DISTRICT COURT OF QUEENSLAND

CITATION:	Quinn v Descon Group Australia Pty Ltd & Anor [2023] QDC 88	
PARTIES:	ANTHONY QUINN
(applicant)
v
DESCON GROUP AUSTRALIA PTY LTD ACN 625 771 075
(first respondent)
and
DANNY ISAAC
(second respondent)	
FILE NO:	76/23	
DIVISION:	Civil	
PROCEEDING:	Application for summary judgment	
ORIGINATING COURT:	District Court, Brisbane	
DELIVERED ON:	30 May 2023	
DELIVERED AT:	Brisbane	
HEARING DATE:	20 April 2023	
JUDGE:	Farr SC, DCJ	
ORDER:	1.	Application allowed;
2.	Judgment is entered for the plaintiff on the claim;
3.	The defendants’ counterclaim is dismissed; and
4.	I will hear the parties as to any further orders and costs.	
CATCHWORDS:	DEEDS – OTHER MATTERS – where the applicant applies for summary judgment - where the parties reached a compromise to proceedings initiated by the applicant in the Federal Circuit and Family Court and executed a deed of settlement – where those proceedings were then dismissed by consent – where the applicant alleges the respondents breached a term of that deed – where the respondents denied the alleged breach and pleaded the applicant failed to comply with his obligations under the deed and counterclaimed – where the deed required the respondents to pay the applicant a total settlement sum of $745,000, that the first instalment of
$150,000 be payable by bank cheque in a meeting on or before 22 December 2022 at which time a photoshoot of the parties
shaking hands and depicting their reconciliation would take place and the respondents would be entitled to publish media	

	or press releases stating words to the effect that the parties have reconciled – where the deed did not state the photoshoot location – where the respondents insisted on the photoshoot being taken at their offices where the applicant had previously undertaken work – where the applicant made numerous attempts to arrange an alternative location for the photoshoot including to allow the first respondent to have its mobile signage in the background at those venues – where each party contends that the other breached their duty to cooperate – whether the applicant can establish the respondents have no real prospect of defending the applicant’s claim and there is no need for a trial – whether the respondents’ material shows prospects of success by sworn evidence, as distinct from allegations in pleadings.	
LEGISLATION:	Civil Proceedings Act 2011 (Qld) s. 58
Fair Work Act 2009 (Cth)
Uniform Civil Procedure Rules 1999 (Qld) r. 292	
CASES:	Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 201
Beerens v Blue Scope Distribution Pty Ltd (2012) 39 VR 1 Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469 Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202
Butt v M’Donald (1896) QLJ 68
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
Dubois v Ong & Anor [2004] QCA 185
Electricity Generation Corporation v Woodside Energy Ltd
(2014) 251 CLR 640
Gullco International Pty Ltd v Brisbane Parcel Deliveries Pty Ltd [2003] QDC 341
H Lundbeck a/s v Sandoz Pty Ltd [2022] HCA 4
Haller v Ayre [2005] 2 Qd R 410
Mirvac Queensland Pty Ltd v Horne & Ors [2009] QSC 269 Mt Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) CLR 104
Queensland Pork Pty Ltd v Lott [2003] QCA 271 Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 597
Wellington v Huaxin Energy (Aust) Pty Ltd [2020] QCA 114	
COUNSEL:	C Templeton for the applicant J R Ward for the respondents	
SOLICITORS:	ACLG Lawyers for the applicant Kanther Law for the respondents	

Introduction

[1]	On 25 November 2022, the parties to these proceedings reached a compromise of another proceeding between them, which was initiated by the applicant in the Federal Circuit and Family Court under the Fair Work Act 2009 (Cth), and executed a deed entitled the “Deed of Settlement and Release” (Settlement Deed).

[2]	Pursuant to cl 3.1 of the Settlement Deed, the parties were required to take all reasonable and necessary steps by 28 November 2022, to have the Federal Circuit and Family Court proceeding dismissed with the consent of all parties with there being no order as to costs between the parties.

[3]	On or about 28 November 2022, the Fair Work proceeding was dismissed by consent.

[4]	Pursuant to cl 3.2(b) the parties were also required to execute a Notice of Discontinuance to end any other proceeding that existed between the parties at that time.

[5]	The applicant (hereinafter referred to as the plaintiff) has alleged that the respondents (hereinafter referred to as the defendants) have breached a term of that Settlement Deed and have brought a claim against the defendants which seeks the following relief1:
1.	The sum of $150,000 as a debt by the first defendant and the second defendant payable to the plaintiff;
2.	In the alternative, damages for breach of contract against the first defendant and the second defendant;
3.	The sum of $19,500 as a debt owed by the first defendant and the second defendant payable to the plaintiff, being legal fees incurred by the plaintiff for enforcing the terms of the Settlement Deed;
4.	Interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld);

5.	Costs; and

6.	Such further or other order the Court considers necessary or appropriate.

1	Claim filed 17.01.2023.

[6]	The defendants have denied the alleged breach and have pleaded that the plaintiff failed to comply with his obligations under the Settlement Deed and claim the following relief by counterclaim:2
1.	A declaration that the Settlement Deed between the parties as pleaded in paragraph 5 of the plaintiff’s Statement of Claim be set aside;
2.	Costs; and

3.	Interest pursuant to s 58 of the Civil Proceedings Act 2011.

[7]	The plaintiff now seeks summary judgment to enforce the promises made by the defendants in the Settlement Deed.3
Entry into Settlement Deed

[8]	Between August 2019 and April 2021, the plaintiff provided services to the defendants. A dispute arose between the plaintiff and a related entity of his, on the one hand, and the defendants and other related parties on the other. All parties commenced a range of proceedings against the others.4 Eventually, the Settlement Deed was entered into.

[9]	The Settlement Deed contemplated, in summary:

(a)	the payment by the defendants to the plaintiff a total settlement sum of
$745,000 (cl 2.1);

(b)	a first instalment of $150,000 (the amount claimed in this application),5 being payable by bank cheque to the plaintiff in a meeting on or before 22 December 2022, at which time a photoshoot would also occur (clauses 2.1(a) and 4.1(b));
(c)	that at the photoshoot the plaintiff and the second defendant would be photographed shaking hands and depicting the parties as having reconciled (cl 4.1(b));

2	Defence and counterclaim filed 21.02.2023.
3	Application filed 5 April 2023.
4	Recitals to the Settlement Deed, contained in the affidavit of Nathaniel Delaney filed 5 April 2023 at Exhibits pp 1-2.
5	Claim at [1].

(d)	the defendants (or their related entities) would, after provision of the bank cheque, be entitled to publish media or press releases stating words to the effect that the parties have reconciled any differences between them; and
(e)	upon entry into the Settlement Deed the parties would make mutual releases (cl 5.1).

[10]	Neither cl 2.1(a) or cl 4.1(b) (nor any other clause) stated the location at which the photoshoot was to occur.

[11]	There are no contextual indications in the Settlement Deed as to the intended location for the photoshoot. Nevertheless, all parties identified their addresses in that document as level 54, 111 Eagle Street, Brisbane (the Eagle Street address), which coincidentally was the address for both the solicitors representing the plaintiff and the solicitors representing the defendants. Furthermore, cl 7 addressed the issue of delivery of documents under the Settlement Deed and permitted (but did not oblige) the parties to deliver documents to the physical address nominated in the Deed – the Eagle Street address.
Attempts to arrange the photoshoot

[12]	The solicitor for the plaintiff, Nathaniel Delaney, has deposed to the attempts made by the parties to arrange the photoshoot contemplated by cl 4.1(b) of the Settlement Deed. In summary:
(a)	on 16 December 2022 the defendants requested the plaintiff attend Descon Group’s office for the photoshoot. Descon Group’s office address is not the Eagle Street address.6 There is no evidence identifying Descon Group’s office address;
(b)	on 17 December 2022, the second defendant sent the plaintiff a text message indicating that he was arranging the photoshoot. That text message said inter alia “I have a Descon sign for our pic and all Descon to see it and a press release immediately mate” and “Please trim that beard I want a nice pic”;7

6	Affidavit of Nathaniel Delaney at [8] and Exhibits p 11.
7	Affidavit of Nathaniel Delaney at [9] and Exhibits p 12.

(c)	on 19 December 2022, the plaintiff’s solicitor advised that the plaintiff was not comfortable with meeting in Descon Group’s office for the photoshoot and proposed as an alternative venue:
(i)	the plaintiff’s counsel’s chambers (with the address provided); or

(ii)	the public square outside the QEII Courts of Law building, George Street, Brisbane;8
(d)	the defendants’ solicitor reiterated the defendants’ request to have the photograph taken at the Descon Group’s office. The reason provided was that it would provide a suitable background that depicts the first defendant’s signage;9
(e)	the plaintiff’s solicitor responded by text message on 19 December 2022 expanding upon the plaintiff’s concern, indicating that the plaintiff interpreted the second defendant’s text message of 17 December 2022 as a threat to humiliate him by parading him in front of the defendants’ staff while taking the photoshoot;10
(f)	the defendants’ solicitor reiterated the defendants’ request that the photoshoot take place at the offices of Descon Group and asserted that the defendants were entitled to stage the photoshoot as they saw fit;11
(g)	on 20 December 2022, the plaintiff’s solicitor by text message proposed alternative meeting venues, with agreement for the photo to be taken in front of a mobile sign for the first defendant, at:
(i)	the mediation centre in the Inns of Court, at a cost to be borne by the plaintiff; or
(ii)	an office of the Bar Association of Queensland.12

(h)	the defendants responded by repeating their requirement that the photoshoot take place at the offices of Descon Group;13

8	Affidavit of Nathaniel Delaney at [10] and Exhibits p 13.
9	Affidavit of Nathaniel Delaney at [11] and Exhibits p 14.
10	Affidavit of Nathaniel Delaney at Exhibits p 15.
11	Affidavit of Nathaniel Delaney at Exhibits p 16.
12	Affidavit of Nathaniel Delaney at [14] and Exhibits p 17.
13	Affidavit of Nathaniel Delaney at [15] and Exhibits p 18.

(i)	after some debate about the proper interpretation of the Settlement Deed, on the afternoon of 20 December 2022, the plaintiff’s solicitor proposed that, because cl 7.2 of the Settlement Deed contemplated delivery of documents to the Eagle Street address, the photoshoot should take place there;14
(j)	the defendants did not agree;15 and

(k)	the plaintiff attended that Eagle Street address on the final day for settlement called for in the Settlement Deed (22 December 2022) to tender performance, but the defendants did not attend.16
Pleadings

[13]	In paragraphs [10] and [11] of the Statement of Claim, the plaintiff pleads that the defendants rejected the proposal for the photoshoot to occur at the Inns of Court. In the Defence at [8], the defendants deny that they rejected that proposal because the defendants’ position was that the plaintiff was unreasonably refusing to attend Descon’s office. In effect, the defendants contend that the plaintiff had breached the duty to cooperate.

[14]	The conclusory pleadings of the Statement of Claim at [19]-[23] plead the default in payment. In response, the Defence repeats in effect that the plaintiff had breached his duty to cooperate.

[15]	It must be noted though, that at [16], the defendants admit the factual issue of substance for this application ie: that they have not paid the initial payment of
$150,000. All other material factual allegations are admitted.17

Summary judgment

[16]	To succeed on his application for summary judgment, the plaintiff must establish that the defendants have no real prospect of defending the plaintiff’s claim, and there is no need for a trial.18 The task for the Court on an application under r 292 Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) is to determine whether there is a “realistic”, as opposed to a “fanciful”, prospect of the defendants successfully

14	Affidavit of Nathaniel Delaney at [22] and Exhibits p 25.
15	Affidavit of Nathaniel Delaney at [23] and Exhibits p 26.
16	Affidavit of Nathaniel Delaney at [28]-[30] and Exhibits pp 32-34.
17	See Defence and [3(a)], [3(b)], [5], [7], [9], [10], [11], [12], [14], [16(a)].
18	Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232.

defending all or part of the plaintiff’s claim.19 The plaintiff bears the onus of proving the claim and persuading the Court that there is no real prospect of the defendants succeeding. However, once a prima facie case has been made out, the evidentiary onus shifts to the defendants.20 In discharging that onus, “A defendant must ‘condescend upon particulars’ in order to demonstrate the arguability of the defence advanced.”21 In that regard, it is necessary for the defendants’ material to “… show prospects of success by sworn evidence, as distinct from allegations in pleadings.”22
[17]	As was said in Deputy Commissioner of Taxation v Salcedo:23

“Nothing in the UCPR detracts from the well-established principle that issues raised in proceedings will be determined summarily only in the clearest of cases. However, in the appropriate case, the Court should make use of the power in order to give effect to the overriding object of achieving the just resolution of civil disputes without undue expense and delay.24 Summary judgment should not be withheld on the basis of a mere spectre of a possible, but speculative defence.”25
[18]	The well-established principles set out in Salcedo and in Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd26 were summarised by Applegarth J in Mirvac Queensland Pty Ltd v Horne & Ors27 at [18]-[24], where his Honour stated at [19]:
“[19] The rules require a judge to be satisfied, amongst other things, that there is ‘no need for a trial’. Each member of the Court in Bolton emphasised the need for caution in granting applications for summary judgment. Holmes JA observed that summary judgment cannot be granted without the confidence that ‘there is no need for a trial of the claim or the part of the claim’. Chesterman JA stated that it is only where a trial can be seen to be pointless that judgment should be entered summarily. Daubney J also remarked upon ‘the necessity for a judge to exercise great care, and proceed with appropriate caution, having regard to the patent seriousness of a decision to

19	Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, 234-7.
20	Queensland Pork Pty Ltd v Lott [2003] QCA 271 at [41].
21	Dubois v Ong & Anor [2004] QCA 185 at [45] per Williams JA.
22	Gullco International Pty Ltd v Brisbane Parcel Deliveries Pty Ltd [2003] QDC 341 at [18] per O’Sullivan DCJ.
23	Per McMurdo P at [3].
24	Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469, 475.
25	Haller v Ayre [2005] 2 Qd R 410, 432 [65].
26	[2009] 2 Qd R 202; see Holmes JA at [2]; Chesterman JA at [23] and Daubney J at [78].
27	[2009] QSC 269.

summarily terminate a proceeding by effectively denying a party the opportunity to present its case at a trial ‘in the ordinary way and after taking advantage of the usual interlocutory processes’’.”
Plaintiff’s submissions

[19]	The plaintiff has submitted that several possibilities for the location of the photoshoot are open on the face of the Settlement Deed. Those locations could be:
(a)	the Eagle Street address;

(b)	Descon’s office address; or

(c)	another venue agreed by the parties pursuant to their implied duty to cooperate to enable the other party to take the benefit of the contract.28
[20]	It is submitted that these three possibilities lead to the following possible results for the plaintiff’s application:
(a)	if it is the Eagle Street address, the plaintiff succeeds, having attended that address to tender performance;
(b)	if it is Descon’s office address, then the summary judgment application must fail; or
(c)	if it is another venue, the question becomes whether the defendants acted reasonably in insisting on Descon’s office address.
Descon’s office address?

[21]	The plaintiff has submitted that to determine this application the commercial purpose of the photoshoot must be identified with precision.

[22]	The defendants’ assertion that it is to “support a press release demonstrating that the parties have reconciled and may end up working together” is challenged by the plaintiff as it is not supported by the objective text of the Settlement Deed. The plaintiff relies on the wording in the deed which states:
“… depicting the parties having reconciled.”

28	Butt v M’Donald (1896) QLJ 68, 70-1 (Griffith CJ); Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 597, 607.

[23]	The plaintiff submits that the Settlement Deed does not compel the parties to reconcile or to work together. It merely requires there to be an appearance of reconciliation.

[24]	In support of that submission, the plaintiff relies on the following:

(a)	the concluding words in cl 4.1(b) entitling the defendants to use the photograph in media or press publications; and
(b)	the confidentiality obligations in cl 8, the purpose of which is to ensure that the world at large does not learn of the parties’ true feelings towards each other.

[25]	With that in mind, the plaintiff submits that to portray the parties as having reconciled, a photograph does not need to be taken in Descon’s offices. All that was needed to occur to give effect to the Settlement Deed’s intended purpose was that which was provided for – a photograph showing the plaintiff and the second defendant shaking hands which would cause, irrespective of the photograph’s background, any third party to conclude that the parties have appeared to reconcile.

[26]	The plaintiff further submits that the location of the photoshoot in Descon’s offices is not indicated in the Settlement Deed. The address of that office does not appear in the Deed, nor in any evidence before the Court. In fact, the plaintiff submits that a reasonable reader of the Settlement Deed is likely to conclude that Descon’s office is the Eagle Street address, because that is the address provided for both it and the second defendant in the Deed.
Alternative venue?

[27]	The plaintiff relies on the fact that he suggested five different venues at which the photoshoot could occur in support of the submission that what he proposed to do was reasonably necessary to secure performance of the terms of settlement.

[28]	Equally, the plaintiff submits that the defendants’ refusals to consider any venue other than Descon’s offices is demonstrative of their refusal to do what was reasonably necessary.

[29]	Furthermore, the plaintiff has submitted that he has a good reason to avoid Descon’s office. He had a fair apprehension that the second defendant wished to “parade” him

in front of Descon staff to embarrass him,29 given the context of the text message the second defendant sent to him on 17 December 2022.

[30]	Ultimately, it is the plaintiff’s position that these were disputing parties and the defendants’ requirement that he come to a partisan venue was not only unreasonable, but also not provided for by the Settlement Deed. It follows that the defendants have no real prospect of establishing that they complied with their duty and therefore have no real prospect of succeeding at trial and that summary judgment should be awarded.
Defendants’ submissions

[31]	The defendants have submitted that the issues for determination at a substantive hearing of the proceeding (at this stage) are:
(a)	whether the location of the photoshoot at the first defendant’s office can be derived from or otherwise implied as a term of the Settlement Deed;
(b)	if so, whether the refusal of the plaintiff to attend was unreasonable; and

(c)	what the consideration was that the defendants had bargained for.

[32]	The defendants submit that the Settlement Deed does not expressly state the location of the photoshoot at cl 4, but does provide the agreed purpose and some context. It is submitted that the underlying purpose was stated to be:
“… Quinn will participate in a photograph shoot with Isaac that will include a photograph of Isaac and Quinn shaking hands and depicting the parties having reconciled and that Descon, Isaac, Sneeden or their related entities may use the photograph and any media or press publications they chose to release.”

[33]	The defendants also submit that:

(a)	the fact that the plaintiff had previously undertaken work for the first defendant leads to the inference that the location for the photoshoot was to occur at Descon’s offices;
(b)	the plaintiff’s construction of the Settlement Deed means that the photoshoot would occur at a location not used by the parties in their work relationship –

29	Reply [6(2)]; Affidavit of Nathaniel Delaney at Exhibit p 12.

which is a meaning that does not arise upon a proper construction of the Settlement Deed;
(c)	the Settlement Deed is ambiguous as to the location for the photoshoot and therefore evidence is required to be put before the Court and tested;
(d)	evidence of the plaintiff’s own non-compliance should be put before the Court; and
(e)	consideration for the settlement was the photo and press release.30

[34]	For these reasons the defendants have submitted that the plaintiff has not established that the defendants have no real prospect of defending the plaintiff’s claim and that there is no need for a trial.
Consideration

[35]	The proper approach to interpreting settlement deeds is well known. A contract is to be interpreted objectively by reference to a reasonable business person in the position of the parties, rather than by reference to the subjective intentions of the parties.31 The enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract. Ordinarily, this process of construction is possible by reference to the contract alone.32
[36]	Being a commercial contract, the Court should approach the Settlement Deed on the basis that it was intended to produce a commercial result, and should strive to give effect to the result that the parties objectively intended to achieve.33
[37]	The result that the parties intended to achieve in this matter is abundantly and unambiguously clear. That was to:
(a)	put an end to the proceedings in the Federal Circuit and Family Court (and any other proceeding);

30    Counterclaim at [15].
31  Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35]; Mt Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) CLR 104 at [45]-[46] per French CJ, Nettle and Gordon JJ.
32   Mt Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [51].
33    Ibid.

(b)	have the defendants pay the plaintiff a total sum of $745,000; and

(c)	allow for the taking of a photograph which would depict the plaintiff and the second defendant shaking hands, thus leading any third person who views it to conclude that they have reconciled.

[38]	Why such a photo could only achieve that outcome if taken in Descon’s offices has not been addressed by the defendants. Nor is there any apparent or obvious reason for such a point of view. That is supported by the fact that the Settlement Deed did not require such location for the photoshoot. In other words, the defendants, at the time of entering into the Deed of Settlement, did not consider that for the proposed photograph to achieve the desired purpose, it would need to be taken in Descon’s offices. Had it been considered essential in that regard, then it could have formed part of the settlement conditions.

[39]	Additionally, I note that the defendants have pleaded that their initial rejection of the plaintiff’s proposed photograph location was because of a concern that an alternative location would not have “suitable background for the photograph that depicts the first defendant’s signage”.

[40]	Once again, if that had been their subjective intent, it could easily have been incorporated in the Settlement Deed. Moreover though, the defendants have demonstrated that “background signage” was not considered essential to achieve the desired purpose when they declined the plaintiff’s offer to have the photograph taken in front of their signage, just not at Descon’s offices.34
[41]	Contrary to the defendants’ submissions, there is nothing in the Settlement Deed which would indicate that the photoshoot was to take place at Descon’s offices.

[42]	The defendants’ submission that the fact that the plaintiff had previously undertaken work for the first defendant allows for the drawing of an inference that the location of the photoshoot was to occur at the offices of the first defendant is illogical. The fact that the plaintiff had previously undertaken work for the first defendant does not allow for the drawing of such an inference. An inference is a deduction or conclusion that may be drawn from established facts and there must be a logical or rational

34	Affidavit of Nathaniel Delaney at Exhibits p 17.

connection between the facts and the deductions or conclusions. No such logical or rational connection exists here. The defendants’ submission in this regard is nothing more than mere wishful thinking and is grasping at straws.

[43]	The issue of the implication and inference of terms in a settlement agreement was recently considered by the High Court in H Lundbeck a/s v Sandoz Pty Ltd where Edelman J said:35
“[96] By contrast, the task of interpretation is sometimes expressed as a more rigid test, requiring much greater restraint, where the meaning of a clause requires an inference that is said to involve the addition or removal of words in the instrument. So, for drawing inferences that recognise an unexpressed implication within a clause, in Fitzgerald v Masters, Dixon CJ and Fullagar J said that ‘[w]ords may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency’. And an even stricter approach to drawing inferences that recognise an entire implied term in a contract appears from the famous passage in Codelfa, where Mason J (with whom Stephen and Wilson JJ agreed) said that ‘courts have been at pains to emphasize that it is not enough that it is reasonable to imply a term’ and that there are five ‘conditions necessary to ground the implication of a term’. The proposed implied term: (1) must be reasonable and equitable; (2) must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) must be so obvious that ‘it goes without saying’; (4) must be capable of clear expression; and (5) must not contradict any express term of the contract.”

[44]	Earlier his Honour observed as to expressions and implications:

“[93] There are ephemeral borders, to which lawyers sometimes cling, between three categories of interpretation of words in legal instruments: (i) interpretation of the meaning of express words in a clause; (ii) drawing inferences that recognise implications within a clause; and (iii) drawing inferences that recognise the implication of a new ‘term’. All three are ‘an exercise in interpretation’. All three are concerned with ‘what the [instrument] actually means’. And all three involve drawing inferences and recognising matters that are implied in the sense that they are not confined to the semantics of literally expressed meaning. For instance, like the latter two categories, even the first category will often involve drawing inferences from context by recognising explicatures from the express text. In all three categories, context and purpose supply additional information

35	[2022] HCA 4 at [96] concurring with the joint judgment of Kiefel CJ, Gagler, Stewart and Gleeson JJ.

for the meaning that combines with the literal text. By this means, the ‘implication is included in [the meaning of] what is expressed’.”

[45]	So, the proposed implied term in this matter, as advanced by the defendants, is not:

(a)	reasonable;

(b)	necessary to give business efficacy to the contract; and

(c)	so obvious that it goes without saying.

[46]	I also do not accept the defendants’ submission that the consideration for the settlement was the photograph and press release. That submission ignores the fact that this settlement was reached in contemplation of proceedings between the parties in the Federal Circuit and Family Court being discontinued by the plaintiff. That discontinuance occurred immediately after settlement. In other words, the defendants have received the benefit from this settlement by way of discontinuance of proceedings against them, but have not honoured their settlement requirements in any way.

[47]	As the Settlement Deed did not specify the location for the photoshoot (and the handing over of the cheque) it is not possible for this Court to conclude, on a summary judgment application that the Eagle Street address was the only potential location, notwithstanding its obvious merits. Nevertheless, it would most certainly be one of the potential locations for this photoshoot to occur such that business efficacy pursuant to the Settlement Deed would be achieved.

[48]	It is also the case though that Descon’s offices would have been a potentially suitable venue. But for reasons already canvassed, it was not the only suitable venue.

Implied Duty to Cooperate

[49]	As the plaintiff has correctly identified in his submissions, the question becomes whether the defendants have breached their duty to cooperate by acting unreasonably in refusing the alternative venues proposed.

[50]	In Wellington v Huaxin Energy (Aust) Pty Ltd,36 Philippides JA said at [78].

36	[2020] QCA 114.

“[78] The content of the duty to cooperate in the present case is not one to do all things necessary (in effect ‘to do whatever it takes’) to enable the other party to have the benefit of the contract, rather the scope of the implied duty is conditioned by the concept of reasonableness. The content of the implied duty to cooperate is, as stated by Mason J in Secured Income, that each party agrees to do what was ‘reasonably necessary to secure performance of their contract’.”

[51]	The duty to cooperate has positive and negative obligations: an obligation to take action by cooperating to give the other party the benefit of the contract and a negative covenant not to hinder or prevent fulfilment of the purpose.37 As an implied term, the content of the duty is necessarily informed by the express terms of the contract, including its context and purpose.38
[52]	Here, the duty is informed by the past context: these are disputing parties, attempting to resolve disputes on terms. In those circumstances, the duty can be conceptualised as requiring positive steps to move a resolution forwards and negative steps to refrain from unnecessarily imperilling the settlement framework in the Deed.

[53]	The plaintiff has proposed five alternative venues at which the photoshoot could occur. The defendants have rejected all of those venues.

[54]	Importantly, the defendants have not proposed an alternative venue. They have insisted that the venue be Descon’s office. They have taken no positive steps to move towards a resolution.

[55]	Their reasons do not withstand scrutiny. The plaintiff has offered for the photoshoot to be taken in front of Descon’s signage at an alternative venue, thus overcoming the reason the defendants plead for refusing the plaintiff’s first request. A photo taken in accordance with the plaintiff’s proposal would have secured the benefit of the contract for the defendants.

[56]	The plaintiff has a good reason to wish to avoid Descon’s office. He has a fair apprehension that the second defendant did wish to “parade him” in front of Descon staff to embarrass him. However, the plaintiff’s reasons are of no particular moment in this matter.

37	Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 201 at [117].
38	Beerens v Blue Scope Distribution Pty Ltd (2012) 39 VR 1, 13 [54] (Nettle JA).

[57]	The effect of the defendants’ position is that the plaintiff must come to a partisan venue. That was not something bargained for. In this context, it is unreasonable. The reasonable way to cooperate would have been to have had the photoshoot at a neutral venue, as the plaintiff proposed. It could also have been done with Descon’s signage, as the plaintiff proposed. There being no attempt at cooperation, the defendants have no real prospect of establishing that they complied with their duty to cooperate.

[58]	The plaintiff on the other hand was prepared to be flexible and to agree to the photoshoot location anywhere other than Descon’s offices. The plaintiff only drew the line at Descon’s offices for the reasons provided. In other words, the plaintiff was not prepared to do “whatever it takes”.

[59]	In my view, by adopting that approach, the plaintiff has not breached the duty to cooperate.

[60]	The defendants’ approach however has been obstructionist and designed to achieve the outcome of making the office of the first defendant the location for the photoshoot an effective condition of the Settlement Deed. No good reason for that approach has been provided to the Court, and such an approach is demonstrably unreasonable.39
Summary judgment

[61]	Given that I am satisfied that the plaintiff has established a prima facie case, the evidentiary onus shifts to the defendants.40 In that regard, it is necessary for the defendants’ material to “… show prospects of success by sworn evidence, as distinct from allegations in pleadings”. The defendants have failed in that regard.

[62]	The defendants’ prospects of successfully defending the claim are not realistic.41

[63]	Whilst I acknowledge that proceedings should only be determined summarily in the clearest of cases, this is such a case. The defendants’ position is untenable and to suggest that they will be able to mount a successful defence is fanciful and speculative.42 The relevant factual circumstances of this matter are such that the

39	Secured Income Real Estate (Aust) v St Martins Investments Pty Ltd (1979) 144 CLR 596.
40	Queensland Pork Pty Ltd v Lott [2003] QCA 271 at [41].
41	Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, 234-7.
42	Haller v Ayre [2005] 2 Qd R 410, 432 [65].

plaintiff’s case is overwhelming and there is no need for a trial as the defendants’ position could not be improved by way of evidence. The undisputed facts in this matter speak for themselves, that is that the plaintiff offered a variety of locations in an obvious attempt to reasonably cooperate whilst the defendants unreasonably refused all such offers and insisted on the one and only location that was not suitable to the plaintiff. No evidence can change those facts. This is not a case where additional or extrinsic material to contextualise the Settlement Deed terms is required.

[64]	In these circumstances a trial is pointless and therefore this is an appropriate case in which to enter judgment summarily on the claim and counterclaim.

[65]	The defendants’ counterclaim appears to assert that, because the photoshoot will not take place, the plaintiff is no longer able to provide the consideration provided for in the Settlement Deed.43
[66]	The basis for the counterclaim appears to be that there has been a total failure of consideration such that the Settlement Deed should be set aside. This assertion does not give rise to any basis on which to avoid the Settlement Deed because it is factually wrong. That is because the Settlement Deed has been part performed by the provision of the mutual releases. That occurred immediately upon execution.44
Strike out application

[67]	Given my conclusions on the summary judgment application, I need not consider the application to strike out the defendants’ counterclaim.

[68]	Orders
1.	Application allowed;
2.	Judgment is entered for the plaintiff on the claim;
3.	The defendants’ counterclaim is dismissed; and
4.	I will hear the parties as to any further orders and costs.

43	Counterclaim at [4].
44	Clause 5.1 affidavit of Nathaniel Delaney at Exhibits p 4.