FEDERAL COURT OF AUSTRALIA

Dig It Landscapes Pty Ltd (in liq) v Bupa Aged Care Australia Pty Ltd (No 2) [2024] FCA 31

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    By 4.00 pm AWST on 6 February 2024 the respondent must file and serve any written submission of no more than three pages in length in support of an application for indemnity costs together with necessary evidence.

3.    By 4.00 pm AWST on 13 February 2024 the applicant must file and serve any written submission of no more than three pages in length and necessary evidence in response.

4.    The question of whether an order for indemnity costs is to be made will be determined on the papers.

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

JACKSON J:

1    The respondent, Bupa Aged Care Australia Pty Ltd (Bupa) is in the business of constructing and operating aged care facilities. In 2013, it commissioned Denham Construction Pty Ltd (Denham) to build a residential aged care facility (Project) at 41 Fremantle Drive, Stirling, Australian Capital Territory (Site). A related company of Denham Construction Pty Ltd, then called Denham Constructions Project Company 940 Pty Ltd (PC 940), engaged the applicant, Dig It Landscapes Pty Ltd, as a subcontractor in respect of certain works.

2    All of the companies just mentioned, other than Bupa, are now in liquidation. There were delays and defaults in payment of subcontractors on the Project from at least September 2014 on. This proceeding concerns a claim by Dig It that Bupa, the principal, assumed contractual obligations directly to Dig It, a subcontractor, which, in very broad terms, assured Dig It that it would be paid for the work it was still to do on the Project. Dig It also claims that Bupa engaged in misleading or deceptive conduct that caused Dig It to believe that it would be paid, and so caused it to keep working on the Project.

3    Dig It was not paid in full, and so says that Bupa's breach of contract, alternatively misleading conduct, has caused it to suffer loss. By the end of the trial, it was common ground that the maximum amount in issue was $545,658.74.

4    For the following reasons the claim will be dismissed.

Background

5    The following background facts were uncontroversial.

6    On 6 September 2013, Bupa as principal and owner entered into a design development and construct contract with Denham for the construction of the Project (Construction Contract), which was to be a new residential aged care facility in Stirling, a suburb of Canberra. It was to be a two story building comprised of 144 rooms with external car parking, site works and landscaping.

7    A year later, on 5 September 2014, Denham gave Bupa two unconditional undertaking surety bonds by way of security for Denham's performance of the Construction Contract. These were issued by CGU Insurance Ltd, each to a maximum value of $536,717.70.

8    On 16 December 2014, Dig It and PC 940 entered into a subcontract for Dig It to perform landscaping works for the Project (Subcontract). (As there is no material difference between Denham and PC 940 for the purpose of this judgment, they will mostly be collectively referred to as 'Denham', except where it is necessary to distinguish them.) The Subcontract provided for payment to Dig It of a lump sum, on payment terms involving monthly progress claims.

9    On 16 February 2015, Denham gave Bupa a further unconditional undertaking from CGU to pay up to $743,000 as security for unfixed plant and materials (this, together with the two bonds provided in September 2014, will be called the CGU bonds).

10    In early 2015, Bupa became aware that Denham was failing to pay subcontractors on time in respect of the Project. A meeting was held on the Site on 17 February 2015 at which there was discussion between representatives of Bupa, Denham and subcontractors about when and how the subcontractors would be paid.

11    On 23 March 2015, Denham and Bupa entered into a deed (Payment Deed) which changed the contractual arrangements between them concerning the payment of subcontractors. The relevant terms of the Payment Deed will be set out below but, broadly, it required Denham to provide proof that subcontractors had been paid within four business days of receipt of a corresponding payment by Bupa, and permitted Bupa to call on the CGU bonds to pay subcontractors direct if such proof was not provided.

12    On 26 March 2015, Denham convened a meeting with subcontractors. The stated purpose of the meeting was to address Bupa and Denham's future joint approach to the completion of the Project, including payment of outstanding amounts, future payment to subcontractors and revised programme deliverables.

13    The meeting was held on the Site on the following day (27 March Meeting). It was attended by senior representatives of each of Bupa and Denham, and by numerous subcontractors, including representatives of Dig It.

14    One of Dig It's representatives, its Regional Manager, Roger Barnes, made an audio recording of the 27 March Meeting on his smartphone. That recording and various transcripts of it were in evidence. There is therefore little dispute about what was said, or by whom. The dispute is about the effect of what was said, and in particular what was conveyed at the meeting by or on behalf of Bupa. That dispute is central to this proceeding and I will describe what was said at the meeting when I come to consider the 27 March Meeting in detail below. It is sufficient to say at this point that there was discussion of the Payment Deed between Bupa and Denham and the extent to which subcontractors could be confident that they would be paid in future.

15    On 13 April 2015, Dig It entered into a variation of the Subcontract with PC 940 to perform civil works for the Project (Civil Works Variation), principally a car park and associated works.

16    Between 27 March 2015 and September 2015, Dig It continued to perform the landscaping and civil works as required of it under the Subcontract and the Civil Works Variation. It achieved practical completion of those works on 3 September 2015, although some relatively minor further works were done in September and October 2015.

17    Between May 2015 and August 2015, Dig It made four progress claims totalling $671,059.63. The difference between that figure and the amount now claimed of $545,658.74 is attributable to a payment received by Dig It on 26 August 2015 of $47,754.74; a payment of $100,000 that Bupa made directly to Dig It on 16 November 2015; and Dig It's decision not to pursue its final progress claim of $25,400.89.

18    For reasons that are not clear from the evidence, practical completion of the Project as a whole was certified to have taken place on 30 June 2015, but the certificate was not issued until 2 October 2015.

19    In December 2015, Dig It demanded payment by Bupa of $568,428.74 (it is not necessary to explain the discrepancy in amounts). It did so on the basis of representations and undertakings alleged to have been made and given by Bupa. In response, Bupa denied any liability.

20    In August 2016, after demands from Denham, Bupa returned two of the CGU bonds.

21    PC 940 went into voluntary administration in April 2016 and went into liquidation in October 2016. Denham went into liquidation in September 2016. As an ordinary unsecured creditor, Dig It does not expect to receive any dividend in the winding up of PC 940.

22    Dig It went into a creditors' voluntary winding up on 26 March 2018, with Christopher Baskerville appointed as liquidator.

23    This proceeding was commenced on 16 April 2020.

Issues

24    Against that sketched background, the issues between the parties as contested at trial may now be described. Those issues were clarified over the course of trial, including by way of a further amended statement of claim that Dig It filed on the third day of trial: see Dig It Landscapes Pty Ltd (in liq) v Bupa Aged Care Australia Pty Ltd [2022] FCA 47 (Dig It v Bupa (No 1)).

25    The first main area of dispute concerns what was conveyed at the 27 March Meeting, and by whom. As has been said, there is an audio recording of the meeting so there is little dispute between the parties as to what was said at it. There are a few points in the recording where it is indistinct or open to different interpretations, and some things were said that cannot now be attributed to a particular person, although the general capacity in which the speaker was speaking (for example, as an unidentified subcontractor) is clear enough.

26    Dig It's statement of claim sets out specific quotes of things said at the meeting by a number of people: by Mr Barnes on behalf of Dig It; by Denham's Chief Executive Officer Stephen McGrath and its Project Manager Tom Rees; by Timothy Tait, Head of Property Development at Bupa; and an external consultant to Bupa, Kieran Fordham. While Mr Fordham was a contractor to Bupa, it was common ground that everything he said was said on Bupa's behalf and could be attributed to it.

27    In the main, though, what is in issue between the parties is not the words that were said, but the significance of those words. Dig It alleges that Bupa's statements and conduct were significant both because they conveyed promises which gave rise to a contract between Bupa and Dig It, and because they conveyed representations that were misleading or deceptive or likely to mislead or deceive.

28    The contractual promise that, Dig It says, Bupa made at the 27 March Meeting was that Bupa would enforce the Payment Deed against Denham to see that Dig It was paid in respect of the Project. Dig It alleges that Bupa made an offer to that effect to the subcontractors at the meeting, including Dig It, and that Dig It accepted this offer no later than May 2015, by continuing to perform work on the Project. Bupa denies that there were any promises and denies that any contract between it and Dig It was formed. Whether the parties intended to enter into legally binding contractual relations is a key question in this proceeding.

29    According to Dig It's particulars of breach, the alleged contract was breached when Bupa failed to ensure that Dig It was paid for its progress claims and failed to ensure that its Superintendent confirmed that Dig It as a subcontractor had been paid, and when Bupa released the three CGU bonds. Dig It claims that it suffered loss and damage equivalent to the value of its unpaid payment claims.

30    As for the misleading or deceptive conduct case it is, with respect, not entirely clear from the statement of claim what is said to have been conveyed by the various statements made and the other conduct at the 27 March Meeting. But by the time of closing submissions, this had been refined to an allegation that Bupa represented (applicant's written closing submissions dated 2 February 2022 (DCS), para 3) that:

(a)    [Bupa] would no longer rely upon statutory declarations from Denham to confirm that subcontractors had been paid, and would instead rely upon funds transfers and recipient created tax invoices;

(b)    if Denham defaulted on providing recipient created tax invoices to subcontractors within four days of receipt of funds from [Bupa] that it would, or was able to, make payment to subcontractors directly; and

(c)    [Bupa] would, or was able to, where necessary, have recourse to … Denham's security under the head contract together with a further security sum of $750,000 provided by Denham to pay the subcontractors.

31    Bupa ultimately conceded that it did make the first of these alleged representations at the meeting, but denies that anything it said or did at the meeting conveyed the second or third representations. In that regard, Dig It relies not just on things said by Mr Tait and Mr Fordham on behalf of Bupa, but also on statements made by Denham's representatives, Mr McGrath and Mr Rees. Dig It alleges that Bupa adopted these things, in all the context, because its representatives stood by as they were said, and did not contradict them. That context allegedly included that it was highly unusual for the principal under a building contract to attend a meeting of this kind and engage directly with subcontractors about when and how they would be paid.

32    Two further issues follow from the alleged representations, as they commonly do in misleading or deceptive conduct cases: were the representations misleading or deceptive or likely to mislead or deceive; and did the applicant rely on them, to its detriment?

33    In Dig It v Bupa (No 1) I ruled that, with one qualification, Dig It had not adequately pleaded why the alleged representations were misleading or deceptive, and that it would be unfair to Bupa to permit Dig It to amend its statement of claim to do so in the course of the trial. The qualification was that I permitted Dig It to proceed with a case that the alleged representations were misleading because they did not correctly state the effect of the Payment Deed. Dig It's case as to misleading or deceptive conduct was confined accordingly although, even after closing submissions, it was not clear why Dig It maintained that the alleged representations were inconsistent with the terms of the Payment Deed.

34    The other main factual area of dispute between the parties concerns reliance. Dig It claims that but for the alleged representations, it would have suspended performance of future works and would not have incurred loss or damage equivalent in value to the unpaid progress claims. The plea is not specific as to when it would have suspended works and, as will be seen, it was not at all clear on the evidence that Dig It would not have done any of the work that was the subject of the claim. At trial Bupa relied on a detailed examination of the evidence in order to submit that Dig It had not discharged its onus of establishing on the balance of probabilities that it would have suspended work at any particular time at all. It is, however, also necessary to bear in mind that as well as ongoing work under the Subcontract as it stood at the time of the 27 March Meeting, subsequent to that meeting the Civil Works Variation was agreed.

35    There is also an issue between the parties as to whether Dig It suffered the loss and damage it said it did as a result of misleading or deceptive conduct. Bupa submits that a counterfactual analysis would entail positing that if the alleged representations had not been made, Dig It would not have done the further work it says it did in reliance on them. In that case, Dig It would not have been paid for that work either. The measure of its loss is not the value of its payment claims, but the costs it incurred in performing the work. Bupa says that Dig It has led no evidence of those costs.

36    Bupa raises the further issue of whether there should be apportionment of any liability it has for misleading or deceptive conduct on the basis that both Denham and PC 940 were concurrent wrongdoers.

Witnesses

37    Dig It adduced evidence from four witnesses: the liquidator, Mr Baskerville; a director of Dig It, Gregory Mann; Dig It's Regional Manager at the relevant times, Mr Barnes; and Rodney Drew, an electrical subcontractor at the Project. Bupa adduced evidence from its former Head of Property Development, Mr Tait.

38    All of these witnesses were cross examined. The cross examination of Mr Baskerville merely went to some of the calculations he had made and was not contentious. The credibility of the other witnesses was challenged to a greater or lesser extent. However, in view of the basis on which I will end up resolving the matter, it is only necessary to comment at any length on Mr Mann. I will mention the other witnesses only to explain why, in the end, I have not found it necessary to deal with their evidence in these reasons.

Gregory David Mann

39    Mr Mann is a landscaper by occupation and was the director and principal of Dig It at the material times and until it went into liquidation in 2018. He was responsible for the day-to-day operation of the company. Dig It employed regional managers who handled the day-to-day operation of projects. According to Mr Mann, while he was guided by the regional managers, he was ultimately responsible for giving the final approval for Dig It to enter into contracts for landscaping projects. It appeared to be common ground that the final decision to continue with work after the 27 March Meeting, as well as the decision to take on the Civil Works Variation, were Mr Mann's decisions.

40    Mr Mann gave straightforward, pragmatic answers to many of the questions asked. One line of questioning was whether concern about a liquidated damages claim would have deterred him from suspending work on the Project. He said that it would not have been a concern if the reason for the suspension was that he was not being paid. Another line of questioning was whether Denham's ability to terminate the Subcontract for convenience would have given him concern. He said that Denham would have been unlikely to have done that as it would have found it difficult to find a replacement subcontractor in time. Both answers were convincing, and displayed a sound knowledge of the practical workings of the building industry.

41    Other times, however, I found Mr Mann's evidence to lack plausibility. I will deal with this as part of the substantive consideration of the claim below. Another matter that did not reflect well on Mr Mann's credit was his failure in his affidavit to acknowledge Bupa's payment of $100,000 direct to Dig It. His affidavit stated his belief that the amount of $671,059.63 was due and payable, which was overstated by at least $100,000. I do not find that there was any deliberate attempt to mislead the Court; I accept Mr Mann's evidence in cross examination that he relied on figures given to him by others. But he effectively conceded that he did not check those figures when he confirmed them in his evidence given under affirmation.

42    Cross examining counsel elicited from Mr Mann that he has shareholdings in two companies that are secured creditors of Dig It, although Mr Mann he said he had no idea whether this meant that he stood to receive part of any amounts recovered by Dig It in liquidation. There is insufficient basis in the evidence to discount the genuineness of that answer, as there was no evidence of the nature of the securities, the quantum of the debts, or the competing claims, including the costs of the winding up. I will take no account of the apparent suggestion that Mr Mann's evidence was influenced by the prospect of financial gain (or minimisation of financial loss).

43    Regardless of whether Mr Mann had any financial incentive, I formed the overall view that he was a partisan witness who was keen to see Dig It's case succeed. That view was mainly informed by the manner in which he gave evidence about his reliance on the assurances that were said to have emerged from the 27 March Meeting, which will be described when I come to the topic of reliance below. Essentially, Mr Mann was not prepared to make reasonable concessions and was wedded to his asserted understanding of the effect of what was said at the 27 March Meeting, in the face of evidence which should have led him to moderate the position he adhered to, but did not. Perhaps his attitude was informed by a genuine sense of grievance but, whatever the reason, it means that I have approached his evidence with caution.

Roger Scott Barnes

44    Mr Barnes is currently a contracts administrator for Canberra Metro Operations. He holds a Bachelor of Applied Science and Construction Management. He was employed by Dig It from July 2011 to 17 April 2015. He was a Regional Manager, responsible for all projects in New South Wales and the Australian Capital Territory. He reported to Mr Mann. Although his evidence does not say so directly, it appears that until 17 April 2015 he was responsible for the day to day management of Dig It's participation in the Project.

45    Mr Barnes struck me as a witness who did his best to give honest, straightforward answers to the questions asked. However for reasons that will be explained further below, ultimately I did not find his evidence relevant to the question of reliance, and given the existence of the audio recording of the 27 March Meeting, it was not relevant to any other issue in the proceeding. So I need not comment on his evidence any further.

Rodney James Drew

46    Mr Drew is a director of Martin Donnelly Pty Ltd, which was an electrical subcontractor on the Project. He gave evidence as part of Dig It's case. He attended the 27 March Meeting and was quite vocal at it. I accept him as a witness of truth. However, once again, the relevance of his evidence was never made clear and I have not found it necessary to refer to it.

Timothy Gerard Tait

47    Mr Tait was employed by Bupa from 2008 until 2019. At the material times, he was Bupa's Head of Property Development for Australia. In that role, he was responsible for managing the delivery of a range of capital works undertaken by Bupa. He was based at Bupa's Sydney office.

48    Once again, I accept that Mr Tait gave his evidence honestly but, once again, the evidence elicited from him in cross examination was not relevant. The cross examination seemed designed to demonstrate that Mr Tait did not take care after the 27 March Meeting to exercise the means at Bupa's disposal to ensure that subcontractors were paid. But Dig It disavowed any suggestion that Mr Tait lacked the intention to see that subcontractors were paid at the time of the meeting. That being so, why Bupa did not seek to enforce such rights as it had was not to the point; in the contractual case the real issues were whether it had an obligation to Dig It to do so, and whether it failed to do so. Mr Tait's evidence did not in the end bear on either of those matters.

Narrative of the evidence and factual findings

49    In cases where misleading or deceptive conduct is alleged, the Court must examine the impugned conduct as a whole in light of the relevant surrounding facts and circumstances. Everything depends on an appropriately detailed examination of the specific circumstances of the case: see Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60; (2004) 218 CLR 592 at [39], [74] (Gleeson CJ, Hayne and Heydon JJ), [102], [109] (McHugh J); Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at [102] (Gummow, Hayne, Heydon and Kiefel JJ). Similarly, in a contract case like the present where the question is whether the parties intended to make a concluded bargain, the Court must make 'an objective determination of the intention of the parties from a consideration of a series of communications exchanged by them in the context of their dealings over a period of time': Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550 (Gleeson CJ). I will therefore start with a chronological narrative of the relevant events before making findings to resolve the issues in the proceeding.

The commencement of the Project

50    A related company of Bupa is the registered proprietor of the Property, which is around 16,160 m2 in area. That company lodged the application for development approval in December 2012, so it appears that the Project was in train since at least that point.

The Construction Contract and the CGU bonds

51    The Construction Contract with Denham of 6 September 2013 covered design and construction of the Project. Bupa (then called Bupa Care Services Pty Limited) was the principal under the contract.

52    It was a lump sum contract using the Australian Standards AS4902-2000 General Conditions of Contract. The contract sum was $21,468,708: Annexure Part A item 2A. Sweett (Australia) Pty Ltd was named as the Superintendent, who was to carry out independent certifying functions, including assessing and issuing progress certificates in relation to payment claims made by Denham and issuing a certificate of practical completion: cl 20, cl 37.2 and Annexure Part A item 5.

53    The Construction Contract required Denham to provide security to Bupa of 5% of the contract sum which could be in various alternative forms, including an unconditional and irrevocable undertaking given by an insurance company: cl 5.1, cl 5.2, Annexure Part A item 14, Annexure Part A Separable Portions item 14. Bupa was entitled under the Construction Contract to have recourse to the security if it exercised rights to take the works out of Denham's hands, or rights to terminate the contract for default, or if Denham became insolvent: cl 5.4, cl 39.4, cl 39.11. The securities were to be reduced, and ultimately released, within certain specified times after the issue of a certificate of practical completion and rectification of defects, or after the issue of a final certificate: cl 5.6.

54    There were provisions permitting the subcontracting of works with the approval of the Superintendent: cl 9.2. Subcontracting did not relieve Denham of any obligation or impose any obligation or liability on Bupa, and Denham had no authority to enter into any agreements or commitments on behalf of Bupa or to bind Bupa: cl 9.7.

55    Denham was required to submit monthly progressive payment claims based on the value of the work done to date: cl 37.1, item 33. The Superintendent then had 10 business days to certify them and Bupa then had an additional 15 business days to pay the certified balances: cl 37.2(a)-(c). Denham was required to give, in respect of a payment claim, documentary evidence of the payment of moneys due and payable to subcontractors (and others), in the form of statutory declarations: cl 38.1. Subject to the builders' security of payments legislation, Bupa was entitled to withhold payment of certified progress claims until that evidence was provided: cl 38.2. Bupa was permitted to pay subcontractors directly if, relevantly, requested in writing by Denham: cl 38.3(c).

56    As required under the Construction Contract, Denham arranged for CGU to give two bonds in the form of unconditional undertakings of $536,717.70 each, which added up to 5% of the contract sum, $1,073,435.40.

The Subcontract with Dig It

57    Dig It quoted on the landscaping works for the Project on 18 November 2014. Denham confirmed the engagement to Mr Barnes on 24 November 2014.

58    The Subcontract between Dig It and PC 940 was signed on 16 December 2014. It was for a lump sum of $521,544.11. There were liquidated damages for delay of $4,500 plus GST per calendar day: Annexure 1 item 7, Annexure 3 cl 26.8. There was a procedure for PC 940 to direct variations to the Subcontract: Annexure 3 cl 28.

59    Dig It was to serve payment claims on PC 940 at the end of each month: Annexure 3 cl 29.1. PC 940 was then required to issue a payment schedule with its opinion of the moneys due, and a recipient created tax invoice (RCTI): Annexure 3 cl 29.2(a)-(b). PC 940 was obliged to pay the appropriate balance 45 days after the end of the month in which the payment claim was submitted: Annexure 3 cl 29.2.

60    PC 940 had a right in its absolute discretion to terminate the Subcontract for any reason, and if it did so it could engage another subcontractor to complete the works or complete them itself: Annexure 3 cl 33. If PC 940 exercised that right, however, it was obliged to pay Dig It the amount due to it for works performed up to the date of termination and any works directed after the date, plus 2% of the unpaid balance of the Subcontract sum, and certain other amounts: Annexure 3 cl 33(a)-(e).

61    On 14 January 2015 Dig It submitted a quote for the civil works (principally the car park) for a total sum of $345,000. It was expressed to be open for 30 days.

62    The structure of the contractual relationships established between the parties at this point - principal contracting with builder and builder contracting with subcontractor - appears to be common in the building industry. When cross examined about a statement made on behalf of Bupa at the 27 March Meeting that 'we don't deal with subcontracts ever', Mr Mann said:

I guess where whoever said that is coming from is that they can't go past their contractor directly to the subcontractor because that's just not what you do. So that's what that says to me, that 'We don't deal with the subcontractors ever. They have to go through the builder and the builder deals with the subcontractor.'

While Mr Mann is interpreting something said by someone else here, his interpretation indicates his acceptance of common practice in the building industry.

Non-payment and delays

63    By the end of January 2015, it seems that it was coming to Bupa's attention that payment of subcontractors by Denham was running late. In a telephone call with Bupa's Development Manager, Kathryn Wilson, on 29 January 2015, one subcontractor expressed concern that he had not been paid for an October 2014 claim and said that Denham had him sign a statutory declaration for September 2014 'for a claim he hadn't put in'.

64    A meeting with subcontractors was held on site on 17 February 2015. It appears that the meeting was attended by Mr Rees of Denham, Ms Wilson, and Bupa's consultant, Mr Fordham. The evidence does not disclose that any representative of Dig It attended. It is not necessary to make detailed findings about the meeting; Dig It relies on it only as context for the 27 March Meeting. While this was not clear from the statement of claim, senior counsel for Dig It confirmed at trial that the company does not rely on any alleged representations or other conduct at the 17 February meeting as having been misleading or deceptive or having had contractual effect.

65    Michael Robinson, the Superintendent of Sweett, took notes of the 17 February meeting, which were in evidence. It appears from Mr Robinson's notes that someone, I infer a subcontractor, asked 'what guarantee is there to subbies'. The response from Mr Rees was 'guarantee put up by Denham'. I infer that Mr Rees was referring to the CGU bonds and that the questions were about what guarantee there was that subcontractors would be paid.

66    Ms Wilson is recorded as saying 'can't commit to anything right now'. Mr Fordham said that there was enough money to finish the project and said that they (that is, Bupa) were aware of the amount of monies outstanding. Mr Fordham is also recorded as saying that Ms Wilson 'backed up that the guarantee is that the money paid to Denham will be paid to subbies etc'. It is difficult to know what to make of this last note and whether it is an assurance from Bupa that it will ensure that Denham passed on the money to subcontractors, or whether Mr Fordham or Ms Wilson are merely saying that Bupa would expect that to happen. Dig It did not specifically rely on the statement, and I put no weight on it.

67    There was further discussion at the meeting about the same subject, namely when subcontractors would be paid. A question was asked whether Denham and Bupa could make payments more frequent and Ms Wilson said that had been discussed. Mr Rees appears to have said 'once money is handed over Denham will pass it on'. The subcontractors remained concerned. Mr Fordham noted that there were two options: 'We slam Denham and loss for all. Or we cooperate'. There was further discussion along the same lines.

68    These notes are sketchy. It is not possible to identify any assurance or promise coming from Bupa that subcontractors will be paid, and at least by the time of trial Dig It did not suggest that there were any. What can be said from the evidence about the meeting, however, is that Bupa was aware by this time that numerous subcontractors were concerned that they were not being paid and were looking for some sort of guarantee that they would be.

69    It is also notable that representatives of Bupa were at the meeting at all; it was putatively about Denham's obligations to its subcontractors. I infer that Bupa was concerned that the level of discontent among subcontractors would endanger the completion of the project on time. I also infer that subcontractors were aware of Bupa's concern from having observed Bupa's participation in the meeting.

Dealings between Bupa and Denham about payment of subcontractors

70    As has been said, on 16 February 2015 Denham gave Bupa a further CGU bond up to the sum of $743,000. It is not entirely clear from the evidence why the additional security was provided at that time; it may have had something to do with advance payments that Bupa had made to ensure the delivery of certain unfixed plant and materials.

71    On 11 March 2015, Mr Robinson of Sweett sent Ms Wilson of Bupa notes of conversations he had had with the subcontractor Mr Drew and others from mid-January 2015, which indicated ongoing default in payment by Denham, that subcontractors were planning on leaving the Site, and that at least one hardware supplier was unwilling to supply anything more until it was paid. Thus the level of discontent by subcontractors was apparent to Bupa.

72    It appears that by mid-March 2015, Bupa had decided to escalate the situation regarding payment of subcontractors, as Mr Robinson of Sweett sent to Ms Wilson and Mr Tait of Bupa a draft show cause notice to Denham alleging substantial breaches of the Construction Contract. This included a claim that:

The Superintendent has been notified by several subcontractors, who have been engaged by the Contractor to perform services or works in connection with the Works, that the Contractor has failed to pay them all moneys due and payable to them in respect of the WUC [work under the contract] that they have performed. Some claim to have substantial overdue payments of due and payable moneys owing to them.

We note that with its payment claim dated 02 February 2015 the Contractor has purported to provide the statutory declaration required by subclause 38.1(f).

This seems to suggest that the statutory declaration provided by Denham on 2 February 2015 may not have been accurate.

73    The draft notice required Denham to show cause why Bupa should not exercise a right under cl 39.4 of the Construction Contract to step in and complete the work itself or to terminate the contract.

The Payment Deed

74    It seems from Mr Tait's cross examination that the show cause notice was sent, and it may be that it provided an incentive for the discussions which also seem to have commenced in March 2015 between Bupa and Denham that later resulted in the Payment Deed. I infer from an email that Mr Fordham sent to Mr McGrath of Denham on 3 March 2015 that a draft deed identifying some $1,641,610.96 in unpaid subcontractor claims had been circulated between Bupa and Denham, although it also appears from that email that $744,353.01 of the money due to those subcontractors had since been paid.

75    In any event, it appears from emails between Bupa, Mr Fordham and Denham sent on 12 March 2015 that by that time, they were discussing a proposal to ensure that subcontractors were paid out of money received from Bupa. The proposal included a deed to permit Bupa to use the CGU bonds as security against payment to subcontractors, and made provision for verification to the Superintendent that subcontractors had been paid. It would appear that the deed mentioned in these emails was negotiated and agreed over the ensuing week or so, as the Payment Deed was signed on 23 March 2015.

76    Bupa and Denham were the parties. A recital said that the Payment Deed had been entered into pursuant to the Construction Contract. The operative provision was cl 3, which was as follows (minor formatting changes have been made to reveal more clearly the logical structure of the clause, which was not contentious):

(a)    The Principal and the Contractor agree that, from the date of this Deed, the payment regime in clause 37 of the Construction Contract is subject to the following additional conditions. Part A of this regime will apply to ALL claims from 1 March 2015 for the rest of the term of the Construction Contract inclusive. Part B of this regime will apply to claims prior to 1 March 2015.

Part A

The Contractor agrees that each payment claim that it submits under the Construction Contract will include:

(i)    the amount claimed under the Construction Contract;

(ii)    (by way of a separate schedule), all amounts certified by the Contractor as due and payable to subcontractors for the relevant period; and

(iii)    a copy of the Receipt [sic] Created Tax Invoices issued by the Contractor to each subcontractor identified as having an amount due and payable for the relevant period.

Notwithstanding the provisions of subclause 37.2, the Superintendent must issue a progress certificate within 9 Business Days after receiving a payment claim and the Principal must use its best endeavours to pay the amount certified for payment in a progress certificate within 10 Business Days after receiving a payment claim and in any event within the time allowed in subclause 37.2.

Where the Principal pays the Contractor any sum which relates to an amount claimed by the Contractor as being due and payable to a subcontractor, the Contractor must pay the relevant subcontractor within 4 Business Days of receipt of payment from the Principal and the Contractor must provide evidence, in the form of a bank transfer receipt and such other evidence as the Superintendent reasonably requires, to the Superintendent that it has made such payments within 2 Business Days after the payment is made.

Part B

For claims prior to 1 March 2015 the Contractor may request and the Principal may pay unpaid moneys the subject of subclause 38.1 (as set out in schedule l or otherwise as advised by the Contractor in accordance with the following paragraph).

The Contractor must confirm to the Principal the amount of unpaid monies for each subcontractor, in addition to that identified in schedule 1, for which it requests payment in writing as certified by the Contractor within 2 working days of execution of this Deed.

(b)    In addition to its existing rights of recourse to security under the Construction Contract;

(i)    if and to the extent any amount claimed by the Contractor in respect of a subcontractor is paid to the Contractor by the Principal and the Contractor does not provide satisfactory evidence that the sum has been paid to the relevant subcontractor in accordance with the Construction Contract as amended by this Deed, the Principal may have immediate recourse to the security provided by the Contractor under the Construction Contract for the purpose of paying that sum to the relevant subcontractor. The Principal may withhold from the next payment due to the Contractor an amount equal to the amount called from the security, to be held by the Principal as security; and

(ii)    if and to the extent any amount is paid by the Principal pursuant to Part B above and the Superintendent certifies that the amount of the payment is in excess of the amount owing to the Contractor, unless such amount has been offset by the Principal against a subsequent amount owing to the Contractor, or the Contractor pays the amount back to the Principal, the Principal may, at any time up to 2 months after the date of practical completion have recourse to the security provided by the Contractor under the Construction Contract for the relevant amount.

(c)    The Contractor acknowledges and agrees that any failure to pay its subcontractors in accordance with the Construction Contract as amended by this Deed will be a substantial breach for the purposes of clause 39 of the Construction Contract.

(d)    The Contractor acknowledges and agrees that the Principal may communicate directly with all subcontractors to confirm they have been paid amounts owing to them by the Contractor in respect of the Works.

77    In summary, the Payment Deed established two different regimes for payment of subcontractors' claims: one in respect of claims received prior to 1 March 2015; and one for claims received from 1 March 2015 on. It is not necessary to consider the regime in respect of claims prior to 1 March 2015, as it is common ground that those claims were all paid.

78    The regime for subcontractor payment claims from and after 1 March 2015 agreed in the Payment Deed is relevant to this proceeding, because Dig It claims that Bupa's alleged representations were inconsistent with that regime. In this regard the Payment Deed provided that:

(a)    when Denham made its payment claims to Bupa, it would include RCTIs for the subcontractor claims for the relevant period;

(b)    the Superintendent would issue a progress certificate for each claim within nine business days, and Bupa would use best endeavours to pay within 10 business days;

(c)    Denham would then be obliged to pay the subcontractor within four business days;

(d)    Denham would give Bupa a bank transfer receipt, or other evidence reasonably required by the Superintendent, as evidence that the payment to the subcontractor had been made, within two business days after making payment; and

(e)    if Denham did not provide that evidence, Bupa could draw on the CGU bonds to make payment to subcontractors direct, and could withhold from the next payment to Denham an equivalent amount as security.

79    It is necessary to comment further on (b) above. Part A in cl 3(a) of the Payment Deed actually says that Bupa must use its best endeavours to pay the amount certified in a progress certificate within 10 business days 'after receiving a payment claim', not 10 business days after receiving a progress certificate. That suggests that Bupa and Denham contemplated that Bupa may need to use best endeavours to pay within one business day of when the Superintendent had certified the amount due. It is unlikely that this is what the parties intended, especially in light of the time frames in the Construction Contract, which were 10 business days for the progress certificate and a full 15 business days after that for Bupa to pay Denham. I will proceed on the basis that the second reference to a payment claim in the relevant paragraph of the Payment Deed is a drafting error and that it should have been a reference to a progress certificate. No party in this proceeding suggested otherwise.

80    The copy of the Payment Deed in evidence was not signed on behalf of Bupa; it was signed by Mr McGrath only. But neither party took any point about that, and the proceeding was conducted on the basis that the Payment Deed was legally binding as between Bupa and Dig It.

The 27 March Meeting

81    On 26 March 2015, Denham's Project Manager, Mr Rees, convened a meeting by circulating the following message to some 28 subcontractors, including representatives of Dig It, via an online collaboration and management system known as ProjectCentre:

Please find attached Bupa Stirling - Completion Programme 20.03.2015

We advise there will be a meeting on site 10:30am Friday, 27 March 2015 with all subcontractors that have concerns towards Denham and completing Contract works in a timely manner.

Present at meeting will be Bupa Head of Property Development Tim Tait and Denham CEO Steve McGrath.

The meeting will address the following:

1.    Bupa and Denham joint approach to the completion of the project.

2.    Commitment that any outstanding scheduled monies to subcontractors will be paid by Denham next week.

3.    Future scheduled payments to be paid in a timely manner.

4.    Programme to completion subcontractors to provide commitment that all are capable to meet the revised programme deliverables and will complete works with good intentions.

82    The meeting was held on 27 March 2015 as proposed. It was held in a building on the Site. Denham's Mr McGrath and Mr Rees, and Bupa's representatives Mr Fordham and Mr Tait were at the front of the room, with the subcontractor representatives sitting at desks facing them. Dig It's Mr Barnes and Dig It's Project Manager, Steven McDonnell, were among those subcontractor representatives, as was Mr Drew.

83    A transcript of Mr Barnes's audio recording of the 27 March Meeting was in evidence. It was typed out by an unidentified person (not one of the witnesses), but both Mr Barnes and Mr Drew listened to the recording at the time when their evidence was being prepared and made changes to the transcript, which was then set out as amended in their affidavits in full. The changes they made to the transcript were mostly different attributions given by the witnesses as to who was speaking; for example, in Mr Barnes's affidavit a comment attributed to him would be attributed to 'me'.

84    At trial, both Mr Barnes and Mr Drew made some further corrections to the transcript in their affidavits. The following account of the meeting is largely drawn from Mr Barnes's affidavit, although I did listen to the recording myself and have made a small number of corrections or additions to the transcript.

85    Bupa's advisor Mr Fordham opened the meeting and said:

So I'll proceed. So we'll just get straight to the bits that you care about. We have come to an arrangement with Denham with a Deed which will make payments - which I have spoken to most of you about, but I'm happy to talk to anyone else who I haven't spoken to - by Good Friday, next Friday, Friday of next week.

86    A subcontractor asked 'why the delay?' and Mr Fordham replied, 'Why the delay? I won't answer questions about delay, I'm telling you we will make your payment by next week, so you either accept that …'. Mr Fordham then referred to Bupa making a payment 'and that payment is to be made through to you guys'. After a further question he made it clear, 'The payment will be made from Bupa to Denham, then Denham to you subbies'. He said 'we will receive the transfer sheets from Denham of proof of that payment'. A subcontractor asked whether the payment would be what was owed up to date and Mr Fordham replied 'Yep'.

87    Discussion then turned to what would happen in relation to future amounts owing to the subcontractors. Mr Fordham said:

Bupa, through our deed with Denham is going to make a concerted effort to try and get our payment to them quicker to allow payment to subcontractors. We won't contractually change our terms but we will make our best efforts to make that payment cycle payment happen to allow Denham's to pay yourselves quicker.

… we're happy to review our contract terms to allow us to pay them quicker to allow you to be paid quicker.

88    Mr Fordham then explained:

The reason why we couldn't get 30-day terms up to date at the moment is that we have - we've been paying within our 45 day period which hasn't allowed the cash flow to some of the subbies that we owe, so we're trying to bring our payment terms within 25 days to allow that payment to be made quicker, so we're reducing our contract.

89    An unidentified subcontractor asked whether Bupa would 'attempt to pay it under their 45 contractual to Denham's and then Denham's will be paying us contractually or earlier than our current contract times?' and Mr Fordham replied 'Yep. Denham's have a requirement under the deed which we've executed four days after the … So, it's us … we're trying to get back to - it's resulting in us trying to be better than what we have contracted to do'. The subcontractor said this would result in payment at '30 days plus four', which Mr Fordham confirmed.

90    A short time after that, Mr Barnes asked:

What happens moving forward as far as monies for the works coming? How … how do we get a bit of comfort that the money will be there when we do the work? And we're agreeing that payment will be made as just discussed anyway but ensuring the money is actually there rather than sort of disappearing to another project or to works unrelated to here?

91    Mr Fordham answered:

We've changed the payment terms to Denham. With our payment terms, we get more transparency with what the RCTI amounts are within those payment terms. And we then - they provided us with transfers against those after that four-day payment as we spoke about.

92    Mr McGrath added, 'I forgot to mention the three quarters of a million dollars' worth of extra security we have put up to get that to happen' and Mr Fordham seemed to confirm that by saying, 'Yep'. This appears to be a reference to the third CGU bond described at [70] above.

93    The following exchange then occurred:

Steve McDonnell    So meaning if payments do falter again, we can go straight to Bupa?

Steve McGrath    Sorry?

Steve McDonnell    So does that mean that if payments do falter again, because we're talking about streamlining month to month, however a lot of people have multiple months owing. Should there be any reneging down the track, are we covered by Bupa?

Tom Rees    There are already clauses in the contract between Denham's and Bupa that allow that, yeah.

94    However, immediately after Mr Rees made that last statement, Mr Fordham said:

but just be clear, I have spoken to a lot of people here. I don't not answer your phone calls if you call me, I do ring you back … I won't give you warranties but I will tell you what's going on. I don't think there is anyone I haven't rung back.

95    An unidentified subcontractor then said:

As we have discussed on multiple occasions, we had the meeting with Kathryn and yourselves, and to be honest not a great deal came out of it. I know behind the scenes obviously you guys are all […] but from this perspective here, where we are now is where we were then pretty much, and the project hasn't moved a great deal since, so this is then the last resort and we have to trust what is said today.

96    Mr Tait then spoke up:

I think it's fair to say that Bupa are very determined to make sure the sub-contractors are paid what they are due and get this building finished because it's a fabulous building, and you guys are doing a fantastic job and we really appreciate the quality of the stuff that's going in here and we want to make this stuff happen, right, I'm not standing here just for the fun of it, right, and neither is Steve [McGrath].

97    An unidentified subcontractor then queried whether there had been performance of a commitment to see subcontractors paid which he said had been made at the meeting of 17 February 2015 and Mr Fordham said:

Sorry, with the 17th commitment, and the amount that we committed to and put through our deed the people were paid, so that mechanism is now for this payment which is next week, and for those future payments, okay?

98    A subcontractor then reiterated doubts, saying 'Everybody in this room really just wants to be paid what they're owed. We're not asking for any extra, we just want what's owed so we can continue onsite, and you guys get the job that you want, right?' Another subcontractor said:

… we are all very nervous still - - - I mean, the only way a project gets done is that we all do trust what happens. We have lost, no matter what we say, technically, as of January until now, this project has done nothing and it is really getting - - - and there is an enormous amount of catch up, but we have to even trust of us that you guys that it's going to happen, because some of us did take that last time and we did come in …

99    Then someone, who I take from his voice and what he said to be Mr Fordham, said:

Two answers to that. One is the money which we can control in those meetings has been paid and both of you two have received - - - so it won't be held up on that. Secondly, we're going to put a program to you and we want you to look at that program for us.

100    The discussion moved on to the program to complete the works. After some discussion of that, Mr Fordham said:

I will ask you to deal with Tom [Rees] on the program. The bits that Bupa can control, or assist in controlling is the payments and that's why we are here today. Any other questions?

101    Upon which, Mr McDonnell of Dig It said:

I've gotta say, to be honest, I still feel hugely exposed. We're going to be one of the last trades coming through here. If we get the civil package, we're going to probably knock out about six or seven hundred thousand dollars' worth of work in the next five weeks. The landscaping of the building will be finished, we have no certifications or anything to hand across the line to use as ransom. What guarantee have we got that we will get our money in 30 days after we finish the job and that it won't be stretched to 60, 90, 120 days? We really have nothing. I appreciate everyone coming here and they are great words, but what do I have to guarantee me that 30 days after I finish this job, we will get our half a million dollars?

102    There was then the following exchange:

Kieran Fordham    What do you have for any other contract you're working on?

Steve McDonnell    Well, we don't end up in this position at any other job -

Roger Barnes    We don't normally have this. This is the first one of these I have been to in 20 years, so -

Kieran Fordham    But you have a subcontract that you're entering into. We're saying that the payments were made against those subcontracts and that the transfer advice Bupa received.

Subcontractor    Wouldn't that be standard procedure?

Kieran Fordham    Sorry, we don't deal with subcontracts, ever.

Subcontractor    No, but you get a stat dec signed every month saying that the money you hand to Denham's has been handed to the contractor; well that obviously hasn't happened.

Kieran Fordham    We do get stat decs saying that, yes.

Subcontractor     Yes. So how has that stat dec gone through and people haven't been paid?

Kieran Fordham    You're not listening to me. We're not relying on stat decs any more, we're relying on your RCTIs and your funds transfer.

Nikki Lo Re    So, you're getting proof basically?

[another subcontractor]

Kieran Fordham    Yeah.

103    Ms Lo Re asked another question, which is difficult to make out but seems to have been directed to asking whether the work Bupa and Denham had been doing would ensure payment of amounts that were going to fall due to the subcontractors for the remainder of the Project. In response, Mr Fordham said:

You're not listening to me. No, no, no. Part A of the deed responds to monies owing and part B deals with monies moving forward.

(While this is the wrong way around, nothing turns on that.)

104    Mr Fordham then indicated, twice, that the subcontractors would not be receiving a copy of the Payment Deed but, he said, 'It covers monies owing and future monies'. He said, 'You guys might think we have been doing nothing in three weeks, but to get a deed which agreed monies owing and future monies paid isn't an easy exercise'. Denham's Mr McGrath echoed that the subcontractors would not be receiving a copy of the Payment Deed.

105    A subcontractor then said, 'We still have words'. And Ms Lo Re said, 'You have words but you have got something already contractually between these two companies that are guaranteeing basically that these guys will ensure all payments, past and future'.

106    The unidentified subcontractor appears to have observed that they did not even have an email. To which Mr McGrath said, 'I will try to address that problem. We can make an amendment to the subcontracts that state that we will make payment four days after Bupa pays us' and Mr Fordham and Mr McGrath both said 'against your RCTIs'. Various subcontractors responded positively to this suggestion and Mr McGrath said that Mr Rees would 'send you a one pager over'.

107    There was then discussion of what appears to be the subject of bank guarantees or other securities held in respect of the subcontractors' performance of their subcontracts. There was discussion of liquidated damages and further discussion of the works program. Mr Drew pointed out that the subcontractors would not have been in 'this position' if Denham had paid them on time, and that they have nevertheless taken the Project forward to a point in February but the standstill was because they were not getting paid.

108    Mr Fordham then made a statement, which is essentially the only one where there was a difference between the parties at trial as to what was said. According to the transcript that forms part of Mr Barnes's affidavit he said:

Just speaking on behalf of Bupa, we have been working very hard the last few weeks to make sure that this money is paid to you. We want a program delivered to us and we want our facility opened. Yes, there's been issues and we have given you the ultimate way to finish this job but we are giving you a way to finish the job and get paid, so we want that respected.

109    Bupa, however, submitted that what he in fact said in the last sentence was (difference marked):

Yes, there's been issues and we are not saying we have given you the ultimate way to finish this job but we are giving you a way to finish the job and get paid, so we want that respected.

110    After listening again to the audio recording, I find that Bupa's version of the sentence is likely to be correct. Mr Fordham speaks quickly at this point and there is background noise (some construction works were evidently proceeding). But he does say something which sounds like 'we are not saying we' and he certainly says more than just 'we' at that point. The sentence as a whole makes sense if the additional words are in it, and makes less sense without them. I therefore do not accept a submission by Dig It that its version of the statement, set out at [108] above, was uncontradicted on the evidence. It is contradicted by the audio recording itself, and by the inherent probabilities to which I have referred.

111    Most of the rest of the meeting was taken up with discussion of the works program. But right at the end, in a passage that is not in any version of the transcript but can be heard on the audio recording, Mr Fordham said something which cannot be made out in full but ended with 'so that is why he is here'. Mr Tait then said:

I'm here to make sure that everyone knows that I've got all the paperwork - I've got all the finance ready to go. By early next week alright, as soon as I can get it out of Treasury, it'll be in our account so, if I could do it today it would have been done.

112    That is the end of the recording and, apparently, the end of the meeting. I will make findings about what all the above objectively conveyed when I come to analyse the contractual and misleading conduct claims below.

Events subsequent to the 27 March Meeting

113    On 13 April 2015, Denham sent Dig It a letter confirming acceptance of the Civil Works Variation, described in the letter 'contract adjustments' to the Subcontract for the addition of the civil works for a lump sum of $345,000 excluding GST. The letter said that the 'Subcontract Works will be administered under the provisions of the [Subcontract]'. A program of works for the civil works was enclosed.

114    It appears that in May 2015 Dig It performed work which represents the lion's share of its claim, as the RCTI for that month covers approved work to a value of $426,456.91 (plus GST), about 90% of which remains unpaid.

115    On 21 June 2015, Mr Fordham emailed Mr Tait advising him of Bupa's rights under the Payment Deed and expressing concern that contract conditions as 'amended' by the deed had not been correctly administered. It is not clear from the evidence what prompted this email, which Mr Fordham sent on a Sunday. Mr Fordham wrote 'On Friday Sweet[t] advised that they had not received or administered the requirements of the DEED Part A(i)-(iii) for the last two months, which is instrumental to the purpose of the DEED ie. ensuring sub-contractors get paid'. He expressed concern that rumours would be moving 'through the site'.

116    From an email that Mr Fordham sent to Mr McGrath on 13 July 2015, it seems that payment of the subcontractors had not been made by that time. Mr Fordham said in the email that Dig It's claim was 'significantly overdue for payment' (TB 42, emphasis in original).

117    There are also emails in evidence between Mr Fordham and Dig It's Financial Controller, Michael Wilkes. On 24 June 2015, Mr Wilkes said that Dig It was concerned about the timing of the May claim that was due for payment by 15 July, and Mr Wilkes was also chasing payment of the April claim. Mr Fordham appears not to have replied to the email until 15 July 2015, when he said that Denham had advised Bupa that the April RCTI would be paid before 17 July 2015, and the May RCTI would be paid before 24 July 2015.

118    On 20 July 2015, Mr Wilkes emailed Mr Fordham twice, saying that the April claim had not been paid and that he was 'under pressure to legally take this further with Denham, which is not something either of us wish to do under the circumstances. This is a result of having limited information and promises and undertakings not being met'.

119    On 23 July 2015, Mr Wilkes informed Mr Fordham that Dig It's director, Mr Mann, had instructed that a statutory demand would be served on Denham. A statutory demand was served on that day. On 29 July 2015, Mr Wilkes relayed to Mr Fordham that Denham had assured Dig It they would receive $100,000 of the April claim (not the full amount) the following day and said 'Reading between the lines they have no intention to pay the May Claim next week'.

120    By 30 July 2015, Mr Fordham was advising Mr Tait and Ms Wilson that he had received requests that Bupa step in and make subcontractor payments. He noted however that on 31 July 2015 settlement was due to occur of the sale of an asset by Mr McGrath which was supposedly going to resolve Denham's 'cashflow issue'.

121    There was an exchange of emails between Mr McGrath and Mr Mann on 13 August 2015 in which Mr McGrath assured Mr Mann that Dig It would be paid early the following week and on that basis Mr Mann said he was 'prepared to temporarily stay legal proceedings'.

122    An exchange of emails between various Bupa personnel on 11 September 2015 was in evidence. It was prompted by an inquiry made by The Canberra Times newspaper. Bupa's Head of Corporate Affairs, Amy McNaughton, recounted the history as follows:

… to ensure the project was delivered on time, we entered into changed payment deeds that effectively meant we forward paid and received evidence of payments to subcontractors. We also fronted a sub-contractor meeting with Denhams to assure sub-contractors that they would be paid …

Tim is meeting with Freehills Wednesday (David/Tim are seeing if we can bring this forward) to discuss whether we might enact the deed to pay sub-contractors direct, as we've apparently made a verbal promise with sub-contractors that they will be paid.

123    David Warren, Bupa's Director of Development, responded to this saying 'Thanks - per our conversations this completely covers the position'. He also said, 'Contingency plans are further in place for us to make direct payments to affected subcontractors (and then use the guarantee to effectively pay ourselves back) if required'. But Mr Warren then sent a longer email, also on 11 September 2015, in order to explain the history and position to others at Bupa, as follows:

We became aware of issues with Denham's financial position earlier this year and this escalated to a situation whereby we became aware, pretty quickly, that there were issues with sub-contractors not being paid. (The Denham financial situation was primarily driven by the loss that he had encountered on another job).

To mitigate the impact on the sub-contractors, which at this point had escalated to them downing tools and putting the opening date of Stirling at significant risk we did two things:

- we accelerated contractual payments to Denham so that he could pay the sub-contractors on time (this was in effect the forward payment arrangement as referred to below)

- we put in place two bank guarantees, totaling $1.25m which were an unconditional undertaking given by the bank, on behalf of Denhams, to pay us on written demand if strict, new contractual terms were breached.

This evasive and quick-thinking action not only secured the home delivery but won us significant good will in the ACT market place.

All appeared to have gone swimmingly, the home opened on time, and we believed everyone had been appropriately paid.

We have now found out that this was not the case so we have to invoke the terms of the bank guarantee to ensure that the sub-contractors are paid and we avoid any escalation of this issue (in effect we use the deposit that Denhams have left with us to make payments on their behalf).

There are some legal hoops to jump through on Monday but we want to ensure that we look after the 'little-guy'. I have put treasury on notice for us to pay the sub-contractors directly and we then in effect pay ourselves back with the guarantee if we sense that there are issues on Monday. This would put us in a very good position with the subbies (and the press).

124    Why Bupa did not follow through on this intention is not explained by the evidence. In any event, Dig It relied on these statements at trial. From this email chain, it appears that Bupa's intention at that time was to pay unpaid subcontractors direct and draw on the CGU bonds for the amount of those payments.

125    It seems that by mid-September, Bupa had largely paid Denham all the money owing under the Construction Contract. On 14 September 2015, Mr Tait forwarded to Mr Fordham an email with a table prepared by Sweett which showed that 'we owe them not a lot' - around $185,000 on an adjusted total contract sum of $21,778,000. In an email from Mr McGrath to Mr Fordham on 26 October 2015, Mr McGrath stated that the amount then owing from Bupa to Denham as $237,937, and indicated he would be agreeable for $200,000 of that to be paid direct to Dig It. For reasons which are unclear from the evidence, the amount that was ultimately paid direct to Dig It by Bupa was $100,000, paid on or about 16 November 2015.

126    Dig It emailed Denham seeking payment throughout September and early October 2015.

127    Litigious correspondence between the various parties or their solicitors ensued. It is not necessary to describe it in detail. Dig It made demand for payment of $568,428.74 from Bupa on the basis of alleged 'representations and undertakings' and suggested that Bupa draw on the CGU bonds.

128    By a letter dated 18 January 2016, however, Denham demanded the immediate return of two of the bonds that Bupa held, on the basis that a practical completion date of 30 June 2015 had been certified by Sweett as the Superintendent in a certificate issued on 2 October 2015 (the certificate itself was not in evidence). Under cl 3(b)(ii) of the Payment Deed, Bupa was entitled to retain the performance bonds for two months after the date of practical completion (see [76] above). It appears that two of the bonds were returned in around August 2016, albeit on the basis that Bupa disagreed with Denham's interpretation of the Construction Contract and did not agree that events requiring the return of the CGU bonds had occurred. It also appears that Bupa retained the third bond (for $536,717.70), but it is not clear what ultimately became of that bond.

The cause of action in contract

Was there a contract between Bupa and Dig It?

129    Up until trial, Dig It made a contractual claim based on the Payment Deed and s 212(2) of the Civil Law (Property) Act 2006 (ACT), which in some circumstances permits a third party to take the benefit of covenants in a written instrument between other parties. That claim was abandoned at trial.

130    Dig It also alleged in the statement of claim (para 18A(g)), however, that a 'collateral contract was formed between BUPA and Dig It by no later than May 2015 to the effect that BUPA would enforce the Payment Deed to ensure that Dig It was paid in respect of the Project'. It appears that this is said to have resulted from the various things said at the 27 March Meeting, on the basis of which Dig It pleaded in the statement of claim (paras 18A(a) to (f)) that:

a.    BUPA induced the subcontractors to complete the works at the Project;

b.    BUPA intended that subcontractors rely upon the statements;

c.    Dig It did in fact rely upon the statements;

d.    BUPA made representations promissory in nature;

e.    BUPA offered to those subcontractors present (including Dig It) and who thereafter continued to perform work that they would enforce the Payment Deed with Denham;

f.    Dig It accepted such offer by no later than May 2015 by continuing to perform work for the Project …

131    The use of the term 'collateral contract' might be taken to suggest that Dig It claims that there was a contract between Dig It and Bupa where the consideration provided by Dig It was to enter into a contract with another party, presumably Denham: see Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133 at 147 (Isaacs J). But senior counsel for Dig It confirmed that in this proceeding, Dig It uses the term 'collateral contract' not in that technical sense, but merely to denote a contract that was ancillary in fact to other contracts that were already in place.

Principles as to formation of contract

132    That being so, no special elements to support the making of the alleged contract (as identified, for example, in SVI Systems Pty Limited v Best & Less Pty Limited [2001] FCA 279 at [101]-[113]) need to be established. The principles as to formation of contracts in general apply. These are summarised in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [24] (Gaudron, McHugh, Hayne and Callinan JJ) as follows:

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

133    The reference to an arrangement, and certainty as to its terms, is a reference to the trite but essential requirement that the parties can be seen objectively to have reached a consensus: see also Feldman v GNM Australia Ltd [2017] NSWCA 107 at [60] (Beazley P). In that regard, Dig It's plea as to the formation of the alleged contract adopts the conventional framework of offer and acceptance. The offer is alleged to have been made in the form of representations by Bupa at the 27 March Meeting that it would see subcontractors paid, and the acceptance is alleged to have been constituted by Dig It's performance of work after that meeting.

134    Nevertheless, the conduct of the parties may need to be analysed in another way. In Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [369], Allsop J (as he then was) wrote of 'the need not to constrict one's thinking in the formation of contract to mechanical notions of offer and acceptance', and went on to refer to when:

… having put in place necessary structural matters, the parties go about their commercial business on the clear basis of some manifested mutual assent, without ensuring the exhaustive completeness of documentation. In such circumstances, even in the absence of clear offer and acceptance, and even without being able (as one can here) to identify precisely when a contract arose, if it can be stated with confidence that by a certain point the parties mutually assented to a sufficiently clear regime which must, in the circumstances, have been intended to be binding, the court will recognise the existence of a contract. Sometimes this is said to be a process of inference or implication. For my part, I would see it as the inferring of a real intention expressed through, or to be found in, a body of conduct, including, sometimes, communications, even if it be the case that the parties did not consciously advert to, or discuss, some aspect of the relationship and say: 'and we hereby agree to be bound' in this or that respect. The essential question in such cases is whether the parties' conduct, including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract.

135    It is well established that the question of whether the parties intended to bind themselves to a contract is to be determined objectively: Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313; (2015) 90 NSWLR 605 at [65] (Beazley P). A binding agreement is made when a reasonable person would believe that, based on their words and behaviour, the parties intended to contract: John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [93] (Hammerschlag J).

136    In Australian Broadcasting Corporation at 550 Gleeson CJ said:

The case involves the objective determination of the intention of the parties from a consideration of a series of communications exchanged by them in the context of their dealings over a period of time. In those circumstances it is both appropriate and necessary to have regard to the commercial circumstances surrounding the exchange of communications and, in particular to the subject matter of those communications: Allen v Carbone (1975) 132 CLR 528 at 531-532. Furthermore, as was noted earlier, it is proper to have regard to communications between the parties subsequent to the date of the alleged contract to the extent to which those communications throw light upon the meaning of the language which is being considered for the purpose of determining whether it expresses an intention one way or the other upon the critical matter. At the least, such subsequent communications will often form part of the context in which the particular exchanges in question are to be evaluated.

137    The magnitude and complexity of the subject matter of the alleged contract will bear upon the likelihood that the parties intended to reach legally binding terms in an informal manner: Uranium Equities Ltd v Fewster [2008] WASCA 33; (2008) 36 WAR 97 at [224] (Steytler P, McLure and Buss JJA); Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2018] FCA 174 at [13] (Colvin J).

The context of the 27 March Meeting

138    Here, the question comes down to what was communicated at the 27 March Meeting. Did the communications, considered in all their context, constitute an offer by Bupa that was capable of acceptance to form a binding contract, or did they otherwise result in such a contract, either by the end of the meeting or when Dig It continued to perform work?

139    The context included the following:

(1)    The relevant parties were in existing contractual relations that were documented in detail, including in the Construction Contract and the Subcontract. The relationship between them was one conventional in the construction industry, whereby the principal, Bupa, was in a contractual relationship with the builder, Denham, who in turn had contractual relationships with several subcontractors who were performing much of the work. The principal's payment obligations were owed to the builder and not to any subcontractor. It would be unusual for a principal to assume a direct obligation to a subcontractor.

(2)    Subcontractors were concerned that Denham owed them significant overdue amounts. That concern was manifesting itself in subcontractors withdrawing personnel from the Site and otherwise slowing their work down. This jeopardised completion of the Project on time. Bupa was concerned about that.

(3)    Bupa and Denham had recently entered into the Payment Deed. Its purpose was to ensure payment of the outstanding amounts owed by Denham to subcontractors, to require Denham to give better evidence to Denham of future payments to subcontractors, to reduce the time within which subcontractors would be paid in future, and to give Bupa enhanced rights to draw on the CGU bonds if evidence of payments was not forthcoming. Broadly, the Payment Deed gave Bupa increased oversight of whether subcontractors were paid in a timely manner.

(4)    There is a suggestion in the way Mr Fordham opened the 27 March Meeting that he may have told some subcontractors about the Payment Deed before the meeting. But no copy of it was circulated before the meeting (or after it).

(5)    The 27 March Meeting was convened with representatives of Bupa, Denham and subcontractors present. The attendance of the principal at such a meeting was unusual. There were representatives of some twenty subcontractors invited and it appears that most if not all of those attended.

(6)    The purpose of meeting as stated by Denham the day before was to address a number of specified things: a 'joint approach to the completion of the project' by Bupa and Denham; a commitment that any outstanding amounts would be paid 'by Denham' in the following week; for '[f]uture scheduled payments to be paid in a timely manner'; and the 'programme to completion', under which subcontractors would 'complete works with good intentions'. While this contemplates that subcontractors would receive comfort that they would be paid, and that they would then complete the Project in a timely way, it does not signal any intention on the part of Denham or Bupa to alter Denham's existing contractual relationships with the subcontractors, let alone for Bupa to enter into contractual relations with them. Imprecise language such as 'joint approach' and 'good intentions' is inconsistent with that intention. Where there is talk of a 'commitment', it is a commitment for payment by Denham. Who is going to be responsible for the timeliness of future payments is unstated.

(7)    While the meeting had no formal agenda beyond those purposes as stated in the ProjectCentre message that convened it, it cannot be described as a casual meeting either. People were facing each other across desks. It appears from the Payment Deed that some $2 million was owing or would soon come to be owing to subcontractors. In view of subcontractors' concern about being paid, Bupa's concern about the completion of the Project, and Denham's position in the middle of those concerns, it was a serious occasion for all those present.

The effect of what was said at the 27 March Meeting

140    The next step is then to characterise the various things said at the 27 March Meeting in the above context, to discern whether they comprised an offer to contract which was capable of being accepted, as Dig It pleads, by Dig It's subsequent continuation of work on the Project. What was relevantly said at the meeting can be characterised as follows. (Paragraph references are to the above.)

141    Mr Fordham told the subcontractors about an arrangement that Bupa had reached with Denham. The focus of his initial description of it was on payment of arrears amounts by the following week [85]-[86]. The description reflected the structure of the contractual relationships, in that it was to involve a payment from Bupa to Denham, and then payments from Denham to the subcontractors. Mr Fordham said Bupa would obtain proof of the latter payments.

142    On the subject of future payment of subcontractors, Mr Fordham said that Bupa was going to make a 'concerted effort' to get payment to Denham more quickly [87]. This was a statement of an intention to do something that may or may not have been achieved. It was not a guarantee or other promise. That was confirmed by Mr Fordham's statements 'we won't contractually change our terms' and 'we're happy to review our contract terms' (while contradictory, both indicate that there had been no change to the contractual terms between Bupa and Denham) and that 'we will make our best efforts' [87]. I construe Mr Fordham's statement that Bupa was 'trying to bring our payment terms within 25 days' [88] as a statement of intent about when payment would be made in fact rather than a statement about any change to contractual provisions. There was more discussion to the effect that Bupa would 'attempt' to pay within reduced periods and would be 'trying to be better than what we have contracted to do' [89]. And, once again, these statements reflected the conventional structure of the contractual relationships, whereby the principal, Bupa, was going to pay the builder, Denham. There was no suggestion at this point of any obligation direct from Bupa to the subcontractors.

143    When a subcontractor then asked what comfort they had that the money would be there for them when they did the work, Mr Fordham again referred to Bupa's rights under the Payment Deed to see RCTIs and bank transfers as proof of payment [90]-[91]. This was a description of the Payment Deed. In the context of the question asked, it was an implicit statement that Bupa intended to exercise those rights. But it was a statement of fact, and was in no sense promissory or an offer. It was then bolstered by Mr McGrath's reference to one of the CGU bonds, seemingly adopted by Mr Fordham [92]. But, also in that context, that was a statement of fact intended to give the subcontractors comfort, not a promise or contractual offer.

144    When Mr McDonnell of Dig It asked directly whether subcontractors could 'go straight to Bupa' and were 'covered by Bupa' if they were not paid on time in future, Mr Rees of Denham appeared to confirm that, saying that there were provisions in the Payment Deed between Denham and Bupa that 'allow that' [93]. This is confusing, as it seems to contemplate that a contract between Bupa and Denham to which subcontractors were not a party could give the subcontractors direct recourse to Bupa.

145    But immediately after that Mr Fordham said 'I won't give you warranties but I will tell you what's going on' [94]. In the context of Mr McDonnell's questions and the preceding discussion at the meeting, Mr Fordham's statement is to be objectively understood as a disclaimer by Bupa of any intention on its part to assume obligations to subcontractors, and an indication that Bupa's participation at the meeting was in order to give information, not to make promises. Mr Fordham drew a contrast between undertaking any obligation to the subcontractors, and keeping them informed, and conveyed that he (on behalf of Bupa) would do the latter but not the former. At the very least, it does not signify any adoption on behalf of Bupa of what Denham's representatives, Mr McGrath and Mr Rees had said. In no way can it be construed as an offer or promise by Bupa to assume obligations to the subcontractors.

146    I therefore reject the plea in Dig It's statement of claim that Bupa's representatives did not correct or deny Mr Rees's statement that there were clauses in the Payment Deed that allow for the subcontractors to 'go straight to Bupa' or that the subcontractors were 'covered by Bupa': statement of claim para 18(xv). The statement of claim omits to plead Mr Fordham's statement made immediately after Mr Rees, which does correct and contradict Mr Rees's statement.

147    This understanding tends to be confirmed by the statement by an unidentified subcontractor, which spoke of things happening 'behind the scenes', that is, between Bupa and Denham, and of the need for subcontractors to 'trust what is said today' [95]. This suggests an appreciation on the part of that subcontractor that while trust and comfort might have been derived from the things Bupa said, contractual obligations owed by Bupa would not be. Since that was expressed at the meeting, and not contradicted, it provides context that colours the objective understanding of what was said by others at the meeting.

148    At that point Mr Tait spoke up, referring to Bupa's determination to make sure subcontractors are paid and 'want[ing] to make this stuff happen' and that he was 'not standing here for the fun of it' [96]. That was an assurance of Bupa's intentions. But it was not a contractual offer or promise. The general nature of the terms in which Mr Tait spoke tends to bely any intention to contract.

149    The exchange between two subcontractors and Mr Fordham set out at [97]-[99] illustrates how important it is to pay close attention to what each person said in the context of the entire discussion at the meeting. A superficial reading of Mr Fordham's statement, taken by itself, could suggest some sort of quid pro quo between payment to subcontractors and completion of the works in accordance with a proposed program. But Mr Fordham was only referring to the fact of past payment of the two subcontractors in question. He was, at most, saying that the subcontractors should not complain that there was no performance of anything said at the 17 February meeting, because they have been paid. And his reference to the proposed program was not linked to the matter of payment; it was a response to concerns about completing the program that one of the subcontractors expressed.

150    Mr Fordham then went on to refer again to 'the bits that Bupa can control, or assist in controlling', being the payments, 'and that is why we are here today' [100]. This is, again, a statement of intention but does not connote any offer by Bupa to enter into contractual relations with the subcontractors. Bupa was merely acting to 'assist' in seeing that subcontractors were paid.

151    The ensuing statements by Mr McDonnell of Dig It that he still felt 'hugely exposed', that '[w]e really have nothing' and 'they are great words' confirms that no promise was conveyed to those present [101]. Once again, having been said at the meeting and not contradicted, they are part of what was conveyed objectively by the words and conduct of those at the meeting. Importantly, when Mr McDonnell asked the direct question 'what do I have to guarantee me that 30 days after I finish this job, we will get our half a million dollars?', Mr Fordham immediately said 'What do you have for any other contract you're working on?' [101]-[102]. That rhetorical question is a disclaimer by Bupa of any intention to assume contractual obligations to subcontractors. That is made even clearer by Mr Fordham's reference to subcontracts soon after that and his statement 'Sorry, we don't deal with subcontracts, ever' [102].

152    It is worth interpolating here a comment about tone, since the Court is in the unusual position for a dispute of this kind of being able to listen to what was said. The strong impression one takes away is that Mr Fordham took the lead in the meeting, and the lead in speaking on behalf of Bupa. And he made no attempt to do so in a soothing way. The best adjective to describe how he comes across to the listener is 'tough'. His statements about Bupa's future role were clear but confined. The impression left is that he was at pains to say that Bupa would try to employ the mechanisms in the Payment Deed to see that contractors will be paid, and would obtain proof of that from Denham, but it was not assuming any obligation to do so direct to subcontractors.

153    Mr Fordham's exchange with Ms Lo Re [102]-[104] also goes to Bupa's intention to obtain proof of payment to subcontractors in future. Dig It sought to rely on Mr Fordham's statement that 'to get a deed which agreed monies owing and future monies paid isn't an easy exercise', but I find that was no more than a statement about the effect of the Payment Deed. Then, Ms Lo Re seems to have correctly apprehended the import of what was being said when she said, 'You have words' - implicitly, words that subcontractors would have to take on trust but could not enforce - and 'you have got something already contractually between these two companies that are guaranteeing basically that these guys will ensure all payments, past and future' [105]. In all the context, this was a statement about what she expected would occur as a result of the Payment Deed, accompanied by explicit recognition that the contractual relationship to which it gave rise was one between Bupa and Denham.

154    Mr McGrath of Denham then spoke of sending over a 'one pager' [106]; this is the only clear suggestion at the meeting that new or different contractual obligations to subcontractors would arise, and that the party to assume those obligations would not have been Bupa, but Denham. In fact, no such document was ever sent to subcontractors.

155    In presenting its case in contract, Dig It emphasised the statement by Mr Fordham where, I have found [108]-[110], he said:

Just speaking on behalf of Bupa, we have been working very hard the last few weeks to make sure that this money is paid to you. We want a program delivered to us and we want our facility opened. Yes, there's been issues and we are not saying we have given you the ultimate way to finish this job but we are giving you a way to finish the job and get paid, so we want that respected.

156    Dig It said this statement could be given no meaning except as an offer to enforce the Payment Deed. I do not accept that. Taken in isolation, it could suggest a quid pro quo between Bupa ensuring that money is paid to subcontractors and subcontractors completing work on the Project. But it must be taken in context, including the context provided by the preceding discussion about the reason for the standstill, namely non-payment of amounts already owing [107]. The first two sentences of Mr Fordham's statement thus focus on what Bupa had done up to the Meeting. It had endeavoured to remove the reason for that standstill by ensuring that subcontractors were paid what they are owed to date, so that they would restart work, and it had worked hard to agree the Payment Deed with Denham. The reference to 'this money' connotes the specific amounts already owing, not future amounts. The final sentence then acknowledges uncertainty about the future.

157    What Mr Fordham's statement as a whole conveyed to those present was an assertion that since Bupa had procured payment of existing arrears, and since a contractual framework giving increased confidence about future payments had been put in place, the subcontractors should accept that enough had occurred to make it reasonable for them to go back to work. It did not convey any offer that in return for that, Bupa would assume an obligation direct to the subcontractors to ensure payment to them in future.

158    I would have reached that conclusion even if I had not found that the disputed words 'we are not saying' were included in Mr Fordham's statement. While the statement would then have conveyed more confidence about 'the way to finish this job', it would still be far from an offer by Bupa to undertake contractual obligations direct to the subcontractors, especially in all the context of the preceding statements at the meeting. It was a statement about the state of affairs in which the subcontractors now found themselves.

159    This emphasis on what Bupa had done or was about to do is confirmed by the only other statement of any present significance made at the meeting, being the one Mr Tait made right at the end. Mr Tait was stressing that payment of arrears was about to be made. This statement tended to confirm that Mr Tait was there not to underscore some contractual commitment by Bupa to ensure payment of moneys owing in future, but to reassure the subcontractors that arrangements were in place to pay the amounts they were already owed.

Conclusion as to the existence of the alleged contract

160    Dig It's contractual case fails in relation to all three of the conventional elements of the formation of a contract that are summarised in the passage from Ermogenous quoted at [132] above. There was no arrangement reached with sufficient certainty as to its terms. And even if Bupa did say things to induce the subcontractors to return to work, those statements and acts taken in reliance on them did not give rise to an exchange of consideration of a contractual kind (Dig It advanced no case of promissory estoppel here). Finally, it follows from the context, nature and content of the meeting that any consensus that was reached was not one, viewed objectively, that the parties intended to subject to the adjudication of the courts.

161    As to the first of these, the analysis of the 27 March Meeting just given shows that none of the statements made on behalf of Bupa at the meeting, nor the conduct of its representatives in relation to the statements made by representatives of Denham, conveyed any offer which was capable of acceptance to form a binding contract. Rather, the content of what Bupa's representatives said was informative. Mr Fordham told the subcontractors about the arrangements that had been reached between Bupa and Denham. To the extent that there were statements of intention, they were statements of Bupa's intention to comply with those arrangements, not any arrangements with the subcontractors, and even then they were expressed in terms of best efforts. A promise to the subcontractors for their benefit does not emerge from the description of the arrangements reached between Bupa and Denham.

162    Certainly, the point of giving the description was to encourage the subcontractors to return to work. But that does not convert it to an offer to be bound by an arrangement containing within it obligations to the subcontractors. The closest the discussions got to that was a confusingly ambiguous answer by Mr Rees of Denham to Mr McDonnell's questions as to whether the subcontractors could go straight to Bupa or were covered by Bupa. But Mr Rees did not represent Bupa and Mr Fordham, who did, immediately undercut any suggestion that Bupa was making any promise to the subcontractors.

163    The context of the meeting I have summarised above strengthens these conclusions. It would be surprising for a large corporation such as Bupa, experienced in the business of developing land, to undertake orally potentially open-ended contractual obligations worth $1 million or more direct to a large number of building subcontractors where there were already detailed written contracts in place that set up the structure, well understood by all involved, that the principal contracted with the builder, and the builder contracted with the subcontractors: see the authorities at [137] above. In that context, clear words would be required to find that Bupa had done this. The words used here were nowhere near that clear.

164    It may be accepted that Bupa's presence at such a meeting was unusual. It may also be accepted that it was apparent to everyone at the meeting that Bupa was there, and had entered into the Payment Deed, in order to overcome the standstill on the Project and to induce the subcontractors to finish it. But encouragement, or even inducement, is not the same thing as offering to assume an obligation. No offer capable of acceptance so as to form a contract on certain terms was made at the 27 March Meeting.

165    The same conclusion is reached even if the broader analysis endorsed by Allsop J in Branir is adopted. There was no clear manifested basis of mutual assent and it cannot be said with confidence that anything Bupa's representatives said or did indicated assent to a clear regime involving obligations to the subcontractors.

166    Further, even if Bupa did say things with the intention of encouraging the subcontractors to resume work and complete the Project, it does not follow that there was any contractual consideration. The contract alleged here by Dig It is of a kind that is sometimes called a 'unilateral contract'. It is said to be constituted by the offer of a promise for an act: see Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424 at 456. In that case at 456-457, the High Court said:

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.

167    In this case even if, contrary to the findings already made, Bupa promised to ensure that the subcontractors would be paid, the relation of a quid pro quo between that statement and the subcontractors' subsequent completion of Project is absent. True, it may readily be inferred that Bupa hoped that the subcontractors would accept the arrangements that it had made with Denham as giving them sufficient comfort to complete the Project. But that falls short of any offer that if the subcontractors complete it, then in return for that, Bupa would ensure that they were paid.

168    Still on the subject of consideration, Bupa submits that any consideration Dig It provided was past consideration. Its argument was that since Dig It was already obliged under the Construction Contract to complete the Project, it was (if any promise was made) only promising to do what it had already contracted to do. However, much of the work that Dig It performed after the 27 March Meeting related to the civil works which, at the time of the meeting, were not encompassed by the Subcontract.

169    Bupa submits that entry into the Civil Works Variation after the 27 March Meeting cannot provide such consideration because Dig It had made the offer that resulted in that Variation before the meeting, and took no step afterwards; Denham simply accepted the offer. But that offer, made by way of a quotation dated 14 January 2015, was expressed to be valid for 30 days. It was accepted by way of a letter dated 13 April 2015 from Denham to Dig It, with schedules, that was expressed to be acceptance of 'adjustments' to the Subcontract. Denham did not invoke the compulsory variation procedure under the Subcontract. So it would have been open to Dig It to refuse to proceed with the quotation, which had been accepted when it was no longer effective. Dig It's decision to proceed with the civil works was therefore not past consideration.

170    As for the third aspect of contracting described in Ermogenous, an intention to make any promise legally binding, here that is generally belied by the matters described above that show that no agreement was reached. I refer in particular to the findings that Bupa made no promise to the subcontractors to do anything specific, and that it said it would not give the subcontractors 'warranties', and that it would not give a 'guarantee', reinforced by Mr Fordham's rhetorical question to Mr McDonnell, 'What do you have for any other contract you're working on?'. It is also belied by the express and implicit acknowledgment by Bupa, Denham and subcontractor representatives at the meeting that the essential contractual structure, of principal contracting with builder and builder contracting with subcontractors, was unchanged.

171    Senior counsel for Dig It submitted that an intention to assume contractual obligations was apparent in Mr Fordham's statement 'we have given you the ultimate way to finish this job', in the context of the peculiar situation where Bupa as principal was dealing directly with the subcontractors at the 27 March Meeting. But that statement is far too vague to convey an intention to assume contractual obligations to the subcontractors, even in the context as submitted. That is so regardless of whether or not the words spoken were actually 'we are not saying we have given you the ultimate way to finish this job', as I have found.

172    Senior counsel also submitted that Bupa had not pleaded the lack of an intention to assume legal obligations, when it should have. But Dig It's plea as to the formation of the 'collateral contract' at paragraph 18A of the statement of claim was not broken down by reference to the constituent elements of formation of a legally binding contract, and Bupa's blanket denial of the plea was sufficient to enable it to submit that there was no intention to assume contractual obligations. Dig It could hardly have been taken by surprise by a submission that the intention to assume legally binding obligations was absent.

173    Nothing in the parties' conduct after the 27 March Meeting, or after May 2015 (the latest time pleaded by Dig It for acceptance of the alleged offer) undermines the conclusion that there was no contract. If anything, it confirms it because, as I have described, when Denham defaulted in payment to Dig It, Dig It pursued Denham for the money, and made no claim that Bupa was contractually obliged to enforce the Payment Deed. Dig It only sought payment from Bupa after several months of repeated failed attempts, including through the service of a statutory demand, to obtain payment from Denham.

174    At trial, Dig It relied on the internal exchange of emails between Bupa personnel in September 2015 in response to media queries, in which Amy McNaughton, Bupa's Head of Corporate Affairs, referred to 'a verbal promise with sub-contractors that they will be paid'. But that is not a communication between Bupa and Dig It supporting any inference about what occurred in March to May 2015: cf. Australian Broadcasting Corporation at 550. It is, rather, a vague hearsay characterisation of what occurred, written by a person with no apparent first hand connection to any of the relevant events, and I place no weight on it.

175    Further, if any weight were to be put on the email chain, it would be necessary to take account also of the emails from David Warren, Bupa's Director of Development, that are described above. While he made the general and somewhat vague comment that Ms McNaughton's email 'completely covers the position', he went on to describe the situation that resulted from the Payment Deed and the 27 March Meeting, reasonably accurately, and in a way that indicated that Bupa wanted to ensure that the subcontractors would be paid so that it could be seen to be looking after 'the "little-guy"', not because it had any obligation to the subcontractors.

176    But in truth, the post-contractual conduct is of little relevance when the key communications between the parties said to have given rise to the alleged contract are as amply recorded as they are here.

177    The overall tenor of Dig It's submissions as to the existence of a contract was that the statements and conduct of Bupa's representatives at the 27 March Meeting made no sense unless they were construed as an offer to enforce the Payment Deed in return for completion of the Project. To the contrary, they make perfect sense understood as an attempt to reassure the subcontractors that Bupa had made arrangements with Denham designed to ensure that Denham would use the money paid to it to pay the subcontractors, so that it was reasonable for the subcontractors to return to work. No contractual offer made by Bupa to the subcontractors needs to be superadded to that explanation of Bupa's participation in the meeting in order for that participation to make sense.

178    I note for completeness that after judgment was reserved on this matter, Dig It drew the decision of Yisheng Construction Pty Ltd v City Garden Australia Pty Ltd [2022] NSWCA 269 to the Court's attention. Dig It did not specifically explain why this case was relevant. Certainly, it is possible to see a similarity in that Yisheng, like this case, involved allegations that a principal to a building contract had assumed contractual obligations to pay a subcontractor. But each case turns on its own facts and in Yisheng, the allegations were made out because the representatives of the principal were found to have made statements that were much more clearly promissory than the statements made on Bupa's behalf in this case. Yisheng is distinguishable and does not provide assistance in resolving this case.

179    For those reasons, Dig It has failed to establish the existence of any contract between it and Bupa.

Breach of contract

180    In light of that conclusion it is not strictly necessary to go further in relation to the contract claim, but as a first instance trial judge it is appropriate for me to outline the findings I would make if the conclusion were to be wrong.

181    There is no doubt that if Bupa had undertaken a contractual obligation to Dig It to enforce the Payment Deed to ensure that Dig It was paid in respect of the Project, Bupa would have breached that obligation. Mr Fordham's email of 21 June 2015 says in terms that Sweett had not administered the requirements of the Payment Deed for proof of amounts due or paid to subcontractors for the previous two months, that is, April and May of 2015, being the first two full months after the 27 March Meeting, including the month of Dig It's largest progress claim.

182    And there is no suggestion that anyone else enforced the Payment Deed. Although Bupa's defence denied the allegation of breach of contract in Dig It's statement of claim, Bupa did not present any evidence suggesting any attempt to enforce the Payment Deed at all. Mr Fordham's concerns about the lack of any action under the Payment Deed seem to have fallen by the wayside. As has been described, by the time Bupa took any steps to rely on the CGU bonds, in May 2016, it was faced with the argument that it was out of time and had no right to do so. Whether that argument was correct or not, Bupa decided to return the bonds to Denham.

183    The reasons for Bupa's supine approach to enforcement of the Payment Deed do not emerge with any clarity from the evidence. As to calling on the performance bonds, it may be that the following explanation advanced by Dig It in its opening outline of written submissions (filed 20 January 2022) is correct (an explanation that would be inconsistent with any suggestion that Bupa did not intend to honour its assurances at the time it made them). Dig It submitted that Bupa:

(a)    had every intention of retaining the securities until the applicant was paid;

(b)    failed to appreciate that it had to call upon securities held before 2 months after practical completion was attained; and

(c)    returned the securities to the Builder on 3 August 2016 after it was aware of its error.

184    But it is not necessary to make any finding about this, as the reasons why Bupa did nothing to enforce the Payment Deed are not to the point. The fact is that it did not. If it had assumed a contractual obligation to Dig It to enforce the deed, it would have breached that obligation.

185    In terms of the particulars of breach alleged in the statement of claim, I would have found that Bupa breached the alleged 'collateral contract' (had that contract been formed) by failing to ensure that Dig It was paid for the value of its payment claims (at least by calling on the CGU bonds) and failing to ensure that the Superintendent confirmed that Dig It was paid. Dig It has not, however, established its third particular of breach, that Bupa released the CGU bonds in circumstances where it was aware that Dig It remained unpaid. Bupa appears to have released at least two of the CGU bonds in the belief that it was required to do so under the Payment Deed. Dig It has not established that Bupa's belief was incorrect, and so has not established that, in this respect, Bupa's conduct was inconsistent with any promise to enforce the Payment Deed.

Damages for breach of contract

186    Once again briefly, it was common ground that Denham owes $545,658.74 to Dig It for works that it performed and for which it submitted payment claims from May to July 2015. That is the quantum of Dig It's claim against Bupa. Bupa made submissions about the quantification of damages that appeared directed more to damages for misleading or deceptive conduct than to contractual damages, so I will return to them below. That being so, the Court was largely unassisted by submissions from either party explaining how contractual damages should be calculated.

187    The governing principle in cases of contract is that the damages awarded should put the promisee, as far as money can, in the same position as it would have been in had the contract been performed as promised: Clark v Macourt [2013] HCA 56; (2013) 253 CLR 1 at [7], [10] (Hayne J), [26] (Crennan and Bell JJ), [60] (Gageler J), [106] (Keane J). Here, of course, the contract assumed to be performed is not the one between Dig It and Denham, under which Denham owed $545,658.74, but the one alleged to have been between Dig It and Bupa, under which Bupa promised to enforce the Payment Deed. So it does not necessarily follow that performance of the alleged contract would have yielded payment of that amount to Dig It. Subject to the outcome of calling on the CGU bonds, there is no suggestion in Dig It's case that Bupa undertook to make up any shortfall that may have resulted even if it had assiduously enforced the Payment Deed.

188    In essence, what Denham promised Bupa under the Payment Deed was to provide suitable proof that subcontractors had been paid, and failing that, Bupa could draw down on the CGU bonds to pay the subcontractors direct. Given what actually transpired, it is reasonable to conclude that Denham would not have been able to provide that evidence in relation to moneys owing to Dig It for the payment claims from April 2015 onwards. The April claim was paid, but not until August 2015. So Bupa would have been in a position to call on the CGU bonds from about the beginning of June 2015, which is when the time periods in the Part A regime under the Payment Deed would have expired for the claim lodged at the end of April. Naturally, the Court should proceed on the basis that if Bupa had called on the bonds, CGU would have paid out on them.

189    It does not follow, however, that the outcome of this would have been that Dig It was paid in full. The CGU bonds, totalling $1,816,435.40, would have been called on for the benefit of all subcontractors with outstanding amounts, not just Dig It. The evidence simply does not disclose whether the bonds would have been sufficient to have satisfied all outstanding subcontractor payments in relation to the Project. While there is a list of creditors of PC 940 in evidence, that is dated 29 April 2015 and therefore does not cover any subsequent claims. Additionally, it is not at all clear whether there were also subcontractors to Denham as distinct from PC 940.

190    It is therefore impossible to know whether the CGU bonds were sufficient to satisfy all subcontractor claims and, by extension, whether Dig It would have received one hundred cents in the dollar on its claims had Bupa performed its alleged obligation to enforce the Payment Deed. As the party with the onus of proving its claim, that is a problem for Dig It. Given that I have found that Bupa is not liable in contract anyway, it is enough to say that the evidence and submissions do not enable me to make a finding as to the amount Dig It would have in fact received, had Bupa not breached its alleged contract with Dig It.

Misleading or deceptive conduct

191    Dig It's alternative case is that it has suffered loss or damage by reason of conduct by Bupa that breached the prohibition in s 18 of the Australian Consumer Law (ACL) (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)) against conduct in trade or commerce that is misleading or deceptive or likely to mislead or deceive.

192    As described above, Dig It alleges, and Bupa accepts, that by its conduct at the 27 March Meeting, Bupa represented that it would no longer rely upon statutory declarations from Denham to confirm that subcontractors had been paid, and would instead rely upon funds transfers and RCTIs. There are two other matters alleged to have been conveyed by Bupa's conduct that are in dispute, namely:

193    In addition, Dig It submitted that the dominant message conveyed by Bupa's conduct, in the context of what was said and done by everyone at the 27 March Meeting, was that 'Bupa was obtaining proof of payment of subcontractors under the Payment Deed and that Bupa would see the subcontractors paid': DCS para 31. That is consistent with Dig It's statement of claim, in which it is alleged, among other things, that Bupa assured subcontractors that they would be paid for work they had undertaken in respect of the Project and that Mr Tait, in particular, said that Bupa was 'very determined to make sure the sub-contractors are paid what they are due and get this building finished'. So I will consider whether the representation said to have been conveyed by this 'dominant message' was made as well.

194    Bupa accepts that any representations made at the 27 March Meeting were made in trade or commerce.

195    As explained at the beginning of this judgment, and in more detail in Dig It v Bupa (No 1), Dig It is confined to a case that the undisputed representation, and the two disputed ones, were misleading or deceptive because they were inconsistent with the actual terms of the Payment Deed.

196    There is also the issue about reliance, and the question described above about assessment of damages, in particular whether Dig It's claim must be limited to the costs it incurred in performing the work, rather than the amounts it would have been paid had the alleged representations been made true by payment of the amount of Dig It's outstanding contractual entitlements.

What representations were conveyed?

197    Section 18 of the ACL is concerned with the effect or likely effect of conduct upon the minds of the relevant recipients. Conduct is misleading or deceptive, or likely to mislead or deceive, if it has a tendency to lead into error: Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 540 at [39] (French CJ, Crennan, Bell and Keane JJ). The test is objective and the Court must determine the question for itself: Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 at 87 (Bowen CJ, Lockhart and Fitzgerald JJ). In the ordinary case, it is a question of fact to be answered in the context of the evidence as to the alleged conduct and as to relevant surrounding facts and circumstances: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 199-200 (Deane and Fitzgerald JJ).

198    As has been said, Dig It made submissions about the 'dominant message' conveyed at the 27 March Meeting. But that term is taken from cases which deal with allegedly misleading advertising, which tends to be susceptible to an analysis where the question is whether a prominent representation has been sufficiently modified by less prominent statements, taking into account the characteristics of the target audience and the ephemeral occasions on which they often encounter advertisements: see for example TPG Internet at [46]-[52] (French CJ, Crennan, Bell and Keane JJ). It is not as clearly applicable in a situation like the present, where the issue is what was conveyed by the oral statements and other conduct of two people (Mr Fordham and Mr Tait), in all the context, on an important occasion that lasted approximately 30 minutes, where those present could be expected to have been paying attention throughout. That is a question of fact and there is no need for any analytical tools other than to apply the broad principles summarised in the previous paragraph.

199    The description of the meeting and the consideration of what was conveyed that is given above permits the present analysis to be relatively brief. Given the nature of the allegations, it is only necessary to mention such conduct as was relevant to the payment of amounts that would become owing in future; it is common ground that the amounts that were owing as at 27 March 2015 were paid (in what follows, paragraph references are to the above):

(1)    Mr Fordham said that Bupa would make efforts to pay Denham more quickly so that Denham could pay the subcontractors more quickly, but that the contractual terms between Bupa and Denham had not changed [87]-[88]. This is reasonably taken to mean that Bupa and Denham had not altered the times required for payment by Bupa to Denham under the Construction Contract. The statement that 'we're trying to bring our payment terms within 25 days' is a reference to the timing which, in fact, Bupa was trying to achieve, not to any change to contractual terms.

(2)    While the audio and transcript are indistinct in the statements that follow the one just mentioned, Mr Fordham appears to have said that Denham had an obligation to pay the subcontractors within four days of having received the relevant payment from Bupa [89].

(3)    Mr Fordham's subsequent description of the effect of the Payment Deed at [90]-[91] was that it gave Bupa more transparency because Bupa would see the RCTIs, and would see bank transfers after Denham paid within the four days.

(4)    Mr McGrath of Denham mentioned and Mr Fordham confirmed the presence of 'the three quarters of a million dollars' worth of extra security we have put up' which is a reference to the $743,000 CGU bond [92]. In context, this implied that Bupa could call on the bond if Denham did not pay the subcontractors as required under the Payment Deed.

(5)    Then, Mr Rees of Denham arguably represented that subcontractors could 'go straight to Bupa' and that 'clauses in the contract between Denham's and Bupa … allow that' and that the subcontractors were 'covered by Bupa'. But Mr Fordham's immediately subsequent statement that 'I won't give you warranties but I will tell you what's going on' meant that Bupa was not adopting those representations but was, at most, indicating that it would keep the subcontractors informed [93]-[94].

(6)    Mr Tait's subsequent statement that 'Bupa are very determined to make sure the sub-contractors are paid' [96] was a statement of intention, not a promise. But it did convey, at least, that Bupa intended to see that the subcontractors would be paid. Given that it included a reference to getting 'the building finished', this encompassed amounts that would become owing in future. Mr Tait's very presence at the meeting would have emphasised that (non-contractual) commitment.

(7)    Mr Fordham's subsequent statement that ‘the bits Bupa can assist in controlling … is the payments' is too vague to have conveyed the same sentiment [100].

(8)    Mr Fordham's response to Mr McDonnell's question about what guarantee Dig It had about getting paid after performing the landscape works was to ask rhetorically what guarantee Mr McDonnell had for any other contract [101]-[102]. That implicitly contradicted the idea that Bupa was offering any guarantee of payment. Mr Fordham's subsequent explanation did, however, convey that Bupa intended to obtain confirmation that subcontractors had been paid by the mechanism of seeing RCTIs and funds transfer documentation.

(9)    Mr Fordham made it clear that the subcontractors would not be receiving a copy of the Payment Deed, from which it might be inferred that the deed contained terms that the subcontractors had not been told about. Mr Fordham reiterated that the deed covered future monies, but this is too vague to convey anything by itself as to the way in which it made provision for such monies [104].

(10)    The subcontractor Ms Lo Re made the statement, 'you have got something already contractually between these two companies that are guaranteeing basically that these guys will ensure all payments, past and future' [105]. This was broad enough to convey the proposition that both Denham and Bupa were guaranteeing that subcontractors would be paid amounts that would become owing in future. Neither Mr Fordham, Mr Tait or anyone from Denham contradicted that statement. The fact that Ms Lo Re was not speaking on behalf of Bupa, along with Mr Fordham's previous statements contradicting the idea that Bupa was offering a contractual guarantee, mean that silence in the face of Ms Lo Re's statement cannot be construed as any offer of that kind. But it was still capable of conveying an assurance that Bupa would see that the subcontractors were paid.

200    In all the context of the 27 March Meeting as already described, Mr Fordham and Mr Tait's conduct at the meeting conveyed representations that:

(a)    by reason of or in connection with the Payment Deed:

(i)    Denham would be required to show Bupa RCTIs from subcontractors' and funds transfer documentation to confirm that the subcontractors had been paid; and

(ii)    Bupa intended to obtain that documentation in order to confirm that subcontractors had been paid; and

(b)    Bupa would be able to call on a performance bond in the amount of $750,000 if subcontractors had not been paid by Denham.

These representations emerge straightforwardly from the summary just given.

201    I also find that the conduct conveyed that Bupa would see that the subcontractors would be paid amounts that became owing in the future in respect of the Project. To some extent, Mr Fordham sought to avoid making any representation to that effect. But, on balance, Mr Tait's statement that Bupa was determined to see the subcontractors were paid, and the omission to contradict Ms Lo Re's statement that 'these guys will ensure all payments', meant that it would have been reasonable for subcontractors to come away with that understanding as to Bupa's intentions. That is especially so in the context of the other representations I have found were made, which outlined the way in which Bupa could take steps to ensure that subcontractors were paid.

202    Dig It has therefore succeeded in establishing that the following representations alleged by it were made by Bupa's conduct at the 27 March Meeting:

(a)    Bupa represented that it would no longer rely upon statutory declarations from Denham to confirm that subcontractors had been paid, and would instead rely upon funds transfers and RCTIs (Bupa accepts that this representation was made);

(b)    where necessary, Bupa would be able to have recourse to the CGU bonds and would do so (in the sense of intending to do so - this intention is reasonably inferred from the broader statement that Bupa would see that the subcontractors would be paid); and

(c)    Bupa would see that the subcontractors were paid.

203    There were no more specific representations, as alleged, that Bupa would or was able to make payment to the subcontractors directly if Denham defaulted on providing RCTIs within the four days required under the Payment Deed.

204    For completeness, the findings above also entail that the following further representations were made:

(a)    Bupa intended to try to bring its payments to Denham under the Construction Contract within 25 days of receipt of a payment claim from Denham; and

(b)    Denham was obliged to pay subcontractors the amounts that were the subject of the payment claim within 4 days of receipt of the payment from Bupa.

But since these were not alleged in Dig It's statement of claim or in its submissions, I need consider them no further.

Were the representations misleading or deceptive?

205    As has been said, Dig It's case as to how and why the alleged representations were misleading or deceptive is confined to an allegation that they were inconsistent with the terms of the Payment Deed. And, as has been said, Dig It never made clear how, it was said, the alleged representations were inconsistent with those terms. Therefore its case must fail.

206    First, to the extent that the representations I have found to have been established descended to specifics as to the terms of the Payment Deed, they were consistent with those terms. The relevant provision of the deed is set out in full at [76] above.

207    In that regard, Dig It has established that Bupa represented that it would no longer rely upon statutory declarations from Denham to confirm that subcontractors had been paid, and would instead rely upon funds transfer documentation and RCTIs. The relevant requirements of the Payment Deed enabled Bupa to do this: subpara (iii) under the heading Part A in cl 3 and the last (unnumbered) paragraph under that heading. The representation thus implied was not misleading, in so far as it made any implication about the terms of the Payment Deed.

208    Similarly, Dig It has established a representation that Bupa would be able to call on a performance bond if subcontractors had not been paid by Denham. This was a broadly accurate summary of the effect of cl 3(b)(i) of the Payment Deed, which authorised Bupa to have recourse to the security provided under the Construction Contract, including the $743,000 CGU bond. It was not misleading.

209    Second, it might be argued that the broader representation - that Bupa would see that the subcontractors would be paid - implies that the terms of the Payment Deed were such as to enable Bupa to make good on that representation. But to the extent that is so, it has not been established to have been incorrect. The Payment Deed did permit Bupa to draw on the CGU bonds and pay a subcontractor direct, if it had not received satisfactory evidence that Denham had paid the subcontractor. And while, as discussed above, there may be an issue as to whether the CGU bonds would have been sufficient to enable payment of all subcontractors, the onus of establishing (in this context) that they were not sufficient fell on Dig It. Just as the evidence does not allow one to say that the amount of the bonds was sufficient, nor does it permit a finding that the amount was insufficient. Dig It has not established that any broader representation was misleading.

210    For those reasons, Dig It has not established that the representations made at the 27 March Meeting were misleading or deceptive or likely to mislead or deceive.

Causation

211    Once again, although the conclusion just reached means that the misleading conduct case fails, as a first instance trial judge it is appropriate for me to make findings about the remaining issues of causation and loss or damage.

212    Dig It's pleaded case as to causation of loss is that, but for the alleged representations, Dig It would have suspended performance of the future works under the contracts with Denham. Presumably the plural of 'contracts' here encompasses the original Subcontract and the subsequent Civil Works Variation. Dig It thus claims that it 'would not have incurred loss or damage equivalent to the value of the unpaid progress claims'.

213    This is an allegation that if the representations had not been made, Dig It would have acted differently. It is evidence about a past hypothetical event - something that never happened - dependent on evidence as to Dig It's state of mind.

214    It appeared to be common ground that the state of mind of Mr Mann, the company's principal and director, was equivalent to the state of mind of the company. He was the decision maker in relation to matters such as whether to suspend work under a contract or to accept a new or varied contract. At relevant times there was another director, Marissa Mann, whose address is given in ASIC's records as the same as Mr Mann's, but there was no suggestion in the evidence that she had any role in making decisions about the Project.

215    There was also evidence about recommendations that Mr Barnes made and would have made, but Mr Mann was firm in cross examination that he made the decisions and that even though he liked to give his staff 'their wings and - and agree with them', he was his 'own man' and was not influenced by their recommendations (ts 54-55). Thus Mr Mann said of Mr Barnes, 'If I didn't agree with him, I wouldn't have agreed with him' (ts 54). So it is not necessary to examine the evidence about what others would have recommended; in the end the issue of reliance comes down to what Mr Mann would have decided, if the representations that have been established had not been made.

Mr Mann's evidence about reliance

216    Mr Mann gave affidavit evidence that in February 2015, members of the Project team told him that subcontractors on the Project were complaining about Denham's failure to pay payment claims. This caused concern for Mr Mann, because, he explained, Dig It is typically engaged near the end of the project, after the bulk of the project budget has been spent. His evidence was that Mr Barnes and he were 'hesitant' to proceed with the quotation they had provided in respect to the Civil Works Variation.

217    Mr Mann was aware that the 27 March Meeting was going to happen, but did not attend it. His evidence was, however, that he subsequently listened to the audio recording made by Mr Barnes. To the best of Mr Mann's recollection, acknowledging the effluxion of time (this evidence was in an affidavit affirmed on 3 August 2020), Mr Barnes told him, in effect, that (para 10):

representatives of Bupa and Denham had provided reassurance to the subcontractors that arrangements had been made to ensure that the subcontractors would be paid any outstanding and future invoices, and on that basis, the general disposition of the crowd had improved substantially by the end of the March Meeting.

218    Mr Mann's evidence that was directly about reliance was as follows (paras 11-12):

After listening to the audio recording, I determined that there was no risk in continuing works under the original subcontract and instructed Mr Barnes to proceed as usual and await confirmation of the Civil Works Contract.

Had these assurances not been provided, I would have instructed Mr Barnes to slow works on site and, at the first indication that Denham would not pay Dig It's payment claims, I would have instructed him to immediately suspend all works on the Project.

219    Dig It also relies on Bupa's knowledge that subcontractors 'would down tools' and that 'failure to pay subcontractors was jeopardising the goal of finishing the Project on time': DCS para 39. But Bupa's state of mind cannot be used to support findings about Dig It's state of mind, at least when there was no relevant communication directly between Mr Mann and any Bupa representative.

220    In assessing Mr Mann's evidence, it is necessary to apply the caution expressed by Quinlan CJ and Vaughan JA in Wilson v Arwon Finance Pty Ltd [2020] WASCA 137 at [227]:

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

221    Bupa submitted that I should in any event be cautious about accepting Mr Mann's evidence. I have already accepted two of the reasons Bupa advanced for this: that the substantial inaccuracy in his affidavit, deposing that Dig It was owed $100,000 more than it was in fact owed, undermines the reliability of his evidence; and that he was not an impartial witness. Although I have not found that there was a specifically financial motivation for his partiality, it is still ordinary human conduct to justify something that has not gone well by saying that one relied on things said by others. This is consistent with the observation in Wilson regarding inherently self-serving evidence.

222    Bupa submitted that another reason I should be cautious about accepting Mr Mann's evidence was that there was an absence of contemporaneous documentation about his state of mind. I accept that submission too. Without such documentation - for example, internal emails articulating Mr Mann's concerns - his evidence risks being pure reconstruction. That is also consistent with the extract from Wilson just quoted. And the absence of contemporaneous documentation is all the more significant when the witness is speaking more than five years after the events in question.

223    Dig It submitted that it would be unfair to hold the absence of documentation against Mr Mann because nothing was put to him in cross examination about that absence. But I do not understand Bupa to be suggesting, and I do not find, that the absence is a result of any decision on Mr Mann's part to ensure that there were no documents, either at the time of the relevant events or subsequently. No lack of probity or transparency is alleged. The point taken is simply that, for whatever reason, there are no internal documents shedding light on Mr Mann's state of mind, and that lack of corroboration reduces the confidence with which the Court can rely on his evidence. That being so, there was no obligation to put the absence of documentation to Mr Mann; it is not something that he or anyone needed to explain and there is no obligation to put specifically to a witness a lack of corroboration of their evidence.

224    Further, I mentioned at the beginning of these reasons that at times I found Mr Mann's evidence to lack plausibility. This arises in particular from his strong claim that he that there was 'no risk' in continuing works under the Subcontract. It seems unlikely that an experienced participant in the building industry would consider there to be 'no risk' in relying on unwritten assurances from a principal about the payment of subcontractors by the builder. Mr Mann was cross examined on this as follows (ts 55):

You say in that affidavit that, after listening to the audio recording, you determined that there was no risk in continuing works under the original subcontract. Now, when you say that you determined there was no risk, that's an exaggeration, isn't it?---No, absolutely not.

Well, there was - - -?---There was no risk, mate. There was no risk, mate. There was ..... there on the day. Everybody - every - everybody was - was - was happy with the - with the content of the meeting, and we - we kept going.

You didn't have anything in writing from the meeting or from Bupa at that time, did you?---No.

There's always risk, isn't there, when you don't have something in writing; would you agree?---Well, yes ..... I guess, if you're not a man of your word, well, then there's a risk, but if you're a man of your word, perhaps not.

Well, it is possible that, for example, Denham could have collapsed in the meantime and Bupa might have gone the way of HIH. If that had happened, there would be a risk, wouldn't there?---Well, perhaps.

Is it a correct position that you knew that there was always a level of risk, but you were prepared to accept that level of risk in this case?---No, that's not true. Mate, I tell you - I tell you straight, there's no way that - unless it was ironclad that we were going to get paid - that I would be silly enough to continue to dig a bigger hole and take on a $345,000 civil works package and variation if I wasn't - if I wasn't absolutely ironclad that Bupa were representing that they were going to have their building finished - were going to get their building finished, because we were all doing a good job and they were going to make sure that all subbies were not left out in the cold. It's good enough for me, mate. We're talking about a billion-dollar company. It's good enough for me, so I didn't see any risk.

225    A little later, Mr Mann was taken to specific statements made at the 27 March Meeting which suggested that there was a level of risk, including Mr Fordham's statement 'I won't give you warranties'. Mr Mann was prepared to concede that meant that there was some risk involved. But when Mr Mann was asked about Mr McDonnell's expression of concern and his question about what guarantee he had (see [101] above), the cross examination then went as follows (ts 59):

Yes. Do you agree that the person that P2 [Mr McDonnell] [has] asked for a guarantee?---He says, 'What guarantee have we got that we will get our money in 30 days?' Well, he's asking - he's asking what guarantee we have, yes.

And the answer comes back:

What do you have for any other contract you're working on?

That's not an answer giving a guarantee, is it?---No, it's a question to his question.

It's throwing the question back in P2's - - -?---It's avoiding - so perhaps it's avoiding the question.

So you'd accept that when a guarantee has been asked for and the answer avoids the question and does not provide the guarantee, there is some risk involved?---No. I wouldn't read that much into it. I mean, someone stands up there, represents that they're going to get their building finished and pay the subcontractors. Like I said before, that's what I read out of a meeting like this.

Once again, Mr Mann refused to accept a reasonable proposition. Instead he retreated to assertive generalities.

226    After some similar questioning about the level of risk indicated by specific things said at the 27 March Meeting, the cross examination on the point concluded as follows (ts 59):

Do you agree, having looked now at all of these statements, that your assessment that there was no risk is an exaggeration?---No, mate. Not at all. Like I said, you know, there was assurance given that subcontractors are going to get paid. But if there was a risk - I did think there was a risk, why dig a bigger hole for myself?

227    Like the last answer quoted at [224], this is asserting that Mr Mann must have considered there was no risk because he would not otherwise have proceeded with the works, including the civil works package. He was led into this circular reconstruction of his motives in order to defend the exaggeration in his evidence. Rather than make the reasonable concession that he knew that there was some risk, Mr Mann dug in. In this important respect I found his evidence about reliance to be implausible.

Mr Mann's evidence was unclear

228    Mr Mann said in his affidavit that he would have acted differently had 'those assurances' not been provided, but does not make it clear what the assurances were, let alone whether he would have acted differently had the particular representations I have found above not been made. If Mr Mann is referring to the 'reassurance' mentioned in paragraph 10 of his affidavit 'that arrangements had been made to ensure that the subcontractors would be paid any outstanding and future invoices', that is too general to furnish an objectively convincing account of why he would have acted differently. The problem is that Mr Mann does not say specifically what it was he heard in the audio recording that led him to instruct Mr Barnes to proceed as usual and await confirmation of the Civil Works Variation.

229    This lack of clarity did not improve in cross examination. On multiple occasions, cross examining counsel put to Mr Mann specific things said at the 27 March Meeting only for him to give a response to the effect that he did not recall much of the recording from March 2015. I do not doubt that Mr Mann's response was honest, given the lapse of time, but it hardly enhances the reliability of his evidence that he relied on ‘assurances' said to have been given at the meeting which he neither describes in his affidavit sworn some 5½ years later, nor remembers the details of in the witness box.

230    As to Mr Mann's evidence about what, specifically, he would have instructed Mr Barnes to do had the 'assurances' not been given, Mr Barnes's evidence was that any 'slowdown' would have only lasted for 'days, a - you know, a week or two. We're - we're not talking six weeks downing tools. It would have been a small window' (ts 89). Bupa submitted that this means that the slowdown possibility can be disregarded because it would not have been long enough to impact the construction programme.

231    I am not sure that is the full import of Mr Barnes's evidence, though. He went on to say (ts 89-90):

Because - because of this - the - the meeting that - that - the - that we've recorded took place, that was the pinch point. That - that is - was - was the - the catalyst on what was going to happen for the - for the project thereafter and we wouldn't have needed to slow it long to - to find out are we getting paid or are we not? And so, thus, we're still not on the critical path. We could have - we could have slowed as described. We could have even withdrawn from site, suspended works, and still not impacted the - the overall construction program because of the nature of our works and the nature of the delays already in front of us that we could have leveraged off to mitigate our - our - our position.

232    This evidence is unclear, but may be saying that a slowdown would have somehow been enough to reveal that Dig It was not going to be paid, and thus could have led to a complete suspension of works. But whether this is so, let alone how it could have been so, is not articulated. And ultimately, suspension, not slowdown, is the case that Dig It has pleaded. I will have no more regard to the possibility of a slowdown.

233    As to suspension, Mr Mann's evidence was that at the 'first indication' that Denham would not pay Dig It's payment claims, he would have instructed Mr Barnes to immediately suspend all works on the Project. The difficulty Dig It faces is to identify when, on the evidence, that indication would have come. It is a difficulty that arises from the timing of Dig It's claims and the payment of those claims that is summarised in the table below:

Table - Dig It progress claims and payments made

234    Soon after the 27 March Meeting (consistently with the assurances that had been given), amounts outstanding for the January and February 2015 progress claims were paid. The March 2015 claim (required to have been lodged at the end of that month) was paid on 20 May 2015, only just over the 45 days required under the Subcontract. Payment of the April 2015 claim took longer, as it was not made until 26 August 2015 and, as will be considered below, Dig It was clearly concerned about delays well before then.

235    The problem is that even if Mr Mann had insisted on payment of the April claim within the '30 days plus four' that was referred to at the 27 March Meeting, all of the work done in May would have been done by the time that deadline passed. And at $469,102, the May progress claim represents the majority of Dig It's present claim. So even if Mr Mann's evidence about reliance is accepted, it was not at all made clear when Dig It would have suspended works, and how much of its loss would thereby have been avoided, if any.

236    Dig It submits that this line of reasoning fails to appreciate that the suspension of works is put on the hypothetical basis that the alleged representations were not made. I do not accept that submission; the point, rather, is that when one looks at the evidence as to when Denham did actually make payments, it is hard to see that Mr Mann would, to put it in his own terms, have received an 'indication' that Denham would not pay Dig It's payment claims, at any time before completion of the bulk of Dig It's works in May 2015. That arises from the scheduling of payments as made by Denham, and there is no basis in the evidence to think that would have been any different had the representations not been made. The payments were most likely the result of the Payment Deed, rather than the subsequent representations that were made about it.

Mr Mann's evidence is inconsistent with Dig It's actual conduct

237    Further, Dig It's actual conduct in the face of subsequent delays in payment casts doubt on Mr Mann's hypothetical evidence. Expressions of concern from Mr Wilkes, Dig It's financial controller, are described in the chronological account of the evidence given above. On 24 June 2015, Mr Wilkes said Dig It was concerned about the timing of payment and by 20 July 2015 he said he was 'under pressure to legally take this further with Denham' (not Bupa). By 23 July 2015, this escalated to the service of a statutory demand on Bupa.

238    And yet, Dig It continued to perform work on the Project in June, July and August of 2015. The work done in June was substantial, resulting in a progress claim of $199,305.82. Of course, Dig It's case is that it believed that it would be paid by Bupa. But from at least mid-June its conduct, as manifested by Mr Wilkes, was not the conduct of a company placidly proceeding with works, secure in the knowledge that it faced 'no risk' because it had the assurance of a 'billion-dollar company'. Its conduct is that of a creditor increasingly concerned about payment, and conscious of the need to pursue the debtor, Denham, rather than the putative guarantor, Bupa. And yet despite the concern, it continued to do work and to make further progress claims. All this objectively observable evidence of what actually happened undermines Mr Mann's hypothetical evidence that he would have suspended works.

239    Bupa also submitted that Dig It would have faced contractual risks if it had suspended works, but as I have already indicated, I found Mr Mann's evidence on this point convincing. I accept, as inherently probable, his evidence to the effect that liquidated damages were not likely to be a concern in circumstances where Denham was in default of payment of past progress claims. Also, it was common ground that at all material times Dig It had the right pursuant to the Building and Construction Industry (Security of Payment) Act 2009 (ACT), to suspend works if it was not paid on time. Although Bupa pleaded that this was subject to certain qualifications, it did not rely on those at trial.

Conclusion on reliance

240    Taking all of the above into account, I do not accept Mr Mann's evidence that, had the assurances not been made, he would have suspended works. I do not suggest that he was giving evidence other than honestly, but for reasons I have given I did not find his evidence to be reliable. It was inevitably clouded by hindsight about the collapse of both Denham and Dig It and so more likely to be reconstruction than an accurate account of the state of mind that he had at the time. His evidence was unclear on the important questions of what assurances led him to consider that Dig It faced 'no risk', and on when, exactly, Dig It would have suspended works, given that by mid-April Denham had rectified its past defaults and it did not fall into serious default again until after May. Further, his evidence is entirely unsupported by any contemporaneous documentation. And it is inconsistent with the objectively observed facts about how Dig It behaved when Denham did fall into serious default in payment again.

241    Had I found that Bupa had engaged in misleading or deceptive conduct, I would have found in any event that Dig It had failed to establish its case as to causation of loss, because it has not established that it would have suspended works before performing the bulk of the work for which it has not been paid, had the misleading conduct not occurred.

Damages

242    As to damages for misleading or deceptive conduct, it will be recalled that the issue is whether Dig It, assuming it has established that Bupa's conduct caused it loss, should be compensated by reference to the amount of its outstanding progress claims, that is its unpaid contractual entitlements, or by reference only to the costs that it incurred in performing the work, which it would not have incurred (on its case) if it had not relied on the alleged representations.

243    Dig It claims damages under s 236 of the ACL, which in so far as is presently relevant, has the effect that if a claimant suffers loss or damage because of the conduct of another person that contravenes s 18, the claimant may recover the amount of the loss or damage against that other person. This takes up the common law practical or common-sense concept of causation discussed by the High Court in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, except in so far as it is modified or supplemented expressly or impliedly by the provisions of the Competition and Consumer Act: Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 525 (Mason CJ, Dawson J, Gaudron J, McHugh J). The section contains no express limitation on the kinds of loss or damage that can be recovered, and once a causal connection between the loss or damage and the contravening conduct is established, there is nothing in the legislation which suggests the orders to be made should be limited by drawing an analogy with the law of contract, tort or equitable remedies: Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at [38]-[40] (McHugh, Hayne and Callinan JJ).