Federal Court of Australia

Lumina BPO Pty Ltd v Cocoon Data Technologies Pty Ltd [2026] FCA 116

ORDERS

THE COURT ORDERS THAT:

1.    There be judgment against the corporate respondents in the amount of $269,865.56 plus pre-judgment interest.

2.    Within 7 days of these orders, the parties are to confer and provide proposed short minutes in relation to costs including in relation to Mr Telford’s costs.

3.    In the absence of agreed costs orders, the parties are to provide by exchange written submissions limited to 2 pages addressed to costs, such submissions to be provided within 14 days of these orders.

4.    Any dispute in relation to costs to be determined on the papers.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    These reasons concern a contractual dispute between the applicant, Lumina BPO Pty Ltd, and the corporate respondents, Cocoon Data Technologies Limited, Cocoon Data Holdings Pty Ltd and Cocoon Data Pty Ltd, and Mr Trent Telford, the former Chief Executive Officer (CEO) of each of these companies. Mr Telford was also a director of these companies. He was also a director and CEO of other companies related to the corporate respondents. The key executive of Lumina who features in the evidence is Mr John Williams, who is described as the Managing Partner and a director of Lumina.

2    ACN 156 175 245 Pty Ltd (formerly known as Covata Australia Pty Ltd from 9 March 2012 to 4 December 2019, and Cocoon Data Australia Pty Ltd from 5 December 2019 to 9 October 2023) (Cocoon Data Australia), is not a party to this proceeding. Cocoon Data Australia was a wholly owned subsidiary of Cocoon Data Holdings, which was in turn a wholly owned subsidiary of Cocoon Data Technologies. Cocoon Data Australia was placed into voluntary administration on 9 October 2023 by resolution of its sole director, Mr Telford, pursuant to s 436A of the Corporations Act 2001 (Cth). It is common ground that Cocoon Data Australia entered into a Deed of Company Arrangement (DOCA) pursuant to which Lumina received a dividend as a participating creditor and that after giving credit for that dividend, the unpaid invoiced balance under the contract is $269,813.70 (excluding interest).

3    The collective term, the Cocoon Data Group, is used in the evidence in this case. The usage of that term is not consistent between the primary documentation and the evidence on affidavit. The term is defined in the contract which is in issue in these proceedings. In these reasons I will use the term Cocoon Data Group in accordance with the contractual definition to refer to Cocoon Data Australia and the three corporate respondents collectively as the Cocoon Data Group. Cocoon Data Australia while not a respondent is important in this proceeding. Cocoon Data Australia was the payroll, expense and administration entity within the Cocoon Data Group. It is an agreed fact that Mr Telford was the CEO of the Cocoon Data Group.

4    The dispute concerns the non-payment of the invoiced balance under a services contract for the provision of outsourced accountancy and taxation services to the Cocoon Data Group. Lumina seeks judgment against the corporate respondents in the amount of $269,865.56, being the amount claimed of $307,738.63 for breach of contract, less the dividend of $37,873.07 received in the DOCA of Cocoon Data Australia, plus pre-judgment interest.

5    The central issue is the identification of the parties to the contract. The respondents maintain that the sole counterparty to Lumina was Cocoon Data Australia. Lumina maintains that the parties to the contract were Lumina and each of the companies in the Cocoon Data Group. Lumina contends that because each of the corporate respondents were parties to the contract, each is separately liable for the payment of outstanding fees rendered under the contract and for the interest accrued thereon. It is common ground that it was an express term of the contract that where there is more than one client, each client is jointly and severally liable for Lumina’s professional fees and expenses, whether or not each client equally benefits from the services.

6    The respondents in contending that Cocoon Data Australia was the sole counterparty to the contract say that Lumina was contractually obliged to provide services to each of the corporate respondents but that Lumina’s obligation was to Cocoon Data Australia, not the other companies in the Cocoon Data Group. The respondents contend that only Cocoon Data Australia was liable to pay any debt arising under the contract and that Cocoon Data Australia has no extant liability after the DOCA was fully effectuated.

7    Lumina’s claim included alternative claims for promissory estoppel and misleading or deceptive conduct, which were not ultimately pressed. The claim based on contract was the only claim pressed. That claim is a claim against each of the corporate respondents. It does not extend to a claim against Mr Telford. When the matter came on for hearing, I dismissed the claim against Mr Telford and reserved the question of costs. Counsel for the respondents sensibly suggested that the issue of Mr Telford’s costs be determined in conjunction with the making of final orders in relation to the balance of the claim. Accordingly, I reserved the issue of costs in respect of the claim against Mr Telford. I will make orders for the resolution of this issue at the time of delivering these reasons.

8    For the reasons that follow, I have concluded that each of the corporate respondents together with Cocoon Data Australia were counterparties to the contract. Further that the corporate respondents are jointly and severally liable in accordance with the contract in respect of the debt due under the contract. Accordingly, Lumina is entitled to judgment against each of the corporate respondents.

EVIDENCE

9    Lumina relies on the following evidence:

(1)    an affidavit of Mr Williams affirmed 12 April 2024;

(2)    an affidavit of Melinda Craw, a “Partner” of Lumina, affirmed 12 April 2024;

(3)    a collective exhibit to the affidavits of Mr Williams and Ms Craw marked Exhibit LBPO-1;

(4)    an affidavit of Daniel Connolly, a “Partner” of Lumina, affirmed 23 April 2025, together with Exhibit DC-1 to that affidavit; and

(5)    a Notice to Admit dated 18 February 2025 (which was not disputed).

10    The respondents rely on the following evidence:

(1)    an affidavit of Mr Telford affirmed 21 May 2024, together with Exhibit TT-1 to that affidavit; and

(2)    a second affidavit of Mr Telford affirmed 28 March 2025.

11    The parties rely on a joint statement of agreed facts and matters in issue (the Agreed Facts and List of Issues), which was updated at the commencement of the hearing.

12    The objections to the affidavit evidence were resolved by agreement with the majority of the disputed matters being the subject of an agreement that the evidence be treated as a submission. Where the evidence extended to Mr Telford’s subjective understanding of the effect of the contract, I have treated that as a submission made by the respondents. None of the witnesses whose affidavits were read were required for cross-examination.

BACKGROUND

13    In making the following factual findings I have had regard to the parties’ revised Agreed Facts and List of Issues, the evidence and the Notice to Admit, which was not disputed.

14    Lumina is an accounting practice which provides on an outsourced basis, services in the nature of those that would commonly be provided by a Chief Financial Officer and financial department, including accounts management, bookkeeping, payroll, treasury, corporate governance, statutory compliance and other accounting and financial management functions. Lumina has carried on its business providing these services since around 1998.

15    The Cocoon Data Group operated a technology data business. In addition to the companies in the Cocoon Data Group, Cocoon Data Holdings has two international subsidiaries. The first is Cocoon Data UK Ltd (formerly known as Covata UK Limited), a UK-based entity (Cocoon UK). The second is Cocoon Data, Inc (formerly known as Covata USA, Inc), a US-based entity (Cocoon US). I will refer to each of these companies consistently using the names Cocoon UK and Cocoon US respectively even though some of the primary documents use variations of the names Covata UK and / or Covata US. To avoid confusion with references to the Cocoon Data Group (which comprises Cocoon Data Australia and the corporate respondents) when I am referring to the companies in the Cocoon Data Group and Cocoon UK and Cocoon US, I will refer to this broader group as the Cocoon Companies.

16    Lumina provided outsourced accountancy and taxation services to the Cocoon Companies for a period prior to entry into the contract which is the subject of the present dispute. Lumina first commenced providing services to the Cocoon Companies in around August 2019. For reasons I will address below I find that the contract in issue was entered into in late August 2020. By the time the contract in issue was entered into, Lumina knew, through the work it had done for the Cocoon Companies since August 2019, of the organisational structure and operational arrangements of the Cocoon Companies.

17    Cocoon Data Technologies was incorporated on 20 March 2019. It is the ultimate holding company in the Cocoon Data Group. Cocoon Data Technologies was known as “Cybr5 Pty Ltd” from 20 March 2019 to 15 December 2021 which covers much of the relevant period. References in the primary documents include references to Cybr5 but it is convenient to refer to the company as Cocoon Data Technologies throughout. Mr Telford has been a director of Cocoon Data Technologies since 20 March 2019 along with two other current directors, Mr William McCluggage (appointed as a director on 1 July 2020) and Mr Philip McCormack (appointed as a director on 1 July 2019). As mentioned, Mr Telford was the CEO of Cocoon Data Technologies.

18    Cocoon Data Holdings was incorporated on 15 October 2007 and is a wholly owned subsidiary of Cocoon Data Technologies. It was an unlisted public company from 22 January 2010 to 13 May 2015 and then became a proprietary company. Mr Telford was and is the sole director of Cocoon Data Holdings having been appointed on 16 July 2019. Mr Telford was the CEO of Cocoon Data Holdings. Cocoon Data Holdings was the main Australian operating entity of the Cocoon Data Group and engaged in the majority of Cocoon Data Group’s income producing activities in Australia.

19    Cocoon Data Holdings is the immediate holding company of Cocoon Data Australia and Cocoon Data. As mentioned, Cocoon Data Holdings is the holding company of Cocoon UK and Cocoon US.

20    Cocoon Data was incorporated on 15 October 2007 as a wholly owned subsidiary of Cocoon Data Holdings. Mr Telford was and is the sole director of Cocoon Data, having been appointed 16 July 2019. Mr Telford was also the CEO of Cocoon Data.

21    Mr Telford was the sole director of Cocoon Data Australia from 16 July 2019 to the date of it being placed into voluntary administration. Mr Telford was also the CEO of Cocoon Data Australia. Upon execution of the DOCA, Cocoon Data Australia was returned to the control of Mr Telford.

22    As mentioned, Cocoon Data Australia was the employment, treasury and administration entity for the Cocoon Data Group. It arranged for, and provided, various support services to the other companies in the Cocoon Data Group. Cocoon Data Australia was a vehicle through which payments for various services were channelled, but it did not itself engage in any income-generating activities.

23    After it was placed into voluntary administration on 9 October 2023, Cocoon Data Australia continued to trade. The administrators identified that the main reason for the company entering into voluntary administration was that it was unable to obtain from its immediate parent, Cocoon Data Holdings, sufficient funds to cover its working capital requirements. In the result, Cocoon Data Australia ceased to pay Lumina for its services and Lumina served three statutory demands for its outstanding invoices. Before steps were taken in relation to Cocoon Data Australia’s failure to comply with the statutory demands, Mr Telford as sole director resolved that Cocoon Data Australia be placed in voluntary administration.

24    It is common ground that between 15 May 2022 and 15 September 2023, Lumina issued a series of invoices to Cocoon Data Australia in the total sum of $307,738.63.

25    On 17 October 2023, Lumina submitted a formal proof of debt in the voluntary administration of Cocoon Data Australia in the amount of $307,686.65, which was admitted to proof.

26    The administrators reported to creditors that based on their preliminary investigations, Cocoon Data Australia was insolvent from 5 May 2022 at the earliest when its debt to the Australian Tax Office accrued.

27    Mr Telford in his capacity as the director of Cocoon Data Australia put forward a proposed DOCA which was accepted by unanimous resolution of creditors at a meeting on 13 November 2023. Mr Williams attended the creditors’ meeting as proxy for Lumina. A DOCA was executed on 16 November 2023.

28    The effect of the DOCA was summarised by the administrators at the meeting of creditors broadly as follows. The DOCA was premised on a $400,000 deed contribution. It was projected to provide a return to priority employees, along with their leave entitlements, at 100 cents on the dollar (and included a further cash contribution equivalent to the sums payable for employee entitlements). Other unsecured creditors would obtain between 22 cents and 12 cents on the dollar depending on various contingencies. Of the $400,000 deed contribution, $50,000 would be paid within seven days after the execution of the DOCA. The remaining $350,000 would be paid on 31 March 2024 or on completion of the sale of substantially all of the assets of Cocoon Data Holdings, whichever happened earlier. Following execution of the DOCA, control of Cocoon Data Australia would be returned to Mr Telford. As mentioned earlier, under the DOCA Lumina received a dividend of $37,873.07, which left a balance of $269,813.70 outstanding plus interest.

29    I will now move to the genesis of the relationship between Lumina and the Cocoon Companies, which as I have mentioned predated the contract in issue by about a year. This topic is relevant because pre-contractual materials and surrounding circumstances are relied on as being relevant to the identification of the parties to the contract which is in issue.

30    The relationship between Lumina and the Cocoon Companies stems from an introduction made to Mr Telford on 8 July 2019, the details of which it is not necessary to recount. At around the time of the introduction, Cocoon Data Technologies was close to completing a deal to acquire a business unit which had previously been owned by a third party. The vendor had previously used Lumina’s services and introduced Lumina to Mr Telford. Following the acquisition, the Cocoon Companies began using Lumina’s services. Lumina provided services for about a year before the contract in issue was entered into. The arrangements that predated the relevant contract may be addressed briefly.

31    After correspondence regarding the scope of services that Lumina could provide and the requirements of the Cocoon business, Lumina provided a “fee proposal for [Cocoon Data Technologies] and its associated entities” on 22 July 2019. This fee proposal was in the form of a letter signed by Mr Williams which attached and incorporated four appendices. Each of the appendices related to the work to be performed in various phases, for example, Appendix 1 was for initial set-up and transition one-off costs; Appendix 2 was for ongoing periodic services; Appendix 3 was for ongoing annual services; and Appendix 4 was for additional work. This letter did not include a discrete appendix addressed to Lumina’s terms of trade.

32    The letter was addressed to “Mr Trent Telford” using Mr Telford’s gmail address. No individual Cocoon Companies were identified in the address block. The subject line of the letter read (original emphasis):

Proposal for Outsourced Accountancy Services

[Cocoon Data Technologies] and its associated entities

33    The opening paragraph of the letter described the proposal as being for the provision of services to Cocoon Data Australia, each of the three corporate respondents, [Cocoon UK] and [Cocoon US]. These six companies were together defined in this letter as the “Group”. The description of the service team and fees included in the letter spoke in relation to “each client” and set out a list of the Lumina personnel who would “be assigned to the Group”. The fee proposal did not include an execution or acknowledgment of acceptance on the face of the letter.

34    By 25 July 2019, Mr Telford had confirmed that he was happy to proceed on a trial basis.

35    By 29 August 2019, an agreement was in place and the trial period had commenced. An email sent to various Cocoon personnel, copied to Lumina personnel, announced that Lumina “will be taking over Cocoon’s payroll, payables, receivables and other accounting functions”. From about August 2019 onwards, Lumina was given access to the various accounting and finance software used by the Cocoon Companies and Lumina began performing services for the Cocoon Companies. As mentioned, Lumina provided services under the July 2019 proposal for about a year before it proposed new arrangements in August 2020. The proposal for the new arrangements gave rise amongst other things to the contract which is in issue.

36    In August 2020, Lumina sent new engagement letters to cover the future provision of their services in three separate engagement letters each dated 26 August 2020. Whereas the July 2019 arrangement was an umbrella arrangement covering the provision of Lumina’s services to all the Cocoon Companies, including Cocoon UK and Cocoon US, the proposed new arrangements involved three separate offers. The first offer, to put it neutrally, was in relation to the provision of services to the Australian based Cocoon Companies, that is the companies in the Cocoon Data Group. The second offer was for the provision of services to Cocoon UK. The third offer was for the provision of services to Cocoon US. The form of each of the three August 2020 engagement letters was substantially similar. For each letter, appendices 1 to 3 related to services. Appendix 4 contained Lumina’s terms of trade which formed part of the contract. The August 2020 letters were materially different to the July 2019 letter.

37    Central to the dispute in this proceeding is the engagement letter which covered the provision of future services to the Cocoon Data Group (the Aus Engagement Letter). The Aus Engagement Letter embodies in writing the terms of the contract in issue in this proceeding. The letter was expressed to be capable of acceptance in various ways including by giving instructions or by signing and returning a copy of the letter.

38    The other two engagement letters each respectively covered the provision of future services by Lumina to Cocoon UK (the UK Engagement Letter) and to Cocoon US (the US Engagement Letter). The UK Engagement Letter and US Engagement Letter were directed to the provision of services to the addressee company only whereas the Aus Engagement Letter was directed to the provision of services to the “Cocoon Data Group” (which as I have mentioned was defined in the letter to be Cocoon Data Australia and the corporate respondents).

39    Each of the three engagement letters was electronically signed by Mr Telford using the DocuSign facility on 26 October 2021, some 14 months after the letters were sent. At that time Mr Telford was one of three directors of Cocoon Data Technologies, and the sole director of each of Cocoon Data Holdings, Cocoon Data and Cocoon Data Australia. He was also the CEO of each of these companies and it is an agreed fact that he was CEO of the Cocoon Data Group.

40    During the 14-month interlude between Lumina sending the engagement letters and Mr Telford signing the letters, Lumina provided services to the Cocoon Data Group, Cocoon UK and Cocoon US.

41    From January 2022, the Cocoon Data Group began to fall into arrears in respect of Lumina’s invoices. As a result, Lumina ceased providing some services and provided other services on a reduced and ad hoc basis to the Cocoon Data Group.

CONSIDERATION

42    The doctrine of privity ensures that only a party can sue or be sued on a contract. Lumina sues the respondents on the contract formed as a result of the acceptance of the Aus Engagement Letter. The existence of the contract itself is not in issue. The issue is whether the contract was made with a sole counterparty, viz. Cocoon Data Australia, the treasury company of the Cocoon Data Group, or with multiple counterparties, viz. each company in the Cocoon Data Group, being Cocoon Data Australia and each of the corporate respondents. Where the contract is wholly in writing, the resolution of that issue depends on the objective construction of the contract, there being no issue in relation to, for example, the respondents being relevantly estopped from denying that they are parties: JD Heydon, Heydon on Contract: The General Part (Thomson Reuters, 2019) at [12.110].

43    The task of ascertaining the legal meaning of provisions in a commercial contract involves identifying the imputed intention of the parties by reference to the contractual text construed in light of its context and purpose: Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 at [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [46]-[51] (French CJ, Nettle and Gordon JJ); Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; 261 CLR 544 at [16].

44    The court takes an objective approach to interpreting the contract. In a commercial agreement, the question is what a reasonable business person would have understood the terms to mean, taking into account the language used, the surrounding circumstances known to the parties, and the commercial purpose of the objects to be secured. The last requirement is facilitated by understanding the genesis of the transaction, the background, the context and the market the parties are operating in. Unless the contrary is indicated, the court is entitled to approach interpretation on the basis that the parties intended to produce a commercial result. A commercial contract should be construed to avoid it making a commercial nonsense or working a commercial inconvenience: Woodside Energy at [35].

45    Evidence of prior negotiations, which may reflect the subjective intentions of the parties, is admissible only to the extent that it establishes objective facts known to both parties to elucidate with greater precision the commercial purpose or the subject matter of the contract: WIN Corporation Pty Ltd v Nine Network Pty Ltd [2016] NSWCA 297; 341 ALR 467 at [57] (Bartlett AJA, Sackville AJA and McColl JA agreeing).

46    Evidence of the parties’ subjective intentions is not relevant to the construction of a contract: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].

47    Evidence of surrounding circumstances is admissible to assist in the interpretation of the contract. However, such evidence is not admissible to contradict the language of the contract when it has a plain meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; 149 CLR 337 at 352 (Mason J, Stephen and Wilson JJ agreeing).

48    “Admissible” in this context means use rather than receipt into evidence. Ambiguity is a conclusion, rather than a precondition to the admissibility of evidence of surrounding circumstances: Cherry v Park-Steele [2017] NSWCA 295; 96 NSWLR 548 at [69], [79] (Leeming JA, Gleeson JA agreeing at [1], White JA agreeing on the point of principle at [123]). Commercial context may be considered from the outset.

49    The reference to “plain meaning” by Mason J in Codelfa reflects the primacy of the text of a written contract. The start and end points of the construction of a written contract is the language chosen by the parties to record their agreement: Cherry at [72]; Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99 at 109 (Gibbs CJ); Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; 89 NSWLR 633 at [74] (Leeming JA).

50    Evidence of surrounding circumstances cannot be used to detract from the contractual text used by the parties. If, after considering the contract as a whole and the background circumstances known to both parties, a court concludes that the language of the contract is unambiguous, the court must give effect to that language unless to do so would give the contract an absurd operation: Newey v Westpac Banking Corporation [2014] NSWCA 319 at [91] (Gleeson JA). A court cannot depart from the ordinary meaning of the words merely because it regards the result as inconvenient or unjust: McGrath v Suresteps; Suresteps v HIH Overseas Holdings Ltd (in liq) [2011] NSWCA 315; 81 NSWLR 690 at [17] (Bathurst CJ, Macfarlan JA and Sackville AJA agreeing).

51    Lumina has the legal onus in fact and law, of establishing that the respondents are parties to the contract: Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154; Aust Contract R 90-263 at [54] (Campbell JA, Beazley JA agreeing, Basten JA agreeing on this point).

52    The identity of the contracting parties is to be determined in accordance with the objective theory of contract: Dennis Pethybridge at [54], citing Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; 69 NSWLR 603 at [262]-[266] (Campbell JA, Mason P agreeing) in turn citing Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [22]; Toll at [40].

53    The court’s task is to ascertain between whom the parties objectively intended to contract. That requires the court to ascertain the intention that a reasonable person would conclude that the parties held with the knowledge of the words and actions of the parties communicated to each other and the knowledge that the parties had of the surrounding circumstances. The process will involve examining and construing the relevant documents in the factual matrix in which they were created. Where the documents are silent or ambiguous, but there is undoubtedly a contract, the identity of the parties must be determined objectively from the surrounding circumstances: see Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; 77 NSWLR 299 at [28] (Allsop P and Handley AJA, Hodgson JA agreeing); Lederberger & Anor v Mediterranean Olives Financial Pty Ltd & Ors [2012] VSCA 262; (2012) 38 VR 509 at [19] (Nettle and Redlich JJA and Beach AJA).

54    The issue as to the identity of the parties to the contract is generally recognised as an issue of contract formation. However, categorisation of party identification as an issue of formation or of construction may differ depending on the form of the contract. In Lym International Pty Ltd v Marcolongo [2011] NSWCA 303; 15 BPR 29,465 at [141]-[143] Campbell JA (Sackar J agreeing and Basten JA agreeing subject to presently immaterial qualifications) identified that there is a vital distinction between construing a contract which is wholly written and in finding what has been agreed in a contract which is not wholly written. The difference between those two tasks “makes a vast difference between the circumstances in which post-contractual conduct can be relevant for the respective tasks”. At [142]-[143], Campbell AJA said (citations omitted):

Where there is a contract that is wholly in writing, there is no doubt what the contract is - it is the writing. The task of interpretation is ascertaining the meaning that the bystander who knows all the relevant surrounding circumstances would understand from the parties using the words in that writing. The admissibility of evidence for interpreting a wholly written contract is decided by reference to whether it is able to assist in ascertaining the meaning that the bystander who knows all the relevant surrounding circumstances would understand from the parties using those words. Save in the case of post-contractual events providing retrospectant evidence of a surrounding circumstance that was known to the parties at the time of contracting, the view favoured in this court is that post-contractual conduct cannot assist in that task, and thus is not admissible, or if admitted cannot legitimately be used in that task: ...

By contrast, the task in ascertaining what are the terms of a contract that is not wholly in writing is quite different - the task is finding as a fact what the parties have agreed. A range of post-contractual conduct could be relevant to ascertaining what the parties have agreed. For example, their conduct in carrying out the contract could itself be objective evidence of what they had agreed, an admission of one of the parties could assist in ascertaining what they have agreed, and business records created to record or report on the contract rather than carry it out could also assist in that task.

55    There is some variation in the authorities in relation to the permissibility of post-contractual conduct being used for the purpose of party identification.

56    The starting point is Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; 53 NSWLR 153, where Heydon JA (as he then was, Mason P and Ipp AJA agreeing) summarised the principles governing the admissibility of post-contractual conduct. The second of the principles identified by Heydon JA is that post-contractual conduct is admissible on the question of whether a contract was formed: at [25] citing Howard Smith & Co Ltd v Varawa [1907] HCA 38; 5 CLR 68 at 77; Barrier Wharfs Ltd v W Scott Fell & Co Ltd [1908] HCA 88; 5 CLR 647 at 668, 669 and 672; B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR [97011] at 9149 and 9154-9156; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR [9251] at 9255. The third principle identified is that post-contractual conduct is not admissible on the question of what a contract means as distinct from the question of whether it was formed: at [26].

57    The use of post-contractual conduct for the purpose of party identification arose in Dennis Pethybridge at [59] where Campbell JA (Beazley JA agreeing) noted that the state of the law throughout Australia on whether, and if so, when it is possible to use post-contractual conduct as an aid to construction of the contract was not yet settled. Basten JA similarly declined to form a concluded view as to whether it is "permissible to look at" subsequent communications and conduct, in order to determine whether a contract with a particular party existed, at [2]. In doing so, Basten JA noted that to answer that question it is necessary to determine the precise issue, which may depend upon the nature of the relief sought, and once the issue is identified, it is then necessary to consider the relevance and admissibility of evidence of subsequent conduct in relation to that issue. In Dennis Pethybridge it was not necessary to resolve the issue because the post-contractual communications if considered would not lead to any different conclusion.

58    The issue arose before the Supreme Court of Victoria Court of Appeal in Lederberger. The Court referred to Dennis Pethybridge, noting that Campbell JA had found it unnecessary to decide whether the question of who the parties were to the contract was in substance no different to a question of whether there was a contract entered into with the appellant at all: at [29]. The Court observed that the respondents in Lederberger had not submitted that where there is an issue as to whether a particular person was a party to a contract, it is permissible to have regard to subsequent conduct, as constituting an admission by conduct as to the parties’ rights or to draw inferences from such conduct as to the existence of a subsisting contract. Accordingly, the Court expressed no view on these issues: at [30].

59    In Lederberger. the Court was faced with a submission that post-contractual conduct was not available to identify the parties to a contract which is wholly in writing because to do so would offend against the application of the objective theory of contract. In response, the Court said that the general principle, affirmed by the High Court in Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 does not allow use of the subsequent conduct of the parties as an aid in the construction of a contract but the Court was “not inclined to think” that principle has affected the second principle stated by Heydon JA in Brambles. Accordingly, in Lederberger the Court of Appeal held that the trial judge was not precluded from relying upon tax returns filed after the tax effective scheme contracts had been signed, in order to ascertain whether the respondents and other parties had entered into the agricultural contracts: at [31]. In any event, even if the post-contractual conduct was inadmissible for the purpose of identifying the parties to the contracts, the Court was satisfied that the trial judge’s detailed examination of the circumstances which led to the signing of the relevant contracts, including the object and purposes of the contracts, would have led to the same conclusion as to the identity of the contracting party: at [32].

60    The tentative conclusion expressed by the Court in Lederberger was referred to in Nurisvan Investment Ltd v Anyoption Holdings Ltd [2017] VSCA 141 but it was not necessary to resolve the question because in that case the post-contractual conduct was characterised as going to the existence of the contract itself not only the identity of the parties to the contract: at [84]. A similar tentative approach was taken in Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2015] NSWSC 354, where Robb J paid some regard to post-contractual evidence, but regarded it as inconclusive: at [103]. A challenge to the finding at [103] that Karellas Investments was the relevant contracting party was abandoned at the commencement of the hearing of the appeal: Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123 at [3] (Ward JA).

61    The issue was addressed squarely in BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086; 100 NSWLR 367 at [90]-[103] (Leeming JA, sitting at first instance), applied in this Court in Kapp Consulting Pty Limited v Lawfinance Limited (Formerly Justkapital Limited) [2019] FCA 1760 at [47] (Bromwich J).

62    In BH Australia the contract in issue was wholly in writing, the identification of the parties was treated as a question of law that involved construction of the contract and accordingly post-contractual evidence could not be used to identify the parties to a contract. After a comprehensive review of relevant authority, Leeming JA concluded that where the contract is wholly in writing post-contractual conduct could not be used for the purpose of party identification except in confined circumstances, such as where the contract is said to be a sham or to involve fraud or where rectification in equity is sought: at [90].

63    In Loureiro v Mac Aus Unit Pty Ltd (No 2) [2022] NSWSC 226 at [34]-[35], drawing on earlier observations his Honour had made in Nohra v Nando’s Quality Meats Pty Ltd [2021] NSWSC 1209 at [36]-[37], Gleeson JA observed that the relevance of post-contractual conduct to identify the parties to a contract must be considered in light of the authorities as to the admissibility and probative value of admissions about matters of law, or of mixed fact and law citing the summary of the position given by Sackville AJA in Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 at [66]-[69]. Sackville AJA concluded at [69] that the position was as stated by Basten JA in Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 at [121], [124]. First, where the admission provides evidence of facts, the assertion of which is against the interests of one party, it may be admissible as an admission by that party. However, to the extent that the evidence reveals an opinion as to a question of law rather than fact, the admission may be irrelevant or valueless. Secondly, where the alleged agreement is not wholly reduced to writing, the post-agreement conduct of one party known to the other, and communications between the parties, which reveal a common assumption as to the existence and terms of an agreement may provide evidence of the agreement. However, the subjective views or reservations of one party, undisclosed to the other, cannot provide a basis for inferring the terms of a pre-existing agreement.

64    The contrast with issues of contract formation is illustrated by Jackman J in Cirrus Real Time Processing Systems Pty Ltd v Jet Aviation Australia Pty Ltd (formerly Hawker Pacific Pty Ltd) [2025] FCAFC 85; 311 FCR 408 at [272]-[274] (I agreed with Jackman J on this point at [260]), where, subject to weight, evidence of an admission made after the event by a party that it intended to enter into a binding contract may be used in determining the factual question of intention to create binding legal relations despite not being known by the other party.

65    In the present case, it is common ground that a contract existed and that the terms of the contract are contained in the Aus Engagement Letter. There is a dispute as to when and how the offer embodied in the Aus Engagement Letter was accepted. That may affect whether the contract is regarded as being wholly in writing or not.

66    Lumina by its Amended Statement of Claim alleges that the contract based on the Aus Engagement Letter was formed on or around 26 August 2020, or alternatively on 26 October 2021, and that each of the respondent companies and Cocoon Data Australia were counterparties to the contract. The respondents deny this allegation. The respondents do however admit that from on or about August 2020, Lumina performed some services for their benefit but say that where such services were provided, they were provided at the instruction of Cocoon Data Australia. The instructions which the respondents admit were given, constituted the act of assent, by which the offer in the Aus Engagement Letter was accepted. Mr Telford’s assertion in his affidavit to the effect that Cocoon Data Australia entered into the relevant contract on 26 October 2021 must be read in the light of the concession in the respondents’ defence that Cocoon Data Australia gave instructions for services to be performed by Lumina from on or about August 2020. In any event, Mr Telford’s opinion on the question is a matter of submission – his opinion as to the identity of the counterparty is irrelevant.

67    It is clear on the face of the Aus Engagement Letter and Appendix 4 to that letter that the offer made was capable of acceptance by the giving of instructions.

68    Under the heading “Acceptance of offer”, the concluding section of the Aus Engagement Letter relevantly includes that the proposal can be accepted by signing and returning the letter or “by continuing to ask us to do work for you”. That is confirmed by cl 1 of Appendix 4 to the letter which comprises Lumina’s terms of trade. The word “you” is not defined in a definition of general application in the letter (cf. the inclusive definition of “you” that is included for the specific purpose of cl 13 of Appendix 4, which is not presently relevant). The word “you” is a second-person personal pronoun and is capable of being both singular and plural. The use of “you” does not shed light on whether the objective intention of the parties was that there be a single counterparty or multiple counterparties.

69    The final page of the letter comprises an execution block. As mentioned, Mr Telford signed the execution block using the DocuSign facility on 26 October 2021.

70    The respondents rely on the content of the execution block (sans the signature of Mr Telford) as supporting their contention that the sole counterparty to the contract was Cocoon Data Australia. The respondents further rely on Mr Telford applying his signature as the relevant act of assent that brought the contract into existence. I will first focus on when the contract was formed before addressing the issues arising in relation to the identification of the counterparty or counterparties.

71    It is common ground that the three engagement letters including the Aus Engagement Letter were signed by Mr Telford on 26 October 2021. That was 14 months after Lumina sent the engagement letters. The present issue is whether signing each of the engagement letters was the act of assent by which the relevant contracts were formed or alternatively whether the act of assent was in giving instructions for work to be performed after receipt of each of the engagement letters.

72    During the period between 26 August 2020 and 26 October 2021, Lumina provided services in relation to the accounting needs of the companies in the Cocoon Data Group. The instructions that resulted in Lumina first undertaking work pursuant to the Aus Engagement Letter are not in evidence but the respondents admit that from on or about August 2020, Lumina performed some services for their benefit but say that where such services were provided, they were provided at the instruction of Cocoon Data Australia.

73    In terms of ascertaining when the contract was formed, that admission is significant. The Aus Engagement Letter expressly provided that the offer contained therein could be accepted by, amongst other things, the giving of instructions. In the period after Lumina sent the Aus Engagement Letter, Lumina was given access to and did provide services in relation to the accounting needs of the respondent companies. That position persisted for over a year before Mr Telford signed and returned a copy of the Aus Engagement Letter.

74    In these circumstances, I find that the contract was formed in or about August 2020 upon instructions being given to Lumina to carry out work. Lumina, who carries the onus of establishing that the respondents were counterparties, has not led evidence as to the instructions that were given or by whom the instructions were given. I accept in accordance with the admission on the pleadings that the instructions given in August 2020 were given by Cocoon Data Australia. I find that by giving instructions the terms in the Aus Engagement Letter were accepted and a contract was formed in or about August 2020. The giving of the instructions was the act of assent. There is no suggestion in the evidence that the content of the relevant instruction affected the substantive terms of the contract formed. The whole of the written terms are embodied in the Aus Engagement Letter. The fact that it was Cocoon Data Australia that gave the instruction that comprised the act of assent is relevant to identifying the counterparties to the contract formed upon the giving of that assent.

75    The respondents submit that even if the contract was formed upon instructions being given in about August 2020 that the offer in the Aus Engagement Letter was “a continuing offer” which covered the provision of future services. As such, or so the submission went, it could be accepted a second time by signature and return of the letter even though it had earlier been accepted by conduct. In the respondents’ submission that could occur without Lumina making a new offer. At the conclusion of the hearing, the respondents had a short period within which to identify authority in support of the proposition that an offer accepted by conduct could later be accepted by signature such that there were two distinct contracts brought into existence at different times by acceptance of the same letter of offer. The respondents were not able to identify any authority to support this contention. I reject the submission. I find that the contract in issue was formed upon the offer being accepted by conduct. The subsequent signing of the Aus Engagement Letter by Mr Telford was not the act of assent to the offer in the Aus Engagement Letter that formed the contract. It was an act that post-dated entry into the contract. It serves as an acknowledgement of the contract that was entered into at the earlier time. The completion of the execution block by Mr Telford does not shed light on the identification of the counterparties to the contract. The content of the execution block pre-execution informs the construction of the contract as it formed part of the written offer made by Lumina.

76    The issue for determination is whether each of Cocoon Data Technologies, Cocoon Data Holdings and Cocoon Data are parties to the contract formed by acceptance of the Aus Engagement Letter. The question is not what the parties subjectively intended, but what they should be taken to have agreed, viewing the matter objectively. It is an issue on which Lumina bears the onus.

77    That the contract was formed by reason of an instruction being given by Cocoon Data Australia does not of itself lead to the conclusion that the sole counterparty to the contract was Cocoon Data Australia. That is because of the role that Cocoon Data Australia performed as the treasury company within the Cocoon Data Group, a fact known to Lumina and each of the potential counterparties at the time the contract was formed.

78    The relevant context known to the parties, including each of the disputed counterparties, including through Mr Williams on the part of Lumina and Mr Telford on the part of each of the corporate respondents, included the following.

79    First, the role that Cocoon Data Australia played as the treasury company in relation to the accountancy and taxation requirements of the respondent companies.

80    Secondly, that Cocoon Data Australia itself was not an income generating company within the group.

81    I infer that Lumina was aware of these two matters as a result of providing accountancy and taxation services to the Cocoon Companies since July 2019.

82    Thirdly, that the Aus Engagement Letter was one of three engagement letters which were in substantially similar form. The engagement letters were sent on the same day from Mr Williams on behalf of Lumina to Mr Telford who was a director of all the potential counterparties and was the CEO of each of the companies presently relevant. It is an admitted fact that he is and was the CEO of the “Cocoon Data Group”.

83    Fourthly, that the three engagement letters were directed to replacing the umbrella arrangement which had been in place since July 2019 by which Lumina provided services to each of Cocoon Data Australia, the corporate respondents, Cocoon UK and Cocoon US. The way in which those arrangements had been implemented in the period prior to 26 August 2020 was known to Lumina and each of the Cocoon Companies. Mr Williams deposed that from August 2019, Lumina performed services for the Cocoon Data Group and issued invoices for that work to Cocoon Data Australia. Further, that Lumina performed work for Cocoon UK and Cocoon US and issued invoices for that work to Cocoon UK and Cocoon US respectively. In so far as Lumina performed work in the period from August 2019 to the date the August 2020 engagement letters were accepted, that forms part of the pre-contractual circumstances known to both parties. The 22 July 2019 proposal expressly provided for services to be provided to each of the six Cocoon Companies (which were defined to be “the Group”) and made reference to a dedicated team providing services in respect of “each client” and identified a team of personnel that would be “assigned to the Group”. The 22 July 2019 proposal was implemented by providing services to all six companies for which invoices were sent. For work done for the companies in the Cocoon Data Group, invoices were sent to Cocoon Data Australia. That is consistent with its function as a treasury company for the Australian companies. For work done for Cocoon UK, invoices were sent to Cocoon UK. For work done for Cocoon US, invoices were sent to Cocoon US.

84    In the present circumstances, for practical purposes the contract is akin to being wholly in writing. There is a lacuna in the evidence as to whether the act of assent comprised of the giving of instructions was oral or written. There is no evidence in relation to how and in what form instructions were given. It is admitted that instructions were given by Cocoon Data Australia. In these circumstances, the identity of the counterparties to the contract is informed by the construction of the written terms of the Aus Engagement Letter allowing for the fact that the act of assent was the giving of instructions by Cocoon Data Australia. The respondents contend that it would invite legal error to use post-contractual conduct in aid of identifying the counterparties to the contract. I am not sure that is strictly correct where it is unknown whether the terms of the Aus Engagement Letter were accepted in writing or orally. But in any event, the only document in evidence that evidences the terms of the contract is the Aus Engagement Letter. Applying the principles I have outlined above, it is that letter that must be construed to identify what the parties objectively intended as to the identity of the counterparties. Another fact which is relevant to the parties’ objective intention in relation to the identification of the counterparty or counterparties is the act of assent which caused the contract to come into existence. For the reasons I have given I find that the act of assent was the giving of instructions by Cocoon Data Australia in around August 2020.

85    The parties point to the following features of the Aus Engagement Letter as relevant to ascertaining the objective intention of the parties in relation to the identity of the counterparty or counterparties to the contract.

86    The content of the execution block (pre-execution). There are a number of features that may immediately be noted. First, the execution block takes the form of an acknowledgement “on behalf of the Company”. Company is singular. “Company” is not defined in the Aus Engagement Letter. The execution blocks in each of the UK Engagement Letter and US Engagement Letter mirror that in the Aus Engagement Letter. However, in each of the UK and US Engagement Letters the term “Company” is defined as the recipient company to whom each letter is addressed, namely Cocoon UK and Cocoon US respectively. The Aus Engagement Letter, which is dated on the same day and signed by the same signatory on behalf of Lumina, namely Mr Williams, does not.

87    The absence of a definition of the term “Company” and the use of the definition “Group” in the Aus Engagement Letter suggests that the reference to “Company” in the execution block in the Aus Engagement Letter is a mistake carried over from the execution blocks used in the UK Engagement Letter and the US Engagement Letter where the word “Company” is defined. That is reinforced by the fact that in the UK Engagement Letter and the US Engagement Letter, where the term Company is defined, the definition Company is used repeatedly in each letter in addition to the execution block. By contrast, in the Aus Engagement Letter, where the term company is not defined, the only initial capitalised appearance of the term mid-sentence is in the execution block and in the last bullet point of cl (iii) of Appendix 1. The reference in cl (iii) of Appendix 1 is as follows:

iii) Accounting

…

•    Monthly submission of reporting pack to Fundsquire Australia Pty Ltd to assist with advanced R&D funds drawdown for the Company.

88    Mr Telford’s evidence on this issue comprised submission or mere assertion. Mr Telford deposed that services provided by Lumina with respect to Fundsquire were "provided to, and only for the benefit of Cocoon Data Australia, rather than the Cocoon Data Group as a whole.” Mr Telford’s subjective views about who Lumina provided services to and for the benefit of with respect to Fundsquire are not admissible to prove the objective intention of the contracting parties as to the identity of the counterparty to the contract.

89    Mr Connolly, a partner of Lumina, deposed to having been one of the partners at Lumina responsible for the provision of services under the contract. He was involved in and was aware of the work that was being conducted by Lumina with respect to Fundsquire (the correct name of which appears to have been Fundsquire Pty Ltd). Mr Connolly deposes that Fundsquire is a provider of finance in relation to R&D activities and, where an entity or group of entities is engaged in activities and expects to receive a tax offset under the Australian Government's R&D tax incentive legislation, Fundsquire can provide a loan so the entity or group of entities can receive access to funds rather than be required to wait until the receipt of its tax refund. Cocoon Data Technologies was the entity that was eligible to make a claim under the R&D tax incentive legislation, being the ultimate holding company of the tax consolidated group. Cocoon Data Technologies was also the entity that borrowed from Fundsquire. Cocoon Data Australia and Cocoon Data Holdings were the entities engaged in eligible R&D activities. As a result, the services provided by Lumina relating to Fundsquire were not only to, or for the benefit of, Cocoon Data Australia. Rather, the services were provided to, and were for the benefit of, at least Cocoon Data Technologies and Cocoon Data Holdings.

90    Mr Connolly’s evidence was directed to the post-contractual arrangements between Fundsquire and each of Cocoon Data Australia, Cocoon Data Technologies and Cocoon Data Holdings. I do not regard the specific evidence in relation to the services that Lumina provided in relation to Fundsquire after the contract was entered into to be useful in construing the terms of the Aus Engagement Letter. I do however infer that each of the parties was aware of the nature of the services that Fundsquire provided and that it was Cocoon Data Technologies as the ultimate holding company of the tax consolidated group that was eligible to claim the R&D incentive and accordingly was likely to be the party making the drawdowns in the arrangements with Fundsquire. Having regard to that context known to both parties, I do not regard the reference to the Company in cl (iii) of Appendix 1 to demonstrate that the objective intention was that Cocoon Data Australia be the sole counterparty.

91    The only pre-contractual reference on this issue dates from the period before the July 2019 fee proposal when Ms Passion, of what was then Covata, noted in an email to Lumina which was copied to Mr Telford that the “group” is likely to apply for R&D grants. The email is dated 17 July 2019. This email was a communication between the parties and forms part of the facts and circumstances relevant to the construction of the Aus Engagement Letter. The email dates from shortly before the 22 July 2019 proposal. The Aus Engagement Letter was a proposal to restructure the delivery of Lumina’s services from the overarching umbrella arrangement which was trialled from August 2019 to the arrangements embodied in the three engagement letters in August 2020. The email suggests that what was contemplated was that more than one company would be involved in future R&D grant applications. To some extent, it provides some context for the statement in cl (iii) of Appendix 1, but it is of limited weight.

92    On balance I accept that there is some ambiguity in the reference to the “Company” in cl (iii) of Appendix 1 but considered in the context of the surrounding circumstances known to both parties and the letter as a whole I do not regard it as a strong indicium that the objective intention was for there to be a single counterparty to the contract. The reference is of limited weight given the isolated use of it in a very specific context.

93    In the Aus Engagement Letter, it is the term “Cocoon Data Group” or “the Group” that is defined and used repeatedly in the equivalent way to the recurrent references to the definition “Company” in the UK Engagement Letter and the US Engagement Letter. That is illustrated by a side-by-side comparison of the Aus Engagement Letter and the UK Engagement Letter, the US Engagement Letter mirroring mutatis mutandis the UK Engagement Letter.

94    The Aus Engagement Letter is addressed: “Attention Trent Telford, Cocoon Data Australia Pty Limited” and begins with the salutation “Dear Trent”. As mentioned, Mr Telford held the position of CEO and was a director of each company presently relevant, including Cocoon Data Australia.

95    The respondents submit that the fact that the Aus Engagement Letter is addressed to Mr Telford at Cocoon Data Australia is an unambiguous indication that Lumina made an offer to Cocoon Data Australia and Cocoon Data Australia alone. I do not agree. The designation of Cocoon Data Australia in the addressee’s details indicates at a superficial level that the engagement is with Cocoon Data Australia but read in the context of the Aus Engagement Letter as a whole and having regard to the surrounding circumstances known to the parties, it does not lead to the conclusion that the parties objectively intended for Cocoon Data Australia to be the sole counterparty. I regard the fact that the letter is addressed to Cocoon Data Australia to be outweighed by the other evidence which supports the conclusion that the objective intention was for the engagement to be with each of the companies identified in the letter as belonging to the Cocoon Data Group.

96    The fact that the letter was addressed to Cocoon Data Australia is equally consistent with the letter being sent to the attention of Mr Telford at Cocoon Data Australia because it was the Cocoon Data Group’s treasury or expenses company. As I have said, I infer that Lumina was aware based on the work it had done for the Cocoon Data Group over the previous year that Cocoon Data Australia functioned as a treasury company within the Cocoon Data Group but was not itself income producing. Further, the express terms of the Aus Engagement Letter demonstrate that the services Lumina was offering to provide were to be provided to each of the companies in the Cocoon Data Group. I would not readily infer that in a commercial contract for the provision of services to four companies in a group of companies that an accountancy firm such as Lumina with its familiarity with the Cocoon Data Group would offer to perform services to the benefit of the income producing companies but only have recourse for payment of its fees to the treasury company which was not income producing. The structure of the Cocoon Data Group known to the parties and the commercial nature of the arrangements point to the conclusion that Lumina contracted with each of the companies in the Cocoon Data Group, and not just one of them. The features of the Aus Engagement Letter on which the respondents rely do not give rise to an implication that the parties’ objective intention was other than to produce a commercial result.

97    Turning to the Aus Engagement Letter itself, and taking into account the whole of the letter including the appendices, the overall tenor of the letter confirms that the parties’ mutual objective intention was for each of the companies in the Cocoon Data Group to be counterparties to the contract. While the letter contains some ambiguity and inconsistency, objectively the parties should be taken to have agreed upon each of the corporate respondents being counterparties to the contract. That is demonstrated by the following features of the letter.

98    The subject line of the Aus Engagement Letter reads (original emphasis):

Engagement letter

Outsourced Accountancy and Taxation services

Cocoon Data Group

99    The term “Cocoon Data Group” is defined in the opening paragraph of the Aus Engagement Letter as comprising: Cocoon Data Australia; Cocoon Data Holdings; Cocoon Data; and [Cocoon Data Technologies]. The purpose of the letter is identified as “to confirm our understanding of the terms of our engagement and the nature and limitations of the services we will provide to the Cocoon Data Group (the Group)” (original emphasis).

100    Pausing here, it is instructive to consider the equivalent portions of the UK Engagement Letter and the US Engagement Letter. A comparison of the three engagement letters which are in substantially similar form demonstrates that in the same place where the definition “the Company” is introduced in the UK Engagement Letter and the US Engagement Letter, the definition “the Group” is introduced in the Aus Engagement Letter. The first substantive sentence of each engagement letter is in substantially the same form.

101    The UK Engagement Letter provides (original emphasis):

This letter is to confirm our understanding of the terms of our engagement and the nature and limitations of the services we will provide to the Cocoon Data UK Ltd (the Company).

102    The US Engagement Letter provides (original emphasis):

This letter is to confirm our understanding of the terms of our engagement and the nature and limitations of the services we will provide to the Covata USA, Inc (the Company).

103    The Aus Engagement Letter provides (original emphasis):

This letter is to confirm our understanding of the terms of our engagement and the nature and limitations of the services we will provide to the Cocoon Data Group (the Group), comprising: …

104    There is a similar equivalence in the formal subject line of each of the engagement letters which serves as the first and most prominent identification of the purpose of each of the letters. The subject line in each engagement letter is comprised of three lines. The first two lines are identical in each of the three letters (original emphasis):

Engagement letter

Outsourced Accountancy and Taxation services

105    The third line of the subject line is customised in each engagement letter. The UK Engagement Letter identifies Cocoon Data UK Ltd. The US Engagement Letter identifies Covata USA, Inc. The Aus Engagement Letter identifies the Cocoon Data Group.

106    The respondents focus on the opening sentence of the first paragraph. The respondents submit it should be read disjunctively as being to “confirm [Lumina’s] understanding of the terms of [its] engagement and the nature and limitations of the services [it will] provide to the Cocoon Data Group”. The respondents submit that this is a statement of intention which contains two clauses: (1) the agreement provides the terms of engagement; and (2) sets out the services to be provided to the Cocoon Data Group. The respondents submit that the plain meaning of this sentence is to provide services to the members of the Cocoon Data Group and terms of engagement to Cocoon Data Australia. For this reason, the respondents contend that there is no textual basis in the first sentence to suggest that any entity other than Cocoon Data Australia is to be bound by the Aus Engagement Letter. I do not accept that parsing the first sentence in isolation in this way is conducive to ascertaining the objective mutual intention of the contracting parties as to the identity of the counterparties.

107    Reading the formal subject line and the first paragraph together, and having regard to the form used in each of the three engagement letters, suggests that the counterparties for the proposed engagement the subject of each letter is identified in the third line of the subject line. The prominence and structure of the subject lines emphasise at the outset: what each letter is (an engagement letter); what each engagement is for (Outsourced Accountancy and Taxation services); and who the engagement is with (Cocoon Data Group for the Aus Engagement Letter, Cocoon UK for the UK Engagement Letter and Cocoon US for the US Engagement Letter). In the Aus Engagement Letter, the Cocoon Data Group is immediately thereafter defined in the first substantive sentence to include each of the corporate respondents as well as Cocoon Data Australia. The letter is a proposal for the Cocoon Data Group to engage the services of Lumina. I reject the respondents’ submission that the textual analysis of this part of the letter demonstrates that the parties’ mutual objective intention was that the sole counterparty was Cocoon Data Australia and that the services provided to the Cocoon Data Group were premised on a contractual obligation owed only to Cocoon Data Australia. A close examination of the text of the Aus Engagement Letter demonstrates the parties’ mutual objective intention was that each of the companies in the Cocoon Data Group were counterparties to the contract.

108    The “Ongoing periodic services” described in Appendix 1 to the Aus Engagement Letter provided, among other things, for the provision of Group-focussed tasks, bookkeeping and accounting tasks. For example:

(1)    “attending to the payment of the Group’s creditors”;

(2)    “[p]reparation and distribution of Group’s current customer invoices”;

(3)    “[c]orrespondence with the parent entity, where applicable, regarding various bookkeeping issues, including inter-company and parent loan account reconciliations and monthly reconciliation of foreign exchange differences”;

(4)    “[a]cting as outsourced Chief Financial Officer: coordinating the information flow to prepare financial information required to meet the Group’s statutory obligations, parent entity (where applicable) and board reporting requirements”;

(5)    “[r]econciliation of inter-group balances including foreign exchange balances, when required”; and

(6)    “[e]nsuring all material matters, financial and non-financial, are reported in a timely manner to relevant personnel within Cocoon Data”.

109    Similarly, the nature of the specified “Ongoing annual services” in Appendix 2 to the Aus Engagement Letter included the preparation and lodgement of (among other things) the income tax return for each company in the Cocoon Data Group.

110    The express terms of the “Terms of Trade”, in Appendix 4 to the Aus Engagement Letter, contemplated that more than one company may be bound by the Aus Engagement Letter. The Terms of Trade are incorporated by the Aus Engagement Letter under the heading “Confirmation of Terms”. Clause 15 provides:

15. More than one client

Where there is more than one client, each of you is jointly and severally liable for our professional fees and expenses, whether or not you benefit equally from the Services. Where someone else is also liable for our professional fees and expenses, each of you is jointly and severally liable for our professional fees and expenses.

Where someone else has agreed with you to pay our professional fees and expenses, this will not change the fact that you will be liable to pay our professional fees and expenses in full.

111    Lumina submits that a plain reading of the Aus Engagement Letter supports the conclusion that each of the Cocoon Data Group entities were “clients” and that cl 15 operates to make each “client” jointly and severally liable for Lumina’s fees and expenses. Otherwise, cl 15 is left without any work to do. The respondents submit that Lumina’s submission in relation to cl 15 assumes its premise because cl 15 only applies where there is more than one client and that question is answered by ascertaining what the parties’ objective intention was in that regard. Clause 15 has no operation unless the contract is with more than one client. I accept the respondents’ submissions. Clause 15 is engaged where there is more than one client to the contract, but it does not of itself answer whether there was more than one client. Lumina’s submission that cl 15 would be left with no work to do does not advance the analysis. That is particularly so given that cl 15 forms part of Lumina’s standard terms of trade and so necessarily covers a range of circumstances in which Lumina may contract to provide its services to a variety of third parties.

112    Returning to the execution clause, the respondents rely on the fact that in order to complete the acknowledgement, it is necessary to apply the “Signature of client” – the word client is singular, it is not preceded by either a definite or indefinite article. The word client is not defined in the Aus Engagement Letter. The respondents contend that the use of client in singular form denotes that there is only one client who is counterparty to the contract. I do not accept that is so. Clause 15 of Appendix 4 is directed to where there is more than one client. The terms of the contract permit the possibility that there will be more than one client. The respondents place undue emphasis on the form of the execution clause in circumstances where it is plain that the parties were dealing with each other on the basis that Mr Telford was the CEO of all the companies identified in the Cocoon Data Group to which services would be provided. In this sense, Mr Telford was the client. The original trial arrangements in July 2019 were approved by Mr Telford confirming he was “happy to proceed on a trial basis”. The execution clause called for the application of a client signature and the name and date to be filled in. It did not call for the person signing to identify the capacity in which they signed the document or in the case of signing for a company, the description of the company for whom the person was signing. In these circumstances, I do not regard the form of the execution clause as attracting much weight in assessing the parties’ mutual objective intention as to the identity of the counterparties to the contract.

113    For reasons I have already given, I regard the electronic signature of Mr Telford being applied to the Aus Engagement Letter as conduct that post-dated entry into the contract. I have not attached any weight to it. If I am wrong and use may be made of the fact that Mr Telford signed the Aus Engagement Letter in August 2021, I regard the fact that Mr Telford signed the letter as being of neutral weight in terms of evincing an objective indication as to the identity of the counterparties. That is because the significance of Mr Telford signing for the (undefined) Company is offset by the fact that seen in context the reference to Company is more likely a reference to the Group (as defined) and at the time of signing Mr Telford was a director and the CEO of Cocoon Data Australia and each of the corporate respondents and he also identifies himself as CEO of the Cocoon Data Group.

114    I have already noted that the Aus Engagement Letter uses the second-person personal pronoun “you” which is capable of being both singular and plural. Lumina points to cl 13 to demonstrate that the objective intention of the parties was for each of the companies in the Cocoon Data Group to be counterparties and that references to “you” are properly construed as being plural. Clause 13 operates to limit Lumina’s liability in connection with the provision of services under the contract. Relevantly the limitation of liability includes a contractual limitation as well as the limitation available under the Professional Standards Act. Lumina submits, and I accept, that if it were the case that Lumina’s contract was only with one entity in the Cocoon Data Group but the work was for the benefit of and to be used by other companies in the Cocoon Data Group, then unless those other companies are also parties to the contract, the contractual limitation on liability would not be engaged. It would be to work a commercial inconvenience to conclude that the parties’ objective intention was that Lumina would not have the benefit of that limitation of liability against all the companies who used and took the benefit of Lumina’s services. There being no indication that the parties’ objective intention was other than to produce a commercial result, such a construction should be avoided. A commercial contract should be construed to avoid it making a commercial nonsense or working a commercial inconvenience.

115    Another illustration to like effect is cl 17 which is a non-solicitation clause which provides:

While this agreement is in force, and for 24 months after [it] expires or is terminated, you must not, directly or indirectly and whether on your own account or for the benefit of another person, induce or endeavour to induce any of our employees or contractors who provide the Services to terminate their employment with us or cease offering to provide services to us.

You acknowledge that the undertakings in this clause are reasonable and necessary for the protection of our business.

116    It would not be in keeping with the commercial nature of the agreement to conclude that the parties’ objective intention was that Lumina would only be protected from potential solicitation of its staff solely from Cocoon Data Australia and not from the other companies in Cocoon Data Group who used Lumina’s services.

117    Lumina also relies on the subsequent conduct of companies in the Cocoon Data Group including multiple attempts to raise capital through shareholder funding or the sale of assets to pay the outstanding debt to Lumina. Lumina submits that Cocoon Data Technologies was the entity with substantial paid-up capital and the relevant vehicle for the proposed capital raising and that Cocoon Data Technologies would not raise capital to pay a debt not due by it. I do not regard this evidence of conduct after entry into the contract to be of use in determining the issue in dispute. There may be a myriad of reasons why related companies may be motivated to act (or purport to act) to aid another company in the same corporate group, particularly in times of financial pressure. Even if this material was admissible on this issue, it would be no more than speculation to attribute Cocoon Data Technologies role in the capital raising as being reflective of it being bound under the contract (which was formed two years earlier).

118    The respondents submit that the contract included terms that Lumina would perform the services detailed in the contract on behalf of the Cocoon Data Group but that Cocoon Data Australia was solely responsible for making payment to Lumina for the services rendered. There is no express term to that effect included in the contract. The respondents point to the reference to “both parties” under the heading “Professional Fees” in the Aus Engagement Letter - “If agreed by both parties, we may enter into a fixed fee arrangement with you”. The respondents submit that this demonstrates that the Aus Engagement Letter contemplated two parties, being Lumina and Cocoon Data Australia and that if the agreement was a multi-partite agreement with the four members of the Cocoon Data Group, the letter would obviously have said “if agreed by all parties”. While that is arguable, I regard the reference to “both parties” to be equivocal when read in context. It is included in exactly the same language in the UK Engagement Letter and the US Engagement Letter. In the context of the Aus Engagement Letter, where Lumina was providing services to four companies, the language permits the possibility that one of the companies in the Cocoon Data Group could negotiate a fixed fee arrangement with Lumina in relation to the services provided to it. It does not demonstrate that there was only one counterparty to the contract. If such a fixed fee arrangement was agreed, then cl 15 would still apply to render each of the companies jointly and severally liable in respect of it even if it was only the particular company that had agreed the fixed fee agreement applicable to the services provided to it.

119    Mr Telford asserts that Cocoon Data Australia was solely liable for making payment for the services provided under the contract. Mr Telford’s opinion as to who was liable under the contract is in effect a submission. That may have been his subjective understanding but that is not of use in identifying the parties’ objective intention as to the counterparties to the contract.

120    As mentioned, the parties largely resolved their competing objection to evidence by agreeing that evidence in the nature of submission should be treated as such. Mr Telford’s evidence on affidavit included an overarching submission that Lumina had acknowledged that Cocoon Data Australia was the sole counterparty to the contract by doing three things.

121    First, by addressing the Aus Engagement Letter to Cocoon Data Australia. I have addressed the issue of the letter being addressed to Cocoon Data Australia above.

122    Secondly, by including in the Aus Engagement Letter a signing clause which referred to the “the Company” and not the Group as defined in the Aus Engagement Letter. I have addressed this issue above.

123    Thirdly, by Lumina issuing invoices to Cocoon Data Australia (and not to the corporate respondents). Lumina’s conduct in issuing invoices to Cocoon Data Australia is post-contractual conduct. There may be debate in the present context as to whether this evidence may be used for the purpose of identifying the parties to the contract entered into at an earlier point in time if this contract does not properly answer the description of being wholly in writing: see BH Australia at [91] where a contract accepted by conduct is described by Leeming JA as an obvious example of a contract that is not wholly in writing. It is not necessary for the resolution of this dispute to determine that issue because even if the post-contractual invoicing is taken into account that evidence is not consistent only with the respondents’ position. There are a number of reasons for why that is so.

124    First, if regard is had to the post-contractual invoicing being addressed to Cocoon Data Australia, this does not in my view advance the identification of the parties’ objective intention as to the counterparties to the contracts in circumstances where it was known to the parties that Cocoon Data Australia performed the role of a treasury company within the Cocoon Data Group: see by analogy the observations of Blue J in relation to the parent company in that case performing the treasury function and making payments of amounts due by its subsidiaries in Duncan as Liquidator of WDR Iron Ore Pty Ltd (in Liquidation) v SMA Industries Pty Ltd [2020] SASC 88 at [148]-[149].

125    Secondly, the respondent companies were party to the trial arrangement that followed Mr Telford’s confirmation that he was happy to proceed. Mr Williams uncontested evidence is that services were provided from August 2019 to the companies in the Cocoon Data Group and that Cocoon Data Australia was invoiced for the services that Lumina provided to the companies in the Cocoon Data Group. The fact that invoices were addressed to Cocoon Data Australia after the Aus Engagement Letter was accepted is consistent with a continuation of the invoicing practice that applied under the July 2019 proposal and reflects Cocoon Data Australia’s status as the treasury company within the Cocoon Data Group. Even if I regarded the post-contractual invoices as being available to use in ascertaining the objective intention of the parties as to the counterparties to the contract, I would not regard this evidence as weighing in favour of Cocoon Data Australia being the sole counterparty for the reasons I have given.

126    For these reasons, I find that the corporate respondents were each counterparties to the contract formed by acceptance of the terms in the Aus Engagement Letter. Each of Cocoon Data Technologies, Cocoon Data Holdings, and Cocoon Data are jointly and severally liable for Lumina’s professional fees by operation of cl 15.

CONCLUSION

127    Lumina is entitled to judgment against the corporate respondents. As the issue of costs was reserved in relation to Mr Telford, I will make provision for the parties to address on costs. In doing so, I note that as presently informed there would not appear to be any reason why Lumina should not have its costs against the corporate respondents.

Associate:

Dated:    18 February 2026

SCHEDULE OF PARTIES