Delaware North v AAPC Australia

[2003] NSWSC 223

CITATION:	Delaware North v AAPC Australia [2003] NSWSC 223
HEARING DATE(S):	24/03/03, 25/03/03
JUDGMENT DATE:	31 March 2003
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Barrett J
DECISION:	Short minutes to be brought in
CATCHWORDS:	CONTRACTS - construction and interpretation of contracts - no question of principle
CASES CITED:	Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Re Rotherham Alum and Chemical Company (1883) 25 ChD 103
PARTIES :	Delaware North (Australia) Pty Limited - First Plaintiff AVS Catering Pty Limited - Second Plaintiff AAPC Australia Pty Limited - First Defendant Michael Issenberg - Second Defendant Kim John Mooney - Third Defendant AAPC Limited - Fourth Defendant
FILE NUMBER(S):	SC 50113/01
COUNSEL:	Mr N C Hutley SC/Mr J R J Lockhart - Plaintiffs Mr A J L Bannon SC/Mr J Stoljar/Mr J A C Potts - Defendants
SOLICITORS:	Blake Dawson Waldron - Plaintiffs Gilbert & Tobin - Defendants

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

BARRETT J

MONDAY, 31 MARCH 2003

50113/01 – DELAWARE NORTH (AUSTRALIA) PTY LIMITED & ANOR v AAPC AUSTRALIA PTY LIMITED & 3 ORS

JUDGMENT

1 The controversy in these proceedings arises from a formal agreement entitled “Unit Holders Agreement” dated 24 March 1993 to which there are five parties. The first party is AAPC Australia Pty Limited (formerly Accor Australia Pty Limited), the first defendant. It is referred to in these reasons as “AAPCAust”. The second party is Delaware North (Australia) Pty Limited (“Delaware”), the first plaintiff. The third party is AVS Catering Pty Limited (“AVS”), the second plaintiff and a wholly owned subsidiary of Delaware. The fourth and fifth parties are respectively Australian Convention & Exhibition Services Pty Limited (“ACES”) and Darling Harbour Convention & Exhibition Pty Limited (“DHCE”), the latter being a wholly owned subsidiary of the former. The first three parties – AAPCAust, Delaware and AVS – are designated “the Unit Holders” since they were the holders of all of the units in two unit trusts, one known as the “ACES Trust” constituted by a trust deed dated 23 October 1992 under which ACES was trustee and the other known as the “DHCE Trust” constituted by a trust deed of the same date under which DHCE was trustee. The three unit holders – AAPCAust, Delaware and AVS – also held all the shares in ACES which, as I have said, in turn held all the shares in DHCE.

2 As its title and parties imply, the Unit Holders Agreement recorded a compact among the trustees of the two unit trusts and the holders of the totality of the units of those unit trusts regulating the affairs and operations of the trusts. It is relevant to note that the units in each unit trust were held as to 51% by AAPCAust and 49% by Delaware and its subsidiary AVS (with each holding 24.5%), these being also the percentages in which the same parties held the shares making up the whole of the issued capital of ACES. Although dated 24 March 1993, the Unit Holders Agreement was expressed to take effect from an earlier date, being 26 October 1992. As will be seen, that is the date on which certain contractual commitments had been accepted by ACES and DHCE.

3 In substance, ACES and its wholly owned subsidiary DHCE, together with the two trusts of which they were the trustees, were the elements of a composite business structure owned as to 51% by AAPCAust (itself a wholly owned member of a corporate group of which the ultimate holding company was the French hotel and hospitality corporation, Accor SA) and as to 49% by Delaware and its wholly owned subsidiary (which were Australian subsidiaries of the United States food services and catering corporation, Delaware North). The 51%/49% ownership on the part of AAPCAust and Delaware caused the structure to have features of a joint enterprise and no doubt gave rise to a perceived need for the relationship to be regulated by a contract such as the Unit Holders Agreement.

4 The enterprise in which the Accor party (being AAPCAust) and the Delaware parties became associated through this structure had as its immediate purpose the operation and management of the Sydney Convention and Exhibition Centre which I shall call the “Sydney Centre”, that being the description given to it by the Unit Holders Agreement. The agreement also contemplated the possibility of the parties becoming involved together in other centres of a similar kind. Its provisions, while dealing specifically with the Sydney Centre, were also designed to accommodate extension of the enterprise to other centres.

5 The Sydney Centre is an extensive complex consisting of an exhibition centre, a convention centre, a link building, a car park and a service area situated on the foreshores of Darling Harbour. At the time the joint enterprise was formed, the Sydney Centre was owned by the Darling Harbour Authority, a statutory body which has now been superseded by the Sydney Harbour Foreshore Authority. As there is no need to distinguish between the two and nothing turns on the process of succession, they will be referred to together as “the Authority”.

6 The functions of operating and managing the Sydney Centre were regulated by a document entitled “Management Deed” entered into on 26 October 1992. The parties to that deed were the Authority, ACES, DHCE, Delaware, AAPCAust and AVS. Under the deed, the task of operating and managing the Sydney Centre was undertaken by ACES and DHCE which were together appointed by the Authority as “the sole operators and managers of the Centre on the terms of this Deed”. The deed designated ACES ”the Contractor” and DHCE “the Manager” and, while both were the subject of the appointment, certain provisions imposed particular obligations on one or the other of them specifically. The appointment was expressed to be for a term commencing on 1 May 1993 and ending on 1 May 1998, subject to the possibility of earlier termination in accordance with the deed itself. The term was later extended.

7 The appointment of ACES and DHCE as contractor and manager in relation to the Sydney Centre expired on 31 December 2001. The Authority appointed as manager of the centre, as from 1 January 2002, a consortium made up of Eurest (Australia) Support Services Pty Limited (“Eurest”), AAPC Limited (“AAPC”) (which is the fourth defendant) and Centre and Exhibition Services Pty Limited (“CCM”), a company owned by Eurest and AAPC. AAPC is the immediate holding company of AAPCAust and another wholly owned member of the group of which Accor SA of France is the ultimate holding company. Eurest is an Australian subsidiary of Compass Group PLC, a United Kingdom food services company.

8 As of 1 January 2002, therefore, an AAPC/Eurest consortium replaced the AAPCAust/Delaware consortium as manager of the Sydney Centre. The appointment of the AAPC/Eurest consortium resulted from a tender conducted by the Authority. The closing date for bids was 31 July 2001. The AAPC/Eurest consortium was the successful bidder. ACES and DHCE, being the companies owned by AAPCAust and Delaware, did not submit a bid. Delaware (and its wholly owned subsidiary, AVS) attempted to put in train steps to have the matter of formulation and submission of a bid considered by the decision making organs of ACES and DHCE but, in the end, inaction or opposition by AAPC and AAPCAust meant that the matter was not considered and no decision was made. In fact, at a meeting of the members of ACES requisitioned by the Delaware parties, AAPCAust used its majority voting power to defeat resolutions proposed by the Delaware parties with a view to compelling ACES and DHCE to proceed with the formulation of a bid. AAPC was, at the same time, active in formulating and progressing with Eurest the joint bid that was eventually successful. AAPC and AAPCAust were open with Delaware in expressing a wish not to be involved with it in attempts to obtain renewal of the pre-existing joint management arrangement. AAPC wrote to Delaware on 4 June 2001 saying that it intended to proceed alone.

9 Delaware and its wholly owned subsidiary AVS contend, as plaintiffs, that the conduct of AAPCAust in not joining and co-operating with them to seek a further appointment of ACES and DHCE as operator and manager of the Sydney Centre entailed breach by AAPCAust of the Unit Holders Agreement. They sue for breach of contract accordingly. By their amended summons, Delaware and AVS also asserted, as plaintiffs, claims on a number of other bases. Before the hearing began, however, they indicated (and Mr Hutley SC confirmed in his opening) that they no longer maintained any of their other claims against AAPCAust as first defendant and that only two of the claims in the amended summons were pursued, namely, the breach of contract claim against AAPCAust alone and a claim against AAPC based on alleged interference by it with contractual relations between the plaintiffs and AAPCAust.

10 In the course of the hearing, a further narrowing occurred. The defendants sought to tender new evidence going to quantum of damages. The plaintiffs submitted (and the defendants accepted) that time would be needed to consider the new evidence and possibly to seek to answer it. Upon my indicating that I would not reject the new evidence on the ground of its lateness and was prepared to entertain an adjournment application to give the plaintiffs the time they required, I was asked to make by consent (and did make) an order under Part 31 rule 2(a) of the Supreme Court Rules that certain of the issues raised in the amended summons and the defence be determined separately from and before the determination of any other issue in the proceedings. Those issues are liability issues only, confined to the question whether the first defendant (AAPCAust) has been guilty of breach of contract. This judgment deals solely with those issues and reflects my decision on the question the subject of the order for separate determination.

11 The plaintiffs’ breach of contract claim against AAPCAust is based wholly on express terms of the Unit Holders Agreement. The plaintiffs expressly disavowed resort to any implied term. The provisions on which the plaintiffs focus are clauses 2.1, 6.1, 6.2, 13.1(b), 13.6(e) and 13.7. Those clauses are as follows:

“2.1 The Unit Holders agree that they will participate in any Project as the holders of Units in the ACES Trust and as a party to this agreement. The obligations of the Unit Holders in relation to any Project or under this agreement shall be several, and not joint or joint and several.”
“6.1 The Unit Holders agree to use their best endeavours to procure ACES and DHCE to implement and carry out each Project.”
“6.2 The Unit Holders agree that where practicable, all contracts which are to be entered into by the Unit Holders relating to any Project shall be entered into by ACES or DHCE or as determined by the Unit Holders.”
“13.1 Each Unit Holder, ACES and DHCE must:
…
(b) be just and faithful to each other and at all times promptly and fully give to the other Unit Holders all information and truthful explanations of all matters relating to the affairs of any Project, and afford every assistance in its power in carrying on the Project;”
“13.6 Notwithstanding any other provisions herein contained no Unit Holder can, without the consent of all Unit Holders (except as may be expressly authorised or required by this agreement):
…
(e) enter into any contract or incur any liability in connection with any Project except as agreed by all Unit Holders from time to time.”
“13.7 The provisions of this agreement shall in no way restrict or prohibit a Unit Holder from carrying on business which it may do in the normal course of such business PROVIDED THAT in doing so that it duly and punctually observes and complies and at all times continues to observe and comply with its obligations under this agreement.”

12 The term “Project” plays a key role in these provisions. It is defined by clause 1.1 as follows:

“’Project’ means the operation and maintenance of such Centres pursuant to a Centre Management Agreement as the Unit Holders agree from time to time, including the Sydney Centre pursuant to the DHA Management Deed.”

13 The terms “Centre”, “Centre Management Agreement”, “Sydney Centre” and “DHA Management Deed”, each of which appears in the definition of “Project”, are also defined by clause 1.1. The definitions are:

“’Centre’ means the Sydney Centre, and any other exhibition and convention centre which the Unit Holders agree will be a ‘Centre’ for the purposes of this agreement.”
“‘Centre Management Agreement’ means the DHA Management Deed and any other deed or agreement in relation to the management and operation of a Centre.
“‘Sydney Centre’ means the Sydney Convention & Exhibition Centre as referred to in the DHA Management Deed.
“‘DHA Management Deed’ means the deed so entitled dated 26 October 1992 between DHA, the Unit Holders, ACES and DHCE as varied by an amending deed dated 1 March 1993.”

For reasons that will become apparent in due course, it is also pertinent to set out part of the clause 1.1 definition of “Project Expenses”:

“’Project Expenses’ means all moneys expended for, or in connection with a Project including, without limitation:
(a) all costs and expenses incurred in connection with tendering for and obtaining all consents and approvals required, for a Centre;”

14 The plaintiffs’ main contention is that clauses 2.1, 6.1 and 6.2 – or one or more of them – operated in such a way as to require AAPCAust to join with Delaware and AVS in submitting a bid through ACES and DHCE when the Authority called for tenders for the management of the Sydney Centre for the period beginning 1 January 2002 – or, at least, to negotiate with a view to formulating and submitting such a bid. That contention is advanced on the basis that such action was within the scope of a “Project” as defined and that the taking of the action was required by provisions concerning a “Project”. The Sydney Centre is, it is said, expressly recognised as a “Centre” and its recognition or designation as a “Centre” is permanent and immutable, this being the effect of the first five words of the definition of “Centre”: “’Centre’ means the Sydney Centre …”. “Project” therefore includes operation and maintenance of the Sydney Centre pursuant to a deed or agreement relating to its management and operation (i.e., a “Centre Management Agreement”). The deed or agreement is not necessarily one already in existence, so that “Project”, so far as it relates to the Sydney Centre, extends to the process of seeking to have such an agreement put in place, the formation of an agreement under which the Sydney Centre is to be operated and maintained being an aspect of its operation and maintenance.

15 In support of the approach thus advocated, the plaintiffs point to aspects of the definition of “Project Expenses” in clause 1.1. They note that, by virtue of para (a) of that definition, costs associated with tendering for a “Project” are included in “Project Expenses”. This, the plaintiffs say, is an indication that the process of tendering, which necessarily occurs before there is any management agreement in relation to a particular centre, is part of the “Project” involving that centre.

16 With the “Project” concept thus understood in relation to the Sydney Centre, the plaintiffs say that there was a contractual obligation upon AAPCAust, Delaware and AVS under clause 2.1 to “participate” in that aspect of a “Project” relating to the Sydney Centre that entails attempts to have a management agreement put in place, while the promises in clause 6.1 concerning best endeavours to implement and carry out each “Project” extend, in the case of the Sydney Centre, to that same aspect. The same argument is advanced in relation to the aspect of clause 13.1(b) concerning “carrying on” of a “Project”, with what might be termed the management acquisition aspect of the “Project” involving the Sydney Centre therefore being comprehended by the parties’ “carrying on” obligation. The plaintiffs maintain that the same concept of “Project” in relation to the Sydney Centre leads, via clause 13.6(e), to the conclusion that it is not open to one Unit Holder to enter into a contract in connection with any new arrangement for the management of the Sydney Centre unless all Unit Holders agree to its doing so.

17 The defendants do not accept this as reflecting the correct construction of the Unit Holders Agreement. They say, quite simply, that the position for which the plaintiffs contend is not warranted by the words used.

18 I proceed to my own analysis of the provisions in question. Under those provisions, a particular task, assignment or course of conduct is not properly to be regarded as a “Project” unless it is

a) “operation and maintenance” of the Sydney Centre pursuant to the “DHA Management Deed”; or

b) “operation and maintenance” of the Sydney Centre pursuant to a deed or agreement, not being the “DHA Management Agreement”, which is a “Centre Management Agreement”; or

c) “operation and maintenance” of some convention and exhibition centre which is not the Sydney Centre but is agreed by the unit holders, being operation and maintenance pursuant to a deed or agreement which is not the “DHA Management Agreement” but is a “Centre Management Agreement”.

19 It can be said at once that nothing in the “DHA Management Deed” requires or contemplates action by ACES or DHCE or both to seek re-appointment after their tenure under the deed comes to an end. Any such action they might take in that direction therefore could not be regarded as being “pursuant to” the “DHA Management Deed”, with the result that there is no basis on which that action could be said to be within paragraph (a) above. I might say that I do not understand the plaintiffs to have argued otherwise.

20 The only basis on which there could be a “Project” involving the Sydney Centre that did not entail actions and activities “pursuant to” the “DHA Management Deed” is that emerging from paragraph (b) above. But for such a “Project” to exist, there would have to be “a deed or agreement in relation to the management and operation of” the Sydney Centre “pursuant to” which the “operation and maintenance of” that centre was (or was to be) conducted. At the core of a “Project” lies “operation and maintenance” of a centre “pursuant to” some relevant deed or agreement, being a deed or agreement “in relation to the management and operation of” that centre. It follows that, unless and until one can identify a deed or agreement concerned with “management and operation” of a centre “pursuant to” which the “operation and maintenance” of that centre are to be undertaken, it is not possible to say that there exists a “Project” involving that centre. Having regard to the potential width of the word “agreement”, it may be that a formal contract will not have been executed, but the “agreement” must nevertheless exist in some form that makes it possible for it to be regarded as a consensus as to “management and operation” “pursuant to” which the tasks of “operation and maintenance” are to be performed.

21 Bearing in mind that the abstract noun “Project”, used in the defined sense given to it by the Unit Holders Agreement, takes its meaning wholly from the abstract nouns “operation and maintenance” used in their ordinary and unelaborated sense and that the phrase “operation and maintenance” is linked by the preposition “of” to “Centre” (a physical object in the nature of a building or collection of buildings housing particular activities), it is clear that it is “operation and maintenance” that is the subject matter of the obligations arising from clauses 2.1 and 6.1. The obligation under clause 2.1, which is cast as an obligation to “participate in” a “Project”, is an obligation to “participate in” the “operation and maintenance” of a particular building or collection of buildings housing particular activities. Similarly, the obligation under clause 6.1 to use best endeavours to procure ACES and DHCE to “implement and carry out” a “Project” is an obligation to use best endeavours to procure those companies to “implement and carry out” the “operation and maintenance” of a particular building or collection of buildings housing particular activities.

22 It is instructive to look at the dictionary definitions of “operation” and “maintenance”. Of the several meanings of “operation” given in “The New Shorter Oxford English Dictionary” (1993 edition), the following are the most apposite in the present context:

“4b A business transaction, esp. of a speculative kind. Also a business concern or enterprise.”
“10 The action of operating a machine, business etc.”

23 Of the several meanings of “maintenance”, the following is the one relevant here:

“5 The action of keeping something in working order, in repair, etc; the keeping up of a garrison, building, etc, by providing means for equipment etc; the state or fact of being so kept up; means or provision for upkeep”.

24 A reference to “operation and maintenance” of a building or collection of buildings housing particular activities is thus a reference to things done in, about and in relation to the building or collection to make it function and to keep it in working order. The relevant acts are centred upon the physical asset, the activities for which it is intended and things necessary or desirable to ensure that the physical asset can fulfil its purpose of allowing those activities to be undertaken. The clause 2.1 concept of “participate” and the clause 6.1 concept of “implement and carry out” are quite intelligible when related to the kinds of acts that thus make up “operation and maintenance” in relation to a “Centre”.

25 The same analysis holds good in relation to the clauses 13.1(b) and 13.6(e). The express contractual duty of fidelity imposed by clause 13.1(b) is clearly qualified so as to be operative only in relation to a “Project”. Commercial operators prone to compete with one another would not accept contractual duties of fidelity at large unconnected with some defined enterprise. The reference to “Project” in clause 13.1(b) provides the connection producing the expected limitation. Likewise, the obligation in clause 13.6(e) not to enter, without consent (or as agreed), into any contract is limited by the words “in connection with any Project”. In each case, the contractual constraint is related to actions that form part of the “operation and maintenance” of a “Centre” as a building or collection of buildings housing particular activities (that being a “Project”) and are performed “pursuant to” a deed or agreement that is a “Centre Management Agreement”.

26 Actions directed towards obtaining or renewing contractual rights to operate and manage a building or collection of buildings constituting a “Centre” are not actions comprehended by the “operation and maintenance” of the “Centre” in the sense already discussed. They are actions antecedent to and distinct from such “operation and maintenance” and accordingly do not form part of the “Project” consisting of the “operation and maintenance” of the “Centre”.

27 The plaintiffs argue, as I have said, that the reference in the definition of “Project Expenses”, as it relates to any “Project”, to costs and expenses incurred “in connection with tendering for … a Centre” shows that “tendering for … a Centre” is an acknowledged aspect of “Project”. I do not accept that argument. The definition of “Project Expenses” cannot influence the clear and specific content of the definition of “Project”. The relevant part of the definition of “Project Expenses” is no more than a reflection of the parties’ agreement that, if and when the “operation and maintenance” of a particular centre becomes a “Project” by virtue of circumstances causing it to be brought within the “Project” definition, certain antecedent expenses will become subject to the parts of the agreement in which the definition of “Project Expenses” in relation to that “Project”play a part. It is common in various kinds of ventures for the venturers to acknowledge that expenses they incur individually before the venture’s inception will be taken up and recognised as if incurred in the course of the venture. The constitution of a company, for example, may provide that pre-incorporation expenses incurred by promoters in establishing the company are to be paid by the company: see, for example, Re Rotherham Alum and Chemical Company (1883) 25 Ch D 103. But it by no means follows that the venture itself is thereby acknowledged somehow to encompass the antecedent activities giving rise to the expenses. Such a provision does no more than allocate financial responsibility.

28 It is necessary to refer finally to clause 13.7. That clause recognises or preserves a unit holder’s right to carry on its business in the normal course free from restriction, except that, in so doing, it must observe and comply with its obligations under the agreement. The extent of the exception to a party’s freedom is thus expressed to be co-extensive with the party’s obligations under the agreement. Clause 13.7 therefore does not add anything of present relevance.

29 The construction of the Unit Holders Agreement for which the plaintiffs contend is not, in my judgment, supported by the words of the agreement. The plaintiffs, as I have said, rely wholly on the express terms and do not assert that some term helpful to their case is to be implied. Given what I consider to be the unmistakable meaning of the clear words, there is no basis in the agreement for the plaintiffs’ contention that ACCPAust was under the contractual duties upon which paragraph 42 of the amended summons filed on 19 March 2002 is predicated. It follows that the breaches of contract pleaded in that paragraph 42 have not been made out and that the question the subject of the order for separate determination made in the course of the hearing before me should be answered adversely to the plaintiffs.

30 It remains to comment on one matter that was left outstanding at the conclusion of the hearing. The defendants sought to tender (or more precisely, to have retained as part of the already admitted tender bundle) the documents at pages 142.1 to 142.18 (Tab 11A) and 271.1 and 271.2 (Tab 15A) of Volume 1. The plaintiffs objected on the grounds of relevance. I reserved my decision on the ruling. The purpose of the tender is, according to the defendants, to show a course of negotiations in which a non-competition clause was considered by the parties as a possible part of their agreement but rejected. The first document (Tab 11A) is a draft heads of agreement among AAPCAust, Delaware and AVS the provenance of which is unexplained by the evidence, except for the name of the firm of solicitors appearing on the cover page and a date which together indicate that it was drafted by the solicitors who drafted the Unit Holders Agreement (to which there were two additional parties) and that it was prepared some six months before the execution of the Unit Holders Agreement. The second document (Tab 15A) is a letter dated 14 December 1992 from Mr Sweetman of AVS to Mr Klein of AAPCAust commenting on certain aspects of that heads of agreement, including a non-competition provision. It was submitted by Mr Bannon SC for the defendants that the two documents, although clearly part of the course of negotiation preceding the execution of the written Unit Holders Agreement of 24 March 1993 and therefore in the ordinary course irrelevant to the construction of the unambiguous terms of that agreement, should be admitted on a basis emerging from the following passage in the judgment of Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352-3:

“There may perhaps be one situation in which evidence of the actual intention of the parties should be allowed to prevail over their presumed intention. If it transpires that the parties have refused to include in the contract a provision which would give effect to the presumed intention of persons in their position it may be proper to receive evidence of that refusal. After all, the court is interpreting the contract which the parties have made and in that exercise the court takes into account what reasonable men in that situation would have intended to convey by the words chosen. But is it right to carry that exercise to the point of placing on the words of the contract a meaning which the parties have united in rejecting? It is possible that evidence of mutual intention, if amounting to concurrence, is receivable so as to negative an inference sought to be drawn from surrounding circumstances. See Heimann (1938) 38 SR (NSW), at p. 695.”

31 These submissions proceeded on the footing the construction for which the plaintiffs contended, being a construction that involved a contractual duty of non-competition among the parties to the Unit Holders Agreement when an opportunity to renew management rights in respect of the Sydney Centre arose, should, by reference to the two documents in question, be rejected as inconsistent with the course of pre-contract negotiations. In the result, however, I have not found any indication of such a contractual duty in the words of the contract, so that no occasion for resort to pre-contract negotiations has arisen. In those circumstances, the appropriate course is to rule against the admission of the two documents on the grounds of relevance.

32 In view of my conclusions at paragraph 29 above adverse to the plaintiff’s contentions on the separate question and in view also of the matters mentioned in paragraphs 9 and 10, the appropriate course is to direct that short minutes be brought in to give effect both to those conclusions and to the plaintiffs’ decision not to pursue certain of the claims in the amended summons. Any agreed short minutes are to be filed by delivery to my Associate within fourteen days. If there is no agreement on short minutes, my Associate is to be informed within that period so that directions may be made as to submissions on the orders that should be made.

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Last Modified: 04/01/2003