[1] On 6 June 1828, the then Colonial Secretary, Alexander McLeay, sent a letter to Captain Patrick Logan, who was the commandant of the Moreton Bay Penal Settlement, advising that:

'as the numbers on the settlement will be materially increased within a short period, you will be pleased to take steps for extending the land in cultivation, it being important on every account that the government should be relieved from the trouble and expense of sending supplies of this nature from hence'.

[2] To support the growing settlement, which had moved from Redcliffe, in 1825, to what is today's Brisbane CBD, a windmill was built, in October of 1828.The windmill, now known as the Old Windmill, Brisbane, is situated adjacent to Wickham Park at 226 Wickham Terrace, Spring Hill.The position of the windmill meant it rarely worked by catching the breeze, so its main source of power was through a treadmill, operated by convicts, serving 14-hour shifts, as punishment.

[3] The windmill was heritage listed in 1992, and today is the oldest surviving European building in Queensland.In January 2021, the Queensland State Government put the building up for sale, and sold it to Mr Barry Frawley, who was the fifth great grandson of Martin Frawley. Martin was a miller and ex-convict who operated the windmill in the 1830's.Barry's intention was to renovate the mill into an exclusive bar and restaurant.

[4] Mr Frawley engaged an engineer who reported a number of external and internal structural issues that needed attention, before Mr Frawley could even begin to renovate the interior of the building. Of course, all construction would need to be done in accordance with the heritage listing rules specified for the Old Windmill.

[5] In late March 2021, Mr Frawley researched a number of possible local stonemasons who could be engaged to repair the external and internal stone walls of the building. He finally settled on three possible masons and invited them all to inspect the site and give him a quote. One of the masons, Ms Mary Tiffin, who lived on the Sunshine Coast, inspected the site, on April 12, 2021.

[6] Ms Tiffin spent a couple of hours inspecting the building, which she had actually never seen before.Ms Tiffin had worked as a mason in Sydney for 20 years and then, in 2018, she went through what she said was a "messy divorce."She did not handle the divorce very well and became addicted to anti-depressant drugs.In the end, she decided the best thing was to escape, "the madness of Sydney life," so, in 2019 she sold her very successful masonry business and semi-retired to the Sunshine Coast.She then established a new masonry business where she worked three days a week.

[7] Mr Frawley, who had always been interested with Australia's history of stone architecture, was fascinated by the different buildings she had worked on in Sydney.Mr Frawley was so impressed with Ms Tiffin that he offered her the job on that day. The next day, over lunch at Sam's on Edward, a restaurant overlooking the Old Windmill, the two discussed Mr Frawley's plans for the windmill, as well as other topics.

[8] The Windmill had been made from both Sydney Sandstone, on the inside, and Helidon Sandstone, sourced from Helidon, west of Brisbane, on the outside. While there are different varieties and colours of the two stones, the types chosen were so similar in colour that Mr Frawley had not actually noticed the difference.Mr Frawley said that, under the heritage listing rules, the exact, original materials were not actually required, but he wanted all the original materials used so he could advertise the building to be in the exact same condition it was almost 200 years ago.

[9] At one point during the lunch, a song was played over the restaurant sound system.The song was the same one Ms Tiffin had chosen for her bridal waltz on her wedding day.So many memories came flooding back to her that she felt quite dizzy.Mr Frawley tried to ask her if she was okay, but she excused herself and went to the bathroom.While there, she took medication that was prescribed to her by her doctor.While she had been taken off the strong anti-depressant drugs she was once on, the medication she now took was quite strong and tended to affect her concentration and mood.

[10] Two days later, the parties entered a verbal agreement for the internal and external stone restoration of the Old Windmill, for a cost of $100,000 for labour and an estimated cost of $200,000 for materials. It was agreed the parties were under no obligations until a formal contract was signed, once a proper costing and contract price could be decided upon. Over the next two weeks, Ms Tiffin organised her plans and sourced materials, as well as having a number of discussions with the Queensland Heritage Council regarding the restoration.

[11] During this time, Ms Tiffin and Mr Frawley spent time together, going to lunch or dinner, the movies as well as wandering around Brisbane admiring and discussing the many stone buildings. On more than one occasion, Ms Tiffin had felt very dizzy and seemed somewhat confused.When queried on her health, she told Mr Frawley her doctor was currently changing her medications and it was taking a while to adjust.She did not want to make him think she was very sick, as she felt she was falling in love with him and was worried he might think less of her.

[12] On April 28, the parties met at the Old Windmill where Ms Tiffin was going to set out her final plans and discuss with Mr Frawley issues raised by the Queensland Heritage Council.Ms Tiffin was accompanied by Robert Dixon, a surveyor who often worked for Ms Tiffin.At one stage, when Ms Tiffin was feeling a little unwell and had gone to her car to get a drink, Mr Frawley asked Robert if he knew about any illness Ms Tiffin had. Robert said she had had her ups and downs but thought she was getting better over the past few months, "especially since she started this Old Windmill job."

[13] At the meeting, Ms Tiffin explained some issues the Queensland Heritage Council had brought up which meant some of the materials and methods she was to use in the restoration, needed to be adjusted.There was also an issue with the price of materials which had been on the increase in the construction business since the Covid 19 pandemic began. Mr Frawley confided in her that this was not good news as he was also having an issue with his bank who were reluctant to loan him any more money for the project, after they financed his purchase of the windmill from the state government.

[14] Thinking they could both do with a break from these stresses, and the fact the NSW Government had recently allowed flights in and out of Sydney after a 4 week lock down in April, Ms Tiffin suggested they take a weekend off and go to Sydney together where she could show him around some of the best stone architecture in Australia.Mr Frawley said he was worried about the cost, but Ms Tiffin said she would pay, and was happy to, as she was financially very well off after the sale of some investments a few months ago.Mr Frawley accepted, happy to get away, although he was becoming a little tired of looking at stone buildings not his own.

[15] The weekend away went very well for Ms Tiffin although she still suffered the odd light headedness and confusion. She felt very comfortable with Mr Frawley and felt she was in love again and expressed this to him by buying him gifts, while in Sydney, which included a Breitling watch for $11,000, and a new iPhone 12, after he accidently dropped his phone in the harbour. Mr Frawley was clear in his mind that Ms Tiffin was falling for him. While Mr Frawley very much enjoyed her company, he was not convinced his feelings were as strong as hers.While he tried to refuse her offers of the gifts, he also realised how much it meant to her to buy them for him, so he accepted them, wishing not to offend her.

[16] A week after they had got back to Brisbane, Ms Tiffin was able to finalise the cost of the work.Unfortunately, the final cost was to be $600,000.Mr Frawley was a little shocked but took it in his stride, saying he would talk to the bank the next day, and that he was sure he could squeeze them for a little extra, considering it is for the restoration of such an iconic building.

[17] The next night, May 11, Ms Tiffin received a phone call from a distressed Mr Frawley who told her the bank had refused to extend the loan beyond the $300,000 they had previously agreed."I have spoken to the manager, and he has pulled the pin.?? A Royal Commission into their dogy practices and nothing ever changes.ASIC is useless.They have ruined all my plans, dreams, and hard work on this project.Why I ever thought I could do something useful for me and the people of Brisbane is beyond me.I can hear my ex-wife's words in my ears still today...'you can't achieve anything useful, Barry.Never have, never will.'The whole project was madness.Maybe I will steal a bulldozer and push the windmill into the river and see what the bank says about that!"

[18] Ms Tiffin immediately spoke to her bank manager, who happened to live around the corner from her, at Mooloolaba. She was thinking of helping out Mr Frawley by reducing the contract price but, while she was well off, she was still concerned it would mean selling some investments in a climate where such as sell off would not be wise.Her bank manager generally told her the same thing; while she could take the hit, she would need to sell some investments which would probably sell at a below optimal price.

[19] After sleeping on the advice, she went to see Mr Frawley and told him she would be able to reduce the contract price to the $300,000 he was able to borrow from the bank. Mr Frawley was speechless, hugging and kissing her, as a sign of his gratitude. The next day they signed a contract for $300,000.

[20] Ms Tiffin spent much of the next month working on the building.She started with the exterior of the building where she was using the Helidon Sandstone.On May 25, she received a phone call from her Sydney Sandstone supplier who told her, due to the shutdowns and the spread of Covid, it would be impossible to get the sandstone to Brisbane anytime this year.The only way would be to cancel some other contracts, and that would mean Ms Tiffin would have to pay an extra $100,000 for the stone.

[21] Deciding this was too much for her to pay, considering she was already running the contract at a loss, she decided to source the stone from Helidon instead.They were practically the same and, while not the original stone used in the inside, no one except an expert would be able to tell.She decided to not tell Mr Frawley as he was already stressed enough re the cost of the project.

[22] By early June the outside reservations were complete, and the inside was half completed.Mr Frawley was having the work inspected by the Queensland Heritage Council inspector, James Warner.James was very impressed with the work.As he was leaving, he stated to Mr Frawley, "I see you decided to go with the Helidon Sandstone inside as well.Probably a better choice. Not what was originally used but those early builders probably made a mistake.The Helidon is stronger and more versatile and will mean less repairs in the long run."

[23] Mr Frawley was furious and rang Ms Tiffin straight away.Ms Tiffin's explanations did nothing to calm him down.Mr Frawley went to see his lawyers to see if he could get out of the contract, but they told him there was no express termination clause he could rely on. That night, after reading the contract closely, Mr Frawley discovered clause 40 that stated:

Clause 40:The Principal has the right to a 10% reduction in the contract price for any breach of the contract that relates to the materials used, in accordance with the contract specifications and the Queensland Heritage Council's rules.

The contract clearly stated Sydney Sandstone was to be used inside the building and this had not been done.

[24] Mr Frawley phoned Ms Tiffin, explaining the issue, but Ms Tiffin said she had dealt with these contracts for years, and what the clause meant was, there would only be a 10% reduction if there was a breach, and the Heritage rules were broken.Here, the Queensland Heritage Council did not require the exact type of sandstone to be used but that sandstone, was used.

[25] Mr Frawley told her she was incorrect.The first half of the contract price was due in five days and amounted to $100,000.Mr Frawley said he would not be paying the $100,000 but just 90% of that amount.Ms Tiffin spoke to her lawyer who sent a letter stating Ms Tiffin was expecting the full $100,000 to be deposited in the relevant account on the due date.

[26] Mr Frawley, who at this stage was also having an issue with the Queensland Heritage Council regarding the interior renovations of the floors and piping, was angered by the letter from the lawyers.

[27] Mr Frawley immediately sent her an e..n@TiffinStone.com.au

Subject: 10% Discount

Dear Ms Tiffin,

Thanks for setting the lawyers onto me.I have been so nice to you, going to dinners, accompanying you to Sydney, putting up with your illness and this is what you do when I am simply relying on a contract you signed.You know I am strapped for cash, and you are rich.Well, thanks a lot.I am paying $90,000 this week and then $180,000 in a month for the final instalment. End of story!It is pathetic that you would breach the contract the way you did, lie to me about the stone, and not cough up a fair amount, as stated in the contract, for your failures.

Plus, I want the Helidon removed from the inside and replaced with Sydney Sandstone, AS PER THE CONTRACT.And I am taking the 10% discount.

Mr Frawley.

[28] Ms Tiffin thought of sending an email back but decided better of it.She was completely guttered he was treating her this way after what she did with the contract price and holiday to Sydney.She really thought they were hitting it off, but now she was devasted and wanted no more to do with the contract. She just could not understand his position since she had done such a good job, and the fact that basically one in a million people would have any idea the stone was originally from Sydney but now is from Helidon. Plus, the value of the building would now be twice what he paid for it. The next day she instructed her lawyers to contact Mr Frawley, telling him she was terminating the contract.The letter stated:

Dear Mr Frawley,

Tiffin Stone is ready, willing and able to conclude their obligations under the contract, except for the use of Sydney Sandstone on the interior of the building, as the Covid situation has made the stone unavailable. However, since it is your intention not to pay the full amounts owing, Tiffin Stone is terminating the contract for your repudiation.

[29] Mr Frawley was outraged. He immediately rang a very good friend who often gave him financial advice, so he could vent some anger. "I cannot believe what has gone on.I am over the whole affair. I am going to put the property back on the market, sue her for damages to get the stone replaced, which I have been told will cost $150,000, and take the cash and have a year off in the Bahamas!"

Is Tiffin Stone allowed to terminate the contract on the basis that Mr Frawley repudiated the contract?