Kay v Playup Australia Pty Ltd

[2020] NSWCA 33

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Kay v Playup Australia Pty Ltd [2020] NSWCA 33

Hearing dates:

11 September 2019

Date of orders:

04 March 2020

Decision date:

04 March 2020

Before:

Macfarlan JA at [1]
Brereton JA at [2]
Simpson AJA at [132]

Decision:

1. Leave to appeal be granted, and the draft notice of appeal stand as the notice of appeal;
2. Leave to cross-appeal be granted, and the draft notice of cross-appeal stand as the notice of cross-appeal;
3. The appeal be allowed;
4. The amended notice of contention be dismissed;
5. The cross-appeal be allowed;
6. Declarations (1), (2), (3) and (4) made in the Equity Division on 5 July 2019 be set aside, and in lieu therefore the Court declares that:
(a) Subclause 4.3(b)(i) and (ii) of the Share Sale and Purchase Agreement relating to Bestbet.com.au Pty Ltd between the plaintiff (as buyer) and the defendant (as seller) dated 23 March 2018 (“Agreement”), is a penalty and unenforceable and of no effect;
(b) in the events which have happened, the restraints imposed on the defendant by the Agreement, and the restraints imposed on the defendant by the Restraint Deed signed, sealed and delivered by the defendant in favour of the plaintiff on or around 7 June 2018, have not been rendered void ab initio by operation of cl 4.3(b)(i) of the Agreement;
(c) in the events which have happened, the Warranties given by the defendant in the Agreement have not been rendered void ab initio by operation of cl 4.3(b)(ii) of the Agreement.
7. Leave be reserved to either party to apply within 14 days in respect of order (5) made in the Equity Division on 5 July 2019.
8. The appellant pay the respondent’s costs of the application for leave to appeal, the appeal, the application for leave to cross-appeal and the cross-appeal.

Catchwords:

EQUITY – Equitable remedies – Relief against forfeiture – Doctrine confined to proprietary or possessory rights as distinct from mere contractual rights

CONTRACTS – Remedies – Penalty – Doctrine extends beyond payment of a stipulated sum of money to deprivation of contractual rights – Application to deprivation of the benefit of restraint clause and warranties

CONTRACTS – Construction – Interpretation – Dependent and independent obligations – Whether ‘clear words’ are required to find a relation of independency between obligations

Cases Cited:

AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170; [1986] HCA 63
Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30
Arab Bank Australia Ltd v Sayde Developments Pty Ltd (2016) 93 NSWLR 231; [2016] NSWCA 328
Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd (2017) 324 FLR 378; [2017] NSWSC 1230
Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd (2018) 19 BPR 38,569; [2018] NSWCA 114
Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Pty Ltd (2017) 18 BPR 36,683; [2017] NSWCA 99
Ayers Rock SkyShip Pty Ltd (2019) 19 BPR 39,541; [2019] NSWSC 828
BICC Plc v Burndy Corporation [1985] Ch 232
Bishop v Moy [1963] NSWR 468
Bridge v Campbell Discount Co Ltd [1962] AC 600
Burton v Palmer [1980] 2 NSWLR 878
Bysouth v Shire of Blackburn & Mitcham (No 2) [1928] VLR 562
Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis [2016] AC 1172
Chaka Holdings Pty Ltd v Sunsim Pty Ltd (1987) 10 BPR 18,171
Chatfield v Elmstone Resthouse Ltd [1975] 2 NZLR 269
Citicorp Australia Ltd v Hendry (1985) 4 NSWLR 1
Çukurova Finance International Ltd v Alfa Telecom Turkey Ltd (Nos 3 to 5) [2016] AC 923; [2013] UKPC 2
Devefi Pty Ltd v Mateffy Pearl Nagy Pty Ltd (1993) 113 ALR 225
Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79
Esanda Finance Corp Ltd v Plessnig (1989) 166 CLR 131; [1989] HCA 7
Export Credits Guarantee Department v Universal Oil Products Co [1983] 2 All ER 205
Federal Airports Corporation v Makucha Developments Pty Ltd (1993) 115 ALR 679; [1993] FCA 444
Forestry Commission of New South Wales v Stefanetto (1976) 133 CLR 507; [1976] HCA 3
Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689
Gordon Nominees Pty Ltd v JPA Finance Pty Ltd [2019] HCATrans 248
Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285
Hart v Rogers [1916] 1 KB 646
Highfield Property Investments Pty Ltd v Commercial & Residential Developments (SA) Pty Ltd [2012] SASC 165
Hillam v Iacullo (2015) 90 NSWLR 422; [2015] NSWCA 196
Hodder & Tolley Ltd v Cornes [1923] NZLR 876
Huntoon Co v Kolynos (Incorporated) [1930] 1 Ch 528
Interstar Wholesale Finance Pty Ltd v Integral
Home Loans Pty Ltd (2008) 257 ALR 292; [2008] NSWCA 310
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jobson v Johnson [1989] 1 All ER 621
JPA Finance Pty Ltd v Gordon Nominees Pty Ltd (2019) 58 VR 393; [2019] VSCA 159
Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11
Lord Elphinstone v Monkland Iron and Coal Co [1886] 11 App Cas 332
Luu v Sovereign Developments Pty Ltd (2006) 12 BPR 98,203; [2006] NSWCA 40
Marroun v State Transit Authority (2017) 96 NSWLR 295; [2017] NSWCA 273
Masters Home Improvement Aust Pty Ltd v Aventus Cranbourne Thompsons Road Pty Ltd [2019] VSC 428
Milton v Proctor (1988) 4 BPR 9654
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) (2015) 329 ALR 1; [2015] FCA 825
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55
Newcombe v Newcombe (1934) 34 SR (NSW) 446
NSW Rifle Association Inc v Commonwealth (2012) 293 ALR 158; [2012] NSWSC 218
Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28
Proctor v Milton (1987) NSW ConvR 55-321
Ringrow Pty Ltd v BP Australia Ltd (2003) 203 ALR 281; [2003] FCA 1297;
Ringrow Pty Ltd v BP Australia Pty Ltd (2004) 209 ALR 32; [2004] FCAFC 206
Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656; [2005] HCA 71
Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) [1983] 2 AC 694
SCI (Sales Curve Interactive) Ltd v Titus SARL [2001] 2 All ER (Comm) 416
Shiloh Spinners Ltd v Harding [1973] AC 691; [1973] 1 All ER 90
Sport International Bussum BV v Inter-Footwear Ltd [1984] 1 WLR 776
Taylor v Webb [1937] 2 KB 283
Tito v Waddell (No 2) [1977] Ch 106
Vauxhall Motors Ltd (formerly General Motors UK Ltd) v Manchester Ship Canal Co Ltd [2019] Ch 331; [2018] EWCACiv 1100
Vauxhall Motors Ltd (formerly General Motors UK Ltd) v Manchester Ship Canal Co Ltd [2019] 3 WLR 852; [2019] UKSC 46
Vinden v Vinden [1982] 1 NSWLR 618
Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191
Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551
Yorkbrook Investments Ltd v Batten (1985) 18 HLR 25; [1985] 2 EGLR 100

Texts Cited:

J Carter, Carter on Contract (2014, LexisNexis)
A Mason, ‘Themes and Prospects’ in P D Finn (ed), Essays in Equity (1985, Law Book Co) 242
J D Heydon, M J Leeming and P G Turner, Meagher Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, 2015, LexisNexis Butterworths)
R Goode, “Inalienable Rights?” (1979) 42 MLR 553
C J Rossiter, Penalties and Forfeiture: Judicial Review of Contractual Penalties and Relief Against Forfeiture (Law Book Co., 1992)

Category:

Principal judgment

Parties:

Ryan Kay (Applicant)
Playup Australia Pty Ltd (Respondent)

Representation:

Counsel:
B W Walker SC with N Kabilafkas (Appellant)
N J Kidd SC with E A Walker (Respondent)

  Solicitors:
Price & Company (Appellant)
Yates Beaggi (Respondent)

File Number(s):

2019/228385

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity – Commercial List

Citation:

[2019] NSWSC 771

Date of Decision:

25 June 2019

Before:

Stevenson J

File Number(s):

2018/290218

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 23 March 2018 the applicant agreed to sell his 100% shareholding in a company to the respondent for $1.6 million, payable as to $1 million on exchange (when the buyer entered into possession), and as to the remainder by a “Deferred Payment” of $600,000 in monthly instalments commencing from the “Completion Date”. The seller gave various warranties as to the financial and other condition of the company and agreed to restraints. Clause 4.3(b) of the agreement provided that if any “Deferred Payment” instalment was not paid within seven days of the due date, the warranties and restraints were “immediately void ab initio”, and the total “Deferred Payment” amount became immediately payable in full. The parties were obliged to complete the sale of the business on the “Completion Date”, which was defined as two business days after the buyer received regulatory approval to operate the business, or such other date as the parties agreed in writing.

The relevant regulatory approval was received on 18 May 2018, and two business days after that was 22 May 2018. Neither seller nor buyer performed any of their completion obligations on 22 May. The seller performed most but not all of his on 7 June 2018. On 8 August 2018, the seller served a creditor’s statutory demand for $589,292.28, being the outstanding balance of the “Deferred Payment”. To procure the dismissal of winding up proceedings, the buyer paid the outstanding balance of the “Deferred Payment”, under protest.

The primary judge held that the buyer’s obligation to make the Deferred Payment was dependent on the seller fulfilling his obligations, so that cl 4.3(b) was not engaged as the buyer paid the Deferred Payment instalment within time, but would have rejected alternative arguments that the clause was a penalty or that the buyer should be granted relief against forfeiture.

Held, granting leave to appeal and allowing the appeal and cross-appeal:

per Brereton JA (Macfarlan JA and Simpson AJA agreeing):

Upon the proper construction of the agreement, there is a distinction between “Completion”, which describes an event, and the “Completion Date”, which describes a date. Completion occurred on 7 June 2018. There was no agreement for the purposes of the definition of “Completion Date” to defer the Completion Date, which was 22 May 2018: at [22], [52]-[54].

per Brereton JA (Macfarlan JA and Simpson AJA agreeing):

The buyer’s obligation to pay the Deferred Payment instalments was not suspended by the seller’s failure to agree to or make the adjustment, or to deliver updated lists of liabilities and debtors: agreement relating to the amount of any adjustment to the purchase price was not a condition precedent to Completion; there was an insufficient connection between the seller’s obligation to deliver updated lists of liabilities and debtors and the buyer’s obligation to pay instalments of the Deferred Payment: at [74]-[75], [79]-[80].

per Brereton JA (Macfarlan JA and Simpson AJA agreeing):

The deprivation of accrued contractual rights can be a penalty for the purpose of the doctrine of penalties. Clause 4.3(b) operated as a penalty and of no effect and unenforceable: at [93], [96], [99].

per Brereton JA (Macfarlan JA and Simpson AJA agreeing):

If relief against forfeiture were available, it should have been granted (see issue (5)): at [103]-[105].

per Brereton JA (Macfarlan JA and Simpson AJA not expressing an opinion):

The doctrine of relief against forfeiture is confined to proprietary or possessory rights and does not extend to mere contractual rights. The benefit of the restraints and warranties were mere contractual rights, and relief from forfeiture was not available: at [106], [122]-[123].

Judgment

1. MACFARLAN JA: I agree with Brereton JA save that I do not, because it is unnecessary to do so for the purposes of this appeal, express a view as to whether the doctrine of forfeiture is confined to proprietary or possessory rights and does not extend to mere contractual rights.

2. BRERETON JA: On 23 March 2018 the applicant Mr Ryan Kay, who had for the preceding 15 years worked in the online gambling industry, entered into a Share Sale and Purchase Agreement (“the SSPA”) with the respondent Playup Australia Pty Ltd, whereby he agreed to sell and Playup agreed to purchase, for a price of $1.6 million, his 100% shareholding in a company then known as Bestbet.com.au Pty Ltd, which operated an online gambling business. [1] Mr Kay, as Seller, gave various warranties as to the financial and other condition of Bestbet (“the Seller Warranties”), [2] including relevantly that the company had no liability for outstanding debts other than those disclosed under Sch 6 or in the ordinary course of business. [3] Mr Kay also agreed not to compete with Bestbet, or solicit any employee or customer of Bestbet, in Australia for a period of three years (“the Restraints”). [4]

   1. In this judgment, capitalized terms are used consistently with the defined terms in the SSPA.

   2. SSPA, cl 7.1 and sch 3.

   3. SSPA, sch 3, cl 20.1: see [77].

   4. SSPA, cl 9; Deed of Restraint of 7 June 2018.

3. Under the SSPA, the parties were obliged to complete the sale on the “Completion Date”,[5] which was defined as two business days after the Buyer received from the Northern Territory Racing Commission (“NTRC”) regulatory approval to operate the business under its existing NTRC bookmaker’s licence, or such other date as the parties agreed in writing. [6] The price of $1.6 million was payable in two components: the “Completion Amount” of $1 million, which itself was payable by an unconditionally non-refundable payment of $1 million upon exchange, and “Nil” on Completion (less any Adjustment, as later described); [7] and the “Deferred Payment” of $600,000, by 24 monthly instalments each of $25,000, commencing on the “monthly anniversary” of the Completion Date. [8] It was provided that if any Deferred Payment was not paid within seven days of its due date, time in this respect being of the essence, the Restraints and the Seller Warranties were “immediately void ab initio”, and the Deferred Payment became immediately due and payable. [9]

   5. SSPA, cl 5.1: see [23].

   6. SSPA, cl 1.1 (definition of “Completion Date”): see [21].

   7. SSPA, cll 1.1 (definition of “Completion Amount”), 4.2, 4.3: see [20].

   8. SSPA, cl 1.1 (definition of “Deferred Payment”), cl 4.3(a): see [20].

   9. SSPA, cl 4.3(b): see [83].

4. Playup received the requisite regulatory approval from NTRC on 18 May 2018, and two business days thereafter was 22 May 2018, which was therefore the Completion Date as defined. However, as Playup, as Buyer, had entered into possession of the business upon exchange, and the whole of the Completion Amount was paid on exchange, the usual features of completion, being payment of the balance purchase price and delivery of possession, had already occurred. The Seller was obliged to ensure, “on Completion”, that moneys accrued in respect of liabilities incurred before the Completion Date were adjusted on the Completion Date. [10] Otherwise, the obligations of the parties at Completion were set out in Sch 9. [11] Those of the Seller relevantly included to deliver to the Buyer:

   10. SSPA, cl 6.3: see [25]

   11. SSPA, cl 5.2.

1. instruments of transfer for the Sale Share, in registrable form, executed by the Seller; [12]

   12. SSPA, sch 9, cl 23.1.1.1.

2. share certificates for the Sale Share; [13]

   13. SSPA, sch 9, cl 23.1.1.2.

3. an executed copy of the Deed of Restraint for each Key Employee; [14]

   14. SSPA, sch 9, cl 23.1.1.4.

4. an updated list of all liabilities of the Company to the date of Completion; [15]

5. an updated debtor list to the date of Completion; [16]

6. change of bank authorities for the bank accounts; [17]

7. the company register of the Company including certificate of incorporation, copy of the constitution, and details of the corporate key; [18] and

8. the accounts and records of the Company, a list of all bank and other accounts maintained by the Company, cheque books and credit cards. [19]

   15. SSPA, sch 9, cl 23.1.1.7.

   16. SSPA, sch 9, cl 23.1.1.8.

   17. SSPA, sch 9, cl 23.1.1.10.

   18. SSPA, sch 9, cl 23.1.2.1.

   19. SSPA, sch 9, cl 23.3.

5. The only obligation of the Buyer on Completion was to execute a written resolution of the directors of the Buyer resolving to approve the entry by it into, and the performance of its obligations under, the SSPA and the transactions contemplated under it. [20]

   20. SSPA, sch 9, cl 24.

6. Neither Mr Kay nor Playup performed any of these completion obligations, and on no view did completion in fact take place, on 22 May. However, on 7 June 2018, Mr Kay delivered to Playup an executed Deed of Restraint, an executed “Form of Transfer” of Mr Kay’s shares in Bestbet, a further “Australian Share Transfer Form” in respect of Mr Kay’s shares in Bestbet, and Mr Kay’s resignation as a director and secretary of Bestbet. As the primary judge observed, these were the critical documents that Mr Kay was obliged to deliver at Completion, but he has never provided an updated list of all liabilities or an updated debtor list. Nor had he agreed to, let alone paid, the amount of any Adjustment; it was not until 16 July 2018 that Mr Kay agreed that the appropriate Adjustment was $10,707.32.

7. As at 8 August 2018, Playup had not paid any instalment of the Deferred Payment. On that day, Mr Kay – on the basis that the Completion Date was 22 May 2018, and its first “monthly anniversary” was 22 June – served a creditor’s statutory demand for $589,292.68, being the outstanding balance of the Deferred Payment, less the Adjustment of $10,707.32. On 13 August, Playup paid Mr Kay $19,242.24. [21] On 28 August, Playup paid a further $25,000. However, Playup did not apply to set aside the statutory demand, and on 10 September 2018 Mr Kay commenced winding up proceedings. On 11 September, in order to procure the dismissal of those proceedings and under protest, Playup paid the then outstanding balance of the Deferred Payment, being $520,050.44.

   21. Playup had previously proposed a schedule of payments commencing from 28 June 2018, with an “Opening Balance” of $600,000 from which was deducted a proposed adjustment of $30,717.76. As this exceeded the first instalment of $25,000, “No payment” was scheduled for 28 June 2018, and $19,242.24 was scheduled for 28 July 2018, being the difference between the second instalment of $25,000 and the remaining balance of the $30,717.76.

The proceedings

8. Playup then commenced proceedings for declaratory relief that the Restraints and the Warranties were not void. [22] It contended that:

1. its obligation to pay the Deferred Payment was suspended until Mr Kay had agreed to the appropriate Adjustment to the purchase price;

2. as that did not occur until 16 July 2018, its obligation to make the Deferred Payment commenced from the “monthly anniversary” of that date, being 16 August 2018; and

3. as it paid more than the first payment, less the agreed Adjustment, on 13 August 2018, cl 4.3(b) (which provided for the avoidance of the Restraints and Seller Warranties) was not engaged.

   22. Originally, Playup also sought restitution of the money paid, “under protest”, in satisfaction of the creditor’s statutory demand, this claim was abandoned at the outset of the hearing.

9. Playup also contended that cl 4.3(b) was void as a penalty, and alternatively that it should be granted relief against forfeiture.

10. The primary judge substantially, though not entirely, accepted Playup’s principal argument, holding that on the proper construction of the Agreement, Playup’s obligation to make the Deferred Payment was dependent on Mr Kay agreeing to an appropriate Adjustment, and that cl 4.3(b) was therefore not engaged. [23] His Honour held that Mr Kay’s failure to agree the appropriate Adjustment until 16 July had the effect of suspending Playup’s obligation to commence paying the Deferred Payment until at least the first “monthly anniversary” of the Completion Date after that date, which was 7 August; and that as the first payment was made within 7 days of that date (on 13 August), there was no such default as to engage cl 4.3(b). [24] While seeing force in Playup’s submission that the first “monthly anniversary” was one month from the date of the agreed Adjustment – which would have been 16 August 2018 – his Honour observed that this was not expressly contemplated in the SSPA, and the question did not need to be resolved because the payment of $19,242.24 made on 13 August 2018 was within the seven-day grace period, referred to in cl 4.3(b), after 7 August. [25] His Honour would have rejected Playup’s alternative contentions that cl 4.3(b) was void as a penalty, or that it should be granted relief against forfeiture. [26]

    23. Playup Australia Pty Ltd v Kay [2019] NSWSC 771 at [16], [136].

    24. Playup Australia Pty Ltd v Kay [2019] NSWSC 771 at [138]-[139], [145]-[147].

    25. Playup Australia Pty Ltd v Kay [2019] NSWSC 771 at [143]-[147].

    26. Playup Australia Pty Ltd v Kay [2019] NSWSC 771 at [18], [178], [183].

9. In a supplementary judgment delivered on 5 July 2019, his Honour made the following orders:

(1) Declare that the operation of cl 4.3(b) of the Share Sale and Purchase Agreement relating to Bestbet.com.au Pty Ltd between the plaintiff (as buyer) and the defendant (as seller) dated 23 March 2018 (“Agreement”) did not commence and has not been enlivened.

(2) Declare that the restraints imposed on the defendant by the Agreement have not been rendered void ab initio by operation of cl 4.3(b)(i) of the Agreement.

(3) Declare that the warranties given by the defendant in the Agreement have not been rendered void ab initio by operation of cl 4.3(b)(ii) of the Agreement.

(4) Declare that the restraints imposed on the defendant by the Restraint Deed signed, sealed and delivered by the defendant in favour of the plaintiff on or around 7 June 2018 have not been rendered void ab initio by operation of cl 4.3(b)(i) of the Agreement.

(5) Order the defendant to pay 80 per cent [of] the plaintiff’s costs of these proceedings.

12. Mr Kay seeks leave to appeal to this Court. Leave is required because, although the judgment is a final one, it is merely declaratory and the monetary value in issue is uncertain, so that it cannot be said that an appeal would satisfy either condition in (NSW) Supreme Court Act, s 101(2)(r). [27] However, the application for leave, and any appeal, were heard concurrently, and fully argued.

    27. Marroun v State Transit Authority (2017) 96 NSWLR 295; [2017] NSWCA 273 at [12].

13. The proposed grounds of appeal raise the following issues:

1. whether the Completion Date was not 7 June 2018 as the judge held, but 22 May 2018; [28]

2. whether Playup’s obligation to pay the Deferred Payment was, as the judge held, suspended until Mr Kay agreed the amount of the Adjustment. [29]

   28. Draft Notice of Appeal, Grounds 1 and 2.

   29. Draft Notice of Appeal, Grounds 3 and 4.

14. By Notice of Contention, as amended at the hearing of the appeal, Playup seeks to uphold the judge’s decision on the grounds that:

1. Completion did not occur on 7 June 2018 as his Honour found, and did not occur before 16 July 2018 (when the Adjustment was agreed); [30]

2. Mr Kay’s failure to deliver documents necessary to give content to Seller Warranty 20.1 prior to 13 August 2018 or at all had the effect of suspending Playup’s obligation to pay the Deferred Payment until at least 13 August 2018 (when Playup commenced paying the Deferred Payment); [31] and

3. alternatively, Mr Kay’s failure to ensure adjustments were made on the Completion Date and his delay in performing that obligation until 16 July 2018 had the effect of suspending Playup’s obligation to pay the Deferred Payment until 16 August 2018. [32]

   30. Amended Notice of Contention, Ground 3.

   31. Amended Notice of Contention, Ground 1.

   32. Amended Notice of Contention, Ground 2.

15. Playup also seeks leave to cross-appeal from the rejection of its contention that cl 4.3(b), if enlivened, was unenforceable as a penalty, [33] and from the rejection of its claim for relief against forfeiture. [34]

    33. Draft Notice of Cross-Appeal, Ground 1.

    34. Draft Notice of Cross-Appeal, Ground 2.

16. It is convenient to group and address these issues as follows:

1. Completion Date –grounds of appeal 1 and 2, and notice of contention ground 3;

2. Interdependency –grounds of appeal 3 and 4, and notice of contention grounds 1 and 2;

3. Penalty – cross-appeal ground 1; and

4. Relief against forfeiture – cross-appeal ground 2.

The Completion Date

17. The primary judge held that although, as at 7 June 2018, Mr Kay had not complied with his obligations under cl 6.3 to “ensure that all money accrued up to the Completion Date, but not paid, in respect of liabilities … will be adjusted on the Completion Date”, nor his obligations under sch 9, cll 23.1.1.7 and 23.1.1.8 to deliver an updated list of liabilities and an updated debtor list, the parties nonetheless regarded the transaction as having “Completed” on 7 June 2018, and thereafter conducted themselves accordingly, so that “Completion” in fact took place on 7 June 2018; [35] and, further, that the parties’ exchange of correspondence between 22 May 2018 and 7 June 2018 constituted “an agreement in writing” between them, for the purposes of the definition of “Completion Date”, that the “Completion Date” would be the day when “Completion” actually took place, namely 7 June 2018. [36]

    35. Playup Australia Pty Ltd v Kay [2019] NSWSC 771 at [5], [107], [111].

    36. Playup Australia Pty Ltd v Kay [2019] NSWSC 771 at [112].

18. Under cl 4.3(a), the first instalment of the Deferred Payment was due on the first “monthly anniversary” of the Completion Date. Although the term “monthly anniversary” is a curious one, it is not in doubt that it meant the date of each following month that corresponded with the date of the month on which the Completion Date fell. The consequence of his Honour’s conclusion that the Completion Date was 7 June 2018 was that – subject to the question of interdependence, which is discussed below – the first “monthly anniversary”, on which payment of the first instalment of the Deferred Payment was due, was 7 July 2018, in respect of which the seven-day grace period expired on 14 July 2018.

19. The respondent sought to support his Honour’s conclusion on two bases. The first was that “Completion Date” meant the date on which Completion in fact took place, and that Completion did not take place until 16 August (when the Adjustment was agreed), or alternatively (as his Honour found) on 7 June 2018. The second was that (as his Honour found) the “Completion Date” was extended to (at least) 7 June 2018 by agreement.

20. In the SSPA, cll 4.2 and 4.3 relevantly provided:

4.2 In consideration of the Seller entering into this Agreement, on execution of this agreement, the Buyer shall pay to the Seller a [sic] unconditionally non-refundable payment of one million dollars ($1,000,000); and

4.3 On Completion the Buyer must pay to the Seller, or as the Seller otherwise directs the balance Completion Amount of Nil in Immediately Available Funds, subject to any Adjustment.

Deferred Payment

(a) The Deferred Payment shall be paid by way of equal monthly instalments of $25,000 per calendar month, for a period of 24 months, the first payment to be made on the first monthly anniversary of the Completion Date, and thereafter each month on the monthly anniversary until the full deferred payment amount has been paid.

21. Thus cl 4.3 used the term “Completion” in the context of obligations of the Buyer to pay the balance purchase price (albeit that it was amended to “$Nil”), while sub-cl 4.3(a) used the different term “Completion Date” to specify the time from which the obligation to pay instalments of the Deferred Payment was to be calculated. This is consistent with the different definitions of the two terms. In cl 1.1 of the SSPA, “Completion” was defined to mean:

… completion of the sale and purchase of the Sale Shares in accordance with this agreement.

“Completion Date” was defined to mean:

… a date being two (2) business days after the Buyer has received from the Northern Territory Racing Commission (“NTRC”) regulatory approval in writing to operate the Company’s Business under the Buyer’s existing NTRC bookmaker’s licence, or such other date as the parties agree in writing PROVIDED THAT the Completion Date shall not be a date any later than 90 days from the date hereof and in this regard time shall be of the essence.

22. “Completion” thus describes an event, while “Completion Date” defines a date.

23. Clause 5.1 of the Agreement provided:

Completion will take place on the Completion Date, at such time and place as the Buyer and the Seller may agree.

24. The effect of that provision is to stipulate that the parties are obliged to complete on the Completion Date. It does not equate the “Completion Date” with “Completion”. The “Completion Date” is, in effect, that date on which the parties are obliged to complete. If they do not do so, that does not of itself alter what the “Completion Date” is, any more than, in the case of a contract that provides for completion on a specified date, failure to complete on the specified day somehow varies the contractual completion date. It may mean that a party is in default if it does not complete on that date.

25. There are further indicia that the terms describe different concepts. Under cl 2.2, the Seller was entitled to receive all dividends and distributions declared in relation to the subject shares before the Completion Date, while the Buyer was entitled to receive all such dividends and distributions declared on or after the Completion Date. Clause 3.3 provided that between the date of the contract and the Completion Date or termination, all profits and losses were to the account of the Buyer. Under cl 6.1, the Seller agreed to satisfy and discharge, and to indemnify the Buyer with respect to, all liabilities of the Company and the Business incurred or accrued before and on the Completion Date, while under cl 6.2 the Buyer was solely responsible to all creditors for, and indemnified the Seller in respect of, all debts and liabilities incurred after the Completion Date. Clause 6.3 provided:

On Completion, the Seller must ensure that all money accrued up to the Completion Date, but not paid, in respect to liabilities … will be adjusted on the Completion Date.

26. Under cl 6.8 (which dealt with employee entitlements), pro-rata entitlements to wages and superannuation were to be allowed “for the period between their last payment date and the Date of Completion” (not a defined term, but synonymous with Completion Date), and the Seller indemnified the Buyer in respect of all liabilities incurred by the Buyer or the Company with respect to any unpaid superannuation entitlements or other employee claims “in respect to the period before the Completion Date”. Under cl 6.10, it was agreed that all moneys held in the TAB account were excluded from the agreement and were to be retained by the Seller, and that “The Buyer shall pay the balance of the TAB account to the Seller on the Completion Date”.

27. These provisions indicate that the Completion Date was the date by reference to which adjustments were to be made – regardless of whether or not Completion in fact took place on that date.

28. Further, cl 23.1.1.4 (in Sch 9) relevantly provided:

23.1 At Completion:

23.1.1 the Seller must deliver to the Buyer:

…

23.1.1.4 the executed copy of the Deed of Restraint for each Key Employee (if not already provided by the Condition Date).

29. The term “Condition Date” is not defined and is an apparent error for “Condition Satisfaction Date”, which is defined, in cl 1.1, to mean “the Completion Date”. Under cl 3.1, the obligations of the parties to complete did not become binding “unless on or before the Condition Satisfaction Date each of the following conditions are fulfilled or waived in writing”. Those conditions included (by cl 3.2) the execution of a restraint by each Key Employee. Clause 23.1.1.4 thus supports the view that Completion might take place after the Completion Date had passed.

30. These considerations make clear that “Completion Date” and “Completion” are not interchangeable terms, but refer to two different concepts. The “Completion Date” is the date on which Completion was due to take place, and the effective date for Adjustments etc, even if Completion did not in fact happen on that date. “Completion” refers to the actual act of completion.

31. As has been mentioned, in the context that the Agreement defined “Completion Date” as being two business days after the NTRC approval “or such other date as the parties agree in writing”, Playup received regulatory approval in writing from NTRC to operate Bestbet’s business under Playup’s existing NTRC bookmaker’s licence on 18 May 2018, and two business days thereafter was 22 May 2018. Accordingly, 22 May 2018 was the “Completion Date”, unless (for the purposes of the definition of “Completion Date”) the parties agreed in writing on some other date. His Honour concluded that the correspondence between the parties between 22 May and 7 June constituted such an agreement, whereby it was agreed that the “Completion Date” would be the date on which Completion actually took place, namely (as his Honour found) 7 June 2018.

32. On 22 May 2018, Ms Robson (who was acting for Playup) wrote to Mr Price (who was acting for Mr Kay):

I am instructed that completion should be deemed to occur today. On execution, can you please ensure that today’s date is reflected.

My client will forward the executed copies of the consent shortly.

33. As to the source of Ms Robson’s instructions, his Honour recorded[37] that Mr Simic (of Playup) ultimately said that completion “was supposed to be deemed to occur on” 22 May 2018. That is entirely consistent with the view that it was with effect from the Completion Date that adjustments were to be made, regardless of when Completion in fact took place. Nothing in that communication remotely supports any view that there had been an agreement on any other date.

    37. Playup Australia Pty Ltd v Kay [2019] NSWSC 771 at [102].

34. On 24 May 2018, Mr Kay wrote to Mr Arora (of Playup) about several outstanding matters, concluding:

I will then get together all of the items today for completion.

35. On 25 May 2018, Mr Kay wrote to Mr Arora about “the March 23rd financials” of Bestbet, concluding:

They need to be agreed so we can lodge and then we can compete" [sic: complete].

36. On 28 May 2018, Mr Kay sent another email to Mr Arora, attaching financial statements for Bestbet and concluding:

Once agreed, we can complete.

37. On 29 May 2018, Mr Arora sent Mr Kay a “list of payments made in April and May for the bills accrued before 23rd March”. The attached list showed ten payments made by Bestbet to creditors since 23 March 2018 in respect of liabilities incurred by Bestbet prior to 23 March 2018. The amount related to liabilities incurred prior to 23 March 2018 was $11,778.05 inclusive of GST, or $10,707.32 excluding GST. Thus Mr Arora was proposing that there should be an adjustment in Playup’s favour for that amount, namely the GST inclusive figure of $11,778.05; Mr Kay ultimately agreed, on 16 July 2018, to the GST exclusive figure of $10,707.32.

38. On 30 May 2018, Mr Kay wrote to Mr Arora:

I’m running through the post [M]arch 23rd items today so hopefully we can do after I agree those.

39. On 1 June 2018, Mr Price wrote to Ms Robson with reference to a number of issues, concluding:

Once the numbers/financials are finalised, then the other matters can also be finalised.

40. On 4 June 2018 at 2.54pm, Mr Arora sent an email to Mr Kay:

I have asked Chris to stop any payments out of Classic Bet and Best Bet without mine or Daniels approval, the agreement of sale of shares is deemed to be completed 3 days after we got the approval.

We shouldn’t be paying any salaries to yourself and Alex from this day onwards, which was 21st May 2018.

41. Once again, that is entirely consistent with the view that the Completion Date was the date with effect from which adjustments were to be made, regardless of when Completion in fact took place. It is inconsistent with there being any agreement on any other Completion Date.

42. On 5 June 2018, Ms Robson replied:

Can you urgently confirm whether the items can be collected from your office today, so we [can] settle this matter please.

43. On 6 June 2018, Mr Simic (of Playup) wrote to Mr Kay, raising several issues and concluding:

Can we just stick to what we signed and complete in morning.

The contract is already in breach and should have completed last week.

44. Again, far from indicating an agreement that the Completion Date had been extended, this communication manifests that the parties were proceeding on the basis that the contract was in default, because the Completion Date had already passed.

45. In the documents delivered by Mr Kay to Playup on 7 June 2018 by way of completion, the Deed of Restraint recited that “Completion Date means the completion date of the Share Sale Agreement, which occurred on 21 May 2018”; the “Form of Transfer” of Mr Kay’s shares in Bestbet was dated 24 May 2018; the further “Australian Share Transfer Form” in respect of Mr Kay’s shares in Bestbet was dated “blank/05/2018”; and Mr Kay’s resignation as a director and secretary of Bestbet was dated 21 May 2018.

46. On 7 June 2018, Mr Arora sent an email to Mr Simic and Ms Robson, reporting:

[Mr Kay] dropped the completion docs for Bestbet … just then.

47. On the same day, Mr Price sent Ms Robson “by way of final settlement in this matter” copies of the documents which had earlier been delivered by Mr Kay, concluding:

Could you please have your client lodge the Form 484 with ASIC as soon as possible.

We are instructed that this now completes settlement in this matter.

48. Ms Robson did not respond; no party disputed that completion had then taken place; and thenceforth, the parties acted as if Completion had taken place, and directed their attention to the Deferred Payment. Mr Simic certified as correct the statement in the Form 484 signed by him on 15 June 2018 to the effect that Mr Kay ceased to be, and that he (Mr Simic) became, director and secretary of Bestbet on 22 May 2018.

49. Subsequently, on 13 September 2018, Mr Amirbeaggi (who was by this time acting for Playup), in a letter to Mr Price (acting for Mr Kay), wrote that “completion of the agreement” occurred on 22 May 2018. And in the winding up proceedings:

1. on 9 October 2018, Mr Arora deposed that a related transaction involving Mr Kay’s father, which was documented in the same terms as the SSPA, “completed on 22 May 2018”, and “the first instalment of [the Deferred Payment] fell due on 22 June 2018”;

2. on 16 October 2018, Mr Simic deposed that the SSPA “completed on 22 May 2018”; and

3. on 19 October 2018, counsel then appearing for Playup informed Ball J that “completion took place on 22 May 2018 and there is no issue with that”.

50. The primary judge said:

106 As these documents show, the parties appear to have elided the concepts of “Completion Date” and “Completion”.

107 Despite the reference in these documents to 21 and 22 May 2018 as being the “Completion Date” or the date on which “Completion” took place, I think it clear that, in fact, “Completion” itself did not occur prior to 7 June 2018 and was accepted to have occurred on that day

51. Then, after referring to some of the correspondence between 24 May and 7 June, his Honour continued:

109 From that point forward, Ms Robson did not contest that completion had then taken place and the parties directed their attention to the Deferred Payment.

110 It is true, as Mr Kidd pointed out, that as at 7 June 2018 Mr Kay had not complied with his obligations under cl 6.3 to “ensure that all money accrued upto the Completion Date, but not paid, in respect of liabilities…will be adjusted on the Completion Date” nor his obligation under the Agreement to deliver an “updated debtor list to the date of Completion”.

111 Nonetheless, I think it clear the parties regarded the transaction as having “Completed” on 7 June 2018 and thereafter conducted themselves accordingly.

112 Further, I think the better view of the exchange of correspondence between the parties between 22 May 2018 and 7 June 2018 constitutes “an agreement in writing” between them, for the purposes of the definition of “Completion Date” (see [21] above) that the “Completion Date” would be the day when “Completion” actually took place: 7 June 2018.

52. I agree with his Honour’s conclusion that, despite the references in the aforementioned correspondence to 21 and 22 May 2018 as being the Completion Date or the date on which Completion took place, Completion in fact occurred – and was treated by the parties as having occurred – on 7 June 2018, when Mr Kay delivered the essential documents (including the share transfers and resignations), and after which there was no suggestion that Completion was yet to take place. It is true that Mr Kay did not then discharge all of his Completion obligations: in particular, he did not comply with his obligation under cl 6.3 to “ensure that all money accrued upto the Completion Date, but not paid, in respect of liabilities … will be adjusted on the Completion Date”, nor his obligations under cll 23.1.1.7 and 23.1.1.8 to deliver an updated list of liabilities and an updated debtor list. However, failure to perform an obligation performable on completion does not mean that completion has not taken place. There is no notion that completion if not perfect has not happened; the doctrine of merger exists to negate it, and even though not available here to deny Playup’s entitlement, post-completion, to the Adjustment (as any argument that it merged was waived), it nonetheless serves to illustrate that the failure of a party to perform an obligation on completion does not mean that completion has not taken place. It also follows that the contention raised by Playup, by amendment to its Notice of Contention made, by leave, at the hearing of the appeal, that Completion did not take place on 7 June 2018 (as his Honour found), but not until 16 July, when the Adjustment was agreed, must fail.

52. However, I am quite unable to agree that there was any agreement, for the purposes of the definition of “Completion Date”, that the “Completion Date” would be the day when “Completion” actually took place. Not only is there nothing in the correspondence which expressly says so, but as has been indicated above, the correspondence of 22 May, 4 June and 6 June, and the settlement documents delivered on 7 June, are quite inconsistent with there being any such agreement, as is the position adopted on behalf of Playup in the winding up proceedings. The various communications that indicate (prior to 7 June) that completion is still anticipated, and (on and after 7 June) that completion had taken place on that date, refer to Completion in fact, and say nothing about deferral of the Completion Date. The true position is that, once the Completion Date had passed, the parties continued to make arrangements for Completion to take place. This is no different from parties to a conveyancing transaction in fact proceeding to completion on a date after that specified in the contract as the date for completion, without varying the contractual date.

53. In my opinion there was no agreement to defer the Completion Date, which was 22 May 2018. Subject to the argument considered below about interdependence, it follows that the first “monthly anniversary”, on which the first Deferred Payment of $25,000 was due, was 22 June 2018, and that the seven-day grace period referred to in cl 4.3(b) expired on 29 June. It is not in dispute that, as at that date, the first instalment of the Deferred Payment remained unpaid.

Interdependency

55. The dispositive holding in the judgment of the primary judge was that Mr Kay’s failure until 16 July 2018 to ensure that the Adjustment was made suspended Playup’s obligation to pay the Deferred Payment until that date. [38] This holding was essential to the decision, as even if 7 June were the Completion Date, the first monthly anniversary of that date was 7 July, and the first Deferred Payment was not made within 7 days of that date.

    38. Playup Australia Pty Ltd v Kay [2019] NSWSC 771 at [136]-[138].

56. Appeal grounds 3 and 4 challenge that conclusion, contending that his Honour erred in holding that Playup’s obligation to make the first of the Deferred Payments was dependent on Mr Kay stipulating the amount of the Adjustment, and that his Honour ought to have held that it was not so dependent. By its Notice of Contention, Playup contends that Mr Kay’s failure to deliver, prior to 13 August 2018 or at all, the documents necessary to give content to Seller Warranty 20.1 (in particular, an updated list of liabilities and an updated debtor list) had the effect of suspending the respondent’s obligation to pay the Deferred Payment until at least 13 August (when Playup commenced paying the Deferred Payment); and alternatively that his failure to ensure that the Adjustment was made on the Completion Date, and until 16 July 2018, had the effect of suspending the respondent’s obligation to pay the Deferred Payment until at least 13 August. These competing contentions raise the question whether Playup’s obligation to pay the Deferred Payment instalments was interdependent with Mr Kay’s obligations upon Completion to (a) ensure that the Adjustment was made, and (b) deliver the updated list of liabilities and updated debtor list.

The Adjustment

57. In the SSPA, cl 4.3[39] makes provision for payment of the “balance Completion Amount of Nil” by Playup to Mr Kay on Completion, subject to any Adjustment. Clause 6.3[40] obliged the Seller, on Completion, to ensure that all money accrued up to the Completion Date, but not paid, in respect of liabilities be adjusted on the Completion Date.

    39. Set out at [20] above.

    40. Set out at [25] above.

58. Clause 1.1 provided that “Adjustment” has the meaning given to it under cl 6.11, which in turn provided:

6.11 It is agreed, that if the money for any liabilities of the Company and the Business and the Player Funds (and any other matter contemplated under this agreement) are not in the Company’s bank account on Completion, the amount attributed to such matters will be adjusted on Completion, from the Completion Amount.

59. Clause 6.7 provided:

6.7 Without limiting any other provision of this agreement, the Seller will ensure that, by Completion, the Company will have settled all outstanding liability for employee entitlements, unpaid wages, salary, remuneration, superannuation contributions, compensation and benefits; redundancy or termination payments and all other outstanding employee entitlements of any nature (if any) by either direct payment to the particular Employee on or before Completion or by adjustment to the Completion Amount.”

60. Clause 4.3(a)[41] made provision for payment of the Deferred Payment, by instalments. It does not refer to any Adjustment.

    41. Set out at [20] above.

61. Founding on the judgment of Leeming JA, with whom Basten and Ward JJA agreed, in Hillam v Iacullo,[42] the primary judge proceeded on the basis that clear words were required to discern a relation of independence, and in their absence a construction was to be favoured whereby obligations were interdependent.

    42. (2015) 90 NSWLR 422; [2015] NSWCA 196 at [93]-[109].

62. Of course, ‘whether obligations are dependent or independent depends upon the intention of the parties’. [43] In ascertaining that intention, “the more closely the obligations are linked to the rights, the easier it will be to construe the instrument as granting merely qualified rights”. [44] Relevant considerations include the express provisions of the contract in respect of interdependence, the extent of any connection between the obligations, whether the respective covenants go to the whole consideration, whether breach of the obligation goes to the root of the contract, or whether breach may be compensated by damages. [45]

    43. Burton v Palmer [1980] 2 NSWLR 878 at 895 [76].

    44. Tito v Waddell (No 2) [1977] Ch 106 at 297 (Megarry V-C).

    45. See Huntoon Co v Kolynos (Incorporated) [1930] 1 Ch 528 at 548-549, 557-559, 563-564; Highfield Property Investments Pty Ltd v Commercial & Residential Developments (SA) Pty Ltd [2012] SASC 165 at [213]; Masters Home Improvement Aust Pty Ltd v Aventus Cranbourne Thompsons Road Pty Ltd [2019] VSC 428 at [96] (Croft J).

63. In Newcombe v Newcombe, [46] to which Leeming JA referred with apparent approval in Hillam v Iacullo, Jordan CJ, with whom Stephen and Maxwell JJ agreed, said:

Where each of two parties to an indenture makes a covenant with the other, and the two covenants are not in terms connected, the question may arise whether they are independent (in the sense that each party is bound to perform his covenant irrespectively of whether the other performs his) or dependent (in the sense that one party is not bound to perform, or to continue to perform, his covenant unless the other has performed, or does perform, his, previously or concurrently or subsequently). In the absence of express provision in the deed, recourse must be had to implication. To raise an implication of dependency of covenants which are ex facie independent the ordinary conditions justifying the introduction of an implied term into a contract must be fulfilled. The implication must be one so obviously necessary to carry into effect the intention of the parties appearing on the face of the deed, treating them as reasonable men, that they must have agreed to its insertion as a matter of course had the point occurred to them. An implication of intention that the performance of one covenant shall be conditional on the performance of the other arises where the nature of the covenants is such that any breach of either of them would necessarily be regarded by reasonable men as absolving the other party from performing his covenant: Mills v. Carson (10 R.P.C 9 at pp. 16, 17); Huntoon Co v. Kolynos (Incorporated) ([1930] 1 Ch. 528 at pp. 548-9, 557-8, 563-4). But the question is in every case one of intention; and the rules laid down in the notes to Pordage v. Cole (1 Wms. Saund. 548) are merely guides to the discovery of intention, as, indeed, those notes plainly state: Roberts v. Brett (11 H.L.Cas. 337 at pp. 353-4). Ambiguous expressions in the deed will not serve to introduce dependency, where the covenants are otherwise independent and the general tenor of the deed supports the presumption that they are intended to be what they in form are – independent. In such cases, participial expressions such as "the plaintiff performing all the covenants on his part": Boone v. Eyre (2 Wm. Bl. 1312), or even such an expression as "if the plaintiff shall perform all the covenants on his part": London Gaslight Company v. Chelsea Vestry (8 C.B. (N.S.) 215) have been held not to be enough. On the other hand, ambiguous expressions may serve to implement an implication of dependency arising from the nature of the agreement: Bastin v. Bidwell (18 Ch. D. 238). Full force must, however, be given to an unambiguous and uncontrolled provision for dependency: "and if words are used in the contract so precise, express and strong, that such intention, and such intention only, is compatible with the terms employed, however inconsistent it may be with general principles of reason, a court can only give effect to such declared intention of the parties. The only question in each particular case is, whether such intention is so declared:" Stavers v. Curling (3 Bing. (N.C.) 355 at pp. 369-370). It must be remembered that however plain and unambiguous words may be in themselves they are always capable of being controlled by an inconsistent context: Lloyd v. Lloyd (2 My. & Cr. 192 at pp. 202, 204); London Gaslight Company v. Chelsea Vestry (8 C.B. (N.S.) 215 at p. 239).

46. (1934) 34 SR (NSW) 446 at 450-451.

64. The question of interdependency has often arisen in the context of leases, where it has consistently been held that, absent express provision, the lessee’s obligation to pay rent is not interdependent with any obligation of the lessor to repair. [47] In Bishop v Moy,[48] Ferguson J held that two covenants in a lease, one by the landlord (to repair the fencing within 24 months of the date of the lease), and one by the tenant (to pay an increased rent, being 150% of the initial rent, after the end of the second year of the lease), which appeared in different parts of the lease and contained no reference to one another, were not interdependent, regardless of whether there was some co-incidence in the dates referred to in each.

    47. Hart v Rogers [1916] 1 KB 646 at 651; Taylor v Webb [1937] 2 KB 283 at 289-90; Chatfield v Elmstone Resthouse Ltd [1975] 2 NZLR 269 at 275; Yorkbrook Investments Ltd v Batten (1986) 18 HLR 25; [1985] 2 EGLR 100 (covenant by tenant to pay a maintenance contribution and covenant by landlord to provide hot water were independent).

    48. [1963] NSWR 468.

65. It is true that in Hillam v Iacullo, with reference to the observation of Professor Carter [49] that “… the approach today is to construe most obligations as dependent on prior or contemporaneous performance by the other party. Clear words are therefore necessary before a relation of independency will be found”, Leeming JA concluded (emphasis added):[50]

107 Further, the modern approach favours a construction whereby most obligations are construed to be dependent. To the extent that clear words are required to discern a relation of independency, I do not consider such words to be found in [the agreement then under consideration].

49. J Carter, Carter on Contract (2014, LexisNexis) at [29-040].

50. (2015) 90 NSWLR 422; [2015] NSWCA 196 at [95], [107].

66. That does not amount to agreement with Professor Carter that clear words are required. Moreover, that observation must be seen in the context of his Honour’s insistence that the question remained one of ascertaining the intent of the parties,[51] and of the particular issue in that case, which his Honour analysed as follows:[52]

104 That said, cll 2.1 and 4.3 are connected with each other in two ways. First, cl 2.1 provides for the making of the “Loan”, and cl 4 is headed “Repayment and Prepayment”. The obligations in cl 4.2 and cl 4.3 accrued at the same time as the obligation to repay the “Loan”. The third loan agreement is to be read as a whole and a natural reading of provisions in a section headed “Repayment and Prepayment” is that they are dependent upon the performance of the obligations in cl 2 to make a loan.

105 Secondly, there is the obvious commercial link. The obligation to provide shares to the value of $910,000, and in lieu thereof that amount of money, was calculated so as to be double the amount lent. The same provision was made in relation to the first and second loan agreements. The “genesis” or “aim” of the transaction was clear: Mr and Mrs Iacullo promised to lend a specified amount of money, to be repaid with interest together with an uplift equal to double the amount promised to be lent.

106 To borrow the language of Jordan CJ and Mahoney JA, no “reasonable people” would “necessarily conclude” that it was the parties’ intention that the “uplift” of $910,000 should be payable in circumstances where the lenders had failed to advance the whole of the $455,000 on which it was based. I respectfully agree with the primary judge in this respect. It was not open to Mr and Mrs Iacullo to require Mr Hillam to pay them an uplift of double the promised $455,000 when they for their part had been unwilling to lend all of that amount on the promised terms.

51. See also Highfield Property Investments Pty Ltd v Commercial & Residential Developments (SA) Pty Ltd [2012] SASC 165 at [212]-[213].

52. Hillam v Iacullo (2015) 90 NSWLR 422; [2015] NSWCA 196 at [104]-[106].

67. In my view, the indicia in the SSPA are strongly against interdependence of the Buyer’s obligation to make the Deferred Payment with the Seller’s obligation to make the Adjustment or to deliver the updated debtor list.

68. First, where interdependency was intended, it was stipulated. In cl 5 (which is entitled “Completion”), cl 5.3 provides:

Interdependence

5.3 The obligations of the parties at Completion are interdependent. All actions at Completion will be deemed to take place simultaneously and no delivery or payment will be deemed to have been made until all deliveries and payments have been made.

69. Thus, interdependency is expressly stipulated in respect of obligations on Completion – but not otherwise. There is no similar provision in respect of obligations after Completion, and in particular the obligation under cl 4.3(a) to make the Deferred Payment.

70. Secondly, pursuant to cl 6.11, the Adjustment was to be made out of the “Completion Amount” – not out of the “Deferred Payment”; and the two were different concepts. “Completion Amount” was defined in cl 1.1 to mean:

… [T]he amount of $1,000,000 less or plus any Adjustment, payable as follows:

(i) a non-refundable payment of $1,000,000 on the date hereof; and

(ii) a further payment on Completion of $Nil subject to any adjustment pursuant to clause 6.11.

71. In contrast, “Deferred Payment” was defined to mean “the amount of $600,000 payable in accordance with clause 4.3(a)-(b)”. Playup submitted that the subject matter of the Adjustment was the same subject matter as the Deferred Payment. But, to the contrary, the subject matter of the Adjustment was the Completion Amount, not the Deferred Payment. Consistently with this view, the first part of cl 4.3 of the SSPA relevantly obliged the Buyer to pay the Seller the “balance Completion Amount of Nil, … subject to any Adjustment”. In contrast, cl 4.3(a), which provided for payment of the Deferred Payment by way of equal monthly instalments of $25,000 for a period of 24 months “until the full deferred payment amount [which was $600,000] has been paid”, is not expressed to be subject to an Adjustment. Thus, in contradistinction to the first part of cl 4.3, which deals with payment of the Completion Amount, sub-cl 4.3(a), which deals with the Deferred Payment, contains no reference to any Adjustment.

72. Thirdly, the obligation to pay the instalments of the Deferred Payment was triggered by and ran from the Completion Date, not by and from Completion.

73. Fourthly, though any argument that the obligation to make an Adjustment merged on Completion was waived on the pleadings, the doctrine of merger nonetheless tends against the notion that post-completion obligations would be dependent on obligations to be performed upon Completion.

74. Fifthly, insofar as cl 6.3 imposed any obligation in respect of the Adjustment, it was in effect that the Seller will allow the relevant amount as an adjustment upon completion. It did not oblige Mr Kay to agree to the amount of any Adjustment. Although curiously worded, it may have imposed on him an obligation to pay or allow the objectively correct amount of the Adjustment out of the Completion Amount. It meant that on Completion, Playup was entitled to withhold from the Completion Amount the amount of the Adjustment to which it was entitled; and in circumstances where the balance purchase price payable by Playup on Completion was $Nil, it may have obliged Mr Kay to pay that amount on Completion. But it did not make agreement on the amount of any Adjustment a condition precedent to Completion. Mr Kay’s failure to tender the objectively correct amount might have entitled Playup to refuse to complete, but it did not do so.

75. As any argument that the right to an Adjustment merged on Completion was waived on the pleadings, Playup was entitled to retain the objectively correct amount of the Adjustment (whether or not the amount was agreed) out of the Deferred Payment. But it was not entitled to treat the obligation to make the Deferred Payments as suspended until Mr Kay had agreed upon the amount of the Adjustment.

The updated lists of liabilities and debtors

76. Playup’s alternative contention was that Mr Kay’s failure to deliver, prior to 13 August 2018 or at all, the documents necessary to give content to Seller Warranty 20.1 had the effect of suspending the respondent’s obligation to pay the Deferred Payment until at least 13 August (when the first payment was made).

77. Seller Warranty 20.1 was in the following terms:

20.1 As at the date of this agreement, the Company does not have any other liability for debts outstanding except for the debts disclosed under schedule 6 or those in the ordinary course of business.

78. The submission focussed on the Seller’s obligation under cll 23.1.1.7 and 23.1.1.8 to deliver the updated list of liabilities and the updated debtor list. It was argued that these lists were necessary to give content to Seller Warranty 20.1. However, that is not so. First, cl 20.1 is addressed to the date of the Agreement, not the date of Completion, whereas the updated lists are as at the date of Completion. Secondly, by cl 6.1, the Seller agrees to satisfy and discharge all liabilities of the Company incurred or accrued before the Completion Date, and to indemnify the Buyer with respect to all claims in relation to such liabilities. Thirdly, under cl 7.3, the Seller indemnifies the Buyer in respect of all loss or damage suffered or incurred after Completion as a consequence of breach of any of the Seller Warranties, or failure by the Seller to discharge all debts due and payable by the Company which were incurred prior to Completion. Provision of the updated list of liabilities and the updated debtor list is not necessary to give content to any of those provisions: if an undisclosed or unpaid pre-Completion Date debt emerges, Playup is entitled to sue on the relevant indemnity, and the updated list of liabilities is irrelevant to such a claim.

79. There is no relevant connection between the Seller’s obligation to deliver the updated lists of liabilities and debtors, on Completion, and the Buyer’s obligation to pay instalments of the Deferred Payment, commencing on the monthly anniversary of the Completion Date. In the context of an agreement in which, where interdependency was intended, it was stipulated, there was no such stipulation. The subject matter of the two obligations is quite different: one is concerned with provision of a list of liabilities and a list of updated debtors, and the other with payment of part of the consideration. They arise, and are to be performed, at different times: one on Completion, while the other runs from the Completion Date, commencing on the monthly anniversary of that date. Once again, the doctrine of merger tells against an obligation to be performed upon completion being interdependent with one which is to be performed after completion.

Conclusion on interdependency

80. Accordingly, Playup’s obligation (under cl 4.3(a)) to pay the Deferred Payment was not dependent upon Mr Kay’s obligation (under cl 6.3) on Completion to ensure that all money accrued up to the Completion Date, but not paid in respect to liabilities, is adjusted on the Completion Date, nor on his obligation to deliver an updated list of liabilities and an updated debtor list upon Completion. It follows that the obligation to pay the Deferred Payment was not suspended by Mr Kay’s failure to agree or make the Adjustment, or to deliver updated lists of liabilities and debtors. In those circumstances it is unnecessary to consider Playup’s argument that the first “monthly anniversary” was one month from the date on which the Adjustment was agreed – which would have been 16 August 2018.

81. Lest it be thought that this construction is productive of an unreasonable result because it leaves the Buyer exposed to considerable risk upon Completion, it must be borne in mind that the Buyer had been content to pay an unconditionally non-refundable deposit of $1 million, and had already taken possession of the business, in which circumstances the usual incidents of completion – namely payment of the balance purchase price, and delivery of possession – would be absent. For most intents and purposes the sale had already been implemented, and “Completion” involved, by and large, formalities.

Penalty

82. By ground 1 of its proposed Cross-Appeal, Playup contends that his Honour erred in failing to hold that cl 4.3(b) is a penalty, at least insofar as it provides for avoidance of the Restraints and the Seller Warranties.

83. Clause 4.3(b) is as follows:

(b) In the event that any Deferred Payment monthly payment due and payable by the Buyer to the Seller is not paid within seven (7) days of its due date, and in this regard time shall be of the essence, then:

(i) All and any restraints of whatsoever nature otherwise imposed herein on the Seller or any Key Employee herein, are immediately void ab initio; and

(ii) All and any warranties of whatsoever nature otherwise provided herein by the Seller or any Key Employee herein, are immediately void ab initio; and

(iii) All outstanding and unpaid monthly payments of the Deferred Payment shall be due and payable by the Buyer immediately, and recoverable by the Seller immediately.

84. The classical statement of the law relating to penalties is to be found in the speech of Lord Dunedin in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd (citations omitted):[53]

2.    The essence of a penalty is a payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage.

3.    The question whether a sum stipulated is a penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of the breach.

4.    To assist this task of construction various tests have been suggested, which if applicable to the case under consideration may prove helpful, or even conclusive. Such are:

(a)    It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach.

(b)    It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid …

(c)    There is a presumption (but no more) that it is penalty when “a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”.

53. [1915] AC 79 at 86-7; cited by McDougall J in Arab Bank Australia Ltd v Sayde Developments Pty Ltd (2016) 93 NSWLR 231; [2016] NSWCA 328 at [72]; referred to by the primary judge: Playup Australia Pty Ltd v Kay [2019] NSWSC 771 at [152].

85. Observing[54] that the law relating to penalties had been discussed by the High Court in Ringrow Pty Ltd v BP Australia Pty Ltd, [55] Andrews v Australia and New Zealand Banking Group Ltd, [56] and Paciocco v Australia and New Zealand Banking Group Ltd, [57] his Honour adopted[58] the following summary, by McDougall J, with whom Gleeson JA agreed, in this Court in Arab Bank Australia Ltd v Sayde Developments Pty Ltd, [59] of the propositions which emerged from the reasons of the majority (French CJ, Kiefel, Gageler and Keane JJ) in Paciocco:

(1)   Lord Dunedin’s propositions were not ‘rules of law’, but ‘distillations of principle’ (Gageler J at [143]; compare Kiefel J at [32] and Keane J at [260]).

(2)   The essence of a penalty is that it is a collateral stipulation, the (or a predominant) purpose of which is to punish the borrower for breach, and thus to compel performance (Kiefel J at [29]; Gageler J at [127], [159], [166]; Keane J at [254], [259], [273]).

(3)   One way of testing whether the impugned stipulation is penal – intended to punish – is to inquire whether the sum that it stipulates to be payable on breach (as I have indicated, the equitable origins and continuing equitable operation of the principle have no present relevance) is to ask whether the stipulated sum is extravagant or out of all proportion to, or unconscionable in comparison with, the maximum amount of damage that might be anticipated to follow from the breach (Kiefel J at [29], [54]; Gageler J at [158] to [162]; Keane J at [221]).

(4)   ‘Damage’ in this sense is not limited to damages recoverable upon breach of contract, but may extend to damage, or losses, caused by the impairment of other legitimate commercial interests that were intended to be protected by the stipulation (Kiefel J at [33], [42] to [47]; Gageler J at [145], [160] to [162]; Keane J at [216], [283]).

(5)   The analysis is to be made at the time, and taking into account the circumstances applicable, when the contract was made; not at the time of breach; the analysis is prospective, not retrospective (or as is said in some judgments, is ex ante, not ex post) (Kiefel J at [62]; Gageler J at [169]).

(6) Mere disproportion between the stipulated sum and the possible damage is not enough to indicate ‘penalty’; the disproportion must be such that it is unconscionable for the lender to rely on the stipulation (Kiefel J at [54], Gageler J at [164]; Keane J at [221], [240, [279]).

54. Playup Australia Pty Ltd v Kay [2019] NSWSC 771 at [150].

55. (2005) 224 CLR 656; [2005] HCA 71.

56. (2012) 247 CLR 205; [2012] HCA 30.

57. (2016) 258 CLR 525; [2016] HCA 28.

58. Playup Australia Pty Ltd v Kay [2019] NSWSC 771 at [151]-[153].

59. (2016) 93 NSWLR 231; [2016] NSWCA 328 at [74].

86. His Honour also referred to the following statement of Ward JA, with whom McColl and Gleeson JJA agreed, in Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Pty Ltd:[60]

368 With that in mind, it is necessary, first, to identify the interests which are sought to be protected by the impugned stipulation; and, second, to ask whether the impugned stipulation was a stipulation collateral or accessory to another stipulation (the primary stipulation) which imposed an additional detriment upon SXG to the benefit of Linfield in the sense that (consistently with Andrews) it was in the nature of a security for and in terrorem of the satisfaction of the primary stipulation in a manner that (consistently with Paciocco (HCA) and Cavendish [cited below]) was out of all proportion to the interests of Linfield intended to be protected by the primary stipulation.

60. (2017) 18 BPR 36,683; [2017] NSWCA 99 at [368].

87. His Honour held that, although in light of his conclusions on the other issues the question did not arise, cl 4.3(b) was not a penalty: although (contrary to Mr Kay’s submission) cl 4.3(b) was not a primary but a collateral obligation, and the consequences of defaulting in respect of a Deferred Payment were severe, in circumstances where Mr Kay was assuming a considerable risk by allowing 37.5% of the total purchase price to remain outstanding to be paid by instalments over two years without security, and insisted on the provision included in cl 4.3(b) to guard against that risk, those consequences were not out of all proportion to the damage that Mr Kay might, when the contract was made, have anticipated from a relevant breach; nor were they “unconscionable” or “extravagant” in relation to such anticipated damage. Moreover, his Honour was of opinion that the words of cl 4.3(b) did not admit the conclusion that the only or predominant purpose of the clause was to punish Playup for failure to make a timely payment of the Deferred Payments. His Honour said:

169 In my opinion, the words used by the parties in cl 4.3(b) do not permit the conclusion that the “sole” or even the “predominant” purpose of the clause was intended to punish Playup for failure to pay the Deferred Payments within seven days of their due date.

170 The words used by the parties indicate to me that the purpose was to focus Playup’s corporate mind, and the mind of Mr Simic as Playup’s only director, on the high importance of making the Deferred Payment on time.

171 My conclusion is that the predominant, if not the sole purpose of cl 4.3(b) was to ensure that the Deferred Payments were made on time.

172 Evidently, the clause did not have the desired effect as indicated by Mr Arora’s statement to Mr Kay on 10 August 2018 that “I got tied up with a few things in the last couple of weeks so didn’t get to [the payment]” (see [84] above) and Mr Amirbeaggi’s 13 September 2018 statement that “the second instalment due on 22 July 2018, was not paid on time due to an administrative error within the offices of Playup” (see [93] above).

173 To the extent that it is permissible to have regard to what transpired between the parties prior to execution of the Agreement, those matters are strongly confirmatory of that conclusion: see [38]-[46] above. As Mr Kay then said “we want to be sure that you will pay on time”.

174 Further, cl 4.3 was the culmination of hard bargaining between well advised, commercially sophisticated parties.

175 Mr Kay made it clear that the inclusion of cl 4.3 of the Agreement was a “deal breaker” without which he was not prepared to proceed with the transaction. There was negotiation of the terms of clause, which led to Mr Kay agreeing to the seven day period of grace.

176 In Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis [2015] 3 WLR 1373; [2015] UKSC 67 at [35], Lord Neuberger and Lord Sumption stated that in a the case of a negotiated agreement between properly advised parties of comparable bargaining power, the “strong initial presumption must be that the parties themselves are the best judges of what is legitimate in a provision dealing with the consequences of breach”.

177 In Ringrow v BP Australia the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) said (at [31]-[32]):

“The law of contract normally upholds the freedom of parties, with no relevant disability, to agree upon the terms of their future relationships.

…

Exceptions from that freedom of contract require good reason to attract judicial intervention to set aside the bargains upon which parties of full capacity have agreed. That is why the law on penalties is, and is expressed to be, an exception from the general rule. It is why it is expressed in exceptional language. It explains why the propounded penalty must be judged ‘extravagant and unconscionable in amount’. It is not enough that it should be lacking in proportion. It must be ‘out of all proportion’.”

178 For those reasons, had the question arisen, I would not have been persuaded of the need for judicial intervention in this case.

Application to accrued contractual obligations

88. Lord Dunedin’s second proposition describes the essence of a penalty as a payment of money stipulated as in terrorem of the offending party. In Ringrow Pty Ltd v BP Australia Pty Ltd,[61] the High Court said that the law of penalties, in its standard application, is attracted where a contract stipulates that on breach the defaulting party will pay an agreed sum which exceeds what can be regarded as a genuine pre-estimate of the damage likely to be caused by the breach, and in that context endorsed the principles stated by Lord Dunedin. What was involved in the present case was not the payment of a stipulated sum of money upon breach, but the deprivation of contractual rights – being the benefit of the Restraints and the Seller Warranties.

    61. (2005) 224 CLR 656; [2005] HCA 71 at [10].

89. It was not submitted, at first instance or before us, that the doctrine of penalties was incapable of application because the provision in question was not one which stipulated that on breach the defaulting party would pay an agreed sum of money. That is consistent with the assumption in this Court, in Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd (“Interstar”), [62] that the doctrine can apply to deprivation of rights or property, and the statement in Andrews v Australia and New Zealand Banking Group Ltd, [63] that the “penalty” need not be a requirement to pay a sum of money and that as a matter of principle there is no distinction in this context between a stipulation upon default for the transfer of property and a payment of money; such a distinction would elevate form over substance. The “standard application” of the doctrine, as described in Ringrow, is not its sole application, and Lord Dunedin’s statements of principle in relation to penalties are not complete or universal. [64] It is established, as Allsop P pointed out in Interstar,[65] that a stipulation may be penal in character, even though the penalty is not expressed in terms of the payment of money but in terms of transfer of property. In Wollondilly Shire Council v Picton Power Lines Pty Ltd, [66] Handley JA, with whom Clarke and Meagher JJA agreed, said:

The classical test to determine whether a contractual stipulation is a penalty requires the court to determine whether the sum expressed to be payable in the event of a breach is a genuine pre-estimate of the damage likely to be suffered by the innocent party. If it is, then the clause will be upheld but if not, it will be struck down as penal: see Dunlop Pneumatic Tyre Co, Ltd v New Garage and Motor Co, Ltd [1915] AC 79. But this subclause does not stipulate for any sum of money to be payable to the Council on breach. Equity always looked to substance rather than form and the penalty doctrine developed from Equity. In principle therefore the doctrine should apply not only to clauses which provide for the payment of money on breach but also to those which provide for the transfer of money's worth.

62. (2008) 257 ALR 292; [2008] NSWCA 310 at [104] (Allsop P, with whom Giles and Ipp JJA agreed).

63. (2012) 247 CLR 205; [2012] HCA 30 at [12]-[13], citing Jobson v Johnson [1989] 1 All ER 621 at 628 (Dillon LJ), 632 (Nicholls LJ).

64. Luu v Sovereign Developments Pty Ltd (2006) 12 BPR 23,629; [2006] NSWCA 40 at [30] (Bryson JA, with whom Handley and McColl JJA agreed); Arab Bank Australia Ltd v Sayde Developments Pty Ltd (2016) 93 NSWLR 231; [2016] NSWCA 328 at [74] (McDougall J, with whom Gleeson JA agreed) citing Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28 at [32] (Kiefel J), [143] (Gageler J), [260] (Keane J).

65. (2008) 257 ALR 292; [2008] NSWCA 310 at [101]-[102], citing Jobson v Johnson [1989] 1 All ER 621 at 628 (Dillon LJ); and Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551 at 555; Ringrow Pty Ltd v BP Australia Ltd (2003) 203 ALR 281; [2003] FCA 1297 at [100] (Hely J), adopted on appeal by Conti and Crennan JJ: Ringrow Pty Ltd v BP Australia Pty Ltd (2004) 209 ALR 32; [2004] FCAFC 206 at [73], [95], [109]; and not disputed in the High Court: see Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656; [2005] HCA 71 at [21]; see also Forestry Commission (NSW) v Stefanetto (1976) 133 CLR 507 at 519, 524; 8 ALR 297 at 306-7, 310-11.

66. (1994) 33 NSWLR 551 at 555.

90. In Interstar, in the context that it was held on other grounds that there was no penalty, Allsop P said:

104 It is but a small step from accepting that the doctrine applies to a transfer of property, to applying it to forfeiture of property in a clause designed to encourage performance. The relationship between penalties and relief against forfeiture at this point becomes less than pellucid. It is unnecessary to examine it any further here. I am prepared to assume that the doctrine can apply to forfeiture of rights or property.

91. The assumption that the doctrine may apply in respect of the deprivation of rights that have already accrued under the contract, such as provisions that have the effect of authorising retention or withholding payment of, or extinguishing a right to receive, remuneration already earned but unpaid, is supported by authority. [67] Further, although there is a real distinction between the doctrines of penalties and relief against forfeiture, they overlap in that some forfeitures may be penal in character, in which case relief is granted on the basis of the doctrine of penalties, rather than by way of relief against forfeiture, as was explained by Mason and Deane JJ in Legione v Hateley:[68]

A penalty, as its name suggests, is in the nature of a punishment for non-observance of a contractual stipulation; it consists of the imposition of an additional or different liability upon breach of the contractual stipulation (see, generally, O'Dea v. Allstates Leasing System (W.A.) Pty. Ltd). On the other hand, forfeiture involves the loss or determination of an estate or interest in property or a proprietary right, e.g., a lease, in consequence of a failure to perform a covenant. When non-payment of rent or a fine is made the occasion for forfeiture of an estate or interest in property it may be proper to treat the forfeiture as being similar in character to a penalty because it is designed to ensure payment of the rent or fine. There is, however, a real distinction between "penalty" and "forfeiture" and it is unfortunate that the terms have been frequently used in a way which blurs it. The claims made by the purchasers in Steedman v. Drinkle and Brickles v. Snell were for relief against the "forfeiture" of instalments of purchase money. The relevant contracts, like the modern contract of sale, permitted the vendor to "forfeit" instalments of purchase money. In this situation, despite the use of the word "forfeit", relief is granted on the footing that the contractual provision entitling the vendor to retain the instalments is in substance a penalty, or in the nature of a penalty, because it is designed to ensure payment of the entire purchase price and it exceeds the damage which he suffers by reason of the purchaser's default.

67. Bysouth v Shire of Blackburn & Mitcham (No 2) [1928] VLR 562; Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689 at 693, 698 (Lord Reid), 703 (Lord Morris of Borth-y-Gest), 711 (Viscount Dilhorne), 723 (Lord Salmon); see also Forestry Commission of New South Wales v Stefanetto (1976) 133 CLR 507 at 521; [1976] HCA 3; and Export Credits Guarantee Department v Universal Oil Products Co [1983] 2 All ER 205 at 219-220.

68. (1983) 152 CLR 406 at 445; [1983] HCA 11; see also Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd (2008) 257 ALR 292; [2008] NSWCA 310 at [103] (Allsop P, with whom Giles JA and Ipp JA agreed).

92. In their supplementary reply submissions, counsel for Mr Kay, while arguing that “accrued contractual rights” are not susceptible to the doctrine of relief against forfeiture, accepted that they fall within the ambit of the doctrine of penalties. [69]

    69. Applicant’s Submissions on Relief from Forfeiture, of 13 September 2019.

92. In my opinion, therefore, the deprivation of accrued contractual rights can amount to a penalty for the purpose of the doctrine of penalties. The benefit of the Restraints and the Seller Warranties are “accrued contractual rights”: the Restraints arise from the Deed of Restraint, and the benefit of the Seller Warranties is preserved after completion by cl 7.3.

Is clause 4.3(b) a penalty?

94. A contractual provision may be said to be penal if its function is to operate in terrorem to induce performance (in respect of which phrase I respectfully agree with Staughton J’s observation, in Export Credits Guarantee Department v Universal Oil Products Co,[70] to the effect that it remains useful in identifying a true penalty, despite the dislike of the phrase expressed by Lord Radcliffe in Bridge v Campbell Discount Co Ltd),[71] or as a punishment for default, in the sense that it imposes an additional or different liability upon default. [72] The distinction of a penalty is twofold: first, it is collateral to the main promise and purpose of the contract; and secondly, it is intended to operate as a deterrent to failure to perform that main promise or purpose, by imposing an additional detriment on the obligor and conferring an additional benefit on the obligee in the event of default. [73]

    70. [1983] 2 All ER 205 at 213; see also Ward JA in Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Pty Ltd (2017) 18 BPR 36,683; [2017] NSWCA 99 at [363], [368], cited at [86] above.

    71. [1962] AC 600 at 622.

    72. Legione v Hateley (1983) 152 CLR 406 at 444-5 (Mason and Deane JJ); [1983] HCA 11.

    73. Cf J D Heydon, M J Leeming and P G Turner, Meagher Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, 2015, LexisNexis Butterworths) at [18-095].

95. As his Honour accepted, cl 4.3(b) was collateral to the main promise (being the promise to pay the Deferred Payments). The legitimate interest of Mr Kay was obtaining payment of each instalment of the Deferred Payment as and when it fell due. As his Honour also accepted, “the predominant, if not the sole purpose of cl 4.3(b) was to ensure that the Deferred Payments were made on time”. But it achieved that purpose by imposing an additional detriment in the event of default – not only acceleration of the instalment payments, but deprivation of the benefit of the Seller Warranties, and of the Restraints. In the context of a sale of a company carrying on a business, restraints are a fundamental aspect of protection of the goodwill of the subject business, so as to ensure that the purchaser actually gains the benefit of the business. Avoidance ab initio of the Restraints and the Seller Warranties is, as his Honour said, a severe consequence; it represents a significant undercutting of the subject matter of the sale. Those consequences were out of all proportion to Mr Kay’s legitimate interest in securing payment of each instalment as and when it fell due. In my judgment, if the purpose of cl 4.3(b) was to focus the mind of Playup on ensuring that the instalments were paid punctually, it sought to achieve that purpose by imposing such consequences that its operation was plainly in terrorem.

96. For Playup, Mr Kidd SC submitted that it pointed in favour of the provision being a penalty that it operated indiscriminately – not only in the case of a total failure to pay, but also in the event of any delay in payment beyond the seven-day grace period. As Lord Dunedin observed in Dunlop, [74] a presumption (though no more) arises that a provision is penal when “a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage.” Though not involving “a single sum of money”, this is an analogous case: the retrospective deprivation of the benefit of the Restraints and the Seller Warranties occurs regardless of whether there is a total failure to pay the Deferred Payment; or a delay of one day after the grace period in paying the very last instalment. While that consequence might not have been disproportionate in the former case, it would have been utterly disproportionate – or extravagant – in the latter. The penal effect of the provision is manifest on the facts of the present case, where notwithstanding that the Deferred Payment has now been paid in full – well in advance of the contractual date by which it was to be paid, but for acceleration – it would still deprive Playup entirely of the benefit of the Restraints and the Seller Warranties.

    74. [1915] AC 79 at 87, quoting Lord Watson in Lord Elphinstone v Monkland Iron and Coal Co [1886] 11 App Cas 332 at 342.

97. It is true that the provision was the result of negotiation, and that Mr Kay was insistent upon it, in the sense that it was a “deal breaker”. His Honour gave considerable weight to the view expressed by Lord Neuberger and Lord Sumption in Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis,[75] to the effect that in the context of a negotiated agreement between properly advised parties of comparable bargaining power, there was a strong initial presumption that the parties themselves were the best judges of what is legitimate in a provision dealing with the consequences of breach. However, a provision that is otherwise penal in character does not cease to be so by reason that it was negotiated.

    75. [2016] AC 1172; [2015] UKSC 67 at [35].

98. For Mr Kay, Mr Walker SC submitted that the parties had in substance agreed that there would be a different contractual regime in the event of default: the Seller would no longer be required to provide ongoing credit for 24 months, nor be exposed to credit risk, the Restraints, and the potential for a cross-claim for breach of the Seller Warranties. However, that is no more than a different way of saying that the parties agreed that in the event of default, the Buyer would incur a different and more burdensome detriment and the Seller obtain a different and more beneficial benefit: that is, a penalty.

99. Accordingly, in my opinion, cl 4.3(b), at least insofar as it operated to avoid the Seller Warranties and the Restraints, was a penalty. The consequence is that it is, and always has been, of no effect and unenforceable; there is no question of relief being discretionary. [76] It follows that cl 4.3(b) did not have the effect that the Restraints and the Seller Warranties were avoided by reason of Playup‘s default in timely payment of the Deferred Payment instalments. Cross-Appeal Ground 1 should succeed.

    76. Citicorp Australia Ltd v Hendry (1985) 4 NSWLR 1 at 39-40 (Priestley JA, with whom Mahoney JA agreed); AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 at 192 (Mason and Wilson JJ); [1986] HCA 63.

Relief against forfeiture

100. By ground 2 of its proposed Cross-Appeal, Playup contends that his Honour erred in failing to hold that Playup should be granted relief against forfeiture of the benefits of the Restraints and Sellers Warranties pursuant to cl 4.3(b).

101. His Honour held that, although in light of his conclusions on the other issues the question did not arise, and assuming that relief against forfeiture was available to restrain Mr Kay from exercising his contractual rights under cl 4.3(b), as a matter of discretion he would have refused to grant it. On this question, his Honour’s reasoning was:

182 If, contrary to my findings, Playup’s obligation to make the Deferred Payment was not dependent on Mr Kay’s obligation to ensure that adjustments were made on the Completion Date, Playup’s loss of the benefit of the Restraints and Warranties would have been the consequence of the operation of the terms of an Agreement that, well advised, it entered after detailed focus on the terms of the clause in question.

102. In the light of the conclusion which I have reached on the question of penalty, it is unnecessary to resolve this issue. However, lest I be wrong on the question of penalty, it is desirable that it be addressed.

103. In a case where the object of the provision for forfeiture is to secure the payment of money, the discretion to grant relief against forfeiture is ordinarily exercised in favour of granting relief if the default is cured (with interest if appropriate). Relevant discretionary considerations include the gravity of the breach, whether it was wilful, whether there is a history of default and the risk of future defaults; whether reliance on the forfeiture is coloured by equitable fraud, accident, mistake or surprise; and whether the forfeiture would result in a windfall. In the present case, the circumstance that Mr Kay has received payment in full, accelerated, and as a result is now in a better position than would have been the case had there been no default, itself provides a powerful basis for concluding that, as a matter of discretion, relief against forfeiture, if available, should have been granted. This is accentuated by the circumstance that not granting relief would not only leave Mr Kay with every benefit to which he was entitled under the SSPA, and in a better position as a result of the acceleration, but would deprive Playup of a very significant part of the subject matter of the SSPA, namely the goodwill protected by the Restraints. And it is fortified by the circumstance that Mr Kay was in default of his obligation to ensure that the Adjustment was made on Completion – and remained in default until 16 July 2018 notwithstanding that Playup had, since 29 May, been seeking his agreement to the amount of the Adjustment, without response until 16 July – and in that way, contributed to the default which occasioned the forfeiture. His Honour does not appear to have had regard to those relevant considerations.

104. His Honour’s conclusion to the contrary was founded on the view that in the circumstances the forfeiture was the consequence of the operation of the terms of an agreement that Playup entered into, well advised, after detailed focus on the terms of the clause in question. But forfeitures typically result from the operation of the terms of an agreement (such as a lease or a mortgage). To my mind, it is of slight if any significance that the defaulting party was “well advised” when it entered the agreement, or that the negotiations had focussed on the term in question.

105. Assuming that relief against forfeiture was available, his Honour’s decision to refuse it as a matter of discretion was affected by error of the kind referred to in House v The King. [77] If relief against forfeiture were available, it should have been granted.

     77. (1936) 55 CLR 499; [1936] HCA 40.

106. However, his Honour assumed without deciding that relief against forfeiture was otherwise available. By leave, both parties lodged supplementary written submissions, after the hearing of the appeal, addressing this question.

107. Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies cites three cases as supporting the proposition relied on by the respondent – that relief from forfeiture is available in respect of “accrued contractual rights” [78] – but they do not in fact provide authority for that proposition. In the first, Hodder & Tolley Ltd v Cornes, [79] Salmond J held that the benefit of the rights under a mail contract with the Crown, which included a provision that the defendant was prohibited from assigning the benefit of the contract without the permission of the Postmaster General, breach of which entitled the Crown to forfeit the benefit of the contract, had not been forfeited, because the contractual right to do so had not been exercised; no occasion arose for consideration of the doctrine of relief against forfeiture. In the second, Devefi Pty Ltd v Mateffy Pearl Nagy Pty Ltd,[80] the Full Court of the Federal Court (Northrop, Gummow & Hill JJ) noted Hodder & Tolley and stated that where the benefit of a contract is assigned in breach of covenant against assignment, and the other party to the contract terminates the contract, “then the circumstances of the case may be such as to attract equitable intervention to relieve against forfeiture”. However the authority relied on for that was an article in which Professor Goode had stated “[t]here can be little doubt that a contractual term seeking to extinguish, on the ground of an attempted assignment, a right to payment already earned by performance would be struck down in equity as an unconscionable forfeiture”, [81] for which proposition Professor Goode cited Bysouth v Shire of Blackburn and Mitcham (No 2) – a case which involved not the doctrine of relief against forfeiture, but “the principle which subjects stipulations in contracts for penalties to equitable modification or adjustment”. [82]

     78. J D Heydon, M J Leeming and P G Turner, Meagher Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, 2015, LexisNexis Butterworths) at [18-320].

     79. [1923] NZLR 876.

     80. (1993) 113 ALR 225 at 237.

     81. R Goode, “Inalienable Rights?” (1979) 42 MLR 553 at 557.

     82. [1928] VLR 562 at 574.

108. In the third, SCI (Sales Curve Interactive) Ltd v Titus SARL, Rix LJ said:[83]

[49] I am prepared purely for the sake of argument to assume that in the appropriate circumstances a forfeiture of rights is proscribed as much as a payment of money (although I think that assumption goes further than the law currently allows), but for reasons which I have sought to explain I do not think that at the time of termination the licensee's future rights under the reconciliation provisions were rights such as the law on penalties protects. Secondly, I do not accept that the termination provisions, or the classic effect of them, namely to leave accrued rights in place but only accrued rights, are stipulated in terrorem. If that were so, then there could hardly be any termination provisions which would be immune from attack. In Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana, The Scaptrade [1983] 2 All ER 763, [1983] 2 AC 694 the House of Lords held that a withdrawal clause under a time charter, exercised on the ground of the charterer's failure to make punctual payment of an instalment of hire, was not subject to the equitable right to relief against forfeiture, even though it involved the loss of a valuable charter (since classically such rights of withdrawal are exercised where the market rate of hire is substantially above the charter rate). The House of Lords distinguished, however, between such merely contractual rights, and contracts concerning the transfer or creation of proprietary or possessory rights ([1983] 2 All ER 763 at 767, [1983] 2 AC 694 at 702). In Sport International Bussum BV v Inter-Footwear Ltd [1984] 2 All ER 321, [1984] 1 WLR 776 the House of Lords applied the ratio of The Scaptrade to 'mere contractual licences' to use certain names and trade marks and refused to give relief. Thirdly, the termination provisions of the licence were not exercised because of a breach which 'consists only in not paying a sum of money', but because of the failure to make a payment where time was of the essence and thus because of a repudiatory breach of contract. Nor is the consequence the stipulation of a sum greater than the sum which ought to have been paid. What the licensor wants, and is entitled to, is the payment of the third advance, which was already due before termination.

83. [2001] 2 All ER (Comm) 416 at 433 [49].

109. As to the statement “I am prepared purely for the sake of argument to assume that in the appropriate circumstances a forfeiture of rights is proscribed as much as a payment of money (although I think that assumption goes further than the law currently allows)”, both the immediate context and the case as a whole make clear that this was in reference to the law of penalties, not relief against forfeiture; his Lordship was prepared to assume that a forfeiture of rights could be a penalty, as I have concluded above. [84] Insofar as his Lordship also referred to relief against forfeiture, it was to point out that in Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade),[85] the House of Lords had distinguished between merely contractual rights (for which relief was not available), and contracts concerning the transfer or creation of proprietary or possessory rights (for which it was); and that in Sport International Bussum BV v Inter-Footwear Ltd, [86] the House of Lords had applied the ratio of The Scaptrade to “mere contractual licences” to use certain names and trademarks, and refused to give relief. In BICC Plc v Burndy Corporation, [87] the effect of The Scaptrade and Sport International was stated to be “to confine the court's jurisdiction to grant relief against forfeiture to contracts concerning the transfer of proprietary or possessory rights”. Accordingly, SCI v Titus does not support the availability of relief against forfeiture in respect of mere contractual rights.

     84. See at [93] above.

     85. [1983] 2 AC 694 at 702.

     86. [1984] 1 WLR 776.

     87. [1985] Ch 232 at 251.

110. In Milton v Proctor, [88] McHugh JA (as he then was) observed that in an extrajudicial paper, Sir Anthony Mason had said that there ‘are persuasive reasons for saying that the jurisdiction should extend to relief against the forfeiture of a contractual right, at least when that contractual right, if enforced, results in the acquisition of an estate or interest in land’, [89] but was not himself prepared to so extend the doctrine. Clarke JA, with whom Mahoney JA agreed, held that relief was not available from termination of a mere contractual licence, observing that The Scaptrade and Sport International Bussum “proceed upon the basis that a mere contractual licence does not create an interest in the land and present a formidable barrier to any claim to relief in respect of the termination of a contractual licence”. [90] In Westminster Properties Pty Ltd v Comco Constructions Pty Ltd,[91] Kennedy J, with whom Malcolm CJ and Pidgeon J agreed, described the extension of the doctrine of relief from forfeiture to mere contractual rights as a “radical broadening”. While observing that “it may be, in some respects, difficult to justify a line drawn between the forfeiture of personal property and the forfeiture of a chose in action”, and referring to Sir Anthony Mason’s observation in ‘Themes and Prospects’ (mentioned by McHugh JA in Milton v Proctor) (but noting that the reservation in that observation to rights that would establish an estate or interest in land was “significant”), Kennedy J then refused the invitation to “for the first time, radically extend the scope of the doctrine of relief against forfeiture”. [92] However, the contractual right in question in that case – in which a builder had terminated a building contract – was the proprietor’s alleged right to continued performance; it was not an accrued right.

     88. (1988) 4 BPR 9654 at 9659-9660.

     89. A Mason, ‘Themes and Prospects’ in P D Finn (ed), Essays in Equity (1985, Law Book Co) 242 at 248.

     90. (1988) 4 BPR 9654 at 9669.

     91. (1991) 5 WAR 191 at 205.

     92. Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 at 206.

111. The respondent drew attention to the judgment of Edelman J in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6), [93] in which relief was sought from forfeiture of contractual rights effected by termination. His Honour declined to grant relief against forfeiture, but was content to proceed on the basis that it was not precluded merely because the subject matter was not a proprietary right. [94] In that respect, his Honour observed[95] that while there are authorities that can be read as supporting the proposition that relief against forfeiture is only available to protect a proprietary right (referring to The Scaptrade, Sport International, and Shiloh Spinners Ltd v Harding,[96] where Lord Wilberforce spoke of the jurisdiction to “relieve against the forfeiture of property”), other authorities suggested that the doctrine might not be so limited and might apply, for instance, to a contractual licence (referring to Chaka Holdings Pty Ltd v Sunsim Pty Ltd,[97] Milton v Proctor [98] and C J Rossiter, Penalties and Forfeiture: Judicial Review of Contractual Penalties and Relief Against Forfeiture (Law Book Co., 1992) p 201).

     93. (2015) 329 ALR 1; [2015] FCA 825 at [978]-[990].

     94. Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) (2015) 329 ALR 1; [2015] FCA 825 at [990].

     95. Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) (2015) 329 ALR 1; [2015] FCA 825 at [981]-[982].

     96. [1973] AC 691 at 722.

     97. (1987) 10 BPR 18,171 at 18,182 (Young J).

     98. (1988) 4 BPR 9654 at 9659-9660 (McHugh JA).

109. His Honour then identified four difficulties with confining the doctrine to proprietary rights, namely that:

1. none of the cases identified a principled basis for confining relief against forfeiture to proprietary rights; [99]

2. “blind adherence to older authority that suggests that relief against forfeiture is unavailable for non-proprietary rights simply shifts the enquiry into the meaning of a proprietary right”; [100]

3. a requirement for a “proprietary” right is difficult to reconcile with the cases in which relief had been granted in respect of the termination of contracts for the purchase of land; [101] and

4. at least one foundational rationale for relief against forfeiture – namely that it is a constraint on the unconscionable exercise of a contractual power – was not tied to the existence of a proprietary right. [102]

   99. (2015) 329 ALR 1; [2015] FCA 825 at [983]-[984].

   100. (2015) 329 ALR 1; [2015] FCA 825 at [985].

   101. (2015) 329 ALR 1; [2015] FCA 825 at [986]-[987].

   102. (2015) 329 ALR 1; [2015] FCA 825 at [988], referring to Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285 at [239]-[240].

113. However, because his Honour considered that other conclusions reached in the case precluded a grant of relief against forfeiture, the question was not decided. [103] On appeal, the Full Federal Court (Besanko, McKerracher and Beach JJ) said:[104]

… for the reasons set out by the primary judge at [978] to [988], relief against forfeiture may be taken to be available in principle.

103. (2015) 329 ALR 1; [2015] FCA 825 at [990]-[991].

104. Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55 at [421].

114. Subsequently, Edelman J’s approach has been referred to, without disapproval, by Ward CJ in Eq in Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd, [105] (but it was not necessary to determine the question, because the subject matter was proprietary); by Darke J in Ayers Rock SkyShip Pty Ltd,[106] (assuming that relief was available in respect of the termination of an Operator Agreement, but not granting relief); and by the Victorian Court of Appeal (McLeish JA, Beach and Niall JJA agreeing) in JPA Finance Pty Ltd v Gordon Nominees Pty Ltd, [107] (assuming that relief was available in respect of the forfeiture of an option to acquire units in a unit trust). Indeed, the same approach was adopted by the primary judge in this case, although without express reference to Mineralogy. However, Edelman J’s views were not embraced by the Court of Appeal of England and Wales in Vauxhall Motors Ltd (formerly General Motors UK Ltd) v Manchester Ship Canal Co Ltd. [108]

     105. (2017) 324 FLR 378; [2017] NSWSC 1230 at [211]-[212]; see also Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd (2018) 19 BPR 38,569; [2018] NSWCA 114 at [25], [49]-[58].

     106. (2019) 19 BPR 39,541; [2019] NSWSC 828 at [106]-[107].

     107. (2019) 58 VR 393; [2019] VSCA 159 at [82]; SLR Gordon Nominees Pty Ltd v JPA Finance Pty Ltd [2019] HCATrans 248 (13 December 2019).

     108. [2019] Ch 331; [2018] EWCACiv 1100 at [52]-[53]; affirmed Vauxhall Motors Ltd (formerly General Motors UK Ltd) v Manchester Ship Canal Co Ltd [2019] 3 WLR 852; [2019] UKSC 46.

115. The following comments may be made in respect of Edelman J’s observations.

116. First, it is correct that there are cases which have suggested, or assumed, that relief against forfeiture might be available in respect of a contractual licence. In NSW Rifle Association Inc v Commonwealth,[109] White J (as his Honour then was) likewise observed that a number of cases had held that there was jurisdiction to relieve against forfeiture of a contractual licence to occupy land. In Proctor v Milton [110] (the first instance decision of Milton v Proctor), as White J observed,[111] the licensee had a proprietary interest arising from an equitable estoppel. Relief was available because the licensee had not merely a contractual licence but also an equitable interest.

     109. (2012) 293 ALR 158; [2012] NSWSC 218 at [229].

     110. (1987) NSW ConvR 55-321 at 56,965 (Hodgson J).

     111. NSW Rifle Association Inc v Commonwealth (2012) 293 ALR 158; [2012] NSWSC 218 at [229].

117. I do not accept the respondent’s submission that Chaka Holdings was intended to extend to bare licences. In that case, Young J (as he then was) relied on Legione v Hatelely, [112] which involved the forfeiture of a purchaser’s equitable interest in the subject matter; and on the first instance decision in Proctor v Milton, in which, as explained above, there was an equitable interest in addition to the mere contractual right. While Young J described Vinden v Vinden [113] as involving a “bare licence”, his Honour also noted that equity intervened because it would be unconscionable to deny the licensee a greater right because of her reliant expenditure; [114] this was another case of an equitable interest arising by estoppel, as Clarke JA observed in Milton v Proctor. [115] In any event, what Young J said was in the context that relief was refused in any event. In Federal Airports Corporation v Makucha Developments Pty Ltd, [116] Davies J followed Proctor v Milton and Chaka Holdings to hold that, in an appropriate case, relief from forfeiture could be granted in respect of a licence to occupy land if there were unconscionable conduct by the licensor, but expressly distinguished a “mere contractual or personal right”.

     112. (1983) 152 CLR 406; [1983] HCA 11.

     113. [1982] 1 NSWLR 618.

     114. Chaka Holdings Pty Ltd v Sunsim Pty Ltd (1987) 10 BPR 18,171 at 18,182.

     115. (1988) 4 BPR 9654 at 9668-9.

     116. (1993) 115 ALR 679 at 700 (Davies J); [1993] FCA 444.

118. Accordingly, to the extent that there is authority extending relief against forfeiture to contractual licences in respect of real property, that is only so where the licensee has, in addition to their contractual rights, some estate or interest in the land which equity would protect. [117]

     117. See also Vauxhall Motors Ltd (formerly General Motors UK Ltd) v Manchester Ship Canal Co Ltd [2019] 3 WLR 852; [2019] UKSC 46, in which it was held that there was jurisdiction to grant relief against forfeiture of a licence, where the licence was unusual in that it granted an element of virtually exclusive possession coupled with a high degree of control and because it had been granted in perpetuity, gave the claimant a possessory right.

119. Secondly, I respectfully do not agree that the accepted jurisdiction to relieve against forfeiture in the case of termination of a contract for sale of land is anomalous. It is universally accepted that upon exchange of contracts, a purchaser acquires an equitable interest in the subject matter of the contract. Termination of the contract by the vendor effects a forfeiture of that interest, and it is in respect of that interest that relief is granted. [118] Again, there is more than a mere contractual right.

     118. Legione v Hateley (1983) 152 CLR 406 at 426-427 (Gibbs CJ and Murphy J); [1983] HCA 11.

120. Thirdly, while it may be true that the cases do not explain why the doctrine should be confined to proprietary and possessory rights, and that one rationale of the doctrine (being that it is a constraint on the unconscionable exercise of a contractual power) is not tied to the existence of a proprietary or possessory right, that does not deny that the cases are against the application of the doctrine to merely contractual as distinct from proprietary and possessory rights. And while that may mean that the inquiry then becomes what is “proprietary” for the relevant purpose, it does provide an identifiable discriminator of the scope of the doctrine. [119] It makes sense that a doctrine that developed and has its most common application in the context of the forfeiture of interests in land (of lessees and mortgagors) has such a scope. In the words of Lord Wilberforce in Shiloh Spinners Ltd v Harding,[120] the jurisdiction is one to “relieve against the forfeiture of property”. To like effect, the jurisdiction was described in Esanda Finance Corp Ltd v Plessnig [121] as extending to relief against forfeiture of a possessory or proprietary right in personal property, a statement which was founded on BICC Plc v Burndy Corporation,[122] in which the effect of The Scaptrade and Sport International was said to be “to confine the court's jurisdiction to grant relief against forfeiture to contracts concerning the transfer of proprietary or possessory rights”. That description of the scope of the doctrine has recently been reaffirmed in Vauxhall Motors v Manchester Ship Canal, [123] in which Lord Briggs JSC, with whom Lord Carnwath, Lady Black and Lord Kitchin JJSC agreed, said:

49 It is necessary next to address Vauxhall’s submission that a better boundary than one which merely accommodated possessory rights would be one which extended the equitable jurisdiction in relation to all forms of right to use property, provided only that the right of termination is intended to secure the payment of money for the performance of other obligations. I would reject this submission as well. It was heavily based upon an overliteral reading of Lord Wilberforce’s speech in Shiloh Spinners Ltd v Harding [1973] AC 691 which, as noted above, did not include as a condition of the existence of the jurisdiction any requirement as to the nature or quality of the rights liable to forfeiture. But he had no reason to do so, since the rights liable to forfeiture in that case amounted to a proprietary interest in land, and the question whether the jurisdiction might extend to any right to the use of property never arose for argument, let alone decision.

50 To expand the ambit of the equitable jurisdiction in that way, leaving all control upon its use as a matter of discretion, would offend against the well-recognised need to ensure that equity does not undermine the certainty of the law. Furthermore it would set at nought the careful development of the principled limitation of the jurisdiction to the forfeiture of proprietary or possessory rights, worked out over many years in a succession of broadly coherent authorities.

119. Cf Vauxhall Motors Ltd (formerly General Motors UK Ltd) v Manchester Ship Canal Co Ltd [2019] 3 WLR 852; [2019] UKSC 46 at [45].

120. [1973] AC 691 at 722.

121. (1989) 166 CLR 131 at 142-143 (Wilson and Toohey JJ), 151 (Brennan J); [1989] HCA 7.

122. [1985] Ch 232 at 251; see also Çukurova Finance International Ltd v Alfa Telecom Turkey Ltd (Nos 3 to 5) [2016] AC 923 at 957; [2013] UKPC 2 at [94]-[95] (PC).

123. [2019] 3 WLR 852; [2019] UKSC 46.

121. While the jurisdictions that relieve against penalties and forfeitures are related, and in some cases overlap, there are important and fundamental differences. Both emphasise the primary object of the contract, and mitigate the consequences of ancillary provisions that take effect on default. However, in the doctrine of penalties, the focus is on the consequences of default: the question is whether the provision imposes a disproportionately additional burden in the case of default; if so it is ineffective and no question of discretion arises, nor is there any requirement to make good the default. In relief against forfeiture, the focus is on remediation of the default: if the default can be remedied, and the innocent party placed in the position in which it would have been absent default, then the defaulting party may, subject to discretionary considerations, be relieved from the forfeiture of a proprietary or possessory interest.

122. As it seems to me, there is no decided case in which relief against forfeiture has been granted in respect of a mere contractual right, accrued or not. All the cases that suggest that it might be available in that context assume its availability in the context that relief is otherwise refused. None of them purport categorically to determine the question. On the other hand, the decisions of the House of Lords in The Scaptrade, and in Sport International Bussum; of the United Kingdom Supreme Court in Vauxhall Motors v Manchester Ship Canal; of the Privy Council in Çukurova Finance International Ltd v Alfa Telecom Turkey; of the Court of Appeal of England and Wales in BICC Plc v Burndy Corporation; of the Full Court of the Supreme Court of Western Australia in Westminster Properties Pty Ltd v Comco Constructions Pty Ltd, and of this Court in Milton v Proctor, support the view, which in my judgment represents the current state of the law, that the doctrine is confined to proprietary or possessory rights, and does not extend to mere contractual rights.

123. It follows that relief from forfeiture is not available in respect of the operation of cl 4.3(b) of the SSPA on the Restraints and Seller Warranties.

Conclusion

124. My conclusions may be summarised as follows:

125. The Completion Date was not 7 June 2018 as the judge held, nor 16 July as the respondent contended, but 22 May 2018. Appeal grounds 1 and 2 should succeed, and Contention ground 3 should fail.

126. Playup’s obligation to pay the Deferred Payment was not suspended until Mr Kay agreed the amount of the Adjustment, as the judge held, or until 16 August 2018, as the respondent contended. Nor was it suspended by Mr Kay’s failure to deliver documents said to be necessary to give content to Seller Warranty 20.1. Appeal grounds 3 and 4 should succeed, and Contention grounds 1 and 2 should fail.

127. Clause 4.3(b) of the SSPA, at least insofar as it operated to avoid the Seller Warranties and the Restraints, was a penalty, and as such unenforceable and of no effect. It follows that cl 4.3(b) did not have the effect that the Restraints and the Seller Warranties were avoided by reason of Playup‘s default in timely payment of the Deferred Payment instalments. Cross-appeal ground 1 should succeed.

128. Although as a matter of discretion relief against forfeiture if available ought to have been granted, such relief is not available in respect of mere contractual rights in the nature of the Restraints and the Seller Warranties. Cross-appeal ground 2 should fail.

129. It is apparent from the above that the appeal and the cross-appeal give rise to substantial issues of principle, and the judgment below finally determined the rights of the parties. The result is that there is no substantial change to the outcome: in the events which have happened, the Restraints and the Seller Warranties are not avoided by cl 4.3(b), although the grounds for that conclusion are different from those relied on by the primary judge. However, the declarations made by the primary judge not only state the relevant legal rights, but include a ratio for the conclusion. On the above analysis, the ratios stated are incorrect. To minimise the possibility of future complications, it is preferable that the relevant rights of the parties are correctly stated. Accordingly it is preferable that leave to appeal and cross-appeal be granted, the appeal and cross-appeal allowed, the declarations made by the primary judge set aside, and declarations substituted that cl 4.3(b), insofar as it provides for avoidance of the Restraints and the Seller Warranties, is a penalty and unenforceable and of no effect; and that in the events which have happened, the Restraints and the Seller Warranties are not avoided by cl 4.3(b).

130. As to costs, his Honour’s decision that Mr Kay should pay 80% of Playup’s costs was founded on the view that Playup had failed on severable issues, in particular its claim for the return of moneys paid under protest (which was abandoned at the outset of the hearing), its case that cl 4.3(b) was a penalty, and its claim for relief against forfeiture. In the view I take, Playup should have succeeded on the penalty case, but should have failed on the primary case on which it succeeded before his Honour. The claim for relief against forfeiture would have involved little that was not involved in the penalty case. While the primary claim involved some additional issues and evidence, much overlapped. Ultimately, Playup was entitled to the relief it sought, that the Restraints and Seller Warranties were not avoided. Prima face, having regard to Playup’s ultimate success, but making some allowance for what should have been its failure on the primary case, I would not disturb the primary judge’s costs order; but as this was not argued I would reserve leave to apply for a different costs order. As the proceedings in this Court have ultimately resulted in no improvement in Mr Kay’s position, he should pay the costs of the appellate proceedings.

131. I propose that:

1. leave to appeal be granted, and the draft notice of appeal stand as the notice of appeal;

2. leave to cross-appeal be granted, and the draft notice of cross-appeal stand as the notice of cross-appeal;

3. the appeal be allowed;

4. the amended notice of contention be dismissed;

5. the cross-appeal be allowed;

6. declarations (1), (2), (3) and (4) made in the Equity Division on 5 July 2019 be set aside, and in lieu therefore the Court declares that:

1. Subclause 4.3(b)(i) and (ii) of the Share Sale and Purchase Agreement relating to Bestbet.com.au Pty Ltd between the plaintiff (as buyer) and the defendant (as seller) dated 23 March 2018 (“Agreement”), is a penalty and unenforceable and of no effect;

2. in the events which have happened, the restraints imposed on the defendant by the Agreement, and the restraints imposed on the defendant by the Restraint Deed signed, sealed and delivered by the defendant in favour of the plaintiff on or around 7 June 2018, have not been rendered void ab initio by operation of cl 4.3(b)(i) of the Agreement;

3. in the events which have happened, the Warranties given by the defendant in the Agreement have not been rendered void ab initio by operation of cl 4.3(b)(ii) of the Agreement.

7. leave be reserved to either party to apply within 14 days in respect of order (5) made in the Equity Division on 5 July 2019.

8. the appellant pay the respondent’s costs of the application for leave to appeal, the appeal, the application for leave to cross-appeal and the cross-appeal.

132. SIMPSON AJA: Like Macfarlan JA I reserve my opinion with respect to the application of the doctrine of relief against forfeiture to rights other than proprietary or possessory rights. That is because this appeal can be disposed of without resort to that part of the argument and it is therefore unnecessary to express a view. In all other respects I agree with Brereton JA.

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Endnotes

Decision last updated: 04 March 2020