16-18 July 2018; further submissions 27 and 31 July 2018
10 August 2018
“Mr Dart’s and Mr Murray’s account of the meeting
- I found both Mr Murray and Mr Dart to be impressive witnesses.
- I am not able to come to the same conclusion about Mr Burke. He did not give responsive answers to questions in cross-examination and seemed incapable of distinguishing between what he actually recalled saying and what he now alleges he claims to have meant. Further his evidence as to his alteration of what I describe below as the “Extension Document” reflects badly on his credit.
- Were it necessary to do so, I would have preferred Mr Murray’s and Mr Dart’s evidence to that of Mr Burke.
- However as I have said, even on Mr Burke’s account of it, the Extension Agreement was not on the terms for which he now contends.
Events following the 17 August 2017 meeting
- In cross-examination Mr Burke was asked why he had not drawn to Mr Cole’s attention the changes he made to the Extension Agreement. His response was to refer to the file name of the attachment which read “SPA Extend Cut-Off Date by 6 Months to 30 February 2018” compared to the file name on Mr Crouch’s email of 18 August 2017 (enclosing the original Extension Agreement”) which read “SPA Extend Cut-Off Date by 6 Months to 30 March 2018” (my emphasis). I found that explanation to be disingenuous. A change in the file name was not an appropriate means by which to signal to CPC the change that Mr Burke had, unilaterally, made to the form of the Extension Agreement. In any event, the change was not to nominate “30 February 2018” as the “Extend Cut-Off Date”. The date Mr Burke had inserted was 17 February 2018.
- In addition, Mr Burke had added a purported amendment to the Extension Document described as “agree to budget payments as confirmed between the parties on 17 August 2017”.
- In his affidavit, Mr Burke’s explanation for adding these words was a conversation that he claims he had with Mr Crouch as follows:
“[Mr Burke]: [Mr Crouch], I’ve been reviewing the extension document that Steven signed and sent through. I’ve realised that the extension is too long – the six months should be from 17 August 2017, not from 30 September 2017. That’s the basis upon which the budget has been prepared. The document should also record that the extension is conditional upon the budget being agreed and paid. As I made plain in the meeting, I’m not letting this drag on for another six months if CPC doesn’t pay the required amounts.
- I am cautious about accepting Mr Burke’s evidence about this conversation. At the time Mr Burke swore his affidavit he was aware that Mr Crouch had died.”
Full transcript – https://www.caselaw.nsw.gov.au/decision/5b6beddae4b09e9963071a1c