Management Service Australia Pty Ltd v PM Works Pty Ltd

1. [1]

   HIS HONOUR: At some time between April 2013 and January 2014 [1] , the plaintiff (PPPM [2] ) and the first defendant (PM Works) agreed to join together to provide management training services to potential customers such as the Commonwealth Bank of Australia (CBA). The principals of the two companies, Mr Paul Finnerty (the sole director and shareholder of PPPM) and the second defendant Mr Banerji (the sole director and majority shareholder of PM Works), had known each other for a number of years. The decision to work together was prompted by CBA’s issue of two Requests For Proposals (RFPs), seeking proposals – effectively, expressions of interest – for the provision of management training services in the fields of Project Management (PM) and Business Analysis (BA).

2. [2]

   PPPM and PM Works worked together to put together a proposal to be submitted to CBA. The proposal was submitted in, April 2013 in the name of PM Works [3] , which had the business connection with CBA. In July 2013, CBA notified PM Works that the submission for PM training had been successful. However, it was not until June 2014 that CBA and PM Works entered into a formal contract for the provision of those services.

3. [3]

   PPPM and PM Works worked together to develop the PM training program that CBA had indicated it required. They agreed on the price that PPPM would charge CBA for the provision of the relevant training services (including the services of “facilitators”, which appears to be a fancy word for “trainers”).

4. [4]

   CBA required that the services should be provided by an appropriately accredited entity that could issue assessments and certificates of completion, recognising that those who completed the courses successfully had achieved a certain number of Professional Development Units (PDUs). PPPM could do this. It was registered with the Project Management Institute (PMI) of Philadelphia as a “Registered Education Provider” (REP), and thereby authorised to provide the requisite assessments and certification. PM Works was, not at the time, so registered. However, CBA required that the services be provided by the party with whom it contracted and not be subcontracted out. That is why, in substance although not in form, the offer to provide those services was made on behalf of both PM Works and PPPM.

5. [5]

   In those circumstances, PPPM says that there arose a joint venture agreement between it and PM Works, the essential terms of which included that PPPM would provide all PM training services required by CBA at the agreed prices [4] , for the duration of the contract between CBA and PM Works. PPPM says, further, that it was a term of the joint venture agreement that it should provide PM training services to anyone else with whom PM Works contracted for the provision of such services during the life of the joint venture agreement. Further, PPPM says, PM Works owed it fiduciary obligations under, or in respect of, the joint venture agreement.

6. [6]

   There were difficulties in the provision of PM training services to CBA. As a result, the joint venture agreement was purportedly varied in late August or early September 2014. Under the variation (if effective), PM Works would provide the PM training courses itself, and would pay PPPM a fee for the use of the course materials that PPPM had developed or provided. PPPM was still required to perform the process of assessment and certification, and the issue or recognition of PDUs. The agreement as varied (assuming, against PPPM’s case, that the variation has effect) meant that PPPM would receive substantially less revenue for each course provided.

7. [7]

   In late 2014, PM Works applied to PMI to become an REP, and in February 2015, it was so registered. Thereafter, PM Works was able to attend to all aspects of the training process, including assessment and certification.

8. [8]

   By February 2015, the relationship between PPPM and PM Works was in poor shape. It broke down irretrievably thereafter. The parties agree that at some time between April 2015 and January 2016, it came to an end. The parties do not agree on how or in what circumstances that happened, or which of them should bear the legal responsibility for it.

The real issues in dispute

1. [9]

   Against that background, the parties agreed that the real issues in dispute are as follows:

2. [10]

   I note that up until the time of service of PPM’s written outline of opening submissions [5] , PPPM asserted, as its primary case, that the agreement between it and PM Works constituted a partnership. It was not until the written submissions were served that the defendants (and the court) were notified that the partnership claim was not pressed.

3. [11]

   I note, further, that although the defendants’ “pleadings” [6] could be read as suggesting that there was no contract between PPPM and PM Works, that extreme position (if ever it had been advanced) was not pressed. The defendants accepted, sensibly, that some sort of contract must have subsisted between the two companies. As the statement of issues indicates, the real dispute is as to the terms of that contract, and whether it was attended by fiduciary obligations owed by PM Works to PPPM.

Evidentiary ruling: rejection of an affidavit

1. [12]

   Mr Finnerty swore some four affidavits. It is totally unclear why it was necessary for his evidence to be comprised in so many affidavits (which between them comprised 544 paragraphs spread over 151 pages, without annexures), although it may be accepted that it was appropriate for him to swear at least one affidavit in reply to the defendants’ evidence.

2. [13]

   The fourth of Mr Finnerty’s affidavits was sworn on 14 September 2017, less than three weeks before the commencement of the hearing on 3 October 2017 [7] . On any view, that affidavit comprised evidence in chief, not evidence in reply. Its evident purpose was to estimate costs incurred by PPPM in the preparation of the course materials that were developed for use in connection with the PM training services to be provided to CBA, and evidence of the profit margin that PPPM would recover on the amounts to be paid to it on the assumption that the variation was effective.

3. [14]

   There was no order permitting such late service of evidence in chief, although in fairness to PPPM, there was no order prohibiting such service. Ms Cairns of Counsel, who appeared with Ms Hulmes of Counsel for PM Works, objected to the affidavit, on the basis of late service and consequent prejudice. Mr Assaf of Counsel, who appeared with Mr Strickland of Counsel for PPPM, contended for its admission into evidence.

4. [15]

   I ruled that the affidavit should be excluded, and said that I would give reasons for that ruling in my reasons disposing of the issues. What follows are my reasons for rejecting the affidavit.

5. [16]

   PPPM had been directed to serve its evidence in chief (excluding expert evidence) by 17 June 2016, and its evidence in reply (again excluding expert evidence) by 5 September 2016 (subsequently extended to 13 September 2016). On 29 July 2016, when the court gave directions for amendments to the pleadings and the service of the parties’ lay evidence, the court noted “that the parties anticipate relying on expert evidence and foreshadow further lay affidavits only to the extent that they are required to establish factual assumptions in any expert report”. It is plain that the purpose of Mr Finnerty’s fourth affidavit was to “establish factual assumptions” made in expert reports prepared by Mr Brendan Copeland, an accountant.

6. [17]

   The other factual matter of some present relevance is that on 7 April 2017, the court ordered PPPM to provide particulars of its claims for loss and damage, and to do so by 13 April 2017. On 13 April 2017, PPPM’s lawyers sent a letter giving those particulars and adding that PPPM “adds nothing further to the particulars… at this stage but reserves its right to do so”. Then, five months later, on 20 September 2017 (after Mr Finnerty’s fourth affidavit had been served), PPPM’s lawyers sent a further letter stating that PPPM would claim “the loss of opportunity to pursue alternative business opportunities”, quantified at about $167,400.

7. [18]

   Mr Assaf submitted that for the most part, the costs of preparation of course material had been particularised by way of a spreadsheet that Mr Finnerty had given to Mr Banerji in the course of a “without prejudice” meeting between them in (if the date of the spreadsheet is any guide) April 2015. That submission is correct, as far as it goes, as (I am prepared to assume) is the further submission that it was the defendants who had required that spreadsheet to be placed into the court book. However, the submission really goes nowhere, because at no time were the defendants notified (either in April 2017, pursuant to the court’s directions, or in September 2017, after the fourth affidavit was served) that PPPM proposed to rely on that spreadsheet as proving elements of its claim for loss. There was thus no reason for the defendants to seek to investigate the amounts of expenditure particularised in that spreadsheet.

8. [19]

   Mr Assaf submitted, further, that it was open to the defendants, following service of the fourth affidavit, to consider the matters raised in it, to undertake such investigation as they required (including by way of notices to produce and subpoenas), and to cross-examine Mr Finnerty on the affidavit. I do not regard that submission as reflecting reality, bearing in mind that the affidavit was served less than three weeks before the commencement of the hearing.

9. [20]

   There are really two problems with the affidavit. One, to which I have referred, is the time at which it was served, coupled with the absence of any prior notification of intention to rely upon the spreadsheet which, in part, the affidavit replicated. The other problem is that the affidavit is conclusory in nature, consisting of mere assertions in tabular form as to items of expense allocated to (or claimed in respect of) various tasks apparently involved in the preparation of the course materials. There is no reference to whatever underlying documents (including as to hours worked) may have existed, from which or by reference to which Mr Finnerty might have prepared the affidavit.

10. [21]

    No doubt, if the affidavit had been served at a reasonable time, the defendants could have investigated it. They could have required the production of underlying source materials and primary accounting and other records. Quite why they should be required to do so, given what I regard as being the defective form of the affidavit, is another matter. The primary point is that the affidavit was in such a form and served at such a time as to make it, in a practical sense, extremely difficult for the defendants to undertake any reasoned assessment of it.

11. [22]

    In those circumstances, it seemed to me to be unfair to put the defendants to the task of cross-examining Mr Finnerty on the affidavit (as Mr Assaf submitted they could do). Had they done so, they would have run the risk that, through the cross-examination, the otherwise bald and conclusory nature of the assertions made in the affidavit might have been fleshed out. And had they not done so, they would have run the risk (be it large or small) that I might have regarded the affidavit as having some probative force.

12. [23]

    In my view, each of the problems to which I have referred – the late service of the affidavit, and the unhelpfully bald and conclusory nature of the assertions made in it (unsupported by any relevant primary documentary evidence) – was of itself a sufficient basis for rejecting the affidavit, on the basis that to permit it to be read would be unfairly prejudicial to the defendants, for the purpose of s 135 of the Evidence Act 1995 (NSW). The combination of those sources of prejudice not merely doubled, but multiplied several times, the extent and force of that prejudice.

13. [24]

    I add, although it is not of dispositive significance, that there was no evidence explaining why the affidavit had been served so late. Mr Assaf proffered an explanation from the bar table: namely, that PPPM had decided not to incur the expense of preparing the affidavit until a mediation (ordered by the court) took place in August 2017. I accept that those are Mr Assaf’s instructions, and I am prepared to accept that they represent the truth. I do not accept that they provide any justification for the late service of the affidavit. It should have been served well before August 2017.

An application for leave to amend

1. [25]

   At the conclusion of the hearing, Mr Assaf sought leave further to amend the list statement (more accurately, the second further amended commercial list statement – 2FACLS – as it then stood). The relevant amendment was not extensive, but was nonetheless opposed. Paragraph 18 of 2FACLS alleged that on or about 5 April 2013, PPPM and PM Works made the joint venture agreement on which PPPM sued. It alleged, further, that there were terms of the joint venture agreement that the parties would provide training services to CBA, on the basis (in respect of PM Training) that the training and related services would be provided by PPPM, which would bear the costs of doing so and would receive the fee for doing so less “a mark-up applied by [PM Works] in the amount of $150 per person, per course day”. The evidence disclosed that there was a markup applied, but that the amount varied.

2. [26]

   Ms Cairns submitted that she had prepared the defendants’ case on the basis that the contract on which PPPM sued was precisely that pleaded in para 18 of 2FACLS. She submitted that it was unfair and prejudicial to permit PPPM to seek to amend its pleading by withdrawing the pleaded allegation that the mark-up would be “in the amount of $150 per person, per course day”. She submitted that had she known PPPM proposed to run a case based on varying mark-ups (as the evidence on which it relied clearly showed), she would have prepared differently, and conducted her cross-examination of Mr Finnerty differently.

3. [27]

   Although the point was a trivial one, and the effect of the amendment (whether granted or not) is not dispositive, there was nonetheless a pleaded issue as to the precise terms of the contract that was made. I think that Ms Cairns was correct to say that the defendants were entitled to prepare and conduct their case on the basis of the contract as pleaded. In the result, whilst I recognise that it may be appropriate to permit pleadings or particulars to be amended at the conclusion of the evidence, so that the pleaded case more accurately reflects the evidence actually given, I was not satisfied that to allow that in this case would not occasion prejudice to the defendants.

4. [28]

   There was a most learned and arcane debate as to the extent and import of PM Works’ response to the relevant allegations in para 18 of 2FACLS. It is not necessary to go into the detail of that debate.

5. [29]

   For those reasons, I rejected the application for leave to amend. As I have indicated, I was fortified in my decision to do so by the undoubted truth of the proposition that PPPM’s case would not stand or fall on the precise form of the allegation in question.

The witnesses

1. [30]

   The only witness of fact for PPPM was Mr Finnerty. As I have noted, he swore four affidavits, comprising (without annexures) many pages and many hundreds of paragraphs.

2. [31]

   Mr Finnerty’s first affidavit set out his version of relevant events, starting (at least, in relation to contentious matters) in October 2012. He gave detailed, lengthy and purportedly verbatim accounts of conversations with Mr Banerji and others from PM Works (including, in particular, Mr Gareth Shaw and Dr Richard Stejer).

3. [32]

   Mr Finnerty had a practice of recording what he regarded as important conversations in contemporaneous file notes, and, quite often, of confirming the substance of those conversations in emails. So far as I can tell, the emails were never controverted. There was no suggestion put to Mr Finnerty that his file notes were inaccurate (let alone knowingly so), or that his emails misstated (whether knowingly or not) the substance of what had been discussed. It follows that to the extent that Mr Finnerty’s accounts of conversations are supported by his contemporaneous file notes or emails, I accept them as substantially accurate.

4. [33]

   Mr Finnerty has a clear and substantial stake in the outcome of the litigation. As I have said, he is the sole director and shareholder of PPPM. He accepted that the outcome of the litigation was vital to PPPM’s and his financial futures.

5. [34]

   It became clear over the course of Mr Finnerty’s lengthy and searching cross-examination that he feels a very real sense of grievance. He has come to believe that he has been very poorly treated indeed by PM Works and Mr Banerji. This sense of grievance permeated his oral evidence.

6. [35]

   In my view, the combined influence of financial interest and sense of grievance has caused Mr Finnerty to reconstruct his account of events in a way that is most favourable to PPPM’s case. I do not say that this was done dishonestly. It was no doubt an unconscious process. As McLelland CJ in Eq observed in Watson v Foxman [8] :

7. [36]

   It is, furthermore, remarkable that even when Mr Finnerty had no contemporaneous record to jog his memory, he was, nonetheless, purportedly able to produce detailed lengthy and verbatim accounts of conversations. The process of reconstruction that is necessarily involved in piecing together, from such fragments of recollection as may subsist, an account of what must have happened is clearly susceptible to the sorts of influences to which McLelland CJ in Eq referred.

8. [37]

   It is also somewhat remarkable that Mr Finnerty’s purported power of recollection of conversations, even in the absence of contemporaneous notes, was not matched by his ability to recollect more recent, and one might have thought significant, aspects of his company’s business. PPPM was given notice to produce financial records, including its Business Activity Statements (BASs). After much, unwarranted and unexplained, delay, it did so: in the course of the hearing. Mr Finnerty was cross-examined about the BASs. Those of which production was required covered the period up until the quarter ending 30 June 2017.

9. [38]

   Before the documents were produced, Mr Finnerty was unable to account for the failure to produce them, except by saying that PPPM had switched from filing quarterly BASs to annual BASs. When the BASs were finally produced, they were quarterly, not annual. They were all signed by Mr Finnerty. Mr Finnerty sought to explain the delay as an “administrative mix up” [10] . That explanation is scarcely credible. It was not put to Mr Finnerty that his explanation, and his evidence as to annual BASs, was false, and accordingly I do not so find. Nonetheless, treating it neutrally, it reveals a deficit of memory startlingly at odds with his purported ability to recall, in detail and at length, conversations that had occurred in the more distant past.

10. [39]

    I record also that Mr Finnerty appeared to think that the process of cross-examination was intended to give him an ongoing opportunity to explain and justify PPPM’s case, even when an answer through which he sought to do so could not be regarded as responsive to the particular question. That tendency confirms both my view as to Mr Finnerty’s sense of grievance and my view that to a substantial extent, his evidence has been reconstructed in a way that is informed both by that sense of grievance and by his own interest in the outcome.

11. [40]

    Finally, I note that on one occasion Mr Finnerty, when asked a question to which a simple “yes or no” answer should have been given, hesitated, saying:

12. [41]

    That answer could be read as indicating that Mr Finnerty was inclined to tailor his answers to meet what he thought might be problems down the track. However, he was not picked up on or questioned further about that particular answer. Accordingly, I rely on it only to the extent that it supports the view set out at [34], [35] above.

13. [42]

    Taking all those matters into account, I conclude that:

    1. (1)

       I should, and do, accept Mr Finnerty’s evidence where it is corroborated by and consistent with his contemporaneous file notes or emails; but

    2. (2)

       where Mr Finnerty’s evidence is not so corroborated, and where it is contentious, I should not accept it unless it is consistent with other, acceptable evidence, or with the probabilities, regarded objectively.

14. [43]

    The witnesses of fact for PM Works were Mr Banerji and Dr Stejer. Mr Shaw had sworn two affidavits, but they were not read and he was not called. As might be expected, this led to the usual debate over Jones v Dunkel [12] and the inferences that might be available. It is sufficient to say that to the extent that Mr Shaw could have given evidence on contentious matters, I do draw the inference that his evidence was unlikely to have assisted PM Works. It would follow that where the evidence overall supports the drawing of an inference of fact favourable to PPPM’s case, I would be more comfortable in drawing that inference by reason of the failure to call evidence from Mr Shaw (repeating, I hope unnecessarily, in circumstances where he could have given evidence on the particular factual dispute).

15. [44]

    There was no assault on Dr Stejer’s credibility. On the contrary, Mr Assaf’s submissions from time to time called in aid, in support of PPPM’s case, particular aspects of the evidence that Dr Stejer had given. It is enough to say that I formed the view that Dr Stejer was an honest and reliable witness, whose evidence ought be accepted.

16. [45]

    Mr Banerji too has a financial interest in the outcome of the case. He is, as I have said, the sole director and majority shareholder of PM Works. However, the significance of that financial interest is not as great as it is in the case of Mr Finnerty and PPPM, because the overall business activities of PM Works are far more substantial, both in range and in scale, than the business activities of PPPM. PM training, which is the essence of the activities with which this litigation is concerned, is a far smaller part of PM Work’s business than it is of PPPM’s business.

17. [46]

    Mr Banerji’s principal affidavit controverted many of the matters in Mr Finnerty’s first affidavit. However, Mr Banerji did not profess to have Mr Finnerty’s extraordinary powers of detailed recollection. That may reflect the fact that Mr Banerji was more remote from the detail of PM training than was Mr Finnerty, and more concerned with directing the whole of PM Works’ business activities. More importantly, it reflects my view that Mr Banerji made concessions where appropriate, and did not tend to over-reach in recollection.

18. [47]

    I formed the view that, so far as Mr Banerji’s evidence goes, it should be accepted. I add that for the key dispute in which, as the litigation has worked out, Mr Banerji’s evidence is in direct conflict with Mr Finnerty’s [13] , Mr Banerji has a contemporaneous file note supporting his account of what was said. Mr Finnerty’s account is not supported by any contemporaneous record: sharply at odds with his practice referred to at [32] above.

Issues 1 and 2: the contract and its terms

1. [48]

   PPPM’s case is that by 5 April 2013, it and PM Works had concluded a contract under which they agreed to work together to provide PM training services to existing or potential customers, including particularly (but not exclusively) CBA. PPPM’s case is that the existence and principal terms of that contract can be inferred from the dealings between it and PM Works between October 2012 and 5 April 2013.

2. [49]

   PM Works accepts that there was a contract between it and PPPM in relation to the provision of PM Training Services. It does not accept that the contract was made on (or by) 5 April 2013. Nor does it accept that the contract should be characterised as one of joint venture, or that it contained the terms upon which PPPM relies.

3. [50]

   There is no written contract, nor any chain of documents that between them spell out the terms of a contract. Nor is there any express identification of offer and acceptance. PPPM’s case is that the objective but reasonable bystander, looking at what passed between it and PM Works from October 12 until 5 April 2013 and considering those events in the light of, among other things, the commercial reality of the parties’ relationship [14] , would conclude, on the balance of probabilities, that the parties had reached a position of mutual assent demonstrating an intention to be legally bound to the essentials of their agreement [15] .

4. [51]

   There is no doubt that, even in the absence of writing and of express identification of the mechanics of offer and acceptance, a contract may be inferred upon a consideration of all the dealings between the parties. It is not necessary to refer to the numerous authorities on this point, beyond the limited extent to which I have done so already.

5. [52]

   Mr Finnerty gave evidence of numerous conversations between him and Mr Banerji, or between him and Mr Shaw, and on one occasion between him and Ms Cathy Campbell of PM Works. For the most part, that evidence was corroborated by Mr Finnerty’s file notes and contemporaneous emails. Further, to the extent that the evidence concerned conversations with Mr Shaw or Ms Campbell I am disposed to accept Mr Finnerty’s account even in the absence of corroboration, because the witnesses who could have controverted what he said were not called, nor was any explanation given for their absence from the witness box. The evidence was extensive, and so were the parties’ submissions. It is not necessary either to recount the bulk of the evidence nor to recount in detail those submissions.

6. [53]

   As I have said, both PPPM and PM Works provided, among other things, management training services. PPPM had the advantage of PMI registration, which enabled it to present itself as an REP and to deliver assessments and PDUs. However, its business operations were on a smaller scale than those of PM Works. PM Works could not (until early 2015) provide training services to corporations who required assessments and the issue of PDUs. It was therefore advantageous for the two of them to consider combining their business activities. That is precisely what Mr Finnerty discussed with Mr Banerji in and from October 2012. I should make it clear that by then, they had known each other for some time, so it is not entirely surprising that Mr Banerji initiated contact in around October 2012.

7. [54]

   In essence, they discussed joining forces to provide a combined service to businesses, offering both PM and BA training, coupled with assessments and (where appropriate) the issue of PDUs. They agreed (in a non-formal sense) that PM training would be the primary responsibility of PPPM, and that BA training would be the primary responsibility of PM Works. They agreed (again in an informal sense) that it would be advantageous for each of them to offer themselves in effect as a package to prospective customers.

8. [55]

   Mr Finnerty said, and I accept, that both he and Mr Banerji talked in terms of “partnership” and “partnering”. As I have noted, PPPM does not now allege that there was a formal agreement of partnership. However, Mr Assaf submitted, the use of the language of partnership suggests very strongly that they intended to work together, with a degree of mutual trust and confidence. That submission should be accepted.

9. [56]

   The first business opportunity to present itself was one to provide training services to Cochlear Limited. Mr Finnerty discussed it with Ms Campbell. Ultimately, the opportunity went nowhere. Nonetheless, it is of some significance that they did discuss it, because it shows that the parties did not intend to limit their activities to the provision of training services to CBA.

10. [57]

    On 22 February 2013, Mr Finnerty sent an email to Mr Banerji in which he said, among other things:

11. [58]

    The date of that email is significant. A few days earlier, Mr Shaw had learnt from his contact at CBA that the Bank was looking for someone to provide PM and BA training services. On 25 March 2013, CBA sent Mr Shaw two RFPs for the provision of services (one for PM training and one for BA training). Mr Shaw forwarded those RFPs to Mr Finnerty a few days later.

12. [59]

    In early April 2013, Mr Finnerty met Mr Shaw, Dr Stejer and Ms Campbell on several occasions at PM Works’ office. They discussed the form of the response to CBA’s RFP’s. Mr Finnerty undertook the drafting of the response. Although PM Works says that he was not asked, but instead volunteered, to do so, this does not seem to be material. There is no doubt that, if it were an unsolicited offer to draft the responses, PM Works accepted the offer.

13. [60]

    Mr Finnerty provided draft responses on 4 April 2013. Thereafter, they were refined, including by Dr Stejer and Ms Campbell. The finalised responses were submitted to CBA on 12 April 2013.

14. [61]

    In May 2013, PM Works was seeking to obtain business from Vodafone. On 10 May 2013, Mr Finnerty, Mr Shaw and Ms Laura Mazza (at the time, another employee of PM Works; she did not give evidence) met representatives of Vodafone to discuss the provision of training services. Those discussions continued over some months, and in October 2013, PM Works submitted a proposal to Vodafone.

15. [62]

    Vodafone did not give a contract to PM Works. Again, however, the discussions with Vodafone are of some importance, because they are consistent with the proposition that PPPM and PM Works intended to market themselves to prospective customers other than CBA.

16. [63]

    At the same time as the negotiations with Vodafone were proceeding, negotiations continued with CBA. There was a presentation on 16 May 2013, by Mr Finnerty, Dr Stejer and Mr Shaw. The defendants’ evidence, which on this point I accept, is that the presentation ran over time, principally because Mr Finnerty spoke for much longer than his allotted 15 minutes (I should add that the implicit suggestion that Mr Finnerty is somewhat verbose was corroborated by my observations of his answers in cross-examination), and that this caused CBA to view the proposal with some disfavour.

17. [64]

    It will be necessary to return to some of the detail of CBA’s RFPs, of the response and of the contract that, ultimately, was signed on 26 June 2014. It is sufficient for present purposes to note that it was clear from the outset that CBA required the entity with whom it contracted to deliver all the services, and would not permit subcontracting; and that the pricing model submitted to CBA, of a fee per attendee per course (with the fee varying depending on the number of people who attended any given course) was developed, so far as PM training is concerned, by PPPM in conjunction with PM Works.

18. [65]

    It should be noted, also, that although CBA wanted to deal with a “full service” provider, it was aware, and apparently accepted, that PM Works’ proposal was submitted in effect on behalf of both it and PPPM, and that both companies would be involved in the provision of services if PM Works won the tender and was awarded a contract.

19. [66]

    Dr Stejer and others met representatives of CBA on 3 July 2013. They were informed that PM Works had won the tender. Dr Stejer confirmed this to Mr Finnerty in an email of 4 July 2013. That email said, among other things:

20. [67]

    As I understand it, the process of “mapping” meant that the courses to be offered by PPPM and PM Works had to be aligned to the Bank’s requirements, and perhaps to the detail of the courses that the Bank wanted to be given to its employees.

21. [68]

    In December 2013, CBA asked Mr Shaw for a pricing structure based on a flat fee, assuming that each course was attended by 12 people. Mr Finnerty, Dr Stejer and Mr Shaw discussed that. About a month later, on 8 January 2014, Mr Shaw sent an email to Mr Finnerty setting out the flat fee structure that PM Works proposed to offer to CBA. Mr Finnerty replied the next day, submitting a different pricing structure. That pricing structure specified, for each course, “PM Works’ Investment”: that is, the price that PPPM required for the delivery of its PM training courses (including the provision of appropriate course materials). Mr Shaw replied a few days later, stating “that’s fine”: evidently, signifying PM Works’ agreement to the prices proposed by Mr Finnerty.

22. [69]

    The flat fee pricing model that PM Works thereafter submitted to CBA set out a higher charge, because PM Works proposed to charge a margin on PPPM’s prices. The margin was not disclosed to CBA, nor was it informed of the way in which PM Works’ prices had been determined (I am not suggesting that there is anything underhand involved in this.) What is clear is that the margin was not a flat fee of $150 per course.

23. [70]

    On 16 July 2014, about 3 weeks after the contract between CBA and PM Works was signed, Mr Finnerty presented the first “pilot” PM training course. PPPM charged PM Works the agreed fee plus GST for provision of that course, and PM Works paid that charge.

24. [71]

    What, then, can be inferred from that course of dealings (including the conversations and other matters), and the work undertaken by each party to progress the CBA tender and, ultimately, to provide services in respect of it?

25. [72]

    By 5 April 2013, PPPM and PM Works had agreed (whether or not in a way that had legal consequences, I put to one side for the moment) that they would cooperate to pursue together opportunities to provide PM and BA training services, including specifically the opportunity to provide those services to CBA. By reference to the respective capacities of the two companies, it could be inferred that they had agreed that PPPM would provide the PM training (because it could do so, and could if necessary provide the appropriate assessments and issue of PDUs) and that PM Works would provide BA training (if only because it had the capacity to do so, and PPPM did not). It could be inferred that, to the extent any contracts for the provision of those services were one, each company would be paid whatever might be agreed between them for the services that it provided.

26. [73]

    Ms Cairns contended that the agreement that was reached was in the nature of a subcontract. She submitted that PM Works would be the contracting party (with CBA, or whoever else desired training services) and that, to the extent that PPPM provided services, it would do so as a subcontractor. The facts relating to CBA tell strongly against that interpretation of the events (more accurately, against inferring from what happened, regarded in the light of commercial reality, a contract of that kind).

27. [74]

    First of all, CBA’s RFP made it clear that if a contract were to be awarded, the successful proponent would need to have the ability to deliver the training itself, without “outsourcing”. Paragraph 1.3, so far as it is relevant, stated:

28. [75]

    It is clear that the parties understood this. When Mr Finnerty submitted the draft response to the RFPs, he did so under cover of an email that said, among other things:

29. [76]

    The draft response commenced by describing its proponents as follows:

30. [77]

    The final version of the response (that is, as submitted to CBA) was not dissimilar. It stated:

31. [78]

    The response then continued, describing “who we are” in terms appropriately laudatory of both PM Works and PPM. Whatever CBA may have meant by the excerpt from its RFP that I have set out earlier, it must have understood from the proposal actually submitted that if a contract were awarded to PM Works, any services that in fact were required might be provided by PPPM or might be provided by PM Works.

32. [79]

    The services agreement made on 26 June 2014 between CBA and PM Works contained an express prohibition of assignment or subcontracting (cl 22(b)). It is not necessary to set out that provision. There is nothing in the evidence to suggest that between submission of the RFP in April 2013 and execution of the services agreement in June 2014, CBA’s understanding or intentions, as to who the service providers might be, had changed.

33. [80]

    Those matters relating to the provision of services to CBA are inconsistent with the objective intention of PPPM and PM Works then being that PPPM’s role would be only that of a subcontractor. It ought not be inferred that PM Works chose deliberately and flagrantly to act in breach of its contract with CBA. On the contrary, either the description that Mr Finnerty attributed to the relationship (“a small highly focussed consortium”) or that chosen by whoever it was in PM Works that was responsible for the final wording of the proposal (“a strategic alliance”) was intended to describe the nature of the relationship. It does not seem to me that there is any distinction of significance between parties bidding for a contract as a “consortium” and doing so as a “strategic alliance”. Neither is consistent with the relationship between PM Works and PPPM being one of head contractor and subcontractor. The obvious inference from either description is that they were acting in concert, or jointly, to pursue the opportunity; and that if the opportunity matured into a contract, they would act in concert, or jointly, to provide any services that might be required.

34. [81]

    In short, I think that the arrangement between PM Works and PPPM, and any contract that might be inferred from that arrangement, could be described as one of joint venture. That having been said, the expression “joint venture” is not one that of itself has legal significance (as denoting a contractual relationship to which particular incidents are attached by operation of law), nor does the description of the parties’ contract in those terms carry with it, or ascribe to the parties’ relationship, some technical or settled meaning [16] .

35. [82]

    There is much to support the proposition that, if not by 5 April 2013 then within a few weeks later, PPPM and PM Works intended their arrangement to have legal consequences; to have contractual effect. There was a discussion on 2 April 2013 between Mr Finnerty, Dr Stejer and Mr Shaw. According to Mr Finnerty, Mr Shaw said that the CBA RFPs represented “a terrific opportunity for both PM Works and our partner [PPPM]… to partner together to win this”. Mr Shaw was not called. Dr Stejer accepted that Mr Shaw had said words to the effect of those attributed to him: specifically, “if we win, you win”.

36. [83]

    Mr Finnerty said that in the same meeting he volunteered to prepare a first draft of the response. Again, I accept that evidence. It is consistent with the probabilities, because Mr Finnerty did indeed proceed to prepare the draft response. It is difficult to imagine that Mr Finnerty would have gone to the time and trouble of preparing a draft response if he did not think that there was some agreement, whether at that stage legally binding or not, for PPPM and PM Works to act in concert, or jointly, to pursue the CBA opportunity. That inference is corroborated by Mr Finnerty’s email of 4 April 2013, to which I have referred earlier.

37. [84]

    On 5 April 2013, Mr Finnerty met Dr Stejer, Mr Shaw and Ms Campbell. According to Mr Finnerty, he referred in the course of that meeting to the prohibition on subcontracting, and therefore to the “need to strongly emphasise and articulate our partnership arrangement”. That evidence was not challenged. Mr Shaw and Ms Campbell did not give evidence. Dr Stejer did not deny this part of Mr Finnerty’s evidence.

38. [85]

    Later on the same day, Mr Finnerty said that he had a similar telephone conversation with Mr Banerji, in the course of which Mr Banerji raised, as a topic, “how we described the partnership between PM Works and [PPPM]”. Mr Banerji denied using some particular words attributed to him (“I don’t screw people around”), but not what might be regarded as the substance of the alleged conversation. Mr Finnerty was challenged in cross-examination, but the challenge descended to what may be called, I hope not unkindly, a semantic point as to the modal verb form used (“will” or “would”). I do not regard that challenge as impugning, in any significant way, Mr Finnerty’s evidence of the substance of the conversation, and I accept it.

39. [86]

    There were further conversations, the detail of which need not be set out. Mr Banerji accepted in cross-examination that by April 2013, the parties had agreed – had a “deal” – that PPPM would do what it could to help PM Works win the CBA contract, and would benefit from any PM training opportunities that arose from the contract. I set out the relevant passage [17] :

40. [87]

    At about the same time, there were extensive discussions between the parties on the pricing proposal to be put to CBA. Clearly, so far as PM training was concerned, that pricing would need to take account of PPPM’s requirements, because only it could provide whatever assessment and certification CBA might require. On 9 April 2013, Mr Finnerty gave Mr Banerji a price list specifying what PPPM would charge for delivering a one day course for 15 people; he proposed that PPPM would invoice PM Works for whatever price might be agreed and that PM Works would invoice CBA; and they agreed that PM Works would add its own mark-up to PPPM’s charge before invoicing CBA. Two days later, Mr Finnerty emailed a slightly different proposal to Mr Shaw, with the price depending on the number of attendees.

41. [88]

    Discussions as to pricing continued (on and off) for some time thereafter, culminating in the agreement as to prices reached in the exchange of emails in January 2014. The evidence as to pricing is far more voluminous than this, and I do not propose to set it all out. The obvious inference from the evidence is that if CBA offered a contract to PM Works and from time to time required the provision of a PM training course; PPPM would then provide those courses and would invoice PM Works for the agreed price and PM Works would then invoice CBA for that price together with its own markup. The price that was ultimately agreed varied depending on whether there was to be a follow-up seminar (or webinar), but nothing turns on this.

42. [89]

    The matters to which I have referred are consistent with the existence of an agreement or consensus to work in concert, or jointly, to pitch for the CBA business and to provide services if the pitch were successful. They are also consistent with that consensus rising as high as an intention to be legally bound to the matters on which consensus had been achieved. However, there are other features of the parties’ relationship in 2013 that, to my mind, make it more likely than not that the parties intended to be bound legally to what they had agreed. In the language that I have used earlier, they are circumstances from which the reasonable objective bystander would infer that the parties had not only reached a consensus, but intended to be legally bound by it; to be held to it.

43. [90]

    First of all, CBA’s RFP required the successful tenderer to be able to deliver a curriculum aligned to industry best practice. In the passage that I have set out earlier, it made specific reference to “PMBok”: an initialism, or depending on how one says it an acronym, for “Project Management Body of Knowledge”. PPPM was, and PM Works was not, a PMI REP which could use and copy material from PMBok. The RFP further required that the successful provider should be able to “contribute to industry certification”, for example, by delivering PDUs. Again, PPPM could, and PM Works could not, do that. Mr Banerji conceded, more than once, that PM Works could not satisfy those requirements unless it had the cooperation of PPPM. As Mr Assaf submitted, it would have been commercially irrational for PM Works to tender to provide services to CBA, and later to contract to provide services upon request, unless it were reasonably satisfied that it could deliver them. As at 26 June 2014, and indeed up until PM Works itself became registered as an REP in early 2015, PM Works needed PPPM if it were to meet those requirements.

44. [91]

    By submitting the responses to the RFPs in the form that it did, PM Works must be taken to have represented to CBA that it could provide the requisite services, including alignment with PMBok and the provision of PDUs. Again, as a matter of commercial reality, PM Works could not have made that representation unless it had the ability to fulfil those representations; and again, the only source of that ability was PPPM.

45. [92]

    There are further circumstances relevant to PPPM’s role in the relevant events. First, as I have noted, Mr Finnerty invested considerable time and work – he estimated at least 56 hours on the first drafts – on the responses to the RFPs. He invested considerable time and effort thereafter in the revision of those drafts and their finalisation. PPPM was not to be remunerated for those services. Its reward would come, if at all, from the award of a contract by CBA and its role in that contract – “if we win, you win”, as Mr Shaw put it [18] .

46. [93]

    As part of PPPM’s contribution to winning CBA’s business, Mr Finnerty assisted in the preparation of slides for a meeting with CBA, and gave CBA employees access to its online assessment material. Indeed, it went to the extent of providing some of them with their own assessments. There was again no remuneration for this; the reward was to come from sharing in the provision of training services if a contract were awarded.

47. [94]

    Finally, PPPM made available to PM Works the course materials that PPPM had developed over a period of time, for the purpose of providing PM training. There can be no doubt that these materials represented the intellectual property, or capital, of PPPM. PM Works was a competitor of PPPM in the provision of training services. It would have been commercially irrational for PPPM to give PM Works access to those materials unless there were in force between them some legally binding agreement in relation to their use.

48. [95]

    By July 2014, PPPM had given copies of all its course materials to PM Works. PPPM and PM Works then developed cobranded versions of that material, in which among other things each claimed copyright. That is consistent with the existence of some form of joint venture, and inconsistent with the existence merely of a subcontract arrangement.

49. [96]

    In summary, surveying all the circumstances (and I have not attempted to refer to all of it in what has preceded this paragraph), the proper inferences to be drawn, on the balance of probabilities and taking into account the commercial realities of each party’s position, are that:

    1. (1)

       PM Works would not have acted as it did in making the representations to CBA that can be inferred from its provision of the final version of the proposals, and entering into the contract that it did on 26 June 2014, unless it were assured that it had available to it the assistance of PPPM for the fulfilment of those representations and the performance of that contract; and

    2. (2)

       PPPM would not have acted as it did, in making its intellectual property available to its competitor PM Works and in agreeing that it be cobranded (with each claiming copyright) unless assured that it would share in the benefits to follow from the award of a contract and the requirement to provide training services pursuant to it.

50. [97]

    Those circumstances are further consistent with the parties’ having reached a legally binding agreement, if not by 5 April 2013 then by shortly thereafter, to participate in the submission of the proposal to CBA and to participate in (and be rewarded for) the provision of services if a contract were awarded. They are consistent, also, with the contract being one of joint venture and not merely a subcontract.

51. [98]

    Those circumstances are further consistent with the parties’ having agreed, in a way that they intended to have legal effect, that if a contract were awarded to PM Works and if CBA required the provision of services under that contract:

    1. (1)

       PPPM would supply PM training services (and follow-up, including assessment and certification) and would be paid the agreed price for provision of those services; and

    2. (2)

       PM Works would supply BA training services, and would be entitled to whatever price it had agreed with CBA for the provision of those services.

52. [99]

    There are a few relatively minor matters to deal with. The first is that it must have been clear, both before and after 3 or 4 July 2013 (when CBA notified PM Works, and PM Works notified PPPM, that PM Works’ tender had won) that there was no guarantee of the nature or extent of services that CBA might require. Even after the contract was signed on 26 June 2014, there was no such guarantee. Neither the RFPs nor the contract required the provision of any specified quantity of courses. The contract, rather, required PM Works to supply courses of the appropriate kind (and ancillary services such as assessment and the issue of PDUs) as and when CBA might require. I have no doubt that both PPPM through Mr Finnerty and PM Works through Mr Shaw (and perhaps Mr Banerji) understood this.

53. [100]

    The other point is that, accepting that the parties’ agreement contemplated that PPPM would provide PM training services to the extent that they were required, that right could not have been absolute. As Ms Cairns submitted, it must be implied that that right was subject to the wishes of CBA. As events showed, CBA was not satisfied with the services provided by PPPM, and required PM Works itself to provide the services. It could not have been a breach of the contract between PPPM and PM Works for PM Works to supplant PPPM in the provision of those services if that were what CBA required. To do otherwise would risk losing the entire CBA contract, or its benefit. The implication of such a term is justified because “it is so obvious that it goes without saying” and because it is necessary to give business efficacy to the contract between PPPM and PM Works.

Issue 3: implied terms

1. [101]

   I have just dealt with one implied term. The implied terms for which PPPM contended are set out in paras 19 and 19A (read together with para 18) of the 2FACLS. So that what follows makes some sense, I set out those paragraphs.

2. [102]

   The reference to “Partnership Agreement” can be ignored. Further, the pleading of separately implied terms for the “Joint Venture Agreement” and “the Contract” is somewhat confusing, given that as para 18 says, each of those defined expressions is intended to refer to the precise contract, containing the precise incidents, alleged in para 18.

3. [103]

   It may safely be assumed that each party owed the other what might be called the “Mackay v Dick” [19] implied duty of cooperation. It may also safely be assumed that each party owed the other an implied obligation not to hinder or prevent fulfilment of the other’s obligations and a further implied obligation to enable the other to have the benefit of the contract [20] . I do not think that either Mr Assaf or Ms Cairns submitted to the contrary; and if such submissions had been put, I would have felt constrained to reject them.

4. [104]

   The suggested implied obligation of good faith, either considered alone or in conjunction with the suggested obligation “to devote themselves to the welfare of the business”, is more problematic. It is not particularly helpful to talk in terms of the implication of a duty of good faith without descending to at least some of the detail of the incidents said to be comprehended by that obligation. Mr Assaf’s submissions did not really do this. To the extent that the duty of good faith goes beyond the obligations that, I have said, I accept should be implied, I do not think that there is any basis to do so.

5. [105]

   Likewise, the suggested obligation on the parties to devote themselves to the business is problematic. Does it mean “devote exclusively” (terms to such an effect are sometimes found in partnership agreements)? Or does it mean “devote from time to time, as circumstances require”? Or does it mean “devote from time to time, as other commitments allow”? Or, indeed, does it mean something else? The implication of such a term in the words for which PPPM contends would be more likely to promote disharmony and litigation than to ensure the efficient performance of the contract. I do not think that a term in those words should be implied.

6. [106]

   The second suggested implied term, as to the right of both parties to participate in the business, is also problematic. The proposal for provision of services was made by PM Works to CBA, although on the express basis that PM Works was heading, or (to use another term) fronting, a strategic alliance. The contract that resulted was one between CBA and PM Works. PPPM knew that the proposal was to be submitted by PM Works. If it did not know, it ought to have understood, that any resulting contract would be in form one between PM Works and CBA.

7. [107]

   To the extent that participation in the management of the business might extend to entitle PPPM to interfere in the administration of that contract (and the disjunctive way in which the suggested implied term is articulated could be so read), it would be likely to be destructive rather than positive in its consequences. If the implied term means no more than that each party was to have a say in the performance of work under the joint venture agreement, that must be correct; and I am not sure that Ms Cairns contended to the contrary. In fact, the parties did this, when they settled on the pricing structure to be submitted to CBA and when they settled on the way training courses were to be provided after CBA had expressed its dissatisfaction with the services provided by PPPM.

8. [108]

   The suggested obligation to account is unnecessary. There is no suggestion that PPPM has been kept in the dark as to how many courses were provided, or as to what under the joint venture agreement (as made or as, I find for reasons I will explain, varied) it was to be paid. There is no suggestion that it has not been paid [21] . Any remedy that PPPM would have for non-payment could be satisfied by an action at law. There does not seem to be any need to resort to the mechanism of an account. I do not think that the requirement of business necessity means that such a term should be implied.

9. [109]

   The fourth suggested implied term – that PM Works would provide the benefit of the contract to PPPM in respect of any requirement for the provision of PM training services – may be accepted, at least insofar as PM Works could do so consistently with the wishes of CBA. That is covered substantially by what I have said already at [100], [103] above.

10. [110]

    That deals with para 19 of 2FACLS. Effectively, it deals also with para 19A.

Issues 4 and 6(a): right to terminate

1. [111]

   The formulation of this issue is a little unfortunate, as it suggests that the joint venture agreement (if, as I have found, one were made) had as its only purpose the exploitation of the opportunity to provide services to CBA. However, for the reasons I have given, the joint venture was one wider in scope: for the exploitation of all such opportunities as might present themselves, during the life of the joint venture agreement, for the provision of appropriate training services.

2. [112]

   One of the consequences of the extreme informality of the parties’ arrangements is that there was no agreement as to the duration of the joint venture, or as to the circumstances in which it might be terminated. At least at the level of principle, there would be implied a term that either party could bring the joint venture to an end, if not at will then upon reasonable notice. Were it necessary to decide, I would think that “reasonable notice” was the correct formulation: if only to reflect the fact that each party invested time and effort, and no doubt money or money’s worth, into the joint venture. However, that does not really answer the question (more accurately, perhaps, it does not answer the real question).

3. [113]

   The real question as it emerges from the circumstances of this case, is whether the joint venture agreement could be terminated during the currency of any contract for the provision of training services gained as a result of the joint venturers’ efforts pursuant to the joint venture agreement. In short, and with reference to the CBA contract, could the contract between PPPM and PM Works be terminated, so as to the deprive one party of the benefit of that contract, whilst that CBA contract was in place?

4. [114]

   To my mind, the answer to that question must be “no”. To imply a right of termination which, if exercised, would have the effect of depriving one party of some or all of the benefit of a contract gained for the purposes of the joint venture would be inconsistent with the implied obligation that each party would permit the other to have the benefit of the joint venture agreement. It would mean that one party, having utilised the other’s assistance in gaining the benefit of a contract, could deprive it of the reward by terminating the joint venture with immediate and absolute effect.

5. [115]

   The alternative approach might be to say that where a contract had been gained as a result of the joint venture’s efforts, and remained current, the requirement for termination on reasonable notice would require either that the joint venture should continue unabated until the expiry of that contract or that, alternatively, it should continue at least with respect to that contract until that contract had run its course.

6. [116]

   However one views the right of termination, and in whatever precise terms one might frame it, the answer seems to me to be clear: absent breach justifying termination, neither party could terminate the joint venture agreement at will so as to deprive the other of the benefit of an extant contract for the provision of training services gained in the course of and as a result of the performance of the joint venture agreement.

7. [117]

   In the next issue, I consider the arguments as to variation, and conclude that the joint venture agreement was varied by early September 2014. The conclusions that I have just expressed, as to the right of either party to terminate at will (in the absence of any breach justifying termination) apply equally to the agreement as varied – that is to say, they answer issue 6(a).

Issue 5: variation

1. [118]

   On 16 July 2014, Mr Finnerty and two other facilitators (Mr David Bridge and Mr Mal Victory) presented the first PM training pilot course to employees of CBA. Mr Finnerty sent PM Works an invoice for the agreed fee together with GST. The invoice was paid.

2. [119]

   Six days later, on 22 July 2014, Mr Shaw received an email from CBA. The email expressed dissatisfaction with the quality of the presentation (or “facilitation”) on 16 July 2014. Two days later, on 24 July 2014, Mr Shaw forwarded that email to Mr Finnerty.

3. [120]

   Between those two days, on 23 July 2014, there was a meeting between Mr Shaw and representatives of CBA to discuss the first PM pilot course. There is no evidence of what was said at that meeting.

4. [121]

   On the same day, Dr Stejer presented the first BA training pilot course. Dr Stejer said that two representatives of CBA then told him that CBA was considering whether or not to proceed with the PM training courses, because, they said, the presentation on 16 July had been unsatisfactory in a number of respects. The representatives of CBA were not called. That evidence was admitted to prove communication of the asserted facts but not their truth.

5. [122]

   On 24 July 2014, Messrs Finnerty, Banerji and Shaw met. They discussed the email of 22 July 2014 expressing dissatisfaction with the first PM pilot course. Mr Finnerty defended his presentation, and attributed the dissatisfaction to a “single strong minded attendee”, whose identity he appeared to know (or suspect). Mr Finnerty responded to the email on 26 July 2014, again defending his position and asserting that “there was quite obviously another agenda… running here” and that the feedback did not represent “a truly fair, open, unbiased and balanced view, from the attendees as a collective body”. I am tempted to observe “of course he would say that”. Mr Finnerty did not strike me as a man who has any doubt about his own capacities or abilities.

6. [123]

   Mr Finnerty passed on CBA’s email of complaint to the two facilitators who assisted him. Neither of them gave evidence. Each of them sought to defend the presentation, essentially on the basis that between them, the presenters knew far more than the attendees.

7. [124]

   Regardless, Mr Finnerty said that he would stand down after the follow-up workshop which was to be held on 29 July 2014. Mr Finnerty and Mr Bridge presented that workshop, but Mr Bridge took the lead role. Despite this, CBA was dissatisfied. Internal records of CBA record that dissatisfaction. It is not immediately apparent that the expressions of dissatisfaction “emanate … from a single strong minded attendee.”

8. [125]

   On 4 August 2014, Dr Stejer and Ms Shaw met a representative of CBA, who (according to Dr Stejer) said that the Bank wanted the course materials to be rewritten, and future courses to be delivered by new facilitators. Again, that evidence was admitted to prove the communication, but not the truth, of the asserted facts. However, as Ms Cairns submitted, the distinction is not particularly significant, because from PM Works’ perspective, the important thing was the communication of that view and not necessarily the underlying truth of the view or of the justification expressed for it.

9. [126]

   Dr Stejer thereafter spoke to Mr Finnerty and asked for an editable version of the course materials. Mr Finnerty said in effect that CBA should not dictate the content of his courses, and that he did not have the time to rewrite the material at CBA’s requirement. At about the same time, Mr Shaw sent an email to Mr Finnerty telling him that that CBA wanted shorter course materials with space for the attendees to write notes.

10. [127]

    CBA emailed Mr Shaw on 6 August 2014, indicating a desire to review the PM training course content and materials. Mr Finnerty and Mr Shaw discussed this (the second pilot PM course was to be conducted a few days later, on 11 August 2014).

11. [128]

    There were further discussions. Finally, on 7 August 2014, Mr Finnerty caused PPPM’s course material to be emailed, in editable format, to Dr Stejer. CBA required the material to be amended, and to be provided with it the following day. Dr Stejer did that. CBA reviewed the material and approved it. The second PM pilot course was presented on 11 August 2014, by Mr Glen Molloy and Mr Bridge.

12. [129]

    Also on 11 August 2014, Mr Shaw informed Mr Finnerty that CBA had cancelled further courses for the time being, to “allow some time to further review the content and structure of the courses”. It seems that CBA remained discontented with PPPM’s presentation. It so informed Dr Stejer, and although again that evidence was admitted to prove communication rather than truth, it is rather difficult to understand why CBA’s employees would have expressed those views repeatedly if they did not in fact hold them. I add that CBA’s business records referred to at [124] above are capable of proving the fact of CBA’s dissatisfaction.

13. [130]

    There was then a great deal of work done, by Dr Stejer in particular, to redraft the course materials for the PM course. It is clear that this was done at the request of CBA.

14. [131]

    On 25 August 2014, Mr Banerji and Mr Finnerty met. Mr Banerji gave Mr Finnerty a three page document which traversed some of the history that I have recounted. Of present relevance, it stated:

15. [132]

    The document also proposed a costing by reference to which for a one day face to face workshop, PPPM would be paid $150 per student (or $1,800 for 12), and one-third of those amounts for a two hour workshop.

16. [133]

    Mr Finnerty was not, at the meeting, receptive to that proposal. However, he took a few days to think about it. He replied on 29 August 2014, in an email to Mr Banerji. So far as it is relevant, that email stated:

17. [134]

    The table showed in effect that the fee payable to PPPM would be $1,800 for a one day course, and $600 for the two hour follow up workshop or webinar.

18. [135]

    Mr Banerji replied on 1 September 2014. After thanking Mr Finnerty for the email, he said:

19. [136]

    He said, further, that he was asking for an agreement “to be drawn up to cover the commercial aspects between our two organisations”.

20. [137]

    Although Mr Finnerty said that he felt pressured and intimidated at the meeting on 25 August 2014 (I should not be taken to think that, because I have referred to this evidence, I accept it), he agreed that he was under no feeling of duress or compulsion on 29 August 2014 when he wrote the email to which I have referred.

21. [138]

    In the circumstances, it seems to me to be clear that the parties agreed to vary their agreement on the basis set out in Mr Finnerty’s email of 29 August 2014 and accepted by Mr Banerji in his email of 1 September 2014. True it is that the parties contemplated that a further and more formal agreement would be prepared and signed. However, there is no reason to think that they intended their agreed variation not to have effect until that happened. On the contrary, there is every practical and commercial reason to think that they did intend it to have immediate effect. Unless there were in place an effective variation, PM Works would be at risk of losing the CBA contract. That would entail loss not only to it but also to PPPM. This seems to me to be a case in which the parties had reached finality in settling upon the terms of their variation and intended to be bound immediately to it, notwithstanding that they proposed to restate the variation in fuller and more precise terms [22] .

22. [139]

    Mr Shaw did indeed prepare a form of draft contract. It included a term that either party could terminate, without cause and without the need to pay compensation, on giving 30 calendar days’ notice. Not surprisingly, Mr Finnerty took exception to that proposed term.

23. [140]

    The draft agreement was forwarded by email on 15 September 2014. Before then, on 1 September 2014, Dr Stejer had presented a “Project Risk Management” pilot course to CBA. He used a version of PPPM’s course material. CBA expressed unhappiness with those materials and required them to be completely rewritten. Dr Stejer did so. He said, and I accept, that after 1 September 2014, PM Works used its own course materials, not PPPM’s. I add that Dr Stejer was eminently qualified, both by training and by experience, to prepare such a course from scratch, and to prepare its course materials from scratch.

24. [141]

    PM Works needed PPPM to issue course completion certificates for the 1 September course. Mr Finnerty said, in an email to Mr Shaw of 11 September 2014, that it would do so on receipt of certain information. He said in that email that PPPM was “more than happy to issue all future Course Completion Certificates … for all future CBA course presentations covered under our agreement”. Having regard to the email exchange of 29 August / 1 September 2014, that must mean that PPM would do so under the joint venture agreement as varied.

25. [142]

    PPPM did indeed provide those completion certificates, on 24 September 2014.

26. [143]

    The obvious inference from this post-variation conduct is that the parties regarded themselves as having negotiated, and as being bound to, the variation recorded in Mr Finnerty’s email of 29 August 2014 accepted by Mr Banerji in his email of 1 September 2014.

Issue 6(b): misleading or deceptive conduct / unconscionable conduct

1. [144]

   In final submissions, Mr Assaf relied on four representations, which he called the 5 April 2013 telephone representation, the 10 April 2013 document representation, the 3 September 2013 representation, and the 25 August 2014 representation. I shall identify the content of these in a moment. Mr Assaf accepted, in the course of his oral closing submissions, that the first three representations had effectively been spent – any misleading or deceptive character rendered ineffective – by 25 August 2014, and that they remained relevant only in so far as they provided background to the 25 August 2014 representation.

2. [145]

   The 5 April 2013 representation was said to have been one to the effect that “it did not matter how the partnership between PPPM and PM Works was described in the CBA RFP tender responses so long as PM Works is not seen to be subcontracting” and that “if they were successful in securing the services required under the CBA RFPs, that would lead to other business opportunities for them”.

3. [146]

   Even if both parts of that representation were made, they would not go anywhere. The first part was plainly correct: as long as CBA was given to understand that there was no subcontract, the relationship between PPPM and PM Works could be described in some appropriate form of words. In fact, as I have noted, that was done. The second part was aspirational in character. I have no doubt that as at 5 April 2013, each of Mr Finnerty and Mr Banerji genuinely believed that PPPM and PM Works could use the award of a contract by CBA as a basis for obtaining further work. I do not think that Mr Finnerty – who comes across from his contemporaneous emails as confident and optimistic – needed Mr Banerji to tell him so.

4. [147]

   The 10 April 2013 documentation representation also comprises two parts. The first part is “that a written agreement … was not necessary”. The second is that neither party “would screw each other around”. I have no doubt, as to the second part that, as at 10 April 2013, Mr Banerji, and through him PM Works, had not the slightest intention of screwing PPPM around. Even if, later, PM Works’ conduct could be so characterised (and I am not to be taken to be expressing an affirmative conclusion on that point), it does not mean that the representation (if made) was not honestly made, and on the basis of a truly held and well founded belief, on 10 April 2013.

5. [148]

   Further, as to the suggested lack of need for a written agreement, Mr Finnerty was a man of great business experience. He was well able to assess for himself whether a written agreement was needed. I have no doubt that if he had thought, independently of anything Mr Banerji said, that a written agreement was required, he would have said so; and he would have done all he could to ensure that one was brought into existence and signed. At best, this aspect of the representation – if made – was no more than aspirational (and the same may be said for the other aspect). It is impossible to understand how any such representation, if made, could have affected Mr Finnerty’s mental processes.

6. [149]

   The 3 September 2013 representation was one made in an email. It was to the effect that, having won the CBA tender, there would be other business opportunities that would open up for the parties, working together. Objectively, that must have been correct. PPPM and PM Works had worked together successfully to help PM Works win the CBA tender. They had gained an understanding of the way in which the services of each could complement the services of the other. They were entitled to believe that, having worked together successfully to win the CBA tender, other business opportunities, that they could exploit jointly, would become available.

7. [150]

   That leaves the 25 August 2014 representation. Mr Banerji is said to have represented to Mr Finnerty, in the meeting of that date, that:

8. [151]

   The immediate and striking point about that alleged representation is that it was not recorded, or even referred to, in Mr Finnerty’s detailed email sent to Mr Banerji, a few days later, on 29 August 2014. On the contrary, Mr Finnerty demonstrated, by his detailed comments, that he had analysed the document given to him by Mr Banerji on 25 August 2014, had sought to understand its content, and was prepared to agree if his understanding, as set out in his email, were correct. The email also set out a number of details – “a few administrative issues” – that required attention.

9. [152]

   Given Mr Finnerty’s habit of recording important conversations in file notes or contemporaneous emails, it is unlikely in the extreme that the 25 August 2014 representation was made. It is equally unlikely that (if made) it would have had the effect of inducing Mr Finnerty to confirm PPPM’s willingness to work with PM Works in accordance with his stated understanding of Mr Banerji’s email, if otherwise he had been of a mind not to do so. On the contrary, the inference from Mr Finnerty’s email is that in the circumstances that had arisen (including CBA’s expressed dissatisfaction with the services provided by PPPM), the proposed variation represented the best way for PPPM to retain some economic interest in the performance of the CBA contract.

10. [153]

    In short, I am not satisfied that the fourth representation was made, and equally I am not satisfied that if it were made, it would have had any relevant impact on Mr Finnerty’s though processes.

11. [154]

    I turn to the topic of unconscionable conduct. The case relies on s 21 of the Australian Consumer Law – what might be called statutory unconscionable conduct. The parties referred in some detail to the authorities dealing with s 21. It is not necessary to go to those authorities because the relevant principles are well understood. Conduct may be unconscionable if it is “against conscience by reference to the norms of society” that are applicable “in the context in which the circumstances arise” [23] . It is appropriate to have regard to community standards of good faith and fair dealing [24] , and to “accepted and acceptable community values” [25] .

12. [155]

    In assessing whether the conduct of one party has been, in the relevant sense, unconscionable, the court should have regard to the matters set out in s 22(2) of the Australian Consumer Law. Mr Assaf’s submissions identified the following relevant paragraphs:

13. [156]

    In his closing submissions, Mr Assaf identified the relevant conduct, and the reasons for characterising it as unconscionable, as follows [26] :

14. [157]

    Mr Assaf identified the loss that PPPM suffered by reason of that alleged unconscionable conduct as being the difference in the amount of its damages (expectation loss) for breach of the varied joint venture agreement, compared to the damages that it would have recovered for breach of the unvaried joint venture agreement. He submitted [28] that the appropriate relief was to declare the variation agreement void, thus leaving in force unvaried the joint venture agreement, and leaving in place the full claim for damages by reason of PM Works’ alleged breach.

15. [158]

    If I may say so, PPPM’s case based on unconscionable conduct has a somewhat unreal air to it. It ignores the salient (indeed, to my mind, crucial) point that CBA had repeatedly expressed displeasure with both PPPM’s presentations of training courses (even after Mr Finnerty dropped out) and with the course materials that PPPM had prepared. Mr Finnerty had been unwilling to accept the criticisms. He may have been right, or he may have been wrong. But his refusal to accept the criticisms, and his refusal to amend the course materials, presented PM Works with a dilemma. It could stand by its joint venturer, and insist, against the communicated protests of CBA, on using PPPM’s facilitators and course materials. Or it could accept the communicated requirements of its customer CBA, and present courses with different facilitators and with revised course materials.

16. [159]

    It is PPPM’s case that under the unvaried joint venture agreement, it was entitled to present the PM training courses (and by inference, use its course materials in doing so), and receive the agreed remuneration for those courses. If CBA’s communicated opinions and requirements represented its true position (and it is very hard to see why CBA would have communicated those opinions and requirements unless they reflected the views of its relevant officers at the time [29] ), the likely result of adhering to the unvaried joint venture agreement would have been the loss of the CBA business. Under the service contract of 26 June 2014, CBA was not obliged to take any minimum quantity of services. The contract provided, in effect, that PM Works would provide services as and when CBA required them.

17. [160]

    Undoubtedly, the economic consequence of the variation agreement was to reallocate the pie between PPPM and PM Works, decreasing the size of the former’s slice and increasing the size of the latter’s. However, the consequence of proceeding with the joint venture agreement unvaried, insisting that PPPM should both facilitate the courses and provide the course material, was likely to be loss of the entire pie. That could not have been in the interests of either PPPM or PM Works. I add that there is nothing in the evidence to suggest that CBA’s repeated statements of its opinions and requirements were other than genuine, let alone that PM Works should have thought that they were other than genuine.

18. [161]

    When the impugned conduct is viewed in the whole of the relevant factual circumstances, it is in my view impossible to characterise it as conduct undertaken without regard for conscience, or falling below – let alone well below – the good faith standard to be expected in commercial transactions.

19. [162]

    There is a specific point to make about para 131(b) of Mr Assaf’s written closing submissions. It is correct to say that PM Works received PPPM’s intellectual property, the course materials, in an editable format. Whether or not PM Works was “happy” to receive it is beside the point. The point is that PM Works needed to revise the material so that it complied with the communicated requirements of CBA. In the short time frame for that to be done, it was logical that PM Works should ask for the course materials in editable soft copy format.

20. [163]

    Further, to the extent that PM Works continued to use PPPM’s course material for presentation of PM training courses, it paid the agreed fee to PPPM. True it is that PM Works developed its own course materials. As I have said, I accept Dr Stejer’s evidence that it (more accurately he) did so from scratch, without using the PPPM materials as a starting-point. It is entirely understandable that a facilitator of Dr Stejer’s qualifications and experience would prefer to design his own courses, and to use his own course material in presenting them. I see nothing unconscionable in his (or PM Work’s) doing so.

21. [164]

    Finally, I return to the list of factors set out in s 22(2) of the Australian Consumer Law upon which, apparently, PPPM relies [30] . Essentially for the reasons I have given, paras (a) and (b) add nothing to the discussion. Accepting as I do that it was PM Works that had the direct relationship (both commercial and contractual) with CBA, it was PM Works that was the recipient of CBA’s communicated opinions and requirements. Whether this may have affected the relative bargaining strengths of PPPM and PM Works is irrelevant. Otherwise, so far as the evidence goes, there is no material difference. As I have said already, Mr Finnerty is a very capable, well qualified and highly experienced businessman, well able to negotiate on his own behalf and to take whatever steps he thought necessary to protect his (and PPPM’s) position. His email of 29 August 2014 to Mr Banerji shows that this is exactly what Mr Finnerty did, once he had settled down and considered the position in which the parties found themselves.

22. [165]

    Para (d) – undue influence or pressure – can be put to one side. Mr Finnerty said that at the meeting on 25 August 2014, he felt “ambushed” and that he was “coerced” into accepting the proposed variation. However, as I have noted, he then had three clear days to consider his position, before sending his email of 29 August 2014. He conceded that he was not then labouring under the influence of any coercion or unfair tactics [31] .

23. [166]

    As to paras (i) and (l), there is no need to add to what I have said already.

Issues 7 to 10: repudiation

1. [167]

   The alleged repudiatory conduct, in relation to the unvaried joint venture agreement, consists of PM Work’s actions in providing PM training to CBA itself rather than using PPPM to do so. Of course, that was authorised by the variation. Hence, given my conclusion that the variation has legal effect, no question arises as to repudiation of the unvaried agreement. Nor can PM Works’ conduct in proceeding as contemplated by the variation agreement amount to a repudiation of the varied joint venture agreement.

2. [168]

   Further, given that PM Works developed its own course materials in about September 2014, and used them thereafter for the presentation of the courses that Dr Stejer himself designed, it is difficult to see how the failure to pay PPPM the agreed fee under the variation agreement can amount to repudiation.

3. [169]

   I turn to the circumstances in which the parties parted ways. Mr Finnerty gave evidence of a meeting with Mr Banerji on 17 February 2015. According to Mr Finnerty, Mr Banerji informed him that PM Works had become an REP in its own right, so that it did not “need any further involvement from [PPPM] on the CBA contract”. According to Mr Finnerty, Mr Banerji also said that PM Works had developed its own course materials, based on PMBok. It was by then true in fact that PM Works had developed its own course materials. It was also true in fact that, because PM Works was registered with PMI and was an REP in its own right, it was entitled to use the PMBok.

4. [170]

   According to Mr Finnerty, Mr Banerji denied the existence of any contract and referred to the draft contract (see at [139] above) prepared by Mr Shaw, requiring 30 days’ notice of termination.

5. [171]

   Mr Banerji said that he did not recall any such meeting, and denied that he had had any conversation with Mr Finnerty to the effect set out in Mr Finnerty’s evidence.

6. [172]

   On 18 February 2015, Mr Shaw sent an email to Mr Banerji, identifying courses delivered by PM Works using PPPM’s material, for which PPPM had not invoiced PM Works. Mr Banerji forwarded that email to Mr Finnerty. Mr Finnerty did not cause any invoices to be submitted to PM Works. As I have indicated above [32] , PM Works accepts liability for those amounts, and will pay them upon receipt of a tax invoice or invoices.

7. [173]

   It is common ground that Mr Finnerty and Mr Banerji met in a café on 13 April 2015. According to Mr Finnerty, Mr Banerji reiterated his position that there was no binding contract, and that PM Works was free to dispense with PPPM’s services in relation to the provision of training courses to CBA. There was then reference to litigation.

8. [174]

   If Mr Finnerty’s account of the meeting is supported by any file note or email, I was not taken to it. In the absence of any such corroboration, I do not accept it. It has all the hallmarks of hindsight reconstruction based on perceptions of interest; perceptions of “what ought to have happened”, if I can put it that way. One matter of significance is that it is now common ground that at the meeting, Mr Finnerty gave Mr Banerji a printout of a spreadsheet setting out, in some detail, an amount claimed for “Total Calculated Contract Buy Out Costs” in excess of $1.5 million [33] . Mr Finnerty’s account of the meeting did not mention that he provided that spread sheet to Mr Banerji.

9. [175]

   Mr Banerji denied that the conversation on 13 April 2015 was as alleged by Mr Finnerty. Mr Banerji’s prepared his own file note of that meeting. He said that the conversation was in accordance with the points set out in his file note. I set out those points:

10. [176]

    I accept Mr Banerji’s evidence of this meeting in preference to that of Mr Finnerty. Not only do I find Mr Finnerty’s account unacceptable in its own right, I think that the corroboration of Mr Banerji’s evidence afforded by his file note is powerful. There is no reason to think that the file note is anything other than an authentic summary of the conversation, prepared whilst its details were fresh in Mr Banerji’s mind.

11. [177]

    The obvious inference from the events of 13 April 2015 is that PPPM and PM Works recognised that their relationship had come to an end. Given Mr Finnerty’s actions in preparing and handing over the demand for a “contract buy out” amount in excess of $1.5 million, it may safely be inferred that he blamed PM Works for the breakdown in the relationship.

12. [178]

    It is unnecessary to go any further, because on the view that I have reached, namely that the joint venture agreement as made was terminable either at will or on reasonable notice except in respect of existing contracts for the delivery of services (and since the variation agreement did not touch on this aspect of the joint venture agreement, the same must apply to the joint venture agreement as varied), termination could not amount to repudiation except where there was, at the time of termination, a contract for provision of services of which further performance was or might be required. It was no part of PPPM’s case that the events of 13 April 2015 (or, for that matter, the events of 17 February 2015 either on their own or considered in conjunction with the events of 13 April 2015) amounted to repudiation because the termination was effective immediately rather than upon some period of notice.

13. [179]

    What, then, is the impact of the undoubted fact that the CBA contract was current, and that from time to time PM Works might be required to provide training services pursuant to it? The answer, I think, is “none”. That follows from my conclusion that the variation agreement was effective. Thereafter, it was open to PM Works itself to provide PM training services to CBA, provided that if it used PPPM’s course materials, it would pay the agreed fee. Once PM Works, through Dr Stejer, developed its own training course and its own course materials, the CBA contracts ceased to have any possible relevance or bearing on any question of repudiation.

14. [180]

    There were other arguments, based on delivery of the demand, delivery of a draft statement of claim, and the like. It is not necessary to consider them.

Issues 10, 11 and 12: fiduciary duty

1. [181]

   The critical feature in determining whether a relationship is fiduciary is that the putative fiduciary undertakes or agrees to act for or on behalf of or in the interests of the putative beneficiary in exercising a power or discretion which affects the interests of that beneficiary, whether in a legal or in a practical sense [34] . Neither side suggested otherwise.

2. [182]

   Where a contractual relationship is said to have fiduciary characteristics, the contract nonetheless regulates the basic rights and liabilities of the parties, and any fiduciary relationship must accommodate the terms of the contract so that it is consistent with them and does not alter their operation [35] .

3. [183]

   The terms of the contract to which any fiduciary obligation must conform include not only those that are expressed within the contract but those that are implied, including “in fact” [36] (that is to say, on the basis explained in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [37] ).

4. [184]

   “Vulnerability” is generally taken to indicate the existence of a fiduciary relationship. Is the putative beneficiary vulnerable to the putative fiduciary’s abuse of its position? Where vulnerability in this sense is lacking, ordinarily no fiduciary relationship will be implied [38] .

5. [185]

   Where the relationship between contracting parties is one of mutual trust and confidence, it may be appropriate to infer that the relationship is fiduciary [39] . Likewise, where parties join in a common business enterprise and where the relationship between them is one of mutual trust and confidence, all parties must seek to realise, for the advantage of each participant, all the assets committed to the joint venture [40] .

6. [186]

   Where (in contrast to the present case) parties have entered into a commercial contract and have negotiated and documented in full detail all of their rights and obligations, it would ordinarily be inappropriate to impose a fiduciary duty upon one of those parties. However, this is not because the contract is “commercial” but, rather, because mere vulnerability to breach, where the consequences of breach are adequately covered by the contract, does not give rise to the need for the intervention of equity [41] .

7. [187]

   In general, it seems to me, where parties enter into a contract under which each is doing no more than pursuing its own interest, it would be difficult to impose upon one of them a fiduciary obligation. For example, in a contract of sale, the vendor is pursuing its legitimate interest in maximising the price of its asset, and the purchaser is pursuing its legitimate interest in acquiring that asset for the best possible price, to put to whatever use it has in mind.

8. [188]

   However, where parties enter into a contract to pursue a mutual aim – one in which each of them has an interest – the situation is likely to be very different. Each of them will depend on the other – place trust and confidence in the other – to cooperate to achieve the outcome to which their contract is directed, and to do so for the benefit of each. Although, no doubt, each party has its own individual and legitimate interest in entering into the bargain, the bargain is one not merely for the achievement of that interest, but also for the achievement of the joint interest. That, I think, is one reason why parties to a contract that may properly be described as one of “joint venture” have been found to owe fiduciary obligations to each other.

9. [189]

   Nonetheless, it is not enough to find that the contract may properly be described as one of “joint venture”. As the plurality reasons in United Dominions Corporation Ltd v Brian Pty Ltd [42] demonstrate, it remains necessary to examine the form of the joint venture and the content of the obligations that each party to it undertakes.

10. [190]

    In the present case, were it necessary to do so, I would conclude that each of PPPM and PM Works owed fiduciary obligations to the other, at least under the joint venture agreement (as I have called it) before it was varied in late August or early September 2014. The joint venture agreement was one for the mutual benefit of both. Undoubtedly, each reposed trust and confidence in the other to work together to secure and maximise the benefits that would flow to each from performance of that agreement.

11. [191]

    In general terms, and specifically in the case of CBA, it was PM Works that had the commercial relationship with potential customers (and in the case of CBA, with the party who had contracted for the provision of training services). Where, as was the case with the CBA contract between PM Works and CBA, PM Works was the party that dealt with CBA and administered the CBA contract, PPPM was, at least in theory, vulnerable to abuse.

12. [192]

    However, it is not necessary to express a concluded view. That is because, on the assumption that a fiduciary relationship did exist (and ignoring the inconvenient truth that if it did, it must have been mutual; and that if it did, its content was never precisely defined), the circumstances that are said to amount to breach of the suggested duty go nowhere near establishing it. Those circumstances are set out in Mr Assaf’s written closing submissions at paras 160 to 164:

13. [193]

    As to the first suggested breach, the assumption is (and in my view, the assumption is made clear in para 162) that PM Works should have challenged CBA’s repeated expressions of dissatisfaction with both the facilitation services provided by PPPM and PPPM’s course material. That assumption lacks any commercial reality. CBA was the customer. It was in a position to dictate whether, and if so to what extent, it would take any services under the contract. It is easy to infer that if PM Works did not structure its services (both as to delivery and as to content) in the way that CBA said it required, CBA would not commission the further performance of those services. There was nothing to stop CBA from entering into a similar contract with another service provider, amenable to its oft-repeated requirements than PPPM’s submissions suggest PM Works should have been.

14. [194]

    Again, the submission that PM Works has taken advantage of PPPM’s intellectual property in its course materials, and has “leveraged” that material “for its own advantage” is simply incorrect. It is true that PM Works rewrote the course material at the direction of CBA. However, as I have now said more than once, Dr Stejer’s evidence, which I accept, is that in about September 2014, he designed his own PM training course from scratch, and wrote the course materials from scratch. It is simply not correct to say that he used PPPM’s course materials, or “leveraged” them.

15. [195]

    Finally, although this point was not addressed by either side, if a fiduciary relationship does exist, it must of necessity be mutual, because of the mutuality of trust and confidence. It is a little difficult to see how PPPM, consistent with any fiduciary duty that it might owe PM Works, could suggest to PM Works that it should jeopardise the whole relationship with CBA, and everyone’s hopes of gaining from the exploitation of that relationship, so as to maintain PPPM’s original share of whatever remuneration might flow from the provision of services.

16. [196]

    Accordingly, I conclude that there was no breach of any fiduciary obligation that was owed.

17. [197]

    It is not necessary to decide whether Mr Banerji instigated any breach. Nor is it profitable to speculate upon this point. The relevant facts are clear and limited. If others should take a different view to mine as to breach of any obligation that was owed, the assessment of Mr Banerji’s liability will be a simple matter of applying an uncontentious test to equally uncontentious facts falling within a very short compass.

Issue 13: equitable estoppel

1. [198]

   I have found that the joint venture agreement was made, and what were its terms. I have found, further, that it was varied. PPPM’s case was that if there were no legally binding contract, nonetheless PM Works was estopped, by reference to the various matters pleaded and particularised, from denying the existence of a contract. It was no part of PPPM’s case that equitable estoppel might apply to subvert any contract that was found to have been made.

2. [199]

   Accordingly, it is unnecessary to consider this issue.

Issues 14 to 16: consequences of breach of the Australian Consumer Law

1. [200]

   I have found that there was no relevant misleading or deceptive conduct, and no unconscionable conduct, on the part of PM Works. Accordingly, neither the question of remedies nor the question of Mr Banerji’s involvement arises. As to the latter point: it would seem to be obvious that if, contrary to my conclusions, PM Works were found to have engaged in misleading or deceptive, or unconscionable conduct, then Mr Banerji would have been knowingly concerned in or party to it. It is unnecessary to say more.

Issue 17: account of profits or damages

1. [201]

   In relation to the claim for breach of fiduciary duty, PPPM elected, at the conclusion of the evidence, to take an account of profits rather than damages or equitable compensation. In the event, that election is irrelevant, because I have found that there was no breach of fiduciary duty. If that conclusion were incorrect, then presumably PPPM would be entitled to an account of profits. Nonetheless, any decision would need to take into account the identification of the duty breached and of the circumstances of the breach. Those matters, and no doubt others, would be relevant at least to the question of the “just allowances” to be made in favour of PM Works in that hypothetical situation.

2. [202]

   Accordingly, I do not propose to set out even in outline the way in which I think an account of profits (if required) ought be conducted.

3. [203]

   As to damages for breach of contract: that question could only arise if my conclusion, that PM Works did not breach the varied joint venture, were incorrect. (It might also arise if my conclusion that the joint venture agreement was varied was incorrect, and if in consequence it were held that what happened in and after August 2014 amounted to a breach of a joint venture agreement, but that is yet a further step back in the hypothetical process of assessing damages against the possibility that other minds might take a different view to mine.)

4. [204]

   Were it necessary to assess damages on the basis that PM Works had breached the varied joint venture by, to the extent that it did, providing PM training courses to CBA after September 2014, the steps in the assessment would be as follows:

   1. (1)

      ascertain the number of courses conducted, for which no payment was made, up until 30 June 2017 (that date has been selected as “the present time” because it is the latest date for which figures are available);

   2. (2)

      estimate the gross profit that PPPM would have derived from its fee, $1,800 ex GST, for providing those courses (that is to say, deduct from the gross fee the direct costs that have been saved because PPPM did not provide them);

   3. (3)

      repeat steps 1 and 2 for any PM training courses that PM Works has provided to other corporations up to 30 June 2017;

   4. (4)

      estimate the number of PM training courses that PM Works is likely to provide to CBA between 30 June 2017 up until 30 June 2020 (the conventionally assumed date of termination of the contract for services made on 26 June 2014 between CBA and PM Works as extended from time to time);

   5. (5)

      repeat steps 1 and 2 in respect of that estimated number of courses, year by year, and discount to 30 June 2017 the resulting assessment of lost gross profit at the rate of 4% (the unchallenged rate chosen by PPPM’s expert Mr Copeland); and

   6. (6)

      repeat steps 4 and 5 (i.e., expanded, steps 4, 1 and 2) in respect of other PM training courses that might have been provided to other businesses from 1 July 2017 to 30 June 2020; and

   7. (7)

      discount the results of steps 5 and 6 to accommodate the possibility that, for reasons unconnected with the fault of either party, the number of courses that it is estimated would have been provided might not be delivered, or that there are some other factors not attributable to the fault of either party that would diminish the gross profit to PPPM from its fee for the provision of those courses; and

   8. (8)

      calculate the total (because the future losses are assessed on an NPV basis, this will be as at 30 June 2017) and award interest from 1 July 2017 to the date of judgment.

5. [205]

   In relation to the courses to be provided in the future, the real area of dispute between the parties was as to the number that, on the balance of probabilities, the court would find are likely to be provided. Mr Copeland’s figures assumed some growth over the years. Ms Cairns’ submissions (the defendants called no expert evidence) used the average of the number of PM training courses in fact provided in the financial years ended 30 June 2015, 2016 and 2017 and took that as the number of courses per year into the future. In addition, Mr Copeland assumed that courses would be provided to other businesses; Ms Cairns’ submissions did not accommodate this.

6. [206]

   In my view, there is no evidentiary basis for Mr Copeland’s assumed growth. I think that the safer approach is to do as Ms Cairns did and take the average number of courses (which in round figures is 15 per year, 5 at the course fee of $2400 per year and 10 at the course fee of $1,800 per year), and to assume that in addition, three further courses per year are likely to be delivered from 2017 to 2020, each at the higher rate of return. On that relatively conservative approach to assessment, the contingencies discount referred to as step 7 above would be relatively small: I would take 10%. Conversely, if a more expansive approach were taken (to assuming or estimating the number of courses to be provided each year into the future), then a higher discount rate should be applied; the rate would, of necessity, depend upon the expansive (perhaps “optimistic” is a better adjective) quality of the assessed number.

7. [207]

   I do not propose to carry out draft calculations. There are two reasons. First, given my limited arithmetical skills, they will contain an error somewhere. The second, and equally compelling, reason is that any attempt to illustrate the methodology by a worked example would add nothing to what I have said.

Conclusion

1. [208]

   In all the ways in which it has been put, PPPM’s case fails. It follows that the proceedings should be dismissed. In the ordinary way, costs would follow the event. However, since Ms Cairns said that the defendants wished to be heard on costs regardless of the outcome, I shall do no more than give directions for each party to put submissions (together with any relevant evidence) as to costs, and submissions in reply.

2. [209]

   My present view is that the question of costs should be dealt with on the papers once the parties have exchanged submissions in chief and in reply.

3. [210]

   I make the following orders:

   1. (1)

      Order that the proceedings be dismissed as against both defendants.

   2. (2)

      Reserve for further consideration the question of costs.

   3. (3)

      Direct each party to serve and deliver to my Associate, by 9 February 2018 written submissions not exceeding 15 pages in length as to the costs order that it seeks, and any evidence to be relied upon in support of that order;

   4. (4)

      Direct each party to serve on the other and deliver to my Associate, by 23 February 2018, submissions in reply not exceeding 10 pages in length.

   5. (5)

      Subject to the further order of the court, direct that the question of costs be dealt with on the papers.

   6. (6)

      Direct that the exhibits be handed out.