Federal Court of Australia

Camm Cattle Company Pty Ltd v Acumen Finance Pty Ltd (No 2) [2021] FCA 1570

ORDERS

THE COURT DECLARES THAT:

1.    The first and second applicants did not enter into any agreement with the respondent as alleged in the Statement of Claim filed on 21 October 2021 (Statement of Claim).

2.    The respondent is not entitled to the relief claimed by it in the Statement of Claim.

THE COURT ORDERS THAT:

3.    The respondent’s claim for payment of $1,330,450 as a debt due to it by the first and second applicants, plus interest and costs, is dismissed.

4.    By 4pm (AEST) on 16 December 2021, the parties shall:

(a)    file and serve any written submissions (limited to five pages) which they wish to make on the subject of the appropriate costs order which should be made;

(b)    file and serve any affidavit material which is relevant to the issue of the appropriate costs order which should be made.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWNES J:

Background

1    This is a case in which the respondent, a financial services provider (Acumen Finance), claims that it is owed $1,330,450 pursuant to an agreement which it entered with the first and second applicants.

2    Although the proceeding was commenced by Originating Application by the applicants, Acumen Finance later filed a Statement of Claim (which was amended more than once, including during the trial) and Acumen Finance acted in the role of plaintiff at the trial.

3    Acumen Finance’s case turns primarily on acceptance by this Court that the first and second applicants (either through Mr Peter Camm, the second applicant, or the applicants’ finance broker, Mr Gardiner) entered an agreement with Acumen Finance because either Mr Camm or Mr Gardiner:

completed the Acumen Finance Lending Application on the https://www.acumenfinance.com.au website and accepted the Terms and Conditions of the Agreement by ticking I agree at the bottom of the Application, by ticking I AGREE TO TERMS AND CONDITIONS on the subsequently presented page, by scrolling through all of the Terms and Conditions and by clicking Send Form, and in doing so, the Agreement was entered…

4    For the reasons set out below, Acumen Finance’s case fails and the applicants are entitled to a declaration that there was no agreement between the first and second applicants, and Acumen Finance, as alleged by Acumen Finance.

Relevant Facts

5    The first and third applicants are companies controlled by Mr Camm. The applicants carry on business as cattle graziers over five properties on the Atherton Tablelands in Far North Queensland. The third applicant arranges the finance for the first applicant.

6    In or about 2019, Mr Camm was looking at succession planning. As part of this, he wanted to transfer one of those five properties – Chudleigh Station – to his daughter, who was then managing that property.

7    Part of such an arrangement involved refinancing the loan facilities associated with Chudleigh Station which were then held with Westpac Banking Corporation, so that Mr Camm would no longer be a party to any loan or finance facility associated with that property.

8    In about February or March 2020, but potentially earlier, Mr Camm discussed the proposed refinancing arrangement with Mr Gardiner and asked for his assistance. An affidavit of Mr Gardiner was filed on 19 October 2020.

9    At the trial, Mr Camm gave oral evidence as to what he had authorised Mr Gardiner to do:

It would be very hard for me to remember the exact words but it would have been to find me a better deal, you know, a better rate of interest and better terms, which was interest only.

…

If he could find such a thing for you, what was he to do?---Well, he had to come back with it to me. I didn’t tell him to do anything about it. Just put some options to me. Go and find the best options for me. And then I would have taken them to Andrew.

    …

And so just to be clear, who’s Andrew?---He was my accountant and he has been my business manager for 35 years. And I don’t do anything unless he’s holding my hand. I find the deals and he ..... them. He says, “Yes, that’s a good one; do it”.

…

…So this deal [with Acumen Finance] was never put to Andrew.

10    According to the Gardiner affidavit, on 12 March 2020, Mr Gardiner spoke with Mr Cameron Wall of Acumen Finance. Mr Gardiner’s evidence is that he said to Mr Wall that he was a broker and had a number of clients for whom he was looking for finance, and those clients may fit with Acumen Finance’s business.

11    On 12 March 2020, Mr Wall emailed Mr Gardiner his email and telephone contact details. This conduct is consistent with a conversation having occurred between them, and an approach being made by Mr Gardiner to Acumen Finance that day.

12    At that time, Acumen Finance operated a website at www.acumenfinance.com.au (website) which enabled a visitor to that site to apply for a loan. Included in the evidence at trial was a video re-enactment of completion and submission of an online application to Acumen Finance in the name of the first and second applicants.

13    The re-enactment shows that the process of submitting the form through the website commences by clicking a green button with the words “APPLY NOW!” which is on the website.

14    After clicking the “APPLY NOW!” button, a form then appears on the screen which enabled various information to be inserted including the following:

(a)    under the heading “Commercial Borrowers Details – Company Directors”, the words “Borrower First Name” and “Borrower Surname” were stated. This required the name of a person to be inserted and was a required field;

(b)    “Company Borrower Information” could also then be inserted along with other information about the “Loan Details” including the term of the loan, required loan settlement date, value of the loan, purpose of the loan, and loan type, and details of the “Security Property” including the property to be used as security and current value of such property;

(c)    an email address of the borrower was required to be inserted, along with a mobile telephone number;

(d)    the following words appeared above a box with the words “I Agree”:

I certify that the information supplied in this application is true and correct and that I have read the terms and conditions and have understood that this is an application for finance and we will rely on the information contained within the form to make our assessment and seek a formal approval for finance.

(e)    the terms and conditions were not able to be viewed on the website prior to ticking the box “I Agree”;

(f)    after ticking the box, and pressing an orange button “Submit”, a second page appeared on the screen which bore the words “I AGREE TO TERMS AND CONDITIONS”;

(g)    below these words were numerous clauses which needed to be scrolled through on the screen because they did not appear on the screen at the same time;

(h)    at the bottom of the second screen was an orange button which stated “Send Form” which also needed to be pressed.

15    The case advanced by Acumen Finance was that, on 12 March 2020, it received a completed application and associated terms and conditions through its website which contained the first and second applicants’ names as borrowers as well as other information. Its case is that, as a consequence of receipt of these documents, the applicants entered an agreement with it and engaged its services to procure certain finance for them (alleged agreement).

16    Part way down the first part of the alleged agreement, the following appears:

17    Credit One Financial Services, which is listed as one of the “company borrowers” in the alleged agreement, was not a company associated with or related to the applicants. It was common ground at the trial that this was a company associated with Mr Gardiner.

18    It was also common ground at trial that, on 13 March 2020, there was a telephone conversation between Mr Camm (the second applicant), Mr Gardiner (finance broker), Mr Wall (employee of Acumen Finance) and Mr Nathan Daly (director of Acumen Finance).

19    Mr Camm’s independent recollection of that call is contained in paragraphs 9 and 10 of his affidavit which was sworn on 9 October 2020:

On 13 March 2020, Mr Gardiner called me and he was already in conference with the office of the first respondent and spoke to Mr Wall and Mr Daly. During this conversation, I explained the purpose of the refinance and what I needed.

During this call Mr Daly said that I would need to review their terms and conditions and pay an engagement fee and that he would get copies of those terms and conditions sent to me.

20    That recollection was without the benefit of a recording of that conversation on 13 March 2020 which was produced by Acumen Finance on 14 October 2021 (13 March recording). Mr Camm’s recollection is consistent with the 13 March recording. In the recording, Mr Camm speaks at some length about his situation in a matter-of-fact way.

21    The impression that is given by their tone and the statements which are made in the 13 March recording is that Mr Daly and Mr Wall are trying to “sell” the services of Acumen Finance to Mr Camm to encourage him to proceed with them. For example, Mr Daly discusses his general experience in the finance industry.

22    The 13 March recording confirms that Mr Daly also made statements to the following effect:

(a)    thank you for submitting the application;

(b)    “now we’ve got the application”, the next step was for the applicants to pay the engagement fee;

(c)    once that engagement fee was paid, Acumen Finance would “get the credit paper done”.

23    At no time during this conversation does Mr Daly refer to an agreement which has been entered. The word he uses at least three times is “application”.

24    Part of the 13 March recording included the following question asked by Mr Daly in a hesitant and broken fashion:

Yeah so, I’ve just looked at – just to get going we just need to confirm um – it looks like – I just see from the application you – you’ve filled it out Peter – but you’ve just put the ah, put David’s email address for the – the – correspondence – is that correct?

25    There is then a pause.

26    There are then three sounds. The word “Yeah” is spoken. There is then a grunt of some kind, and then a short pause before someone says “yep”. Mr Gardiner then spoke about doing work with Mr Andrew Vivian, who is Mr Camm’s accountant. It is Acumen Finance’s case that Mr Camm said “yeah, yep” and thereby admitted that he submitted the application.

27    However, I am unable to form a concluded view as to which person said the words “yeah” or “yep”. As there is a short pause following the “yeah” and the grunt, it is possible that it was Mr Daly who said “yep”. However, it is also possible that it was Mr Gardiner who said “yep”, before proceeding to speak about the further work he was going to do with Mr Vivian. Under cross-examination, Mr Camm denied that he was the person who said, “yeah, yep”.

28    Having regard to the stilted way in which the question was asked by Mr Daly, as referred to above, the positive response could have been to the final part of the question concerning whether Mr Gardiner’s email address was inserted for correspondence.

29    Following the conversation which is the subject of the 13 March recording, there was a further exchange of emails on 13 March 2020:

(a)    Mr Wall emailed Mr Gardiner and requested details of Mr Camm’s email address;

(b)    Mr Gardiner responded to Mr Wall advising Mr Camm’s email address;

(c)    Mr Wall sent an email to Mr Camm, which attached a copy of the terms and conditions and a copy of Acumen Finance’s invoice for the engagement fee in the sum of $10,450, and which relevantly stated:

Thank you very much for your time on the phone this morning outlining your funding requirements and succession planning.

As mentioned by Nathan, if you could please attend to our engagement invoice referred to under our Terms and Conditions and attached here at your earliest convenience, so that we can commence preparing a substantial credit paper to approach our funding underwriters.

30    Mr Camm gave evidence at trial that, when he received the terms and conditions, he rang Mr Gardiner “straight away” and told him, “no, don’t do anything with those fellows”.

31    This was consistent with the evidence contained in Mr Gardiner’s affidavit, in which Mr Gardiner deposed that Mr Camm called him on 13 March 2020 and 17 March 2020. Mr Gardiner deposed that:

On 13 March 2020, I received a call from Mr Camm saying that he had received an email from Mr Wall enclosing an invoice for $10,450 … and that there was no way he was going to sign up with [Acumen Finance] as he has never had to pay a broker to arrange finance for him and he never would.

On or about 17 March 2020, I received a call from Mr Camm saying that he was being “hounded” by the first respondent to pay the Initial Invoice and that he had told Mr Wall on the phone that he was not going to be signing up with them or paying them their invoice.

32    Mr Camm also gave evidence that on 17 March 2020, he told Mr Gardiner that he would not be proceeding with Acumen Finance. He told Mr Gardiner to “deal with it” and “get them off my back”.

33    Acumen Finance included in its evidence a recording of a conversation on 17 March 2020 between Mr Wall and Mr Camm, in the course of which:

(a)    Mr Wall asked Mr Camm something to the effect that, “you obviously submitted the online application right?”, to which Mr Camm did not respond;

(b)    Mr Wall asked again something to this effect, “you obviously submitted that application online for the financing?”;

(c)    Mr Camm then responded, “for financing what – the house?”;

(d)    Mr Camm also said words to the effect that, “No. I thought we canned that one”;

(e)    Mr Wall said words to the effect that:

(i)    he was calling “to see what you want to do, you actually want to proceed, where you’re at and what you’re looking for”;

(ii)    there were options that Acumen Finance had sourced, that were to be put into a term sheet but “we did actually say we need our engagement paid as well”;

(f)    Mr Camm said he never signed the agreement and that he had instructed Mr Gardiner to put it on hold.

34    The impression given by the recording of this conversation is that Mr Camm does not know what Mr Wall is referring to when Mr Wall asks (twice) whether Mr Camm submitted the online application. This tends to indicate that it was not Mr Camm who said “yeah” or “yep” to the question asked by Mr Daly during the conversation on 13 March 2020.

35    Further, the fact that Mr Wall has decided to question Mr Camm as to whether he submitted the online application in the conversation of 17 March 2020 demonstrates that Acumen Finance was still uncertain as to whether it was Mr Camm who completed the online application and submitted it. If that had already been made clear in the conversation on 13 March 2020, to which Mr Wall was a participant, there was no need to ask again.

36    In any event, by 17 March 2020, Acumen Finance (by Mr Wall) was aware that the applicants would not be proceeding to engage it to assist with their refinancing. This was only five days after the submission of the application and associated terms and conditions.

37    The pleaded case for Acumen Finance is that, “On a day during the period commencing on 13 March 2020 and ceasing on 14 April 2020”, there was notification by the applicants of their intention not to proceed with Acumen Finance and Acumen Finance “reasonably determined” that the applicants intended not to proceed with them.

38    Acumen Finance was asked to provide particulars of the pleaded allegation that the applicants “notified” it of their intention to “not proceed with the engagement”. In response to that request, Acumen Finance identified the telephone call between Mr Wall and Mr Camm on 17 March 2020.

39    Notwithstanding its pleaded case, it was opened by counsel for Acumen Finance that the conversation between Mr Wall and Mr Camm on 17 March 2020 was ambiguous. There was also an attempted suggestion through Mr Daly that Mr Gardiner acted to encourage Acumen Finance to continue with its work for the applicants notwithstanding the notification by Mr Camm to Mr Wall on 17 March 2020.

40    In relation to this issue, Mr Daly gave the following oral evidence:

…In this case, we – soon after having this conversation [on 13 March 2020], we were followed up by Mr Gardiner, and he said, “It’s all fine. I work with the accountant very closely. Just keep working. Keep going forward,” and that’s – that’s what we did.

…

I can’t recall specifically, but I – I think Mr – Mr Wall had most of the conversations, and I did have further conversations with Gardiner as well, which – Mr Gardiner submitted a number of applications to Acumen, and the others were successful and did settle, so there was ongoing communication past this point, and I – I do recall Cam was in charge, but I – I – I – I’m not 100 per cent sure if I discussed specifically Mr Camm directly after the conversation, but I know I would have discussed with him throughout the course of the – the following days and weeks.

41    To make a finding that Mr Gardiner told Acumen Finance to “keep going”, it must also be found that Mr Gardiner acted contrary to the express instructions of Mr Camm, which is objectively unlikely. It is also unlikely that Acumen Finance would continue to perform any significant work for the applicants when Mr Camm had notified it that the applicants would not be proceeding with the engagement (which, by its Further and Better Particulars, Acumen Finance accepts occurred on 17 March 2020) and the engagement fee remained unpaid.

42    Mr Daly gave evidence that he had a telephone conversation with Mr Camm on 20 March 2020. Acumen Finance also tendered a recording of that conversation which only had Mr Daly’s side of the conversation. Objection was taken to Mr Daly’s evidence on the grounds of relevance, and the decision whether to admit the evidence was reserved.

43    I will admit Mr Daly’s evidence because it is relevant to the issue which arises on the case as pleaded in paragraph 12 of the Statement of Claim, being the alleged period during which Acumen Finance, by Mr Daly, formed the view that the first and second applicants intended not to proceed with the engagement of Acumen Finance. However, having regard to my findings as to Mr Daly’s credit as a witness (which are below), and the lack of a recording of both sides of the conversation, I do not accept the evidence of Mr Daly concerning Mr Camm’s statements to him during the conversation on 20 March 2020. In particular, I do not accept that, contrary to Mr Camm’s instruction to Mr Gardiner to “get [Acumen Finance] off [his] back” and the conversation with Mr Wall on 17 March 2020, Mr Camm told Mr Daly on 20 March 2020 that, for example, he was “happy for you to have the business”.

44    On 14 April 2020, Mr Camm received a further invoice from Acumen Finance in the sum of $1,200,000 plus GST.

45    The invoice was attached to an email from Mr Daly of that date which stated that:

Further to the recent telephone conversation with Cameron Wall of our office, you have indicated that you no longer wish to proceed with Acumen Finance’s services as agreed per the attached terms and conditions. This is at odd’s (sic) to the previous discussions with myself Nathan Daly after you submitted the transaction, we agreed to continue to work and review your file as well as start to workshop and prepare the credit paper and other transaction documents to secure an offer.

46    There was no mention in this email of Mr Gardiner encouraging Acumen Finance to proceed (which one would expect to see in the email if that had occurred) or of the conversation between Mr Camm and Mr Daly on 20 March 2020. Rather, the content of the email indicates that Mr Daly is sending the invoice because of the conversation which Mr Camm had with Mr Wall on 17 March 2021.

47    The fee of $1,200,000 plus GST was claimed by Acumen Finance to be payable pursuant to clause 3(a) of the alleged agreement which relevantly provided that the “Borrower” (as defined) shall pay to Acumen Finance the “Broking Fee”, if there is a “failure to proceed”, on the date on which:

(a)    any Obligor (as defined) notifies Acumen Finance of the Borrower’s intention to not proceed with the Transaction (as defined); or

(b)    Acumen reasonably determines (in its sole discretion) that due to material delays in an Obligor providing information requested by Acumen or any other conduct by an Obligor, the Borrower intends to not proceed with the Transaction, for any reason whatsoever.

48    Broking Fee was defined to mean an amount determined as follows, based on the lending market from which Acumen Finance endeavours to procure a loan offer to the Borrower, and is payable in accordance with clause 3(a):

in each case calculated based on (relevantly to this case) the total value of the Project Assets as at the time that the Broking Fee becomes payable.

49    To calculate the Broking Fee, Acumen Finance relied upon the amount which had been inserted into the application form as being the stated value of Chudleigh Station, Hughendon. There was no term in the alleged agreement itself which addressed how the “the total value of the Project Assets as at the time that the Broking Fee becomes payable” would be assessed.

50    Acumen Finance’s case is that it used its reasonable endeavours to procure a loan offer to the first and second applicants on terms acceptable to them and that it is entitled to be paid the Broking Fee because of the “failure to proceed” within the meaning of the alleged agreement.

Credit of Witnesses

51    Acumen Finance called one witness, being its sole director, Mr Daly. This was so notwithstanding that Acumen Finance employed four people during the events in question and at least two of those people had direct involvement with the facts which are the subject of this proceeding.

52    The first of these, being Mr Wall, was the person who had the most interaction with Mr Gardiner, who participated in an important teleconference on 13 March 2020, who spoke to Mr Camm on 17 March 2020 and who was involved in taking steps to secure finance for the applicants. No adequate explanation was given as to why Mr Wall was not called.

53    The other witness who was not called by Acumen Finance was Ms Marzena Radzikowska. She remains employed by Acumen Finance and was also involved in taking steps to secure finance for the applicants. No adequate explanation was given as to why Ms Radzikowska was not called.

54    I infer that the evidence of these witnesses would not have assisted Acumen Finance: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, [63]-[64].

55    As for Mr Daly, I received the impression that Mr Daly was not giving evidence of his genuine recollection of events when he was in the witness box, particularly when he referred to the conversations which he said that he had with Mr Gardiner at or around the time of the critical events. Some of that evidence is extracted above. Mr Daly appeared to be uncertain when he gave this evidence, and it remained unclear whether he was giving evidence of conversations that he had been a party to or conversations relayed to him by Mr Wall. Mr Daly also gave other oral evidence in relation to the content of the online application submitted to Acumen Finance in the name of the applicants as follows:

Was this application the first time you learnt of those particular matters – that that was the amount looking to be borrowed – that was the value of the net property assets?---No. It was previously discussed with Gardiner also – Mr Gardiner, rather.

Right. And then down the bottom of the page it says:

Current value of the property –

and over the page it says 40 million?---Yes.

Is that the first time you learnt of the borrower’s opinion of the value of the property, Chudleigh Station?---I would have to refer back to – to David’s notes, but I – I believe he gave a – an indication that it was around about 40 – 40 million.

Sorry. When you said he gave an indication, you’re saying Mr Gardiner did that?---Mr Gardiner, yes, in – in the discussions held prior.

…

And you were a party to that conversation with – sorry. Was the conversation between Mr Gardiner and Mr Wall?---There was conversations between Mr Gardiner and Mr Wall, and conversations between Mr Gardiner and myself.

…That’s right. I believe it was on or about the – the 11th of March - - -

Right. That - - -?--- - - - 2020.

Yes. Thank you. You don’t depose to that conversation anywhere in your affidavit, do you?---Not that I’m aware of, no.

56    As the existence of the agency of Mr Gardiner, the scope of Mr Gardiner’s authority as agent and the nature and content of the interactions between Mr Gardner and Acumen Finance were and have always been important issues in the case, it is improbable that the fact and content of the conversations between Mr Daly and Mr Gardiner were not referred to in the affidavit evidence of Mr Daly, if these conversations had in fact occurred.

57    In addition, under cross-examination, Mr Daly appeared to overstate the extent of the work which Acumen Finance had performed pursuant to the alleged agreement. The work which Mr Daly said had been performed and the timing of its performance was inconsistent with Mr Daly’s statements during the teleconference on 13 March 2020 and the email from Mr Wall of that date. Further, Mr Daly gave this evidence in circumstances where internal documents of Acumen Finance which could have supported his evidence (such as the client file and the credit paper) were not tendered. I infer from this that these internal documents either did not exist or, if they did, their content would not have supported Mr Daly’s evidence.

58    For these reasons, I do not regard Mr Daly’s evidence as reliable.

59    The applicants called two witnesses, being Mr Camm and Mr Gardiner.

60    As for Mr Gardiner, his evidence was given through an affidavit. The applicants were not required to make Mr Gardiner available for cross-examination for the reasons given in Camm Cattle Company Pty Ltd v Acumen Finance Pty Ltd [2021] FCA 1225. The evidence of Mr Gardiner was not tested by cross-examination and I have taken this into account when making factual findings, as referred to below.

61    As for Mr Camm, he was a witness who appeared to be honest and truthful in the manner in which he gave his evidence. He responded directly to questions put to him in cross-examination and his evidence remained generally consistent under cross-examination. Importantly, Acumen Finance did not demonstrate that Mr Camm’s evidence should not be accepted on the core questions of whether he completed and submitted the online application and terms and conditions, and whether he authorised Mr Gardiner to do those things. Mr Camm’s evidence should be accepted for the purposes of this matter.

Issues

62    The following issues arose for determination having regard to the pleadings:

(a)    Did Mr Camm complete “the Acumen Finance Lending Application” (Application) on the website, accept the “Terms and Conditions of the Agreement” (Terms and Conditions) by ticking “I agree” at the bottom of the Application, ticking “I AGREE TO TERMS AND CONDITIONS” on the subsequently presented page, scrolling through all of the Terms and Conditions and clicking “Send Form” (as pleaded in paragraph 5(b) of the Statement of Claim)?

(b)    Did Mr Gardiner complete the Application on the website, accept the Terms and Conditions by ticking “I agree” at the bottom of the Application, ticking “I AGREE TO TERMS AND CONDITIONS” on the subsequently presented page, scrolling through all of the Terms and Conditions and clicking “Send Form” (as pleaded in paragraph 5(c) of the Statement of Claim)?

(c)    If the answer to (b) is “yes”, did Mr Gardiner do this as the authorised agent of the first and second applicants (as pleaded in paragraph 5(c) of the Statement of Claim)?

(d)    In any event, did a binding agreement come into existence (as pleaded in paragraph 5 of the Statement of Claim)?

(e)    If there was a binding agreement, did Acumen Finance use its reasonable endeavours to procure a loan offer?

63    For the reasons set out below, the answers to these questions are:

(a)    No.

(b)    Yes.

(c)    No.

(d)    No.

(e)    No.

64    Because of these findings, it is not necessary to consider the other matters raised by the applicants in their Defence.

Consideration

Did Mr Camm complete and submit the Application and Terms and Conditions?

65    The form received by Acumen Finance through its website also referred to one other unrelated company as being a borrower and party to the agreement, which was a company or entity called Credit One Financial Services. The reference to this unrelated entity was omitted from the video re-enactment which is in evidence.

66    That this additional entity was referred to as a party to the agreement and therefore liable as a borrower was plain on the face of the Terms and Conditions said to have been accepted and submitted by Mr Camm.

67    On Acumen Finance’s case, Mr Camm submitted this form notwithstanding the inclusion of this unrelated entity. Apart from his evidence that he did not complete and submit the form, which evidence I accept, I am not persuaded that Mr Camm did these things for the following reasons.

68    Mr Camm was approximately 72 years of age when the relevant events occurred. He left school when he was 14. He is a cattle grazier with limited computer skills. He did not have the ability to do the things that it is said that he did on the website.

69    Further, for the past 35 or more years, Mr Camm has relied on his accountant, Mr Vivian, for advice as to his business dealings. Mr Camm also relies upon his wife for the purposes of accessing emails (which he asks her to print out so he can read them). For these reasons and having regard to the manner in which he gave his evidence, Mr Camm did not strike me as a reckless or careless person who would have submitted the online form without printing it out and reading it or asking his accountant to review the terms and conditions of the proposed agreement.

70    Further and on the basis that it is likely that he would have read the document before submitting it, it is also unlikely that Mr Camm visited the website and took the various steps needed to complete and submit a form which was described as an “Agreement” and which had the name of someone else’s entity as a party to the agreement. At the least, he would not have submitted the form until he could check with his accountant to obtain confirmation that the form should be submitted with that content. There is no evidence that he did these things.

71    Mr Daly exhibited numerous business records which he asserted showed when Mr Gardiner viewed certain parts of the website. This included 12 March 2020, being the date on which the Application was submitted through the website. However, Mr Daly did not exhibit any record of Mr Camm viewing the website before the Application was completed. One would have expected him to do so if any such records existed. This is further support for a conclusion that Mr Camm did not complete and submit the online form on the website.

72    The form received by Acumen Finance included a description of the purpose of the loan which was written in the first person and which contained a spelling mistake (that is, the word “forth” should have had the spelling “fourth”). Counsel for Acumen Finance submitted that these matters indicated that it was likely that Mr Camm had completed the form because he is not well educated. However, there are other equally probable explanations for the words being in the first person and the spelling mistake such as (for example) Mr Gardiner wrote the words in the first person because he wanted to give the impression that Mr Camm had completed the form, and Mr Gardiner made the spelling mistake.

73    Acumen Finance also relied upon an admission said to have been made by Mr Camm in the teleconference on 13 March 2020. It was submitted that Mr Camm responded “yeah, yep” in response to the question by Mr Daly which is referred to above. However, having listened to the recording and for the reasons explained above, I am unable to find that Mr Camm was the person who said “yeah, yep” as submitted by Acumen Finance.

74    Further, under cross-examination, Mr Camm denied that he said “yeah, yep”. I accept this evidence because of the findings which I make above about Mr Camm’s credit as a witness. In particular, because I consider that Mr Camm is a person of truth, I do not consider that Mr Camm would have agreed with Mr Daly that he had “filled out” the Application and “put David’s email address for the correspondence” if he had not done this.

75    Even if Mr Camm did say “yeah, yep” during the conversation on 13 March 2020 as Acumen Finance contends that he did, it does not follow that Mr Camm did in fact complete and submit the Application as a matter of fact, for the reasons explained above.

76    Finally, Mr Gardiner has sworn an affidavit which he states that he (Mr Gardiner) completed the online form.

77    In conclusion, the evidence of Mr Camm, when taken into account with the other evidence at the trial, persuades me that, on the balance of probabilities, Mr Camm did not complete and submit the Application and Terms and Conditions as alleged.

Did Mr Gardiner complete and submit the Application and Terms and Conditions?

78    Mr Gardiner made contact with Mr Wall of Acumen Finance and spoke to him, and then they exchanged emails, on 12 March 2020.

79    There was also evidence which was adduced by Acumen Finance that Mr Gardiner viewed certain parts of the website on 12 March 2020, and no evidence that Mr Camm viewed the website on this date.

80    Mr Gardiner’s email address was inserted into the Application.

81    These matters provide objective support for a finding that Mr Gardiner submitted the Application and Terms and Conditions in the manner alleged in paragraph 5(c) of the Statement of Claim.

82    Further, Mr Gardiner gave the following evidence in his affidavit:

[12]     I went on to the first respondent's website and navigated to the "Business Loans" page, which had a link to "Apply for a loan", which took me to a web-based form where you can fill in their clients' details including, the names of the clients, contact details, loan details and details of any security or property that a loan can be secured against.

[13]     At the bottom of the form is a declaration that read:

I certify that the information supplied in this application is true and correct and that I have read the terms and conditions and have understood that this is an application for finance and we will rely on the information contained within the form to make our assessment and seek a formal approval for finance.

It also had a tick box saying, "I Agree" and then a button which submits the application form.

…

[15]     Before checking the "I Agree" box, I looked for terms and conditions on the website but could not find any. I checked the box and hit the "Submit" button.

…

[18]     When I completed the online form I do not recall any pop box come up on my screen. … I only recall seeing the terms and conditions sheet when it was emailed to me in the email at 4:43pm that day.

(italics omitted)

83    In conclusion, the evidence of Mr Gardiner, when taken into account with the other evidence at the trial, persuades me that, on the balance of probabilities, Mr Gardiner completed and submitted the Application and Terms and Conditions as alleged.

Was Mr Gardiner the authorised agent of the first and second applicants?

84    Having regard to Mr Camm’s evidence, which I accept, Mr Gardiner was not authorised to cause the applicants to enter any agreements, whether with Acumen Finance or otherwise. This includes his oral evidence given at the trial as to his conversation with Mr Gardiner about what he instructed Mr Gardiner to do.

85    Mr Camm’s evidence that he did not authorise Mr Gardiner to bind himself and the first applicant to any agreement is also consistent with the evidence given by Mr Camm as to his usual practice of “running any deal past” Mr Vivian, his accountant, before committing to any agreement. Mr Camm was not challenged on this evidence.

86    Mr Gardiner also gave evidence that at no time did Mr Camm authorise Mr Gardiner to:

sign up to any arrangements with any other finance or mortgage brokers, or bind him or any of the companies that he was involved in, including the applicants, to any arrangement that would require them to pay any commissions or fees. At that point, I was only making enquiries in relation to his options.

87    Further, were it needed, the agreement which Acumen Finance is being sued upon has an additional party, being the entity associated with Mr Gardiner. There was no evidence or even suggestion in cross-examination that Mr Camm authorised Mr Gardiner to enter an agreement on his behalf and on behalf of the first applicant with the parties listed in the alleged agreement including Credit One Financial Services.

88    By its Further and Better Particulars of the Statement of Claim, Acumen Finance relies on statements allegedly made by Mr Camm and Mr Gardiner during the teleconference on 13 March 2020 as follows:

(a)    Mr Gardiner said that he had the authority to submit the loan – but the recording does not contain any such statement by Mr Gardiner;

(b)    Mr Camm confirmed that he gave Mr Gardiner authority to apply – but the recording does not contain any such statement by Mr Camm.

89    These allegations are also inconsistent with the case by Acumen Finance that Mr Camm admitted during the 13 March 2020 teleconference that he (Mr Camm) had filled out the Application. Why would he say that but also say in the same conversation that he had authorised Mr Gardiner to do it? The case advanced by Acumen Finance is internally inconsistent.

90    By paragraph 3.3 of its Outline of Submissions, Acumen Finance submitted that Mr Gardiner completed the agreement with authority to act as the applicants’ agent, as Mr Gardiner deposes that he completed the agreement whilst on the telephone with Mr Camm. This appears to be a reference to this evidence in the Gardiner affidavit:

I noted in [an email to Mr Wall] that I would get Mr Camm to complete the online form but did it myself, while I had Mr Camm on the phone and told him about the company and told him I was completing the online form just to obtain the options available by the first respondent, as per usual practice.

91    However, Mr Gardiner does not say that he advised Mr Camm during their telephone call that he was causing Mr Camm and the first applicant to enter an agreement with Acumen Finance or the terms of any such agreement (which Mr Gardiner deposed that he could not find in any event).

92    Under cross-examination, Mr Camm denied that Mr Gardiner completed the Application while he was on the telephone with Mr Camm. Mr Camm also gave evidence that he definitely would not have told Mr Gardiner to agree to terms which he (Mr Camm) had not seen.

93    As Mr Gardiner was not available for cross-examination, I do not accept Mr Gardiner’s evidence that he completed the Application while on the telephone with Mr Camm and I accept the evidence of Mr Camm that this did not occur.

94    In conclusion, Mr Gardiner was not authorised to cause the first and second applicants to enter the alleged agreement with Acumen Finance. That is, contrary to the case pleaded in paragraph 5(c) of the Statement of Claim, Mr Gardiner was not the “authorised agent” of the applicants.

Was an agreement entered on 12 March 2020 in any event?

95    Acumen Finance’s case, as pleaded in paragraph 5 of the Statement of Claim, is that a contract was entered upon the completion and submission of the Application and acceptance and submission of the Terms and Conditions by either Mr Camm or Mr Gardiner. That this was its case was confirmed by its counsel at the commencement of the trial, and also appears at paragraph 3.1 of its Outline of Submissions filed 27 August 2021.

96    In support of its case, Acumen Finance submitted, at paragraph 3.6 of its Outline of Submissions, that:

The Respondent offered to use its reasonable endeavours to procure a loan offer to the First and Second Applicants on terms acceptable to [them], and the First and Second Applicants accepted the Respondent’s offer.

97    That is, it was Acumen Finance’s case that it made an offer to the applicants (through its website) and that the offer was accepted by the applicants in the manner pleaded in the Statement of Claim.

98    In Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 at 456 – 457 the High Court stated as follows:

The contract put forward by the plaintiff is thus seen to be of that type which is commonly said to be constituted by an offer of a promise for an act, the offer being accepted by the doing of the act. … The position in such cases is simply that the consideration on the part of the offeree is completely executed by the doing of the very thing which constitutes acceptance of the offer. …

In cases of this class it is necessary, in order that a contract may be established, that it should be made to appear that the statement or announcement which is relied on as a promise was really offered as consideration for the doing of the act, and that the act was really done in consideration of a potential promise inherent in the statement or announcement. Between the statement or announcement, which is put forward as an offer capable of acceptance by the doing of an act, and the act which is put forward as the executed consideration for the alleged promise, there must subsist, so to speak, the relation of a quid pro quo.

…

The positon has been stated above in terms of the technical doctrine of consideration, and this is, in our opinion, the correct way of stating it. But it may be referred to as a principle which is fundamental to any conception of contract. It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty. In such cases as the present, therefore, in order that a contract may be created by offer and acceptance, it is necessary that what is alleged to be an offer should have been intended to give rise, on the doing of the act, to an obligation. The intention must, of course, be judged in the light of the principle laid down in Freeman v Cooke, but, in the absence of such an intention, actual or imputed, the alleged ‘offer’ cannot lead to a contract: there is, indeed, in such a case no true ‘offer’.

(emphasis added, footnote omitted)

99    To decide whether Acumen Finance made an offer which was accepted by the applicants, it must be determined whether, assessed objectively, Acumen Finance intended to be contractually bound upon the submission by the applicants of the Application and the Terms and Conditions. If it did not so intend, then there is “no true offer”.

100    It is also relevant to consider whether the terms of the offer said to have been made by Acumen Finance were sufficiently certain so as to give rise to a contract upon their acceptance: see Mobil Oil Australia Ltd v Wellcome International Pty Ltd and others (1998) 81 FCR 475, 500.

101    On the facts of this case, information needed to be inserted by the applicants or their agent into the Application which then populated the Terms and Conditions and, without that information, the Terms and Conditions were incomplete.

102    For example, the alleged agreement required the performance of services by Acumen Finance and a promise of exclusivity by the applicants in connection with those services. The alleged agreement stated that:

The Borrower [as defined] appoints [Acumen Finance] as the exclusive arranger of any and all loans related to the Purpose.

(emphasis added)

103    The “Purpose” was required to be the subject of a description inserted by the applicants or their agent into the Application, which description then populated the definition of “Purpose” in the Terms and Conditions.

104    The words inserted by the applicants or their agent as being the “Purpose” in the Application therefore had a direct bearing on the type and nature of the loans to be arranged by Acumen Finance and the nature of the exclusive arrangement that it would have with the applicants.

105    This meant that, until the “Purpose” was known, the precise nature of the services to be provided by Acumen Finance to the applicants, and the parameters of their exclusive arrangement, were not defined and were therefore incomplete and uncertain.

106    Yet the services to be provided by Acumen Finance was at the heart of the alleged agreement.

107    These matters demonstrate that no offer was made by Acumen Finance which was capable of being accepted by the applicants in the manner alleged.

108    Further, the fact that the terms of the “offer” made by Acumen Finance were incomplete, and required an applicant for finance to insert information which impacted on the contractual obligations of Acumen Finance, demonstrates that, assessed objectively, Acumen Finance did not have the required intention to create legal relations as at the time that the Application and Terms and Conditions were submitted.

109    A finding that Acumen Finance did not have the intention to create legal relations was consistent with the evidence of Mr Daly, its sole director. Mr Daly’s evidence was to the effect that Acumen Finance did not accept every application made through the website but regarded itself as free to reject applications on occasion, including from applicants which had not had any prior contact with Acumen Finance. Mr Daly gave an example of transactions which would not be accepted by Acumen Finance as “very, you know, highly leveraged transactions that don’t make any commercial sense”.

110    If the case advanced by Acumen Finance was legally correct, then Acumen Finance would have no ability to reject any applications in the manner described by Mr Daly.

111    It follows that there was no offer by Acumen Finance which was accepted by the applicants resulting in an agreement which was entered on 12 March 2020. On this basis alone, the claim brought by Acumen Finance should be dismissed.

Did Acumen Finance use its reasonable endeavours to procure a loan offer?

112    Acumen Finance pleads in its Statement of Claim that it used its reasonable endeavours to procure a loan offer to the first applicant and the second applicant on terms acceptable to them.

113    Particulars were provided of these “reasonable endeavours”, being “numerous team discussions and pre-credit workshops” involving Ms Radzikowska, Mr Wall and Mr Daly and an inquiry made of Sandhurst Commercial Lending which “effectively works as a mortgage manager for Sandhurst Commercial Lending” and which granted conditional approval by telephone and confirmed that it was willing to receive the application. This approval was alleged to have been given following a telephone call by a “staff member” of Acumen Finance on or around 14 March 2020.

114    The evidence relied upon by Acumen Finance to support this part of its case was the evidence of Mr Daly, whose evidence I do not accept for the reasons stated above.

115    I infer from the failure by Acumen Finance to call Ms Radzikowska and Mr Wall as witnesses in the trial that their evidence would not have assisted Acumen Finance.

116    Further, Acumen Finance did not call the staff member referred to in the Further and Better Particulars who was alleged to have had contact with Sandhurst Commercial Lending.

117    Finally, no evidence was adduced by Acumen Finance to support a finding that the steps which it took were “reasonable”.

118    Having regard to the totality of the evidence, Acumen Finance has not discharged its burden of proving that any work performed by it constituted “reasonable endeavours to procure a loan offer”.

119    It follows that, on the case as pleaded and advanced by Acumen Finance, Acumen Finance has failed to establish that it used reasonable endeavours to procure a loan offer to the first applicant and the second applicant on terms acceptable to them such that Acumen Finance was entitled to be paid the Broking Fee. This provides a further reason to dismiss the claim brought by Acumen Finance.

Conclusion

120    For these reasons, it will be declared that there was no agreement between the first and second applicants, and Acumen Finance, as alleged by Acumen Finance.

121    The claim for payment by Acumen Finance will also be dismissed.

122    I will invite the parties to make submissions as to costs, and that issue will be determined on the papers.

Associate:

Dated:    15 December 2021