Freeman v Londish

1. [1]

   There are occasions when experienced people of business enter into a handshake deal, never confirmed in writing, with enormous financial implications. There are also occasions when those business people fall out, where they disagree about what was said in a vital conversation in which, depending whose version is to be preferred, one or other of them repudiated their agreement.

2. [2]

   This is such a case.

3. [3]

   In December 2010 Mr Robert Freeman and the late Mr Sidney Londish entered into an oral joint venture agreement to purchase and develop land at Woodend in Victoria into a retirement village. I will refer to the planned development as the “Project” and the oral joint venture agreement as the “Oral JV”.

4. [4]

   The land was owned by Mr Londish’s brother, Mr Ivan Londish. To avoid confusion, and without intending any disrespect, I will refer to Mr Ivan Londish simply as “Ivan”.

5. [5]

   A company controlled by Mr Londish, Tiffany Developments Pty Ltd, held a planning permit in respect of the land. Subject to the ongoing requirements of the Macedon Ranges Shire Council, the permit allowed construction of a retirement village on the land.

6. [6]

   Mr Londish predicted that the Project would cost some $80 million and that its end value would be some $124 million.

7. [7]

   Ivan agreed to make the land available for the purpose of the joint venture. After his death in March 2012 his widow, Mrs Marie Londish, made the same commitment.

8. [8]

   At the time of the Oral JV Mr Londish did not have access to funds to prosecute the development because of his involvement in a matrimonial dispute.

9. [9]

   Mr Freeman agreed to advance $1.25 million on an unsecured basis to the Project.

10. [10]

    It was agreed that Mr Freeman’s advance would be repaid to him as a priority from the proceeds of the Project. Mr Freeman was also to be entitled to receive 50 per cent of the net profits of the Project plus commissions from selling units proposed to be included in the retirement village.

11. [11]

    The men pursued the Project and Mr Freeman advanced some $725,000.

12. [12]

    The Project required further capital. After a number of unsuccessful attempts to raise capital privately, Mr Freeman and Mr Londish agreed to try and raise the funds from the public through an Initial Public Offering.

13. [13]

    On 28 December 2013 Mr Freeman and Mr Londish had a conversation that led to the end of the Oral JV.

14. [14]

    The key dispute in these proceedings is what was said during that conversation. Each of Mr Londish and Mr Freeman allege that the other repudiated his obligations under the Oral JV.

15. [15]

    Thereafter Mr Londish caused another company controlled by him, Prestige Estates (Vic) Pty Ltd, to purchase the property from Ivan’s widow’s estate (as Mrs Londish had then also died).

16. [16]

    Prestige bought the property in February 2016 for $5 million and sold it in December 2016 for $7.5 million. Between those two dates Prestige expended funds allegedly improving the property, but without constructing the proposed retirement village.

17. [17]

    Mr Freeman brings these proceedings to recover the $725,000 he advanced.

18. [18]

    Mr Londish, then aged 94, died prior to final submissions. The case proceeded against a representative of his estate.

19. [19]

    Mr Londish had brought a cross-claim against Mr Freeman. That cross-claim was not pursued in final submissions.

Decision

1. [20]

   Mr Freeman is entitled to recover the amount he advanced, plus interest.

Credit

1. [21]

   This case turns on what was said between Mr Freeman and Mr Londish on 28 December 2013.

2. [22]

   Each man made a note of the conversation. Each has a different recollection of what was said.

3. [23]

   I accept the submissions made by Mr Silver, who appeared for Mr Freeman, that Mr Freeman presented as a cooperative, careful witness trying to assist the Court when giving his evidence.

4. [24]

   Mr Londish presented as a less reliable witness. That is understandable. He was 94 and in extremely poor health when he gave evidence. He gave his evidence from a wheel chair. He required an assisted breathing apparatus and was obviously in great discomfort throughout his cross-examination. He was for the most part alert but at times confessed to having an incomplete recollection of events. On other occasions he was adamant about the correctness of his recollection. He was, clearly, gravely ill when he gave his evidence.

5. [25]

   As I discuss below, Mr Londish’s recollection, as at December 2013, of what had been said between he and Mr Freeman in April 2013 concerning the funding for the earthworks for the Project was astray, and inconsistent with his later email communications with Mr Freeman.

6. [26]

   Further, his recollection of what was said on 28 December 2013 evolved in a number of ways, some critical, from the record he made shortly after the meeting.

7. [27]

   These matters suggest a tendency on Mr Londish’s part to confuse, over time, what was actually said with what he may have wished had been said.

8. [28]

   For those treasons, I have approached a number of aspects of his evidence with caution.

Negotiations with Ivan about the land

1. [29]

   Before turning to the terms of the Oral JV, I will mention a number of matters concerning dealings between Mr Freeman, Mr Londish and Ivan concerning the Woodend property.

2. [30]

   On 15 December 2010 Mr Londish, Mr Freeman and Ivan agreed that Ivan would grant Mr Londish and Mr Freeman an option to purchase the land, subject to the parties reaching and executing a formal agreement. No such agreement was executed.

3. [31]

   On or about 15 August 2011 Ivan withdrew his offer to grant Mr Londish and Mr Freeman an option to purchase the land. Instead he offered to sell the land to Mr Londish and Mr Freeman for $7 million.

4. [32]

   In mid August 2011 Mr Londish proposed, and Mr Freeman agreed, that:

5. [33]

   At around that time, a written draft of the joint venture was prepared for execution by each of Mr Londish, Mr Freeman, GLE and a company associated with Mr Freeman, Falmouth Holdings Pty Ltd.

6. [34]

   That document provided:

7. [35]

   Neither Mr Freeman nor Mr Londish signed the agreement.

8. [36]

   It is not clear whether Ivan signed it. He died in February 2012.

The Oral JV – agreed terms

1. [37]

   The Oral JV contained the following express terms:

2. [38]

   It is also agreed that the Oral JV contained the following implied terms:

Disputed implied terms

1. [39]

   Mr Freeman contends, and Mr Londish denies that there were further implied terms of the Oral JV.

2. [40]

   The rules for implication of terms in formal contracts are well known. The term must be:

3. [41]

   The application of these criteria is, however, restricted to a formal written contract. Where the contract has not been recorded in a formal document, the test for implication of a term is whether it is “necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case” that the term be implied: Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15 at 573 per 539 Deane J; Byrne v Australian Airlines (1995) 185 CLR 410; [1995] HCA 24 at 442 per McHugh and Gummow JJ. See generally N C Seddon and R A Bigwood, Cheshire & Fifoot Law of Contract (11th ed, 2017, LexisNexis Butterworths) at 10/56 and J W Carter, Carter on Contracts (looseleaf online service, LexisNexis Butterworths) at [11-110].

Repayment of funding

1. [42]

   Mr Freeman contends that it was an implied term of the agreement that in the event that Mr Londish committed a “fundamental breach” of the agreement, Mr Freeman would be repaid his contribution.

2. [43]

   In that regard, Mr Silver submitted that:

3. [44]

   I am not persuaded that the implication of such a term was necessary for the reasonable or effective operation of the Oral JV.

4. [45]

   As Mr Parsons, who appeared for Mr Londish submitted, if Mr Londish acted in breach of his obligations under the agreement “then the remedy is that which the law provides”.

The nature of Mr Freeman’s funding obligation

1. [46]

   The second implied term bears upon the nature of Mr Freeman’s funding obligations. Its precise import is significant because of what was allegedly said at the 28 December 2013 meeting.

2. [47]

   Mr Freeman claims that it was an implied term of the Oral JV that he was only obliged to advance funds if he and Mr Londish agreed that payment of a specific amount was “reasonably necessary for the purposes of the Project”.

3. [48]

   The corollary of this alleged implied term is that Mr Freeman could refuse to make a specified payment if he did not agree it was “reasonably necessary for the purposes of the project”.

4. [49]

   As I have mentioned, where a contract has not been reduced to writing, the Court can imply a term by reference to the imputed intention of the parties if it is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case.

5. [50]

   The question is whether the term for which Mr Freeman contends was necessary for the reasonable or effective operation of the Oral JV by reference to the imputed intention of the parties.

6. [51]

   The idea of the Oral JV was that Mr Freeman and Mr Londish would develop the Woodend property together. It was, literally, a joint venture. Mr Londish brought to the venture his considerable skill as a developer. Mr Freeman had access to funds. Mr Londish did not. As both men must have understood, the venture was a risky one from Mr Freeman’s point of view. He was advancing funds without security in the hope, that both men must have shared, that the venture would be profitable; in which event they would share the profits equally.

7. [52]

   The agreement was that Mr Freeman would advance money when funds “were required”. But there is no suggestion that Mr Freeman would act simply as a banker and dispense funds on request by Mr Londish. The agreement was that there had to be a “requirement” for the funds. That is an actual requirement. It must follow from Mr Freeman’s unsecured, and for that reason vulnerable, position that the men must have intended that for the reasonable and effective operation of their dealings together there be some qualification on Mr Freeman’s obligation to advance funds.

8. [53]

   In my opinion, that qualification is fairly expressed in the implied term for which Mr Freeman contends.

9. [54]

   In these circumstances, I impute to Mr Freeman and Mr Londish the intention that:

10. [55]

    That appears to be how both men understood the position.

11. [56]

    In cross-examination, Mr Freeman gave this evidence:

12. [57]

    And a short time later:

13. [58]

    A short time later:

14. [59]

    Mr Freeman’s reference to “the documents” was a reference to cl 3.2(b) of the unsigned joint venture agreement which, as I have mentioned, was to the effect that Mr Freeman’s company, Falmouth, was only required to provide funds if it and Mr Freeman were “satisfied acting reasonably that the funds are required” for a purpose related to the Project (see [34(b)] above).

15. [60]

    Following his evidence that “that’s the way it’s in the documents” Mr Freeman gave this evidence in response to questions from me:

16. [61]

    A short time later:

17. [62]

    The last answer given by Mr Freeman is revealing. It was not directly responsive to the earlier question, but reveals what I consider to the true position concerning Mr Freeman’s understanding of his obligations; namely to “reasonably consider” a proposal made by Mr Londish for expenditure.

18. [63]

    Overall, this evidence shows that Mr Freeman understood that Mr Londish could not dictate when and in what circumstances Mr Freeman should advance funds (“I wouldn’t allow him to tell me to pay for something”).

19. [64]

    Mr Freeman understood that he could only “reasonably” choose not to make a payment following discussion with Mr Londish. The implied term contended for accommodates this, in that Mr Londish and Mr Freeman had to agree that the payments were “reasonably necessary”.

20. [65]

    Mr Londish had a similar understanding. He gave this evidence:

21. [66]

    Later, Mr Londish gave this evidence initially in response to a question from me:

22. [67]

    For those reasons I accept the implied term as set out in the Commercial List Statement.

Dispute concerning the earthworks

1. [68]

   The dispute on 28 December 2013 was born of, amongst other things, an assertion then made by Mr Londish that Mr Freeman had an unqualified obligation to fund certain earthworks on the site.

2. [69]

   An understanding of the events of 28 December 2013 requires consideration of what passed between the two men earlier in 2013 concerning the earthworks.

3. [70]

   Mr Freeman was a meticulous diarist. Shortly after each of his meetings with Mr Londish he made a note of what was said and, on occasions, his observations about what was said and the Project generally.

4. [71]

   Mr Freeman’s affidavit evidence of his conversations with Mr Londish is based primarily on his diary.

5. [72]

   In his affidavit, Mr Londish accepted that Mr Freeman’s account of the conversations generally accorded with his recollection (save for the 28 December 2013 conversation). The following accounts of conversations between Mr Londish and Mr Freeman come, in large part, from Mr Freeman’s affidavit.

6. [73]

   In early April 2013, Mr Londish proposed to use funds “from investors” for the “site works”.

7. [74]

   Thus in early April 2013 he and Mr Freeman had this conversation:

8. [75]

   Mr Londish expressed a different view several days later on 8 April 2013 when this conversation took place:

9. [76]

   At this point Mr Londish lost his temper and “stormed out” of the meeting.

10. [77]

    In his diary for 8 April 2013, Mr Freeman recorded, as a note to himself that:

11. [78]

    During the hearing, much attention was paid to this note. Mr Parsons submitted it cast light on what Mr Freeman was likely to have said on 28 December 2013 concerning his funding obligations under the Oral JV. I was initially attracted to that submission. However, on reflection, and for the reasons I set out below, I think a more reliable guide as to what was said on that occasion is to be found in the contemporaneous documents each of Mr Freeman and Mr Londish prepared following the 28 December 2013 meeting. This note was prepared eight months earlier, and following a heated outburst from Mr Londish. Mr Freeman described it as a “thought bubble I wrote to myself at the end of one of his blow ups”. I think that is a fair characterisation of the note.

12. [79]

    On 17 April 2013 Mr Londish sent an email to Mr Freeman stating that his “proposal” about the earthworks “needs to be resolved asap” and suggesting that he and Mr Freeman should “seek an arbitrator to resolve who is right and who is wrong” about the earthworks issue in an effort to “resolve this impasse”.

13. [80]

    On 19 April 2013 Mr Freeman replied suggesting that he and Mr Londish get advice from a town planner. Shortly thereafter Mr Freeman agreed to pay $9,000 for a feasibility study into the proposed earthworks to be carried out by Mr Jon Buckle, a consulting engineer. In due course Mr Freeman paid Mr Buckle’s invoice.

14. [81]

    Mr Freeman and Mr Londish met again on 25 April 2013. The following discussion took place:

15. [82]

    Thus Mr Londish was now proposing that the earthworks be progressed “once we have the investors on board” with funding from the earthworks to come from investors’ funds (as Mr Londish had proposed in the early April 2013 meeting referred to at [74] above).

16. [83]

    Mr Freeman’s note of that meeting includes:

17. [84]

    Mr Londish confirmed the matters in [81] above in an email he sent on 11 June 2013 to which he attached a document called “the Woodend Development Plan 24.5.13 a Reminder List of What Has to be Done”.

18. [85]

    In that document Mr Londish said:

19. [86]

    Mr Londish was asked about this in cross-examination:

20. [87]

    On 7 August 2013 Mr Londish sent Mr Freeman a document called “Milestones for Prospectus” which projected that funding would be available in October 2013 and that site works commence in November 2013.

21. [88]

    Mr Londish gave evidence about that document in answer to questions from me:

22. [89]

    On 27 October 2013 Mr Londish sent Mr Freeman a further copy of the “Reminder List” attached to his 11 June 2013 email. His covering email said:

23. [90]

    In relation to this document, Mr Londish gave this evidence in cross-examination:

24. [91]

    Another stormy meeting occurred between Mr Londish, Mr Freeman and Mr Gary Reid (another director of GLE) on 25 November 2013. A matter for discussion on that occasion was whether the permit in respect of the land had expired. In fact the permit had expired on 21 July 2013. Any application to extend the permit had to be made by 21 January 2014. This was not then known to Mr Londish and Mr Freeman.

25. [92]

    The following discussion took place:

26. [93]

    An insight into the pressure that Mr Londish felt is given in an email he sent to Mr Freeman shortly after the 25 November 2013 meeting.

27. [94]

    Mr Londish said:

28. [95]

    Mr Londish and Mr Freeman met again on 9 December 2013.

29. [96]

    In his affidavit Mr Freeman stated that Mr Londish said:

30. [97]

    In the note he made that day Mr Freeman said:

31. [98]

    Mr Freeman’s note continued with the comment that:

32. [99]

    Mr Freeman thus recorded that Mr Londish foreshadowed paying for “some” of the earthworks with Mr Freeman (“with me”), and of thus “sharing” with Mr Freeman those costs.

Deflection and monitoring

1. [100]

   Mr Parsons submitted that the communications between Mr Freeman and Mr Londish between April and December 2013 showed that Mr Freeman engaged in a course of “deflection and monitoring”; that is, Mr Freeman sought to “deflect” Mr Londish from the topic of earthworks and to “monitor” how Mr Londish responded to that process of “deflection”.

2. [101]

   Mr Parsons submitted that this revealed his state of mind concerning his relationship with Mr Londish and showed that he went into the 28 December 2013 meeting “in a mood of heightened tension and vigilance” and with the belief that he had no obligation to provide funds for the earthworks or the Project at all, if he chose not to.

3. [102]

   Both Mr Parsons and Mr Silver devoted considerable time in their submissions to this question.

4. [103]

   I see no basis to conclude that Mr Freeman was actively seeking to “deflect” Mr Londish from discussion about the earthworks.

5. [104]

   The communications that I have set out show that after the discussion on 25 April 2013 Mr Londish and Mr Freeman agreed that funding of the works for substantial commencement was to be obtained from investors; save that on 9 December 2013 Mr Londish agreed that he could share some of those costs.

Events leading to the 28 December 2013 meeting

1. [105]

   On 17 December 2013 an officer from the Macedon Ranges Shire Council wrote to Mr Londish enclosing a copy of the planning permit as extended and amended by the Victorian Civil and Administrative Tribunal and stating:

2. [106]

   Mr Londish was very surprised to hear this. He replied on the same day saying that he thought this was incorrect and that “the commencement order is dated two years from August 2012”.

3. [107]

   The Council officer responded that he was “pretty sure I’m right” and that “the development must have commenced by 21 July 2013 and be completed by 21 July 2015”.

4. [108]

   Mr Londish then sought advice from his town planner who, on 27 December 2013, confirmed that the Council officer was correct. He advised that an application for extension would need to be filed before 21 January 2014.

5. [109]

   Thus, something of a crisis had developed. Until 27 December 2013, Mr Londish believed that he and Mr Freeman had until August 2014 to arrange for GLE to commence work on the Project. Suddenly, he was informed that commencement was supposed to have taken place the preceding July and that, if an extension of time was to be sought, it would need to be made before the end of January 2014.

6. [110]

   It was in that context that the 28 December 2013 meeting was arranged.

7. [111]

   Any repudiation of the joint venture agreement between Mr Freeman and Mr Londish arose from what was said at the meeting on 28 December 2013.

The competing accounts of the 28 December 2013 meeting

1. [112]

   What was said at the meeting is in contest.

2. [113]

   Mr Freeman and Mr Londish each made a note of the meeting. I see no reason to doubt that the notes represent their recollection of the meeting. I find the notes to be the most accurate guide as to what was said on the day.

3. [114]

   Each note reveals that the meeting commenced with consideration of the revelation that the permit had expired. It appears that Mr Freeman was expressing exasperation that, as he saw it, Mr Londish had let matters come to this.

4. [115]

   Mr Londish’s note of the meeting is in these terms:

5. [116]

   I will return to this note. A critical aspect of it is what Mr Londish recorded Mr Freeman as having said concerning his commitment to the funding of the Project. According to Mr Londish’s note, Mr Freeman said he did not “wish to invest any more money” and was not “committed to putting up the rest”. The note also recorded Mr Londish’s belief that Mr Freeman’s position was that, as Mr Freeman “has not signed the JV agreement”, he did not have to “put up any further funds”. Thus, according to the note, Mr Freeman’s statements, and Mr Londish’s understanding of them, were directed to Mr Freeman’s obligations concerning future funding; not his obligation to provide funds to date.

6. [117]

   Mr Freeman made his note in his diary. It reads:

7. [118]

   So far as concerns funding, Mr Freeman records Mr Londish asserting that Mr Freeman had an “obligation to invest” $1.2 million. Mr Freeman did not record his response to that assertion. It is probable he rejected it.

8. [119]

   Mr Freeman and Mr Londish each gave an account of what happened in the meeting in their affidavits.

9. [120]

   Mr Freeman and Mr Londish agree that the relevant part of the conversation commenced this way:

10. [121]

    The men agree that Mr Londish then stood up and shouted:

11. [122]

    What divides Mr Freeman and Mr Londish is whether the following words, which the parties referred to as “the Disputed Words”, were said. They are set out in Mr Londish’s affidavit. Mr Freeman denies they were said.

12. [123]

    The Disputed Words were:

13. [124]

    The Disputed Words do not appear in Mr Londish’s note. Mr Londish’s note records that Mr Freeman said he did not wish to invest “any more money” and was not committed to “putting up the rest”. That is, he spoke prospectively.

14. [125]

    According to the Disputed Words, Mr Freeman went further and said he “was” not committed to provide money if he “chose not to do so” and that he “chose not to do so” and did not “have to do anything”. Some, but not all of those words first emerged in an email Mr Londish sent Mr Freeman a month later, on 29 January 2014, to which I will return.

15. [126]

    Mr Freeman was asked about his denial of the Disputed Words in cross-examination:

16. [127]

    That evidence demonstrates that, understandably, some four and a half years after the 28 December 2013 meeting, Mr Freeman’s confidence about what was said at the meeting is based upon how he recorded it in his note.

The subsequent emails

1. [128]

   The communications that passed between Mr Freeman and Mr Londish after the meeting cast some light on the probabilities of what was said at the meeting.

2. [129]

   On the morning of 2 January 2014 Mr Freeman sent Mr Londish three emails in the period of some 25 minutes.

3. [130]

   In the first of those emails Mr Freeman said:

4. [131]

   Mr Freeman continued:

5. [132]

   Later in the email Mr Freeman said:

6. [133]

   In these passages Mr Freeman referred to Mr Londish’s 28 December 2013 assertion that Mr Freeman had an “obligation” to provide funding to the Project, and denied having any such obligation. I think it probable Mr Freeman also made that denial at the meeting itself.

7. [134]

   The debate on 28 December 2013 focused on Mr Freeman’s asserted obligation to fund the earthworks. In this email Mr Freeman referred to the discussions on 9 December 2013 concerning Mr Londish paying for earthworks.

8. [135]

   At 10.10 am on 2 January 2014 Mr Freeman sent Mr Londish a further email. This email was directed to the question of the earthworks. Mr Freeman attached three emails that had passed between the men in April 2013 which, Mr Freeman said, “should remind you that I questioned, not refused the costs of the earthworks…”.

9. [136]

   At 10.29 am Mr Freeman sent a third email referring to the fact that the 28 December 2013 meeting had “ended acrimoniously” and expressing concern at remarks that Mr Londish had made. Mr Freeman said:

10. [137]

    In the first email Mr Freeman also wrote:

11. [138]

    In the email he sent shortly thereafter he said:

12. [139]

    In third email Mr Freeman said:

13. [140]

    Mr Londish replied to Mr Freeman’s three 2 January 2014 emails by simply stating:

14. [141]

    This was evidently a reference to Mr Freeman’s statement, in the first of his 2 January 2014 emails, that “the original JV concept was not in force”. Mr Freeman attached to that email a copy of the 6 September 2011 draft of the joint venture agreement.

15. [142]

    Mr Londish made his position clearer in an email of 14 January 2014 (replying to an email from Mr Freeman enquiring about the proposed extension to the planning permit):

16. [143]

    The use of quotation marks in this email suggests that Mr Londish was setting out his recollection of the actual words Mr Freeman said on 28 December 2013.

17. [144]

    Consistently with his note, but inconsistently with the Disputed Words as recorded in his affidavit, Mr Londish attributed to Mr Freeman a prospective statement; that he was not committed to provide “any more” funding. Mr Londish did not suggest in this email that Mr Freeman said he had not hitherto been so committed, nor that he could chose and had chosen not to fund, or that he didn’t “have to do anything”.

18. [145]

    On 17 January 2014 Mr Londish sent Mr Freeman an email as follows:

19. [146]

    That email opened and closed with quotation marks. When that was drawn to Mr Londish’s attention in cross-examination he agreed that the document had “probably” been drafted by his legal advisors.

20. [147]

    It also set out what appears to be Mr Londish’s then understanding of Mr Freeman’s position, namely that “you have not” committed funds and “were just testing the waters”. This seems to reflect Mr Londish’s understanding of Mr Freeman’s position in the past. Mr Londish did not record such an understanding in his 28 December 2013 note; in that document he recorded that he thought Mr Freeman’s belief was that he did not have to “put up any further money”.

21. [148]

    This suggests that Mr Londish’s thoughts about Mr Freeman’s motivations were evolving. This is relevant to whether the Disputed Words were said.

22. [149]

    Several days later, on 29 January 2014 Mr Londish sent this email to Mr Freeman:

23. [150]

    The words of the second paragraph of this email correspond to an extent to those in Mr Londish’s affidavit account of the Disputed Words.

24. [151]

    However they attribute to Mr Freeman words more extensive and different from those recorded in Mr Londish’s 28 December 2013 note. In the note Mr Londish attributed to Mr Freeman words to the effect that he was not committed to ongoing funding (“putting up the rest”). In this email Mr Londish attributed to Mr Freeman words to the effect that he was never committed to provide funding (“nor was I committed”); that he could choose whether to advance funds, and that he “chose not to do so” (presumably in respect of the earthworks).

25. [152]

    However Mr Londish did not assert in this email that Mr Freeman added: “I don’t have to do anything”. There is no record in Mr Londish’s note that Mr Freeman said anything like this. The assertion that these words were said was first made in Mr Londish’s account of the Disputed Words in his affidavit of 20 October 2017 in these proceedings; sworn almost four years after the meeting.

26. [153]

    Nor did Mr Londish assert in this email that Mr Freeman had, in April 2013, “agreed” to fund the earthworks; as opposed to refusing to discuss funding the earthworks (which is what Mr Londish recorded in his 28 December 2013 note). The assertion that Mr Freeman had in April 2013 agreed to fund the earthworks was also first made in Mr Londish’s affidavit.

27. [154]

    On 6 February 2014 Mr Londish sent a further email to Mr Freeman stating:

28. [155]

    In this email Mr Londish asserted, for the first time, that Mr Freeman actually stated during the 28 December 2013 meeting that the reason he did not sign the joint venture agreement was to avoid being committed to funding. No such suggestion appears in Mr Londish’s note of the meeting, his January 2014 emails or his account of the Disputed Words.

29. [156]

    It cannot be right. Mr Parsons accepted that Mr Londish had “added something to it” and that his words had become “hyperbolic”.

30. [157]

    Mr Freeman did not dispute any of the assertions made in these emails.

31. [158]

    That may be, as Mr Silver submitted, because Mr Freeman did not wish to provoke Mr Londish. And, as Mr Silver pointed out, Mr Freeman did not even respond to Mr Londish’s email of 6 February 2014.

32. [159]

    However, the fact remains that Mr Londish’s various assertions were not contradicted.

33. [160]

    On 8 February 2014 Mr Freeman sent to Ivan’s daughter, Ms Lyn Ingles, a “Confidential Briefing Note”.

34. [161]

    In his covering email, he made an enquiry as to Mrs Londish’s health and continued:

35. [162]

    The Confidential Briefing Note included the following:

36. [163]

    Much attention was paid to this note both in cross-examination and in submissions.

37. [164]

    On reflection, my conclusion is that it has little bearing on the issues before me. It casts some, somewhat distant, light on what Mr Freeman said on 28 January 2013 (although there is no suggestion that he use the word “voluntarily” on that occasion). It may also cast some light on what Mr Freeman intended by the words he used on 28 December 2013. However, for the reasons I discuss below, Mr Freeman’s subjective intentions as to the words he used are not relevant to the question of repudiation. What matters is how a reasonable person in Mr Londish’s position would have taken those words to convey so far as concerns Mr Freeman’s commitment to the Project.

38. [165]

    Nonetheless, in deference to the careful attention that was taken to this note I will make some observations about it.

39. [166]

    In cross-examination, Mr Freeman agreed that he was “seeking to impress upon Ms Ingles, in the exercise of seeking to persuade Mrs Londish, that [he] had provided the funds to the joint venture voluntarily, rather than as a result of being obliged to do so”.

40. [167]

    However, I think a fair reading of Mr Freeman’s words is that he meant that he was providing funds to the joint venture “voluntarily” in the sense of otherwise than by reason of a documented legal obligation. Thus his statement that he provided funds “voluntarily” was preceded, in the same sentence, by the statement that he was not obliged “by the agreement” (that is “the original Joint Venture agreement” proposed with Ivan to which he had referred earlier in the paragraph) to provide funds.

41. [168]

    The point Mr Freeman was evidently seeking to make was that despite the fact that he and Mr Londish had not executed the proposed joint venture agreement with Ivan (because of Ivan’s decision not to grant an option over the land) and the resultant absence of documentary compulsion to advance funds to the venture, he had in fact advanced funds. He characterised his payments as being made, in that circumstance, “voluntarily”.

42. [169]

    The word was not apt to reflect what I have found to be Mr Freeman’s true understanding of his obligations. In cross-examination Mr Freeman said “I shouldn’t have used the word ‘voluntarily’ there”.

43. [170]

    However, I cannot conclude that he meant, by use of the word, to convey that he thought he had no obligation, of any kind, to advance funds to the venture.

44. [171]

    Indeed, Mr Freeman’s note suggested that he remained committed to the Project.

45. [172]

    Thus he said:

Were the Disputed Words said?

1. [173]

   Mr Londish and Mr Freeman agree that Mr Londish made a complaint about the lack of provision for money for earthworks.

2. [174]

   Both men made reference to this in their notes.

3. [175]

   Mr Londish recorded that he said words to the effect that if Mr Freeman had “taken my advice in April this year and started the earthworks we would not have had this trouble as we would have had substantial commencement” but that Mr Freeman had “refused to listen or discuss this in order to avoid spending money”.

4. [176]

   Mr Freeman recorded that Mr Londish said words to the effect “we were asking for works on site in May 2013 and you refused”.

5. [177]

   Thus, both men recorded that Mr Londish accused Mr Freeman of refusing to fund the earthworks.

6. [178]

   I do not accept that Mr Londish went further, and accused Mr Freeman of having “agreed” to fund the earthworks, and in effect reneging on that agreement. Mr Londish did not make that assertion at the time; not even in his 29 January 2014 email. It first appeared in his affidavit (see [153] above).

7. [179]

   Mr Londish misstated the position. Mr Freeman had not refused to provide money for the earthworks. As I have set out above, by the end of April 2013 he and Mr Freeman agreed that the funding of work needed to achieve substantial commencement would be sought from investors.

8. [180]

   That arrangement was varied on 9 December 2013 when Mr Londish said that, because he was expecting to receive funds from the sale of an apartment he would share with Mr Freeman some of the costs necessary to ensure “substantial commencement” (see [96] above).

9. [181]

   Evidently, in the heat of the moment, and perhaps because of the criticisms Mr Freeman made concerning the lapsing of the permit, he overlooked this.

10. [182]

    However that may be, his complaint that Mr Freeman had refused to “provide the moneys for the earthworks” was not justified.

11. [183]

    In his note Mr Londish recorded that Mr Freeman said “there is no signed JV”.

12. [184]

    It does seem probable that the fact that the joint venture relationship was undocumented arose at the meeting.

13. [185]

    There was no “signed JV”. Mr Londish knew that. He recorded in his 28 December 2013 note that it was “correct we don’t have a signed agreement”.

14. [186]

    In his 10.04 am 2 January 2014 email Mr Freeman provided an explanation as to why, as he saw it, “the draft joint-venture agreement was dropped” (see [131] above).

15. [187]

    The “draft joint-venture agreement” to which Mr Freeman referred in the email was the proposed agreement with Ivan. Mr Londish obviously understood that as he annexed a copy of that draft joint venture agreement to his reply email of 2 January 2014.

16. [188]

    Mr Londish’s note suggests that he formed the view that the reason Mr Freeman had not signed the joint venture agreement was to leave himself “with this position of not having a legal commitment…to put up any further funds”.

17. [189]

    Mr Londish did not suggest in his note, or his affidavit, that Mr Freeman had said anything to this effect at the meeting (although he, incorrectly in my opinion, made an assertion to this effect in his 6 February 2014 email: see [154] above).

18. [190]

    In cross-examination, Mr Londish asserted, for the first time, that he thought that Mr Freeman had not signed the joint venture agreement to prevent Mr Londish “going on to the land” and thus to defer substantial commencement of the Project. Mr Londish made no mention of this in his note or affidavit. He may have had in mind that, much earlier, Mr Freeman had told him that he, Mr Freeman, had given Ivan assurances about how Ivan’s land would be affected by the proposed earthworks. I think it unlikely this subject was raised on 28 December 2013.

19. [191]

    What is critical to the question of repudiation is what Mr Freeman said about the nature of his obligations under the joint venture agreement concerning advancing funds for the Project.

20. [192]

    The express term of the agreement was that Mr Freeman would advance up to $1.25 million from time to time when funds “were required” (see [37(d)] above).

21. [193]

    I have found that it was an implied term of the agreement that Mr Freeman was only obliged to advance funds if he and Mr Londish agreed that payment of a specific amount was reasonably necessary for the purposes of the Project.

22. [194]

    What I must do is form an opinion as to what, probably, Mr Freeman said on this topic.

23. [195]

    Recently, Rein J uttered the memorable words:

24. [196]

    In this case too, the track of the truth as to what was said on 28 December 2013 is narrow and poorly lit.

25. [197]

    In his 28 December 2013 note Mr Londish recorded Mr Freeman as saying:

26. [198]

    In his note made at about the same time, Mr Freeman recorded Mr Londish as asserting that “you have an obligation to invest $1.2m”.

27. [199]

    It thus appears likely that Mr Londish spoke in terms of Mr Freeman’s “commitment” and “obligation”.

28. [200]

    Both words appear in emails exchanged between the two men shortly after the meeting.

29. [201]

    In his 10.04 am 2 January 2014 email Mr Freeman denied that he was under “an obligation to provide $1,200,000 to fund the Macedon Waters Project”.

30. [202]

    This was consistent with Mr Freeman’s overall position that he was not prepared to characterise his role in the joint venture as being one where he had an unqualified “obligation” to advance funds. His state of mind was “I wouldn’t allow him to tell me to pay something”.

31. [203]

    Although Mr Freeman did not record this in his note of the meeting, or assert it in his affidavit, it appears likely that he refuted Mr Londish’s assertion that he had “an obligation” to invest any particular amount in the Project.

32. [204]

    Mr Londish’s 28 December 2013 note and his reasonably contemporaneous emails suggest the likelihood that Mr Freeman also denied being “committed” to providing funds.

33. [205]

    Mr Londish’s assertions as to what Mr Freeman said about this evolved in his emails over the next few weeks.

34. [206]

    Mr Londish was apt to lose his temper and suddenly leave meetings. It is common ground that, on this occasion, Mr Londish stood up and began shouting, then stormed out.

35. [207]

    Mr Londish’s emails following the meeting show that he remained in a state of high agitation. This, together with Mr Londish’s age and failing health, may explain how Mr Londish’s recollection of what was said changed over time.

36. [208]

    First, on 14 January 2014 Mr Londish asserted that Mr Freeman said he was “not committed to provide any more funding” (see [142] above). Then, on 29 January 2014 he said that Mr Freeman said he was never committed to provide funds if he chose not to (see [149] above). Finally, on 6 February 2014 he said that Mr Freeman said he had deliberately not signed to joint venture agreement in order not to be committed to funding (see [154] above). In his 20 October 2017 affidavit Mr Londish added that Mr Freeman had also said “I don’t have to do anything”.

37. [209]

    In my opinion, Mr Londish allowed his memory to be embroidered by details that have no foundation in his near contemporaneous note, nor his immediate email response to Mr Freeman.

38. [210]

    Mr Londish has allowed his recollection of what Mr Freeman said to become overlaid, perhaps unconsciously, with perceptions of self-interest, and what he came to actually remember was, perhaps, little more than an impression from which plausible details were, again perhaps unconsciously, constructed (to paraphrase the words of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319). As His Honour said, “all this is a matter of ordinary human experience”.

39. [211]

    I am not persuaded that Mr Freeman said anything to the effect that he could “choose” not to provide funds or that “I don’t have to do anything”. I do not accept that the email in which Mr Londish asserted the first of these matters to accurately reflected what was said, nor that his later assertion as to the second of these matters is correct.

40. [212]

    My conclusion is that it more likely than not, that in response to Mr Londish’s unjustified complaint that “we would not have had this trouble” or that “we would not be in the position we are now in” (that is that the permit had expired) had Mr Freeman “started the earthworks” or “provided the money for the earthworks as agreed”, Mr Freeman said something to the effect that he was not “obliged” to advance funds.

41. [213]

    I think it also likely that Mr Freeman linked that lack of “obligation” and “commitment” to the undocumented nature of the men’s relationship.

42. [214]

    I am not persuaded that Mr Freeman said anything more about the nature of his funding obligation.

43. [215]

    Breach of contract by repudiation occurs when a party “evinces an intention no longer to be bound by the contract...or shows that [he or she] intends to fulfil the contract only in a manner substantially inconsistent with [his or her] obligations and not in any other way” (Shevill v Builders Licensing Board (1982) 149 CLR 620; [1982] HCA 47 at 625-626 per Gibbs CJ).

44. [216]

    The purported repudiator’s intention is assessed objectively from the perspective of a reasonable person in the shoes of the “innocent” party. The test is described by Deane and Dawson JJ in Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1989) 166 CLR 623 at 657-658:

45. [217]

    The purportedly repudiatory conduct must be considered in its broad factual context.

46. [218]

    The principles were set out by McDougall J, with whom Beazley P and Simpson JA agreed, in Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353 at [109]:

47. [219]

    The question here is whether a reasonable person in the situation of Mr Londish would have understood the Mr Freeman’s conduct, in its entire factual setting, bespoke an intention to no longer be bound by his obligations.

48. [220]

    That is, would a reasonable person in the position of Mr Londish understand Mr Freeman’s conduct, leading up to and at the meeting in which he said words with the effect that he did not consider himself “committed” or “obliged” to provide funds, to evince his unwillingness to comply with his obligation under the Oral JV to advance funds if he agreed with Mr Londish that a request for funding was reasonably necessary for the purposes of the Project.

49. [221]

    The objective circumstances against the background of which Mr Freeman’s statements must be viewed included that:

50. [222]

    As to the latter, Mr Freeman said, in cross-examination:

51. [223]

    Mr Freeman’s statement that he was not “committed” or “obliged” – that is, at all – to provide funding misstated his obligation in that it omitted the subtle but important qualifiers to which I have referred.

52. [224]

    However it was correct for Mr Freeman to assert that he was not “committed” or “obliged” to provide funds in the sense that he was not obliged to provide funds merely because Mr Londish asked him to.

53. [225]

    He was also not “committed” or “obliged” to provide funds if he did not agree that funds Mr Londish proposed be expended were reasonably necessary.

54. [226]

    Repudiation is a serious matter that is not lightly found or inferred (Shevill at 633). It is a “drastic conclusion which should only be held to arise in clear cases of a refusal, in a matter going to the root of the contract, to perform contractual obligations” (Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123 at [128] per Ward JA, with McColl JA agreeing).

55. [227]

    In DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12 Stephen, Mason and Jacobs JJ said at 432:

56. [228]

    Their Honours cited Sweet & Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699; [1964] 3 All ER 30 at 734, in which Pearson LJ observed at 43:

57. [229]

    There is no repudiation where a party is prepared to perform its obligations on the proper construction of the contract as determined by a court, notwithstanding that it has earlier “taken a stand” on an incorrect understanding of its obligations (see also Wesiak at [95]).

58. [230]

    In my opinion, notwithstanding Mr Freeman’s unvarnished statement that he did not consider himself “committed” or “obliged” to providing funds, a reasonable person in the shoes of Mr Londish would not understand Mr Freeman to have thus renounced his obligation to consider with Mr Londish whether payment of a specific amount was reasonably necessary for the purposes of the Project.

59. [231]

    The words fell from Mr Freeman during a public argument with Mr Londish. The meeting had been arranged to save the venture from the immediately preceding “crisis” of a lapsing permit. Mr Freeman had historically complied with his obligations to consider whether proposed Project expenses were reasonably necessary.

60. [232]

    It would be a serious and drastic conclusion to hold that Mr Freeman had, by an inexact statement, intended to bring their agreement to an end. That is especially so given that he funded and pursued the Project in 2013 and his efforts to save his commercial relationship with Mr Londish in January 2014. Mr Londish agreed that the latter conduct showed “[Mr Freeman] wasn’t trying to walk away”.

61. [233]

    My conclusion is that the words uttered by Mr Freeman were not repudiatory.

62. [234]

    Mr Londish claims that, at the conclusion of his conversation with Mr Freeman on 28 December 2013 he said, following Mr Freeman’s statement that he was not committed to providing funds, that “then you’re no partner of mine” and that Mr Freeman responded “that’s right”.

63. [235]

    Mr Londish makes no reference to such words in his 28 December 2013 note nor in any of his emails to Mr Freeman in January and February 2014.

64. [236]

    According to Mr Londish’s note, his final words to Mr Freeman at the meeting were “I do not wish to be seen with you, you mean miserable little shit”, together with words to the effect that Mr Freeman was “self-opinionated” and believed that because “he is putting up the money”, “he is the boss and makes all the decisions”.

65. [237]

    In cross-examination Mr Londish agreed that “probably” those were his final words on the day.

66. [238]

    Mr Londish also gave this evidence:

67. [239]

    Mr Freeman’s note records that Mr Londish said something to the effect “you have done nothing and tell me what to do” and left the meeting saying that we would “let me sweat”. In cross-examination Mr Freeman said “the bit about letting me sweat stays in my mind”.

68. [240]

    In his note Mr Freeman also recorded that he understood Mr Londish was “implying I had no pursuable claims”.

69. [241]

    It does seem clear that Mr Freeman has not recorded in his note all that happened on 28 December 2013. Mr Freeman’s note states that Mr Londish “lost his composure” and made “derogatory remarks” about Mr Freeman which were “interspersed” with the particular comments that Mr Freeman recorded. It seems that Mr Londish made other “derogatory remarks” that Mr Freeman did not record.

70. [242]

    Further, in Mr Freeman’s 2 January 2014 email he recorded that Mr Londish had said that he was not going to say what he proposed to do “regarding the crisis of the planning permit”. This is another detail that Mr Freeman did not record in his note.

71. [243]

    None of this is surprising.

72. [244]

    However Mr Freeman gained the impression from what Mr Londish was saying that Mr Londish’s position was that Mr Freeman “had no pursuable claims”. That suggests that something was said about what “claims” Mr Freeman might be able to “pursue”. The most obvious claim Mr Freeman would wish to “pursue” was recovery of the funds he had advanced.

73. [245]

    It would be consistent with that for Mr Londish to have said something to the effect “you’re no partner of mine”.

74. [246]

    Further, Mr Londish seemed to me to be very certain, in the passage of cross-examination that I have set out at [238] above that he said those words, although perhaps earlier in the conversation.

75. [247]

    In those circumstances I think it is probable that, at some time during the meeting, but following Mr Freeman’s statement about the nature of his obligations under the agreement, Mr Londish said something to the effect that Mr Freeman had no further rights against him.

76. [248]

    I am not able to come to any conclusion as to what, if anything, Mr Freeman said in response.

77. [249]

    Whether or not a reasonable person in Mr Freeman’s position would have regarded what Mr Londish said as bespeaking Mr Londish’s repudiation of his obligations under the Oral JV, the matter was put beyond doubt by Mr Londish’s emails of 14 January 2014 (“we are no longer a JV and you do not need to worry any longer about what is going on for Woodend”) (see [142] above) and 29 January 2014 (“[a]s you have sabotaged Grand Lifestyle Estates from the beginning and now showed your hand, I no longer want to be involved with you or with Grand Lifestyle Estates. It’s all yours and I will forward my resignation as a director to you in the next few days”) (see [149] above).

Conclusion as to the outcome of the 28 December 2013 meeting

1. [250]

   For these reasons my conclusion is that Mr Freeman did not repudiate his obligations under the Oral JV by telling Mr Londish that he was not committed or obliged to provide funding.

2. [251]

   On Mr Londish’s account of it, his response was immediately to retort “then you are no partner of mine”.

3. [252]

   Whether or not those words were said, Mr Londish has clearly repudiated the Oral JV by statements in his January emails that the joint venture between them was at an end.

Was the repudiation accepted?

1. [253]

   During submissions I asked Mr Silver what conduct Mr Freeman relied on to show that he had accepted Mr Londish’s repudiation.

2. [254]

   Ultimately Mr Silver submitted that such acceptance was manifested by the commencement of these proceedings.

3. [255]

   In his Further Amended Commercial List Statement, Mr Freeman alleges that Mr Londish wrongfully terminated his dealings with Mr Freeman in relation to the Project, that this “Wrongful Conduct” constituted a breach of the joint venture agreement and that Mr Freeman had suffered loss and damage as a result of that breach (being the $725,000 contributed to the venture).

4. [256]

   I am satisfied that the making of those allegations in these proceedings constitutes an acceptance by Mr Freeman of Mr Londish’s repudiation of his obligations under the joint venture agreement. I did not understand Mr Parsons to advance a contrary contention.

Relief

1. [257]

   Argument before me proceeded upon the basis that if Mr Freeman was entitled to relief, that entitlement would lie against Mr Londish himself, as opposed to against GLE or Prestige. These reasons proceed upon this basis. I will invite submissions as to whether there is any contention about this matter.

2. [258]

   Mr Freeman put his claim for relief in a number of ways.

3. [259]

   His most straight forward claim is in contract.

4. [260]

   It is common ground that it was an express term of the joint venture agreement between Mr Londish and Mr Freeman that they would share equally any profit made from the Project. However, Mr Freeman does not seek damages in respect of any profit the venture may have yielded. That is, he does not seek expectation damages

5. [261]

   It was also common ground that it was an express term of the agreement that Mr Freeman would be repaid the amount he advanced “from the proceeds of the development” and an implied term of the arrangements that he would be repaid that amount “from the vehicle used for the purposes of pursuing the Project”.

6. [262]

   Mr Freeman seeks reliance damages for breach of contract in the amount of $724,095.85 (the precise amount he advanced) plus interest.

7. [263]

   The object of an award of damages for breach of contract is to put Mr Freeman in the same position he would have been in had the contract been performed, so far as money can achieve this result: Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 (Mason CJ and Dawson J) at 80 citing the familiar words of Parke B in Robinson v Harman (1848) 1 Exch 850 at 855; (1848) 154 ER 363 at 365.

8. [264]

   Expenditure actually and reasonably incurred in preparation for, or in the course of, performance of a contract is recoverable to the extent to which it is wasted as a result of a breach: McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] HCA 79. These are “reliance damages”.

9. [265]

   A person seeking to recover reliance damages must ordinarily prove that the net value of the benefits to which he or she would have been entitled under the contract would have exceeded the wasted expenditure incurred in reliance on the defendant’s promise (for example Amann Aviation per Brennan J at 104).

10. [266]

    However, where a contract is repudiated by one party and thereby makes it impossible for the other party to prove its loss, “it is just to shift to the defendant the ultimate onus of proving that, had the contract been performed, the net value of the plaintiff’s benefit would not have covered the expenditure he had incurred before rescission” (per Brennan J in Amann Aviation).

11. [267]

    In these circumstances, a plaintiff may rely on a presumption that it would not have entered into a contract in which its costs were not recoverable (Mason CJ and Dawson J in Amann Aviation at 87) and that “the value of [the benefits the plaintiff would have derived had the defendant performed the contract] would have been at least equal to the total detriment which has been…sustained by the plaintiff in doing whatever was reasonably necessary to procure and perform the contract” (per Deane J at 126).

12. [268]

    Until that presumption is rebutted by the defendant, “the plaintiff may rely on it to recover his or her reasonable expenses…in the case of a contract where the outcome of the contract, if it had been fully performed, cannot be demonstrated…” (per Mason CJ and Dawson J at 87).

13. [269]

    The authors of Cheshire & Fifoot put the matter this way:

14. [270]

    In Amann Aviation Brennan J said (at 106-107):

15. [271]

    The other members of the Court reached a similar conclusion (Mason CJ and Dawson J at 86-88, Deane J at 126-127, Toohey J at 142-143 and Gaudron J at 155-156).

16. [272]

    Mr Freeman’s case is that, had the venture proceeded, it would have been sufficiently successful for him to have been able to recoup his expenditure.

17. [273]

    There is no suggestion that Mr Freeman’s expenditure was not reasonably incurred for the purposes of the venture.

18. [274]

    As it is Mr Londish’s repudiation of the contract with Mr Freeman that “denies, prevents or precludes the existence of circumstances which would have determined the value of [Mr Freeman’s] contractual benefits” it was for him to prove that Mr Freeman would not have recovered his expenditure, had the joint venture proceeded.

19. [275]

    Accordingly, although it may be true, as Mr Parsons submitted that “the joint venture was not on the brink of fruition” and that “a lot remained to be done [to progress the venture] and Mr Freeman’s money was not enough” this is not a circumstance that Mr Londish can call in aid to justify denying Mr Freeman the remedy he seeks.

20. [276]

    As Mr Londish repudiated the Oral JV, it is for him to show that the Project would not have been sufficiently profitable for Mr Freeman to recoup the amount he advanced.

21. [277]

    He has not done that.

22. [278]

    Having come to that conclusion, it is not necessary for me to consider the various other means by which Mr Silver submitted Mr Freeman should recover his investment.

23. [279]

    I will invite submissions as to whether the parties wish to make any further submissions about those aspects of the matter.

24. [280]

    Mr Freeman seeks interest under s 100 of the Civil Procedure Act 2005 (NSW).

25. [281]

    Mr Silver accepted that interest should not run from the dates upon which the funds were advanced. The arrangement between Mr Londish and Mr Freeman was that Mr Freeman would not recoup his investment until the venture yielded profit.

26. [282]

    Mr Silver submitted that interest should run from the date on which Mr Londish repudiated his obligations under the agreement as Mr Londish has had the use of the funds since that date (and indeed for a considerable time earlier).

27. [283]

    However, had Mr Londish not repudiated his obligation (either at the 28 December 2013 meeting or by reason of his January 2014 email) Mr Freeman would have remained out of his money for some time.

28. [284]

    Overall, I find that interest should not run until the date on which Prestige ultimately settled its sale of the property. That date is 4 August 2017. It does not seem likely that the Project would have been completed prior to that date, had it proceeded as originally contemplated by the parties.

Conclusion

1. [285]

   Mr Freeman is entitled to damages and interest in accordance with these reasons.

2. [286]

   I invite the parties to confer and agree on the orders that should be made to give effect to these reasons.

3. [287]

   I will stand the matter over to a date convenient to counsel so that the further progress of the matter can be considered.