Par Recycling Services Pty Ltd v United Resource Management Pty Ltd

1. [1]

   Par Recycling Services Pty Ltd pursues payments it claims it is owed under agreements which it entered with United Resource Management Pty Ltd, URM, and Mr Anthony Johnston, its managing director, in respect of waste materials delivered by URM to the material recovery facilities which Par operated at Somersby, which were regulated by the Waste Avoidance and Resource Recovery Act 2001 (NSW). There it sorted and recovered recyclable waste, which it then sold.

2. [2]

   Par entered the first written 2011 Somersby Supply Agreement with URM and Mr Johnston in 2011. URM then operated the Kimbriki Resource Recovery Centre at Terrey Hills under an agreement it had with Kimbriki Environmental Enterprises Pty Ltd, KEE, which owned the Centre. It was known as the KES agreement. For its part Par never had any agreement with KEE.

3. [3]

   The shareholders of KEE were then various local Councils, comprised in 2011 of Manly, Mosman, Pittwater and Warringah. They were known as “SHOROC”, which was not a separate legal entity. URM had separate contracts with these Councils for the collection of waste from the kerbside, which it delivered to Kimbriki. Those Councils operated residential split service collections, where households divided mixed paper and commingled containers of recyclables such as glass, plastic and aluminium into separate bins which URM then collected.

4. [4]

   Such collections may be contaminated by non-recyclable rubbish placed into a kerbside recycling bin. At Kimbriki URM removed some of this non-recyclable waste, combined the balance and transported those materials by semi-trailer to Somersby. Par then had to separate the remaining waste and dispose of it in landfills, at its own cost.

5. [5]

   Such waste removal increases the cost of processing and the materials which have to be disposed of in landfill also increases the cost to operators like Par. The level of acceptable contamination was thus regulated by the 2011 agreement. It also provided that it would come to an end on termination of the KES agreement.

6. [6]

   In October 2014 the KES agreement was terminated and replaced by another agreement between KEE and another company in the URM Group, URM Environmental Services Pty Ltd, URME. Whether this was known to Par was in issue. But even though the term of the 2011 agreement depended on the continuation of the KES agreement, Par was never provided with a copy of that agreement, nor the one that replaced it in 2014.

7. [7]

   URM and after 2014, URME, received materials at Kimbriki which had been collected from the SHOROC councils from kerbside recycling bins, as well as from others, including commercial collectors. It was all that material which was bulked up at Kimbriki and transported for processing at other material recovery facilities, including Par’s Somersby facilities.

8. [8]

   It became common ground at the hearing that when the 2011 agreement terminated in 2014 on the KES agreement coming to an end, a second, implied agreement which replaced the 2011 agreement then came into existence. But its parties and terms were also in issue.

9. [9]

   The third agreement, which on Par’s case it entered with URM in 2018, concerned the sharing of container deposit scheme refunds which Par later received in respect of the waste it processed at Somersby, the CDS agreement. The parties to and terms of that agreement were also disputed. That agreement was reached in the context of the regulation of the new scheme introduced under the Waste Avoidance and Resource Recovery Act and the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 (NSW), which came into operation in December 2017.

10. [10]

    Up until 2019 Par had no contractual relationships with individual SHOROC Councils. It was in February 2019 that Par entered into a second refund sharing agreement with the Northern Beaches Council, the regulatory scheme precluding it from continuing to receive refunds after December 2018 without either entering into such an agreement, or Council taking the view that in the circumstances it was fair and reasonable that there was no such agreement in force: reg 18(2)(a)(i). In issue is whether the CDS agreement was still then on foot.

11. [11]

    Disputation between the parties regarding the failure to make payments due to Par and Par’s failure to make payments that URME claimed were due to it under the CDS agreement, resulted in the parties’ dealings with each other coming to an end in June 2019 and the commencement of these proceedings in August 2019.

12. [12]

    Until early 2018 Mr Waddington had been Par’s controlling mind and afterwards that became Mr Gallagher, who was the sole director and beneficial owner of Stop Waste Pty Ltd, which acquired Par in 2018. It was Mr Anthony Johnston, one of URM’s directors, who was its controlling mind. At relevant times his brother Mr David Johnston was also a director and the general manager.

13. [13]

    Mr Anthony Johnston and Mr Waddington had long had a commercial relationship, albeit marked at times with disputes about adherence to their companies’ contractual obligations, which they mainly resolved. Those which involved Mr Gallagher and Mr Johnston after Mr Waddington’s departure were finally not.

The competing claims

1. [14]

   URM had delivered containers of recyclable waste to Par for specified “gate fees” under the 2011 agreement. These fees were varied in accordance with the terms of the 2011 agreement or by specific agreement, even after the 2011 agreement was terminated in 2014 and the implied agreement came into existence.

2. [15]

   Par originally claimed that some seven invoices for outstanding gate fees totalling $687,352.60 due under the 2011 agreement in 2018 and 2019, which Mr Johnston had guaranteed, remain unpaid. Par also claimed that it made payments totalling $503,665.80 to URM under the CDS agreement, which it was liable to refund. That was disputed.

3. [16]

   The URM parties’ pleaded case included that at relevant times URM was not a party to the agreements Par relied on, the 2011 agreement having been terminated in October 2014 and the parties to the CDS agreement being Par and URME. Further, that Par was itself in breach of the CDS agreement.

4. [17]

   By their cross-claim, URM and URME sought to recover from Par some $2,095,356.13 for its alleged breaches of the CDS agreement, although only $2,077,585.91 was pressed in opening written submissions. Accepting that there were sums unpaid under the implied agreement, an order in favour of URME for $1,824,431.05 plus interest was finally pressed.

5. [18]

   That was also defended by Par which, by its cross-claim against URM and URME, also sought a declaration that the CDS agreement was void ab initio. It also sought to recover loss or damages of $9,859,157.17 from URM under s 236 of the Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law for misleading and deceptive conduct and in the alternative, on the basis of unjust enrichment.

6. [19]

   At the hearing Par’s cross-claim was amended without objection following the late service of an affidavit sworn by Mr Johnston only in August 2022 in which he deposed that until these proceedings were brought, he had believed that the 2011 agreement had not been terminated in 2014.

7. [20]

   By the amendment to its cross-claim Par also claimed that the CDS agreement should be set aside in equity, it having entered that agreement in the mistaken belief that the parties were bound by the 2011 agreement. That being fundamental to the negotiation of the CDS agreement, a mistaken belief for which Par was not at fault, but URM was responsible, the money orders it pressed would be made.

Conclusion

1. [21]

   In short, for reasons which follow, I am satisfied that Par has made out its claims in respect of the unpaid invoices and what it paid under the CDS agreement, but the parties have not met the onus falling upon them to establish what was pursued by their respective cross-claims.

Facts and Issues

1. [22]

   Before the hearing the parties agreed the following facts:

2. [23]

   The extensive issues lying between the parties were identified pre-trial, but in written opening submissions the URM parties’ case was that the real issues could more simply be identified to be:

3. [24]

   They, it was contended, turned on three key documents: the 2011 agreement, the KES agreement, and the written part of the CDS agreement.

4. [25]

   In final submissions the issues addressed for Par included:

   1. (1)

      the terms of and parties to the implied 2011 agreement;

   2. (2)

      the three invoices issued under the implied agreement claimed by URM to have been paid by way of set off;

   3. (3)

      whether URM breached the implied agreement for which the damages claimed are payable;

   4. (4)

      the terms of and parties to the CDS agreement, including whether it required URM or URME to negotiate a refund sharing agreement with the councils;

   5. (5)

      whether Par breached the CDS agreement for which the claimed damages are payable; and

   6. (6)

      whether there was a mistake in relation to the termination of the 2011 agreement which has had the result that URM or URME was unjustly enriched as the result of its misleading and deceptive conduct, so that it should be ordered to repay what Par had paid under the CDS agreement.

5. [26]

   The issues addressed for the URM parties in closing written submissions were:

   1. (1)

      in respect of Par’s Statement of Claim, are four or seven gate fees invoices still owing by URM or URME to Par?

   2. (2)

      does the CDS agreement on which URM and URME sue for contractual loss relate to the period 1 December 2017 to 30 June 2019, or 1 February 2018 to 30 November 2018?

   3. (3)

      how much is payable by Par to URM based on the URM/URME cross-claim alleging breach of the CDS agreement?

   4. (4)

      the fate of Par’s Cross-claim – it should be dismissed.

6. [27]

   The damages finally sought by Par were:

   1. (1)

      $7,978,953.70 for the amount that Par would have been paid by URM or URME for the containers it received, were it not for the URM parties’ misleading conduct. This figure is the difference between what URM/URME paid Par under the implied agreement and Par’s commercial rates during the term of that agreement, said to be evidenced by various notices that it issued to other customers of its rates;

   2. (2)

      $503,665.80 paid under the CDS agreement; or

   3. (3)

      $689,042.20 outstanding under the implied agreement, unless it is found that URM or URME paid $185,376.40 to Par in respect of invoices 25, 61 and 113 by way of contra for what it was owed under the CDS agreement.

7. [28]

   The damages pressed by the URM parties was an underpayment under the CDS agreement of $1,824,431.05.

8. [29]

   Evidence was called from Mr Gallagher, Mr Waddington, Mr Knowles who is Par’s long time general manager and Mr Anthony Johnston, who were each cross-examined. The result was that there was conflict between the evidence of all of the witnesses, which has to be resolved.

9. [30]

   There were also issues at the hearing about the admissibility of part of Mr Johnston’s evidence as expert evidence under s 79 of the Evidence Act 1995 (NSW), and the credibility and reliability of some of the witnesses’ evidence.

10. [31]

    Mr David Johnston, who had been involved in various of the meetings and correspondence between the parties, was not called. Nor was Mr Harris, for a long time URM’s company secretary and at times its general counsel, who had drafted the 2011 agreement.

11. [32]

    Also in issue was whether Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inferences would be drawn from the URM parties’ failure to call evidence from Mr David Johnston and Mr Harris. There was no issue that they were available and the explanation given for not having called them was that their evidence was not necessary, given the evidence of Mr Johnston.

The claimed expert evidence

1. [33]

   There was no issue as to the relevance of the disputed evidence. I took the view that while it was admissible as Mr Johnston’s explanation of the claims advanced against Par, it was not admissible as expert opinion evidence under s 79 of the Evidence Act. The reasons for those conclusions were as follows.

2. [34]

   In his first affidavit Mr Johnston explained his undisputed experience in the waste management, resource recovery and recycling industries since about 1990 and his business dealings with Mr Waddington, Par and Mr Gallagher over time. He had taken over his father’s business and established the URM Group, which operates five processing facilities in Australia and the UK. Mr Johnston explained how the URM parties’ cross-claim had been calculated, by reference to a table exhibited to his affidavit.

3. [35]

   While Mr Gallagher said he could not agree to figures in the table without an audit, there was no issue as to the tonnage delivered by container under the 2011 agreement for processing by Par, established by contemporaneous records, to which Mr Johnston had referred in his calculations.

4. [36]

   Mr Johnston also explained what, in his opinion, the containers delivered to Par contained, by reference to glass, aluminium and plastic. In his affidavit he explained that:

5. [37]

   What Mr Johnston otherwise had regard to in arriving at his opinions was not disclosed. Their admission as expert opinion evidence was opposed as not satisfying the requirements of s 79 of the Evidence Act.

6. [38]

   Section 76 makes evidence of an opinion not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 79 provides an exception in the case of the opinion of a person who has specialised knowledge based on the person’s training, study or experience, in respect of evidence of an opinion of that person that is wholly or substantially based on that knowledge.

7. [39]

   Whether Mr Johnston had the necessary specialised knowledge, based on his experience in the waste recycling industry was in issue, as was whether his opinions were substantially based on that experience.

8. [40]

   URM’s case was that his opinions resting as they did on his undoubted long industry experience and his understanding of the URM Groups’ businesses, established that they were substantially based on his specialised knowledge and so were admissible under s 79 of the Evidence Act.

9. [41]

   I was satisfied that this could not be accepted.

10. [42]

    In HG v The Queen (1999) 197 CLR 414; [1999] HCA 2, the need for an expert to differentiate between assumed facts on which an opinion is based and the opinion in question, and that opinions which are based on a combination of speculation, inference, personal and second-hand views are not admissible under s 79 of the Evidence Act, was discussed at [39]-[44]. That is why the reasoning process which led the expert to the opinion expressed must also be disclosed: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [42].

11. [43]

    That was of importance in this case because it was expertise in an industry claimed to have been gained by experience in operating a business, rather than expertise in a more objective field, on which the opinions expressed by Mr Johnston were based: Dasreef at [37].

12. [44]

    The difficulty with the disputed evidence was that in his affidavit Mr Johnston did not disclose what his opinions were based on, other than by the above quoted paragraphs. Nor did he explain his reasoning process.

13. [45]

    The evidence suggested that URM had records about the composition of containers which it sent to Somersby for processing. In evidence already were also contemporaneous documents establishing the results of audits which Par conducted of such containers. In 2016, for example, at a time when the parties were engaged in an extensive dispute over contamination, Par considering that the containers contained excessive waste, about which Mr Waddington had been cross-examined. But Mr Johnston did not reveal whether he had considered such records in arriving at his opinions or indeed, what other information he had had regard to.

14. [46]

    On the evidence, “Exchange for Change” had also examined samples of the URM containers Par had processed after the statutory refund scheme in respect of which the CDS agreement was entered, came into operation. But whether Mr Johnston had had any regard to information about the results of that sampling, was also not revealed. Nor did he reveal what information which the undisclosed industry sources he had consulted had provided him, or the result of the account he had taken of that information.

15. [47]

    Utilisation of information produced by such third parties does not necessarily make an expert’s opinion inadmissible. But what is considered and the use made of it by an expert in exercising his or her specialised knowledge, in order to arrive at an opinion must be disclosed so that the Court is able to determine whether or not the opinion arrived at was substantially based on the claimed specialised knowledge: Dasreef at [37]. That is, the expert must explain how the opinion reached was produced. That requires the facts underlying the opinion to be disclosed: ASIC v Rich [2005] NSWCA 152 at [92]-[107].

16. [48]

    The reasoning process must also be disclosed. Otherwise, the lack of transparency of what the expert considered and how it led to the opinion may make it inadmissible, even though expert opinion evidence will not be excluded solely because the factual basis upon which the opinion is proffered is not established by other evidence: Fuller v Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305 at [89]. In this case neither the factual bases on which Mr Johnston’s opinion was arrived at was disclosed in his affidavit, nor were any assumptions which he had made, nor his reasoning process.

17. [49]

    After I announced my conclusion that while the disputed evidence was admissible to explain the claim, it was not admissible as expert opinion evidence, Mr Johnston was called. In his oral evidence in chief, he then altered the table exhibited to his affidavit, but the claim advanced against Par was not altered as a result.

18. [50]

    That development confirmed the problem with the disputed evidence, which made it inadmissible as expert evidence.

19. [51]

    The table in issue provided, for example in relation to what was described to be the December 2017 to March 2018 and April to June 2018 quarters:

20. [52]

    In his oral evidence Mr Johnston amended the first column of the table to increase the amount of glass from 68% to 75-78% and the total of the recyclable materials from 82.41 to 89.41-92.41%. That was said to have been a “clarification” of his position. It was in fact an unexplained alteration in the opinions he had earlier expressed, which had the result that the calculations made in other parts of the tables were incorrect.

21. [53]

    The explanation Mr Johnston gave for these amendments was:

22. [54]

    That development confirmed the failure to disclose the facts and assumptions on which Mr Johnston’s earlier and final opinions were based, as well as the reasoning process by which Mr Johnston had arrived at his original and altered opinions. His oral evidence did not rectify these problems, it compounded them. That confirmed the inadmissibility of the disputed evidence under s 79 of the Evidence Act.

23. [55]

    Nevertheless, the evidence was admissible to explain the claims advanced against Par, on the basis of beliefs which Mr Johnston had about the composition of the containers in issue. There was no issue that he had those beliefs. But beliefs may or may not have a rational basis. They may have a foundation in fact, or they may be mistaken. Establishing a basis for beliefs on which a claim such as that here advanced depends requires evidence about the matters on which the beliefs are based, the onus falling on the URM parties to make out their claim on the balance of probabilities.

24. [56]

    Given that Mr Johnston’s beliefs could not be admitted as expert opinions under s 79 of the Evidence Act, the result of which would have been proof of the existence of facts about which his opinions were expressed, those facts had to be otherwise established.

25. [57]

    As it transpired Mr Johnston’s beliefs were finally not relied on. An amended schedule based on his altered table was later provided, but a claim based on his calculations was not pressed.

26. [58]

    Instead, orders were pressed on the basis of the 2016 audit documents about which Mr Waddington had been cross-examined. That had the result that the claim pressed against Par was reduced.

Credibility

1. [59]

   Mr Johnston’s evidence contradicted aspects of the evidence of Mr Gallagher, Mr Waddington and Mr Knowles, who had corroborated aspects of the evidence which the others had each given in their affidavits. But in his cross-examination Mr Waddington made concessions which supported aspects of Mr Johnston’s evidence and contradicted that given by Mr Gallagher, who remains Par’s beneficial owner and controlling mind, as well as that given by Mr Knowles, who remains its general manager.

2. [60]

   Little light was shed on Mr Knowles’ evidence by his cross-examination, he not being much cross-examined, even about concessions which Mr Waddington had made.

3. [61]

   Whether concessions which Mr Waddington had made should be accepted or treated as mistaken was put in issue by Par.

4. [62]

   It was Par’s case that given that Mr Waddington had contradicted his affidavit evidence, which parts of his evidence were more reliable had to be determined, with there being no general requirement that his cross-examination should always be preferred. It was in the circumstances open to conclude that some of his answers were mistaken, for example as to the term of the CDS agreement. Further, the notion that his affidavit evidence was either somehow contrived or influenced by lawyers, should be rejected.

5. [63]

   I am satisfied that Mr Waddington was a careful witness who adhered to the requirements of his oath, answering questions put to him without obfuscation, explaining clearly why he did not agree to the propositions with which he disagreed, but accepting some matters put to him, even when they did not advance Par’s case. I am satisfied that his concessions were honestly made. I am not able to conclude that his concessions can be dismissed as Mr Waddington having been mistaken.

6. [64]

   Both Mr Gallagher and Mr Johnston approached their evidence differently to Mr Waddington, sometimes not making concessions which clearly, they ought to have. I came to have reservations about aspects of both of their evidence.

7. [65]

   Mr Waddington’s evidence, I am satisfied, was both credible and reliable, agreeing as he did with propositions put to him, even when they did not advance Par’s case in respect of matters which occurred at a time when he was its controlling mind. I have also concluded that in the event of conflict between the evidence of Mr Waddington and that of other witnesses, his evidence largely has to be preferred.

8. [66]

   Unlike Mr Waddington, Mr Gallagher and Mr Knowles also had an interest in the proceedings, given their respective ongoing positions, which had to be considered. Mr Johnston’s evidence had to be understood in light not only of his own interest in the proceedings, but also of the fact that although he has never practiced, he is legally qualified and on his own account, often enters into commercial agreements without obtaining legal advice, including with Par. Par also sometimes took legal advice about its dealings with URM, but not always. Still, I was not satisfied that all of his evidence had to be rejected.

9. [67]

   Mr Waddington’s evidence also helped resolve conflicts in the evidence of Mr Johnston and Mr Gallagher.

Jones v Dunkel inferences

1. [68]

   Contrary to the case advanced for the URM parties, I am satisfied that Mr Johnston having given evidence about matters about which Mr Harris and Mr David Johnston could also have given evidence, does not satisfy the operation of the rule in Jones v Dunkel. That rule is concerned with the calling of evidence about some matter which calls for explanation.

2. [69]

   While I accept that s 129 of the Corporations Act 2011 (Cth) is not pertinent to the resolution of this issue, that Mr Harris was in a position to give evidence about the state of URM’s knowledge of its contractual relationship with Par must be accepted.

3. [70]

   Mr Harris drafted the 2011 agreement, signed the KES agreement and was at relevant times URM’s company secretary and chief legal counsel. Objectively, its terms were always known to URM. Given Mr Harris’ position, his knowledge of the parties’ contractual relationships was also relevant to determining what URM’s corporate knowledge was on matters in issue, particularly in relation to the result of the termination of the KES agreement, for the 2011 agreement. That knowledge did not depend alone on Mr Johnston’s understanding at various times of contracts by which URM was bound, even though he was the controlling mind of both URM and URME.

4. [71]

   It follows that there was a seriously arguable case about the state of URM’s knowledge of the contracts by which it was bound at relevant times, despite Mr Johnston’s evidence about his understanding. This was not a case where the most appropriate person to give particular evidence having been called, there was no requirement to call cumulative evidence from others.

5. [72]

   Mr David Johnston was the general manager present at various meetings, the author of emails and involved in discussions on which other issues turned. He could have given evidence about some matters which Mr Anthony Johnston could not, as well as, like Mr Knowles, giving evidence corroborating or disputing aspects of the evidence given by the other witnesses who the parties called.

6. [73]

   I am satisfied that the result of the failure to call both Mr Harris and Mr David Johnston is that an inference must be drawn that their evidence would not have assisted the URM parties’ case on issues about which they could have given evidence.

7. [74]

   That accords with the operation of a Jones v Dunkel inference explained in RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 at [160] to be:

The implied agreement

1. [75]

   The parties to the 2011 agreement were Par, URM and Mr Johnston. The evidence is that all three conducted themselves as if they were still bound by its terms, even after it came to an end in 2014. In Mr Johnston’s case, for example, by signing letters in 2016 which threatened the pursuit of orders for specific performance of the 2011 agreement, as well as damages for its breach.

2. [76]

   It follows that the parties’ agreement that after the termination of the 2011 agreement and on termination of the KES agreement, albeit unbeknownst to Par, they were bound by an implied agreement must be accepted as having a good foundation. That accords with the approach to the inference of a contract from conduct discussed in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97,326 at 11,117-11,118, referred to in Francis Gregory Hannigan v Inghams Enterprises Pty Limited [2019] NSWSC 321 at [75], on which the URM parties relied and in Kriketos v Livschitz [2009] NSWCA 96 at [11]. In Integrated Computer Services it was observed:

3. [77]

   The evidence well establishes that this dynamic commercial relationship remained on foot from 2011 until 2019, after the termination of the KES agreement in 2014 and the resulting termination of the 2011 agreement, which was not known to Par, under the ongoing implied agreement.

4. [78]

   During that time Mr Waddington and later Mr Gallagher were involved in repeated, extensive discussions with Mr Johnston about the need to increase gate fees because of changes in the market, in a context where Mr Johnston was also pursuing discussions with KEE and the Councils about increases in gate fees which they paid. Mr Johnston did not agree with all of Mr Waddington’s views about the challenges which the changes in the market presented Par at different times, for reasons which he explained, but Mr Waddington’s representations resulted in negotiations being pursued by Mr Johnston about increased fees.

5. [79]

   Mr Johnston referred at one point in his evidence to “tripartite agreements between council, KEE and URM that needed to be entered into”, but the evidence does not establish that such an agreement ever came into existence. The position was that there came a time when KEE was no longer prepared to contract with URM and so a new agreement with URME was negotiated after a corporate restructure. Mr Johnston said that restructure had resulted in URME tendering for new contracts after 2013 and existing contracts being assigned to URME, in the case of Councils, with their consent.

6. [80]

   The same approach was not adopted in relation to Par.

7. [81]

   The 2011 agreement provided, somewhat redundantly, for the agreement to end on the expiry date, defined to mean the date of expiry of the KES agreement, or its earlier termination in accordance with its terms, or the termination of the KES agreement: cl 2.2. Clause 2.3 dealt with extension:

8. [82]

   Clause 9 dealt with termination in the event of insolvency or default and in the case of URM, by notice in writing if the KES agreement terminated. But it never gave Par such notice.

9. [83]

   These express provisions favoured URM, given that the agreement did not require it to notify Par of the termination of the KES agreement. While Mr Johnston said that he had discussed some of the provisions of the KES agreement with Mr Waddington, including its term, he was never given a copy.

10. [84]

    But still there is thus good reason for thinking that Mr Johnston should have appreciated that termination of the KES agreement, which also brought the 2011 agreement to an end, required that Par be given notice of its termination. That included his own legal training; his involvement in the negotiation of the terms of the 2011 agreement; the legal advice which URM had at relevant times; his involvement in the negotiation of the agreement which replaced the KES agreement; and his later involvement in pursuit of Par for alleged breaches of the 2011 agreement.

11. [85]

    But Mr Johnston’s evidence was that despite discussions which he claimed he had in 2014 with Mr Waddington about URME, which Mr Waddington denied, he did not appreciate that the 2011 agreement had terminated until 2020, when involved in preparation of the defence of Par’s claim in these proceedings. It was not put to Mr Johnston that his evidence was false. His understanding was consistent with adoption of an approach which did not pay sufficient regard to the differences between the companies involved in the URM Group, which itself had no independent legal existence, or the position of Par. That was established by both correspondence and conduct.

12. [86]

    Mr Johnston’s explanation included how he came to appreciate only after the proceedings were commenced that it had terminated in 2014, as the result of advice then received. He said in cross-examination that he considered the agreement which replaced the KES agreement merely extended it, that he had formed the view that a new corporate entity was required to enter that agreement and that “we were the same entity”. Further that:

13. [87]

    This and other aspects of his evidence were difficult to credit and what Mr Johnston told Mr Waddington in 2014 when the KES agreement was terminated was also in issue. Characterising termination of the KES agreement to which URM was a party and URME then entering a new agreement on different terms, KEE no longer being prepared to contract with URM, cannot sensibly be described as a mere change in the name of the company which had contracted with Par. If that was what he told Mr Waddington he would have misled him.

14. [88]

    I am satisfied that Mr Waddington’s evidence must be preferred. What he was told conveyed neither that the KES agreement had been terminated, nor that a replacement agreement had been entered by URME.

15. [89]

    There was finally no issue that Mr Johnston was a party to the implied agreement, under which he continued to provide a guarantee. Whether it was URM or URME which was the contracting entity was in issue. I am satisfied that it was URM.

16. [90]

    The documentation provided to Par lends no support to the conclusion that any contract between URME and Par ever came into existence. That required an intention to enter into a contractual relationship which never existed on Par’s part.

17. [91]

    On Mr Gallagher’s evidence, he first began working with Par in 2016. As part of his due diligence, he reviewed Par’s books and records, including the 2011 agreement. But until these proceedings were brought, he had never seen the KES agreement. Nor had Mr Waddington.

18. [92]

    Until then both Mr Waddington and Mr Johnston also believed the 2011 agreement had continued to operate until 2019. It was only during the course of these proceedings that the replacement for the KES agreement was disclosed.

19. [93]

    Mr Waddington’s affidavit evidence was that his understanding was that the 2011 agreement was for the duration of the KES agreement; that by June 2014 he was discussing with Mr Knowles its termination, because of deteriorating market conditions, but that he did not think Par had a right to terminate. It was only in 2020 that Mr Gallagher told him that it had been pleaded in the defence that the KES agreement had been terminated in 2014. Nor had he ever been told that there was a new agreement between URME and KEE.

20. [94]

    In his affidavit Mr Johnston explained the negotiations pursued from 2012 with KEE for an agreement to replace the KES agreement, which resulted in extensions of the KES agreement to December 2013, February 2014, April 2014, June 2014, August 2014 or until execution of a new agreement, and December 2014 or until execution of the new agreement. There were issues about the gate fee which KEE was prepared to pay. Mr Johnston was then concerned that KEE might try and take over control of the Kimbriki facility and put it up for a new tender. He claimed that he had discussed his concerns with Mr Waddington in February 2014, who was concerned that Par might lose the product supplied from Kimbriki.

21. [95]

    In his reply affidavit Mr Waddington also disputed this. His evidence was that he was unaware at the time that URME was negotiating a new agreement, although he did know that the KES agreement had been extended and might be extended further.

22. [96]

    Mr Johnston gave some further oral evidence and both Mr Johnston and Mr Waddington were cross-examined about this issue.

23. [97]

    Mr Waddington insisted that Par’s contracts were with URM. He had been dealing with Mr Johnston since 2009 and had purchased the Somersby operation from him in 2011; they became acquaintances; at all times while he had a management role at Par he dealt with URM on the basis that the 2011 agreement was on foot; that this agreement “had a perpetual nature that linked it” to the KES agreement and “so as long as that arrangement existed we had an agreement that we would process the materials”; while the agreement remained in place Par had a contractual obligation to process the material URM supplied; that Mr Johnston told him in early 2014 that he was negotiating a new agreement between KEE and the URM Group; but he denied being told that in place of URM, another Group entity would become the contracting party with KEE.

24. [98]

    Mr Waddington’s evidence was also that:

25. [99]

    Mr Waddington was not re-examined.

26. [100]

    Mr Johnston also said that during the ongoing negotiations he spoke to Mr Waddington about KEE’s insistence that the URM entity it contracted with change, which meant that the entity Par dealt with would also have to change. In oral evidence he said that their conversation was:

27. [101]

    The rates were agreed but even if this discussion occurred, which I am satisfied cannot be accepted, it did not evidence a desire nor agreement that URME would replace URM as the party Par was contracting with. The later written notification given only in September 2015, after new internal systems were put in place, advised, firstly:

28. [102]

    Mr Johnston’s letter advised:

29. [103]

    Mr Johnston was also cross-examined about this advice, agreeing that it was sent to notify suppliers of changes to supply bills for the Group, reflecting the conclusion of its restructure, which had gone through a number of stages since 2013. He agreed that this had tidied up billing arrangements.

30. [104]

    The written advice Par so received did not reflect any prior agreement that URME had replaced URM as the contracting party. To the contrary, it was consistent with a lack of concern or interest in giving Par information which it required, in order to understand the consequences of steps taken by URM to terminate the KES agreement, which resulted in the termination of the 2011 agreement, or to negotiate an agreement to replace it.

31. [105]

    Consistently with Mr Waddington’s understanding that the 2011 agreement remained on foot, later communications from Par referred to URM. They were never corrected as needing to be directed to URME. They included default notices sent under the 2011 agreement in 2016; communications about increases in gate fees which necessarily involved amendment of that agreement; and correspondence from Par’s lawyers, which also dealt with the 2011 agreement and referred to URM.

32. [106]

    The use of URM Group letterhead which referred in a footer to both URM and URME in communications directed to Par, to which Mr Johnston referred in his cross-examination, also does not establish that URME ever contracted with Par.

33. [107]

    In the result I am satisfied that Mr Waddington’s evidence on this issue must be preferred over that of Mr Johnston. I am satisfied not only that there was no disclosure of the termination of the KES agreement, that its replacement had been entered into with URME and that the 2011 agreement had terminated as a result, but that URME never became a party to the implied agreement.

34. [108]

    It was an express term of the 2011 agreement that it would terminate when the KES agreement ended. Given this, it seems improbable that Par would not have had regard to the terms of the KES agreement when it negotiated its commercial agreement with URM. On Mr Johnston’s evidence Par was never given a copy, although on notice of its existence.

35. [109]

    Still the terms of the KES agreement are pertinent to determining the terms of the implied agreement, Par being unaware of either its termination or the existence of the agreement which replaced it, the new agreement between KEE and URME.

36. [110]

    In issue is whether the implied agreement had a specified period and similar provisions as to termination as the 2011 agreement, albeit in the latter case by reference to the new KEE/URME agreement.

37. [111]

    That was the URM parties’ case. Thus in opening written submissions it was submitted that as from around 13 October 2014 Par and URM continued to deal on the basis of an implied agreement that the parties were operating on the same terms as the 2011 agreement “as it related to the delivery of the relevant containers and payment of gate fees by URM to Par, as only varied by the three specific gate fee price increases referred to above to $50 per tonne (in October 2016), $70 per tonne (in June 2017) and $100 per tonne (in December 2018).”

38. [112]

    Par’s case was that the implied agreement had no express duration and thus contained an implied term that it could be terminated by either party on the giving of reasonable notice to the other: Crawford Fittings Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 at 443-444.

39. [113]

    I am satisfied that Par’s case must be accepted.

40. [114]

    The commencement date of the KES agreement was 1 January 2010 and its term was specified in cl 2.2.1 to be the “Initial Contract Term”, defined in cl 1.1.1 to mean “the period of three years commencing on 1 January 2010”.

41. [115]

    Clause 5 provided for the KES agreement to be varied; cl 6.2 dealt with default; and cl 6.3 with termination in the event of default. It was extended by a number of separate agreements, until it came to an end in 2014.

42. [116]

    Par did not come to know that the 2011 agreement had been terminated until 2020. Its term was specified to be until the expiry of the KES agreement, unless earlier terminated by agreement: cl 2. Par was not given notice of the termination of that agreement or that URME had entered into a replacement agreement with KEE, despite cl 9 of the 2011 agreement also providing for immediate termination on the giving in writing of notice to Par of the termination of the KES agreement. Such notice was not given.

43. [117]

    In those circumstances the implied agreement cannot have had any fixed duration. Nor could it contain terms referrable to the KES agreement, which had terminated, nor that entered by URME and KEE to replace it, the existence of that agreement not having been disclosed to Par, while the implied agreement remained on foot.

44. [118]

    In my view the result is that as to termination, the implied agreement contained a termination provision implied by law, by the giving of reasonable notice.

45. [119]

    The implied agreement was later terminated. Mr Johnston’s evidence was that in January 2018 he instructed accounts to stop making payments to Par until there was a proper reconciliation of what was owing under the CDS agreement. After June 2019 no further waste was provided to Par to process. There is no suggestion that URME’s agreement with KEE had by that time come to an end.

46. [120]

    It follows that termination of the implied agreement can have only happened as the result of steps taken by URM to bring about that result. That accords with the implied agreement containing the implied term, which permitted either party to give the other reasonable notice of its termination. Neither party contended that what URM had done had involved any breach.

47. [121]

    While that is certainly not determinative, it establishes how these commercial parties dealt with each other under the implied contract, by which they accept they were bound

48. [122]

    There is no issue that the seven invoices on which Par’s case rests have not been paid. Whether three of them are subject to a binding “contra” agreement entered in the context of the CDS agreement has to be resolved.

49. [123]

    On his evidence Mr Johnston was concerned that URME was being underpaid and so in January 2018 instructed that payments due to Par cease being made, while he pursued a reconciliation of the CDS payments. Negotiations resulted, on his evidence, in payments due to Par being offset against CDS revenue, with the balance $83,470.64 outstanding to be paid by URME.

50. [124]

    There were 2018 email communications about the three invoices being set off against payments due under the CDS agreement, which was agreed. On Par’s case this was not binding and was later withdrawn by another email communication on 7 March 2019 when it was advised:

51. [125]

    It was clearly open to the parties to agree to payments due to each other under their two agreements to be set off against each other. Once made as it was, there being no suggestion of any lack of authority or absence of good faith, the contra agreement could not be unilaterally withdrawn, proper consideration having been given by the parties’ respective promises to each other about payments due.

52. [126]

    Given the conclusions which I have reached in relation to damages which require the repayment of what URM was paid under the CDS agreement, however, it follows that there can be no set off of any amount payable under that agreement against what Par is owed under the invoices the subject of the contra agreement.

What would Par have done if put on notice of the termination of the 2011 agreement in 2014?

1. [127]

   Also in issue was whether the parties would have entered a new agreement in 2014, if Par had been put on notice of the termination of the 2011 agreement and what fees would then have been agreed.

2. [128]

   Clause 5.1 of the 2011 agreement provided for fees of $30 per tonne to 28 February 2012; $31 per tonne to 28 February 2013; and $32 per tonne to October 2013, thereafter to be varied in accordance with the CPI rate. There was no other right to variation of these rates, but increases were later agreed.

3. [129]

   Mr Waddington’s affidavit evidence was that after 2014 while Par was still operating under the 2011 agreement, he was looking at increasing the gate fees it provided, or terminating the agreement, because Par’s operations under the agreement were running at a loss. Mr Waddington also described falls in the market price of glass up to 2014 and what Par was doing to deal with this and other problems in the industry, about which he was cross-examined.

4. [130]

   He also said that had he known the agreement had terminated, he would have stopped accepting deliveries, but he did not think Par could. He would also have cancelled the agreement, if he thought he could. While he would have considered entering a new agreement, he would then have required a starting price of at least $105 per tonne.

5. [131]

   In cross-examination Mr Waddington said however, that Par was receiving a significant income stream from URM; that it wanted to continue that commercial relationship, which was why it later pursued the default process under the 2011 agreement as it finally did in 2016; and why steps to terminate the agreement were not then taken. Further that:

6. [132]

   Mr Gallagher’s evidence shed no light on this, he not having been involved in Par in 2014, other than advancing the table by which the claim for what fees Par would have charged URM if not bound by the 2011 agreement.

7. [133]

   Mr Knowles said that he had also not been involved in the negotiation of the 2011 agreement, but when it was entered the market for recyclables was stronger than in later years. By 2014 it had declined significantly and like other operators, Par was seeking to renegotiate its gate fees. His recommendation to Mr Waddington was that the gate fees had to be increased, or the 2011 agreement terminated. Further, that if he had been aware of the termination of the agreement, he would have told Mr Waddington that Par had to stop taking deliveries from URM or enter a new agreement.

8. [134]

   Despite Mr Waddington’s affidavit evidence, I do not accept that he was mistaken in the concessions which he made in cross-examination. Even in 2016 when Par was pursuing URM for default when contamination levels went considerably higher than the 2011 agreement permitted, Par did not seek to terminate the 2011 agreement. This would have allowed it to negotiate higher rates, unconstrained by the 2011 agreement by which it believed it was then still bound.

9. [135]

   I am thus satisfied that Mr Waddington’s concession must be accepted, he being at the relevant time Par’s controlling mind.

10. [136]

    It follows that if Par had been given notice of the termination of the 2011 agreement in 2014, it would have entered into a replacement agreement with URM or URME for gate fees negotiated in the context of the replacement to the KES agreement.

11. [137]

    What was not known by Par while the implied agreement was on foot was that the replacement agreement between URME and KEE was for an initial fixed term commencing on 1 September 2014 and expiring on 31 March 2017, during which the right to terminate was limited, but during the subsequent term to 30 June 2019, it could be terminated on the giving of 3 months’ notice. Had that been made known to Par, it would no doubt have affected the parties’ negotiations.

12. [138]

    Par’s cross-claim was advanced on the basis that if it had been put on notice in 2014 of the termination of the 2011 agreement, it would have negotiated very considerably higher fees with URM. I am satisfied that it cannot be concluded that the rates Par claimed would then have been agreed.

13. [139]

    They were outlined in the table attached to Mr Gallagher’s affidavit, he being the driving force behind the litigation pursued after Mr Waddington was no longer involved in the business. The rates ranged from $82 per tonne in September 2014, at a time when Mr Gallagher was not involved in the business and when the gate fee under the 2011 agreement was only $32 per tonne, to finally $195 per tonne when the gate fee agreed in the context of the CDS agreement, was only $100 per tonne.

14. [140]

    Par relied on notices it issued from time to time to its commercial customers of its increased rates to advance its case. It had also sought in the past to negotiate much higher increases with URM, but that had never resulted in URM agreeing to pay such rates. There was also little contemporaneous record that they had been paid by other of Par’s customers.

15. [141]

    On Par’s case the documents establish that the gate fees URM paid in accordance with the 2011 agreement and what was negotiated were:

16. [142]

    But Mr Waddington’s evidence was that he had accepted URM’s position that the June 2017 increase to $75 per tonne should be reduced to $70 per tonne.

17. [143]

    Mr Gallagher explained in his affidavit that he was aware from Mr Waddington and his involvement with Par of its pursuit of higher gate fees in ongoing discussions with Mr Johnston, but that he only became involved in negotiations about this in the context of entry into the CDS scheme in December 2017. Had he then been aware that the 2011 agreement was no longer in force, he would not have entered the CDS agreement. It was then that the increase in the gate fee to $100 per tonne was agreed.

18. [144]

    Mr Gallagher explained Par’s cross-claim to be based on rates Par charged commercial waste collectors, the “commercial commingled rate”. He said:

19. [145]

    Mr Gallagher agreed that fully commingled waste included not only recyclable materials of the kind which Par received from URM as the result of the kerbside split collection material it collected, such as glass, aluminium and plastic, but also paper and cardboard, sometimes collectively referred to as “fibre”. The SHOROC Councils with which URM dealt used blue bins for fibre and yellow bins for other recyclables. In the case of other Councils with which Par dealt, all recyclables were collected in one bin. That increased the difficulty and cost involved in its processing.

20. [146]

    Mr Gallagher explained that the rate notices he relied on communicated gate fee price increases to commercial companies with whom Par did not have an ongoing contract for a specified period for the processing of commercial waste. Those rates were for commingled waste, including fibre and other recyclables, which such customers might provide on an ad hoc basis.

21. [147]

    The lower rates Par charged URM were explained by Mr Waddington’s affidavit evidence. There he explained that residential collections tended to have lower levels of contamination than commercial collections, with the result that operators tended to charge lower gate fees for residential collections because there was expected to be a much higher percentage of saleable commodities contained in that waste. Further, that the bulk of the material received under the 2011 agreement was glass, which meant inherently lower waste levels and higher saleable commodity, so that URM could be charged lower gate fees.

22. [148]

    Mr Waddington’s evidence was also that if Par had been in a position in 2014 to do so, it would have required a starting fee of $105 per tonne. There was in evidence an email sent to Mr David Johnston in December 2015 when the need for such a gate fee was discussed, at a time when the fee was said to be $34.90 per tonne. But doubt still was cast on Par’s case by other evidence, including that of Mr Waddington and Mr Knowles.

23. [149]

    The fees Par claimed need also to be considered in light of discussions between Mr Waddington and Mr Johnston in 2014 about the gate fee which Par would charge for waste collected from Ku-ring-gai Council, for which a tender was being pursued by URM. The price Par then required was only $45 per tonne.

24. [150]

    That was considerably less than the rates it charged for ad hoc contracts with commercial customers for comingled waste. It follows that those rates did not dictate what it would have negotiated in 2014 with URM, had it been aware of the termination of the 2011 agreement. Nor did Mr Gallagher’s evidence that at the time of the CDS agreement, Par had an agreement with another collector Remondis for $175 per tonne.

25. [151]

    What was relevant was what Par charged other customers at the time the 2011 agreement came to an end, with whom it had similar contracts to that which it had with URM and what it would have then been prepared to contract with URM for, given the type of waste it provided. The former was not revealed, but on Mr Knowles’ evidence he advised in 2014 that a rate of $42 per tonne was required by Par for the URM waste. That was less than the price that Par was prepared to do the Ku-ring-gai Council work for, $45 per tonne, consistent with Mr Waddington’s view that $42 per tonne was insufficient.

26. [152]

    In 2014, according to Mr Gallagher’s table, Par was charging ad hoc commercial customers $82 per tonne. That also does not support the view Mr Waddington expressed in his affidavit that in 2014 Par would have required $105 per tonne from URM, if it had known of the termination of the 2011 agreement.

27. [153]

    Mr Waddington’s evidence in cross-examination was also that in 2014, if he had been aware of the termination of the 2011 agreement, an agreed fixed price for gate fees per tonne for the first three years of a deal and then CPI increases going forward would have been arrived at.

28. [154]

    Mr Johnston’s evidence that URM would not have paid the claimed fees and that it would instead have contracted at lower fees with other operators which it then used, also cannot be overlooked. At that time it was paying Visy for the same product which it collected from Lane Cove and Hunters Hill and delivered to Somersby, only $37.50 per tonne. Contemporaneous documents reflected payment of such fees, which may explain why nothing came of Par’s offer to process waste from Hunters Hill Council for $45 per tonne.

29. [155]

    Even if in 2014 an increase to $105 per tonne had been agreed, that CPI adjustments would have resulted in the claimed rates in 2016, initially of $123.50 and then $150 per tonne, does not follow. CPI increases is what the agreement Mr Waddington envisaged would have provided for. If rates of $42 or $45 per tonne had been agreed in 2014 under such an agreement, that would also not have led to payments at the levels claimed by Mr Gallagher’s calculations.

30. [156]

    The evidence does not even establish that if in 2018 when the CDS agreement was being negotiated at a time when both Mr Waddington and Mr Gallagher were directors of Par, and the termination of the 2011 agreement had come to light, that Par would have required URM to pay the rates it charged its ad hoc commercial customers for the type of waste URM was providing for processing.

31. [157]

    In the result I am satisfied that it cannot be concluded that in 2014, if Par had been informed of the termination of the KES agreement, as it should have been, it would have required payment of the claimed fees. I cannot see that it would have sought a gate fee higher than $45 per tonne, in order to continue doing business with URM, as it was prepared to do in respect of the Ku-ring-gai Council.

32. [158]

    But given URM’s alternatives at that time, that an agreement even on that basis would have resulted, has not been established.

Par’s cross-claim

1. [159]

   The result is that no evidentiary basis for the over $8 million calculated in accordance with Mr Gallagher’s table sought by Par on its cross-claim has been established.

The CDS agreement

1. [160]

   While I am satisfied that URM was not paid all it was owed under the CDS agreement, because of the conclusions which I have reached about its misleading and deceptive conduct, no orders can be made in its favour in respect of this agreement.

2. [161]

   The evidence suggests that in total, Par received $12,253,032.60 under the statutory scheme from 1 December 2017 to June 2019 in respect of the waste it processed from all of the suppliers that it dealt with, including URM. In evidence is a spreadsheet which establishes what refunds it received as the result of information it provided about the waste it had processed and the payments it later made to URM and other of its customers. There is no issue about the correctness of this information or the calculations.

3. [162]

   Par dealt with other Councils such as Central Coast, which operated fully commingled recyclable residential collections with both commingled containers and mixed paper being placed in the same bin. It also dealt with commercial collectors which utilised bulk bins for fully commingled waste. While Mr Gallagher did not accept this, Mr Johnston considered that what URM delivered was more profitable for Par than what it received from its other customers.

4. [163]

   The refunds Par received were calculated by Exchange for Change by reference to the total weight of all of the material it processed, applying a prescribed formula to determine the mix of recyclables eligible for payment of a refund. They were not calculated by reference to the actual composition of what had been processed, which was another basis upon which refunds could have been sought under the scheme.

5. [164]

   It was not URM’s case that Par was obliged to have sought refunds on such a basis, but that would have required audits which it did not undertake. Under the scheme an operator could only be paid on one of these two bases.

6. [165]

   In making its calculations of URM’s share of the refund under the CDS agreement, Par thus did not differentiate between its customers by reference to the composition of materials it had received from each of them. Its calculations were made by reference to the tonnage URM supplied, that being some 27% of the total Par processed. Par thus paid URM 40% of 27% of the refund it was paid.

7. [166]

   On Mr Johnston’s evidence the payments received were:

8. [167]

   Par’s case was that URM was the contracting party and it was obliged to share these payments with SHOROC. Both were disputed, as was whether Par had paid URM all that it was entitled to receive under the CDS agreement. Its term was also in issue.

9. [168]

   Contractual construction must be approached objectively: Mount Bruce Mining Pty Limited v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 3 at [46]-[52]. The meaning of commercial contracts must thus be determined by asking what a reasonable businessperson would have understood those terms to mean: Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35]. That requires consideration of the language used in the contract, the circumstances it addressed and the commercial purpose or objects it secured.

10. [169]

    Evidence of surrounding circumstances, events, circumstances and things external to the contract cannot be adduced to contradict its plain meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 at 352.

11. [170]

    But recourse to such external matters may be necessary to identify the commercial purpose or objects of the contract, where that is facilitated by an understanding of the genesis of the transaction, the background, the context and market in which the parties are operating: Electricity Generation Corporation at [35]. Or where there is a constructional choice: Mount Bruce Mining Pty Limited at [49].

12. [171]

    Relevant objective matters may include the contract’s history, background and context and the market in which the parties were operating, but not the parties' statements and actions reflecting their actual intentions and expectations: Codelfa at 352.

13. [172]

    The Court is entitled to approach the interpretation of a commercial contract on the assumption "that the parties ... intended to produce a commercial result": Electricity Generation Corporation at [28]. A commercial contract should thus be construed so as to avoid it "making commercial nonsense or working commercial inconvenience”: at [35].

14. [173]

    What matters is “what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction”: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [40].

15. [174]

    Implication of terms in a contract involves a test of necessity, to give the contract "business efficacy": Codelfa at 345. There is limited scope for a court to rewrite a contract, even by permissible consideration of surrounding circumstances, when the contractual language is unambiguous: Newey v Westpac Banking Corporation [2014] NSWCA 319 at [91].

16. [175]

    There is, however, “a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on [their] part to enable the other party to have the benefit of the contract.”: Kyrwood v Drinkwater [2000] NSWCA 126 at [147] applying Butt v McDonald (1896) 7 QLJ 68 at 70-1.

17. [176]

    It should immediately be observed that not giving Par notice of the termination of the KES agreement, did not accord with this obligation

18. [177]

    In order to resolve what is in issue as to the proper construction of the CDS agreement it is thus necessary to have regard to the new statutory scheme in light of which the parties were negotiating, which commenced operation in December 2017. It was common ground that the scheme did not apply to the CDS agreement. But it had an impact on what the parties negotiated.

19. [178]

    The CDS agreement was entered in the context of the requirements of that scheme and the protocol by which it was administered. It was conducted by the EPA.

20. [179]

    Its objects were specified in s 19(1) of the Waste Avoidance and Resource Recovery Act to include:

21. [180]

    Section 28 of the Waste Avoidance and Resource Recovery Act permitted the payment of processing refunds to material recovery facility operators such as Par, for containers that were collected during the course of waste management services for reuse or recycling: s 28(1). It provided for publication of a protocol to be applied to determine the amounts payable to such operators as processing refunds: s 28(2). Such a protocol could provide a means for determining the estimated number of containers received, processed or dispatched by a material recovery facility operator, including by the use of audit or monitoring programs: s 28(3).

22. [181]

    The scheme co-ordinator is Exchange for Change. It operates the portal by which operators like Par may make applications for the payment of refunds. It published the NSW CDS Reporting Portal User Guide for MRF operators, who are entitled to make claims when applicable conditions are met. The EPA published the Material Recovery Processing Facility Refund Protocol 2017 which specified how Exchange for Change determines what is payable to operators, how they must make claims and receive refunds. The Protocol specified how amounts payable were determined.

23. [182]

    Payments were made by reference to material type, with operators having the right to elect to claim refunds by weight or direct counting. Par’s operation being large, it elected to make its claims by weight. The URM parties do not complain about this or suggest that the alternative approach should have been selected.

24. [183]

    Under the scheme use of the weighing method has the result that the operator is paid by weight in respect of the material processed, by application of a formula. This is calculated by reference to the weight of the material in the operator’s output which is eligible for refunds. That is established by an audit process regularly undertaken at the facility by Exchange for Change. Had the container method been utilised, however, the refund would have been referable to specific containers Par received from operators like URM.

25. [184]

    Mr Waddington’s evidence was that Par had had to alter its processes, in order to facilitate this auditing process. The cost of the resulting sampling was taken into account in the calculations which Exchange for Change made.

26. [185]

    The Regulation specified the circumstances in which processing refunds could be paid to operators: reg 18. They included in reg 18(2):

27. [186]

    This did not apply if the containers to which the claim relates are processed by the MRF operator within 12 months after the Scheme commencement day: reg 18(4). That commenced in December 2017.

28. [187]

    A refund sharing agreement was defined to mean an arrangement between a local council and a MRF operator under which the operator agrees to pay to the council a proportion of all refund amounts paid to the operator by the Scheme Coordinator on or after the Scheme commencement day, in respect of containers collected in the council’s area during the course of domestic waste management services: reg 18(5).

29. [188]

    A processing agreement was defined to mean an arrangement between a local council and a MRF operator under which the operator agrees to process for reuse or recycling domestic waste designated for recycling and collected in the council’s area during the course of domestic waste management services: reg 18(5).

30. [189]

    The CDS agreement did not fall into either definition.

31. [190]

    The Protocol also specified how refunds were to be made by reference to an “eligible container factor” published by the EPA in relation to six types of materials: aluminium, PET, segregated, mixed plastics segregated, mixed plastics combined and glass.

32. [191]

    The agreement was evidenced by a letter of 9 January 2018 sent by Par to URM, which both Mr Waddington and Mr Gallagher had signed, and which Mr Johnston later accepted by email. He also claimed that it was varied in two respects in a conversation which took place immediately afterwards. That was in issue.

33. [192]

    The letter dealt with both an increase in gate fees regulated by the implied agreement and a proposed sharing of refunds under the new statutory scheme. It provided:

34. [193]

    The effect of the variation to what was so agreed was claimed to have been:

35. [194]

    I have already explained why I have concluded that URME was not a party to the implied agreement. The evidence also establishes that URME was not a party to the CDS agreement.

36. [195]

    Consistently with their understanding that the 2011 agreement remained on foot, in December 2017 Mr Waddington and Mr Gallagher embarked on their pursuit of an agreement with URM in relation to higher gate fees, by proposing a refund sharing arrangement. That was not required by the legislative scheme, but a commercial decision. They thus wrote to URM, the other party to both the 2011 and, as it emerged in these proceedings, the implied agreements. They did not write to the URM Group or URME.

37. [196]

    Nothing that Mr Johnston did or wrote in response put Par on notice that it was URME which then had a contractual relationship with KEE and individual councils. By that time Northern Beaches Council had come into existence, after the amalgamation of some of the SHOROC Councils.

38. [197]

    Clearly Mr Johnston did not pay sufficient regard to the difference between his two companies and the Group. The result was that he did not do anything to suggest to Mr Waddington and Mr Gallagher that Par had to contract with URME, rather than URM, in relation to a sharing of refunds or increase in gate fees. The result was that the necessary intention, Par and URME entering into this contract, simply did not exist.

39. [198]

    The proper inference from all the evidence as to how these commercial parties conducted themselves at the time is thus that it was URM which became a party to the CDS agreement, reached as it was in the context of an agreement that the existing gate fee by which Par and URM were contractually bound, would also be increased.

40. [199]

    SHOROC was also not a party to the CDS agreement.

41. [200]

    Par’s case was that the reference to SHOROC in the body of this letter reflected that Mosman and Northern Beaches Councils were entitled to an unspecified share of the refund it was agreed URM was to receive. But that was not referred to in the letter.

42. [201]

    It was Mr Gallagher’s affidavit evidence that it was when he was finalising his buyout of Mr Waddington’s Par shares in December 2017, that they discussed providing URM and SHOROC Councils with a share of the CDS income “for the period before a CDS sharing agreement started, even though we didn’t have to, in return for a higher rate and a sharing agreement by 1 December 2018”. This was a reference to a higher gate fee and the provisions of reg 18. They agreed that as long as they kept the first few months to themselves, they could share some of the CDS income, to get a higher gate fee and the sharing agreement that they needed.

43. [202]

    The use of the term “contract manager for the SHOROC Councils” was explained by Mr Gallagher’s evidence in cross-examination as that being how Mr Johnston had described himself. When pressed, however, he said that Mr Johnston may not have exactly used that term, but that Mr Johnston had told him that he was managing the SHOROC contract. Still Mr Gallagher insisted that the CDS agreement did not only have as parties URM and Par. His understanding that SHOROC was a party rested on both Mr David Johnston and Mr Anthony Johnston having told him several times that SHOROC were their customer councils and they were the head contractor.

44. [203]

    That explains the use of the dispute term in the 9 January letter which Mr Gallagher and Mr Waddington drafted, neither party having engaged lawyers to advise them. But Mr Gallagher’s understanding provides no basis for the conclusion that SHOROC or the Councils of which it was comprised, became a party to the CDS agreement.

45. [204]

    SHOROC had no independent legal existence or any contract with URM or Par. Nor does the evidence suggest or establish that URM or Mr Johnston had any authority to act for or bind either Mosman or Northern Beaches Council which then comprised the SHOROC Councils, let alone KEE, with whom URME had entered the agreement which replaced the KES agreement.

46. [205]

    In December 2017 Mr Gallagher and Mr Waddington met with Mr Johnston and his brother David and offered:

47. [206]

    Mr Gallagher then considered that they needed to get $165 per tonne as the gate fee and that they needed a CDS sharing agreement with Council before December 2018. When they met with Mr Johnston, he also told him “If we can provide you with some CDS to give to Council, surely that held help with getting the higher rate you’ve said you’re trying to negotiate.” Mr Johnston said:

48. [207]

    Mr Waddington did not recall all of these discussions, but he recalled Mr Johnston saying that he did not want Par talking to the Councils and that URM would negotiate a sharing agreement with them. Mr Johnston denied all of this.

49. [208]

    On Mr Johnston’s evidence what was then being pursued by Par were fee increases, which he was prepared to raise with KEE, but in circumstances where there was no contractual right for URME to pursue them, because of its fixed term contract. Par was then being paid $50 per tonne, more than Visy was being paid. In December a $20 per tonne repayment was suggested by Par and at the December meeting:

50. [209]

    In early January there was another conversation:

51. [210]

    On 8 January there was an initial discussion:

52. [211]

    Mr Gallagher denied the claimed discussion in December and Mr Waddington the discussion on 8 January.

53. [212]

    But from their evidence Mr Gallagher and Mr Waddington had an expectation from the discussions that it would be Mr Johnston who would negotiate a refund sharing agreement between Par and the Councils before December 2018, when the provisions of reg 18 came into effect. That was why Par entered the CDS agreement. Mr Johnston denied agreeing to do so, or that URME would share the CDS payments it received with the Councils. That was agreed so that the fees could be increased to $100 per tonne, without an increase in what the Councils were paying URME.

54. [213]

    Mr Gallagher’s explanation of the 9 January letter in cross-examination included:

55. [214]

    When pressed to explain how this was reflected in the 9 January letter, Mr Gallagher could only point to the use of the term “URM as a contract manager for the SHOROC Councils”.

56. [215]

    Even accepting that Mr Gallagher and Mr Waddington had the expectations which they explained, the 9 January letter which they drafted had to convey those intentions and they also had to be accepted by URM.

57. [216]

    The result of acceptance of what Par offered by its letter to URM was simply incapable of making SHOROC a party to the CDS agreement.

58. [217]

    The letter was not drafted by lawyers. Use of the disputed term “URM as a contract manager for the SHOROC Councils”, on which Par’s construction of the 9 January letter depends, was not objected to by Mr Johnston. That term has no obvious meaning but it could have one which the parties had agreed. But that there was such a meeting of minds is not apparent.

59. [218]

    The term was used in the letter which also dealt with the other part of the agreement which URM and Par then arrived at, that the gate fee URM paid Par, then understood under the 2011 agreement, would be increased to $100 per tonne from 1 December 2018. There is no suggestion that the Councils then agreed to increase the gate fees they were paying.

60. [219]

    At that time Par understood that the 2011 agreement and the KES agreement, under which URM operated the Kimbriki Centre for KEE were both on foot. It was not aware of the replacement contract URME had entered with KEE in 2014 after the termination of the KES agreement.

61. [220]

    As a matter of logic, URM could not have been described as the contract manager of the 2011 agreement for the SHOROC Councils. They were not a party to that agreement. Or of the KES agreement which Par understood was still on foot, to which KEE, not the Councils was a party.

62. [221]

    URM also had contracts with individual councils which paid it to collect waste from the kerbside and transport it to Kimbriki. On Mr Johnston’s evidence they were assigned to URME, but there is no suggestion that it was those contracts, or any which replaced them, to which the 9 January letter was referring.

63. [222]

    Despite what the parties may have earlier discussed, URM negotiating a new agreement about refund sharing between Par and the Councils was not an obligation expressly imposed by the January letter. That can only be inferred from the words which were there used, if they are capable of having that meaning or at least that a reasonable person would have understood them to have had such a meaning.

64. [223]

    That was not established.

65. [224]

    Mr Gallagher could not explain why the disputed term had the meaning he ascribed to it. His evidence included that it was quite a “complex time because the on foot contract was actually managed by URM whereas the legislation was directed between a council and a MRF, and we weren't directly talking to the council about a gate fee, that was something that URM was managing as the collections and processing contract at the time”.

66. [225]

    Later, that Par shared the refunds “with URM and SHOROC to help with gate fee negotiations, cause [sic] it would help URM's cause with SHOROC to get higher gate fees so we shared revenue with URM and SHOROC to assist in those negotiations with revenue we didn't have to share with anyone.”

67. [226]

    While aspects of Mr Gallagher’s evidence were difficult to understand, what he was plainly referring to was the relationship between gate fees he understood URM received and those it was able to pay Par as a result. That had been a matter of repeated discussions over the years when increases in gate fees were pursued by Par.

68. [227]

    Mr Gallagher also agreed that in his negotiations with Northern Beaches Council, which he pursued in late 2018 when it was realised that URM had not negotiated a refund sharing agreement with Council, one of the matters which he pursued was why Par needed increased gate fees, which he accepted he got bogged down in putting to Council. But he said that was not the “sole bogged down part”. Still, he did not accept that in hindsight, he had gotten distracted with that issue, saying that he was happy with the commercial arrangement entered with the Council.

69. [228]

    Mr Waddington’s evidence in cross-examination included:

70. [229]

    That evidence also accords with a history of when Par pursued increases in the gate fee URM paid it, Mr Johnston also seeking to renegotiate the gate fees the Councils were paying and ownership of the waste transferring to URM on receipt at Kimbriki and then to Par after transport to Somersby.

71. [230]

    Mr Johnston did not accept that the letter imposed any obligation on URM either to negotiate a refund sharing agreement between Par and the Councils or to share the payments made to URM under the CDS agreement. He claimed the refund spilt was agreed in in order to permit the increase in gate fee which Par received from URM to $100 per tonne.

72. [231]

    On Mr Johnston’s evidence, URME paying increased gate fees to Par usually depended on it also receiving increases in the gate fees the Councils were prepared to pay and so URME had to negotiate both. Agreeing to pay Par considerably higher gate fees of $100 per tonne, without increases in the gate fees URME received, because of Par’s agreement to share the refunds which it received under the new statutory scheme, thus makes commercial sense. It was a departure from how the parties had previously conducted themselves.

73. [232]

    Conceivably, a refund sharing agreement between URM and Par might have provided a basis for the Councils notifying the EPA under reg 18 that they considered that in the circumstances, it was fair and reasonable that there was no refund sharing agreement between them and Par in force by December 2018. For example, if the result of that sharing meant that URM would not be seeking higher gate fees from the Councils. That would then have entitled Par to continue receiving statutory refunds: reg 18(2)(a)(i).

74. [233]

    But that did not occur, nor did URM negotiate an agreement between Par and the Councils. Given their competing commercial interests, URM agreeing to negotiate such an agreement, seems unlikely.

75. [234]

    But the result of the dispute over the requirements of the CDS agreement was that Mr Gallagher pursued a separate agreement with Northern Beaches Council at the end of 2018, which only took effect in February 2019. In those circumstances, in accordance with reg 18, from 1 December 2018 until that agreement took effect, Par was not entitled to receive any refunds under the scheme. He also said Par had also finally entered an agreement with Mosman Council. But for a time Par received no refunds which it was obliged under the CDS agreement to share with URM, as the result of the operation of the statutory scheme.

76. [235]

    It is also pertinent that what was agreed in the February 2019 agreement with Northern Beaches Council was that Par would pay the Council $220,000 for the period when they had no agreement, but Par was bound by the CDS agreement with URM. Had SHOROC or the Council been entitled to a share of what Par had already paid URM under the letter, it is difficult to see that Par would have made such an agreement with Northern Beaches Council.

77. [236]

    But Par also claimed that if any order be made against it under the CDS agreement, what it so paid the Council must be deducted. But there is no basis in the 9 January letter, for the making of such an order. The payment which Par agreed to make Northern Beaches Council was the result of a commercial decision, later made in order to arrive at a refund sharing agreement which would permit it to access refunds under the scheme, not of any requirement imposed by the letter.

78. [237]

    That the use of the term “contract manager for the SHOROC Councils” in the 9 January letter evidenced either an obligation on URM to negotiate an agreement between the Councils and Par about the sharing of refunds which it received under the statutory scheme, or to share with the Councils the split of Par’s refunds it was agreed URM would receive, thus cannot be accepted. Despite what Mr Waddington and Mr Gallagher may have intended, that is not what the words which they used conveyed, what URM agreed to do, or what a reasonable person could have understood in the circumstances.

79. [238]

    In order to resolve what is here in issue it is necessary to pay attention to the timeline of correspondence and discussion between the parties on 8 and 9 January 2018. That was

    1. (1)

       on 8 January at 12.16 pm Mr Waddington sent an email to Mr Johnston attaching an unsigned letter, saying

    2. (2)

       at 12.45 pm Mr Johnston sent Mr Waddington a revised version of the proposed agreement, asking him to agree to terms that “ … rates will be fixed for 2018 only and therefore we will be able to negotiate an increase in 2019 once CDS negotiations have taken place. As discussed the rate that URM will pay be $70 per tonne for the 2018 year together with a split of the CDS funds 40/60. URM will not seek recovery of additional funds advanced to Par over contract rates for 2017.” He attached a letter for Mr Waddington to sign which he had revised, he explained in cross-examination, to better reflect the discussion. It provided:

    3. (3)

       at 1.55 pm Mr Waddington returned the signed amended letter to Mr Johnston;

    4. (4)

       at 3.05 pm Mr Johnston emailed Mr Waddington enclosing another copy of the letter he had already signed and asked him to confirm his agreement to the terms outlined at 12.45 pm;

    5. (5)

       on 9 January at 12.05 pm Mr Waddington replied, sending a letter in quite different terms, quoted at [192] above. That letter made substantial changes to the one Mr Waddington had already signed;

    6. (6)

       at 12.08 pm Mr Johnston replied, advising his disappointment with the letter, which he said was not agreed and that URM relied on “our original contract”. Mr Waddington understood this to be referring to the 2011 agreement;

    7. (7)

       Mr Johnston and Mr Waddington then spoke, after which Mr Johnston emailed at 2.18 pm advising that he had read the agreement incorrectly. On Mr Johnston’s evidence what occurred was:

    8. (8)

       at 12.19 pm Mr Johnston emailed Mr Gallagher, advising that “we are agreed”; and

    9. (9)

       there was another conversation shortly afterwards between Mr Johnston and Mr Gallagher in which Mr Johnston claims the terms were altered in two respects, but that is in issue.

80. [239]

    In his affidavit Mr Johnston said the conversation with Mr Gallagher was to the following effect:

81. [240]

    Mr Gallagher disputed this both in his affidavit and in cross-examination. Mr Waddington said in his affidavit that the February 2018 commencement offered had been arrived at in discussion between he, Mr Gallagher and Mr Knowles, Mr Johnston having asked that the date be brought forward from 1 April 2018, which had earlier been considered. That was accepted because Par needed the revenue and this was a good faith compromise.

82. [241]

    He also said that he would not have agreed to the changes to the agreement Mr Johnston claimed, because Par had no obligation to share the refund before December 2018 and he would not then have agreed to fix the gate fee for after that date.

83. [242]

    The dispute over the term of the agreement, I am satisfied, was resolved by Mr Waddington’s cross-examination, which reflected how the parties dealt with each other, despite the variation to the term of the agreement not having been reduced to writing.

84. [243]

    There is no issue that Par did pay URM from 1 December 2017, although on its case what was paid for December and January 2018 was an advance on what was payable for the period which commenced from February 2018, to which I will return.

85. [244]

    Mr Waddington agreed that “the period in respect of which revenue from the CDS scheme to be shared was agreed with URM by Par as being a period from 1 December 2017 at the start of the scheme to 30 June 2019.” He was not sought to be re-examined about this.

86. [245]

    In final submissions Par urged that this aspect of Mr Waddington’s evidence would not be accepted, he having been mistaken and having given this evidence without having been taken to the January 2018 letter, or the dispute about the date, or being asked the basis upon which he said that the agreement ran for this longer period. It was also relevant that he had not been a party to the discussion between Mr Gallagher and Mr Johnston on which the oral variation to the agreement depended.

87. [246]

    Nevertheless I am satisfied that Mr Waddington’s evidence must be accepted. He was Par’s controlling mind at the time the January 2018 agreement was reached and I did not consider there to have been any unfairness in his cross-examination about his understanding of the terms of that agreement, through which he was taken.

88. [247]

    Despite the other matters he remained adamant about, Mr Waddington’s concession about the term of the agreement was clear and accorded with the payments Par later calculated and made. Mr Gallagher explained his discussion with Mr David Johnston in May 2018, when they said words to the effect:

89. [248]

    The email request was:

90. [249]

    By May 2018 Par had not received refunds, even though the first quarter under the scheme ended on 31 March 2018. The second quarter had not ended, but no payments having as yet been made to Par, it had no obligation to pay any share to URM.

91. [250]

    In cross-examination Mr Johnston was taken to the email which was copied to him. He explained that the position then was that no increases in gate fees had yet been agreed with the Councils, nor had payments yet been made under the CDS agreement, but a new fleet of 40 trucks had been put in operation. The result was a cashflow problem and so an advance of the payment due under the CDS agreement was sought.

92. [251]

    It is apparent that at the time Par could only be making a loan when agreeing to pay URM in respect of “Dec / Jan volumes”, which were part of the first quarter under the scheme. The obligation to pay URM a 40% share was only triggered by Par receiving a refund. By May 2018 the first quarter had ended, but no refunds had been received. The loan sought was not a specified money amount, but payment in advance of the 40% share of the refunds Par was to receive for December and January. That is what the “Dec / Jan volumes” referred to.

93. [252]

    That was agreed, as was the proposal that the loan advanced would be repaid by being deducted from the 40% share Par had to pay URM in respect of refunds it received for the following two quarters. It was not deducted from URM’s share of the refund for the first quarter.

94. [253]

    It follows that this agreement was consistent with Mr Waddington’s concession that the CDS agreement had commenced in December 2017. That was what the payment of the advance agreed reflected.

Did the payments made under the CDS agreement satisfy Par’s contractual obligations?

1. [254]

   In issue is whether URM was owed any more under the CDS agreement than it received for the periods it was paid.

2. [255]

   There is no issue that Par did not have a refund sharing agreement with a Council by 30 November 2018. In accordance with reg 18, from 1 December 2018 to 26 February 2019 when it entered its agreement with Northern Beaches Council, Par thus had no right to receive any refunds under the scheme and thus no obligation to make any payments to URM under the CDS agreement. It received nothing which it was obliged to split.

3. [256]

   Even though on Par’s case the agreement did not come to an end until 30 November 2018, it made no payments for the period after 30 September. The parties were then in dispute over what was owed under both their agreements.

4. [257]

   But given the conclusions I have reached about the term of the CDS agreement, it follows that Par was obliged to continue to pay URM 40% share of the refunds which it received up until 30 June 2019.

5. [258]

   Whether the amount of the payments made satisfied Par’s contractual obligations for the periods for which they were paid also depends on the proper construction of the 9 January letter. It will be remembered that it relevantly provided:

6. [259]

   The records establish the total materials Par processed. From December 2017 to March 2017, for example, 22,073.75 tonnes from the following suppliers:

7. [260]

   The total refund revenue Par received for this material was:

8. [261]

   The $503,306.74 Par paid URM for this period was calculated as 40% of $1,258,266.84, that being 27.6% of the $4,558,973.82 refund it received from Exchange for Change for this period.

9. [262]

   The claim initially pursued was that Par short paid URME by $2,077,585.91. That did not reflect 40% of the payments Par received under the scheme for the weight of the materials which URM had supplied. Rather, Mr Johnston’s calculation of what he considered it should have paid URME, given his opinions about the likely composition of the materials URME supplied for processing.

10. [263]

    In his affidavit Mr Waddington explained why he disagreed with Mr Johnston, referring for example to the Northern Beaches glass collection being high in wine bottles which were not CDS eligible, with the result that his ratios were a guess. In cross-examination he accepted that the average figures arrived at as the result of the 2016 audit are likely to have reflected the recyclable materials contained in the waste URM later supplied, but Mr Gallagher did not. Mr Gallagher considered that required further load audits which had not been undertaken.

11. [264]

    Mr Gallagher also did not agree that the waste received from other councils contained considerably less recyclable materials than that provided by URM. He also explained his experience of changes in the composition of materials Par processed and what was eligible for recycling, over time, having first been brought into the business in 2016 to assist with operations.

12. [265]

    The claim based on Mr Johnston’s beliefs was abandoned in final submissions.

13. [266]

    Then a claim for $1,824,431.05 was advanced. It was calculated by reference to the 2016 audit, the result of which was an average of the loads then examined. Mr Waddington agreed that while there were seasonal fluctuations, it was representative of what URM provided. That evidence has to be understood in the context that this audit was part of the resolution of a dispute pursued by Par over URM’s alleged breaches of the 2011 agreement in respect of unacceptable contamination levels. Later investigations found higher levels of contamination.

14. [267]

    It was Mr Johnston’s opinion that the results of the 2016 audit reflected that materials URM supplied contained more recyclables and less contamination than material provided to URM by other of its customers. That was also disputed.

15. [268]

    Mr Gallagher disagreed and in cross-examination denied that the 60/40 split was to be made in relation to the actual materials that were supplied by URM or URME to Par, reflecting the actual quality of those materials. He considered that URM was only entitled to share in refunds which Par received, which were calculated by the eligible container factor put together by the State. He also explained that the estimate in the 9 January letter was based on modelling undertaken at a time when all the operation of the scheme was still not known.

16. [269]

    URM’s case finally was that its construction of the 9 January letter accorded with the objective theory of contract by giving work to do to its purpose, which one would infer based on knowing what the parties knew at the time in relation to their deal.

17. [270]

    I am satisfied that there is no evidentiary basis for this conclusion, nor do the terms of the 9 January letter permit the construction for which URM contended.

18. [271]

    It must be remembered that the agreement was arrived at in circumstances where those who negotiated it all understood Par and URM were bound by the 2011 agreement. Both it and the implied agreement contained the same term as to contamination levels. The CDS agreement was arrived at in the context of an extended dispute over excess contamination levels, given the contractual limitation, over time higher than that disclosed by the 2016 audit.

19. [272]

    That explains the January 2018 letter’s referral to URM auditing the containers it delivered to Par. But it did not do so. Nor did Par.

20. [273]

    Still, URM contended that the orders made in its favour under the CDS agreement should be calculated by reference to the 2016 audit. That reflecting the requirement that its share of the refund be calculated by reference to the URM tonnes which it supplied, and reflective of the quality of the actual material that they contained.

21. [274]

    But the letter made no reference to this, or even to the composition of the materials which URM delivered to Par for processing. All that was agreed was that Par would “extend” to URM “a share of the revenue from CDS with the basis of a 60/40 split”. The refunds which Par received in respect of materials URM and its other customers supplied were all calculated by weight, not actual composition.

22. [275]

    That URM’s case that the CDS agreement must be interpreted as requiring Par to calculate its share of Par’s refund, by reference to the composition of all of the materials which it actually received from URM, simply has no foundation in the words used in the contractual letter, or how a reasonable person would have understood them.

23. [276]

    I am satisfied that it is impossible to infer this requirement into the January 2018 letter, for reasons including:

    1. (1)

       the letter was not drafted by lawyers but two businessmen who used simple language to describe what they offered, a share of the CDS revenue Par received under the new statutory scheme, by way of a percentage split;

    2. (2)

       Mr Waddington agreed in cross-examination that the agreement contemplated payment for URM tonnes. But that this meant anything more than calculation of URM’s share of Par’s refunds by reference to the number of tonnes it delivered to Par, is not apparent;

    3. (3)

       that if it had been intended that the refunds Par was paid under the scheme would be shared by reference to the amount of the different recyclable components of the tonnes of waste URM delivered to Somersby, that could easily have been said. But it was not;

    4. (4)

       given that the percentage of those components, which Mr Waddington explained did not alter significantly over time, although there were seasonal differences which he explained, had been audited in 2016 during the dispute over contaminated materials, calculation of the URM share of the refund could also easily have referred to those percentages, but that was also not adopted;

    5. (5)

       the evidence of the discussions which resulted in the agreement does not establish that the claimed method of sharing the revenue was discussed before the final letter was sent or accepted;

    6. (6)

       while explanations, spreadsheets and calculations were later exchanged, URM explaining how its payments reflected that refunds it received were paid by Exchange for Change on the basis of a NSW state average which it used in the calculations by which Par’s refunds were arrived at, URM did not then claim that they should have been calculated on the basis pressed in these proceedings;

    7. (7)

       had the parties intended that revenue URM received would be split on such a basis, it is likely to have conducted the audits to which the January letter referred, because that would have established the payments to which it was entitled, but it never undertook any audits;

    8. (8)

       the agreement did not require Par to undertake such audits;

    9. (9)

       Par did not separately process what URM delivered, nor did the agreement require it to;

    10. (10)

        the audits which Exchange for Change undertook also did not involve separate sampling of the loads of waste URM delivered; and

    11. (11)

        Par had modified its operation to enable Exchange for Change to undertake the statutory sampling required for the refunds it received to be paid. But no separate arrangements were sought or made for the separate handling or sampling of URM’s deliveries.

24. [277]

    The result was that there was no contemporaneous examination of the loads which URM delivered, which could have established a basis for the claim it advanced in these proceedings. That accords with a reasonable business person not understanding from the terms of the 9 January letter that payment by reference to the actual composition of the tonnes which URM delivered was required. That is what ultimately necessitated URM’s reliance on the 2016 audit results, which I am satisfied were irrelevant to the payments to which it was entitled under the CDS agreement.

URM’s cross-claim

1. [278]

   In the result the damages sought in respect of the claimed miscalculation of the 40% share of the refunds URM received under the CDS agreement cannot be awarded.

Was there misleading or deceptive conduct?

1. [279]

   It was not in issue that the orders Par sought could be made if the alleged misleading and deceptive conduct had been pursued. But that it was misleading and deceptive was in issue.

2. [280]

   In Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 at [111] McHugh J explained that conduct is misleading or deceptive if it induces or is capable of inducing error. Also, that a corporation does not avoid liability because a person who has been the subject of its misleading or deceptive conduct could have discovered that conduct by proper inquiries. It is conduct that objectively leads one into error that is misleading.

3. [281]

   Par’s case was that but for URM’s misleading and deceptive conduct, it would have acted differently and would not have entered the CDS agreement.

4. [282]

   URM’s case was that there had been no misleading and deceptive conduct on its part. In final oral submissions it was contended that instead there had been “a course of mutual assent dealing that continued between the parts from around about 13 October 2014 and going onwards that is reflective of them operating consensually and commercially” That objectively the conduct in issue would not be considered to be misleading or deceptive “in the circumstances where there was no evidence that anyone knew that the 2011 agreement had come to an end in the case relevantly between the parties.” Further, that there had simply been a situation where there were two parties who continued to deal as commercial parties on the belief that a commercial contract was on foot.

5. [283]

   I am satisfied that this cannot be accepted on the evidence.

6. [284]

   Whether or not the conduct URM pursued was misleading and deceptive does not depend on Mr Johnston’s understanding of the effect of the termination of the KES agreement on the parties’ contractual relationship, or even on what Mr Harris knew, although it can be inferred that his evidence would not have assisted URM’s case.

7. [285]

   The evidence does establish that URM’s ongoing conduct was misleading and deceptive, pursued as it was up to the termination of the parties’ relationship to URM’s advantage. I have already dealt with what Par would have done in relation to entry into an agreement to replace the 2011 agreement, had it known that it had been terminated in 2014. But it did not. Further, but for URM’s ongoing misleading and deceptive conduct, that in 2018 Par would not have entered the CDS agreement, must be accepted.

8. [286]

   Had Par been made aware before that agreement was entered, that the KES agreement had terminated in 2014, with the result that the 2011 agreement had also been terminated and the implied agreement thereupon came into existence, Par would not have made the offer conveyed by the 9 January 2018 letter, ultimately to its considerable disadvantage.

The misleading and deceptive conduct

1. [287]

   When the CDS agreement was negotiated and entered all involved were still acting on the mistaken belief that the 2011 agreement remained in force. What happened cannot, however, sensibly be characterised as merely reflective of a practical, pragmatic, bargaining relationship in this industry, which does not speak to misleading or deceptive conduct, as was also finally submitted for URM.

2. [288]

   On Mr Waddington’s evidence it was in 2014 that the market was adversely affected, the price for green glass, for example, dropping from $82 per tonne to $10 per tonne in August. A major glass manufacturer closed two of its furnaces and Par began stockpiling glass, looking for alternative markets. While Mr Johnston did not accept all of the representations Mr Waddington made at the time or in his evidence about the state of the market, I am satisfied that it must be accepted that there were adverse consequences for Par, which led to its ongoing pursuit of higher gate fees and consideration of how the 2011 agreement could be brought to an end.

3. [289]

   Eventually, Government response to the changed market conditions and their consequences led to the introduction of the statutory scheme.

4. [290]

   Mr Waddington’s evidence was that by mid-2014 Par started making losses under the 2011 agreement and even under the increase to $42 per tonne Mr Knowles was proposing, it would still have made a loss. It had to investigate other solutions, such as crushing glass for road base or use by Councils as drainage mediums at landfills and washing and crushing glass to be sold as sand. But Par understood that it had no right to terminate the 2011 agreement, or to increase the gate fee, as it continued to believe to be necessary.

5. [291]

   In 2015 Mr Waddington pursued price increases with Mr Johnston and his brother and introduced a CPI increase in November, which the 2011 agreement permitted. In December he sought an increase to $105 per tonne, which was not agreed. Mr Waddington believed Mr Johnston had not then pursued increased fees with Councils. It was then that he began pursuing Par’s concern with increasing contamination levels. Examination of delivered loads established levels higher than the contracted 3% levels, which increased Par’s costs of processing, reduced what it could sell and also increased the cost of sending materials to landfill.

6. [292]

   Mr Waddington then decided Par had to enforce its contractual rights and considered that it might even be able to get out of the 2011 agreement as the result of URM’s breaches. A contractual breach notice was delivered to URM in April 2016. Despite discussion, the contamination problem continued and a second default notice was served in June, together with a proposed increase in gate fees to $75 per tonne.

7. [293]

   The parties retained lawyers, URM threatened to pursue specific performance and damages and the audit of URM’s trucks was ultimately agreed. Eventually URM agreed, without prejudice, to remove 50 tonnes of waste from Par’s sites and to seek to renegotiate the gate fees, after consulting with the Councils.

8. [294]

   An increase was agreed, but in 2017 further audits revealed contamination levels to be 7%. There were further discussions about this, a further rate increase and the incoming CDS system. The rate was increased to $75 per tonne from June 2017, but $70 per tonne was accepted by Par after further discussion.

9. [295]

   On Mr Waddington’s evidence, Mr Johnston did not then want Par to negotiate directly with Councils about the incoming statutory refund scheme. That was also Mr Gallagher’s evidence, albeit denied by Mr Johnston. I am satisfied that Mr Johnston’s evidence cannot be preferred, despite the conclusions which I have reached about the terms of the 9 January letter which were finally agreed.

10. [296]

    The parties were plainly aware that there needed to be an agreement put in place which satisfied the regulatory scheme by 1 December 2018, if refunds were to be obtained afterwards. Par also wanted the gate fee to increase to $100 per tonne. Both were discussed and the CDS agreement reached on 9 January 2018.

11. [297]

    But Mr Johnston did not proceed on the basis that URM had an obligation to negotiate a refund agreement between the Councils and Par, as Mr Gallagher and Mr Waddington both understood. That had adverse consequences for both Par and URM, given the result of the operation of reg 18. Namely, that from 1 December 2018 to February 2019 when the agreement was entered with Northern Beaches Council, Par received no refunds and URM had no right to its 40% share under the CDS agreement.

12. [298]

    Even accepting that there was a genuine disagreement over what the CDS agreement actually required, I am satisfied that Mr Waddington’s evidence, corroborated by Mr Gallagher, that had he known at the time the CDS agreement was made that Par was not bound by the 2011 agreement, Par would not have entered that agreement must be accepted. That agreement reflected commercial decisions, not requirements of the statutory scheme, made in circumstances where Par had been considerably misled by URM and Mr Johnston as to matters which necessarily affected its decision making.

13. [299]

    The 2011 agreement contemplated URM giving Par written notice of the termination of the KES agreement: cl 9. Neither that nor any other notice about the resulting termination of the 2011 agreement was ever given and afterwards Mr Johnston and his companies proceeded as if the 2011 agreement remained in force.

14. [300]

    Mr Johnston may not have appreciated that the 2011 agreement terminated in 2014. But even if it be accepted that this objectively reflected the state of URM’s understanding, given the terms of the 2011 agreement, the termination of the KES agreement and Mr Harris’ involvement, URM’s ongoing conduct was misleading. It had the result that the parties became bound by the implied agreement, an outcome which would not have occurred, but for the misleading conduct.

15. [301]

    Intention is not a necessary element of misleading and deceptive conduct under s 18 of the Consumer Law, which provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive. Even if a corporation acts honestly and reasonably, it may engage in conduct that is misleading or deceptive or is likely to mislead or deceive: Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 at 66. In this case, that in the circumstances URM acted reasonably, cannot be accepted.

16. [302]

    Silence can also be a relevant circumstance, as may be common assumptions and reasonable expectations of disclosure: Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2020] HCA 31 at 370. There Cicero was quoted:

17. [303]

    While it is not necessary for commercial parties to volunteer information to other parties which is of assistance to their decision-making, non-disclosure of a fact can be misleading or deceptive even when the recipient of a true statement is misled, absent disclosure. Here, however, URM’s ongoing representations that the 2011 agreement remained in force, despite the KES agreement having been terminated, were not true and considerably misled Par.

18. [304]

    On all of the evidence I have discussed, I am satisfied that even if it be accepted that URM and Mr Johnston did not intend so to mislead, in the circumstances in which they were dealing with Par, they did not act reasonably in not giving it notice of the termination of the KES agreement, or the resulting termination of the 2011 agreement. The result was that URM’s ongoing conduct until the relationship was terminated, was misleading and deceptive.

19. [305]

    Termination of the KES agreement remained entirely within URM’s knowledge, unless disclosed to Par. That Par had a reasonable expectation that it would be given notice of termination of that agreement, given the terms of the 2011 agreement, must be accepted. Despite knowing that Par had never been provided with a copy of the KES agreement and the 2011 agreement expressly providing that it would come to an end, if the KES agreement was terminated, of which written notice could be given, still URM failed to inform Par of their termination.

20. [306]

    The steps which were and were not taken in 2014 and subsequently, were entirely within the control of URM and Mr Johnston and pursued for their benefit. Not only when URM threatened to pursue specific performance of the 2011 agreement after Par had served default notices under that agreement in relation to excess contamination levels; but also in the context of the ongoing negotiation of increased fees, which Par continued wrongly to understand was constrained by the 2011 agreement to a right to CPI increases because the KES agreement remained on foot; and when the CDS agreement was proposed, negotiated and agreed. Throughout, URM persisted in its misleading and deceptive conduct.

21. [307]

    The result of the failure to disclose the termination of the KES agreement thus led Par into error and misconception, to its ongoing detriment.

22. [308]

    Termination of the 2011 agreement in 2014 entitled Par to pursue negotiations for increased gate fees at a time when the market for recyclables in Australia had suffered a downturn. That was constrained, while Par remained bound by the 2011 agreement. Unbeknownst to it while bound by the implied agreement, Par could also have taken steps to bring that agreement to an end, by giving reasonable notice of termination, which would have permitted it to pursue negotiations for higher gate fees, unconstrained by either the 2011 or implied agreements. But as the result of URM’s ongoing conduct, that was also a right of which it was unaware.

23. [309]

    The ultimate result of URM’s conduct was that until the parties’ relationship came to an end in 2019, Par continued to proceed as if constrained by the 2011 agreement.

24. [310]

    That Par might have been put on notice of the termination of the KES agreement beforehand, if it had made enquiries does not alter this. That does not absolve URM’s breach of s 18 of the Consumer Law: Burke v LFOT Pty Ltd (2002) 209 CLR 282: [2002] HCA 17 at [66]. In the result that Par did suffer damage as the result of the misleading conduct which has been established, also follows.

Mistake

1. [311]

   The evidence also establishes that the contracting parties did act from 2014 onwards on the mistaken basis that the 2011 agreement continued in force until their relationship came to an end in 2019, although it was only Par which had the mistaken understanding that the KES agreement also remained in force. Par was not at fault for its mistaken understanding of either matter.

2. [312]

   The parties’ common mistake concerned a fundamental misconception as to the state of their contractual relationship.

3. [313]

   Given the nature of that mistake and the result, unbeknownst to the parties, the coming into existence of the implied contract, its terms could not be ones to which the parties could have justly been held. In the result the specific performance URM threatened to pursue after the termination of the 2011 agreement could not have been obtained, even in relation to the implied agreement: Svanosio v McNamara (1956) 96 CLR 186; [1956] HCA 55 at 195-196. Unlike that case, here there was ongoing misrepresentation that the 2011 agreement remained in force.

4. [314]

   The results of the common mistake also included the parties’ continued commercial dealings with each other under the terms of the 2011 agreement and finally, their entry into the CDS agreement, which Par would not have entered, but for the common mistake.

5. [315]

   Such a mistake can give rise to a prima facie obligation to make restitution of a resulting payment. This is such a case. To displace such liability the recipient has to point to circumstances which the law recognises would make an order for restitution unjust. The recipient may thus raise by way of answer any matter or circumstance which shows that his or her receipt or retention of the payment is not unjust: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 at 379. That has not here been established.

6. [316]

   In all of the circumstances which arise for consideration, I am satisfied that it cannot be concluded that URM’s retention of the payments it received under the CDS agreement is not unjust.

7. [317]

   That provides another basis for the damages to which I am satisfied Par is entitled.

8. [318]

   Reliance was also placed by URM on Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 at [32] where the equitable remedy of rectification to overcome common mistake, by making an instrument conform either to a concluded antecedent agreement or to the continuing concurrent intention of the parties to the instrument arose.

9. [319]

   That is not relevant in this case, however, rectification being an equitable remedy the purpose of which is to make a written instrument "conform to the true agreement of the parties where the writing by common mistake fails to express that agreement accurately”: at [103]. That is not here sought, given the results of the common mistake which arise to be dealt with.

Unjust enrichment

1. [320]

   I am also satisfied that what I have explained also provides a basis for the conclusion that as the result of URM’s conduct, it has been unjustly enriched.

2. [321]

   That also provides a basis for damages orders to be made in favour of Par.

Damages

1. [322]

   The claimed damages Par pressed in opening written submissions were the higher gate fees Mr Gallagher calculated, as well as what was unpaid under the 2011 agreement and what it had paid under the CDS agreement.

2. [323]

   I have dealt with the higher gate fees which were also pursued under the cross-claim, which I have concluded must be dismissed. I am satisfied, however, that a basis for an order in respect of the unpaid invoices and what was paid under the CDS agreement has been established.

3. [324]

   Had URM not pursued its misleading and deceptive conduct as it did, Par would not have offered the terms which it did in 2018 in relation to refund sharing, which understandably Mr Johnston accepted, to the very considerable advantage of URM, at a time when there was no statutory requirement for Par to have entered into such an agreement with anyone. The commercial purpose of the agreement, so far as Par was concerned, rested on its continuing understanding that it was bound by the 2011 agreement, which constrained its ability to pursue increased gate fees otherwise.

4. [325]

   But for this mistaken belief, the result of URM’s ongoing misleading and deceptive conduct, the CDS agreement would not have been offered or agreed as it was, both Mr Waddington and Mr Gallagher’s evidence about this having to be accepted.

5. [326]

   In the result damages for both the unpaid invoices and for what Par paid URM under the CDS agreement must be ordered, without any set off for what was payable in respect of the outstanding invoices, by reference to what was due to URM under the CDS agreement.

Orders

1. [327]

   For the reasons given orders must be made in favour of Par.

2. [328]

   The parties should confer and file proposed orders, including as to costs, within 14 days. In the event that they need to be heard they should approach and also file and serve a short outline of submissions.