence" in a relevant sense, the critical question always being whether the transaction satisfies criteria which justify characterising the relationship between the parties as fiduciary.[57] In Birtchnell v Equity Trustees, Executors and Agency Co Ltd,[58] Dixon J considered a factual situation where there was an established partnership relationship involving a land agency business. After having stated that the relationship between partners was "of course, fiduciary" and noting an earlier observation to the effect that "a stronger case of fiduciary relationship cannot be conceived than that which exists between partners", his Honour the observed:[59]

"The relation is based, in some degree, upon a mutual confidence that the partners will engage in some particular kind of activity or transaction for joint advantage only ... The subject matter over which the fiduciary obligations extend is determined by the character of the venture or undertaking for which the partnership exists, and this is to be ascertained, not merely from the express agreement of the parties ... but also from the course of dealing actually pursued by the firm. Once the subject matter of the mutual confidence is so determined, it ought not to be difficult to apply the clear and inflexible doctrines which determine the accountability of fiduciaries for gains obtained in dealings with third parties."

• [262] In News Limited v ARL,[60] the Court relevantly observed:

"In the end, an important question - if not the question - is whether, in the words of Professor Finn:

'the actual circumstances of a relationship are such that one party is entitled to expect that the other will act in his interests in and for the purposes of the relationship. Ascendancy, influence, vulnerability, trust, confidence or dependence doubtless will be of importance in making this out, but they will be important only to the extent that they evidence a relationship suggesting that entitlement'."

• [263] In LAC Minerals v International Corona Resources,[61] La Forest J relevantly posed the question to be determined on the facts of that case as "whether the parties have reached a stage in their relationship where their expectations should be protected". In the same case, Sopinka J, after referencing the recognition of a fiduciary relationship as a "blunt tool of equity,"[62] observed that the element which gives rise to fiduciary relationships is the "implicit dependency by the beneficiary on the fiduciary", this condition moving equity to subject the fiduciary to its strict standards of conduct.[63] With reference to Tito v Waddell (No. 2),[64] Sopinka J said that it was important to recognise by way of caveat that the presence of conduct that incurs the censure of a court of equity in the context of a fiduciary duty cannot itself create the duty. In Tito, Megarry V-C had said:[65]

"'If there is a fiduciary duty, the equitable rules about self-dealing apply: but self-dealing does not impose the duty. Equity bases its rules about self-dealing on some pre-existing fiduciary duty: it is a disregard of this pre-existing duty that subjects the self-dealer to the consequences of the self-dealing rules. I do not think that one can take a person who is subject to no pre-existing fiduciary duty and then say that because he self-deals he is thereupon subjected to a fiduciary duty'."

• [264] This caveat reflects an important principle because, if a fiduciary relationship exists, as was also acknowledged by Dixon J in Birtchnell, a fiduciary is regarded as falling under a heavy burden or duty to establish that any transaction in the nature of self-dealing is a righteous transaction, open and fair and free from all objection.[66] The righteousness of a transaction is often demonstrated by the fiduciary obtaining the beneficiaries fully informed consent. The heavy burden applies because of the existence of the fiduciary relationship, and the inflexible doctrines which determine the accountability of fiduciaries, not because of any independent concern about self-interested pursuit of business opportunities.
• [265] In Gibson Motorsport, the appellants sought to characterise the relationship of negotiating parties as one of mutual trust and confidence where the parties had embarked on an enterprise without having settled the terms of a series of written agreements they contemplated making for the future conduct of their business. Notably, the relationships which the parties contemplated to exploit the business opportunity were ones based upon severally owned assets. That is, the relationship there being bargained for on the facts of that case was not one which of itself (or would have been) one having fiduciary characteristics. In that factual context, Finn J relevantly observed:[67]

"The use of the word 'mutual' here is unhelpful as it presupposes the answer to what actually was in issue: were each of the parties entitled in the circumstances to expect loyalty from the others and if so in what matters? Whatever may have been the courses open to be taken by the parties in defining their relationship given the business opportunity identified ....., that in fact taken and pursued was not one in which they established, or agreed to, mutual rights and obligations (or joint interests). The relationships they actually sought to establish in exploiting the business opportunity were ones based on severally owned assets, individual contracts and distinct business structures which served the several interests of the contractors. They may well have reposed a trust and confidence in each other reflecting an expectation that they could bring to an acceptable finalisation the various arrangements they had in contemplation. But that trust and confidence, if it was there, was not directed to the subordination of self interest to joint interest. There was nothing fiduciary about it."

• [266] I have made findings about the dealings and relationship between Mr Dowling and Mr Quinn and their related companies to the point in time when they considered and made an offer in relation to the Jimboomba Property. Relevantly:

(a) The alleged General Agreement had not been made;

(b) Mr Dowling had introduced the Jimboomba Property to Mr Quinn;

(c) They had not exchanged or been privy to any material confidential information in relation to the Jimboomba Property;

(d) They had not incurred any expenses or made any payments in relation to the Jimboomba Property;

(e) They had not secured any exclusive rights to negotiate for the acquisition of, or to otherwise deal with, the Jimboomba Property;

(f) They had not entered into any agreements by which they assumed liabilities in relation to the Jimboomba Property;

(g) They had not formed any view or made any assessment as to whether it was economically feasible for them to acquire the Jimboomba Property;

(h) They had not yet undertaken sufficient work on, or sufficiently investigated, the Jimboomba Property, such as to enable them to make an assessment or form a view as to whether the Jimboomba Property could be acquired on terms that made it a good investment.

(i) They had not agreed upon the terms on which they could or would seek to acquire the Jimboomba Property;

(j) They had not discussed or agreed upon the structure and the corporate vehicles for any possible acquisition of the Jimboomba Property;

(k) They had made an offer to purchase the Jimboomba Property which, objectively, was uncommercial and unrealistic and which neither genuinely expected would be accepted.

• [267] Mr Dowling made repeated references under cross examination to having considered properties and opportunities with Mr Quinn on a "project by project basis". He explained that he placed significance on due diligence and until due diligence had been completed, it was not possible to know that a property was suitable to acquire and develop. He said that he understood that his relationship with Mr Quinn was that they would look at opportunities but that it was only at such a point when a property had passed through due diligence and the parties had agreed in writing terms and conditions that they became bound to each other in respect of the property. I regarded that evidence Mr Dowling's genuine assessment of the nature of his business relationship with Mr Quinn. That evidence was consistent with the weight of the objective evidence. Historically, the two projects which had progressed or advanced to any significant extent were Bellmere and Couran Cove. With Bellmere, Mr Quinn and Mr Dowling had caused a contract to be signed, undertaken feasibility work, notified the vendor that their due diligence had been satisfied, paid a deposit, negotiated the terms of deeds that would govern their relationship for that project and then performed work between May and November 2011 in connection with the project. With Couran Cove, in the lead up the acquisition of the resort, they had paid money to access confidential documents for the purpose of conducting due diligence and entered into deeds which governed their relationship for that project.
• [268] I find that at the time when Mr Quinn and Mr Dowling were involved in considering the Jimboomba Property, their relationship was in the nature of an informal collaboration or association which involved them, from time to time, looking at business opportunities on a project by project basis. Not all the projects they looked at were, to the use an expression used by Mr Quinn "worked up". Their relationship was such that if they were to undertake a project, they would only do so after having conducted some kind of due diligence which satisfied themselves that the project was feasible, secured a contract over the property and agreed terms, evidenced by writing, on which they would undertake the project. I find that, as at that time when they considered and made an offer in respect of the Jimboomba Property, the relationship which existed as between Mr Quinn and Mr Dowling and/or their related family entities was not a fiduciary relationship. Nothing occurred in the particular context of their mutual dealings in relation to the Jimboomba Property to convert the relationship into a fiduciary relationship. They had not undertaken to subordinate their self interest to a joint interest in respect of the possible acquisition of the Jimboomba Property. Mr Dowling and his family interests were not bound to only pursue the Jimboomba Property by reference to the joint interests of the Quinns and Dowlings and/or their related entities. That Mr Dowling elected to pursue the Jimboomba Property without telling Mr Quinn might, at some level, be regarded as less than frank and candid conduct, but that characterisation does not establish a fiduciary relationship. As Megarry V-C observed in , it is wrong as a matter of principle to take a person who is subject to no pre-existing fiduciary duty and then say that because he self-deals he is thereupon subjected to a fiduciary duty.

• [270] Question 4 is: "Was the acquisition by FW Estate of the Jimboomba Property made in breach of any fiduciary duties owed by Dowling Yeppoon or Mr Dowling to Waller, as alleged in paragraphs 11 to 30 and paragraphs 52(a) and (b) of the fifth statement of claim?
• [271] For the reasons I have already expressed, the answer to Question 4 is No.

• [272] Question 5 is: "Is Waller precluded from obtaining relief by reason of any of the matters pleaded in paragraphs 1 to 10, 10A (insofar as the Services Account and CCH Account are concerned), 11 to 28, 30 and 30C, 41 to 41C and 44C of the sixth defence?"
• [273] Question 5 gave rise to a number of agreed issues which the parties labelled as "the Payor Issue", the "$15,000 Transaction Issue", "Whether $15,000 was an asset of the QD Joint Venture Issue", "Whether Waller is entitled to make the Second Misappropriated Payment Claim Issue", "the Second Payment Abuse of Process Issue", "the Second Payment Laches Issue", the "$20,000 Transaction Issue", "Whether $20,000 was an asset of the QD Joint Venture Issue", "Whether Waller is entitled to make the Fifth Misappropriated Payment Claim Issue", "The Fifth Payment Abuse of Process Issue", "the Fifth Payment Laches Issue" and "Waller's claims on the Jimboomba Property-Acquiescence and Laches Issues".
• [274] Waller's written submissions described these issues (save for the issue described as "Waller's claims on the Jimboomba Property-Acquiescence and Laches Issues"), as issues concerned with the "Misappropriated Payments claims" made by Waller in the proceedings "rather than the main dispute concerning the redirection of the opportunity to purchase the Jimboomba Property". Those submissions continued as follows: "The only sense in which the provenance and ownership of the proceeds used to pay the amounts ... are relevant is that they go to the allegations ... that the deposit for the purchase of the Jimboomba Property was paid partly using funds in which Waller had an interest. But [Waller] accepts that, based on how its case has been developed, a positive finding for it on those matters would not advance [Waller's] contention that the opportunity to acquire and to develop the Jimboomba Property attracted a fiduciary duty. That contention stands or falls by whether the opportunity was 'referred' within the terms addressed in ... these submissions. Waller's interest in the deposit is not, on [its] pleaded or substantive case, germane to the question of referral. Accordingly, in view of the exceedingly minor value at stake relative to the total amount in dispute, [Waller] does not press [these issues]". I understood these submissions to mean that Waller had, by the end of the trial, abandoned any allegation it made in respect of the issues the subject of Question 5 save for the issue described as "Waller's claims on the Jimboomba Property-Acquiescence and Laches Issues". Given Waller's stated position the only issue raised by Question 5 which remained in issue as between the parties concerned whether Waller's laches or acquiescence meant that Waller was precluded from pursuing any equitable claim in respect of the development of the Jimboomba Property.

"If the delay means that to grant relief would place the party whose title might otherwise be voidable on equitable grounds in an unreasonable situation, or if, because of change of circumstances, it would give the party claiming relief an unjust advantage or would impose an unfair prejudice on the opposite party, these are matters which may suffice to answer the prima-facie grounds for relief."

• [282] The joint judgment in Fysh referenced Lindsay Petroleum Company v Hurd[75] and Lord Blackburn's speech in Erlanger v New Sombrero Phosphate Co.[76] In Hurd, [77] Lord Selborne said that two circumstances were always important namely "the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy". In Erlanger,[78] Lord Blackburn referred to that passage in Hurd and said, "I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change, which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it".
• [283] In Baburin v Baburin (No 2),[79] Williams J referenced these statements of principle and noted that Lord Blackburn's statement was regarded as a "classic statement of the law as to laches" (citing Gibbs J in B.M. Auto Sales Pty Ltd v Budget Rent A Car System Pty Ltd).[80] Williams J went on to note that in B.M. Auto Sales, Gibbs J had expressed the view that in deciding whether a defence of laches had been made out "it is of course necessary to have a close regard to all the circumstances of the case; the question is one of degree and the decision involves the exercise of something approaching an exercise of discretion".[81]
• [284] In Orr v Ford,[82] Deane J described the "ultimate test" as remaining the test as enunciated in Hurd, that is, "whether the plaintiff has, by his inaction and standing by, placed the defendant or a third party in a situation in which it would be inequitable and unreasonable 'to place him if the remedy were afterwards to be asserted'". Deane J had earlier observed that there may be "circumstances where inaction or standing by (with knowledge) by a plaintiff over a substantial period of time assumes an aggravated character in that it will, if the plaintiff is granted the relief which he seeks, give rise to serious and unfair prejudice to the defendant or a third party".

"'Where, moreover, the material contract concerns a disposition of an interest in property of a fluctuating nature, such as shares in companies or other property of a varying nature or value, then greater expedition is appropriate than might otherwise have been the case, and delay that would otherwise be held not to be material may be held to give rise to laches.'

In this case it is clear that the business operated successfully from 1962 when John Baburin died until 1985 primarily because of the efforts of Victor, and to a lesser extent the efforts of Alex. For example, though the Holden dealership was granted to the company, it was dependent upon the company's assurance that Victor (whose capabilities were acknowledged by General Motors-Holden) would provide his personal services...It seems unchallenged on the evidence that if Victor and Alex had not put all of their time and effort into the business, and had therefore not put their own personal savings and livelihood at risk, the business would not have prospered. The appellant stood by during all of that period, drawing a wage which she did not earn by physical exertion, and receiving dividends from time to time on her Class B shares, and now after a lapse of approximately twenty years wants to be granted effective control of the company - that would be the consequence of the relief that she seeks.

In the light of the principles that I have discussed I am of the view that the learned trial judge was correct in concluding that the consequence of the delay on the part of the appellant in commencing the proceedings was such that it would be unjust to grant the relief sought. I can see no reason for interfering with the conclusion which he reached."

• [287] In Streeter v Western Areas Exploration Pty Ltd (No 2),[89] a case concerned with property comprising shares and options, Murphy JA relevantly reasoned:[90]

"[The trial judge] also said that there was no prejudice in that the appellants had 'simply' held the shares and the options (until exercise) and that the mere retention of the securities could not be the source of prejudice....

As to this, it seems to me that his Honour has failed to take any or sufficient account of the fact that the value in the shares was itself in part a product of substantial risk undertaken by Mr Streeter in relation to his contribution of seed capital, and in his (and to a lesser extent Mr Cooper's) subsequent investments. The risks inherent in the appellants acquiring and holding the subject property required that any claim to beneficial ownership of the property be made reasonably promptly once the material facts were known... Further, his Honour was required, in my respectful view, to take into account, and not just dismiss as in effect irrelevant, all the changed circumstances that had occurred since July 2000, by which the value of the property was transformed in the 6 years after the float. In substance, over that period, the character and the investment changed from being shares in an infant, speculative, exploration company, to shares in a company poised to embark upon substantial and lucrative mining activities. The imposition of a constructive trust in all these circumstances would 'give the party claiming relief an unjust advantage' and impose on the appellants 'an unfair prejudice'."

• [288] In Re Jarvis,[91] the facts concerned a newspaper and tobacconist business. Upjohn J there said:[92]

"The plaintiff is seeking to say that the defendant has been a trustee for her of one moiety of this highly successful business, although she has never been at risk for one penny. I have been referred to a number of textbooks and authorities on this question of laches, acquiescence and delay, but I forbear from referring to them, for in this realm of law each case depends so much on its own facts that citation of other cases having some points of similarity and some of difference does not really assist. I do not overlook the circumstance that the plaintiff has said she could not afford a solicitor; but I have to try to do justice to both sides. In my judgment, on the whole of the circumstances of this case, in relation to the business the plaintiff by waiting until 1951, has not been sufficiently prompt in seeking her remedy, and this part of the action fails."

• [289] I have found that as of 18 February 2016, Mr Dowling had heard from unidentified people that Mr Quinn may wish to assert a claim in respect of the Jimboomba Property. During his 18 February 2016 conversation with Mr Quinn, Mr Dowd raised this matter with Mr Quinn and Mr Quinn advised that he had not looked at any such claim in depth and did not commit to the basis on which such claim was to be advanced. At Mr Quinn's insistence, Mr Dowd indicated that he would not raise the matter of Jimboomba with Mr Dowling until such time as Mr Quinn had further considered the possible claim he wished to advance in respect of the Jimboomba Property and come back to him, which Mr Quinn indicated he would do on the following Monday or Tuesday. There is no evidence that Mr Quinn ever came back to Mr Dowd on the following Monday or Tuesday or at any time thereafter. Rather, throughout the following period from in or about mid February 2016 until the lodgement of the caveat, Mr Quinn knew that Mr Dowling was expending considerable time and effort in developing the Jimboomba Property. From in or about mid February 2016 until June 2019, Mr Quinn, all the while with an intention to sue Mr Dowling or his entities in respect of the development of the Jimboomba Property, monitored the progression of the development of the Jimboomba Property without ever advising Mr Dowling of the existence and nature of the claim which Waller or any other Quinn entity sought to make in respect of the Jimboomba Property. Mr Quinn's conduct was deliberate and evidences an approach of standing by and "waiting to see" and then, when the venture was a success and profitable, acting opportunistically to grasp the benefit.[93] Mr Quinn's conduct occurred in a context where Mr Dowling and FW Estate shouldered all of the risks and burdens associated with progressing the development. I consider that, on the whole of the circumstances, including Mr Quinn's conduct and having regard to the period of time, Waller, acting through Mr Quinn, was not sufficiently prompt in seeking its remedy of a declaration of a constructive trust or an account of profits and it would impose an unjust advantage or impose an unjust burden for those remedies to now be made available to Waller. The defendants established the defence of laches to my satisfaction in relation to those remedies.
• [290] There are two matters I should also note. Waller's counsel cross examined Mr Dowling to the effect that the FW Estate development had done "very, very well". The cross examination did not progress far, if at all, beyond that proposition. The question seemed to be designed to establish that no relevant prejudice had been suffered. That can hardly be an answer to laches. That the business was ultimately prosperous is not an answer to the claim that you sat by and allowed someone else to take risks. In , the joint judgment spoke in terms of an unjust advantage or an unfair prejudice. The unjust advantage in this case is clear and prejudice can also be inferred from the fact Mr Dowling and/or FW Estate shouldered the burden of finance and expenses concerned with the development without any contribution from, or liability being assumed by, Mr Quinn in relation to those matters.

• [292] Mr Quinn was cross examined at some length about a variety of collateral matters. The defendants' written submissions made wide ranging criticisms of him. Those submissions variously described Mr Quinn as a person who "engaged in selfish and self-interested behaviour", someone with a "capacity to hatch mendacious schemes for personal gain" and a witness who gave "the general impression" that he was "an advocate in his own cause willingly changing sworn evidence". In assessing Mr Quinn's credit, I have attempted to focus upon matters of substance. I have also attempted to make allowance in his favour for the fact that he was subjected to a lengthy cross examination.
• [293] The defendants relied upon findings made against Mr Quinn in commercial litigation in or about 1990 to the effect that he had engaged in "patent cheating" and was "guilty of fraud" in circumstances where he had led others to believe that he would ensure that a lease was lodged for registration prior to the registration of transfers[96] but had then deliberately not lodged the lease for registration prior to the lodging of the transfers.[97] The defendants urged me to have regard to these findings in forming an adverse view of Mr Quinn's credit. I have declined to do so. At the appeal stage of that litigation, Dowsett J said that Mr Quinn's conduct should be considered by the Queensland Law Society.[98] The Queensland Law Society subsequently disciplined Mr Quinn in respect of the conduct by fining him $5000. He retained his practising certificate and continued to practice as a solicitor for over a decade. The relevant conduct occurred in about 1990. The Queensland Law Society, after having considered the conduct, dealt with the conduct by way of a fine and allowed Mr Quinn to continue practising as a solicitor. I did not consider that this conduct, which occurred more than 30 years ago, is particularly informative of whether Mr Quinn gave truthful and reliable evidence in this proceeding.
• [294] Mr Quinn was a prodigious notetaker. Many of his notes were annexed to his statements and admitted into evidence without objection. The defendants' written submissions made a veiled suggestion that there was a "serious cloud over the veracity of Mr Quinn's file notes, especially notes claimed to have been made contemporaneously with key events in the proceeding ...". That suggestion was further developed by a submission to the effect that Mr Quinn could not be believed "unless [his] evidence is unambiguously supported by a contemporaneous document that is not a file note that Mr Quinn claims to have made and kept himself for many years". The submission sought to exempt from the "serious cloud over the veracity of Mr Quinn's file notes", file notes which Mr Quinn had shared contemporaneously, such as his file note of 3 July 2011 which he emailed to Mr Dowling on 4 July 2011. The nub of these submissions conveyed the serious allegation that any of Mr Quinn's file notes which had not been contemporaneously shared, could not be relied upon because the file note was not a genuine, truthful or faithful note. These submissions significantly overreached. They were, quite properly, substantively abandoned during closing oral submissions. I reject those submissions. If it were to be contended that Mr Quinn's file notes, generally to the extent they were not contemporaneously shared, were not genuine and essentially fabricated, that serious accusation should have been clearly articulated to Mr Quinn in cross-examination. The contention that Mr Quinn's file notes were not authentic unless he shared them at the time was never put to him. Before any finding to that effect could be made, "it was necessary to confront [Mr Quinn] with that proposition squarely", simply as an aspect of procedural fairness. The rules of conduct which "are essential to fair play at a trial and which are generally regarded as being established by the House of Lords in " required counsel to put such a serious accusation squarely to Mr Quinn. I accept the plaintiff's submission that the contention was not properly put to Mr Quinn.

(a) The Stradbroke litigation was to be settled as follows:

"[CCH Infrastructure] will transfer the Properties to [CCH Stradbroke] by delivering a duly executed Form 1 Transfer nominating a consideration of $1.00 to Quinn Group, Level 2, Evandale Place, 142 Bundall Road, Bundall, Queensland, 4217 within fourteen (14) days of the date of this deed";

(b) The CCH Stradbroke litigation would be discontinued;

(c) There were releases and discharges in respect of the parties to the Stradbroke litigation and notably:

"On and from the satisfaction by [CCH Infrastructure], Mr Dowling and Mrs Dowling of their obligations in Clause 4.1:

(a) [CCH Stradbroke] forever releases and discharges Mr Dowling and Mrs Dowling; and

(b) [CCH Infrastructure] Mr Dowling and Mrs Dowling forever release and discharge [CCH Stradbroke];

from any Claim which, except for this deed, those parties may have been able to make against each other in relation to the subject matter of this proceeding."

(d) There was full and final satisfaction of all Claims against ANZ;

(e) There was a bar to action in the following terms:

"Except for proceedings to enforce the obligations set out in this deed, this deed may be pleaded as an absolute bar to all Claims between Parties in relation to the subject matter of the [Stradbroke litigation]."

(f) There was a broad confidentiality obligation;

(g) There was a non-disparagement clause as follows:

"No Party nor any of their Associated Entities, may make any Adverse Statement about any other party in relation to:

(a) The subject matter or the conduct of the [Stradbroke litigation] or this deed; or

(b) Any Claims which are the subject of or related to the Proceeding or this deed;

This clause survives the completion of all other obligations under this Deed."

"Each of the Parties enter into this deed without any admission of liability or admissions of any facts or allegations."

• [302] The Stradbroke Deed was performed in the sense that Stradbroke discontinued the whole of its claim in the Stradbroke litigation against Mr and Mrs Dowling and the ANZ by Notice of Discontinuance in November 2018. That discontinuance occurred in accordance with clause 5 of the Deed. At that point, Stradbroke was in a position to lodge the transfers and receive the transfer of the six units for the nominal consideration of one dollar. The stamp duty on those transfers was approximately $50,000.
• [303] By a separate Deed, dated 9 November 2018, between CCH Infrastructure, Stradbroke and Mr McIntosh ("the Separate Deed"), to which Mr and Mrs Dowling and the ANZ Bank were not parties, CCH Infrastructure agreed to judgment being entered against it in the Stradbroke litigation. At the time Mr McIntosh was sole director of CCH Infrastructure. The Separate Deed relevantly provided:

(a) By clause 3 that this separate deed was subject to and conditional upon ANZ, CCH Stradbroke, Mr and Mrs Dowling executing the deed;

(b) By clause 4 that Mr McIntosh agreed to and/or to cause CCH Infrastructure to do the following three things:

(i) Pay $10,000 by bank cheque to Stradbroke;

(ii) Deliver consent orders to Mrs Quinn consenting to orders (among other things) for a declaration that the transfers of the six units from Stradbroke to Infrastructure were "procured by the fraud of [Infrastructure] within the meaning of s 184(3)(b) of the Land Title Act 1994 (Qld) (the Land Title Act) and did not obtain the benefit of s 184 of the Land Title Act (indefeasibility) and a further order pursuant to s. 187(1) of the Land Title Act directing the registrar to cancel the registration of the 41 transfer by which Infrastructure had become the owner of the six units and restore the title to Stradbroke;

(iii) Sign such further or other documents as may be required to give effect to clause 4.

• [304] In the Stradbroke proceedings, CCH Stradbroke then filed an application against Infrastructure seeking judgment in its favour which was supported by an affidavit of Mrs Quinn. On 16 April 2019, CCH Stradbroke appeared by counsel at an application before Martin J (as his Honour then was). Mrs Quinn deposed in her affidavit to the effect that CCH Stradbroke had agreed to "release [Mr and Mrs Dowling and the ANZ Bank] from the [Stradbroke litigation] on confidential terms". Mrs Quinn did not exhibit the Stradbroke Deed to her affidavits. Stradbroke's counsel's written submissions clearly suggested that the allegations of fraud made in the Stradbroke litigation had been vindicated by reason of the recovery of trust property that had been fraudulently misappropriated. The submission was made that the registrar should be made aware that "the reason" why the transfers were being set aside was because of fraud. Reference was made to the statement of claim filed in the Stradbroke litigation. Mr Quinn had reviewed the supporting material for the application and counsel's written submissions. He accepted that the manner in which counsel had conducted the application, as revealed by the transcript before Martin J, was strictly in accordance with his instructions. He was aware that the application was made on the basis that Mr Dowling and the ANZ Bank had engaged in fraud. CCH Stradbroke had not sought the consent of Mr and Mrs Dowling to the making of the application. The effect of the orders of the Court were to cancel the original transfers. Mr Quinn then did not lodge the transfers to effect any transfer of the residential units.
• [305] I find that the manner in which the application made by CCH Stradbroke was conducted was in clear breach of the non-disparagement clause in the Stradbroke Deed and also plainly inconsistent with the no admissions clause. The application before Martin J on 16 April 2019, made and conducted in accordance with Mr Quinn's instructions, involved an egregious misleading of the Court. I find that Mr Quinn's conduct in relation to obtaining orders from the Court on behalf of Stradbroke on 16 April 2019 was fundamentally dishonest conduct. It involved a nuanced, calculated deception that at its core was designed to mislead the Court for financial gain. By his conduct, Mr Quinn demonstrated behaviour of a person who was prepared to actively mislead the Court for the purpose of financial gain.

(a) The Answer to Question 1 is "No".

(b) The Answer to Question 2 is "Not necessary to answer".

(c) The Answer to Question 3(a) is "No".

(d) The Answer to Question 3(b) is "No".

(e) The Answer to Question 3(c) is "No".

(f) The Answer to Question 4 is "No".

(g) The Answer to Question 5 is "Not necessary to answer".

• [313] I will hear the parties as to costs and further orders.

[1] Outline of Closing Submissions for the Plaintiff, [2].

[2] Third further amended statement of claim filed 17 July 2024.

[3] Third further amended defence and counterclaim filed 8 July 2024.

[4] Second further amended reply and answer filed 15 July 2024.

[5] Notice of intention to defend and defence filed 19 July 2019.

[6] Amended statement of claim filed 30 March 2021.

[7] Amended defence and counterclaim filed 12 October 2021.

[8] Reply and answer filed 25 November 2021.

[9] Further amended defence and counterclaim filed 25 March 2022.

[10] Further amended statement of claim filed 21 March 2024.

[11] Further amended defence responding to the plaintiff's amendments in the further amended statement of claim and counterclaim filed 2 April 2024.

[12] Amended reply and answer filed 8 April 2024.

[13] Second further amended statement of claim filed 17 April 2024.

[14] Second further amended defence and counterclaim filed 18 April 2024.

[15] Further amended reply and answer filed 24 April 2024.

[16] Third further amended defence and counterclaim filed 8 July 2024.

[17] Second further amended reply and answer filed 15 July 2024.

[18] Third further amended statement of claim filed 17 July 2024.

[19] Insofar as the Services Account and CCH Account are concerned.

[20] The first to ninth defendants by counterclaim, the first and fourth plaintiffs by counterclaim, C&N Management Pty Ltd, Wesley Street Pty Ltd and Centra Harts Road Pty Ltd.

[32] Outline of closing submissions for the plaintiff [16] to [17].

[33] [1984] HCA 64; (1984) 156 CLR 41, 96-7.

[34] Heydon, Leeming and Turner, Meagher, Gummow and Lehane's Equity: Doctrines & Remedies, 5th Edition ("Meagher, Gummow and Lehane") at page 141[5-005].

[35] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 96.

[36] [2006] FCAFC 44; (2006) 149 FCR 569 at 574 [11].

[38] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 96-7.

[41] John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1, [86] and [87]; Meagher, Gummow and Lehane, 141 [5-005].

[42] Meagher, Gummow and Lehane at 152 [5-035].

[43] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 70.

[45] John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1, [88].

[46] [1911] UKLawRpCh 45; [1911] 1 Ch 723, 728-9.

[47] [2006] FCAFC 44; (2006) 149 FCR 569 at 571.

[48] [2005] VSCA 27; (2005) 12 VR 513 at [7].

[49] [1985] HCA 49; (1984-1985) 157 CLR 1.

[54] News Limited v ARL [1996] FCAFC 870; (1996) 64 FCR 410, 539-540.

[55] United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1984-1985) 157 CLR 1, 11; News Limited v ARL [1996] FCAFC 870; (1996) 64 FCR 410, 540.

[56] [2006] FCAFC 44; (2006) 149 FCR 569, 574-575.

[57] News Limited v ARL [1996] FCAFC 870; (1996) 64 FCR 410, 538-539 citing B H McPherson (Joint Ventures) in PD Finn (ed) Equity and Commercial Relationships (1987) at pp 35-36.

[58] [1929] HCA 24; (1929) 42 CLR 384 at 407.

[60] [1996] FCAFC 870; (1996) 64 FCR 410, 541.

[61] [1989] 2 SCR 574, 668.

[64] [1977] 3 All E.R. 129.

[66] Maguire v Makaronis [1997] HCA 23; (1996-1997) 188 CLR 449, 465.

[67] Gibson Motorsport Merchandise Pty Ltd v Forbes [2006] FCAFC 44; (2006) 149 FCR 569, 575 [13].

[68] Defendants' Outline of Closing Submissions, [498].

[69] [2002] WASC 105, [142].

[70] [1989] HCA 4; (1989) 167 CLR 316, 338.

[71] [2011] HCA 26; (2011) 243 CLR 253, [79].

[74] [1956] HCA 13; (1956) 96 CLR 233, 243-4.

[75] [1874] UKLawRpPC 1; (1874) LR 5 PC 221.

[76] (1878) 3 App Cas 1218.

[77] [1874] UKLawRpPC 1; (1874) LR 5 PC 221, 240.

[78] (1878) 3 App Cas 1218, 1279.

[79] [1991] 2 Qd R 240, 258.

[80] (1976) 51 ALJR 254, 259.

[81] [1991] 2 Qd R 240, 258.

[82] [1989] HCA 4; (1989) 167 CLR 316, 341.

[84] Meagher, Gummow and Lehane, [38-049] citing Beckford v Wade (1805) 17 Ves 87, 97; [1805] EngR 116; 34 ER 34, 38.

[85] [1877] UKLawRpCh 221; (1877) 6 Ch D 196.

[87] Haas Timber and Trading Co Pty Ltd v Wade [1954] HCA 39; (1954) 94 CLR 593, 602.

[88] [1991] 2 Qd R 240, 259-60.

[89] [2011] WASCA 17; (2011) 278 ALR 291.

[90] [2011] WASCA 17; (2011) 278 ALR 291, [681]-[682].

[91] [1958] 1 WLR 815.

[92] [1958] 1 WLR 815, 821.

[93] Edmonds v Donovan [2005] VSCA 27; (2005) 12 VR 513 at [76].

[96] Bourseguin v Stannard Brothers Holdings Pty Ltd [1990] QSC 273; Bourseguin v Stannard Brothers Holdings Pty Ltd [1994] 1 Qd R 231, 241.

[97] Bourseguin v Stannard Brothers Holdings Pty Ltd [1990] QSC 273; Bourseguin v Stannard Brothers Holdings Pty Ltd [1994] 1 Qd R 231, 241.

[98] Bourseguin v Stannard Brothers Holdings Pty Ltd [1994] 1 Qd R 231, 241-50.

[99] Defendants' written submissions, [103].

[100] Defendants' written submissions, [117].

[101] Defendants' written submissions, [117].

[102] Blue Mirror Pty Ltd v Tan & Tan Australia (in liq) [2024] NSWCA 253, [102]; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, [67]-[74].

[103] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 513; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, 16.

[104] Plaintiffs' written submissions, [8](d).