IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMERCIAL DIVISION	Revised
(Not) Restricted
Suitable for Publication	
General List

  		Case No. CI-23-02283

Immix Holdings Pty Ltd (ACN 615 811 419)	Plaintiff	
		
v		
		
Western Port Metal Recyclers Pty Ltd (ACN 132 217 219)	Defendant	

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JUDGE:	Her Honour Judge Burchell	
WHERE HELD:	Melbourne	
DATE OF HEARING:	30-31 July, 1-2 and 19 August 2024 and written submissions dated 7, 13 and 21 August 2024	
DATE OF JUDGMENT:	7 October 2024 	
CASE MAY BE CITED AS:	Immix Holdings Pty Ltd v Western Port Metal Recyclers Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1551		

REASONS FOR JUDGMENT
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Subject:	CONTRACT – SPECIFIC PERFORMANCE 
Catchwords: 	claim for specific performance of a sale of business – whether contract contained in Heads of Agreement – whether contract is binding – whether obligations completed by the plaintiff 
Legislation Cited:	Retail Leases Act 2003 (Vic), s 61; Property Law Act 1958 (Vic), 73; Corporations Act 2001 (Cth), s127; Legal Profession Uniform Law, ss 296 and 297; Evidence Act 2008 (Vic), s 42(1)
Cases Cited:	Masters v Cameron (1954) 91 CLR 353; GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631; Winchcombe v Pigot (1614) 11 CORep 26b; Mantonn v Parabolic Pty Ltd [1985] 2 NSWLR 361; Locnere Pty Ltd & Anor v Jakk's Bagel & Bread Co Pty Ltd [2003] NSWSC 1123; Farrow Mortgage Services Pty Ltd v Slade (1996) 38 NSWLR 636; Hibblewhite v M’Morine [1840] Eng R 108; Federal Commissioner of Taxation v Orica Ltd (1998) 194 CLR 500; Brott v The Queen (1992) 173 CLR 426; Nurisvan International Ltd v Anyoption Holdings Ltd [2017] VSCA 141; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; Hart v MacDonald (1910) 10 CLR 417; BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Payne v Parker  [1976] 1 NSWLR 191; Briginshaw v Briginshaw (1938) 60 CLR 336; Retirement Services Australia (RSA) Pty Ltd v 3143 Victoria St Doncaster Pty Ltd (2012) 37 VR 486; Etna v Arif [1999] 2 VR 353; Hope v RCA Photophone of Australia (1937) 59 CLR 348; Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; Codelfa Construction Pty Ltd v State Railway Authority (NSW) (1982) 149 CLR 337; Grocon Constructions (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2015] VSCA 190; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Commonwealth Bank of Australia v Barker (2014) 312 ALR 356; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87; Mann v Carnell (1991) 201 CLR 1; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Jones v Dunkel (1959) 101 CLR 298; The Commercial Bank of Australia Ltd v GH Dean & Co Pty Ltd [1983] 2 Qd R 204; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 417; Retirement Services Australia (RSA) Pty Ltd v 3143 Victoria St Doncaster Pty Ltd (2012) 37 VR 486; Bot v Ristevski [1981] VR 120; Brien v Dwyer (1978) 141 CLR 378; Howe v Smith (1884) 27 CH D 89; Carr v Berriman (1953) 89 CLR 327; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; Laurinda Pty Ltd v Capalabal Park Shopping Centre Pty Ltd (1989) 166 CLR 623; DTR Nominees v Mona Homes Pty Ltd (1978) 138 CLR 423; Green v Sommerville (1979) 141 CLR 594; Foran v Wight (1989) 168 CLR 385; Bensons Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd [2021] VSCA 69; Dougan v Ley (1946) 71 CLR 142
Publications:	Patterson, Robertson and Duke, Principles of Contract Law (Lawbook Co., 4th ed., 2012), Seddon, Bigwood and Ellinghaus, Cheshire & Fifoot Law of Contract (LexisNexis Butterworths 10th ed., 2012), Seddon, Seddon on Deeds (1st ed., The Federation Press)

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	J D S Barber KC	James G Sloan 	
			
For the Defendant	I W D Upjohn KC with A C Blair 	Midwinter Lawyers 	

HER HONOUR:

Introduction 
1	The plaintiff (“IMMIX”) claims specific performance of a contract with the defendant (“WPMR”) for the purchase by IMMIX and the sale by WPMR of WPMR’s metal recycling business (“the Business”). IMMIX contends that the contract is set out in the Heads of Agreement (“the HOA”) dated 28 February 2022.  
2	WPMR’s defence is put on three alternative bases, first, that the HOA was executed as a deed which was materially altered; second, that there was no consensus ad idem between the parties in the HOA in relation to the amount of deposit to be paid and; third, there was a paramount oral term to the effect that the HOA was not a binding sale contract but only provided for exclusivity in negotiations during the due diligence period and, as such, there was no binding contract between the parties as contemplated by the third category in Masters v Cameron.  Alternatively, if the HOA constituted a binding agreement, then IMMIX wrongfully repudiated the agreement, by failing to produce a Law Institute of Victoria (“LIV”) contract and pay the deposit, which WPMR duly accepted and thereby terminated the agreement.  
3	In my judgment, IMMIX’s grounds are made out. My reasons in respect of each ground are set out below.  
4	Accordingly, I order that there is judgment for the plaintiff in the proceeding. I also order that defendant pay plaintiff the costs of and incidental to the proceeding on the standard basis, in default of agreement, unless either party has a basis for seeking a different order as to costs. I will invite the parties to prepare draft orders to give effect to these reasons and will determine any issue concerning costs on the papers.  
Factual background
5	There are two main issues. First, whether there is a binding contract. Second, if the refusal of the lease to IMMIX by the Landlord of the business premises afforded WPMR the opportunity to get out of the contract.  
6	The HOA was signed by Mr James Suggate, on behalf of IMMIX in his capacity as director, on 24 February 2022 and was emailed to Mr Robert Wilson of Biz Place Pty Ltd trading as Victorian Brokers (“Vic Brokers”), the broker for WPMR. Mr John Fincham, on behalf of WPMR, signed on 28 February 2022. However, WPMR requested a higher purchase price. Mr Suggate signed the second form of the HOA on 27 February 2022 and initiated the changes to the prices.  
7	Mr Wilson emailed it to Mr Fincham on 28 February 2022. Mr Fincham wanted a higher price again – an extra $50,000.00 because WPMR had bought more equipment. Mr Fincham inserted by hand the higher price of $3,335,000.00 with his initials beside it, and dated it 28 February 2022 and adjusted the deposit, which was not 10% but 100%. IMMIX contends this action was inconsistent with the terms of the agreement and inconsistent with a condition precedent. Mr Fincham sent it to Mr Wilson who noticed the “error” in the deposit and corrected it himself by striking through and typing in the “correct” 10% deposit in the sum of $333,500.00 and purported to “witness” Mr Fincham’s signature.  
8	On 1 March 2022, Mr Suggate did not sign the amended HOA but his email relevantly states:
 “As agreed the 2nd increase is for the 10 additional hook bins John purchased last week”. 
9	IMMIX contends that Mr Suggate was plainly accepting the counter-offer with the increased purchase price. The agreement is a contract and not takes effect as a deed.  
10	The lease term was 5 years with a commencement date of 14 July 2019.  Further terms included four by 5-year options. The commencement rent was $56,374.32 per annum, or approximately $4,700.00 per calendar month. The permitted use was for metal recycling. There was no security payment required.
11	The terms of the lease contained clause 14.2 in relation to “assignment and sub-letting” which included the following:
“Not to –
 (a) assign; or 
 (b) sub-let; or 
 (c) licence; or 
 (d) part with occupation of 
 the premises or the tenant's legal or equitable interest in the premises unless the landlord or the managing agent has in each instance given prior written approval. 
 14.3 Subject to clause 14.4, the landlord or the managing agent will not unreasonably refuse approval.”
12	Clause 14.4 set outs certain reasons on which it would be reasonable for the landlord to refuse approval.  
13	IMMIX admitted that the Retail Leases Act 2003 (“the RL Act”) conditions apply, including the term mandated by s61(2) of the RL Act: 
 “… request for the landlord's consent to an assignment of the lease must be in writing and the tenant must provide the landlord with such information as the landlord reasonably requires about the financial resources and business experience of the proposed assignee.” 
14	By the time of the exchange of the HOA, the rent for the business premises had increased to $5,060.04 per calendar month, including GST.  
15	On 8 March 2022, IMMIX paid the initial deposit in the sum of $1,000.00 and correspondence between the solicitors was exchanged.  
Legal framework 
16	The principles of whether parties have formed an agreement and intend to be legally bound by that agreement prior to signing any terms in writing are set out in Masters v Cameron.
17	If parties have entered into a preliminary agreement, it will be necessary to determine whether they intended to be bound or not. 
18	In Masters v Cameron, the High Court set out three categories that a preliminary agreement may fall into:
 “Where parties who have been in negotiation reach agreement upon terms       of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.”
19	By way of summary, the first category results in parties being legally bound by the preliminary agreement, whether or not a formal written contract is ever executed. In the second category, parties are bound to bring a formal written contract into existence. In the final case, parties are not bound unless and until a formal document is executed. 
20	A finding of which of the three categories a preliminary agreement falls into is determined objectively “upon the intention disclosed by the language the parties have employed” in the preliminary agreement.
21	The words “subject to contract” would usually (but not always) evince that parties do not intend to be bound unless a formal written agreement is executed, meaning that the preliminary agreement falls within the third category.
22	Conversely, words such as “legally binding in principle” have been held to show clear intention of parties to be bound immediately. 
IMMIX’s Submissions
23	IMMIX argues that a preliminary agreement was reached and that the main reason why the contract was not completed was because WPMR failed to obtain the consent of the landlord, Mook Nominees Pty Ltd, at the premises of 1953 Frankston-Flinders Road, Hastings, (“the Premises”) for the transfer of the lease or for a new lease to IMMIX. IMMIX submits that its failure to obtain consent should be considered within the context of WPMR having second thoughts about proceeding with the sale of the Business.  
24	IMMIX claims that the parties intended to be bound even where the parties sought to include additional terms.  It submits WPMR failed to obtain the transfer of the lease.  Instead, WPMR consistently attempted to put the obligation of the transfer of the lease onto IMMIX.  IMMIX did try to obtain a lease, but it was unable to do so. IMMIX argues that WPMR should not be able to take advantage of its own breach of a condition precedent. 
25	The HOA was signed by WPMR but not IMMIX. The document has a heading “Legally Binding”.  IMMIX says the heading is a clear statement the document is binding, and it was an all-agreement contract.
 “The parties acknowledge and agree that the terms of this document, incorporate the pro forma terms of the Contract of Sale of Business endorsed by the Law Institute of Victoria (the LIV Contract of Sale), are binding and constitute the entire agreement and understanding of the parties as to the terms of the sale of the Business. The parties agree that the arrangements, as set out in this document, will be more formally documented using the LIV Contract of Sale as soon as possible, unless the parties agree otherwise in writing. This document will terminate only upon the parties entering into the LIV Contract of Sale or another long form contract agreed to in writing by the parties. Each Party agrees to meet its own legal costs.” (emphasis added) 
26	The lease obligation stated:
 “LEASE AGREEMENT: The terms, conditions and obligations of the existing lease are to be approved by the Purchaser's solicitor within Fourteen (14) days from the date of Purchaser's receipt of copy of lease. In the event that the lease is disapproved by the Purchaser’s solicitor, then at the Purchaser's discretion, this offer shall be deemed to be void and all deposit monies paid shall be refunded. in the event that the Purchaser's solicitor does not provide written notice to the Vendor's solicitor that the lease has not been approved within Fourteen (14) days from the date of Purchaser's receipt of said lease, then in such event this special condition shall lapse. Subject to a transfer of the existing lease to the Purchaser on or prior to settlement.”
27	There was a settlement and act in good faith clause, whereby:
 “SETTLEMENT AND ACT IN GOOD FAITH: The Purchaser agrees to, at all times, act in good faith and use their best endeavours to fulfil the conditions in this document that are applicable to them as soon as possible. The parties agree that settlement is to be effected on 06 April 2022 or by agreement between the parties.”
28	The deposit clause provided:
“Upon the signing of this agreement, the Purchasers will pay an initial deposit of $1,000. Upon signing of the ‘CONTRACT OF SALE’ The Purchaser shall pay 10% of the purchase price, less the $1,000 above.”
29	The LIV contract was incorporated into the contract. General Condition (“GC”) 8 lease provides that:
“8.1 The Vendor must obtain for the Purchaser by the due date for settlement, a Lease of the Business Premises either: (a) by transfer of the current Lease with the landlord’s written consent (a Transfer); or (b) by a new Lease from the landlord to the Purchaser on the terms specified in item 3 of schedule 4 (a New Lease). 
 8.2 Both parties must take all reasonable steps to obtain the landlord’s consent to the Transfer or the New Lease of the Business Premises.
 8.3 The Purchaser must promptly provide to the Vendor information that a landlord could or does reasonably require about the financial resources and business experience of the Purchaser. 
 8.4 The Purchaser must prepare the deed of transfer unless the Lease provides otherwise.
 …
 8.7 If the Purchaser has complied with the obligations under general conditions 8.3, 8.4 and 8.6, and either: (a) the landlord has not; (i) consented in writing to the Transfer; or (ii) agreed to grant a New Lease; or (b) written evidence has not been provided that any mortgagee or chargee has consented to the Transfer or New Lease, by the date which is 5 Business Days prior to the due date for settlement, the Purchaser may by written notice to the Vendor extend the due date for settlement to a date not exceeding 14 days from the due date for settlement.
 8.8 If the provisions of general conditions 8.7(a) or 8.7(b) have not been satisfied, by the due date for settlement or the extended due date for settlement (as the case may be) either party may end this contract by service of 5 Business Days’ notice of termination of contract in which case the Vendor must repay any moneys paid by the Purchaser.”  (emphasis added) 
30	IMMIX says WPMR cannot rely on GC 8.8 as it did not comply with the conditions necessary to obtain a lease transfer or new lease from 11 March 2022. 
31	IMMIX submits that on 16 March 2022, Mr Daniel Jade, the solicitor for WPMR, wrote to Ms Susan Reece Jones, former solicitor for IMMIX, and accepted that conditions precedent were binding. Mr Jade noted that due diligence had been completed and the assignment of the lease process was outstanding. IMMIX observes that Mr Jade was not talking about a new lease at this stage. IMMIX contends that the email from Mr Jade is an admission in substance that the HOA is binding. IMMIX concludes that it does not make sense to have a condition precedent in a document that is not binding.  
32	On 16 March 2022, Mr Jade sent an email to the landlord and introduced Ms Reece Jones. IMMIX denies this was a request for consent for the assignment of the lease by WPMR. It relevantly provides:
 “We understand you are the Landlord of the Premises. We also introduce the potential incoming Tenant of the business legal representative Ms Susan Reece-Jones.
 We confirm that our client is in the process of a sale of business, and as such could you please kindly provide us with the following information?
 ...
 Transfer of Lease information required to be provided by the prospective tenant for consideration and approval.”
33	Ms Winsome O’Keefe, the landlord’s representative, responded to the introduction on 22 March 2022, that a new lease will need to be drawn up and still needed to be negotiated.  
34	Mr Jade sent an email to Ms Reece Jones on 22 March 2022, attaching a draft LIV Business Sale Agreement, which relevantly stated:
 “… We also understand no contact has been made with the Landlord as yet. Please confirm if this is correct. See attached email from Landlord in response to the introduction email we sent. We note again that due to the tight deadlines, you need to use best endeavours to make contact to ensure a lease is in place by Settlement.” 
35	IMMIX contends that this is the first example where WPMR seeks to shift its responsibility of obtaining a transfer of the lease or a new lease onto the purchaser.  Further, it argues that throughout the correspondence there is a consistent pattern of consistently putting it onto the purchaser to deal with the landlord over a new lease or a transfer of lease which is explored further below.
36	IMMIX acknowledges that on 23 March 2022, Ms Reece Jones responded to Mr Jade’s email attempting to vary the HOA to obtain a different purchase price. IMMIX says that nothing ever came of it. IMMIX observes that the response from Mr Jade was swift, stating:
 “We acknowledge receipt of your offer below. Our current instructions are that the current Heads of Agreement is still in effect and the DD period has been satisfied as per previous correspondence.” 
37	IMMIX contends that Mr Jade’s response was asserting correctly in his email that the HOA was binding.
38	Further, IMMIX relies on Mr Jade’s 24 March 2022 email in which he states:
 “We are also instructed that the figures attached show large growth and continual growth over the last 18 months, if your client are not going to proceed with the current Heads of Agreement (which is still on foot) which has a purchase price of $3,335,000 then we reserve all our rights in relation to this. We understand that our Client has already emailed your client regarding this as well.” 
39	IMMIX, again, contends this is a correct assertion that the HOA was on foot. 
40	On 28 March 2022, IMMIX submits that Ms Reece Jones incorrectly asserted that the HOA was not binding and that both business brokers gave evidence that they never said that the HOA was not binding, despite the email stating:
 “At the time of executing the heads of agreement, your client (via its broker) represented that the terms of the heads of agreement (HOA) was not binding, was only designed to preclude others from negotiating with your client and that the sale was a matter of negotiation between our clients until formal terms were signed.
…
 Accordingly, we put you on notice that if the updated financials you provided yesterday are not accurate, our client may seek not to proceed with any purchase if a sale price reflecting the true value of the business cannot be agreed.”
41	IMMIX further submits that both business brokers gave evidence stating they did not say the HOA was not binding, opposing Ms Reece Jones’ statement. 
42	Ms Reece Jones foreshadowed a possible negotiation to change the purchase price following the due diligence but, as IMMIX contends, nothing came of it. 
43	Mr Jade responded to Ms Reece Jones an hour later and stated that the HOA was legally binding as contained in the document, including:
“1. Where you have outlined representations made, nothing is attached to evidence this. We note that the Heads of Agreement is legally binding as contained in the document. We also note that the Vendor’s Warranties are also outlined. We note that the DD period is where your client goes through everything needed and if doesn’t agree or wants to rely of this clause then they communicate this. After repeated follow ups we heard nothing from your office. This is made very clear in the Heads of Agreement.
 2. In addition, you have not addressed the Due Diligence period in which your client had the opportunity to review and request all the information provided. As such this was satisfied and we have no record of any extension as provided In your email below, please provide this as a matter of urgency to assist with your instructions. In the absence of any confirmation, this condition has been satisfied and as your office did not bother to respond by the deadline, you cannot now reply that this was not satisfied.
 …
 4. We are also unclear as how your client can deny that the Heads of Agreement is not binding, we encourage you to read the agreement in detail. Please confirm on what basis you confirm this.
 …
 5. We also note that we had reminded your office and request on multiple occasions, see attached all the request for a response including that the DD period had been satisfied. We note your office did not take all reasonable steps/endeavours to meet these conditions precedent. We note you have not responded to our request re the Contract of Sale and have made not made any contact with the Landlord to negotiate a lease as of today according to our recent follow up. If this is incorrect please advise.”
44	On 6 April 2022, Mr Jade wrote to Ms Reece Jones:
 “We are instructed that our Client’s have been in discussions and it seems the Business Sale is now progressing as per the original sale price.”
45	IMMIX submits that in mid-April 2022, there were emails passing between the parties’ lawyers about a more formal contract of sale of business which progressed up to 22 April 2022. Contact was also made with Ms Catherine Sutton, the landlord’s representative, who had been away. 
46	On 19 April 2022, Ms Sutton and Mr Suggate exchanged text communications in relation to the lease for the business premises.  
47	On 20 April 2022, Ms Sutton sent the landlord proposed terms to IMMIX for a new lease. The terms were five by 5 years with an 18% increase in the existing rent ($6,000.00 per month) and rental increase of 5% from the existing $5,050.00 per month rent, with and a security deposit by way of bank guarantee of $200,000.00 due to “the high cost of site clean-up” (which was $0 on existing lease).
48	On 21 April 2022, Mr Suggate agreed to a bank guarantee.  Ms Sutton responded “great news. At $150k?”.  Mr Suggate responded that he had “requested $36k and was approved”.  Financial documents were provided by IMMIX to Ms Sutton.  
49	IMMIX submits that also on 21 April 2022, Ms Reece Jones and Mr Jade were engaged in communications in negotiating the terms of the more formal statement of the parties’ agreement. In her email, Ms Reece Jones referred to the terms of the lease which were substantially different to the lease with WPMR. She said that the purchase price on stock would be agreed after IMMIX reviewed each item and stock valuation. IMMIX contends they were working towards the more formal contract, but they had not finalised it yet.  
50	On 22 April 2022, Ms Sutton wrote to Mr Suggate as follows:
 “Thank you for sending through financial information. However, the letter from the accountant is insufficient. We requested a list of the company’s assets and liabilities. We are unable to accept your request to reduce the $150,000 security deposit by way of a bank guarantee. We have reduced this security by $50,000. We agree on the terms of $6000 (inclusive of GST) per calendar month and 5 percent annual rises.”  
51	That evening, Mr Suggate responded to Ms Sutton:
 “In order for Immix to agree to your demands – noting that they are substantially different to the terms provided to the current tenant and which in our view are unreasonable, Immix must be assured that there are no issues in relation to your property in regard to current tenant.
 If we are to enter a lease with you on the terms you have proposed, we want assurance that there are no outstanding issues with the tenant, that there are no outstanding issues or matters with regards to your property and that we would want a condition report provided by you, prior to signing the lease. We would also want to complete an inspection with you and for you as landlord to provide a comprehensive inspection report before we commence a lease on your proposed terms. 
 We have spoken with our bank which has agreed to provide us with the bank guarantee you are demanding on the basis that the lease agreement is for a 3-year term with an option to extend for another 3 years.”
52	IMMIX submits that Mr Suggate had concerns about onsite contamination by the existing tenant which prompted him to send the 22 April 2022 email.  At the same time, Mr Jade responded to Ms Reece Jones as follows:  
 “If you have a proposed Assignment of Lease already drafted, please send through so we can review. Please also confirm when you know if it will be an assignment or new lease.”
53	IMMIX argues that Mr Jade put it onto IMMIX to get a transfer of the lease or new lease, however, the next morning, on Saturday, 23 April 2022 everything changed when Ms Sutton expressed an unwillingness to transfer or grant a new lease to IMMIX.  Ms Sutton wrote to Mr Suggate the following:
“We do not wish to sign a lease with you."
54	Mr Suggate tried to retrieve the situation by responding: 
 “We will agree to your terms, I feel it’s important we met asap to ensure you are comfortable with proceeding.”
55	IMMIX says Mr Suggate’s email in response is not an agreement to lease. It submits that Mr Suggate could not accept an offer that had been withdrawn by the landlord. On this chronology, WPMR agreed that there was no agreement to lease.  
56	On 27 April 2022, Ms Reece Jones wrote to Mr Jade:
 “IMMIX’s proposes that IMMIX acquire both the assets and the shares in Western Port as this will resolve the assignment of lease.”
57	Mr Jade responded as follows: 
“What is the update with the landlord?
 Best you review the lease first, as normally a change of ownership clause is contained in Leases which is triggered and same approval is required. Please review and come back to us. We also note it can be a share purchase agreement or a sale of business/assets. One or the other.”  
58	IMMIX states that there is no suggestion by Mr Jade that WPMR will assist IMMIX with the landlord.  
59	IMMIX contends that Mr Ric Brown was offered employment on 14 April 2022 and was specifically brought on for this acquisition. 
60	IMMIX submits that Mr Brown met Mr Fincham on 28 April 2022 at a café and Mr Brown told him that the landlord would not sign a lease and Mr Fincham was surprised there was a problem with the landlord. They discussed Mr Fincham calling Ms Sutton to retrieve the situation. Mr Brown sent a report of his meeting with Mr Fincham later that evening by email to Mr Suggate. 
61	IMMIX contends that Mr Brown called Ms Sutton following his meeting with Mr Fincham. Ms Sutton told him that the landlord did not want to enter a lease with IMMIX. Mr Brown wrote her an email asking her to reconsider. There was no reply.  
62	IMMIX says that on 3 May 2022, Mr Brown called Ms Sutton again. He told her that IMMIX and WPMR were committed to the sale. IMMIX contends that when Mr Brown told Ms Sutton this, it caught her by surprise and her tone changed. They discussed the Premises and the possibility of IMMIX leasing it. Mr Brown was left with the impression she would talk with WPMR.  
63	IMMIX submits that Mr Suggate and Mr Brown met with Mr Fincham at a café around 4 May 2022.  They asked him whether he still intended to sell the Business to IMMIX.  He replied “yes”.
64	Mr Jade wrote to Ms Reece Jones after the meeting as follows: 
 “We understand you were not approved as prospective Tenants with the Landlord. As such we ask for an update from your end as to whether you are still negotiating or if we now need to rescind the Heads of Agreement between the parties by agreement based on condition precedent not being met.”
65	IMMIX contends by the language of “recission” and the reference to “condition precedent” is all in recognition that HOA was binding on the parties.  
66	On 5 May 2022, Ms Reece Jones wrote to Ms O’Keefe, relevantly, as follows:
 “We are in possession of a commercial lease dated 14 July 2019 between Mook Nominees Pty Ltd (as Landlord) and WPMR (as tenant) for the Premises (Lease). 
 Pursuant to clause 14.2 of the Lease, Immix seeks the Landlord’s written approval of an assignment of the lease to it as incoming tenant. 
 Clause 14.3 states that the Landlord will not unreasonably refuse approval of the assignment.
 …
 Immix does not understand on what basis the Landlord is refusing to deal with it on these issues. It cannot be because Immix lacks the means, ability or experience to carry on the permitted use of metal recycling at the Premises. If there is some matter that the Landlord remains concerned about or requires further information of, please let us know so that the matter or concern can be addressed or resolved.
 As matters stand, there is an enforceable contract of sale for the sale and purchase of the business and assets of WPMR. The Lease currently in place with WPMR is in a form acceptable to Immix; and there is no reasonable basis upon which the Landlord should refuse its reasonable approval to the assignment of the Lease.
 Immix requires the Landlord to provide its written approval to WPMR’s assignment of the Lease.
 Should such approval not be forthcoming, Immix will seek to compel WPMR (as tenant) to obtain that approval. …”
67	On 5 May 2022, Ms Reece Jones sent a letter to Mr Jade, which relevantly provided as follows:
 “2. We have been advised that the Landlord is refusing to either agree to a new lease or assign the current one in place with your client. 
• As matters stand, our respective clients have a binding contract for the purchase and sale of your client’s business and assets conducted from its Hastings business address (being the leasehold premises), on the terms set out in the Vic Brokers Heads of Agreement. …
 6 Accordingly, pursuant to clause 13.5 of the LIV’s Contract of Sale of Business; and clause 14 of the Lease, Immix requires the Vendor (as tenant) to procure the Landlord’s approval to an assignment of the lease. 
 Should the Landlord continue to refuse, please advise whether your client will take steps to compel the Landlord to provide its approval, in accordance with the terms of the Lease in accordance with its obligations under clause 13.5 above. 
 8. Immix remains committed to completing settlement.” 
68	Mr Jade responded on 5 May 2022:
 “2. We also request you provide /account for what reasonable and genuine steps you have conducted to procure the Lease which is required under the Heads of Agreement; 
 3. We have continued to act in good faith throughout this whole process and have made many attempts to assist the Purchaser and Landlord effect a Lease agreement; 
 4. We also note that currently, your client is in breach of the Heads of Agreement and to date, we have not enforced our rights in a further attempt to enliven the parties agreement.” 
69	IMMIX says it cannot be in breach of an agreement that WPMR is now arguing is not binding by virtue that an assertion of a breach implies that WPMR thought the HOA was in fact a binding agreement.  There was no response to Ms Reece Jones’ requirement of her point 6 (in the email correspondence set out above) requiring the vendor as tenant to procure the landlord’s approval. 
70	IMMIX observes that Mr Jade’s email later that day is still silent on the tenant obtaining the landlord’s approval. 
71	By email dated 6 May 2022, Vic Brokers attached the communications between the purchaser and the landlord in relation to the lease discussions. Mr Serhiy Tsundra requested of Mr Jade the following:
 “Could you please advise if you can influence in any way to proceed with the landlord approval.”  
72	IMMIX says it is unaware that WPMR did anything of that nature. 
73	On 11 May 2022, Ms Reece Jones wrote to Mr Jade stating:
 “Clause 7.2 [condition 8.1] of the LIV pro-forma places an obligation on your client as the Vendor to obtain a lease of the business premises either by transfer of the current lease with the Landlord's written consent, or by a new lease. 
 Clause 7.3 [condition 8.2] of the LIV pro-forma requires both parties to take all reasonable steps to obtain the transfer and the Landlord's consent, or the new lease of the business premises. …
 6 On 23 April 2022, the Purchaser agreed to all of the Landlord's terms. Despite this, the Landlord advised our client that day, that she would not agree to a new lease agreement. Our client was very surprised as he was of the view that Ms Sutton was amendable to entering a new lease, particularly given Immix had agreed to all of the Landlord's new lease terms. … 
 As matters stand, the Vendor has rights under its lease with the Landlord to compel a transfer of the current lease. We have made that clear in our letter to the Landlord. We have seen nothing to suggest your client has done anything substantive to progress the issue. …
 If there is something you require from us to progress the issue, please let us know. 
 As we have done, we would appreciate you providing an account of what reasonable and genuine steps your client has conducted to procure a transfer or a new lease.
 Again, our client remains committed to completing the purchase of your client's business.”
74	IMMIX says Ms Reece Jones has the order of events wrong at point 6 of her email. The landlord’s refusal occurred before IMMIX agreed to the landlord’s proposed terms of the lease. There was no response until 20 May 2022, after Ms Reece Jones wrote to Mr Jade again:
 “We would appreciate a response to the matters raised in our letter to you dated 11 May 2022. 
 We would also be pleased to discuss how we might assist your client to effect a transfer of the current lease from the Vendor to the Purchaser (or execute a new lease with the Purchaser) or otherwise compel the Landlord to effect a transfer in accordance with your client's rights under the Lease and proceed to finalise this transaction.”
75	Ms Reece Jones wrote to the landlord on the same day attaching her 5 May 2022 letter.  
76	On 20 May 2022, Ms Sutton replied to Ms Reece Jones:
 “We understand from our current tenant that they do not wish to sell their business to your client, so the issue is mute [sic].”  
77	Mr Jade responded on 25 May 2022 referring to the 11 and 22 May 2022 correspondence as follows:
 “We now agree with your view stated in your email dated 28 March 2022 that the Heads of Agreement attached (incorporating the pro forma terms of the LIV Contract of Sale) dated 28 February 2022 (“Agreement”) is not enforceable and binding and that “the sale was a matter of negotiation between our clients until formal terms were signed” (please see email attached),we also confirm in any case that it had been repudiated by your client being unwilling or able to perform its obligations under the Heads of Agreement. …
 As outlined above and based on current status, we are writing to notify you, for the avoidance of any doubt, that our Client no longer wishes to continue to enter into any further negotiations for the sale of the Business and as such, all further negotiations are at an end;
 We also note that your client cannot just pick and choose a narrative to suit its wants at a particular time, this is not in the spirit of this transaction and/or in good faith, this is also evidenced by your client’s lack of responses or willingness to sign a Contract of Sale and subsequently pay a Deposit. …
 Furthermore, as the Landlord has not consented to a Transfer/Assignment of Lease by the due date of Settlement, our Client hereby gives notice to terminate the Agreement in 5 business days of the date of this email pursuant to General Condition 8.8 of the endorsed LIV Contract of Sale (February 2020) (“LIV Contract”) (attached). …
 As required under General Condition 8.1 and 8.2 of the LIV Contract, the Vendor has taken all reasonable steps to obtain a Transfer of Lease for the Purchaser, including the following …
 However, we note that ultimately our Client does not control the course of the negotiations between the Purchaser and the Landlord and whether or not the Landlord approves the Transfer of Lease to the Purchaser.” 
78	IMMIX submits that the HOA made it clear that the balance of the deposit was due on the signing of a formal contract, which had not happened. The letter does not set out a request for an assignment of the lease or that WPMR has taken any steps to require the landlord to approve the assignment of the lease. IMMIX argues it is only WPMR under GC 14.3 of the lease who had the right to require the landlord to approve IMMIX as a tenant.  
79	On 13 July 2022, Heinz Law, acting for the landlord, wrote to Mr James Sloan stating that tenant had not made a request to transfer the lease.  
80	IMMIX contends that WPMR, cannot rely on a failure of the condition precedent of an assignment of the lease when it is its own failure to fulfil its obligation to obtain a transfer of the lease or a new lease, and its own failure to exercise its rights under the lease to request a transfer and require the landlord to consent, that resulted in the failure of the condition.  
81	IMMIX contends that the fact that it explored with the landlord the possibility of a new lease does not constitute a waiver or a release of its right to a transfer of the existing lease and ignores the operation of s61 of the RL Act and the procedure of a landlord and tenant summons issued in the Victorian Civil and Administrative Tribunal (“VCAT”). Further, under s61, if the landlord does not respond to a request within the time limited, consent is deemed to have occurred. An application would only be required if the landlord actually refused consent.  
82	IMMIX rejects WPMR’s contention that key terms were still being negotiated by the parties and submits that the contract price changes raised by Ms Reece Jones following the due diligence went nowhere, and the stock price was contemplated in the HOA. It says that all the essential terms were included in the HOA and the LIV standard terms. IMMIX argues that WPMR’s assertion that the HOA was executed as a deed is not pleaded by IMMIX and it does not matter in any event, as on its case, the parties concluded a simple contract.  
83	IMMIX denies that there was a paramount oral term, and it cannot stand in the face of an express written term to the contrary. The HOA says it is binding and it supersedes oral terms where there is an entire agreement clause and another in the LIV agreement. 
84	IMMIX observed that WPMR’s estoppel case is not pleaded in the way set out in paragraph 13 of its written submissions. It notes that the defence at paragraph 10(c)(i) only pleads estoppel as it relates to the issue of whose obligation it was to procure the landlord's consent. WPMR clarified at trial that no amendment of the defence was sought, and it would not pursue an estoppel defence which was not pleaded. 
85	IMMIX claims that it never failed or refused to execute any contract of sale and pay any deposit. It submits it is quite explicable why the parties would not go on to finalise and sign a contract sale in circumstances where the landlord refused to deal with IMMIX and was refusing to cooperate. 
86	IMMIX asserts that it is not a breach of an essential term that IMMIX failed to provide WPMR with a fully executed long form of contract. IMMIX relies on category 1 of agreement identified in Masters v Cameron. That is, where the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. It submits that if it were in that situation a breach of an essential term to fail to enter into the fuller and more precise form, then it would mean that the category does not exist at all.  
87	Finally, IMMIX contends that the failure to meet a settlement date does not avoid the Contract, nor does it release the parties from their obligations. 
WPMR’s Submissions 
88	WPMR submits that this Court is only the upholder and not a destroyer of bargains if there was a concluded bargain. WPMR argues that this case involves a written contract that is, a deed, executed as a deed, and was meant to be a deed.  
89	WPMR submits that no preliminary agreement “on terms of a contractual nature” was reached, thus Masters v Cameron does not arise. 
90	Alternatively, it says if the Court finds that parties had reached an agreement on terms of a contractual nature, the Court should also find that the third category in Masters v Cameron applies, that is, the parties did not intend to be bound unless and until a formal contract was executed.
91	WPMR observes that the HOA had a number of iterations.
92	The first HOA was signed by Mr Suggate on 24 February 2022.  Vic Brokers sent the HOA to Mr Fincham by email on 25 February 2022.
93	On 27 February 2022, Mr Suggate amended the HOA by striking through some prices and via DocuSign, inserts his initials to the changes. There was an increase in purchase price from $3,200,000.00 to $3,825,000.00. The last change was made at 2.15pm on 28 February 2022.  
94	On 28 February 2022, Mr Fincham adds on another $50,000.00 to the document in handwriting with his signature next to the sum of $3,335,000.00 with a deposit for 100% of the purchase price. WPMR rebuts IMMIX’s contention that the 100% deposit is a commercial absurdity. This is because of IMMIX’s position that it did not need to execute a contract of sale until it was good and ready, which could go right up to and including settlement date.  
95	Mr Fincham signed the HOA on 28 February 2022 with no witnesses.  It is sent at 5.54pm to Mr Wilson of Vic Brokers who sends the signed and amended version by Mr Suggate. WPMR submits that Mr Wilson materially alters the document by doing two things. First, he purports to witness the document by “pdffiller” and second, he changes the deposit to 10% of the purchase price in the sum of $333,500.00 and strikes through Mr Fincham’s change. WPMR argues that a material alteration of a deed voids the agreement and relies on the application of Pigot’s Case.  
96	WPMR says the HOA was not binding because the broker said the HOA was only to provide exclusivity of negotiating rights to the parties during the due diligence process. WPMR contends this is evident in an email from IMMIX’s own solicitor at the time, Ms Reece Jones, dated 28 March 2022, and the paragraph stating:
 “[a]t the time of executing the heads of agreement, your client (via its broker) represented that the terms of the heads of agreement (HOA) was not binding, was only designed to preclude others from negotiating with your client and that the sale was a matter of negotiation between our clients until formal terms were signed”.
97	WPMR contends this is a rather precise statement for a solicitor, and WPMR asserts the Court should assume in the absence of any evidence from the solicitor, that Ms Reece Jones did so on instructions.  
98	WPMR submits that, on 28 March 2022, Ms Reece Jones gave an opinion that the HOA was not binding.  It argues that, at the time of executing the HOA, the broker also represented to Mr Fincham that the terms were not binding and was to preclude others from negotiating with WPMR.  WPMR notes that Ms Reece Jones is not being called by IMMIX to give evidence. WPMR claims Ms Reece Jones’ statement is consistent with the conduct of the parties afterwards. WPMR argues that the parties’ ongoing haggling over terms, as set out in Ms Reece Jones’ email on 12 April 2022 insisting on a number of amendments to the HOA for the formal contract of sale, suggests that the parties did not consider themselves to be bound by the HOA. WPMR conceded that the opinion of Ms Reece Jones is not conclusive as to whether there was an agreement. This is ultimately a matter for the Court to determine.  
99	By email dated 12 April 2022, Ms Reece Jones set out a number of amendments to the LIV contract of sale. These amendments included the settlement date moving from 6 April 2022 to 3 May 2022, the purchase price of $3,300,000.00 inclusive of all stock instead of plus stock, and a restraint of trade distance of 200 kilometres for 2 years instead of 3 kilometres for 3 years. WPMR contends that these were completely different commercial terms. 
100	By email dated 13 April 2022, Mr Jade agreed to most of the amendments.  
101	WPMR submits that by April 2022 it was too late for IMMIX to start insisting that WPMR procure the landlord’s consent. WPMR says that it would have been impossible for them to obtain consent at this point because IMMIX had already run the clock down and had already “poisoned the well” in that it had destroyed its relationship with the landlord. 
102	WPMR contends that on 7 March 2022, from the outset and within a week of the HOA being signed by both parties, Mr Jade wrote to Ms Reece Jones that he understood that IMMIX was negotiating a new lease with the landlord directly. He asked Ms Reece Jones to confirm if this was not the case. WPMR asserts that it was the case, and the parties proceeded on that basis until early May 2022.  
103	At the time of drafting, the settlement date was 6 April 2022. On 6 April 2022, it was adjusted to 3 May 2022, after due diligence was provided and there were discussions about the purchase price and the new settlement date was agreed. On 22 April 2022, Mr Jade responded to the items raised, stating: 
 “[i]f you have a proposed Assignment of Lease already drafted, please send through so we can review.  Please also confirm when you know if it will be an assignment or new lease.”
104	WPMR submits that s61(5) of the RL Act provides a statutory mechanism for the parties, landlord, tenant and prospective new tenant to get the landlord’s consent and a 14-day period for the landlord to make a response.  WPMR argues that by 19 April 2022, it was too late for IMMIX to go back to WPMR and, in any event, IMMIX had scared off the landlord. 
105	WPMR refers to two emails in late April 2022. First, an email on 20 April 2022, from Ms Sutton to Mr Suggate which set out the landlord’s requirements for the new lease.  
106	Second, an email on 23 April 2022, when Mr Suggate wrote to Ms Sutton blaming his solicitors for things going wrong with the landlord. WPMR conceded that the offer for the new lease had been withdrawn by this time. Ms Reece Jones was wrong about the chronology in her letter of 11 May 2022. WPMR, therefore, did not press the argument that there was an agreement to lease at this time. 
107	By email dated 6 May 2022, Mr Tsundra asked if Mr Jade had any influence in any way to proceed with landlord approval. Prior to this point, WPMR claims that the parties were all talking about a new lease at this stage. 
108	By email dated 7 May 2022, Ms Sutton wrote to Mr Fincham setting out the chronological order of correspondence and discussions from her point of view. She characterises the email of 20 April 2022 from Mr Suggate, relevantly, as follows:
 “Received email from Jim Suggate with demands that were not in the tone or action of how we do business.  It was threatening. …  
 Email from Jim Suggate noting it was the solicitor's fault for sending a nasty email. … 
 We still do not have appropriate information as requested several times to determine the viability of agreements. … 
Call and email from Ric Brown, Immix, blaming solicitor to nasty email.
Very aggressive and threatening call X 2 from business broker saying we must sign lease. I had to hang up the phone twice and asked him to not contact me.”
109	WPMR submits that IMMIX is a special purpose company which was set up to acquire the business. It is a new company without a trading history. WPMR asserts that it is, therefore, quite reasonable for the landlord to be asking questions about IMMIX’s financial viability and asking for a substantial security deposit. 
110	WPMR contends that things had broken down between IMMIX and the landlord by 3 May 2022, which was meant to be the original settlement date.  
111	WPMR argues that IMMIX had run the clock down to 3 May 2022, and by that stage, there was no reasonable time to get consent from the landlord and in response rush off to VCAT with a vendor and purchaser summons to compel consent, when the landlord is entitled to withhold consent reasonably. WPMR claims that all it was obliged to do was cooperate, provide the introduction to Ms Sutton and assist with dealing with the landlord.  
112	WPMR submits that Mr Fincham explained to Mr Brown that the landlord were “old school people” and “country people with traditional values”. He recommended that IMMIX have face-to-face discussions with the landlord rather than sending emails.  On 22 May 2022, when Ms O’Keefe spoke with Mr Suggate, she disliked him.  
113	WPMR submits, if there were binding HOA, then IMMIX failed to comply with the terms of the HOA by failing to do a number of things which needed to be done before the settlement date, including a duly executed contract of sale.  WPMR contends that a formal LIV contract of sale was provided for in the HOA.  WPMR notes that IMMIX says its delay in finalising a formal LIV contract of sale is explained because the parties were still in negotiations in relation to the lease and the stock. However, WPMR claims that the HOA does not say IMMIX can wait until the landlord’s consent is obtained to finalise the formal contract, and the 11 May 2022 letter from Ms Reece Jones contains a fundamental misconception of the purchaser’s obligations.  
114	WMPR contends that, prior to 11 May 2022, the landlord’s approach all along was to obtain a new lease and not an assignment of the existing one. WPMR claims that all it was required to do was provide an introduction and to “stay out of it”.  From 7 May 2022 onwards, it was meant to be a new lease. WPMR contends that the new lease needed to be negotiated by the new tenant and the landlord directly.  An assignment is a different matter.  
115	In reference to an email dated 20 May 2022, WPMR claims that IMMIX tries to go back to the position of WPMR seeking an assignment and the consent of the landlord. The email correspondence of Ms Reece Jones set out as follows:
 “As matters stand, the Vendor has rights under its lease with the Landlord to compel a transfer of the current lease. We have made that clear in our letter to the Landlord. We have seen nothing to suggest your client has done anything substantive to progress the issue.
 Immix is, as reiterated on multiple occasions, ready, willing and able to make payment of the balance of the deposit upon execution of the LIV Contract of Sale once a transfer of lease (or new lease) is executed, and then proceed to settlement.”
116	WPMR says there is nothing in the HOA or LIV contract of sale that says the transfer of lease or new lease needs to be in place prior to the contract of sale being signed. WPMR submits that Clause 8 of the LIV contract of sale says the new lease is only required at settlement. WPMR contends that this is a cardinal sin of Ms Reece Jones. WPMR asserts that it cannot be that IMMIX can wait until settlement for all steps to be completed. WPMR claims it is a commercial absurdity that IMMIX can wait until settlement for the new lease, the contract of sale and to pay 100% of the deposit.  WPMR submits that the contract of sale needed to be in place at a reasonable time before settlement and there was effort on the part of IMMIX to do so.  
117	WPMR contends that there was never a version of the HOA that had Mr Suggate’s initials to Mr Fincham’s changes. WPMR claims that Mr Fincham was not fussed who he sold the business to but by late May 2022, he ceased being willing to sell to IMMIX after there had been a long delay in the production of a contract and there was no payment of the 10% deposit. WPMR observes that there was only $1,000.00 on the line for IMMIX on a $3,000,000.00 purchase. 
118	WPMR argues that the HOA as a deed is void by reason of the broker’s material alterations. Alternatively, there was no consensus ad idem about the terms and there was a paramount oral term, which is inconsistent with the written term.  WPMR contends that where it is not a deed, and it is only an agreement then extraneous evidence is permitted to constitute the agreement and to look at the conduct of the parties.  
119	WPMR contends that the oral term was agreed by the former solicitors’ correspondence, that Mr Wilson said to both Messrs Suggate and Fincham separately that the HOA was a starting point for further negotiations. WPMR claims that this is what the parties did.  
120	If WPMR is wrong about there not being an agreement, then it says that specific performance is not available because IMMIX was in breach of its own obligations and it cannot rely on the subsequent or related non-compliance of WPMR to not obtain the landlord’s consent. WPMR asserts that the agreement was validly terminated by the letter of 25 May 2022 within five business days thereafter.  
The witnesses 
121	IMMIX called four witnesses and WPMR called one witness.
James Suggate
122	Mr Suggate is the director of IMMIX. IMMIX recycles scrap metal and processes it for steel mills overseas. In 2022, IMMIX Group had about 36 employees. It now has approximately 64 staff and operates from six premises in Wagga Wagga, Wangaratta, Shepparton, Wodonga, Truganina, and Hallam.  
123	Mr Suggate was an honest witness who sought to give evidence within the limits of his memory and comprehension. There were gaps in Mr Suggate’s recollection and some of his memory lapses were generally explicable by the extensive effluxion of time involved with this case. His evidence was marked by references to matters he “did not know” or “could not recall”. Mr Suggate’s recollection of events was vague and general, and often confused. I accept that this was due to his confusion about the subtleties of the questions being asked under cross examination. His recollection diverged from the documentary record. For these reasons, where there is a contemporaneous document in evidence, I prefer the documentary record as more reliable.  
124	In about February 2022, Mr Suggate saw the business of the WPMR advertised for sale online by Vic Brokers. He was already aware of WPMR’s business because one of IMMIX’s staff members, Mr Ivan Orsolic, had traded with WPMR.  Mr Suggate had driven past WPMR’s premises before and regarded the Hastings area as one where he wanted IMMIX’s business to grow.  
125	Mr Suggate contacted the broker who had placed the advertisement, Mr Wilson, and signed a confidentiality agreement. Mr Suggate was then given WPMR’s financial statements. Mr Suggate told Mr Wilson he was interested.
126	IMMIX’S external accountant and Mr Suggate visited WPMR’s Premises where they met Mr Fincham and Mr Wilson. Mr Fincham said that he wanted to sell because he had had enough and wanted to stop working 7 days a week.
127	Mr Fincham and Mr Suggate discussed the price of the business at the meeting and over several telephone calls.  
128	Mr Fincham rejected Mr Suggate’s initial offer of $3,250,000.00. Mr Wilson produced the HOA, and these were signed and sent back and forth a couple of times with different prices but were eventually finalised at a price of $3,335,000.00.  Mr Suggate did not have a problem with the increase in purchase price plus stock, and he signed the HOA by DocuSign.  He sent the document to Mr Wilson after signing.  
129	Mr Wilson called Mr Suggate who advised that Mr Fincham had acquired about 10-12 extra hook bins about 10-15 cubic metres in size. Mr Suggate agreed to the increase in purchase price. Mr Wilson emailed the revised price to Mr Suggate who responded in email that he accepted it. He did not sign it a third time as he did not think it was required. He signed it twice and his email confirmed acceptance of the additions.  
130	On 8 March 2022, IMMIX paid the $1,000.00 deposit. The HOA required the deposit to be paid on execution on 28 February 2022.  
131	Messrs Wilson, Paul Tucker, Director of BusinessDEPOT, IMMIX’s accountant (“Mr Tucker”), Fincham and Suggate had a meeting at the office at the Premises. They discussed Mr Fincham’s future, staffing, equipment, and general business. Mr Fincham would stay on as a contractor for 3 months and he was wanting to move to South Australia to spend time with his family and fly his aircraft.  
132	Mr Suggate could not recall any discussion about the HOA not being binding. 
133	By email dated 28 February 2022, there was no mention of payment of the deposit and the emphasis was on the inspection of the Premises. Mr Suggate said this was because he was thinking about purchasing the Business (not that he had purchased the business).  
134	After entering the HOA, Mr Suggate arranged for IMMIX to employ Mr Brown who had been working for Sims Metal on the expectation that IMMIX was acquiring the Business. He wanted Mr Brown to manage the WPMR business. The employment agreement with Mr Brown is with IMMIX Integrated Metal Management (ACN 153 681 371), a different company to IMMIX.
135	IMMIX engaged Ms Reece Jones as its solicitor to manage the process of the purchase. By email dated 12 April 2022, Ms Reece Jones informed Mr Jade that she was awaiting instructions from her client in relation to the variations/issues to be added to the Special Conditions. The table included a change to settlement date, and the purchase price was different, stating that it was $3,300,000.00, including stock when Mr Suggate understood it to always be plus stock. Ms Reece Jones noted the HOA was subject to the lease arrangements. It does not state that the vendor needs to help with the lease. The restraint of trade was also varied from 3kilometres and 3 years to 200kilometres and 2 years.  Mr Suggate gave evidence that he “did not tell her that” and later said that he “could not recall” giving Ms Reece Jones these instructions.  
136	On 28 March 2022, Ms Reece Jones tried to get IMMIX out of the HOA by sending an email saying that they were not binding and instead it was designed to preclude others from negotiating with WPMR, and that the sale was a matter of negotiation until formal terms were signed. This email was not based on anything Mr Suggate had said to her. He did not have a conversation with Mr Tsundra that the HOA was not binding. Mr Suggate said he is absolutely positive that he did not tell Ms Reece Jones that the HOA was not binding.  
137	Mr Suggate said that the HOA said it was WPMR’s obligation to obtain the lease or transfer the lease. IMMIX would assist and do everything it could to help. By letter dated 7 March 2022, IMMIX was negotiating a new lease with the landlord directly. Mr Suggate agreed that Mr Fincham introduced the landlord.  
138	Mr Suggate agreed that due diligence was important to determine if IMMIX would proceed with the sale. By around 23 March 2022, Ms Reece Jones wrote to Mr Jade noting that “we are instructed”.  Mr Suggate said that “he could not say” who gave her those instructions. Mr Suggate said that there were a lot of things that Ms Reece Jones did and said that IMMIX did not agree with which is why she is no longer retained.  
139	At the time of the HOA, Ms Sutton, who was the representative of the landlord of WPMR’s business premises, was away.  At some point in April 2022, Mr Fincham told Mr Suggate by telephone that Ms Sutton had returned and asked him to call her, and provide her with the information she wanted. Mr Fincham said that there had been a bit of a holdup, and that the landlord’s people were “relationship-based” people. Mr Suggate thought that meant they were easy to get along with, liked their clients and were adaptable as they supported Mr Fincham’s father and at times and gave him rent relief.  
140	In April 2022, Mr Suggate communicated with Ms Sutton about a new lease.  She said she wanted the rent to be $6,000.00 per month, which was an increase on the rent that WPMR was paying. Mr Suggate said IMMIX could put up a security deposit of $36,000.00. She said she wanted $150,000. Mr Suggate agreed to this if there could be a 3-year term plus a 3-year option, and assurance that there were no issues with WPMR plus a condition report and comprehensive inspection. 
141	Mr Suggate could not recall why the landlord wanted such a large security deposit. He agreed that the landlord had no history with IMMIX but could not answer if the concerns were because of IMMIX having no financial history.  
142	By text message on 19 April 2022, Ms Sutton contacted Mr Suggate and offered a new lease to IMMIX. Her email dated 20 April 2022, set out new terms of 5 by 5-year options, an increase of rental income to $6,000.00 per month and a rental increase of 5% annually. Ms Sutton also sought a security deposit of $200,000,00 by way of bank guarantee.  Mr Suggate thought the bank guarantee was unreasonable.  
143	By email dated 22 April 2022, Ms Sutton stated that they were unable to accept the request to reduce the $150,000.00 security deposit as they had already reduced it by $50,000.00.  Mr Suggate asked if there were any outstanding issues with the tenant or the property and confirmed that IMMIX wanted a condition report prior to signing the lease. 
144	Mr Suggate sent the email in response to Ms Sutton, because he wondered, given the close relationship between WPMR and the landlord, whether there might be a clean-up notice for contamination on the property issued on IMMIX that they were not responsible for. Mr Suggate requested the condition report to determine if the floor was clean or contaminated.  
145	Ms Sutton then refused to enter into a lease with IMMIX. Mr Suggate thought it might be because he was coming across as a bit firm. He explained that some of the words used in the email dated 22 April 2022 had been drafted by his solicitor.  He subsequently regretted using those words the next day.  
146	On 23 April 2022, Ms Sutton sent Mr Suggate an email saying the landlord did not wish to sign a lease with Mr Suggate. At that point, Mr Suggate agreed to Ms Sutton’s terms.  Mr Suggate never met with Ms Sutton in person.  
147	About this time, because negotiations were getting difficult, Mr Suggate sent Mr Brown to the Premises to liaise with Mr Fincham and the landlord’s representative, Ms Sutton. The landlord was politely telling the vendor to “stay out of it”.  
148	Mr Suggate met Mr Fincham in a coffee shop in Hastings and had several telephone calls with him.  He said that IMMIX were getting cold feet and were wondering what to do.  Mr Suggate asked Mr Fincham “do you still want to sell the Business?” Mr Fincham said he did want to sell the Business. Mr Fincham was surprised that Ms Sutton did not want to enter into a lease with IMMIX.  
149	After the email of 23 April 2022, Mr Suggate got no response to his attempts to contact Ms Sutton. Ms Reece Jones sent Ms Sutton a letter on 5 May 2022 and copied it to WPMR’s solicitor, stating that “our respective clients have a binding agreement”.
150	On 11 May 2022, Ms Reece Jones wrote to WPMR’s solicitor pointing out that WPMR had rights under its lease to compel a transfer of the lease to IMMIX and that she had seen nothing to suggest that WPMR had done anything substantive to progress that issue.
151	On 20 May 2022, Ms Reece Jones sent Ms Sutton another letter. Again, Ms Reece Jones sent a copy to WPMR’s solicitor saying, “IMMIX remains committed to completing the transaction”.  
152	Ms Sutton replied by email saying, “[w]e understand from our current tenant that they do not wish to sell their business to your client, so the issue is mute (sic)”.
153	Soon afterwards, IMMIX stopped retaining Ms Reece Jones and engaged its current solicitor Mr Sloan.  
154	Mr Suggate was not aware of any steps that WPMR took to enforce its rights under the lease of the premises to require the landlord to agree to a transfer of the lease or a new lease to IMMIX. 
155	Mr Suggate conceded it was possible that he asked for settlement date to be pushed out by a month as the April date was “too soon”.
156	Mr Tucker looked at the financial material of WPMR during the due diligence.  Mr Suggate and Mr Tucker had a discussion about the figures. They found that the values of the business had been misrepresented and the value was around $2,000,000.00 and not $3,350,000.00. Mr Suggate said that the price agreed to was $3,350,000.00 and it was not changed. He could not recall the specific details of a discussion with Mr Fincham about the value of the business.  
157	On 11 May 2022, Ms Reece Jones wrote to Mr Jade, relevantly, as follows:
 “As matters stand, the Vendor has rights under its lease with the Landlord to compel a transfer of the current lease. We have made that clear in our letter to the Landlord. We have seen nothing to suggest your client has done anything substantive to progress the issue.
 Immix is, as reiterated on multiple occasions, ready, willing and able to make payment of the balance of the deposit upon execution of the LIV Contract of Sale once a transfer of lease (or new lease) is executed, and then proceed to settlement.”
158	Mr Suggate agreed that he gave instructions to Ms Reece Jones were that IMMIX was willing to sign the contract and pay the deposit, but only after there was a signed lease. Mr Suggate did not want to buy the Business if there was no premises to operate from.  The Premises were key to the transaction.  
159	Mr Suggate could not recall at the meeting in the café asking Mr Fincham to assist with getting the landlord’s consent or that they were upset about an email that Mr Suggate had sent. He did recall that Mr Fincham said that they were “old school”. He asked Mr Fincham if he wanted to sell, and he said “yes”.  
160	Mr Suggate denied that he told Ms Reece Jones that the HOA was not legally binding and that it was only to give IMMIX exclusivity during the negotiation period.  Mr Suggate denied that he tried to renegotiate the purchase price. He asked the question about the true value of the business following the due diligence. Mr Suggate denied re-negotiating the price. He said there were opinions about valuations from the accountant and lawyer, for example Ms Reece Jones’ email dated 23 March 2022, in which she says:
 “Subject to finalising the remaining matters in relation to the proposed sale (lease, employees etc), IMMIX is prepared to offer a sum which is halfway between $3.15m and $3.3m i.e. $2.7m and finalise the sale price for Western Port at $2.7m.” 
161	Mr Jade responded:
 “Can you please confirm that even though the Heads of Agreement is still in effect your client wants to renegotiate a lower price?”
162	By email dated 28 March 2022, Ms Reece Jones wrote to Mr Jade:
 “The proposed revised sale price provided by your client to their broker in response to this was $3.15 million, notwithstanding that an average annual reduction of adjusted net profit of $218,423.50 cannot logically equate to a proposed $50,000 reduction in your client’s valuation of the business.”
163	Mr Suggate claims that he did not instruct Ms Reece Jones to re-negotiate the purchase price of the business.  
164	By email dated 12 April 2022, Ms Reece Jones wrote to Mr Jade with proposed amendments.  Mr Suggate said that he did not give those instructions. Mr Suggate agreed that it is significant for a lawyer to say things without instructions. He re-stated that this was why she is no longer acting for IMMIX.
165	Mr Suggate denied that Ms Reece Jones was right when she said the HOA was not binding, that the HOA was to give the parties exclusivity for a period to negotiate terms and that the terms would be in a formal contract of sale and only then the parties would be bound. Mr Suggate was not prepared to pay a 10% deposit or purchase the business without the lease because it was the crux of the deal.  
166	Mr Suggate said that IMMIX wished to complete its purchase of WPMR’s business.  
167	Mr Suggate said that when he referred to “getting cold feet” he meant that he was having doubts that Mr Fincham wanted to sell his business.  
168	Mr Suggate was recalled to give evidence that if the Court finds that IMMIX should have signed the long form contract and paid a 10% deposit to WPMR, IMMIX would do so. He said that IMMIX did not do that in April 2022, because at the time in April ,2022, he was under the understanding that the lease came first and then IMMIX would sign the LIV contract and pay the 10% deposit.  
Ric Brown 
169	Mr Brown is the Senior Business Development Manager of IMMIX.
170	Mr Brown generally presented as a careful, considered witness who was ready to make appropriate concessions. There certainly were gaps in his recollection and his evidence, however, his memory lapses were generally explicable by the extensive effluxion of time involved with this case. Mr Brown was an honest witness whose evidence was unchallenged, and his evidence was consistent with contemporaneous records.  
171	Mr Brown has been working in the scrap metal industry for about 24 years. His first job in the industry was with Menzies Metals where he bought scrap from WPMR. At that time, he dealt with Mr Fincham of WPMR. Mr Fincham’s father had bought the WPMR business from Menzies Metals some years earlier.
172	After working at Menzies Metal, he moved to Sims Metal, where he continued to deal with Mr Fincham at WPMR, buying non-ferrous scrap metal from him.
173	In early 2022, while he was still employed by Sims Metal, Mr Brown was approached by Mr Callum McDonald, the Operations Manager of IMMIX.  He offered Mr Brown a job at IMMIX as branch manager, particularly managing the WPMR yard that IMMIX was in the process of buying. Mr Brown accepted IMMIX’s offer, and he has been employed by Immix Integrated Management since around 26 April 2022.
174	On 28 April 2022, he became involved in the purchase of the Business. He learned that the purchase of the WPMR business was running into problems with the landlord of the WPMR Premises.
175	Mr Brown arranged to meet Mr Fincham on 28 April 2022. They met at a café in Somerville.  At the meeting, Mr Brown told Mr Fincham that there was a hiccup with the landlord who had made additional demands and were refusing to sign a new lease. Mr Fincham seemed surprised that there was a problem. Mr Fincham said the landlord has always been “a bit funny to deal with” and quite “old-fashioned” and he did not want to rock the boat.  Mr Brown asked if he thought it would help if Mr Brown got in touch with Ms Sutton who was the landlord’s representative. Mr Fincham said he thought it would help if IMMMIX could get a sitting with them, but to keep “city slicker” types away as they were “country folk”.  Mr Fincham then told Mr Brown about some of his staff, including the value of his current leading hand and his work ethic, and how the yard had been running.
176	Later than day, Mr Brown spoke by telephone with Ms Sutton. She told Mr Brown that the landlord did not want to enter a lease with IMMIX. Mr Brown then sent her an email asking her to reconsider as IMMIX had good community values and supported the community such as sponsoring local football clubs. Mr Brown did not receive a reply to his email. He followed up with a phone call to Ms Sutton.
177	His email dated 28 April 2022 referred to misrepresentation by which he meant there had been some misunderstanding due to the tone of the letters written by the solicitors, and he was looking to get a face-to-face meeting with the landlord to get things back on track.  
178	On 3 May 2022, Mr Brown telephoned Ms Sutton again. In the conversation she apologised to him and said that they still did not wish to go through with a new lease. Mr Brown said that IMMIX was committed to buying the WPMR business and Mr Fincham was committed to selling it, and that when Mr Brown met him, he was not sure why the lease was not approved. Ms Sutton seemed surprised by this. Her tone then changed, and she said she had not been aware that there was a contract. She said that Mr Fincham had told her he was not fussed if IMMIX bought the business or not and there could be other buyers in future. Mr Brown then discussed other possible lease arrangements and the site generally. At the end of the conversation, Mr Brown understood she intended to speak with Mr Fincham.  
179	Mr Brown reported the conversation with Ms Sutton to Mr Suggate by email dated 3 May 2022.  
180	Some days after this Mr Brown and Mr Suggate met with Mr Fincham at the café in Somerville. During the meeting Mr Brown asked Mr Fincham “Do you still want to sell the business to Immix?”  He said “yes”.  
181	Mr Brown sought to call Ms Sutton again, but she did not answer. 
Robert Wilson 
182	Mr Wilson is a Licensed Estate Agent and Senior Sales Consultant with Vic Brokers, a firm of business brokers and estate agents.  
183	There was a substantial attack on Mr Wilson’s credit by WPMR. Mr Wilson initially gave contradictory evidence in relation to the handwritten notes at Court Book 118 and 119 and 118A and 119A under cross examination. He explained that those documents were a chronology and not contemporaneous notes unlike other handwritten notes of telephone conversations. Although I accept that he gave contradictory evidence in relation to the notes that he transcribed from other scraps of paper that have subsequently been lost or destroyed, I do not accept that this is evidence of Mr Wilson generally not being a witness of truth. There was no attack as to the substance or content of the notes. Further, there is no reason to disbelieve his evidence in relation to the detailed notes made at the time of his telephone conversation with the landlord’s representative was untrue. These notes are consistent with other events at the time.  
184	In early 2022, WPMR engaged Vic Brokers to sell its business and gave Vic Brokers a written authority to do so.  The Exclusive Authority entitled Vic Brokers to market and sell but not to sign on behalf of WPMR.  Messrs Wilson and Tsundra acted as the agents. Vic Brokers advertised the business online.  Vic Brokers had a lot of responses from interested buyers. Some were existing in the industry, and some were new players.  
185	Mr Suggate said he was interested in buying the business and had vast experience, and asked Mr Wilson to send through the confidentiality agreement.  
186	Mr Wilson said that price was discussed in this case with Mr Suggate. He wanted to make an offer on the business to purchase it. Mr Suggate made an original verbal offer of $3,200,000.00. It was then made in writing in a HOA.  
187	Mr Wilson prepared a form of HOA. This was sent to Mr Fincham for review and signing. Mr Wilson is not a lawyer. He is aware of a contract note by REIV for sale of land but this is not a sale of land. He is aware of the LIV contract of sale document. He referred to it in the HOA.  
188	On 24 February 2022, Mr Suggate made an offer of $3,200,000.00 plus stock at value of $70,000.00 by way of his signature on the HOA. Mr Wilson informed Mr Fincham of this but it was rejected by Mr Fincham on behalf of WPMR who asked Mr Wilson to go back and “get more”. He did not tell Mr Wilson what the higher offer was at the time.  
189	Mr Fincham says, by email dated 25 February 2022 from Mr Wilson, there is a reference to a recent telephone conversation that shortly after this email Mr Fincham said Mr Wilson told him that the HOA was to prevent WPMR from negotiating with any other third party while IMMIX was inspecting WPMR’s books and was not binding. He denied saying this and that it is contradictory to the terms of the HOA that says it is legally binding.  
190	Mr Wilson rejected the proposition that, in his email dated 28 February 2022, in which he referred to the fact that now that the business is “under offer”, that Mr Fincham is not able to negotiate with other buyers.  Rather, he said that the intent was about putting off any further purchases that Mr Fincham had in mind, such as the 10 hook bins, because it would affect the purchase price again.  
191	By email dated 28 March 2022, Ms Reece Jones wrote to Mr Jade that:
 “At the time of executing the heads of agreement, your client (via its broker) represented that the terms of the heads of agreement (HOA) was not binding, was only designed to preclude others from negotiating with your client and that the sale was a matter of negotiation between our clients until formal terms were signed”.
192	Mr Wilson denied that he said this to Ms Reece Jones. He said it was wrong.  He used the phrase “binding agreement” in the HOA.  
193	Mr Wilson denied that he thought the HOA was non-binding by dealing with another purchaser, Mr Monty Mehdi on 4 April 2022. His notes refer to Mr Mehdi wanting full financials with a settlement on 31 May 2022.  
194	Mr Wilson agreed with the proposition put to him by counsel that the notes found at Court Book 118-119 were made contemporaneously. When the original was called for production, the back of the document is dated 15 May 2023 – 21 May 2023, over a year later. He said that he took the notes from old notes, references, emails and phone logs that were falling apart, and he does not know where those notes are, and he was making a note of the history of what happened. He knew things were falling apart and the document noted the dates of receiving emails and phone calls not the content of the phone calls. The proceedings commenced on 12 May 2023. The phone call conversations were notes at the time of the phone call.  
195	Mr Wilson wrote rough notes on a copy of an email dated 22 April 2022 that he was not a recipient of.  Mr Wilson could not remember if he had a conversation with Ms Sutton on 22 April 2022 from his notes on the email. The conversation was on 3 May 2022 at 12 noon. He said that the date written may be recording the date of the email, and not a conversation. He denied reconstructing the note as he referred to the time and date of the phone call. The 22 April 2022 date is just a date, not a date and time of a phone call.  
196	Mr Wilson was taken to Ms Sutton’s email on 7 May 2022, noting that she had a:
 “very aggressive and threatening call x 2 from business broker saying we must sign lease. I had to hang up twice and asked him not to contact me. … Call from Ric from Immix explain again we did not want to progress”.  
197	Mr Wilson’s handwritten notes do not record two phone calls with Ms Sutton, only what she said, particularly that she was: 
“very rude to me from the commencement of this initial communication. She called me a liar before I could even start talking … Catherine said, I don’t want to talk to you anymore, don’t talk to me again. Goodbye and hang up abruptly”.  
198	Mr Wilson denied reconstructing the notes from this phone call. He wrote the notes directly after she hung up. He said she knew he was calling about the transfer of the lease. This was the first time he had contact with the landlord.  
199	On 27 February 2022, Mr Suggate made a revised offer of $3,285,000.00. This was initially accepted by Mr Fincham, and Mr Wilson made changes to the HOA to increase the price to $3,285,000 and the deposit to $328,500. The amended HOA with these changes were sent to Mr Suggate who initialled them using Docusign which he dated 27 February 2022.  hey were received back by Mr Wilson in the Docusign log on 28 February 2022.
200	By email, Mr Wilson sent the amended document to Mr Fincham on 28 February 2022. Mr Fincham again declined the offer and said that the offer was still not high enough. Mr Fincham sent it back to Mr Wilson and countersigned with a price that he was happy with. Mr Fincham then made an amendment to the price changing it to $3,335,000.00, which he told Mr Wilson reflected a recent purchase of some equipment, being 10 items called “hook bins” prior to the negotiations. The documents sent back to Mr Wilson had been signed by Mr Fincham on behalf of WPMR. Mr Wilson said that he told Mr Fincham that he would try his best to procure the signature of the purchaser.  
201	Mr Wilson was not present when Mr Fincham signed the document. He signed it as a witness, and it was “something that he just did”. He witnessed the fact that he had received both offers from the purchaser and vendor.  
202	Mr Wilson changed Mr Fincham’s handwritten note for the deposit which he said was supposed to be 10%, so Mr Wilson changed the number to $333,500.00 from $3,335,000.00.  Mr Wilson said he discussed this with Mr Fincham who said he made a mistake about the deposit, so Mr Wilson changed it for him. It did not affect the purchase price at all, he said it was just a mistake on the 10% deposit.  Mr Wilson understood that under Clause 20 of the Exclusive Authority, he is only entitled to sign a contract for the sale of the business if requested in writing to do so.  
203	On 28 February 2022, Mr Wilson emailed the document signed by Mr Fincham to Mr Suggate, drawing his attention to the amended price to WPMR’s recent purchases prior to the negotiations.
204	On 1 March 2022, Mr Suggate sent Mr Wilson an email in reply, in which he said, “[a]s agreed the second increase for the 10 additional hook bins John purchased last week”.  Attached to Mr Suggate’s email was the HOA, amended and signed by Mr Fincham, which Mr Wilson had sent to Mr Suggate with Mr Wilson’s email of 28 February 2022.  Mr Wilson noted that the area where the price had been changed had been initialled by Mr Suggate and made the assumption that was in relation to the further amendment. 
205	The deposit of the $1,000.00 was paid by IMMIX on 8 March 2022. The HOA was sent to the parties’ solicitors to begin their due diligence and negotiations with the landlord for lease transfer.  
206	Mr Wilson arranged for a site visit with IMMIX to inspect the new acquisitions.  
207	Mr Wilson denies that he told Mr Fincham or anybody that the HOA was not binding on the parties. He denied that the HOA was only to provide exclusivity.  He said that if that was the case, it would be part of the HOA.  
208	Mr Fincham claims he had one meeting with Mr Tsundra before the HOA and one meeting on site. Otherwise, he was in contact with Mr Wilson lots of times.  Mr Wilson claims that they were equally on the matter.
209	By email dated 3 March 2022, Mr Tsundra wrote to Mr Jade with the due diligence request with the period for due diligence ending on 15 March 2022.  On 29 March 2022, Mr Wilson sent to Mr Mehdi the business profile and financial information after signing a confidentiality agreement. On 23 and 24 March 2022, the vendor emailed his solicitor “kill the deal” and the “deal was off” and Mr Wilson understood that the deal was under pressure. Mr Wilson then reached out to other buyers in the event the deal did not go ahead. He did not get offers or another HOA. 
210	After the HOA was signed, Mr Wilson said that there were other potential purchasers who contacted Vic Brokers around 28 March 2022.  His recollection of the emails around 23 March 2022 from the Vendor to the solicitor, where it was suggested that the “deal was dead” and to “kill the deal” and they wanted a back-up buyer in place.  Mr Wilson said that no formal offers were made by a back-up buyer and no other HOAs were prepared as they would not do two agreements.  
211	Mr Wilson said that some agreements provide for exclusivity to the purchaser around their offer to prevent someone else making an offer during the due diligence period, which can be an expensive process. This HOA only had a 14-day due diligence period, and it did not have an exclusivity clause.  
212	Mr Wilson said that the emails between the parties and the solicitors indicated there was frustration. He said this situation was unusual, so he had a back-up “Plan B”, in the form of Mr Mehdi, in case the “Plan A” did not go ahead. Mr Wilson said that the HOA was binding, and he has done hundreds of these HOA and it is replaced by the LIV contract but until that time, it is binding on the parties. Mr Wilson said that the HOA was drafted as a pro forma by a lawyer that his firm uses. Mr Wilson said that most sale of businesses are sold by HOA by a business broker and then by an LIV contract. 
213	Mr Wilson said the HOA was sent to the vendor’s solicitor and the due diligence, LIV contract and lease negotiations were all progressing. Mr Wilson said that the HOA could have been sent to Mr Fincham’s lawyer. He denied that the agreement is only binding when the parties sign the long form contract.  
214	On 3 May 2022, Mr Wilson was contacted by IMMIX and was told that there was a complication with gaining the consent of the landlord for the lease transfer of WPMR’s premises. Mr Wilson phoned WPMR to ask how they could gain the landlord’s consent and asked if Vic Brokers could assist in some fashion and asked for the landlord’s phone number.   
215	Mr Wilson then telephoned the landlord’s representative Ms Sutton. She said that her family no longer want to do a lease with IMMIX because they did not have the same “morals” to them, and she was not going to give a lease to IMMIX because Mr Fincham was getting cold feet and did not want to sell to IMMIX anyway. Mr Wilson wrote notes of the conversation. Mr Wilson said that the call was not going very well so he decided to take down notes of the conversation.  He said that various comments and emails to him made him feel not good about the whole deal. 
216	Mr Wilson subsequently spoke with Mr Fincham and told him that Ms Sutton claimed Mr Fincham did not want to sell to IMMIX anyway. He denied it.  
217	On 23 May 2022, Mr Wilson received a telephone call from Mr Fincham. He said Mr Fincham was “pulling the pin on the whole thing, it just was not sitting well with him” and IMMIX had not signed the contract anyway and it was still in draft form.  
218	Mr Wilson found out that the sale was not proceeding when he was contacted about the return of the $1,000.00 deposit.  
219	Mr Wilson acknowledges that the authority that WPMR gave Vic Brokers provides for a commission of 4% of the sale price plus GST, approximately $154,000.00.  If the sale of WPMR’s business to Immix goes ahead, Vic Brokers will be entitled to its commission.  
Serhiy (Serge) Tsundra 
220	Mr Tsundra is a Sales Executive contracted to Vic Brokers. 
221	Mr Tsundra generally presented as a careful, considered witness who was ready to make appropriate concessions. He was an honest witness whose evidence was unchallenged and was consistent with available contemporaneous documents.  
222	In early 2022, WPMR engaged Vic Brokers to sell its business and gave Vic Brokers a written authority to do so.  Mr Tsundra worked with Mr Wilson on this sale. Mr Wilson and Mr Tsundra met Mr Fincham of WPMR, and they prepared marketing materials for the WPMR business and arranged for the business to be advertised online.
223	Mr Tsundra became involved after the signing of the HOA.  He referred WPMR to Mr Jade and orchestrated the due diligence.  
224	Mr Tsundra said there were obstacles, and the sale was not proceeding as they liked. There was minimal communication between the buyer and vendor.  Based on the emails, the problem was with the landlord who was unreasonable to deal with and who required the “amazingly high bond” of $150,000.00.
225	Mr Wilson and Mr Tsundra became aware of problems with the landlord who refused to agree to have IMMIX as its tenant even though IMMIX had just agreed to pay the very large bond, in the sum of $150,000,00, that the landlord demanded.  About this time, Mr Jade stopped helping with the sale process. After this, Mr Wilson and Mr Tsundra made several calls to Mr Fincham to try to progress the sale, but they received no response.
226	Mr Tsundra was unable to discuss with the vendor and they were only able to discuss with Mr Jade. Mr Jade did not reply to their phone calls. 
227	Mr Tsundra denied that he said to anybody that the HOA was not binding on the parties. Mr Tsundra said he never said or represented any such thing and as far as he knew, neither did Mr Wilson.  
228	Mr Tsundra acknowledged that the authority that WPMR gave Vic Brokers provides for a commission of 4.4% of the sale price including GST.  If the sale of WPMR’s business to IMMIX goes ahead, Vic Brokers will be entitled to its commission.  
229	Vic Brokers kept in touch with other potential purchasers after the HOA had been entered into. The HOA was conditional, subject to landlord approval and due diligence. Until it became unconditional, Vic Brokers continued to entertain other purchasers.  
230	Mr Tsundra agreed that Mr Fincham mainly dealt with Mr Wilson. He was not involved in all the discussions. He was not involved in the HOA but was involved in the contracts of sale.  
John Fincham 
231	Mr Fincham is the sole director and secretary of WPMR. Mr Fincham was an honest witness who gave careful and fulsome answers to questions and made appropriate concessions under cross examination. This included his admission that he verbally authorised his broker to amend the version of the HOD to correct the deposit figure that had his own handwritten amendments.  
232	On or about 10 January 2022, WPMR Vic Brokers as its agent pursuant to an agreement in writing styled “Exclusive Authority: Sale of Business”.  Mr Fincham said that he did not give written authority to Vic Brokers to sign a contract on WPMR’s behalf.  Mr Fincham agreed that Mr Wilson corrected his mistake in relation to the deposit on the HOA.  
233	On 25 February 2022, Mr Wilson emailed a copy of a document styled “Heads of Agreement” and bearing the Broker’s logo, and the handwritten signature of Mr Suggate dated 24 February 2022. Mr Fincham had a discussion with Mr Wilson over the phone. He said that he put the formal offer into the document. The $1,000.00 deposit into Vic Brokers’ trust account allowed for exclusivity while they were doing due diligence so no other purchaser could purchase the business. He said the purpose of the agreement was to prevent WPMR from negotiating with any other third party while IMMIX was inspecting WPMR’s books and was not otherwise binding or creating an obligation on WPMR to sell to IMMIX.
234	When he received the first offer of $3,200,000.00, he rejected it as he wanted more. The figure of $3,285,000.00 came from Mr Suggate. Mr Fincham then suggested the $50,000.00 increase because of the new acquisition of the hook bins.  
235	Mr Fincham met with Mr Tucker, in late March 2022 to try to get the sale back on track.  
236	By emails dated 23 and 24 March 2022, the solicitors had an exchange and Mr Fincham was made aware of the negotiations at the time by Mr Jade.  In particular, it was stated that:
 “Subject to finalising the remaining matters in relation to the proposed sale (lease, employees etc), IMMIX is prepared to offer a sum which is halfway between $3.15m and $3.3m i.e. $2.7m and finalise the sale price for Western Port at $2.7m.”
237	By email dated 6 April 2022, Mr Jade noted that the Business Sale is progressing per the original sale price and that the new agreed settlement date was 3 May 2022. Mr Fincham confirmed that he gave those instructions.  
238	Mr Fincham sent an email to Mr Jade, stating that if IMMIX did not get back to the $3,335,000.00 offer, it was instructed to “kill the deal” and if the party was not going to come on the original deal of $3,335,000.00 then the “deal is dead and we move on”. Mr Tucker said that WPMR had misrepresented some of the figures. The price was something that Mr Fincham valued.  
239	On 28 April 2022, there was a meeting at a café with Mr Brown. The purpose of the meeting was to deal with the landlord. They had refused IMMIX as a tenant.  WPMR wanted to help them achieve the lease. Mr Fincham gave him tips how to deal with the landlord, specifically to deal with them in person and not by email or over the phone. Mr Suggate was going to send an email and was going to arrange it. Mr Fincham and his father had been dealing with the landlord for over 20 years and they were very old fashioned. Ms Sutton requested that Mr Fincham “stay out of it” as they were preparing a new lease with IMMIX. He agreed with Mr Brown’s report of the meeting contained in the email dated 28 April 2022.  He agreed that the price was agreed, and the plus stock was agreed – as long as the lease could be sorted out.
240	On 4 May 2022, there was another meeting with Messrs Brown, Suggate and Fincham. Mr Fincham agreed that at the time he was wanting to sell the Business.  There were discussions about keeping him on with a car (which he refused) or fuel card, and working 10 hours a day, 5 days per week.  
241	By mid to end May 2022, Mr Fincham changed his mind about selling the business because there were issues with the lease, his wife had become pregnant with twins, there was no deposit from IMMIX and no LIV contract had been signed.  
242	Mr Fincham called Ms Sutton to try to change her mind. He told her that he was not fussed if the deal went ahead or not. Mr Fincham wanted IMMIX to sign the contract of sale and pay the deposit.  
243	Mr Fincham recalled a conversation with Ms Sutton by phone around 3 May 2022, about not being fussed whether the sale would proceed and there might be other buyers in the future. 
244	By email dated 7 May 2022, Ms Sutton sent an email to Mr Fincham and her mother, setting out a timeline with interactions with IMMIX in relation to the lease.  He said that IMMIX did not ask him for information or to pass on information to the landlord. The landlord told him that they did not want to proceed. Mr Fincham said that he told Mr Suggate this.  Ms Sutton said that they had been in a positive relationship with Mr Fincham’s family for many years and they were happy to continue leasing to WPMR.  Mr Fincham said they had a relationship since around 2004 and granted rent relief at times, had no security bond and they benefitted from the relationship with the landlord. Mr Fincham agreed that given the moral obligation to the landlord he did not want to push them into a lease with someone they did not want. He said it was mid to late May 2022 that he changed his mind about going through with the sale to IMMIX.  
245	Mr Fincham gave Mr Brown some tips to deal with the landlord. He called the landlord but did not meet with Ms Sutton to persuade her to take IMMIX as a tenant. Mr Fincham denied there was more that he could have done to assist, and he was told to “stay out of it”.  
246	Mr Fincham was aware after 5 May 2022 that there was a request made by IMMIX’s solicitor to procure the landlord’s approval to an assignment of the lease.  He then agreed that the failure to obtain the lease was part of the problem and it is possible that the deposit and contract would have flowed. The other part of the problem was that there was no contract.  
247	Mr Fincham had a discussion with Ms Sutton around 20 May 2022 over the phone and she was not willing to deal with IMMIX and she asked him if it would it be the end of the world if they said “no”. Mr Fincham said “no” because he was not willing to sell their business to IMMIX.  
248	By email dated 25 May 2022, Mr Jade wrote to Ms Reece Jones that the HOA was not enforceable and binding and that “the sale was a matter of negotiation between our clients until formal terms were signed”.  Mr Fincham gave instructions to Mr Jade send this letter. Mr Fincham told Mr Jade to terminate because the contract had not been signed and the deposit had not been given. He said that the landlord’s refusal to enter into a lease with IMMIX was low on his priorities.  
249	Mr Fincham did not receive any other offer of sale of the business from Vic Brokers.  
Analysis
Was there a binding agreement?
250	In my view, the parties reached a meeting of minds on the essential terms of their bargain, and they intended to be bound. I further find that the parties intended to be bound notwithstanding the fact that they proposed also to have the terms on which they had agreed restated in a more formal and fuller form, and containing by consent additional terms, though this did not ultimately eventuate.  My reasons are set out below.  
251	WPMR submits that the HOA was executed as a deed in each of its iterations.  It contends that the well-established principle in Pigot’s Case provides that a material alteration to a deed after its execution renders the deed void from the time of alteration.  
252	WPMR contends that Pigot’s Case cannot be avoided because an agreement could be discerned behind the deed. WPMR argues it was exchanged as a deed in earlier iterations and that Mr Fincham made handwritten amendments and signed as a director of WPMR as a deed.  WPMR asserts that execution by one and a failure to execution by the other is a deed in escrow where the other party is expected to duly execute.  Here, it concludes, it was not duly executed by IMMIX and no obligations can then arise.  
253	WPMR relies on the decision of Young J in Manton v Parabolic Pty Ltd, in which it was noted that the Deed is “the most solemn act that a person can perform” and the ritual of using a deed brings home the “gravitas” of the occasion.  WPMR says that the amendments to paragraph 8 of the further amended statement of claim highlights the issues here. That is, that the email dated 28 February 2022 that is relied on by IMMIX to form an agreement is not a Deed signed, sealed and delivered. WPMR contends that the HOA was meant to be a legally important document and the failure to sign it as a deed means it is not signed, sealed and delivered.  
254	WPMR further relies on the New South Wales (“NSW”) Supreme Court decision in Locnere Pty Ltd & Anor v Jakk's Bagel & Bread Co Pty Ltd in which the parties agreed to sign the agreement as a deed after compromising a dispute and determining to use a deed to finalise the dispute. A draft deed was prepared, and the other side requested amendments which were made and agreed to by email but the parties did not execute the intended deed. Justice Palmer held that the parties could have settled less formally, however, they had resolved to use a deed but had not completed the process and so no settlement was reached. WPMR concludes that the 28 February 2022 email does not work as a deed and, therefore, it cannot work as an agreement in the present case.
255	WPMR cited Gleeson CJ in Farrow Mortgage Services Pty Ltd v Slade: 
 “where a deed or other written contract is, after execution, materially altered without the consent of the obligor, by the obligee, or by someone else without the consent of the obligee, or by a stranger whilst it is in the obligee's custody, the deed becomes void (or, according to some, voidable at the election of the obligor).” 
256	WPMR further relies on the learned author, Dr Nicholas Seddon in support of its position that:
(a)	a material alteration can be described as an alteration which, if made before execution, would have affected the position, rights, or obligations of any person claiming under the deed; and 
(b)	the question of materiality depends on whether the altered writing purports to affect the legal relations previously existing or alter the business effect of the instrument if used for ordinary business purposes.  
257	WPMR contends that Mr Wilson materially altered the third version of the HOA and thereby created a fourth version by:
(a)	altering the quantum of the deposit, which alteration was not signed or initialled by either party; and 
(b)	purporting to witness Mr Fincham’s execution of the document by inserting an electronic signature of his own as a ‘witness’.  
258	WPMR claims that, although Mr Fincham appropriately conceded that he had verbally authorised Mr Wilson to alter HOA Version 3 by striking through the handwritten deposit sum of “3,335,000” on the third page, and inserting the text “$333,500.00”, it relies on clause 20 of the agreement between WPMR and the Broker which expressly authorised the Broker to sign a contract of sale of WPMR’s business on its behalf, but only if requested in writing to do so. WPMR argues that no such written request was made, and any verbal authorisation given by Mr Fincham was insufficient.  
259	WPMR submits that, in altering the deed twice, Mr Wilson acted beyond the scope of his actual authority. WPMR relies on the decision in Hibblewhite v M’Morine and concludes that Mr Wilson acted beyond the scope of any ostensible authority insofar as no person may alter a deed unless they themselves are duly authorised by deed to do so.  
260	WPMR observes that in each version of the HOA, it expressly provided under the heading “General”, that:
 “This document may be executed by counterpart and may not be varied except by written agreement signed by the parties.” (emphasis added)
261	WPMR contends that Mr Fincham’s verbal authorisation of Mr Wilson’s conduct is insufficient for the purpose of granting consent to the alteration.  It relies on the High Court decision in Federal Commissioner of Taxation v Orica Ltd for the principle that a consensual variation to a deed must be done by deed.  As such, it concludes that the deed was rendered void and unenforceable upon Mr Wilson materially altering the HOA Version 3.  
262	Alternatively, WPMR argues that, if the analysis is incorrect, then the alteration does not render the deed void, but rather the alteration is ineffective, and the document remains as though unaltered.  
263	On this analysis, WPMR submits that there cannot have been a consensus ad idem in circumstances where on one hand, WPMR was willing to accept payment of a deposit of $3,335,000.00 at the time of signing a long form contract of sale on HOA Version 3, whereas IMMIX was willing to pay a deposit of only $335,000.00 on HOA Version 4. WPMR concludes that there is no binding contract between the parties and specific performance is unavailable.
264	WPMR also submits that the purported witnessing of Mr Fincham’s signature by Mr Wilson is also problematic, as Mr Wilson falsely attests that Mr Fincham signed the HOA in his presence when in fact this was not the case. 
265	WPMR says that this alteration was material. WPMR refers to the case of Brott v The Queen in which the High Court considered whether the false attestation of witnessing a guarantor’s signature by the guarantor’s solicitor constituted a forgery for the purposes of the criminal law. The majority concluded that this conduct did not constitute a forgery. The Court held that, while the officious witness had added a false statement to the document, that did not alter the operation or effect of the document after he appended his signature. That is, it was not a forgery for the purposes of the guarantee.  
266	WMPR referred to the decision of Deane J, in which he observed:
 “By the addition of the signature, the witness does not impart a false character to the document but merely causes "an instrument which purports to be what it really is “to contain a false statement”.”
267	WMPR contends that Mr Wilson said that he witnessed the Mr Fincham’s signature and could give evidence of the due execution. It says that it is not a forgery, but it is still a material alteration and for that reason attracts the rule in Pigot’s Case. WMPR contends that the insertion of Mr Wilson’s signature is a material change by a stranger to the deed who has introduced a false statement into the circumstances and proof of its execution. Therefore, the deed is void.  
268	In my view, the document was not ultimately signed as a deed and is an agreement.  
269	In any event, I find that, even if the document was a deed, Mr Wilson’s correction of the deposit amount was not a material alteration, carried out without authority, that invalidates the entire document. 
270	I agree with IMMIX’s position that the alteration is not material, it is merely correcting an arithmetical error, which Mr Fincham conceded.  In addition, I find that the appending of an incorrect witnessing of a deed is not a material alteration, because, first, a deed does not have to be witnessed to be effective as a deed and, second, it does not change the obligations of the parties in any way.  
271	The starting point for this ground is that it is not IMMIX’s case that the HOA was an effective deed. IMMIX accepts that the HOA was not countersigned by Mr Suggate when he returned it to Mr Wilson by email on 1 March 2022. IMMIX pleads its case on the basis that the terms of the HOA formed a simple contract between the parties. The learned author in Seddon, further provides that a document that is not effective as a deed may still be effective as a simple contract.  
272	The first page of the HOA refers to “this agreement”, which is not language which is consistent with a deed. A reference to “deed’ is only found on the last page above the execution clauses. I find that the execution clauses themselves are also ambiguous as they are set up for corporations and do not provide for “signed, sealed and delivered” as they might if individuals were to sign a document that the parties insist to be a deed.  
273	I accept IMMIX’s contention that an incompletely or ineffectively signed deed may take effect as a simple contract.  I rely on to the Court of Appeal decision in Nurisvan International Ltd v Anyoption Holdings Ltd in which it was held that a document intended to be executed as a deed can still operate as a binding contract if the non-signing party otherwise binds itself to it.  In the present case, the non-signing party is IMMIX.  
274	The relevant commercial context in the present case involves the following matters:
(a)	The email dated 28 February 2022 by which Mr Wilson on behalf of WPMR offers to sell the business to IMMIX on terms set out in the HOA attached to the email;
(b)	By email dated 1 March 2022, Mr Suggate accepts the offer;
(c)	On 8 March 2022, IMMIX paid the $1,000.00 deposit pursuant to the terms of the HOA;
(d)	The agreement to the extension of the settlement date from 6 April 2022 as set out in the HOA to 3 May 2022; and 
(e)	The course of negotiations between the parties such as the discussion at the café meeting on 4 May 2022 and the correspondence between the parties’ solicitors on 5, 11 and 20 May 2022.  
275	I find that until 25 May 2022, when WPMR first sought to avoid the agreement, the parties demonstrated by their conduct that they intended to be bound by its terms (save for Ms Reece Jones’ email dated 28 March 2022 in which she was subsequently corrected by Mr Jade in his reply on the same day). 
276	The parties’ conduct that is relevant to the question of whether a binding contract was formed between them is evidenced as follows:
(a)	on 3 March 2022, IMMIX provided a due diligence request; 
(b)	on 16 March 2022, Mr Jade wrote confirming that the due diligence period had then ended “and as such this condition has now been satisfied”, and that the “Assignment of Lease approval” condition was yet to be finalised; 
(c)	on 23 March 2022, Mr Jade wrote stating that “the current Heads of Agreement is still in effect and the DD period has been satisfied”; 
(d)	on 24 March 2022, Mr Jade wrote referring to “our rights to the Heads of Agreement” and “the current Heads of Agreement (which is still on foot)”; 
(e)	on 28 March 2022, Mr Jade wrote in response to Ms Reece Jones’ email the same day asserting that the HOA was not binding saying: “the Heads of Agreement is legally binding as contained in the document”; the due diligence “condition has now been satisfied”; “We are also unclear how your client can deny that the Heads of Agreement is not binding”; and “we have and continue to take all reasonable steps to finalise this agreement”;
(f)	on 6 April 2022, Mr Jade wrote saying “We are instructed that our Client’s (sic) have been in discussions and it seems the Business Sale is now progressing as per the original sale price”; 
(g)	on 12 April 2022, Ms Reece Jones wrote saying “… the Agreement remains subject to the lease, please note”;
(h)	on about 14 April 2022, a related company of IMMIX, of which Mr Suggate was also the director, employed Mr Brown to be the manager of the new business; 
(i)	on 19 April 2022, Mr Jade wrote saying “[w]e note Settlement is posed for 3 May 2022.  We really need to get everything finalised this week to ensure a smooth Settlement”;  
(j)	on about 26 April 2022, Mr Brown started work for IMMIX;  
(k)	on 4 May 2022, Mr Jade wrote saying:
 “We understand you were not approved as prospective Tenant with the Landlord.  As such we ask for an update from your end as to whether you are still negotiating or if we now need to rescind the Heads of Agreement between the parties by agreement based on condition precedent not being met”;  
(l)	on 5 May 2022, Ms Reece Jones wrote saying: “As matters stand, our respective clients have a binding contract for the purchase and sale of your client’s business and assets …”; and “Immix remains committed to completing settlement”; 
(m)	on 5 May 2022, Mr Jade replied saying “We also note that currently, your client is in breach of the Heads of Agreement and to date, we have not enforced our rights in a further attempt to enliven the parties agreement”; 
(n)	on 11 May 2022, Ms Reece Jones wrote saying “our client remains committed to completing the purchase of your client’s business”; and 
(o)	on 20 May 2022, Ms Reece Jones wrote saying “Immix remains committed to completing the transaction”.  
277	In my view, the communications and actions set out above were implicit acknowledgements that the HOA was binding on the parties. References in the correspondence to “conditions” do not make sense unless its satisfaction will make the agreement unconditionally binding. References to “still negotiating” is a reference to the then uncompleted negotiation of a formal LIV contract of sale which the HOA contemplated the parties would subsequently execute. The words “rescind” and “condition precedent” and the perceived need for any rescission to occur “by agreement” are consistent with the HOA being binding on the parties. It follows that not, only do the two documents, being the HOA sent by email on 28 February 2022 and Mr Suggate’s reply email on 1 March 2022 objectively evidence a meeting of minds that intended to be bound but also their subsequent words and actions demonstrated that they intended to be bound by those terms.  
278	I further find that IMMIX did pay a deposit in the present case. It was a small deposit of $1,000.00 on 8 March 2022 into the Broker’s trust account but WPMR accepted it. This is a clear indication that the parties were intentionally entering into a legal relationship. They also agreed to a settlement date and extended it by agreement. Such conduct does not make commercial sense if the HOA is not binding.  
279	The evidence of Messrs Wilson and Fincham also did not support the conclusion urged upon the Court by WPMR. Mr Wilson gave evidence about his telephone discussion with Mr Fincham who asked him what the document was.  Mr Wilson said it was a formal document and allowed exclusivity while the purchaser was doing due diligence. There is nothing there that says it is non-binding and it is not inconsistent with the evidence before the Court. 
280	The parties also did conduct themselves as though the HOA was binding on them, and the evidence is admissible on that basis.  For example, Mr Jade’s email dated 28 March 2022 quotes from the HOA, and he states in his correspondence that the HOA is a binding agreement and that he cannot understand how it can be said that it is not binding. If WPMR insisted that they would only agree by deed this was the moment to say the deed must be executed properly. Instead, WPMR says that the parties had a binding HOA.  
281	The case of Locnere relied upon by WPMR is an entirely different case to the present one. Locnere involved parties who had agreed to settle litigation, and the Court noted that the proceeding had been compromised and, subject to entry by the parties to a mutually agreeable deed, the applicant was to file a notice of discontinuance. The conclusion was that the parties were not bound because there was never a properly executed deed formed between the parties.  There was a communication by email that stated that the form of the deed was acceptable, but the difference is that in Locnere there was no conduct showing that the parties regarded themselves as bound. In the present case, the parties had twelve weeks of correspondence and activity that evidenced that the parties regarded themselves as bound by the agreement, including from WPMR.  
282	Given my findings set out above, WPMR’s arguments in relation to the alterations of the HOA fall away on the basis that it is not a deed, but a simple contract.  The principles set out in Pigot’s Case are only relevant if IMMIX relied on the HOA as a deed.  
283	In any event, the alternations relied on by WPMR are not material alterations.  As I have already stated, the false attestation of Mr Fincham’s signature added by Mr Wilson did not alter the effect of the HOA. The incorrect witnessing of a deed is not invalidation in Victoria as a deed does not have to be witnessed to be effective as a deed under s73 of the Property Law Act 1958 (Vic) for an individual or on behalf of a company, pursuant to ss127(1)(c) and (3A)(a) of the Corporations Act 2001 (Cth) (“Corporations Act”).
284	In relation to s127 of the Corporations Act, the provision states that a company may execute a document as a deed if the document is expressly stated as a deed. WPMR sought to negate IMMIX’s proposition that the HOA can be a simple contract and not a deed by relying on the fourth page of the document which states that it is “executed as a deed”.   On a proper reading of section s 127 of the Corporations Act, it is drafted in permissive language only. It does not follow that the HOA was definitely executed as a deed.  
285	Second, on the proper construction of the HOA as prepared by Mr Fincham, it required a 10% deposit, not a 100% deposit of $3,335,000.00. The deposit was expressed as “10% of the purchase price” and the handwritten deposit figure of $3,335,000.00 was in direct contradiction of that amount.  I accept Mr Fincham’s evidence that he made a mistake in relation to the deposit amount on the HOA.  I accept IMMIX’s position that it was a mistake that created an inconsistency in the HOA and would have led to a commercial absurdity of an obligation to pay the full price before settlement and before the fulfilment of the condition precedent of a transfer of the lease or a new lease.  
286	In relation to the deposit, as has already been discussed above, the HOA would be construed as requiring a 10% deposit and not a 100% deposit, as the HOA has an internal contradiction in it. Given the usual practice that a deposit is normally 10% of the purchase price and that the HOA terms and all figures in the previous iterations were all 10%, the proper construction of the HOA as signed by Mr Fincham would be reading the deposit figure of $3,335,000.00 as $333,500.00, which is the amount that Mr Wilson substituted.  Therefore, Mr Wilson’s alterations did not change the meaning or effect of the HOA.  
287	Mr Fincham candidly agreed in evidence that the deposit figure of $3,335,000.00 was a mistake and he orally authorised Mr Wilson to change it. The clause relied upon by WPMR in relation to the limitation on the Broker’s authority refers to the signing of the contract of sale that requires WPMR’s written request. Clause 20 is irrelevant for the present purposes as Mr Wilson did not sign the contract of sale on behalf of WPMR. He merely corrected an obvious error in the document. In any event, I find that the requirement that the request be in writing can be waived by agreement. The requirement that an agent’s authority be in writing is to protect the vendor. However, Mr Fincham did vary the requirement when he authorised Mr Wilson to correct the mistaken deposit figure in the HOA. The agreement was a 10% deposit and not a 100% deposit. I find that Mr Fincham waived any applicable requirement that authority be in writing for the purpose of Mr Wilson correcting the mistaken deposit figure.  
288	Finally, the case of Hibblewhite relied on by WPMR can be distinguished on the basis that it involved a circumstance where there were blanks in the deed that could not be validly completed except by a person authorised by the deed. The present case is a correction of a mistaken figure in which Mr Fincham gave Mr Wilson verbal authority to change. 
289	For the foregoing reasons, I find that the parties entered into a binding HOA on or about 28 February 2022 for the sale and purchase of the business in the sum of $3,335,000.00 with a 10% deposit and that the HOA satisfies category 1 of the agreements identified in Masters v Cameron, in which the parties contemplated a more formal expression of their agreement in the LIV contract. 
Paramount Oral Term 
290	WPMR acknowledges that while the HOA contains a term that says the HOA is an “entire agreement” under the heading “legally binding”, it says that there are a number of matters that speak against that proposition.  
291	First, the due diligence term that provides the purchaser with a 14-day period from receipt of all requested information to complete their due diligence of the business but fails to provide for consequences thereafter or if the purchaser requires more information. WPMR contends that it is not possible, in this fact scenario, to imply a term capable of clear expression that is not contrary to express terms in accordance with the criteria set out in BP Refinery (Westernport) v Hasting Shire Council.  WPMR argues that there is not enough detail for the Court to imply a term that if the due diligence was unsatisfactory, that the purchaser had a right to terminate.  WPMR concludes that it, therefore, makes more sense to conclude that the HOA was not binding.  
292	WPMR contends that the extent to which an “entire agreement clause” will restrict the implication of terms depends on the precise term of the clause and on the nature of the implied term alleged. WPMR concedes that an entire agreement clause will not usually preclude an implication of a term by law which is implied based on necessity (e.g. a duty to cooperate), as a consequence of a proper construction of the agreement. However, WPMR submits that an entire agreement clause will prevent implications of terms in fact (i.e. to give business efficacy to the agreement) as this is fact dependent. 
293	WPMR claims that any terms to be implied within the context of the due diligence clause can only sensibly be a term implied in fact and must satisfy the BP Refinery test.  It concludes that if the HOA is binding by operation of its express text to that effect, no implied term is capable of clear expression that does not contradict such text.  
294	Second, WPMR contends that the HOA contains a paramount oral term that the HOA was not binding on the parties.  It relies on the email of Ms Reece Jones to Mr Jade on 28 March 2022 as evidence of an oral conversation between the Broker (Mr Wilson) and IMMIX (Mr Suggate), in which she represented the following:
 “At the time of executing the heads of agreement, your client (via its broker) represented that the terms of the heads of agreement (HOA) was not binding, was only designed to preclude others from negotiating with your client and that the sale was a matter of negotiation between our clients until formal terms were signed.”
295	WPMR further relies on the oral evidence of Messrs Suggate and Fincham in relation to conversations with Mr Wilson. WPMR asserts that Mr Wilson told Mr Suggate that the HOA was not legally binding, and that Mr Wilson told both Messrs Suggate and Fincham that the HOA gave exclusivity in the due diligence period and the parties needed to enter into a long form contract.  
296	WPMR contends that what Mr Wilson said to Mr Suggate is apparent from the 28 March 2022 letter. Although WPMR conceded that the words “not binding” were said to Mr Suggate and were not used in that form in the conversation with Mr Fincham, it argues that it was a necessary implication that the HOA was not binding because it is only to provide exclusivity during negotiations.  That is, WPMR would not sell to anyone else while IMMIX did its due diligence and that the sale is a matter of negotiations with formal terms to be signed in a long form contract.  
297	WPMR submits that the paramount oral term is consistent with the inclusion of a due diligence period in the HOA. It says, there can be no utility in a term providing for a due diligence period if the parties were bound to the HOA and the HOA constituted a complete contract for the sale of the business.  
298	WPMR contends that usually a due diligence period entitles a prospective purchaser to examine the vendor’s books to enable it to make enquiries and satisfy itself whether it wishes to proceed with a contract of sale. WPMR argues that the due diligence period can have no purpose if IMMIX was not entitled to avoid any other obligations under the HOA if it was not satisfied with its enquiries.  
299	WPMR claims that its position that the HOA was not binding is consistent with Mr Suggate’s admissions that he did not consider that a contract for the purchase of business from WPMR had been concluded, and that any final agreement would take place in the future.  WPMR relied on the following evidence:
(a)	during a meeting the WPMR’s place of business in early March 2022, Mr Wilson said that the parties will enter into a binding agreement; 
(b)	during that meeting, Mr Suggate stated that WPMR’s business was a business that he was only “thinking about buying”; 
(c)	he had a discussion with Mr Brown in April 2022 where he said that IMMIX was “looking to acquire the Western Port Scrap Metal business”; and
(d)	he had a discussion with Mr Fincham in April 2022, in which he asked Mr Fincham if WPMR wanted to sell its business, and he conceded that he did not say that WPMR had already sold its business.  
300	WPMR relies on IMMIX’s conduct during subsequent negotiations which it says clearly demonstrate that IMMIX did not consider itself bound to the HOA, for example, Mr Suggate agreeing with the proposition put to him in cross-examination that IMMIX was “thinking about buying” the business.  
301	WPMR submits that it is inconsistent for the HOA to have a heading “legally binding” and for Mr Wilson to say that it is “not binding”, when he was the architect of the document. In addition, WPMR relies on Mr Wilson’s representation set out in the 28 March 2022 letter and Ms Reece Jones’ attempts to re-negotiate critical terms recorded in the HOA such as the contract price and the restraint of trade.  
302	WPMR contends that it demonstrated varying levels of commitment to the HOA until 25 May 2022, including by way of the following matters:
(a)	Initially insisting that the HOA was binding by email dated 28 March 2022 from Mr Jade; and then claiming it was not binding by email dated 25 May 2022 from Mr Jade; 
(b)	Agreeing to vary the settlement date from 6 April 2022 to 3 May 2022, notwithstanding IMMIX not exercising any purported right under general condition 8.7 of the LIV contract; and 
(c)	Entertaining an alternative prospective purchaser, Monty, after the due diligence period was concluded.  
303	As noted above, WPMR made a substantial attack on credit on Mr Wilson. WPMR made it clear that its attack was not limited to his notes and whether they were contemporaneous or not. WPMR contends that Mr Wilson was a “highly unsatisfactory” and “unreliable witness”.  WPMR argues that Mr Wilson was caught out in relation to his notes, and he was given a number of opportunities to correct his evidence, and he did not do so. WPMR asserts that there were questions put to him and not just propositions. It rejects the claim that the cross examination was unfair to Mr Wilson and concludes that his notes are completely unreliable as they are not contemporaneous.  
304	Further, WPMR contends that, contrary to Mr Wilson’s assertions that there was no paramount oral term, he actively introduced Mr Mehdi as an alternative purchaser to WPMR following the due diligence period. WPMR submits that the reasonable inference to be drawn here is that he did not consider the HOA to be binding.  
305	WPMR claims that Mr Wilson was argumentative, non-responsive and partisan, and in weighing up his evidence about what was said in relation to the representation recorded in the 28 March 2022 email, the Court ought to be satisfied that the paramount oral term was included.  
306	WPMR observes that Ms Reece Jones was not called by IMMIX as a witness.  It invites the Court to draw adverse credibility findings in accordance with Jones v Dunkel. WPMR argues that the evidence for an oral term is not thin. WPMR says there was oral evidence about what was agreed during March to May 2022 and the parties’ conduct during that period was inconsistent with a binding agreement. WPMR says there is evidence that the parties waxed and waned on whether the HOA was binding or not. Further, it states there is a gap in the evidence of Ms Reece Jones about what instructions she received in sending the email on 28 March 2022 to Mr Jade.  
307	WPMR further claims that the Court can conclude from Mr Wilson’s conduct in the witness box that he was an unreliable witness and, in addition to his conduct, there was his evidence that his notes were contemporaneous when the clearly could not have been.  WPMR does not accept the criticism of Mr Wilson’s cross examination that he was asked closed questions. It contends that he was asked questions in that manner to be fairer consistent with s42(1) of the Evidence Act 2008 (Vic).  WPMR contends that the Court did not disallow the questions after conducting a voir dire.  
308	WPMR contends the representation recorded in Ms Reece Jones’ 28 March 2022 email was very specific and detailed.  As such, it urges the Court to conclude that: 
(a)	the correspondence was made on Mr Suggate’s instructions; 
(b)	it accurately reflected a verbal discussion between Messrs Suggate and Wilson; and
(c)	it demonstrates that the HOA was not binding on the parties and is an admission against IMMIX’s self-interest.  
309	WPMR relies on the decision of JA Glass in Payne v Parker in which the Court observed that, for an inference to be available pursuant to Jones v Dunkel, the three following requirements must be met: 
(a)	the evidence that is missing would have been expected to be called by the party against whom the rule is to be relied on; 
(b)	the evidence that is missing would have been relevant to determining facts in issue; and 
(c)	no explanation is given for the absence of the evidence.
310	WPMR asserts that, given the stark conflict between the representations in the 28 March 2022 email and Ms Reece Jones’ other correspondence, and Mr Suggate’s denunciation that he did not provide instructions to her to the effect recorded in her email, there is an inference available to the Court that Ms Reece Jones’ evidence would not assist IMMIX.  
311	WPMR contends that Ms Reece Jones is not in its camp as she was IMMIX’s solicitor for the deal.  The fact of an oral term of any agreement between the parties to the effect that the HOA is not binding is an issue on the pleadings.  
312	WPMR claims that if Mr Suggate’s evidence is accepted, the only logical conclusion is that, without instructions, Ms Reece Jones fabricated matters set out in her 28 March 2022 email in the course of her legal practice. It notes that such conduct would be contrary to ss 296 and 297 of the Legal Profession Uniform Law.  Mr Suggate disclaimed Ms Reece Jones’ correspondence and stated that the reason why she was no longer representing IMMIX was because she did things without instructions.  
313	WPMR contends that Ms Reece Jones was the most appropriate person to explain her correspondence. However, she was not called as a witness, and if a finding that she acted without instructions were to be made, then she would be denied procedural fairness by being denied the opportunity to be joined as a party to the proceeding. WPMR claims that there would need to be cogent and strict proof of conduct. 
314	As such, WPMR contends that the Court ought to be cautious to find that Mr Suggate did not instruct Ms Reece Jones about the representations contained in her 28 March 2022 email and that Messrs Suggate and Wilson did not have a conversation to the effect set out therein.  
315	IMMIX submits that the evidence of the paramount terms is “vanishingly thin”.  It contends that the only evidence for such a term is in Ms Reece Jones’ email of 28 March 2022, and she is an author who had no personal knowledge of the facts.  Against that, IMMIX argues is Mr Suggate’s evidence that he was the only person from IMMIX that had contact with Ms Reece Jones and that he said no such thing.  
316	IMMIX claims that Mr Fincham’s evidence is not consistent and does not support the making of the alleged paramount oral term representation.  IMMIX states that there was much heralding of the evidence that Mr Fincham would give, such as a conversation with Mr Wilson about the paramount oral term, and the evidence does not support what WPMR predicted it would do.  Mr Fincham’s relevant evidence about the HOA and his discussion with Mr Wilson was as follows: 
 “Did you have a discussion then with the broker?‑‑‑Yes, I believe we did.
 All right.  What did you say, and how did that take place, face‑to‑face or by telephone?‑‑‑Telephone.
 And what did he say – and so what did you say and what did he say?‑‑‑I asked him what this document was.
 All right?‑‑‑And he said that's how they put their formal offer in, is into this heads of agreement there.
 And what did he say about the heads of agreement?‑‑‑That it was – we sign this up, they put a $1,000 deposit into a trust account, and that whilst they're doing the due diligence period it allows exclusivity so that nobody else can look at purchasing the business whilst the other purchaser is doing the due diligence period.”  
317	IMMIX states that there is nothing in Mr Fincham’s evidence that says that this is not a binding agreement.  IMMIX contends there is nothing inconsistent with its case in such evidence.  
318	IMMIX contends that WPMR made a vigorous attack on Mr Wilson in cross-examination from the start and so it is natural that he reacted in the way he did, and his evidence ought not be treated as unreliable. In relation to his handwritten notes, IMMIX argues that he was put a direct proposition in cross examination that was incorrect, and he was being asked to agree with it. IMMIX says the Court should not have regard to it as a serious credit attack as a whole. IMMIX submits that Mr Wilson drew a strong distinction between his log notes and his direct notes of his telephone conversations of what was said. IMMIX states there is no attack on those contemporaneous notes. IMMIX conceded that Mr Wilson did have a personal interest in the outcome of the case but so does every other witness in this case and it is not a ground to reject his evidence. 
319	IMMIX relies on the Victorian Court of Appeal decision in Retirement Services Australia (RSA) Pty Ltd v 3143 Victoria St Doncaster Pty Ltd for the proposition that no prior oral term could survive the entry by the parties into a written contract – especially a written contract with a term that directly contradicts the alleged prior oral term because the HOA states very clearly that it is binding, and that is even more strongly the case when the written agreement also contains an entire agreement clause.  
320	IMMIX argues that, although the due diligence clause does not set out what happens if the purchaser is not satisfied, it is a common matter, and the consequence is well known. That is, that if the purchaser is not satisfied then they can cancel the contract. IMMIX notes that there is a deadline for the due diligence to be completed and argues that the consequence is implied by law, and that it satisfies BP Refinery test. IMMIX says that no authorities were cited by WPMR to support the fact that an entire agreement clause precludes implying any term into a contract. 
321	IMMIX contends that, contrary to WPMR’s submissions, an entire agreement clause in a contract does not preclude the existence of implied terms, at least where the entire agreement clause does not expressly exclude implied terms, and the term is implied in law or in fact from the need to give business efficacy to an express term or terms of the contract. IMMIX submits that the present case involves an entire agreement clause that is not an agreement that there are no implied terms and the implied term in relation to the due diligence clause is implied in fact.  IMMIX argues that the implied term arises by necessary implication from the express terms of the contract ,and are thus part of the contract.
322	IMMIX distinguished the case of Hope v RCA Photophone of Australia on the basis that that case considered an entire agreement clause that excluded implied conditions or warranties. In the present case, the HOA already contained a due diligence clause that requires the implied term that, if, the purchase was not satisfied by the conclusion of the due diligence, the purchaser could cancel the contract, to give business efficacy.  
323	IMMIX contends that the evidence relied on by WPMR for a paramount term is only in the email penned by Ms Reece Jones on 28 March 2022. IMMIX claims that she had no firsthand knowledge. On the other hand, Mr Suggate did give evidence, and he said that he did not give those instructions. IMMIX submits that there was no attack on Mr Suggate’s credit, and he ought to be believed. 
324	In my view, the whole agreement clause in the present case does not defeat an implied term in fact for the reasons that follow.  
325	The case of MacDonald considered whether a term could be implied into a contract that contained a clause which stated “[i]t is to be understood that there is no agreement or understanding between us not embodied in this tender and your acceptance thereof”.  
326	Griffith CJ in MacDonald reasoned as follows: 
“As was said by Bowen LJ. in Oriental Steamship Co. v. Tylor:
 “The case comes within the well known rule that when the contract as expressed in writing would be futile, and would not carry out the intention of the parties, the law will imply any term obviously intended by the parties which is necessary to make the contract effectual. The application of that rule is not affected by the inclusion in the contract of the [whole agreement] term I have read, that it is to be understood that there is no agreement or understanding not embodied in the tender. A contract to the effect stated in the first count of the declaration arises by necessary implication upon a proper construction of the express words. The question is whether there has been a breach of that contract by the defendant.”
327	O’Connor J held: 
“Every implication which the law makes is embodied in the contract just as effectively as if it were written therein in express language”. 
328	Isaacs J held: 
“[the whole agreement clause] excludes what is extraneous to the written contract: but it does not in terms exclude implications arising on a fair construction of the agreement itself, and in the absence of definite exclusion, an implication is as much a part of a contract as any term couched in express words.”
329	Edelman and Steward JJ in Realestate.com.au Pty Ltd v Hardingham said: 
“A basic source of confusion in terminology and in thought can be seen in the common statement that implied terms are terms that are “implied into” a written contract. Implied terms are not “implied into” a contract at all: they already exist in the contract. Implied terms are therefore recognised by the court, not created by the court.”
330	The “terms of this document” in the “entire agreement” clause accordingly include the implied terms. If the clause was to defeat implied terms, it would have to expressly do so.
331	The conditions for implying a term into a contract “in fact” is set out by the Privy Council in BP Refinery and relied upon by Mason J in Codelfa Construction Pty Ltd v State Railway Authority (NSW) as follows:
(a)	the term must be reasonable and equitable;
(b)	the term must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
(c)	the term must be so obvious that ‘it goes without saying’;
(d)	the term must be capable of clear expression; and
(e)	the term must not contradict any express term of the contract.  
332	In adopting the BP Refinery test, Mason J stated:
“[t]hat courts are slow to imply a term” and observed that “the more detailed and comprehensive the contract the less ground there is for supposing that the parties have failed to address their minds to the question at issue”.  
333	The BP Refinery test was considered by the Court of Appeal in Grocon Constructions (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd.
334	The Court of Appeal observed that:
(a)	The BP Refinery test conditions are cumulative and import different considerations.  
(b)	In Byrne v Australian Airlines Ltd, the High Court refused to imply a term that would operate in a partisan fashion as it “must be reasonable and equitable”. This will require a consideration of the matrix of facts in which the contract was agreed. 
(c)	The Court must consider whether the term is necessary for the purpose of “giving to the transaction such efficacy as both parties must have intended that at all events it should have”, making the agreement work or avoiding an unworkable situation so that an implied term “must be necessary to give business efficacy to the contract”: Hospital Products Ltd v United States Surgical Corporation.  The High Court in Commonwealth Bank of Australia v Barker noted that “[i]mplications which might be thought reasonable are not, on that account only, necessary”.
(d)	The condition that an implied term must be so obvious that “it goes without saying” requires consideration of whether, at the time that the parties were making their bargain, the suggestion of insertion of the implied term into the agreement by an “officious bystander” would have been met with a common, “Oh, of course”’ from the parties. 
(e)	Gibbs J in Ansett Transport Industries (Operations) Pty Ltd v Commonwealth, observed that the “width and lack of precision” of a term supplied an argument against implying it under the condition that an implied term “must be capable of clear expression”. 
(f)	Their Honours held that conflation of the “reasonable and equitable” and the “necessity” conditions of the BP Refinery test may lead a court into error. 
335	I accept that implied terms are “not implied into a contract at all: they already exist in the contract… [and] are therefore recognised by the Court, not created by the Court”. It is an exercise in construction, where the Court identifies terms “which are not expressed but are necessary to make the contract work”, following the first task of identifying what the terms of the contract are. Under Hardingham, an implied term is “sufficiently separate from the express terms communicated between the parties… [recognised] by inference from all of the circumstances”.   In other words, a term is implied in aid of the agreement, as opposed to in addition to it.
336	I accept IMMIX’s position that the HOA in relation to the due diligence clause is commercially ineffective, without the implication contended by it.  Further, the due diligence clause is unworkable without implying the term that if the purchaser is not satisfied by the conclusion of the due diligence the purchaser can cancel the HOA.  
337	The email from Mr Jade dated 16 March 2022 sets out what the parties understood in relation to the due diligence clause as follows:
 “We confirm that the Due Diligence period has now ended and as such this condition has now been satisfied.”
338	The term sought to be implied by IMMIX is reasonable and equitable, and it is so “obvious it goes without saying” as it is an obvious omission given due diligence is a commonly understood concept and the consequences are well known, that is, that if the purchaser is not happy, they can walk away from the deal.  Finally, the contended term is capable of clear expression as propounded by IMMIX In my view, all five criteria for the implication of a term that permits IMMIX to withdraw during the due diligence period if it was not content with the information provided is satisfied.
339	Although I have found that such permission is implied, this does not mean that this analysis “cuts both ways”. I accept IMMIX’s submission that there is no evidential basis to suggest that there was a paramount oral term of the HOA, to the effect that it was not binding, for the reasons that follow.  
340	Mr Suggate’s evidence was that no such statement was ever made in his presence. His evidence was to the opposite effect. That is, that Mr Wilson said that “we’ll enter into a binding agreement”.  Messrs Wilson and Tsundra each gave evidence that they never said that the HOA was not binding. Mr Fincham’s evidence of what Mr Wilson told him was that:
“whilst they’re doing the due diligence period it allows exclusivity so that nobody else can look at purchasing the business whilst the other purchaser is doing the due diligence process”.
341	I agree with IMMIX’s position that there is nothing in Mr Fincham’s evidence of what Mr Wilson told him that is inconsistent with the HOA being binding in accordance with its written terms.
342	The only evidence in support of WPMR’s allegation that the HOA included a paramount oral term that the HOA was not binding on the parties, is the 28 March 2022 email from Ms Reece Jones.  Her email asserted, by way of hearsay, that at the time of the execution of the HOA, Mr Wilson had:
“represented that the terms of the heads of agreement (HoA) was not binding … and that the sale was a matter of negotiation between our clients until formal terms were signed”.
343	It is common ground between the parties that there is no evidence of how Ms Reece Jones came to write this representation in her email and that she was not called to give evidence. The parties differ as to the consequences of IMMIX’s failure to call Ms Reece Jones to give evidence and whether this may lead to an inference that her evidence would not have assisted IMMIX’s case. WPMR contends that this inference supports a finding in favour of the paramount oral term. 
344	On this issue, I agree with WPMR’s position that Ms Reece Jones’ 28 March 2022 email was an open letter between solicitors and the paragraph referring to the representation cannot attract privilege in relation to that instruction. The authority relied on by IMMIX, Standard Chartered Bank of Australia Ltd v Antico that no adverse inference can be drawn from a claim of privilege, involved an argument concerning a claim for legal professional privilege. There was no such claim made in relation to the communication and at its highest was asserted in closing submissions by IMMIX that its instruction was “likely to be privileged”.  
345	Even if IMMIX’s communications with Ms Reece Jones in relation to the representation fell within a claim for advice privilege at common law and/or under s118 of the Evidence Act 2008 (Vic), that it involved a confidential communication between client and a lawyer for the dominate purpose of the lawyer providing legal advice to the client, I agree with WPMR that by referring to the instructions in the open letter, Ms Reece Jones’ conduct was inconsistent with the maintenance of confidentiality and any privilege has been lost. 
346	Further, I concur with WPMR that the fact that Ms Reece Jones was no longer in IMMIX’s camp and was no longer its solicitor does not prevent IMMIX from calling her to give evidence by subpoena and there was no suggestion that she was unavailable to give evidence.  
347	Having said that, I agree with IMMIX’s position that the failure to call Ms Reece Jones does not permit an inference that her evidence would have been damaging to IMMIX, or that it could be used to fill in gaps in the evidence or convert conjecture or suspicion into inference.  In the present case, I find that there is no direct evidence to support the inference that WPMR urges upon the Court.  There is only an assertion in a letter whose author did not have direct personal knowledge in relation to the facts so stated. I also adopt IMMIX’s submissions that WPMR relies on a false dichotomy in relation to its arguments in relation to Ms Reece Jones’ letter. I neither find that she accurately recorded Mr Suggate’s instructions or that she made it up.  In my view, her assertion in the 28 March 2022 letter was due to a misunderstanding or miscommunication that was immediately (and correctly) rejected by WPMR’s solicitor, Mr Jade, in his reply email of the same date.   
348	In any event, there is no evidence of any acceptance of any such paramount oral term between the parties and any prior oral agreement was superseded by the subsequent written HOA.  The terms of the HOA plainly stated that the HOA was legally binding. Therefore, any earlier oral agreement will be discharged by the terms of the later written agreement that contradicts it.  As set out in my anterior findings, the HOA was signed by Mr Fincham for WPMR, and Mr Suggate of IMMIX accepted that agreement by email dated 1 March 2022. Any inconsistent paramount oral term could not survive this process. 
349	Further, there are additional factors that weigh in favour of the finding that any prior oral term would be inconsistent with the HOA.  First, the paramount oral term is inconsistent with the condition precedent contained in the HOA to transfer the existing lease on or prior to settlement, or a new lease of the premises. The condition precedent would have no work to do if the HOA is not binding.  
350	Second, any paramount oral term is precluded by the entire agreement clause in the HOA and clause 4 of the “Operative Part” of the LIV contract of sale which provides:
“Clause 4: All the terms of the sale and purchase are contained in this contract. The contract includes: 
the particulars of sale; 
any special conditions; 
the general conditions; and 
the schedules attached to this contract.”
351	WPMR sought to contend that Mr Suggate was an unreliable witness and relied on his confusion and loose language under cross examination.  I accept that he was, from time to time, confused or unaware of the subtleties in some of the questions put to him by senior counsel. I also accept that the documentary records are more reliable and where Mr Suggate’s evidence diverged from the documentary evidence, I accept the documentary record.  
352	WPMR’s reliance on Mr Suggate’s evidence as to Mr Wilson saying to him that “we’ll enter into a binding agreement” on closer scrutiny does not contain a precise time in which Mr Suggate was being asked to give this evidence. The question put to him was “at this meeting, or at any time was anything said by Mr Wilson about whether the [HOA] was binding or not?”  This exchange does not lead to the inevitable conclusion that what Mr Wilson was saying to Mr Suggate was expressed in future tense or that it post-dated the acceptance of the HOA on 1 March 2022.  
353	Similarly, I accept Mr Suggate’s answers that he was “thinking about buying” and “looking to acquire” the business is consistent with him having an expectation rather than a mere hope. There was no distinction drawn in questioning by WPMR’s counsel between a possibility and intending to complete a reality.  So too, Mr Suggate’s evidence in relation to the meeting in a café which occurred on 4 May 2022 (rather than April 2022 as stated by WPMR). WPMR’s analysis of the question put to Mr Fincham at that meeting in the form “[d]o you still want to sell the business” instead of saying that WPMR had already sold the business, urges a precision in language and choice of words that is not consistent with Messrs Fincham and Suggate as businessmen rather than lawyers.  
354	I further accept IMMIX’s position that later attempts by it to “re-negotiate” the price or the terms of the restraint of trade were just attempts to re-negotiate. I do not find that the was there a retreat from the binding nature of the agreement. These enquiries following the due diligence process and the issues around the valuation of the business, do not alter the fact that a binding contract had been reached, nor are they evidence of the contrary.  
355	Finally, the fact that the brokers were talking to another potential purchaser while the HOA was on foot, which both Mr Wilson and Mr Tsundra explained was their “Plan B”, says nothing about the contractual intention of the parties themselves. I find that this was a mere precaution while the agreement between WPMR and IMMIX remained conditional and uncompleted. 
356	For the foregoing reasons, I find that there was no paramount oral term and that the subsequent conduct of the parties ratified the agreement. Both IMMIX and WPMR regarded themselves as bound which is admissible to show their intention at the time even if the document is not a deed. The conduct set out above shows the parties considered themselves to be bound. 
Lease of the Premises
357	WPMR contends that on 25 May 2022, it validly terminated the HOA by an email sent from its solicitor to IMMIX’s then solicitor, relying on clause 8.8 of the then current edition of the LIV’s standard form Contract of Sale of Business (February 2020 edition), alternatively, it accepted IMMIX’s wrongful repudiation of the HOA.
358	WPMR observes that the landlord’s consent is required both in the HOA under the heading “Lease Agreement”, and in the cross reference to the LIV contract GC 8.  It contends that there is no doubt that the sale was subject to this condition. WPMR states that the landlord did not consent to the transfer of the lease or to a new lease.  
359	GC 8.8 of the LIV contract stated as follows:
“If the provisions of general conditions 8.7(a) or 8.7(b) have not been satisfied, by the due date for settlement or the extended due date for settlement (as the case may be) either party may end this contract by service of 5 Business Days’ notice of termination of contract in which case the Vendor must repay any moneys paid by the Purchaser.” (emphasis added)
360	GC 8.7, relevantly stated:
“If the Purchaser has complied with the obligations under general conditions 8.3, 8.4 and 8.6, and either: 
 (a) the landlord has not; 
  (i) consented in writing to the Transfer; or 
  (ii) agreed to grant a New Lease; or 
  (b) written evidence has not been provided that any mortgagee or chargee  has consented to the Transfer or New Lease, 
  by the date which is 5 Business Days prior to the due date for settlement, the Purchaser may by written notice to the Vendor extend the due date for settlement to a date not exceeding 14 days from the due date for settlement.” (emphasis added)
361	GCs 8.3, 8.4 and 8.6 imposed the following obligations on IMMIX:
“8.3 The Purchaser must promptly provide to the Vendor information that a landlord could or does reasonably require about the financial resources and business experience of the Purchaser. 
 8.4 The Purchaser must prepare the deed of transfer unless the Lease provides otherwise. 
… 
 8.6 The parties must do everything reasonably required to achieve written evidence of consent of any mortgagee or chargee of the freehold of the Business Premises to the Transfer or the New Lease, to enable the Purchaser to obtain priority against the mortgagee or chargee.” (emphasis added) 
362	GCs 8.1 and 8.2 provided:
“8.1 The Vendor must obtain for the Purchaser by the due date for settlement, a Lease of the Business Premises either: 
 (a) by transfer of the current Lease with the landlord’s written consent (a Transfer); or
 (b) by a new Lease from the landlord to the Purchaser on the terms specified in item 3 of schedule 4 (a New Lease). 
 8.2 Both parties must take all reasonable steps to obtain the landlord’s consent to the Transfer or the New Lease of the Business Premises.” (emphasis added)
363	WPMR argues that, arising from the GCs set out above:
(a)	IMMIX was obliged to provide WPMR with such information that the Landlord reasonably required, regarding IMMIX’s financial position and business experience and provide a proposed deed of transfer; 
(b)	Both IMMIX and WPMR were required to take all reasonable steps to obtain the landlord’s consent to the transfer of the lease or a new lease; and 

(c)	WPMR’s obligation to obtain for the purchaser either a transfer of lease or new lease pursuant to GC 8.1 was qualified by the words “by the due date for settlement”.  
364	WPMR relies on the email dated 16 March 2022 from its solicitor to WPMR’s landlord which it says requests an assignment of its lease in favour of IMMIX.  The email identifies IMMIX’s solicitor and requested information that IMMIX might require.  WPMR emphasises the subject line of the email which provided:
 “Assignment of Lease _ Approval of Incoming Tenant_Western Port Metal Recycling_Private & Confidential”.
365	WPMR submits that, properly construed, this email requested the landlord’s approval of IMMIX a prospective tenant, commenced the process to procuring such consent, consistent with its obligations under GC 8.1 of the LIV contract, and commenced the discussions with the landlord.   
366	The landlord responded on 22 March 2022 requiring a new lease to be drawn up. WPMR contends that IMMIX, by its subsequent conduct, acceded to this process rather than a transfer of the lease. Further, it relies on IMMIX negotiating directly with the landlord to the exclusion of WPMR.  
367	WPMR asserts that it did all it reasonably could to assist IMMIX, such as giving Mr Suggate tips on how to approach the landlord. However, it says that IMMIX directly communicated with the landlord, provided documents to the landlord directly without copying WPMR into the correspondence, sought advice from WPMR as to how to negotiate with the landlord and did not seek WPMR to intervene until 5 May 2022.  
368	WPMR cite clause 14 of its commercial lease with its landlord, which provides that WPMR could not assign or sublease the premises unless the landlord has given prior written approval. WPMR notes that the obligation to consent to an assignment of lease was not absolute. It was open to the landlord to refuse approval if, inter alia:
“(e) no, or insufficient, details about the assignee, sub-tenant, licensee or person who will occupy the premise are provided; 
 (f) the landlord or the managing agent is of the reasonable opinion the assignee, sub-tenant, licensee or person who will occupy the premises lacks sufficient means, ability, or business experience to carry on the permitted use - or, if it is proposed the permitted use be changed, the permitted use as proposed - and comply with the lease, on the basis of information provided; 
 (g) the documents for the assignment, sub-letting, licensing, or parting with occupation are not reasonably acceptable to the landlord, the landlord's managing agent, or Australian legal practitioner or conveyancer;  …” 
369	WPMR contends that the financial information provided by IMMIX to the landlord was inadequate. The form of letter of comfort from the IMMIX Group’s accountant, or accountant for another company in that group, related to an entity other than IMMIX and did not contain a full set of financial statements. WPMR argues that financial material in respect of IMMIX Integrated Metal Management Pty Ltd (“IIMMPL”) is not IMMIX, the plaintiff, and was not a party to the HOA. WPMR says that the financial position of IIMMPL is irrelevant to the financial position of IMMIX and there is no other evidence that IMMIX provided information that the landlord reasonably required.  
370	WPMR submits that Mr Fincham gave evidence that no information passed to him by IMMIX for the landlord was withheld by him and no complaint was made to him by IMMIX. Further, he had been told by the landlord to “stay out of it”.  
371	WPMR contends that IMMIX completely failed or neglected to prepare and provide a deed of transfer of lease to WPMR as required under GC 8.4 of the LIV Contract. It argues that the IMMIX’s failure to provide a deed of transfer to the landlord constituted a reasonable basis for the landlord to refuse its consent under GC 14.4(g). WPMR asserts that this is a document that the landlord reasonably required for its consideration of any assignment of the lease. 
372	WMPR concludes that in the circumstances of the paucity and irrelevance of the financial information provided by IMMIX, the landlord’s refusal to consent to the transfer of the lease was not unreasonable.
373	WMPR rejected IMMIX’s suggestion that it was open to it to issue a Landlord and Tenant Summons in VCAT to obtain the landlord’s consent. Instead WMPR posited that it would be legally and practically disastrous for the parties as the landlord were people with “country values” and were suspicious of or averse to “city slickers”.  It submits that. on the information provided to the landlord by IMMIX, making a legal demand on the landlord for consent would have been futile. In regard to the premises, WMPR claims that it acted reasonably in its dealings with the landlord.  
374	WPMR contends that, in any event, IMMIX made an election to seek a new lease with the landlord, as it was entitled to do under GC 8.1 of the LIV contract.  WPMR states that, given IMMIX was actively negotiating directly with the landlord for an entirely new lease, it was reasonable and appropriate for WPMR to “stay out of it”.  
375	WMPR observes that negotiations between IMMIX and the landlord broke down irretrievably by 23 April 2022 following an email from Mr Suggate the previous day to which the landlord took exception variously describing her interactions as “mansplain”, “threatening”, “aggressive”, “harassing” and “nasty”.  Although IMMIX continued to attempt to engage with the landlord by way of Mr Suggate’s email of apology explaining that the email had “prepared by our solicitor”, correspondence and telephone conversations between Mr Brown and Ms Sutton and correspondence from Ms Reece Jones to the landlord.  
376	WPMR contends that it was not until 5 May 2022, being two days after the extended settlement date, that IMMIX sought to require WMPR to take any steps to obtain the landlord’s agreed extended consent to transfer the lease.  WPMR had made attempts between 27 and 29 April 2022 to ascertain the status of the negotiations between IMMIX and the landlord and 4 May 2022 asking if the parties needed to rescind the HOA by agreement based on a condition precedent not being met.  
377	WPMR submits that under ss61(5) and (6) of the RL Act, the landlord was entitled to at least 28 days, and up to a further 42 days to comply with the section before any consent would be deemed statutorily. WPMR argues that by the time IMMIX demanded WPMR take some step to procure the landlord’s consent prior to the due date for settlement, it had already passed on 3 May 2022. It says that it was, therefore, impossible for WPMR to obtain the consent prior to settlement.
378	WPMR contends that, had IMMIX made its request at the time the negotiations failed because of inadequate material provided by IMMIX to the landlord, there would have still been insufficient time to allow WPMR to comply in circumstances where the parties had not agreed to further extend the settlement date and that, absent a written notice from IMMIX pursuant to GC 8.7 of the LIV contract, no later than 5 business days before the settlement date, there was no obligation on WPMR to consent to a further extension of settlement. 
379	By reason of these matters, WPMR submits that it was entitled to end the agreement with IMMIX pursuant to GC 8.8 by its notice of termination dated 25 May 2022.  
380	IMMIX notes that the defence at paragraph 10(c)(i) pleads a variation to the HOA, such that it was IMMIX’s responsibility to seek the landlord’s consent. However, the variation was not pressed in closing submissions by WPMR and IMMIX observed that there was no consideration to any variation to the HOA.  This ground falls away. The defence further pleads an estoppel claim at paragraph 10(c)(ii). The defence claims that IMMIX is estopped from insisting on any strict legal right arising under the HOA that required WPMR to procure the landlord’s consent to an assignment of the lease where it introduced IMMIX to the landlord and started negotiations directly with them to the exclusion of WPMR. IMMIX contends that this mischaracterises the correspondence sent on 16 March 2022 from Mr Jade.  
381	IMMIX’s interpretation of the 16 March 2022 email is that WPMR sought to offload its contractual obligation onto IMMIX. It submits that the estoppel works the other way because it was WPMR that directed IMMIX to deal directly with the landlord.  IMMIX sought to do that once the landlord’s representative returned from absence.  
382	IMMIX claims that the landlord’s substantive position in relation to the lease was first put by email on 20 April 2022.  The landlord set out its terms for a new lease seeking a substantially increased rent of $6,000.00 per month and a $200,000.00 security deposit (which was later reduced to $150,000.00). On 21 April 2022, the IMMIX Group’s accountant’s letter was sent. On Friday, 22 April 2022, the landlord said that the security deposit had to be $150,000.00 by way of a bank guarantee.  That Friday evening Mr Suggate replied, as he became concerned about the size of the security deposit and wanted some assurances as whether there was some contamination on the property that he was not aware of that IMMIX might want to clean up. This resulted in the landlord becoming offended and to refuse to deal with IMMIX on the Saturday morning. IMMIX submits this does not give rise to the estoppel pleaded in paragraph 10(c)(ii) and there is no reliance pleaded or proven by WPMR.  
383	IMMIX claims that there is no plea of reliance by WPMR disclosed in the defence or why it failed to seek a transfer of lease as it was contractually obliged. Instead, IMMIX observes that paragraph 10(c)(ii)(5) of the defence seeks to blame IMMIX in that it conducted negotiations directly with the landlord in such a way as to cause the landlord to call off further negotiations and refuse to grant consent. IMMIX asserts that, in fact, it is the landlord who was being unreasonable in its position in being oversensitive and unreasonable in its demand for a $150,000.00 security deposit.  
384	IMMIX contends that the correspondence sent by Mr Suggate was not aggressive, threatening and harassing. Rather, the email of 22 April 2022 simply put some requests for assurances and inspections of the property. IMMIX submits that the words aggressive, threatening and harassing were not put to Mr Suggate in cross examination and at the highest he said some of the words were “very firm” and that it had been a “mistake” to use some of the words as it “ruffled the feathers a bit”.  IMMIX concludes that the landlord’s view that it was aggressive, threatening or harassing is not a reason in law for refusing consent. It follows, that the landlord’s refusal was unreasonable.  
385	IMMIX claims that WPMR’s submission is predicated on the presumption that what IMMIX had to do was persuade the landlord to give its consent. However, that is not what the contract required. The HOA terms and general condition 8.1 of the LIV contract is not about persuading the landlord to consent but about the vendor requiring the landlord to consent or obtaining a declaration that the landlord’s refusal of consent is unreasonable.  
386	IMMIX relies on s61 of the RL Act, where, if a landlord does not respond to a request within the time limited, consent is deemed to have occurred. An application to VCAT for a declaration would only be necessary if the landlord refused consent. IMMIX observes that the first step is for the vendor to make a request that the landlord consent to a transfer of the lease. However, WPMR never did.  
387	IMMIX concedes that financial statements were not provided to the landlord, but it argues that communications were just commencing on 23 April 2022 and the landlord cut them off and refused to deal with them given Ms Sutton was absent until 19 April 2022.  IMMIX contends that there was no opportunity to provide such financial information. 
388	IMMIX further notes that WPMR knew of the landlord’s refusal from 28 April 2022 as evidenced by the conversation between Messrs Fincham and Brown, however, WPMR did nothing about it when only WPMR had a right against the landlord.  
389	On 5 May 2022, Ms Reece Jones wrote to Mr Jade setting out IMMIX’s position that only WPMR had a right to require the landlord’s consent, and it had an obligation under the HOA. WPMR asserts there was no response until three weeks later, on 25 May 2022, when WPMR purported to rescind the contract. 
390	IMMIX submits that the parties had a duty to cooperate to achieve the objective of the contract. It notes, however, that WPMR’s solicitor failed to request financial information or a form of transfer of lease from IMMIX. IMMIX argues that if it overlooked the provision of financial information, then it was incumbent on WPMR to remind it rather than wait until 25 May 2022 and then snapping on termination of the contract. IMMIX argues that this is not co-operative, nor commercial behaviour between parties. 
391	For the reasons that follow, I find that the landlord’s refusal of consent to lease the business premises provides no basis for WPMR to terminate the contract in circumstances where the reason why the landlord has not yet been required to provide its consent is the failure of WPMR to fulfil its contractual obligation to obtain a transfer of the lease, or a new lease, and to that end, to exercise its right under its lease to require the landlord to give its approval.  
392	The LIV contract states that the vendor must obtain a lease of the premises either by a transfer or a new lease. I accept that it was at all times, WPMR’s contractual duty to obtain the landlord’s consent to a transfer of the lease, or a new lease. Given there was no variation of the terms of the agreement, and no consideration was given for any asserted variation, the obligation was not altered.  
393	IMMIX’s conduct in seeking to advance matters with the landlord was not an assumption of WPMR’s duty, nor a supplanting of its role. Instead, it is to be viewed as IMMIX fulfilling its duty under GC 8.2 of the LIV contract.  Initially, IMMIX accede to the landlord’s insistence for a new lease rather than a transfer of the lease. This was despite Mr Suggate’s preference for the attractive terms under the existing lease with WPMR.  
394	Although WPMR complains about the timing in relation to the lease negotiations, the fact is that nothing happened until 19 April 2022 because of the absence of the landlord’s representative and WMPR consistently seeking to transfer its contractual obligation under GC 8.1 of the LIV contract to IMMIX.
395	Similarly, I do not accept WPMR’s position that IMMIX did not include it in its communications with the landlord, in circumstances where WPMR sought to transfer its contractual obligation to secure a new lease or a transfer of the existing lease to IMMIX.  Consistent with this, WPMR cannot rely on the landlord telling it to “stay out of it”. WPMR had a contractual obligation to IMMIX by reason of GC 8.1 of the LIV contract and it had the right to compel the landlord under clause 14 of the lease and ss61(2) of the RL Act.  
396	In addition, WPMR’s complaints about the purported difficulties and delays caused by the times allowed to a landlord under s61 of the RL Act are rendered otiose. In the present proceeding, on WPMR’s case, if Mr Jade’s email dated 16 March 2022 to the landlord was an effective request for consent (which I do not so find), then WPMR’s position is that it had already satisfied ss61(3) and the 28-day period under ss 61(6) expired on 13 April 2022. The 14-day period set out in ss 61(5) for the landlord to provide a current disclosure statement, if WPMR required a fresh one, ought to have concluded before WPMR requested the landlord’s consent. In fact, Mr Jade’s email dated 16 March 2022 was not a request, however, the issue became academic because the landlord unreasonably refused to accept IMMIX as a tenant by email dated 23 April 2022.  
397	The landlord’s consent cannot be unreasonably withheld, and in my view, it is key to the issue in the present proceeding. WPMR has the right to obtain the consent of the landlord if they are unreasonable in not giving it.  An application to VCAT (not to the Court under s137 of the Property Law Act 1958 (Vic) as initially submitted by the parties as it is a retail lease) by WPMR would thereby be required.  It was not done at all or at any stage.  The landlord’s solicitor pointed out that there had never been a request made by WPMR.  It is the first step under s61 of the RL Act that the tenant makes a request from the landlord.  
398	The Court does not need to accept the landlord’s position regarding Mr Suggate and IMMIX. However, in my view, none of what Mr Suggate said or did was a valid reason for the landlord to refuse consent in the present case. On an objective reading of Mr Suggate’s email of 22 April 2022, it is temperate and reasonable.  The communication is not “aggressive”, “threatening” or “harassing” and the landlord was overly sensitive to characterise it in that fashion.  By his email, Mr Suggate was simply agreeing to the $150,000.00 security sought by the landlord if there could be a 3-year term plus a 3-year option, and assurance that there were no issues with WPMR plus a condition report and comprehensive inspection.  
399	It may be that IMMIX had not yet provided all the information that the landlord required, but the Landlord did not provide IMMIX with an opportunity to fully satisfy this condition as they abruptly cut off negotiations on 23 April 2022.  Even so, I will not find that the landlord’s refusal was based on the lack of financial information or documentation provided by IMMIX.  It was based on its “country values”. This is clear because the landlord had not given a reasonable opportunity to IMMIX to fulfil its request sent by Ms Sutton by email dated 20 April 2022. The landlord’s refusal to accept IMMIX as a tenant was unreasonable.   
400	WPMR cannot complain that IMMIX did not provide WPMR with sufficient information to enable it to compel the landlord’s consent in circumstances where it had directed IMMIX to deal with the landlord direct and when it did not respond to IMMIX’s later offer to provide whatever WPMR required to progress the matter.  Not once did Mr Jade in correspondence ask for IMMX’s financial information. If there was a problem in relation to IMMIX’s provision of information and its sufficiency, then instead of snapping on termination on 5 May 2022, one would expect WPMR to would write to IMMIX and inform them that they needed to provide the relevant material. There was a duty under the contract to cooperate and let IMMIX know what was needed to be done. The duty of cooperation required WPMR to ask for these materials instead of relying on them as a basis to terminate the contract.
401	GC 8.1 of the LIV contract and the matters that needed to be fulfilled included that WPMR needed to make a written request for the landlord’s consent, to provide the landlord with IMMX’s financial material (clause 14 of the lease) to the extent they lacked that information they needed to ask for the information from IMMIX and, if the landlord refused consent, the step was to take the matter to VCAT and get a declaration that the refusal was unreasonable. It was incumbent on WPMR to take these steps as they had standing against the landlord.  
402	Instead, on 23 April 2022, the landlord refused consent and Mr Fincham became aware of this on 28 April 2022. WPMR took no step after that. Further, when Mr Fincham had a discussion with Ms Sutton around 20 May 2022 over the phone and she was not willing to deal with IMMIX and she asked him if it would it be the end of the world if they said “no”.  Mr Fincham’s answer ought to have been “yes”.  
403	GC 8.1 of the LIV contract does not give IMMIX an “election”, even in a colloquial sense of the word. On a proper reading of GC 8.1 of the LIV contract, WPMR had two alternative means of satisfying their obligation of putting IMMIX into possession of the premises. Although IMMIX had a right to refuse a new lease if the terms were unacceptable to it, it nevertheless remained open to WPMR to satisfy its obligation by obtaining a transfer of the existing lease.  However, this did not give IMMIX an “election” either in the various forms of election as recognised at law or in equity or otherwise.  
404	I further accept that when IMMIX entered into negotiations for a new lease with the landlord from 20 April 2022, it did not give up its right to insist on a transfer of the existing lease if the terms of the new lease were not acceptable to it. In his email dated 13 April 2022, Mr Jade was aware of this continuing right when he asked Ms Reece Jones the question: “Please confirm will this be an assignment or a new lease?”
405	On 5 May 2022, IMMIX’s solicitor wrote an email that only WPMR could overcome the issues with the landlord, and they had a duty to do that. Despite this, on 25 May 2022, WPMR purported to rescind the contract. There was no other response to the request.  
406	For the foregoing reasons, I find that WPMR failed in its contractual obligation to obtain the consent of the landlord to transfer the lease or a new lease. WPMR did not take any step beyond Mr Jade’s email of introduction on 16 March 2022.  WPMR never made a request for the landlord’s consent as was pointed out in the letter from the landlord’s solicitor dated 13 July 2022.  
Termination for Breach 
407	WPMR notes that the HOA contained obligations that the arrangements set out in the HOA would be more formally documented using the LIV contract as soon as possible, that time was of the essence, the parties act in good faith and would use their best endeavours to fulfil the condition in the HOA.  
408	WPMR contends that the obligation to execute a long form LIV contract as soon as possible is not qualified by any other text in the HOA, save for their obligations on the parties to act in good faith and to use their best endeavours. WPMR argues that IMMIX acted in a manner entirely inconsistent with this obligation. Instead, IMMIX considered that obtaining a new lease or the landlord’s consent to assignment of the lease was a condition precedent to signing the LIV contract.  WPMR relies on the email from Ms Reece Jones dated 11 May 2022, which states:
 “Immix is, as reiterated on multiple occasions, ready, willing and able to make payment of the balance of the deposit upon execution of the LIV Contract of Sale once a transfer of lease (or new lease) is executed, and then proceed to settlement.” (emphasis added)
409	Further, WPMR notes that, during cross examination, Mr Suggate confirmed his misconstruction of the HOA that it contemplated that the lease would come before the LIV contract. Mr Suggate doubled down on this position in re-examination.
410	WPMR argues that contrary to Mr Suggate’s position, the landlord’s consent for transfer of lease or agreement for a new lease was not a condition precedent to the execution of the LIV contract. WPMR was only obliged to procure the landlord’s consent or new lease by settlement date. On the other hand, IMMIX was obliged to execute the LIV contract as soon as possible, upon which, IMMIX was to pay the balance of the deposit. WPMR submits that IMMIX had shown they did not intend to be bound by the HOA.  
411	WPMR contends that the role of a deposit is to act as an “earnest”, being a guarantee that the purchaser will complete the contract and to bind the parties to the agreement and is liable to forfeiture. WPMR asserts that, to an objective bystander, IMMIX did not mean business pursuant to the observations of Brooking J in cites in Bot v Ristevski where his Honour observed:
“…a deposit wears two aspects: if the purchase is carried out, it goes against the purchase money, but its primary purpose is that it is a guarantee that the purchaser means business.”
412	WPMR submits that the failure to produce the LIV contract and pay the balance of the deposit were signs that IMMIX did not regard itself to be bound by the agreement, did not “mean business” and it was a breach of an important term that entitled WPMR to terminate the agreement as a repudiation.  
413	WPMR relies on the authorities of Carr v Berriman and Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd in relation to the relevant test for repudiation of an agreement. It further notes that repudiation of a contract is a serious matter and not to be lightly found or inferred in accordance with the observations of Deane and Dawson JJ in Laurinda Pty Ltd v Capalabal Park Shopping Centre Pty Ltd.  However, contends that IMMIX’s refusal to execute a LIV contract until the landlord consented to a transfer of the lease or a new lease was repudiatory conduct.  
414	Further and alternatively, WPMR contends that, by refusing to execute the LIV contract until after the landlord gave consent to a new lease or transfer of lease, IMMIX acted in breach of its obligations to act in good faith, use its best endeavours and perform its obligations when time was of the essence.  In addition, WPMR states that by attempting to re-negotiate the contract prices and the restraint of trade terms, IMMIX conducted itself on the basis that it was not bound by the terms of the HOA.  
415	WPMR says that IMMIX’s payment of the sum of $1,000.00 was really a holding deposit in the context of a $3,335,000.00 transaction. WPMR observes that that money was in a trust account held by the Broker and not paid to WPMR pending completion of agreement.  
416	The letter of 25 May 2022 relied on clause 8.8 and the fact that there was no executed long form contract. WPMR says that the signed LIV contract was required as soon as possible, together with a 10% deposit. Mr Fincham was aggrieved about this in late April and mid-May 2022, and it resulted in his change of mind in mid-May.  WPMR relied on Brooking J’s observations in Bot v Ristevski that the deposit is important as it shows the purchaser “means business”.  WPMR said that Mr Suggate was not “meaning business”.  
417	WPMR says that the relevant evidence about Mr Suggate’s state of mind as to the interpretation of the terms of the contract was at the time, and he does not resile from it and what he thinks now is not relevant. WPMR says that it is not their job to “make things right” for IMMIX. Mr Suggate conceded that he changed his mind about whether the landlord’s consent was required before entering into a long form contract after hearing the evidence and submissions in the trial.  
418	WPMR says there were no gaps that prevented the entry into a long form contract. The failure on the part of the purchaser to sign a LIV contract and pay the deposit means that IMMIX was a breach of an important term and a separate basis to terminated on the basis of repudiation on 25 May 2022. 
419	IMMIX submits that an alleged repudiation by it is a serious matter, not lightly to be found. It argues that IMMIX did “mean business” and the letters from Ms Reece Jones dated 5, 11 and 20 May 2022 emphasised that IMMIX was committed to purchasing the business.  
420	IMMIX contends that the 10% deposit was not payable until the LIV contract was signed.  It says that the parties were getting close to agreeing to the long form contract, however, when the landlord’s email of 23 April 2022 arrived, IMMIX focussed its attention on that.  
421	IMMIX argues that if the Court finds that IMMIX was in breach of the contract by not executing the LIV contract and paying the deposit, that the Court should not conclude that this was repudiation. Mr Suggate gave evidence that he would sign a LIV contact and pay the 10% deposit if that is what the contract requires.
422	IMMIX further relies on the decision of DTR Nominees v Mona Homes Pty Ltd where Mason J said: 
“No doubt there are cases on which a party, by insisting on an incorrect interpretation of a contract, evinces an intention that he will not perform the contract according to its terms. But there are other cases in which a party, though asserting a wrong view of a contract because he believes it to be correct, is willing to perform he contract according to its tenor. He may be willing to recognize his heresy once the true doctrine is enunciated or he may be willing to accept an authoritative exposition of the correct interpretation. In either event an intention to repudiate the contract could not be attributed to him.” (emphasis added)
423	For the reasons that follow, I find that IMMIX was not in breach of the contract for treating the landlord’s consent as a precondition to entry into the LIV contract, for the non-execution of the LIV contract and the non-payment of the balance of the deposit and that WPMR was not entitled to terminate the contract pursuant to GC 8.8 of the LIV contract.  
424	An execution of the long form contract was contemplated by the parties in the HOA, but the parties did not reach final agreement on its terms.  In my view, the parties’ agreement to enter into a LIV contract was an agreement to agree.  Further, it was not an essential term of the HOA. Therefore, IMMIX’s desire to obtain the consent of the landlord first was not a breach of contract.  
425	Further, the failure to sign the long form contract by IMMIX did not mean that IMMIX did not “mean business”.  The full 10% deposit was payable on signing the long form contract which had not eventuated yet and therefore its nonpayment cannot be a breach of the contract.  Mr Jade’s letter dated 5 May 2022 recognises that the balance of the deposit was not due until the LIV contract was entered into when he sought payment of the deposit “to provide comfort in this transaction”.  He did not state that the payment of the deposit was to be made pursuant to an immediate contractual obligation.  
426	The parties were close to agreeing the LIV contract in late April 2022, but within a couple of days of that, the landlord refused consent on 23 April 2022 and the parties focussed on that issue.  It is not right to say that IMMIX did not “mean business”. On 5, 11 and 20 May 2022, IMMIX set out it in correspondence that the HOA was a binding agreement and IMMIX wanted to complete it. 
427	For example, in the 11 May 2022 letter from Ms Reece Jones she states:
 “Immix is, as reiterated on multiple occasions, ready, willing and able to make payment of the balance of the deposit upon execution of the LIV Contract of Sale once a transfer of lease (or new lease) is executed, and then proceed to settlement.” (emphasis added) 
428	If this is an incorrect statement, then it is not a repudiation. Mr Suggate was recalled and was asked if IMMIX ought to have executed a LIV contract then he would do so on its behalf.  He said that he did not sign one because he thought the lease had to come first. Mr Suggate understood when he gave evidence at the hearing on 31 July 2024 was that he would sign the LIV contract once the lease was in place. He accepted that this was a wrong construction.  
429	Applying the principles set out in DTR Nominees and Green v Sommerville, where Mason J gave two reasons for finding that the respondent was ready willing and able to perform the essential obligation under the contract: 
… the contract, that is, by paying the balance of the purchase price. Secondly, it is a general principle of the law of contract that the court will not readily infer from a party's insistence on a wrong construction of a contract that he is unwilling to perform it according to its true construction. This principle applies to the plaintiff's readiness and willingness in a suit for specific performance. (emphasis added)  
if executing the LIV contract is an essential term of the agreement, and I agree with IMMIX that it cannot be, and if Mr Suggate had a wrong construction of that essential term, first, it was never pointed out to IMMIX that it was a wrong construction at the relevant time, and second, it cannot be concluded from the circumstances of the present case IMMIX would have held to that wrong construction without direction.  Instead, there was silence from WPMR until 25 May 2022 when they purported to terminate the contract.  
430	In any event, I find that the entry into a long from contract it is not an essential term because the HOA does not say it is subject to signing an LIV contract.  The “legally binding” section of the HOA says:
 “The parties agree that the arrangements, as set out in this document, will be more formally documented using the LIV Contract of Sale as soon as possible, unless the parties agree otherwise in writing. This document will terminate only upon the parties entering into the LIV Contract of Sale or another long form contract agreed to in writing by the parties. Each Party agrees to meet its own legal costs.”
431	The HOA does not say it is subject to the entry into a LIV contract to turn it into a condition. It makes sense from a commercial perspective because all the essential terms of the bargain are in the HOA by incorporating the LIV terms. There is no indication that the parties are contemplating all sorts of other matters.  This was a binding agreement, and the parties ought to be held to their bargain.  
432	Finally, I do not accept WMPR’s contention that, because the contract made time of the essence and the settlement date had passed, it was entitled to terminate the contract. By 25 May 2022, when WPMR purported to terminate the contract, time was no longer of the essence. Both parties had allowed the date for completion to pass without tendering performance.  As such, they have waived the essentiality of the requirement as to time of performance. The emails post settlement date from Mr Jade on 4 May 2022 enquiring if the parties might “rescind the [HOA] between the parties by agreement” and on 5 May 2022 enquiring as to IMMIX’s steps to procure the lease indicate that WPMR no longer regarded time being of the essence under the contract.  
Prevention principle 
433	The prevention principle provides if a party has prevented the other party from complying with their contractual obligations, then they cannot rely on a consequent breach by them as a ground for terminating or seeking damages.  
434	WPMR contends that there was no prevention by the WPMR in its actions in dealing with or not dealing with the landlord which operate to prevent reliance upon GC 8.8 and the right to terminate, and which was given to both parties, for failure of the landlord's consent.  
435	WPMR relies on the Court of Appeal decision in Bensons Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd in which Bensons and Key Infrastructure Australia (“KIA”) entered into a Development Management Agreement, where KIA was responsible for securing a planning permit by a specified date (the “sunset date”). Bensons agreed to pay KIA a management fee contingent on obtaining the permit. The issue for determination was whether Bensons breached an implied duty to cooperate with KIA in securing the planning permit, thus invoking the prevention principle. The Court held that Bensons’ actions did not impede KIA’s performance of the contract.   
436	WPMR relied on the landlord’s description of Mr Suggate as “aggressive”, “threatening” and “harassing”. It refers to Ms Sutton’s email dated 7 May 2022 at and its reference to “aggression” (paragraphs 11 and 12), “threaten” (paragraph 6), “mansplain” (paragraph 2) and “nasty email” (paragraph 8). WPMR contends that IMMIX “poisoned the well” and meant it was impossible and/or unreasonable for WPMR to go back to obtain the consent of the landlord to the transfer of the existing lease and IMMIX also had not provided the requisite financial material.  WPMR argues that the idea that the tenant would lodge a landlord and tenants summons to force the landlord is not sensible in light of the lack of information provided.
437	WPMR says that the prevention principle operated in its favour as it was impossible for them to transfer the existing lease.  
438	IMMIX submits that, in circumstances where the landlord was refusing to agree to IMMIX as a tenant, and where WPMR was the only party who had a right to compel the landlord to consent, it was WPMR’s failure to exercise that right that prevented fulfilment of the condition of transfer of the lease. IMMIX contends that WPMR cannot now take advantage of its own failure to exercise its right under the lease to compel the landlord to consent to an assignment of the lease by relying on GC 8.8 and the landlord’s failure to consent as the non-fulfilment of a contingent condition.  IMMIX asserts that WPMR cannot take advantage of its own wrong.  
439	For the reasons that follow, I agree with IMMIX that WPMR’s contentions that it was entitled to terminate the contract for breach by IMMIX because termination under GC 8.8 was not available when the failure of the relevant condition precedent was due to WPMR’s own failure to fulfil its contractual obligation to obtain a transfer of the lease or a new lease.  
440	It was WPMR’s failure to fulfil its obligation under GC 8.1 of the LIV contract that caused the failure of the condition precedent that the landlord consent to an assignment of the lease or a new lease. As I have set out in my anterior factual findings above, WPMR:
(a)	took no step to encourage the landlord to accept IMMIX as a tenant;
(b)	acceded to the landlord’s direction to “stay out of it”;
(c)	did not inform the landlord that WPMR was bound to sell to IMMIX;
(d)	expressed to the landlord that it was ambivalent about selling to IMMIX;
(e)	ultimately told the landlord that it did not wish to sell to IMMIX; and 
(f)	did nothing after Ms Reece Jones’ formal demand that WPMR exercise its rights under the lease sent on 5 May 2022. 
441	Even if IMMIX was in breach of the contract, WPMR cannot accept a supposed repudiation by IMMIX when it was in breach of its own duty to obtain a transfer of the lease or a new lease and was unable to complete the contract itself.  WPMR’s failure to fulfil its obligations under GC 8.1 of the LIV contract precludes it from terminating the contract and taking advantage of its own wrong.
442	Similarly, the fact that IMMIX did not produce a deed of transfer of lease does not assist WPMR in its contention that it was entitled to terminate the contract pursuant to GC 8.8, or for breach by IMMIX. The landlord’s refusal to accept IMMIX as a tenant would have made any such production moot. The law does not require a person to perform a futility.
Relief sought
443	IMMIX relied on the High Court decision of Dougan v Ley in support of its contention that the Court ought to order relief in the form of specific performance. In that case, the High Court considered whether specific performance (a Court order to perform the contract) should be granted for the sale of the taxi and its license, or if damages (monetary compensation) would be sufficient. The Court held that the taxi license was considered a unique chattel of special value, and there were very few taxi licenses available at the time, therefore, monetary damages would not be an adequate remedy. This case is significant as it establishes that specific performance can be granted for the sale of unique chattels where damages would not suffice.  
444	I accept, applying the principles set out in Dougan v Ley that the business in the present case is unique, and that specific performance of the contract ought to be ordered.  
Conclusion 
445	Accordingly, for the foregoing reasons, I am satisfied that specific performance of the Contract ought to be ordered.  
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Certificate
I certify that these 100 pages are a true copy of the judgment of Her Honour Judge Burchell delivered on 7 October 2024.
Dated: 7 October 2024 
Alexandria Peck
Associate to Her Honour Judge Burchell