Bettar Holdings Pty Ltd trading as Hunt Collaborative v RWC Brookvale Investment Pty Ltd as trustee for Brookvale Development Trust

1. [1]

   BELL CJ: I have had the benefit of reading the detailed reasons of McHugh JA. I prefer not to express a view on grounds 5 and 6, it not being necessary to do so to dispose of the appeal. I agree with McHugh JA in relation to grounds 1-4 and 7-9 and the orders his Honour proposes.

2. [2]

   KIRK JA: I agree with the orders proposed by McHugh JA for the reasons given by his Honour with respect to grounds 1-4 and 8-9, save that I express no view on the agency issue. It is not necessary to do so, and it is by no means clear that the issue was in dispute in the proceedings below. Whilst the appellant bore the onus there was no need for it, or the court below, to address the agency point if it was not in dispute. It is also not necessary to address grounds 5-7 and I prefer to express no view on them.

3. [3]

   McHUGH JA: Before the Court is another case in which a contractor seeks to invoke the beneficial operation of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act). The appellant (Hunt) asserts error in almost every aspect of the decision of the primary judge, Cole DCJ, dismissing Hunt’s claim brought on a statutory debt alleged to be owing by the respondent (RWC) pursuant to s 14(4) of the Act: Bettar Holdings Pty Ltd trading as Hunt Collaborative v RWC Brookvale Investments Pty Ltd as trustee for Brookvale Development Trust [2025] NSWDC 11 (‘J’).

4. [4]

   Hunt’s grounds of appeal span four pages covering, in summary, the following sets of issues.

   1. (1)

      Failure to find that a “construction contract” existed between the parties, being an ordinary contract at common law (or that RWC was bound by a conventional estoppel from denying such a contract; or that RWC was bound by a promissory estoppel from resiling from a promise to enter such a contract; or that there was an “other arrangement” within the meaning of the extended definition of “construction contract” in s 4 of the Act): Grounds 1-4.

   2. (2)

      Failure to find that Hunt’s purported payment claim complied with s 13(2)(a) of the Act: Grounds 5-6.

   3. (3)

      Failure to find that the payment claim was served: Ground 7.

   4. (4)

      Failure to find that RWC was liable to pay the amount claimed plus interest: Ground 8.

   5. (5)

      Independently of all the other grounds, error in exercising the discretion as to costs: Ground 9.

5. [5]

   Lurking not far below the surface of the first and third sets of issues are questions of agency.

6. [6]

   In the event that Hunt fails on the first set of grounds, the second, third and fourth sets fall away. Only the independent ground as to costs would remain.

The parties and key individuals

1. [7]

   RWC was registered on 1 August 2023. It appears to be a special-purpose vehicle incorporated to develop land at Brookvale in New South Wales (the Brookvale project).

2. [8]

   Mr Danny Hanna is the chief executive officer of Hannas Contracting Services Pty Ltd (Hannas). He described himself as “an experienced developer/builder having completed a significant number of civil infrastructure, industrial and residential build and development projects in and around Sydney since 1988.”

3. [9]

   RWC engaged Hannas to manage the development of the Brookvale land. Precisely when that occurred is not clear. The nature and extent of the relationship between Hannas and RWC is also not clear. A company search of RWC as at 16 April 2024 did not disclose that Mr Hanna was a director or secretary of RWC.

4. [10]

   Hunt is a builder. Its General Manager is Mr Nicholas Bettar. Mr Bettar said in his affidavit made 16 May 2024 that he has known Mr Hanna since the late 1980s.

Hunt’s claim was for a statutory debt

1. [11]

   Hunt sued on a statutory debt claimed to arise pursuant to s 14(4) of the Act as follows.

2. [12]

   Section 4 of the Act defines “construction contract” in an extended way: “construction contract means a contract or other arrangement under which one party undertakes to carry out construction work, or to supply related goods and services, for another party”. Hunt claimed to be a party to a “construction contract” with RWC on several bases (each of which was contested below and in this Court). Hunt alleged a contract in the ordinary common law sense. It also claimed in the alternative to have the benefit of either a conventional or a promissory estoppel which put it in substantially the same position as if there were such a contract. There was a debate about whether on the pleadings Hunt also claimed to be a party to some other kind of “arrangement” within the meaning of the extended definition in s 4.

3. [13]

   By s 8(1) of the Act, “A person who, under a construction contract, has undertaken to carry out construction work or to supply related goods and services is entitled to receive a progress payment.” By s 13(1), “A person referred to in section 8 who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment.” Hunt purported to serve a payment claim on RWC. (Whether that “payment claim” complied with the requirements of s 13(2)(a) of the Act was disputed below and in this Court, as was the question whether the claim had been properly served.)

4. [14]

   By s 14(1), “A person on whom a payment claim is served (the respondent) may reply to the claim by providing a payment schedule to the claimant.” By s 14(2)(b), a payment schedule “must indicate the amount of the payment (if any) that the respondent proposes to make”. By s 14(4)(b), if the respondent does not provide a payment schedule to the claimant within a maximum of 10 business days, “the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates”. RWC did not provide a payment schedule within the time Hunt alleged it was due. Hunt then sued pursuant to s 15(2)(a)(i) to “recover the unpaid portion of the claimed amount from the respondent, as a debt due to the claimant, in any court of competent jurisdiction”, of which the District Court was one.

5. [15]

   It might be noted that Hunt’s claim was not brought under the general law, e.g., for damages for breach of contract or in quantum meruit. It was exclusively a claim for a statutory debt alleged to have arisen in accordance with the terms of the Act.

Agency

1. [16]

   As will be seen, the question whether Hannas was acting as RWC’s agent did not directly arise on the pleadings. However, the question is potentially relevant to at least two matters that were in contest below and in this Court. First, whether any “construction contract” came into existence to which RWC was a party (Grounds 1 to 4). Secondly, whether any payment claim had been served on RWC, as opposed to Hannas (which will be addressed below in relation to Ground 7).

2. [17]

   Senior Counsel for Hunt accepted that in order to succeed on the appeal his client needed a finding in this Court that RWC had actually conferred authority on Hannas. The position taken by RWC on the appeal was less clear. Its Senior Counsel indicated that he had not raised lack of agency at first instance by way of answer to the issues now covered in this Court by Grounds 1 to 4. As to those grounds, it was not clear to what extent RWC was relying in this Court on a failure to establish agency, as opposed to uncertainty about the parties to any contract on 27 October 2023, as a reason to find no contract was entered. But RWC did and does rely on the failure to establish agency as an answer to the question of service. In the circumstances, and particularly given the acknowledgement by Hunt that it needs to establish that Hannas had actual authority, it is appropriate to address the question of Hannas’ authority on its merits.

3. [18]

   As to Grounds 1 to 4, on Hunt’s case, contrary to the finding below, RWC, by its agent Hannas (acting through its chief executive officer Mr Hanna), entered an ordinary common law contract with Hunt “by about 27 October 2023”.

4. [19]

   In order to establish the conferral of actual authority by RWC, Hunt must point to some act on the part of RWC. It relies on RWC’s appointment of Hannas as development manager. It submits:

5. [20]

   The appointment of a development manager may or may not confer actual authority on the appointee to bind the appointor to contracts with third parties. For example, the authority to “manage” might be limited to liaising with contractors and consultants. The appointment might extend to authority to give directions to contractors or consultants, but stop short of authority to enter contracts with third parties on behalf of the appointor. The scope of the authority, if any, conferred on a person described as a “manager” depends on any express terms of the appointment, and may otherwise be implied from the circumstances.

6. [21]

   Among the circumstances here is that the contract alleged was both high in value (involving millions of dollars of expenditure) and of fundamental importance to the whole Brookvale project. The alleged contract was to appoint Hunt as managing contractor. As Senior Counsel for Hunt (whose familiarity with such matters is not in doubt) explained without dissent from the bar table:

7. [22]

   That is to say, the alleged contract with Hunt would be the primary contract through which the Brookvale project would be delivered. It would expose RWC to liabilities to third parties via delegated authority granted to Hunt to enter into contracts on behalf of RWC. The fact that the alleged contract with Hunt would be of such significance to RWC and the Brookvale project is relevant in two ways. First, it goes to the question whether it should be implied from any conduct established on the part of RWC that RWC conferred authority on Hannas to enter such a contract. Secondly, it goes to the probability that any such conduct on the part of RWC occurred.

8. [23]

   The evidence as to RWC’s appointment of Hannas is principally found in par 1 of Mr Hanna’s affidavit made 22 July 2024. He described Hannas as “the development manager authorised by [RWC] to manage the development on [RWC’s] behalf.” Hunt submitted that the evidence in Mr Hanna’s par 1, which does not identify the time at which the appointment occurred, should be understood as extending to October 2023. In light of the documentary and other evidence disclosing that Mr Hanna was performing functions in that role at that time, that submission should be accepted.

9. [24]

   The statement in Mr Hanna’s par 1 is conclusory in form, and might ordinarily be objectionable to prove the conferral of authority by RWC. But the evidence was contained in an affidavit read in RWC’s case, and should be given such weight as it warrants in the circumstances. On the other hand, the statement in par 1 says nothing about the nature and scope of the authority “to manage the development on [RWC’s] behalf” that RWC had conferred on Hannas. Given the significance of the alleged contract with Hunt, the fact that RWC appointed Hannas to manage the development did not, without more, implicitly carry with it the authority to enter a major contract with a third party such as Hunt to act as managing contractor. The primary judge took a similar view of that evidence at J[70].

10. [25]

    Mr Hanna’s affidavit also included the following at pars 7 and 10:

11. [26]

    The italicised words in par 7 were admitted only as to Mr Hanna’s state of mind.

12. [27]

    The evidence in par 7 that Mr Hanna would brief the board of RWC on his discussions with Mr Bettar is at best (from Hunt’s perspective) neutral. It is consistent with the proposition that Mr Hanna had authority to discuss matters (i.e. to negotiate) with Mr Bettar, while lacking authority to bind RWC. The further evidence that Mr Hanna understood that the board was relying upon his “advice” suggests that he understood that the decision to enter the contract was one to be made by the board, not by Mr Hanna as chief executive officer of Hannas. That is a circumstance inconsistent with his having actual authority to make the decision himself. On the other hand, that evidence is not inconsistent with the proposition that once RWC’s board made any decision, Hannas might have authority to enter the contract in order to implement the decision.

13. [28]

    Mr Hanna’s evidence at par 10 that as at 27 October 2023 he “had not made a decision about whether [Hunt] would be the builder on the Brookvale Project …” could be read as meaning he had not yet decided what advice to give to the board of RWC. The same is true of his evidence at par 19 that as at 6 November he “had still not formed a view on whether to engage [Hunt] or not.” Both paragraphs are, however, more naturally read as implying that Mr Hanna understood that he had authority to make the decision (as CEO of Hannas) himself. But even if that was Mr Hanna’s understanding, the delegation to him of authority to make a decision (a matter of RWC’s internal decision-making processes) is not the same as authority to enter contracts on RWC’s behalf (a matter of RWC’s dealings with third parties). Nor was there any direct evidence of the basis for any understanding Mr Hanna may have had — that is, evidence of anything RWC itself may have done. The high point of the evidence remains Mr Hanna’s conclusory statement that Hannas was “the development manager authorised by [RWC] to manage the development on [RWC’s] behalf”. Given the scale and significance of the proposed contract, even if Mr Hanna understood that Hannas, acting through him, had RWC’s authority to enter contracts on its behalf, that would be a slight basis from which to infer that RWC had in fact conferred actual authority on Hannas to do so.

14. [29]

    Hunt submitted that the evidence on this subject was within the power of RWC to lead; that the Court should weigh the evidence in accordance with the principles in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969; and that inferences should be drawn adversely to RWC consistently with Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 per Handley JA (Kirby P agreeing). In particular, Hunt submits that Mr Hanna was the only witness called in RWC’s case, and that no one on behalf of RWC, such as a director, gave evidence to the effect that Hannas had no, or had only limited, authority.

15. [30]

    One difficulty with this argument is that, as Senior Counsel for Hunt acknowledged, Hunt bore at least the legal onus on the question of agency. It is difficult to see why an inference should be drawn against a party for failing to lead evidence about an issue unless the party is clearly on notice of the issue. There was some debate at the hearing of the appeal as to whether it was necessary for Hunt expressly to plead that Hannas was acting as agent for RWC in Hannas’ dealings with Hunt. Agency was an issue on which Hunt carried the onus. RWC might ordinarily be entitled to a pleading of the material facts constituting its conferral of actual authority on Hannas, or from which the agency was to be inferred. The amended statement of claim contained no such pleading. As the primary judge said, “absent from the Amended Statement of claim is the pleading of any agency agreement between Hannas and RWC which authorised Hannas to enter into a contract or ‘other arrangement’ on behalf of RWC”: J[70].

16. [31]

    Instead, in the particulars to the allegations of material fact, the names of certain individuals, including Mr Hanna and Mr James Webb, a Senior Development Manager at Hannas, were followed by the word, “(Defendant)” — i.e., RWC. To the extent that those references should be read as raising an allegation of agency, the allegation would be that those individuals were themselves agents of RWC. (That is consistent with Mr Bettar’s evidence in cross-examination: “my understanding was [Mr Hanna] was RWC”: Tcpt, 6 November 2024, 8.47.) The pleading would not be read as an allegation that Hannas, the corporation, was an agent of RWC as a result of Hannas’ appointment as “development manager”.

17. [32]

    In circumstances in which RWC does not suggest that it is prejudiced on appeal in relation to Grounds 1-4 if Hunt is permitted to argue that Hannas was acting as RWC’s agent, the absence of a proper pleading of agency is not decisive of the question. But the pleading issue does have a bearing on Hunt’s argument that inferences should be drawn adversely to RWC because RWC failed to lead evidence denying any such agency. In the absence of any clear allegation in the pleading that RWC had conferred actual authority on Hannas to enter a contract with Hunt, it is difficult to identify the specific allegation that Mr Hanna, or any director of RWC, could have been expected but failed to deny.

18. [33]

    Nor does it appear that the hearing at first instance was conducted on the basis that Hunt’s case was that Hannas (the corporation) had RWC’s authority to enter the alleged contract with Hunt. The closest the parties appear to have come to addressing the question of agency was after the evidence. In addresses, in the course of disputing service of any payment claim, RWC’s counsel submitted:

19. [34]

    The words “[t]hey were the agent for the purposes of inviting tenders for this work” fall short of conceding that Hannas was RWC’s agent for the purposes of entering a contract. They do not suggest that RWC was on notice that Hunt’s case was that Hannas was RWC’s agent for that purpose.

20. [35]

    The issue might have been readily resolved in cross-examination of Mr Hanna. Hunt did not take that course. That may well have been a forensic choice. But in circumstances where Hunt carried the onus on the issue, and there was no clear allegation of agency in the pleading or otherwise, Hunt failed to cross-examine on the point at its own risk.

21. [36]

    There was other evidence relevant to this issue, being the evidence of the parties’ communications discussed below. One important aspect of those communications is the absence of any reference to RWC until well after the crucial date of 27 October 2027. Another is Mr Hanna’s insistence on formality, which would require any contract binding RWC to be in writing and executed formally on RWC’s behalf. Those matters are inconsistent with Hannas’ having actual authority to enter contracts (or at least this contract) on RWC’s behalf.

22. [37]

    In the result, Hunt has not established on the balance of probabilities that Hannas had actual authority to enter the alleged contract with Hunt on behalf of RWC. But given that the question is finely balanced, and in circumstances where the extent to which the issue was in dispute below is far from clear, it is appropriate to consider the first set of grounds of appeal (whether the parties entered a binding contract, etc) making the assumption in Hunt’s favour, contrary to the conclusion just reached, that Hannas (acting through its CEO Mr Hanna) had RWC’s actual authority to enter the alleged contract with Hunt on RWC’s behalf.

First set of Grounds (1 to 4): Ground 1 — contract at common law

1. [38]

   As noted above, s 4 of the Act defines “construction contract” in an extended way. It is convenient to begin with Hunt’s primary case that there was a “contract” in the ordinary common law sense.

2. [39]

   Hunt’s case is that by about 27 October 2023, “the parties concluded what is sometimes referred to as an ‘early works contract’ in contemplation that that contract would be in due course be substituted with a broader and more formal contract” (emphasis in original). Hunt characterised the type of contract as falling within what was said by McLelland J in Baulkham Hills Private Hospital Pty Ltd v GR Securities (1986) 40 NSWLR 62 at 628:

3. [40]

   See also Rose v Manno Kingsway Pty Limited as trustee for the Manno Kingsway Unit Trust [2025] NSWCA 23 at [41]-[42] per Bell CJ (Mitchelmore and Adamson JJA agreeing).

4. [41]

   Hunt needs to put this case outside the third class discussed in Masters v Cameron (1954) 91 CLR 353 at 360; [1954] HCA 72: “Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.” Dixon CJ, McTiernan and Kitto JJ explained at 361:

5. [42]

   The law as to intention to create contractual relations is well-settled. As Gaudron, McHugh, Hayne and Callinan JJ held in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 at [25]:

6. [43]

   As to entry into the “early works contract” for which Hunt contends, Hunt submits that the most important piece of evidence in this regard is an email sent by Mr Webb to Mr Bettar of Hunt at 2:47 pm on 27 October 2023. The email was copied to Mr Hanna and to Mr Stephen Ogden, also of Hannas. On Hunt’s case, that email constituted RWC’s acceptance (by its agent Hannas) of an earlier offer made by Hunt. If the 2:47 pm email did not operate as an acceptance resulting in a binding contract, it is difficult to see how any contract was formed.

7. [44]

   It is convenient to defer setting out the terms of the 2:47 pm email until after addressing the communications which preceded it.

8. [45]

   But something should first be said about the primary judge’s reasons for finding at J[64] that no contract came into existence between Hannas and Hunt, or between RWC and Hunt. Apart from the agency question, there were two different but overlapping strands to the reasoning: that there was an absence both of “consensus on terms” and of intention to be immediately bound. Thus her Honour said at J[64]:

9. [46]

   The absence of a “complete set of agreed terms”, or of “a comprehensive agreement”, would not be inconsistent with an agreement in the fourth class described in Baulkham Hills Private Hospital. But such an agreement would still require that the parties intend to be bound immediately. On the primary judge’s findings, that element was missing in this case.

10. [47]

    Thus, her Honour also said at J[66] that “it is clear from the [2:47 pm] email that a letter of intent and a contract were anticipated future steps, so that Hannas did not intend for there to be a binding contract at that stage.” The effect of that reasoning, and of the earlier statement that the negotiations were always subject to a written and executed contract, was effectively to put the case into the third class in Masters v Cameron. That is to say, to the extent that there was any agreement as to terms, “the terms of agreement [were] not intended to have, and therefore [did] not have, any binding effect of their own”.

11. [48]

    The central question in the present case is thus whether, viewed objectively, the parties’ communications and conduct manifested an intention to be immediately bound.

12. [49]

    As part of the tender process, on 3 October 2023, Mr Brian Gillen, a Project Manager at Hannas, sent Mr Bettar an email with the tender documents for the Brookvale project, requesting that Hunt provide a lump sum cost breakdown.

13. [50]

    On 11 October 2023, Mr Bettar responded to Mr Gillen’s email, copying Mr Hanna and others at Hannas. That email attached what was described as a “Cost Plan”, being a nine-page spreadsheet headed “Indicative Budget Estimate”. A note at the end of the spreadsheet stated, “Costs are after demo, shoring, contamination and all piles are done. We start with the slab on ground.” Mr Bettar said in the email, “Please see attached costings … circa $27.75m”. (Mr Bettar corrected this figure to $25.75m in a later email the same day.) He explained the way in which the spreadsheet had been prepared as follows: “it’s a cost plan as we obviously didn’t go to market and tender it properly, as time was of the essence.” He said later in the email, “It would take us weeks to get market prices and rates, if you wanted a proper price … probably get circa $25m, but you never know.” In the context, it is clear that that figure was directed to the price that might be obtainable for a lump sum contract.

14. [51]

    Some of the pages in the spreadsheet had more than 100 rows. Towards the top of the eighth page was a row beginning “STAFF”. Below that were the titles of various positions, such as Project Manager and Carpenter, followed across each row by columns including a quantity (the unit being one week) and a rate. One of the columns was headed “CC(QS) Budget Estimate incl. 8%”. At least in the context of an indicative budget for a lump sum contract, the spreadsheet thus identified weekly rates for persons occupying various positions, such as Project Manager, and indicated that the construction contractor would charge an additional 8%.

15. [52]

    Two days later, on 13 October 2023, Mr Bettar sought an update on the status of his submission. Mr Webb responded that day, copying among others Mr Hanna. Mr Webb said, “We are still in the process of reviewing all the tenders and working with the contractors to bring the price in line with our budget.”

16. [53]

    Various communications between Mr Bettar and Mr Hanna ensued. On Thursday 19 October 2023, Mr Bettar sent an email to Mr Hanna referring to “yesterday’s chats”. This appears to be the point at which the possibility of entry into a construction management contract, as opposed to a lump sum contract, was introduced. Mr Bettar said, “As requested, I have also prepared a construction management proposal, which I will finish Monday morning after reviewing what the guys come back with”.

17. [54]

    Mr Bettar sought a time for a meeting. Mr Hanna responded suggesting Tuesday morning, that is, 24 October.

18. [55]

    At 9:10 am on 24 October 2023, Mr Bettar sent Mr Hanna an email saying, “Please find attached my letter and std contract with std conditions as asked.” The words, “as asked” indicate that Mr Hanna had sought the proposed terms of a formal written contract. Mr Bettar’s email attached the Master Builders Association of New South Wales Pty Ltd’s standard form Construction Management Contract (September 2002 edition), and a document headed “Schedule 10 - Special Conditions”.

19. [56]

    Mr Bettar’s email of 9.10 am also attached a letter dated 20 October 2023 signed by him and addressed to “Hannas P/L … Attn: Danny Hanna”. The heading of the letter was “Re: Construction Management proposal for ‘Rockwater’ in Brookvale”. Two matters should be noted.

20. [57]

    First, Hunt particularly relied on a paragraph consisting of a single sentence on the second page of the letter: “The cost of the management staff to run the project is as per our previous submission”. Hunt submitted that this should be read as a reference to the line items under the heading STAFF on page 8 of the spreadsheet which Mr Bettar had emailed to Mr Gillen on 11 October 2023 in the course of the tender process for a lump sum contract.

21. [58]

    Secondly, the next paragraph in the letter was as follows:

22. [59]

    It is uncontroversial that “P&O” refers to profit and overheads. Hunt submits that the effect of these paragraphs was that for the purpose of its Construction Management proposal, the cost of the management staff identified in the 11 October spreadsheet (as part of a lump sum tender process) would remain the same, but be subject to a 6% charge instead of the 8% charge for a lump sum contract. The difference was said to be explicable on the basis that a lump sum contract would involve more risk for Hunt than a construction management contract structure.

23. [60]

    At 3:06 pm on the same day, 24 October 2023, Mr Bettar sent an email to Mr Hanna, Mr Webb and Mr Ogden of Hannas, thanking them “for today”. In a series of bullet points Mr Bettar summarised what had been said and confirmed “the plan moving forward”. These included the following.

    1. (1)

       “You wanted your lawyers to review my sub-contract and supply agreement, no issue”. That again indicates an insistence on a formal written contract on the part of Hannas.

    2. (2)

       “You asked for the CV’s of the key people, which I will forward to you”; “You asked to interview them, also”. At the end of the email, Mr Bettar said, “One thing I wasn’t 100% sure on, you stated you wanted to interview my guys next week, what days work?” The insistence on interviewing the key people shows that this was an important issue for Hannas. One ordinarily interviews key people before entering a contract which commits one to work with them.

24. [61]

    At 11:43 am on Friday 27 October 2023, Mr Bettar sent Mr Hanna and Mr Webb an email attaching a letter addressed to “Hannas P/L … Attn: Danny Hanna & James Webb”. The letter had a number of features which should be noted.

    1. (1)

       The body of the letter began:

    2. (2)

       Mr Bettar stated, “We also note, that our 20th of October letter should be read in conjunction with this letter.” The 20 October letter had been attached to Mr Bettar’s email of 9:10 am on 24 October 2023. This is significant on Hunt’s case, because the 20 October letter said, “The cost of the management staff to run the project is as per our previous submission”, which Hunt submitted should be read as a reference to the line items in the 11 October 2023 spreadsheet. The 27 October letter repeated that statement towards the end of the letter: “The cost of the management staff to run the project is as per our previous submission.”

    3. (3)

       After the words, “We understand the following: …”, were 19 numbered paragraphs. These included a number of commercial terms, for example, that Hannas had proposed a 5.5% profit and head office overhead fee, but also a $600,000 bonus should the project be completed before the end of 2024 and raw costs not exceed $22m.

    4. (4)

       Point 8 was that Hannas wished Hunt to start the following Monday, 30 October 2023. “Hunt needs a letter of intent confirming this letter today for Monday’s start date.”

    5. (5)

       Points 11 to 15 identified things Hunt was to start on Monday, including negotiations with suppliers.

    6. (6)

       Point 17 was: “Hanna’s to interview Hunt’s management team next week, as works will begin next week (subject to Hanna’s return confirmation today), as costs begin to accrue from Monday.” That sequence of events would be contrary to what one might expect as discussed above.

    7. (7)

       Mr Bettar referred to having “sent a standard CM contract with special conditions”. He said, “This contract and conditions have been used in the past on more intricate and large sized projects.” That showed a consciousness that a formal contract would be required, at least at some stage.

25. [62]

    Hunt’s 27 October letter ended with the following:

26. [63]

    It was not in dispute that the word “Marbrook” meant congratulations in Arabic. That suggests that the discussions between the parties had been productive of something warranting congratulations. However, as Mr Bettar acknowledged, Mr Hanna had insisted “let’s keep it formal”. In this context, the most natural understanding of those words is that Mr Hanna was referring to a formal written contract.

27. [64]

    It is clear enough from the words “If you are in agreement with what is noted throughout this letter” that Mr Bettar was not purporting to accept any offer claimed to have been made already by Hannas.

28. [65]

    Nor was the 27 October letter itself, at least in form, a contractual offer. Instead, on Hunt’s side, Mr Bettar was seeking at least that Hannas “confirm your intention to engage us”. “Engage” here means enter a contract, but the word “intention” contemplates that entry into the contract would happen at a later date — not that a binding agreement would be reached immediately upon Hannas’ accepting an offer constituted by Hunt’s 27 October letter. To the contrary, as Mr Bettar had indicated at point 8, “Hunt need[ed] a letter of intent confirming this letter today for Monday’s start date”. That was the “something solid today, so I can start” that Mr Bettar was requesting.

29. [66]

    The email to which the letter was attached included the following:

30. [67]

    It is again plain from the email that Mr Bettar was seeking a commitment from Hannas with a view to making a “Monday start”. The form of commitment he sought was either a “letter of intent” or “written confirmation”. The words “written confirmation” pick up the words towards the end of the attached letter, “please confirm your intention to engage us”.

31. [68]

    It would be a rational negotiating tactic on the part of a contractor wishing to secure a job to use the urgency of the circumstances to try to extract a commitment from the principal. It was at least implicit in Hunt’s 27 October letter and email that Hunt would not commence work on the following Monday unless it received “something solid”. As will be seen, there may have been an element of bluffing in doing so. But by referring to “keep[ing] it formal”, Mr Bettar set the standard by which Hannas’ responses are to be judged for the purposes of determining whether a contract came into existence.

32. [69]

    At 1:15 pm the same day, 27 October 2023, Mr Webb responded to Mr Bettar and Mr Hanna as follows.

33. [70]

    The email was carefully worded. It did not express an intention to engage Hunt. Instead it referred to an intention “to progress with Hunt Collaborative”, that is, to negotiate further, in circumstances where Hannas sought a “detailed scope of works on your CM role” and proposed to interview the Hunt team the following Thursday. The references to reviewing the legal documents, to a formal letter of intent, and to the contract, all showed an unwillingness at this stage to give Mr Bettar the commitment that he had sought.

34. [71]

    Mr Bettar sent Mr Webb and Mr Hanna an email at 1:39 pm the same day, 27 October, addressing various aspects of Mr Webb’s email including trying to schedule the meeting at a different time. The email concluded by saying:

35. [72]

    This made explicit that in the absence of a letter of intent or confirmation received that day, Mr Bettar’s team would stop working on the project.

36. [73]

    Mr Bettar said at [39] of his affidavit made 16 May 2024, that after sending this email he had a telephone conversation with Mr Webb as follows:

37. [74]

    The assimilation of Mr Webb to RWC in that evidence may be put to one side.

38. [75]

    The critical email was then sent by Mr Webb of Hannas to Mr Bettar of Hunt at 2:47 pm on 27 October 2023. As noted above, the email was copied to Mr Hanna and to Mr Stephen Ogden, also of Hannas. The body of the email was as follows:

39. [76]

    Hunt submits that two features of the email are worthy of particular note. The first is that, “by its second paragraph, the email positively indicates ‘agree[ment]’ to the ‘commercial conditions’ noted in a ‘letter of offer’ sent to Mr Webb by Mr Bettar earlier that day (11:43 am)” (emphasis supplied).

40. [77]

    The fact that there might be “agreement” as to some commercial terms (in the sense that they were commercially acceptable to Hannas) is consistent with both the third and the fourth classes of case discussed above. The question remains whether, viewed objectively in all the circumstances, the 2:47 pm email indicated an intention to be immediately bound at all. The difficulty Hunt faces is that the 2:47 pm email was carefully worded to make clear that entry into any contract was a matter for the future.

    1. (1)

       The first paragraph expressed a present “intention” to send “a letter of intent early next week”. Although the potential contractual effect of a “letter of intent” would depend on its terms, of its nature, such a letter may well fall short of manifesting any intention to be immediately bound in contract. Here, the fact that the letter was to include “a draft contract to be used under the CM agreement” suggests that the letter was not itself to have contractual force. To the extent that the proposed letter was to “include[] the commercial agreement between both parties”, that would be consistent with the addition of further commercial terms beyond those “agree[d]” to date. The contours of what may be described as “commercial” terms are in any event elastic. For example, although located among the dispute resolution provisions of an agreement, a clause providing for the availability and extent of liquidated damages might have a significant bearing on a party’s commercial risk and be the subject of substantial commercial negotiation. As will be seen, the topic of liquidated damages does not appear to have arisen until 31 October 2023.

    2. (2)

       The statement in the second paragraph that “Hannas agree to the commercial conditions noted in your attached letter of offer” was not a statement that those were the only “commercial conditions” that would be the subject of any agreement. Instead, this statement acknowledged that such commercial conditions as had been identified in Hunt’s 27 October letter were commercially acceptable to Hannas and did not require further negotiation.

    3. (3)

       But the fact that the agreement as to those commercial terms was not to be immediately binding was made clear by the next sentence. That sentence expressed a present “intention” to execute a contract between Hannas and Hunt, but only “once a draft CM contract is agreed between both parties”.

    4. (4)

       That is, again, consistent with Mr Hanna’s insistence, to which Mr Bettar had referred in his 27 October letter, on keeping things formal.

41. [78]

    The second feature to which Hunt points is “the text of the penultimate paragraph”. Hunt submits that in the context:

42. [79]

    That submission should be rejected. Read objectively in the context of the preceding communications and the earlier parts of the 2:47 pm email itself, the language deployed — “the above should provide enough assurance for you to discuss the project with you[r] team and push forward” — has the opposite effect. The reason why the assurance Mr Webb was giving would have to be “enough” for Mr Bettar was that Mr Webb was saying, in effect, “I’m not giving you a contract”. An immediately binding agreement would have given Hunt complete assurance. The email made clear that the “assurance” that Mr Webb was offering fell well short of that. The only assurance Mr Webb was giving was that, in circumstances where certain commercial terms identified by Hunt were acceptable to Hannas, Hannas presently intended (i.e., expected) to proceed to enter a contract, but only after the parties agreed the terms of a draft construction management contract.

43. [80]

    Moreover, the words used were not “push forward with the project” (in the sense of acting as the appointed construction manager for the whole job). The words were instead simply “push forward”. The parties were still negotiating and exchanging pre-contractual information. For example, in his email sent at 1:15 pm on the same day, Mr Webb and asked Mr Hanna “Can you please work on a detailed scope of works on your CM role that can accompany the contract”. The words “push forward” are readily understood as referring to tasks of that kind, particularly given that Mr Bettar had said (a little more than an hour earlier than the 2:47 pm email in his email of 1:39 pm) that he would need to “cancel my workshop on the weekend” unless he received a “letter of intent and or confirmation today”.

44. [81]

    Hunt’s submission that the 2:47 pm email “communicated an agreement immediately to be bound by an obligation to pay Hunt for its work on the Project in accordance with the ‘agree[d]’ ‘commercial conditions’ albeit in circumstances where both parties expected that a more formal contractual documentation would be executed in due course” should be rejected.

45. [82]

    Read objectively, Mr Webb’s 2:47 pm email did no more than acknowledge agreement on some of the commercial terms, and express a present intention to execute a contract once the complete terms had been agreed. It did not manifest an intention to give rise to an immediately binding contract. Whether that was “enough assurance” for Hunt to take the risk of discussing the project internally and pushing forward was a matter for Hunt.

46. [83]

    The other strand in her Honour’s reasoning concerned the lack of consensus as to terms. By way of example, as to the reference to “the commercial conditions noted in your attached letter of offer” (i.e., Hunt’s 27 October letter), her Honour said at J[66] that those “commercial conditions” “did not include, for example, pay rates which could form the basis of a progress payment”. As noted above, Hunt relies on Mr Bettar’s statement in Hunt’s 27 October letter that the cost of the management staff to run the project “is as per our previous submission”. Even if that statement is taken to be a “commercial condition” that had been “noted” in the 27 October letter, so as to be understood objectively as falling within what was “agree[d]” in Hannas’ 2:47 pm email (which is contestable), the primary judge’s basic point that the “terms of an arrangement between RWC and Hunt had not been settled” (at J[66]) remains correct. In addition to the prospect that there might be further “commercial” terms, such as the liquidated damages referred to above, there would be much more to the terms of a construction management contract involving the kind of relationship in contemplation here than the limited number of “commercial conditions” identified in the 27 October letter. Some of the difficulties in this respect were exposed in argument:

47. [84]

    Senior Counsel for Hunt accepted in argument on the appeal that it was at least relevant to the question whether any contract was formed at all that various matters had not been agreed. Although the absence of agreement on all terms that might be relevant to the parties’ contractual relationship is not fatal — so much is acknowledged by the existence of the fourth class of case, which contemplates that additional terms may be agreed later — it militates against the conclusion that the parties intended to be immediately bound no later than 27 October 2023. Her Honour was right to find at J[64] that there was a lack of consensus as to terms.

48. [85]

    On an objective assessment of the communications and conduct up until 27 October 2023, there was, thus, no error in the primary judge’s finding that no contract came into existence.

49. [86]

    That conclusion is reached independently of the fact that any reference to RWC was absent from the parties’ communications until after 27 October 2023. The 2:47 pm email in particular was expressed in terms of Hannas’ own intention, not the intention of RWC or of some undisclosed principal. On their face, the communications do not suggest that Hannas was acting on behalf of any other party. Hunt needs to establish that that was in fact what was happening. For the reasons given earlier, Hunt has not done so.

50. [87]

    The parties’ subsequent conduct may also be taken into account in determining whether the parties intended immediately to be bound, and thus in determining the existence (as opposed to the terms) of a contract: Rose v Manno at [43] per Bell CJ (Mitchelmore and Adamson JJA agreeing). The same conduct is relevant to the allegation of, at least, a conventional estoppel. In this case, the matters on which Hunt relies are at most equivocal, and the subsequent conduct as a whole (including the absence of complaint by Hunt that RWC or Hannas was departing from any contract) is inconsistent with the existence of any contract (or, indeed, with the proposition on which the alleged conventional estoppel is founded, namely, that the Plaintiff and the Defendant conducted themselves on the basis that such an agreement had been reached).

51. [88]

    Hunt relies on the primary judge’s finding at J[67]:

52. [89]

    That finding is supported by evidence of various communications between the parties in November 2023, not all of which need be addressed. Hunt submits that the finding is consistent with the proposition that a contract had been concluded by 27 October 2023. So much may be accepted. But Hunt’s further submission, that it is difficult to articulate a plausible alternative characterisation of the communications between the parties, should be rejected. So too should Hunt’s more particular submission that “RWC’s case seems to be Hunt was performing voluntary work for it for several weeks in the forlorn hope of eventually concluding a contract with it”. To the extent that, as the primary judge appears to have found, Hunt performed work (being the provision of services of the kind provided by a construction manager) at the request of Hannas after 27 October, those circumstances would give rise to at least an arguable claim in quantum meruit, and Hunt might be taken to have known that. In those circumstances, one could not characterise Hunt’s work as “voluntary”. And it would also be rational for a construction manager in Hunt’s position, having come as far as it had, to leverage the advantages of practical (if not yet legal) incumbency in order to secure the contract which it sought.

53. [90]

    It is commonplace when contracting for construction work for the would-be contractor to incur expense (e.g., in preparing a tender) while carrying the risk that no agreement will be reached: K Mason, JW Carter and GJ Tolhurst, Mason & Carter’s Restitution in Australia (5th ed, 2025, J W Carter Publishing Pty Ltd) at [1034]-[1035]. Clearly enough, this was the position until 27 October. Any activities to be performed by Hunt contemplated by Mr Webb’s reference to “push[ing] forward” fall into a similar category. Mr Webb’s statement appears to have been directed to internal work to be undertaken by Hunt: “the above should provide enough assurance for you to discuss the project with you[r] team and push forward.”

54. [91]

    However, on the facts of any given case, a point may come at which the party requesting the work takes on “the risk of liability in contract or restitution if the contemplated contract does not materialise”: Mason & Carter’s Restitution in Australia at [1035]. As will be seen, after 27 October Hunt, in response to specific requests by Hannas, undertook the work of a managing contractor, in circumstances that may well have given rise to a restitutionary entitlement. But a claim in quantum meruit was no part of Hunt’s amended statement of claim, whether as a free-standing cause of action, or as an element in an argument directed to establishing the existence of a “construction contract” within the meaning of the Act — as to which, see below. Moreover, Hunt accepted at the hearing of the appeal that on its pleaded case the contract (in the ordinary common law sense) was entered into no later than 27 October 2023. Putting to one side the possibility of an overarching “other arrangement” reached by 27 October, that pleading foreclosed a case in which the “construction contract” (within the meaning of the Act) was “a series of separate contracts in the common law sense” entered after 27 October: Tcpt, 25 August 2025, 83.17-31. The same was true of a case based on separate requests for work after 27 October giving rise to an entitlement in quantum meruit, understood as quasi-contract.

55. [92]

    Aspects of the communications after 27 October 2023 are also inconsistent with any contract at all (including one in the “fourth class”) being on foot (or with the parties proceeding on the assumed premise that a binding contract was on foot).

56. [93]

    On Tuesday 31 October 2023, Mr Bettar sent an email to Mr Webb and Mr Hanna confirming the discussion of various matters at a meeting that day. These included a discussion about different issues that had arisen about retention. Mr Bettar stated: “All in all, it was agreed that this all needs to be looked at together.” Mr Bettar also stated: “You brought up LD’s [liquidated damages]. I said I have never ever ever heard of LD’s being applied on a CM job. Its crazy and illogical. … Obviously, we need to sort this as well. I know you need to satisfy the bank in terms of incentive, but this is not normal. … Anyway, lets sort something out as this is very bizarre.” The fact that there was no agreement even in principle about basic matters such as retention and liquidated damages is inconsistent with the proposition that the parties had already agreed to be immediately bound four days earlier. Towards the end of the same email, Mr Bettar asked: “We are obviously working on your job full time, started as of yesterday. Obviously, I expect my PM and Project Engineer etc will be paid from Monday the 30th on, till we get on site, correct?” It is difficult to see why Mr Bettar would be asking that question if there was already a contract on foot addressing the basis on which those personnel were to be paid.

57. [94]

    Although Mr Webb specifically responded to other aspects of Mr Bettar’s 31 October email on 2 November (including affirming the need for liquidated damages), he did not traverse the query about payment from Monday 30 October. Mr Webb’s silence on that point is neutral for present purposes because silence was ambiguous in the circumstances. It was consistent with the existence of a contract already on foot; but also with the proposition that Hunt would be paid on the basis of quantum meruit; and also with an unwillingness on Hannas’ part to commit even to paying the Hunt staff who were already at work on the job.

58. [95]

    On 3 November 2023, Hannas sent the first draft of the contract (between RWC and Hunt) to Hunt. That set out the scope of services in considerable detail. Whether or not that scope would be considered a “commercial” term, it would certainly be open to be negotiated. Importantly, Part C identified the “Management Fee” for the project as “the fixed lump amount of $1,200,000.00 + GST on account of preliminaries, off-site management, on-site costs (including supervision), overheads and profit”. That was different from what Hunt submits was the position outlined in Mr Bettar’s letter of 27 October 2023, namely, 5.5% of the costs, plus the cost of onsite personnel at weekly rates. These were, on any view, “commercial” terms, and (as will be seen) even they were still being negotiated.

59. [96]

    Also on 3 November 2023, Mr Walter Galizia of Hunt emailed Mr Webb of Hannas, asking, “James, please confirm if I can start contacting subcontractors for Brookvale”. There was some suggestion in submissions that “contacting” might be a typographical error for “contracting”. On either reading, the fact that Mr Galizia was asking the question was inconsistent with the existence of a binding agreement for Hunt to manage the project, or any belief that there was such an agreement. Mr Webb’s response on 6 November (“Confirming you can speak with the sub-contractors”) gave permission to Mr Galizia to do so. That is also inconsistent with the existence of any contract by which RWC gave Hunt the authority to manage the project.

60. [97]

    On 8 November 2023, Mr Bettar emailed Mr Ogden, Mr Webb and Mr Galizia about the draft contract. He said, “So much for a standard contract. Hoping its reasonable.” Although that language can be accommodated within Hunt’s submission that the contract formed on 27 October 2023 was within the fourth class described above, the absence of any reference to a contract on foot is at least as readily seen as inconsistent with the existence of any contract.

61. [98]

    Also on 8 November, Mr Webb sent an email to Mr Bettar among others requesting that Hunt provide a “reverse brief” of value engineering recommendations “in the form of an RFI/Design changes schedule” (“RFI” meaning, apparently, a request for information). Hunt submitted that this email gave rise to an implied promise of some kind to pay for the work. Again, so much may be accepted. But that says nothing either way about the position whether a contract had already been entered as at 27 October 2023. Indeed, as was pointed out in argument, the outcome of the value engineering exercise might affect the price and also whether Hunt would get the job. Particularly in circumstances where the parties were simultaneously negotiating the terms of a written agreement, this email is at most neutral as to the existence of a contract as at 27 October.

62. [99]

    On 13 November 2023, Mr Bettar sent an email to Mr Webb, Mr Ogden and Mr Galizia of Hannas, copying Mr Hanna, concerning the draft contract. He complained:

63. [100]

    Mr Galizia then sent the same group of people a set of marked up comments on the contract. This included a radical redrafting of Part C’s “Management Fee” as follows, together with a comment:

64. [101]

    At this point, it was clear not only that the parties had not reached agreement on the terms of the formal written agreement, but also that they were worlds apart on key commercial terms. While Hunt’s comment referred to “all the documentation and chats”, that is, the negotiations, there was no assertion of a binding agreement governing the Management Fee. Instead, the subject was effectively treated as one for further negotiation. And the comment about “the $1.2M” indicated that there was real scope for confusion as to what had been communicated earlier on the central issue of Hunt’s remuneration.

65. [102]

    Compared to the importance of the communications up to and including 27 October 2023, the significance of subsequent material of this kind (i.e., what was and was not said) is limited, particularly in relation to the question whether the parties entered a binding contract. But it is inconsistent with either formulation of the estoppel for which Hunt contends.

66. [103]

    Hunt also relies on evidence that Mr Galizia attended a design meeting on 16 November 2023 at Hannas’ head office at which various tasks were allocated to Hunt. For example, the minutes of the meeting state “Hunt to produce program for design”, and identify the person to whom that “Action” is assigned as “WG”. Hunt submits that this is evidence of the parties mutually proceeding on a basis that there was some kind of legal relationship between them, in the nature of a contract, that involved Hunt doing work and being entitled to be paid for it. But the conduct of the parties is also consistent with one or the other or both of the following possibilities. First, that Hunt was doing work in the expectation of a contract being entered in the future. Secondly, that Hunt would be entitled to be paid on a restitutionary basis if such a contract did not eventuate.

67. [104]

    That second possibility is consistent with what occurred when Mr Bettar sought to bring matters to a head on 1 December 2023. He sent an email to Mr Hanna which gave an account of the parties’ negotiations and the economics of the project from Hunt’s perspective. The email included the following two statements (which were not anchored as to time): “The deal was essentially agreed on fundamentals”, and “We started our works in good faith.” Notably, Mr Bettar did not assert that any binding contract had been entered. To the contrary, that language conveys that while the parties may have reached an in-principle agreement as to commercial terms, Hunt had performed work “in good faith”, that is, unprotected by rights in contract. Later in the email, Mr Bettar said:

68. [105]

    The words, “tell me immediately to stop”, are inconsistent with Hunt’s having any right in contract or otherwise to treat RWC as bound to Hunt. And the words, “we can formulate costs and amicably split”, were not referable to remuneration on an expectation basis in accordance with the fee structure in the contract that Hunt now asserts. Instead, those words are consistent with a reliance or restitutionary entitlement.

69. [106]

    There followed inconclusive communications on 6 December 2023 between Mr Bettar and Mr Webb (Mr Hanna apparently being on leave). Mr Bettar sought confirmation of various “things previously understood as agreed”, including, for example, what was included in the $1.2 million fee. Mr Webb responded, “as you can appreciate, I will need to defer to Danny for all commercial sign-offs as I have not been in all of your discussions of late. He should have reception towards the end of the week.”

70. [107]

    On Friday 8 December 2023, Mr Bettar emailed Mr Webb, saying that he had instructed Mr Galizia to cancel all meetings going forward. He said, “Post Monday if I have not heard I will do the right thing and email all people informing of my position and submit costs”. The reference to submitting costs was again inconsistent with any contractual entitlement.

71. [108]

    Any lingering hope that the parties might reach agreement was extinguished on 11 December 2023. Mr Hanna and Mr Bettar both gave affidavit evidence of a conversation they had that day. Hunt said that it did not ask the Court to choose between the two accounts, which it described as slightly different. Hunt directed the Court to Mr Hanna’s evidence in which he said the conversation included the following:

72. [109]

    Mr Bettar’s account of this part of the conversation was not materially different (putting to one side the assimilation of Mr Hanna to RWC):

73. [110]

    On either version, Mr Bettar proposed to submit a claim covering Hunt’s costs incurred, and Mr Hanna proposed that they be paid, provided that the claim was reasonable. Neither party was proceeding on the footing that there was a binding agreement on foot between them.

74. [111]

    On 13 December 2023, Mr Bettar emailed Hunt’s Progress Claim No 1 in the sum of $157,102 (excl GST) to Mr Hanna and Mr Webb. This was calculated as a claim for costs incurred (being various staff at certain rates over certain periods), plus “Office overheads 10%”. Calculated in that way, the claim was not referable to the fee structure in the contract that Hunt now asserts.

75. [112]

    On 15 December 2023, Mr Hanna responded, “I did say don’t submit something that is insulting!”

76. [113]

    On 20 December 2023, Mr Bettar sent an email to Mr Hanna, copying Mr Webb and Mr Galizia, stating that he had asked Mr Galizia to “redo the claim in relation to the contract that we have”. He described the earlier progress claim as “a time and motion charge”.

77. [114]

    Mr Galizia then sent an email on 21 December 2023 to Mr Webb, copying Mr Hanna and Mr Bettar, and attaching Progress Claim No 1A (which was said to supersede Progress Claim No 1 dated 13 December 2023). This claim was in the sum of $232,472 (incl GST), and was expressed to be made under the Act. It included what was described as a “P and O Charge” of $120,000 (excl GST), calculated as 10% of a “P&O charge agreed at $1.2m”, on the basis that 6 weeks were being charged of a 60 week program, being 10%.

78. [115]

    The assertion of the existence of a contract at that late stage, after the parties’ relationship had collapsed, does not assist in determining whether there was a contract on foot no later than 27 October 2023.

79. [116]

    There was no error in the primary judge’s finding that no contract came into existence. In the communications in the period running up to Mr Webb’s 2:47pm email on 27 October 2023 the parties insisted on formality. There was no sign of a mutual intention to be bound in contract short of the execution of a formal contract. Mr Bettar was endeavouring to take advantage of the tight timeframe to persuade Mr Hanna and Mr Webb to commit to a contract. He failed to do so. Hunt then continued to be involved and to do work at Hannas’ instruction, taking the risk that the contract negotiation which continued might not be successful. No doubt Mr Bettar had reason to expect that Hunt would be paid at least for the work it had done. That was consistent with the conversation between Mr Bettar and Mr Hanna on 11 December 2023 about payment of Hunt’s reasonable costs. But there is no basis in the material available for use on an objective assessment of the parties’ communications and conduct, whether up to or after 27 October, to conclude that the parties had agreed to be immediately bound in contract no later than that date.

Grounds 2 and 3 — conventional or promissory estoppel

1. [117]

   Senior Counsel for Hunt fairly acknowledged that it was likely that if Ground 1 was not made out, it would be difficult for Hunt to succeed on Grounds 2, 3 and 4. That acknowledgement was rightly made.

2. [118]

   The amended statement of claim pleaded in the alternative to the claim in contract that “the Plaintiff and the Defendant conducted themselves on the basis that an agreement had been reached for the Plaintiff to carry out [construction management services] on the Project” (at par 9), and alleged that “the Plaintiff and Defendant accepted that common assumption as being true” (at par 10). There followed particulars of various communications and meetings in the period 31 October to 30 November 2023. The effect of the estoppel would be to prevent RWC from denying the existence of a common law agreement.

3. [119]

   The premise that the parties conducted themselves on the basis of a common assumption that a contract had been entered must be rejected, substantially for the reasons given above when addressing the parties’ supposedly post-contractual conduct.

4. [120]

   The further allegations (at pars 13 and 14) that RWC knew or intended that the plaintiff would rely on the common assumption as being true, and that Hunt would suffer detriment if RWC was allowed to resile or depart from that common assumption, should also be rejected. The first allegation is not supported by evidence. The latter allegation must confront the fact that it was open to Hunt to bring a restitutionary claim which (no doubt for sound forensic reasons) it did not bring.

5. [121]

   More generally, Senior Counsel for Hunt confirmed that the agreement the subject of the alleged common assumption was essentially the same alleged early works contract that was the subject of Ground 1. The same difficulties with that contract identified above, including the lack of consensus as to terms, translate into corresponding problems with the proposition that the parties conducted themselves on the basis that such a contract was in existence.

6. [122]

   Ground 2 is not made out.

7. [123]

   The amended statement of claim pleaded in the alternative at par 16 that “by its email dated 27 October 2023 (2:47pm), the Defendant represented that it would accept the terms proposed by the Plaintiff in relation to the performance of [construction management services] on the Project (the Representation).” (Emphasis supplied.) For substantially the same reasons given above in relation to Ground 1 as to why Hannas’ conduct did not evince any intention to be bound, there was no such representation before, on or after 27 October 2023.

8. [124]

   Hunt also pleaded at par 17 that “[i]n reliance on the Representation, the Plaintiff conducted itself on the basis that an agreement had been reached for it to perform [construction management services] on the Project”. (Emphasis supplied.) In the circumstances of the parties’ communications, no reliance by Hunt (on whatever representation it might have perceived to have been made) could have been reasonable.

9. [125]

   It was alleged at par 19 that it would be unconscionable to allow RWC to resile from the representation. The estoppel pleaded at pars 16, 17 and 19 was directed to preventing RWC from denying the existence of a common law agreement, i.e., that “an agreement had been reached”: at par 17. However, in argument in this Court, Hunt put the promissory estoppel rather differently: “Sitting within the 27 October critical email is, we say, a promise that you can push forward with the job and you'll at least be paid a reasonable price”: Tcpt, 25 August 2025, 46.25-27. Even if Hunt were permitted to depart from its pleading as to the formulation of the estoppel in that way, the claim would face two difficulties. First, again for the reasons given above, there was no promise to pay conveyed by the 27 October email. Read as a whole, the email did no more than express a present intention, leaving it to Hunt to decide whether it wished to take the risk of “pushing forward”.

10. [126]

    Secondly, an estoppel in that form is not directed to preventing RWC from denying a common law agreement. Instead, it might at most lead to RWC’s being estopped from denying that Hunt was entitled to be paid a reasonable price for work performed. (If so, it is not obvious how the estoppel would add to a right to bring a claim in quantum meruit). For such an estoppel to avail Hunt under the Act, it would have to be accommodated within the rubric of s 4’s extended definition of a “construction contract” as an “other arrangement”. That was how the estoppel was advanced on appeal (Tcpt, 25 August 2025, 46.38, 47.5). That argument is addressed under Ground 4 below.

11. [127]

    Ground 3 is not made out.

Ground 4: an “other arrangement”

1. [128]

   The definition of “construction contract” in s 4 is “a contract or other arrangement under which one party undertakes to carry out construction work, or to supply related goods and services, for another party”.

2. [129]

   Hunt submitted that it was open to it to advance a case that such an “other arrangement” existed as at 27 October. However, Hunt accepted that it would have to be an “other arrangement” reached on 27 October.

3. [130]

   This argument faces a number of difficulties.

4. [131]

   First, it is outside the pleading. As the primary judge said at J[65]: “the Amended Statement of Claim does not plead an ‘other arrangement’”. The amended statement of claim put the case in three ways, all of which were directed to the existence of a common law contract for the purposes of the definition in s 4.

   1. (1)

      Paragraph 8 alleged that “by no later than 27 October 2023 there was an agreement between the Plaintiff and the Defendant for the Plaintiff to perform construction management services (the Services) for the Project”.

   2. (2)

      Paragraph 9 alleged that “the Plaintiff and the Defendant conducted themselves on the basis that an agreement had been reached for the Plaintiff to carry out the Services on the Project.” Paragraph 15 alleged that it would be unconscionable to allow the Defendant to resile or depart from the common assumption that there was such an agreement. The effect of the conventional estoppel would thus be to permit Hunt to proceed on the footing that there was a common law contract on foot.

   3. (3)

      As noted above, the effect of the promissory estoppel pleaded at pars 16, 17 and 19 would again be to prevent RWC from denying the existence of a common law agreement, i.e., that “an agreement had been reached”.

5. [132]

   The pleading at par 21 was then:

6. [133]

   All three of the pleaded bases by reason of which there was alleged to have been a “construction contract” within the meaning of s 4 depended either on the existence of a contract at common law, or (what amounted to the same thing) on RWC’s being estopped from denying the existence of a contract at common law. There was no suggestion in the pleading of some “other arrangement” that did not involve a contract at common law. No such conclusion was stated; still less were any material facts pleaded.

7. [134]

   It is significant in this regard that the extended definition in s 4 requires that the “other arrangement” be one “under which one party undertakes to carry out construction work, or to supply related goods and services, for another party”. Similarly, the statutory right “to receive a progress payment” in s 8(1) is conferred on “A person who, under a construction contract, has undertaken to carry out construction work or to supply related goods and services”. Section 8(1) engages the mechanics of the Act, including the s 13(1) right to serve a statutory payment claim.

8. [135]

   Where a party wishes to rely on the extended definition in s 4, the party must plead the material facts said to constitute the non-contractual “arrangement”. The material facts include the basis on which the party alleges that it had “undertake[n]” to carry out any work or to supply any goods and services. The amended statement of claim contains no allegation that Hunt had “undertake[n]” to perform work or supply services on any basis other than pursuant to a contract at common law.

9. [136]

   It follows that even if Hunt were permitted to depart from its pleaded case in the amended statement of claim so as to be permitted to advance the alternative formulation of the promissory estoppel identified above (“a promise that you can push forward with the job and you'll at least be paid a reasonable price”), that would still not satisfy Hunt’s pleading obligation with respect to a s 4 “other arrangement”. That is because the alternative formulation of the estoppel does not allege even as a conclusion that Hunt undertook to perform any work, still less any material facts going to that conclusion.

10. [137]

    Notwithstanding the deficiency in the pleading, the primary judge appears to have heard argument with respect to the possibility of an “other arrangement”: see at J[68]-[69]. Hunt’s written submissions canvassed such an arrangement. But her Honour concluded at J[69] that the case for such an “arrangement” was not made out: “Hunt did not identify, in its pleadings or its submissions, the basis upon which it asserted that it had an arrangement with Hannas or RWC for the performing of the tasks it performed between 30 October 2023 and 8 December 2023 for reward.” There was no error in that conclusion.

11. [138]

    The primary judge also referred at J[68] to conflicting authority as to whether an “other arrangement” must involve legally enforceable obligations, being Ball J’s decision in Lendlease Engineering Pty Ltd v Timecon Pty Ltd [2019] NSWSC 685 and Henry J’s decision in Crown Green Square Pty Ltd v Transport for NSW [2021] NSWSC 1557. Ball J held that “the relevant arrangement must give rise to a legally binding obligation, although, of course, that obligation need not be contractual in nature”: at [87]. His Honour contemplated, as an example of a non-contractual obligation, “conduct giving rise to an estoppel”: at [67]. One of the reasons which Ball J gave for that conclusion was that “there is no obvious principle that can be applied in drawing the dividing line between arrangements that do not give rise to legal obligations but nevertheless are treated as arrangements for the purposes of the SOP Act and those that are not”: at [86].

12. [139]

    Henry J declined to follow Lendlease: at [165]. Her Honour ultimately held at [170]:

13. [140]

    It is not necessary, and in circumstances where the issue received little attention in the parties’ submissions it would not be appropriate, for this Court to resolve the conflict in these lines of authority, if indeed there is any true conflict. It suffices for present purposes to note that the parties effectively proceeded on the footing that one or the other of them was correct. If that is so, whichever test is applied, there was no “other arrangement” for the purposes of s 4 on the pleadings.

    1. (1)

       If Lendlease correctly states the law, the only legally binding obligations alleged were those arising in contract or estoppel and rejected above. There was no other legally binding obligation alleged as part of any “other arrangement”.

    2. (2)

       If Crown Green Square correctly states the law, the only “concluded states of affairs” between Hunt and RWC “involving some element of reciprocity or acceptance of mutual rights and obligations” on the pleadings were those alleged in contract or estoppel, which were again rejected above.

14. [141]

    There was some discussion at the hearing of the appeal about whether facts giving rise to a right to make a restitutionary claim in quantum meruit could constitute, or at least be an element of, some “other arrangement” for the purposes of the Act. It is not necessary to consider that question for two reasons. First, there was no pleading to that effect; nor was the case put that way at first instance. Secondly, Hunt’s case was that the s 4 “construction contract” existed no later than 27 October 2023. Hunt accepted at the hearing that any “other arrangement” would have to have been reached on 27 October. But there is no suggestion, either in the pleadings or in the evidence, of any facts that could give Hunt a right to claim in quantum meruit until after 27 October. On any view, the parties were in negotiations up until that time. And, of the matters particularised in the amended statement of claim in support of the claim based in conventional estoppel, none involves the performance of any services by Hunt, or any request for such work by Hannas or RWC, before 31 October: see the particulars to par 10.

15. [142]

    Ground 4 is not made out.

Conclusion on Grounds 1 to 4

1. [143]

   The argument proceeded on the basis that unless Hunt established one or more of Grounds 1 to 4, it could not succeed on the appeal (leaving aside Ground 9 relating to costs). Hunt having failed to do so, the appeal must be dismissed.

Grounds 5, 6, 7 and 8

1. [144]

   That being so, it is unnecessary to consider these grounds of appeal. It suffices to make the following observations.

2. [145]

   Grounds 5 and 6 are directed to the primary judge’s finding that Hunt’s 21 December 2023 progress claim “does not identify in a reasonable way the particular work in respect of which the claim is made” (J[84]), so as to fail the requirement in s 13(2)(a) that “A payment claim— (a) must identify the construction work (or related goods and services) to which the progress payment relates”.

3. [146]

   In this case, the progress claim was not in respect of construction work but in respect of related services. The claim identified:

   1. (1)

      in general terms the nature of the services (“construction/project management services”; “Costs to close out the project & collate documents”; “Extraordinary Costs” of “termination” of two staff; and “P and O Charge”);

   2. (2)

      the person performing the service;

   3. (3)

      the person’s title (such as “Project Manager” or “Site Clerk”);

   4. (4)

      the number of units of time the person spent performing the service (expressed in weeks or days);

   5. (5)

      the rates per unit of time for those persons; and

   6. (6)

      the total amount claimed for the services of that person (although in some cases in place of a figure were the words “in P & O”, conveying that these costs were part of the charge for overhead).

4. [147]

   There is much to be said for the proposition that, particularly given that this was a claim for services, the matters identified in the progress claim sufficiently identified the construction work or related services to which the progress payment related, so as to constitute a valid payment claim for the purposes of s 13(2)(a). See, WNA Construction Pty Ltd v Canberra Building and Maintenance Pty Ltd [2025] ACTCA 17 at [129] per McCallum CJ, Loukas-Karlsson and Baker JJ. The fate of such a claim, formulated in that way, would be a matter for an adjudicator.

5. [148]

   Ground 7 was directed to the primary judge’s finding at J[89] that RWC was not served with the payment claim. This ground is not made out in circumstances in which the payment claim was not sent to RWC itself but was instead sent to Hannas, and Hunt has not established on the balance of probabilities that Hannas was RWC’s agent for that purpose.

6. [149]

   Ground 8 contends that in circumstances where RWC did not provide a payment schedule to Hunt within 10 business days after the date on which Hunt alleged the payment claim was served on RWC, the primary judge should have given judgment accordingly in favour of Hunt. This ground is expressly premised on the success of at least one ground in each of the three earlier sets of grounds. As that premise is not made good, this ground is not made out.

Ground 9: indemnity costs

1. [150]

   This ground is independent of the others. It attacks the primary judge’s exercise of the costs discretion by which her Honour ordered, in a separate judgment, that Hunt pay RWC’s costs of the proceedings including the costs of the costs application, on the indemnity basis: Bettar Holdings Pty Limited trading as Hunt Collaborative ACN 050061946 v RWC Brookvale Investments Pty Ltd as trustee for Brookvale Development Trust ABN 42359186969 ACN 670150437 no 2 (costs) [2025] NSWDC 91 (J2).

2. [151]

   The parties proceeded on the basis that leave to appeal on this independent ground was not required: see Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106 at [83]-[84] per Leeming JA (Bell CJ and White JA, agreeing).

3. [152]

   The statement of claim was filed on 23 February 2024: J2[5]. Although part of her Honour’s consideration concerned a Calderbank offer sent on 25 July 2024 by the solicitors for RWC to the solicitors for Hunt, her Honour’s indemnity costs order was not confined to the period after that offer was made. Instead it was made on the indemnity basis in relation to the entire proceedings: J2[27]. That was because her Honour considered that “[t]he plaintiff’s claim under the Act was doomed to fail” (at J2[25]), and that “[i]t should have been clear to the plaintiffs prior to the filing of the statement of claim that a claim under the Act based on the 21 December 2023 claim could not succeed.”

4. [153]

   In my respectful opinion, the primary judge erred in so ordering. Central to her Honour’s exercise of discretion was her conclusion that Hunt’s claim was always doomed to fail in the sense that, as her Honour put it at J2[23], the case was “without substance”, “groundless”, “fanciful or hopeless” or “so weak as to be futile”. Those are all different ways of expressing an evaluative conclusion that the proceeding was so obviously lacking in merit that it should not have been brought. Having identified the relevant principles, her Honour’s reasons for concluding that Hunt’s claim fell into that category were expressed as follows:

5. [154]

   Her Honour thus articulated that the plaintiff’s claim was not made out. In so doing she referred to and relied upon her principal judgment. However, her Honour did not articulate why the claim was doomed to fail in the sense that it was always obviously lacking in merit. That the claim failed was the start of analysis on the issue, not the end of it. This approach constitutes House v The King ((1936) 55 CLR 499; [1936] HCA 40) error either or both because her Honour misdirected herself in considering that her earlier rejection of the claim necessarily meant that it was doomed to fail in the relevant sense, or because her Honour gave inadequate reasons for her conclusion (which is legal error).

6. [155]

   This Court is in a position to re-exercise the discretion itself. There is no doubt that costs should follow the event. I am not persuaded that Hunt’s claim under the Act was doomed to fail in the sense that it should not have been brought, responding to the points her Honour made as follows:

   1. (1)

      Her Honour referred, first, to the conclusion that the 21 December 2023 payment claim did not comply with the Act. Although it was not necessary to decide this issue on the appeal, as noted above, there is much to be said for the contrary view.

   2. (2)

      Secondly, her Honour noted that the payment claim was not served upon RWC as required by the Act. As noted above, the question of agency was not straightforward in this Court. Although it has not been necessary to address Hunt’s arguments as to whether, for example, RWC “specified” an email address for the service of payment claims for the purpose of s 31(1)(d) of the Act, if the agency point had fallen in Hunt’s favour it was fairly arguable that RWC had been served.

   3. (3)

      Thirdly, her Honour said that there was no agreement or arrangement between the parties as required by the Act. Although that question should be answered adversely to Hunt, the extent of analysis above demonstrates that it was fairly arguable. The primary judge’s conclusion that there was “no proper basis” for the claim under the Act on that ground should not be accepted.

7. [156]

   In the absence of a conclusion that the proceedings were doomed to fail in the requisite sense, the remaining question is whether the Court should depart from ordering costs on the ordinary basis in light of the Calderbank offer.

8. [157]

   The Calderbank offer sent on 25 July 2024 on behalf of RWC was an offer to pay $33,000 “in full and final satisfaction of your client’s proceedings”. Hunt would have done far better to accept that offer than to proceed with the litigation, lose at first instance and in this Court, and be ordered to pay the costs in both courts. But that is not the test. The question is whether, accepting that Hunt’s claim was not unarguable, it was nevertheless unreasonable in all the circumstances for Hunt not to accept the offer. That is a question on which reasonable minds might reasonably differ.

9. [158]

   RWC’s 25 July 2024 letter addressed the defects in the claim in detail: J2[6] and [21]. At the time that offer was sent, the proceedings had been on foot for some five months. The evidence on the primary question — whether there was a “construction contract” — was fundamentally documentary, consisting of communications to which Hunt was a party. The difficulties in that material were apparent on its face. In those circumstances the 14 day period for which the offer remained open was sufficient. And given that Hunt’s claim for a statutory debt was all or nothing, RWC’s offer of $33,000 was not a mere invitation to Hunt to capitulate. Hunt’s claim faced several hurdles. In circumstances where RWC had explained why the claim was weak, Hunt was in a position to assess the merits of the offer, and the offer involved a real compromise, it was unreasonable for Hunt not to have accepted that offer. That being so, costs should be ordered on the ordinary basis until 24 July 2024, and on the indemnity basis thereafter.

Costs in this Court

1. [159]

   Although Hunt has succeeded on Ground 9, there was very little argument directed to that ground. Hunt has otherwise failed on the appeal, and costs should follow the event.

Orders

1. [160]

   The orders I propose are as follows.

   1. (1)

      Allow the appeal as to Ground 9.

   2. (2)

      Set aside order (1) made by the primary judge on 28 March 2025, and in lieu thereof order:

   3. (3)

      Otherwise dismiss the appeal.

   4. (4)

      The appellant is to pay the respondent’s costs of the appeal on the ordinary basis.