VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C5371/2021
CATCHWORDS	
Contract for graphic design services - right to terminate for “serious or material breach” – meaning of that phrase – hearsay evidence only – wrongful attempt to terminate – repudiation accepted – assessment of damages, allowing for contingencies.	

APPLICANT	Lomah Studios Pty Ltd ACN:121 454 911	
RESPONDENT	Acceleration Group Pty Ltd ACN:113 317 972	
WHERE HELD	Melbourne	
BEFORE	Senior Member A Vassie	
HEARING TYPE	Hearing	
DATE OF HEARING	8 June 2023	
DATE OF ORDER	22 August 2023	
Date of reasons	22 August 2023	
CITATION	Lomah Studios Pty Ltd v Acceleration Group Pty Ltd (Civil Claims) [2023] VCAT 973 	

Order
1.	The respondent must pay the applicant $9,240.00.
2.	The respondent must also pay the applicant $220.90 as reimbursement of the filing fee paid by the applicant.
3.	Any written submission about the application for an order for payment of interest must be filed and served by 21 September 2023. Upon the filing of any submission the Tribunal will make directions for its determination.

A Vassie 
Senior Member			

APPEARANCES:		
For applicant	Ms R. Saliba, paralegal	
For respondent	Mr D. Anderson, director	

Reasons
A Dispute about Termination of a Contract
1	Stephen Molloy is a graphic designer. In March and April 2021 he was conducting a graphic design business under the name of the applicant Lomah Studio Pty Ltd (‘Lomah’) of which he was the director.
2	By a written contract dated 8 March 2021 the respondent Acceleration Group Pty Ltd (‘Acceleration’) engaged Lomah to perform graphic design services between March and August 2021. The contract identified Mr Molloy as the individual who would be doing the graphic designing and identified “DESE” (the Commonwealth Department of Education. Skills and Employment) as the ultimate recipient of Lomah’s services. Mr Molloy began Lomah’s work on the following day, 9 March 2021.
3	At DESE’s insistence, Acceleration tried to terminate the contract on 12 April 2021. It did so by an email from Acceleration’s director, Damian Anderson, to Mr Molloy. Acceleration alleges that it was entitled to terminate the contract, without prior notice, because Lomah was in “serious or material breach” of contract. Lomah denies that it was in breach of the contract and maintains that Acceleration was entitled to terminate the contract only by giving it 30 days’ notice of termination; the purported immediate termination constituted a repudiation of the contract. In this proceeding Lomah claims damages of $15,000.00.
4	At a directions hearing on 15 March 2023 the Tribunal gave Lomah leave to be represented by a professional advocate but the leave was limited to the making of submissions at the end of the evidence given at the final hearing.
5	I heard the proceeding on 8 June 2023 by video conference. Mr Molloy and Mr Anderson were the only persons who gave evidence. At the end of the evidence Ms Saliba, who appeared for Lomah, began to speak to a written submission which Lomah had filed and which was dated 24 January 2022. While she was speaking there was a malfunction in the audio system and it was impossible to complete the hearing. I made a direction that each party might file and serve a written submission by 29 June 2023, and reserved my decision.
6	Lomah filed an additional written submission dated 29 June 2023. I refer to Lomah’s submission dated 24 January 2022 as “its first submission” and to its submission dated 29 June 2023 as “its second submission”. Acceleration had filed a written submission before the hearing but did not file any further submission after the hearing.
Relevant Terms of the Contract
7	The contract named Lomah as “the contractor” and Acceleration as “the Company”. A paragraph at the end of the contract document, headed “Annexure A”, provided:
Annexure A
Services: Full time Graphic design, UX design and UI design services provided by Stephen Molloy. Services to be provided for DESE and other Acceleration client projects as required and directed. Services to be provided across March-August 2021 period. With contract extension agreement to be discussed in June 2021.
Fees: $700 per day ex GST. All hours worked and project related travel and meal expenses for the DESE project are to be tracked via Reason Group online timesheet tool. Total project fee for month (including itemised travel expense claim) to be invoiced to Acceleration as per agreed terms. Expense limits: Claimable food and drink expenses for project based travel are capped at $100 per day.
Mr Anderson told me that Reason Group was a link in the contractual chain between Acceleration and DESE.
8	A recital in the contract defined “Services” as the services set out in Annexure A.
9	Other relevant terms of the contract were:
1. Services and Obligations
1.1 The Contractor will provide the Services to the Company.
2. Engagement 
2.1. The Contractor will provide the Services from 09/03/2021 (“Commencement Date”) until the completion of the Services or until this Agreement is terminated pursuant to Clause 7.
3. The Contractor’s other obligations
3.1 The Contractor will ensure it completes the tasks specified by the Company from time to time within the time frames and to the standard specified by the Company.
3.2 The Contractor must provide its own tools, equipment and facilities.
3.3 The Contractor must comply with the policies of the Company and any laws applicable to the Contractor, the Services and the Company from time to time.
4. Fees
4.1 Subject to clause 4.2, in consideration for the Services provided by the Contractor, the Company will pay the fees as set out in Item 2 of Annexure A (“Fees”). The Fees are exclusive of GST.
4.2 The Contractor will provide a valid tax invoice (and time sheets as requested by the Company to evidence the performance of the Services) to the Company at the end of each month and the Company will make payment within 14 days of receiving such invoice.
..…
7. Termination
7.1 The Contractor or the Company may terminate the engagement of the Contractor and this Agreement at any time for any reason by giving the other party 30 days notice in writing.
7.2 Notwithstanding clause 7.1, the Company may terminate this Agreement at any time without notice if the Contractor:
7.2.1 commits a serious or material breach of this Agreement;
7.2.2. is convicted of an offence involving fraud or dishonesty or any other offence which is punishable by imprisonment; or 
7.2.3. is unable to pay its debts as and when they fall due or is placed in liquidation, voluntary administration or receivership.
7.3. Upon the termination of this Agreement for any reason, the Contractor shall return to the Company all such files, records, documents, specifications, information, and other items in its possession or under its control that belong to the Company.
10	Between 9 March 2021 and 9 April 2021 Lomah performed services under the contract. Mr Molloy had moved to Canberra and was working “in house” at DESE’s offices in an area where he needed and was given an entry pass. He designed a layout and a DESE logo. Lomah invoiced Acceleration for its services between those dates, charging $3,850.00, being $700.00 per day for 5 days, plus goods and services tax. Eventually Acceleration paid that sum.
11	Mr Anderson gave evidence that shortly before 8 April 2021 persons at DESE, including a woman called Natasha (I was not told her surname), complained about the standard of Mr Molloy’s work. On that day, 8 April 2021, which was a Thursday, Mr Anderson sent an email to Mr Molloy, which I set out in full.
Hello Stephen, 
Following our discussion yesterday I would like to provide written instructions to you on feedback from the client and corrective actions we require. 
Feedback from our client 
Earlier this week Natasha met with Mark and myself regarding your design services. Natasha is not happy and thinks it is not up to the standard she and John Dardo requires for presentation to business audiences. Natasha showed us a range of work and talked us through examples where you have not responded to her written briefs to the level she requires. We all agreed that the quality of design work is low by professional standards and does not meet the business expectations of DESE. She mentioned you are not always working at your desk in a diligent manner and was worried you are also not committing the time allocated to producing design work. She mentioned you are not following DESE brand style guidelines and this is a simple thing to fix - fonts, colours and other visual styles. 
My feedback 
From my perspective as a former creative director of a design agency, the work being produced is not to the volume or standard I would expect of a senior designer with your level of experience. I would not want to present this work to a client. I understand the issues that Natasha has with your work. 
I would expect you to work through a range of solutions for each of the design briefs given to you. I notice she as [sic] requested variations of designs in her briefs which you have not delivered on, and as a client, it is very important we respond to and meet the needs of Natasha who has authority over your position and contract funding at DESE. 
Corrective Actions 
We have discussed with Natasha the following corrective actions for you to follow. These are:
1.	You are to meet with Natasha immediately to agree the design work she requires to you to deliver by Friday 16th of April
2.	You are to proactively support Natasha with responsive design support - being mindful of responding to her briefs in a timely and focussed way
3.	You are to update Natasha and myself at the end of each day with a progress report and examples of work completed
4.	You are to ensure that the design work is a higher quality than as been delivered and in line with her expectations
5.	You are to deliver outputs in line with her written brief, variation requests and inputs provided
6.	You are to sit down with her to discuss work at the draft and final stages
7.	You are not to send her attachments that she cannot open and to manage her as an important client with professionalism and support
In terms of support from Natasha she has agreed to:
1.	List all design work to be completed between now and Friday 15th of April
2.	Provide written briefs for each of the work to be delivered
3.	Provide face to face support to you to answer questions and to help source any input files you require
4.	Provide any feedback required to help you deliver the design quality she requires
In terms of support from our team:
1.	.Glasdon has offered to support you to understand business terminology and needs and you are to request his time throughout the next week as required
2.	I will offer support to you to assist with creative / art direction if you want some internal feedback on your work or just someone to talk with
Implications 
As per your role, it is important that you can deliver the design work required at the level and pace of a senior professional designer. At this stage you are not meeting our required professional design standard and we require immediate corrective action to remedy the situation. The corrective actions are outlined above and we are ensuring these are clear and you are well supported. 
If by Friday 16th of April Natasha if not satisfied with your design services (they do not meet the requirements of DESE as our client) then we will have no choice but to terminate our agreement under clause 7 .2.1. -  which is in place to cover material breaches of our agreement. Not being able to deliver the core design services to a professional level is a material breach of the contract under this clause. 
I really hope we can correct this situation, we are here to support you as required and we like having you in the team with us. I will come up this morning to have a chat with Natasha and to talk discuss the work for the next week. Can you please respond via return email to acknowledge the receipt of this email. 
Thanks, Damian
12	On the same day Mr Molloy replied to Acceleration, saying that he had spoken to Natasha and understood what she was wanting. He went on to say “to improve things she will provide better briefs and I will communicate better and only with her.”
13	By the next day, however, according to Mr Anderson, DESE was no longer willing to allow Lomah until 16 April 2021 to improve, and told him that DESE required Acceleration to dispense with Lomah’s services immediately.
14	By now, Acceleration was in a difficult position. It had engaged Lomah under a fixed-term contract: it could terminate the contract by giving Lomah 30 days’ written notice, as provided for in clause 7.1 of the contract. But termination in that way would not have satisfied DESE. Any entitlement of Acceleration to terminate the contract immediately, without notice, depended upon its establishing that Lomah was in “serious or material breach” of the contract. Only DESE could provide direct evidence of such a breach. Immediate termination would expose Acceleration to the risk of a liability in damages if it could not prove such a breach. But not terminating the contract immediately might have jeopardised its relationship with DESE. Acceleration chose immediate termination.
The Attempted Termination
15	Mr Anderson delayed Acceleration’s action to terminate until the following Monday, 12 April 2021, when he sent Mr Molloy the following email:
Good morning Steve, 
I received an email on Friday from Natasha saying that they wanted to end their contract with us for your services. They outlined a range of reasons on top of lack of design quality- including you walking into John's office on Wednesday night during a meeting he was in. They said they wanted to ensure you did not come In this week and have turned off your pass. 
I know we discussed trying to reconcile your relationship with Natasha but it [sic] from what happened Wednesday night and then over the pursuing two days our client is not wanting to work with you. 
I would have told you Friday but I know you had your daughters birthday and wanted you to enjoy that occasion. I hope you had a good time In Sydney. 
Let's chat later this morning, but I wanted to let you know what happened Friday so you don't make plans to work today. 
Given the situation with the client, I will need to terminate our contract between you and Acceleration. 
Please enter in times for last week and I will settle the March invoice very soon and anything you have worked last week soon thereafter. I'm sorry it has come to this and let's talk around 9:30 this morning. 
Tks, 
Damian
16	Despite the use of the future tense, “I will need to terminate our contract”, from their evidence it was clear that Mr Anderson intended it to mean, and Mr Molloy understood it to mean, that by the sending of the email Acceleration wished to terminate the contract immediately.
17	The “John” referred to in the email was John Dardo, whom Mr Anderson had mentioned in his earlier email of 8 April 2021. As to the allegation in the email of 12 April 2021, not made in the earlier email, that Mr Molloy had walked into Mr Dardo’s office while he was in a meeting, Mr Molloy told me that he had entered Mr Dardo’s office while he was in a meeting but only to hand to Mr Dardo a document that he had asked for.
“Serious or Material Breach”
18	Clause 7.2.1 of the contract provided that Acceleration could terminate it at any time, without notice, if Lomah committed “a serious or material breach” of the contract. The phrase is capable of more than one construction. It may mean that Acceleration had alternatives: it could terminate if there was a serious breach, or if there was a material breach. Or it may mean that there was only one instance upon which it might act: a serious breach, that is to say, a material breach; in other words, the words “serious or material” reflected one composite idea of the level of breach that could be relied upon if Acceleration sought to terminate the contract.
19	In 2000 a Supreme Court Judge considered the meaning of “material breach” in a termination clause which had some similarities to the termination clause in this proceeding. The relevant part of the clause was:
…..either party may terminate this Agreement upon written notice to the other party if:
(i)	the other party commits a material breach of this Agreement which is not capable of being remedied.
(ii)	The other party commits a material breach of this Agreement which is capable of being remedied and does not remedy the breach within 14 days of receiving written notice to do so.
I refer to that decision as “Forklift”.
20	After observing that a “material breach” of a contract was not a concept known to the general law of contract, her Honour set about determining the parties’ intention when they used that expression, as follows:
(i)	The dealership agreement containing the expression was a commercial transaction. Courts strive to give effect to commercial arrangements and expectations. 
(ii)	Dictionary definitions of “material” were “essential” and “important”, and cases in other areas of law have equated “material” with “significant”
(iii)	So “material breach” can be equated to the expression known to the law of contract as “fundamental breach.”
21	A fundamental breach is one that goes to very root of the contract. It can be a breach by one party that deprives the other party of substantially the whole benefit of the contract. It is a breach that is so serious that it confers a right on that other party to terminate the contract.
22	In its first submission Lomah drew attention to a decision of a judge of the Supreme Court of New South Wales in a case involving a termination clause in a lease. The judge accepted a submission that “for a breach to be material, it must have had a serious effect on the benefit which the lessor would otherwise have had from the transaction, that is, it must be of a serious or substantial import”.
23	In its first submission Lomah also cited a decision of the Court of Appeal in Victoria which approved of the New South Wales judge’s expression of the meaning of “material breach” and preferred it to the equating in Forklift of “material breach” to “fundamental breach”, although it distinguished Forklift because in the case before the Court of Appeal the termination clause required the wronged party to “reasonably consider the breach to be a material breach” and so involved an issue of reasonableness as well as a characterisation of the breach.
24	As in Forklift, the termination clause in this proceeding requires a characterisation of the breach but involves no issue of reasonableness. The Court of Appeal distinguished Forklift but did not express any disapproval of it. So I am bound by the decision in Forklift to equate “material” with “fundamental” as the proper characterisation of any breach that Acceleration alleged.
25	The adjective “serious” looms large in the concept of “fundamental breach”. Construing “serious or material breach” as meaning “serious or material/fundamental/serious breach” creates a danger of one becoming trapped in a circularity of reasoning. Nevertheless, the authorities discussed above lead me to conclude that the phrase “serious or material breach’ reflects one composite idea, not alternative types of breach. I conclude that in the contract between Lomah and Acceleration the phrase “serious or material breach” means a breach of the contract that is so serious that it deprives Acceleration of the main benefit to it of the contract.
26	Clause 3.1 of the contract required Lomah to “ensure it completes the tasks specified by [Acceleration] from time to time within the time frames and to the standard specified by [Acceleration].” Work done to a particular standard, as specified, appears to have been the benefit to Acceleration that would be put at risk by “a serious or material breach.”
27	As the contract made it clear the DEDE was going to be the ultimate recipient of Lomah’s services, I would regard any tasks or standards that DESE specified to Mr Molloy as being tasks or standards that Acceleration had specified, within the meaning of clause 3.1 of the contract.
What is the Evidence of Such a Breach?
28	Mr Anderson gave evidence that he too has been a graphic designer. In the email he sent to Mr Molloy on 8 April 2021, set out in paragraph 11 above, he stated that Mr Molloy’s work was “not to the volume or standard that I would expect from a senior designer”, but he did not elaborate upon that opinion either in the email or in his evidence at the hearing. There has been no evidence of what particular tasks DESE or Acceleration specified to Lomah or of what particular standards DESE or Acceleration specified to Lomah. There has only been hearsay evidence of DESE having expressed general dissatisfaction with the standard of Mr Molloy’s work. The Tribunal is not bound by the rules of evidence. I could and did receive the hearsay evidence, but in view of the consequence to Lomah from proof of a serious or material breach of the contract, I would require more direct and cogent evidence of the tasks specified, the standard set and the standard actually delivered, before being prepared to find that the work produced was so sub-standard that it amounted to a serious or material breach of the contract that entitled Acceleration to terminate the contract prematurely.
29	As if Acceleration was anticipating that the Tribunal would not be persuaded by the evidence of Lomah’s alleged failure to meet specified standards, and despite Acceleration’s emails set out above having been devoted almost entirely to that allegation, Acceleration’s written submission filed before the hearing included the following paragraphs:
16.	Acceleration Group has never asserted that Lomah Studios lack of design quality was the primary reason for terminating the contract. When our federal government client ended its requirements for design services from Lomah studios (due to Stephen Molloy’s unprofessional behaviour) then Acceleration Group stopped commissioning work and sought to terminate the contract immediately.
17.	Acceleration Group stopped commissioning work to Lomah Studios due to Steve Molloy’s unprofessional conduct and not his lack of design quality. During the week of coaching (April 5-9 2021) Steve Molloy continued to act in a way that forced our client to request termination of his services. Lomah Studios also did not seek to complete design work or to rectify the situation during the month of April following termination notice.
18.	The contract was terminated due to unprofessional conduct and not lack of design quality:
30	The only instance of alleged “unprofessional conduct” that emerged from the (hearsay) evidence that I received was the assertion, in the email set out in paragraph 15 above, of Mr Molloy having walked into John Dardo’s office while he was having a meeting. If there were other alleged instances Acceleration did not put forward any evidence of them.
31	Mr Molloy’s evidence in explanation for his having interrupted the meeting was not contradicted. I accept it. I do not know what any person from DESE might have said about the incident had such a person given evidence. I cannot see how Mr Molloy’s interruption of the meeting, even if regarded as some kind of misconduct on his part, could have been a serious or material breach of the contract itself.
32	In its second submission Lomah argued that because Acceleration had not called anyone from DESE to give evidence I should infer that that evidence, if given, would not have assisted Acceleration’s case. It would not be fair to draw that inference against a self-represented party unless there had been a clear warning to that party that such an inference might be drawn if it did not call evidence from a person who might have assisted the party’s case. I did not give Acceleration such a warning, nor did Lomah ask me to give such a warning. I go no further than to say that I did not hear evidence from any person from DESE and I do not know what they might have said had they given evidence.
33	Acceleration has not proved, on the balance of probabilities, that Lomah was in serious or material breach of the contract. Accordingly, its termination of the contract peremptorily was not justified. It was wrongful.
34	Mr Molloy gave evidence that once Mr Anderson had told him that DESE no longer wanted his services, he “just said OK” and said that needed to retrieve his laptop computer from the desk where he had been working. He also gave some rather vague evidence of having continued to work, after 12 April 2021, for Acceleration on a project related to the National Disability Insurance Scheme. Mr Anderson denied that that had happened and said in his evidence that Mr Molloy’s evidence about it was “fictitious”.
Consequences of Wrongful Termination
35	The general rule is that a party to a contract who wrongfully attempts to terminate it has thereby indicated the party’s absence of readiness and willingness to perform the party’s obligations under the contract and so has repudiated the contract. If the other party accepts the repudiation, the contract is thereby terminated.
36	Contrary to what Lomah put forward in both its first submission and its second submission, Acceleration’s sending of the email of 12 April 2021 did not terminate the contract between Lomah and Acceleration. A wrongful attempt to terminate does not effect a termination. But the termination occurs once the repudiation, being the wrongful attempt to terminate, is accepted.
37	In some cases, a party’s wrongful termination may not amount to a repudiation if that party has acted in good faith, such as when the party acts on an erroneous view of its legal rights under the contract which was capable of being corrected either by the other party or by a court from which a declaration of rights was sought. They are exceptional cases, and the mere fact that the party who wrongfully terminated acted in good faith does not mean that the party had validly terminated the contract. In the present case, I have no reason to suppose that Acceleration did not act in good faith, but it did not act upon an erroneous view of its rights under the contract. Its view of the meaning of the phrase “serious or material breach” was correct. Its error was to believe that it had the facts at its disposal for proof of such a breach.
38	I find that Lomah accepted Acceleration’s repudiation of the contract and thereby terminated it, notwithstanding the vague and disputed evidence about Lomah having done further work for Acceleration after the repudiation. The acceptance came about by Mr Molloy saying “OK” and (I infer) retrieving his laptop computer and surrendering his security pass. Once there had been the acceptance of the repudiation, the way then was open for Lomah to claim damages for loss of bargain caused by the repudiation which led to the termination.
Damages
39	Lomah’s submissions seemed to assume that once it has been determined that Acceleration’s attempt to terminate for “serious or material breach” was wrongful, it automatically followed that Lomah was entitled to damages at the contractual rate of $700.00 per day for 22 out of 30 days being the period of notice required for termination. That does not automatically follow. Lomah is entitled to loss-of-bargain damages assessed so as to place it in the same position as if the contract had been performed. The relevance of the 30-day notice period, I consider, by analogy with the law about cases about wrongful termination of an employment contract, is that it marks the upper limit of the range of damages that can be awarded.
40	In assessing the damages, one must take into account any contingency upon which, under the contract, Acceleration’s liability to pay Lomah depended. Those contingencies were:
(a)	As Annexure A to the contract provided, Lomah services were to be provided “as required and directed”. While Acceleration would not have been acting in good faith if it refused to require or direct Lomah to provide any further services after 12 April 2021, it might in good faith have required or directed Lomah to perform services which would not have required Lomah to spend 30 days or 22 days in performing them.
(b)	As Annexure A also provided, Lomah’s hours worked were to be “tracked via Reason Group online timesheet tool”. Although there was no evidence of whether before 12 April 2021 Lomah was asked to, and did, submit timesheets to Reason Group for approval, Acceleration might have required Lomah to do that if the contract had not been terminated, and Reason Group might not have approved all of them.
(c)	In view of the dispute as to the standard of Lomah’s work, there was a possibility that Acceleration might in future have become entitled to terminate the contract because of “serious or material breach” had it not already been terminated by Lomah’s acceptance of Acceleration’s repudiation.
41	As there has been no evidence of a failure by Lomah to mitigate its loss following the termination of the contract, I leave out of account any issue about mitigation of loss.
42	The upper limit of the range of Lomah’s loss was $700.00 per day for 22-working days within the 30-day notice period provided for in the contract: $15,400.00. After taking into account the contingencies mentioned above, I would reduce that amount by 40%, so that the damages are assessed at 60% of $15,400.00, which is $9,240.00.
Interest and Costs 
43	In its second submission Lomah sought “interest” and “costs”.
44	Either by accident or by design, Lomah’s monetary claim in this proceeding is for damages of $15,000.00, the upper limit of a “small claim” defined in s 183 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (‘the ACLFT Act’) as a consumer and trader dispute in relation to a claim for payment of money in an amount not exceeding $15,000.00. It is the ACLFT Act in Chapter 7 which confers jurisdiction upon the Tribunal to hear and determine a “consumer and trader dispute”, which includes a dispute or claim arising between a supplier of services and a purchaser of services, as this proceeding is.
45	The Tribunal cannot order costs in a proceeding relating to a “small claim” as defined in the ACLFT Act. An exception is that in a “small claim” proceeding a party which has substantially succeeded in the proceeding is entitled to an order that the unsuccessful party must reimburse it for the fees it has paid. Lomah paid a filing fee of $220.90 to begin the proceeding. It has been substantially successful. Not only has it recovered more than one half of the amount it claimed, it also successfully refuted the defence of “serious or material breach”. Any argument that the exception does not apply would be untenable. There will be an order that Acceleration must reimburse Lomah for the filing fee of $220.90, but no other order for costs.
46	In determining a “consumer and trader dispute” the Tribunal may order payment of “damages in the nature of interest”: a discretionary power. It is only rarely exercised when a “small claim” is involved. I am reserving to Lomah a right to file and serve another written submission in support of an application for an award of interest. I am not encouraging it to do so.
Other Matters
47	In its second submission Lomah submitted that under the “contra proferentem” principle any ambiguity in the contract should be construed strictly against Acceleration in whose favour it had been made. The short answer to the submission is that there has been no evidence that Acceleration prepared the contract and proffered it to Lomah for execution. Moreover, it is not obvious that it had been made in Acceleration’s favour. At all events I have been able to construe the contract, in a way that has been substantially favourable to Lomah, with any need to rely on such a principle.
48	In one brief paragraph in its second submission Lomah referred to an “unfair” contractual provision. I was left to guess at what principle of law or equity was being invoked. I should not have to, and do not, guess.

A Vassie
Senior Member