Lend Lease (Millers Point) Pty Ltd v Barangaroo Delivery Authority

Supreme Court

New South Wales

Medium Neutral Citation: Lend Lease (Millers Point) Pty Limited v Barangaroo Delivery Authority [2013] NSWSC 1848
Hearing dates: 27, 28 March and 24 May 2013
Decision date: 12 December 2013
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Subject to allowing the parties an opportunity to make submissions as to the form of the orders to be made in disposition of the proceedings, the Court proposes to declare that, upon the proper construction of the Project Development Agreement for the Barangaroo Project, an Approved Valuer making a determination of the Current Market Value for the grant of a Lease of the Premises on which the proposed buildings C4 and C5 are to be constructed (for the purpose of clause 1.2 of Schedule 3 to the PDA) is not entitled to input as cash inflows, in performing a discounted cash flow valuation for the purpose of paragraph (g) of the definition of Current Market Value in clause 1.1 of PDA Schedule 3, those cash contributions paid before Practical Completion to the Developer (by the Nominee nominated by the Developer to accept a Call Offer) respectively referred to in clause 18 of the C4 Agreement and clause 19 of the C5 Agreement.

Catchwords: CONTRACT - Construction - Dispute resolution clauses - Expert Valuation - Dispute about terms of instructions to Valuers - Declarations sought as to proper construction of contract - Declaratory relief available
REMEDIES - Declarations - Declarations without consequential relief - Construction of contract - Commercial contract - Dispute resolution clauses - Declarations granted in aid of contractual dispute resolution procedure
Legislation Cited: Barangaroo Delivery Authority Act 2009 NSW
Court Suppression and Non-Publication Orders Act 2010 NSW
Government Information (Public Access) Act 2009 NSW
Supreme Court Act 1970 NSW
Valuers Act 2003 NSW
Cases Cited: AG Robertson Limited v Valuer-General (1952) 8 LGR (NSW) 261 at 262
Albany v Commonwealth (1976) 60 LGRA 287 at 293-294
Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 at 109
Australian Provincial Assurance Association Limited v Commissioner of Land Tax [1942] ALR 156 at 158
Blair v Curran (1939) 62 CLR 464 at 531-533, that render them binding on the parties
Boland v Yates Property Corp Pty Limited (1999) 74 ALJR 209 at 268
Codelfa Constructions Pty Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 at 350, 352
Equuscorp Pty Limited v Glengallan Investments Pty Limited (2004) 218 CLR 471 at 483 [34]
Fitzgerald v Masters (1956) 95 CLR 420 at 426-427; 436-438
Hogan v Hinch (2011) 243 CLR 506 at 531 [21])
John Fairfax & Sons Limited v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477
Legal & General Life of Australia Limited v A Hudson Pty Limited (1985) 1 NSWLR 314 at 335D-336B
Pacific Carriers Limited v BNP Paribas (2004) 218 CLR 451 at 461-462 [22]
Royal Botanic Gardens and Domain Trust v South Sydney City Council (2009) 240 CLR 45 at 62-63 [39]
Spencer v The Commonwealth (1907) 5 CLR 418 at 432, 436-437 and 440-441
Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 at 179 [40]
Western Export Services Inc v Gireh International Pty Limited [2011] HCA 45; 86 ALJR 1 at [3]-[5]
Texts Cited: K Lewison and D Hughes, The Interpretation of Contracts in Australia Law Book Co, Sydney, 2012) paragraph (7.02)
JW Carter, The Construction of Commercial Contracts
AA Hyam, The Law Affecting Valuation of Land in Australia (Federation Press, 3rd ed, 2004, Sydney), pp 124-126; 143-149
Category: Principal judgment
Parties: First Plaintiff: Lend Lease (Millers Point) Pty Limited (ABN 15 127 727 502)
Second Plaintiff: Lend Lease Corporation Limited (ABN 32 000 226 228)
Defendant: Barangaroo Delivery Authority (ABN 94 567 807 277)
Representation: IM Jackman SC with SA Lawrance (Plaintiffs)
B Walker SC with G Rich and S Nixon (Defendant)
Herbert Smith Freehills (Plaintiffs)
Clayton Utz (Defendant)

File Number(s): 2012/000379741

Judgment

INTRODUCTION

These proceedings concern the proper construction of a contract between the first plaintiff, Lend Lease (Millers Point) Pty Limited (as "Developer") and the second plaintiff, Lend Lease Corporation Limited (as "Guarantor" of the Developer) on the one hand, and, on the other hand, the defendant, the Barangaroo Delivery Authority.

The Authority is a New South Wales Government agency constituted under the Barangaroo Delivery Authority Act 2009 NSW ("the BDA Act").

The contract (styled "Project Development Agreement" and commonly identified as "the PDA") concerns the terms upon which public land, known as "Barangaroo", on the foreshore of Sydney Harbour is presently being developed.

The parties find themselves in dispute about the proper construction of particular provisions of their contract (centrally, paragraph (g) of the definition of "Current Market Value" in Schedule 3 to the PDA) that appear, to both sides of the record, to have significant financial implications for due performance of the PDA.

The relief sought, on both sides, is confined to declaratory relief about the proper construction of the contract.

By their summons and supporting pleadings the plaintiffs (respectively, a land developer and its guarantor) have applied for a declaration vindicating their contention as to the true construction of the contract. By its cross summons, the defendant (owner of the land the subject of development) has applied for a declaration to the opposite effect. From their opposite adversarial corners, having joined issue with one another, they make common cause in inviting the Court to adjudicate their contest.

Neither side claims relief consequential upon a grant of declaratory relief. An order for a declaration of right carries with it liberty to apply for consequential relief (Royal Insurance Company Ltd v Mylius (1926) 38 CLR 477 at 497), but there appears to be no present need for consequential relief.

The PDA is on foot. Nobody contends otherwise. All parties have held themselves out to the Court, without qualification, as ready, willing and able to perform their respective obligations under the contract, properly construed.

There is presently no need for an order for specific performance to compel performance of the contract, or an injunction to restrain a breach of it, because the declared intention of each party is to perform its respective obligations.

The question of construction that divides the parties is not a feigned, or hypothetical, issue. Evidence before the Court demonstrates, as a fact, that there is a genuine dispute that is presently impeding performance of the contract on both sides.

What is sought from the Court is not abstract judicial advice. The parties want an authoritative determination of the meaning of the PDA so that they can move forward in performance of the contract. A grant of declaratory relief, without consequential relief, is not likely, on the parties' present understanding of their relationship, to lead to fragmentation of litigation.

Two provisions of the Supreme Court Act 1970 NSW bear upon the current proceedings.

Section 75 of the Act provides that "[no] proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not".

Section 63 directs the Court to "grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided".

In particular cases (illustrated by Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 306-307), there may be a tension between ss 63 and 75 because a decision whether to grant, or withhold, declaratory relief is discretionary, and one of the factors to be taken into account upon an exercise of such a discretion is the desirability of avoiding a fragmentation of disputes likely to frustrate the policy objective expressed in s 63.

That said, judicial resistance to widespread use of declaratory proceedings as a means of facilitating the conduct of commerce ceased long ago: Sankey v Whitlam (1978) 142 CLR 1 at 20-21 and 23, referring to Dyson v Attorney-General [1911] 1 KB 410 and Guaranty Trust Company of New York v Hannay & Company [1915] 2 KB 536 as foundational cases. The jurisprudence that presently guides an exercise of the Court's discretion accepts that the Court's jurisdiction is extensive, and that it should be freely exercised when there is utility in doing so: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582. The availability of declaratory relief, with or without consequential relief, is regarded as an important incident of the Court's commercial causes jurisdiction: Integrated Lighting & Ceilings Pty Ltd v Philips Electrical Pty Ltd (1969) 90 WN (Pt 1) (NSW) 693 at 701B-E and 702F-G.

A core problem for the parties in the present proceedings is that a dispute resolution mechanism for which the PDA provides has been paralysed by the parties' inability to agree upon the terms in which expert valuers are to be briefed for the purpose of making an assessment of the "Current Market Value" of property within the meaning of PDA Schedule 3.

Performance of the PDA has reached the stage where an assessment of "Current Market Value", as defined by the contract, is required in relation to two buildings (respectively described as "C4" and "C5") that form part of the parties' development project.

Assessments of "Current Market Value" drive quantification of payments to be made by the first plaintiff, as Developer, to the defendant.

By reference to several provisions of the PDA (principally, clauses 4.1, 4.2, 4.5, 27 and 29), and several definitions set out in clause 1.1 of the contract (including "Call Offer", "Call Offer Period", "Lease Commencement Date", "Nominee", "Premises", "Premises Land Value", "Pro-forma Lease" and "Works Portion") one comes eventually to Schedule 3.

Clause 1.1 of Schedule 3 defines "Current Market Value" by reference, inter alia, to assumptions specified in paragraphs (a) to (h) of the definition. Clause 1.2 of the Schedule throws light on the meaning of "Current Market Value" by its description of the way in which a determination of "Current Market Value" is to be determined by expert valuers.

The central focus of the parties' dispute is paragraph (g) of the definition of the definition of "Current Market Value". The assumption for which it provides is expressed in the following terms:

"The Purchaser [an expression defined in early parts of the definition of 'Current Market Value' in terms reminiscent of a hypothetical purchaser of the type encountered in Spencer v The Commonwealth (1907) 5 CLR 418 at 432, 436-437 and 440-441] is entitled to derive a pre-financing (ungeared) project IRR [an expression defined in PDA Schedule 3 but which, here, can be taken to mean 'Internal Rate of Return'] of [x %] in respect of the costs referred to in paragraph (e) and the carrying out of the Approved Development Works [Emphasis added]."

The reference, here, to "x % " rather than the numerical figure in the PDA pays due respect to an application made by the plaintiffs - not opposed by the defendant - for orders under the Court Suppression and Non-Publication Orders Act 2010 NSW for preservation of the confidentiality of commercially sensitive information in, or associated with, the PDA.

The terms upon which such orders might be made is one of the topics that requires consideration in this judgment. At the commencement of the hearing, interim orders were made under s 10 of the Act to facilitate the conduct of the hearing. They were confirmed when, at my invitation, the evidence was re-opened to ensure that there was before the Court a sufficient evidentiary foundation for an orderly determination of the proceedings.

A core dispute between the parties concerns the meaning of the expression "a pre-financing (ungeared) project IRR".

That expression ties in with the definition of "IRR" in PDA Schedule 3 clause 1.1.

"IRR" is defined to mean "the discount rate at which the net present value of the projected cash flows is equal to zero. It is to be determined by using monthly cash flows and applying [a specified computer programme]".

This requires monthly cash "inflows" (on the "revenue" side of the ledger) and "outflows" (on the "expenses" side) relating to Approved Development Works (as defined by paragraph (d) of the definition of Current Market Value) to be taken into account in a discounted cash flow analysis. The parties' dispute relates to whether particular cash inflows should, or should not, be taken into account.

Particular notice should, here, be taken of the expression "taken into account". It hides layers of complexity that need to be uncovered.

First, the fact that the parties seek a declaration and a counter declaration in particular terms does not bind the Court to embrace one or the other. The Court can mould a grant of declaratory relief to reflect its determination of the true construction of the PDA, emerging from the dialectic of adversarial debate.

Secondly, an exploration of the parties' competing contentions may lead to a conclusion that the question whether particular cash flows should, or should not, be "taken into account" may be interdependent with, and subordinate to, questions about how and for what purpose such inflows might be "taken into account".

Thirdly, care needs to be taken to remember the context in which declaratory relief is sought, and the purpose for which such relief is sought. These proceedings have been instituted in aid of a decision-making process whereby, as the parties have agreed in PDA Schedule 3 clause 1.2, expert valuers are to determine the value of property. The proceedings cannot be permitted to subvert the valuers' exercise of their professional judgment by an erroneous conversion of "valuation" questions into "legal" ones.

Fourthly, a principal purpose, if not the principal purpose, for the Court's involvement in the parties' contractual dealings, at this stage, is to reduce the risk that the decision-making processes for which the PDA provides may miscarry for want of clarity in the task to be performed by the professional valuers selected by the parties. Attention needs to be focussed on the question(s) asked of the valuers, and a pathway needs to be cleared for them to move towards their answer(s), so that they can be left to their professional judgment in answering calls made on them.

Fifthly, the valuation exercise for which the PDA provides may have a bearing on the profitability of the contract from the joint and several perspectives of the parties to it, highlighting the importance of the PDA being construed as a whole.

Sixthly, all questions that arise for consideration in these proceedings must be determined within the paradigm of the contractual arrangements that the parties, acting autonomously, have themselves adopted.

If the parties' dispute is not authoritatively determined by the Court, any determination by expert valuers of the "Current Market Value" of property within the meaning of the PDA may fail to answer the description of "Current Market Value" for the purposes of the contract. Their determination would, in those circumstances, be contractually flawed according to principles enunciated by McHugh J in Legal & General Life of Australia Limited v A Hudson Pty Limited (1985) 1 NSWLR 314 at 335D-336B.

The Court's support for alternative dispute resolution procedures generally may, in an appropriate case (of which this is an example), allow, and require, it to lend its aid to the due performance of a contractual ADR process.

A practical condition for the effective exercise of this jurisdiction in these proceedings is the communication to the Court, by both sides of the record, that: first, they stand ready, willing and able to perform their respective obligations under the PDA, as properly construed; secondly, they are ready, willing and able to submit to the dispute resolution procedures for which the PDA provides once the present impasse is cleared away; and thirdly, they each accept that the declarations of intent made on these questions by the opposite side are bona fide and based on reasonable grounds.

CONFIDENTIALITY ORDERS

By a notice of motion filed, and amended, on 27 March 2013 (the first day of the hearing of the principal proceedings), the plaintiffs applied for suppression orders designed to protect the confidentiality of commercially sensitive information in documentation intended to be adduced as evidence in the principal proceedings. The motion had been earlier foreshadowed.

The motion was supported by affidavits sworn by David Stewart Hutton on 25 and 26 March 2013.

Subject to four qualifications, that evidence establishes a sufficient case for the making, and maintenance, of orders for the preservation of the confidentiality of commercially sensitive information adduced in evidence in the principal proceedings.

The qualifications are these. First, in making an assessment of what, if any, orders are necessary or should be made to facilitate the proper administration of justice the Court must be mindful of the purpose, or purposes, served by invocation of the Court's jurisdiction in the principal proceedings.

Those proceedings are directed towards the determination of a dispute between contracting parties, in aid of performance of contractual obligations on both sides of the record. The primacy given (by Parliament, in s 6 of the Court Suppression and Non-Publication Orders Act 2010 NSW, and by the Court itself under the general law) to the public interest in open justice must take into account the purpose, or purposes, served in the principal proceedings. Different proceedings, governed by a different purpose, may yield a different outcome in terms of public disclosure of information.

Secondly, any decision made for the grant, or continuance, of a suppression order or a non-publication order must take colour from the constitution of the proceedings in which it is made and the presence or otherwise of an active contradictor to any application for such an order.

In the present proceedings, as constituted, there is no active contradictor to test the evidence or submissions advanced in support of the plaintiffs' application for orders under the Court Suppression and Non-Publication Orders Act. Given the purpose for which the principal proceedings have been instituted, that is entirely understandable. However, it needs to be noted lest, in other contexts, that evidence, and those submissions, come under closer scrutiny than has been possible, or appropriate, in these proceedings.

Thirdly, in making, or continuing, an order under the Court Suppression and Non-Publication Orders Act, the Court may be required to allow for the fact that information the subject of an order is, or may become, no longer confidential.

That possibility is present in these proceedings if only because of the operation of the Government Information (Public Access) Act 2009 NSW and the ongoing public scrutiny to which the Barangaroo Project is subject.

Fourthly, because all suppression orders and non-publication orders made under the Court Suppression and Non-publication Orders Act are subject to a review mechanism, for which ss 13-14 of the Act provides, all such orders are, to that extent, contingent on the absence of a statutory review.

Parties entitled to apply for a review under s 13 include a news media organisation or any other person who, in the opinion of the Court, has a sufficient interest in the question whether a suppression order or non-publication order should have been made or should continue to operate.

In the context of these proceedings, as presently constituted and in the absence of an active contradictor, I accept the substance of the evidence adduced by the plaintiffs through the affidavits of Mr Hutton.

Mr Hutton is a senior officer (the Group Head of Development) of Lend Lease Corporation Limited and its subsidiaries, including the plaintiffs. He has occupied his current office since April 2010. He has worked at "Lend Lease" since 1988.

As Group Head of Development, Mr Hutton is a member of Lend Lease's senior management team, reporting direct to the Group's Global Chief Operating Officer.

The majority of Lend Lease's large development projects world-wide are secured through some sort of competitive tender or bid. Mr Hutton is responsible for overseeing major development projects and bids. He sits on Lend Lease's Global Investment Committee, along with other senior managers including the Group's Global Chief Executive Officer and its Global Chief Financial Officer. Where investments require approval of the Lend Lease Board of Directors, that Committee determines whether to make a recommendation to the Board.

In his affidavits, Mr Hutton deposed, inter alia, to the nature of the business of Lend Lease; the identity of its competitors; the competitive tender process that led to entry into the PDA; the nature of the Barangaroo development; and processes associated with Lend Lease's making a bid for a development project, performing project work, raising finance through investors and seeking tenants to occupy premises in a completed development.

Lend Lease (through the first plaintiff) participated in the New South Wales Government's international design competition for Barangaroo in 2006, and then again in the international development tender process for the project in 2008/2009. It was announced as the preferred proponent for the development on 20 December 2009 and, after additional work, the PDA was signed in March 2010.

Initial construction for the project officially commenced on 25 October 2011. Substantial work, involving a commitment of millions of dollars, has been undertaken since that time.

In order to fund the project, Lend Lease undertook what Mr Hutton understands to have been the largest equity-raising of its kind in Australia (totalling $AUD 2 billion), including $AUD 1 billion from a major off-shore institutional investor. The project is forecast to be valued at $AUD 6 billion on completion.

Mr Hutton has been closely involved with the Lend Lease bid and management of the project from 2008 until the present time. As the Chief Operating Officer of Lend Lease Asia Pacific, he was the senior Lend Lease executive responsible for overseeing Lend Lease's bid for the project. He presented the proposed bid to the Lend Lease Board for approval. In his capacity as Group Head of Development, and as a member of Lend Lease's senior management team, he has continued to monitor and have input into the Project, including negotiations for the securing of $AUD 2 billion of equity for the Project raised for Project funding in July 2012. He is a member of the formal Joint Management Committee for the Project, which has representatives from both Lend Lease and the defendant. He is a director of the first plaintiff, and a designated senior Lend Lease spokesman for the Project. In the course of his duties he often meets with key external stakeholders including representatives of the New South Wales Government, tenants and investors.

In support of the suppression orders sought by the plaintiffs, Mr Hutton's evidence traverses distinct categories of information that the plaintiffs, and Lend Lease more generally, consider to be commercially sensitive. Mr Hutton explains why each category of information is regarded to be commercially sensitive, and links those explanations with particular items of information in respect of which suppression orders are sought.

The categories of information the subject of the application for suppression orders are directed, generally, to pricing, costs and similar information: payment processes, mechanisms or formulas that Lend Lease adopts in its tender processes, including the tender for the Barangaroo Project; the nature, extent, quantum or composition of Lend Lease's actual or anticipated payments or costs relating to the Project, including costs relating to financing arrangements; rates of return on investment as employed in the PDA and other project margins employed in respect of the Project; Lend Lease's financial modelling employed in respect of the tender for the Project; and its funding arrangements with investors in respect of the Project.

In the context of these proceedings, as presently constituted and in the absence of an active contradictor, I accept Mr Hutton's evidence, and accordingly I find, that Lend Lease has a substantial investment, built up over many years, in commercial systems able to support competitive bids for large development projects and (by the performance of construction work, entry into financial arrangements and marketing of property the subject of development work) to carry those projects to completion over the long years from concept to realisation.

In the context of these proceedings, as presently constituted and in the absence of an active contradictor, I also find, that, insofar as the Barangaroo Project is a current project (and is not anticipated to be completed for several years yet), disclosure of the information presently sought to be made the subject of suppression orders would very likely prejudice Lend Lease's ability to negotiate with sub-contractors, suppliers, prospective tenants, prospective investors and others involved in carrying through the Project to fruition. Exposure of the plaintiffs' cost sensitivities, risks, margins and profitability calculations could do substantial harm to the economic interests of the plaintiffs, and others, who, by committing themselves to the Project, have an economic interest in its due administration.

The plaintiffs' motion is predicated upon an acceptance of three propositions.

First, any suppression order made in favour of the plaintiffs should incorporate one or more "sunset clauses". This gives recognition to the fact that any perceived necessity to maintain such confidentiality as may attach to particular contractual provisions is likely to fade, over time, as the Barangaroo Project approaches completion or, at least, moves beyond earlier phases of performance.

Secondly, because the PDA is a government contract, the defendant has been required to make disclosures about it to the public, in accordance with the Government Information (Public Access) Act 2009 NSW, unless a need for confidentiality is established. The extent of disclosures required to be made for the purpose of that Act has been the subject of a decision in the Administrative Decisions Tribunal in which (with the benefit of participation in the decision making process by a party not privy to the PDA) independent consideration has been given to the operation of the Government Information (Public Access) Act: Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSW ADT 252 (7 November 2013). In the current proceedings, the Court's focus is upon the operation of the Court Suppression and Non-publication of Orders Act and the inherent jurisdiction of the Court.

Thirdly, as is recognised by the Court Suppression and Non-publication of Orders Act (s 6) and upon an exercise of the Court's inherent jurisdiction the principle of open justice that is a touchstone of decision-making in the Court must be accommodated, as a primary consideration, in the conduct of the current proceedings.

Consistently with their acceptance of a need to ensure that these proceedings are open to public scrutiny, each of the parties provided to the Court, for publication to news media organisations that might seek access to them, a redacted form of the written submissions relied upon in oral argument.

Full allowance needs to be made for these considerations and, critically, the public interest in deciding where the interests of justice lie upon a determination of the plaintiffs' motion for suppression orders.

That motion invokes both the jurisdiction for which the Court Suppression and Non-publication Orders Act 2010 NSW provides (Rinehart v Welker [2011] NSWCA 403) and the inherent jurisdiction of the Supreme Court as a superior court (John Fairfax & Sons Limited v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477; Hogan v Hinch (2011) 243 CLR 506 at 531 [21]).

The application can, and should, be accommodated by an application of the Court Suppression and Non-publication Act, s 4 of which expressly provides that the Act does not limit or otherwise affect any inherent jurisdiction or any powers that the Court has to regulate its proceedings or to deal with a contempt of court.

For present purposes, the material provisions of the Act are the definitions of "court", "information", "non-publication order", "party", "publish" and "suppression order" in s 3 and ss 6, 7(b), 8(1)(a), 8(1)(e), 8(2), 9(1), 9(3)-(5), 10, 11 and 12:

"3. Definitions

In this Act:

'court' means:

(a) the Supreme Court, ...

'information' includes any document. ...

'non-publication order' means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

'party' to proceedings includes the complainant or victim (or alleged victim) in criminal proceedings and any person named in evidence given in proceedings and, in relation to proceedings that have concluded, means a person who was a party to the proceedings before the proceedings concluded.

publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

'proceedings' means civil or criminal proceedings.

'publish' means disseminate or provide access to the public or a section of the public by any means, including by:

(a) publication in a book, newspaper, magazine or other written publication, or

(b) broadcast by radio or television, or

(c) public exhibition, or

(d) broadcast or publication by means of the Internet.

'suppression order' means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

6. Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-

7. Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of: ...

(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

8. Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

9. Procedure for making an order

(1) A court may make a suppression order or non-publication order on its own initiative or on the application of:

(a) a party to the proceedings concerned, or

(b) any other person considered by the court to have a sufficient interest in the making of the order. ...

(3) A suppression order or non-publication order may be made at any time during proceedings or after proceedings have concluded.

(4) A suppression order or non-publication order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.

(5) A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made.

10. Interim orders

(1) If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.

(2) If an order is made as an interim order, the court must determine the application as a matter of urgency.

11. Where an order applies

(1) A suppression order or non-publication order applies only to the disclosure or publication of information in a place where the order applies, as specified in the order.

(2) A suppression order or non-publication order is not limited to applying in New South Wales and can be made to apply anywhere in the Commonwealth.

(3) However, an order is not to be made to apply outside New South Wales unless the court is satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made.

12. Duration of orders

(1) A suppression order or non-publication order operates for the period decided by the court and specified in the order.

(2) In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

(3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event. "

A suppression order or non-publication order made pursuant to these provisions can be reviewed by the Court on its own initiative or on an application by a person, identified in s 13(2), who is entitled to apply for a review: s 13. By s 14 (read with s 101(1)(a) of the Supreme Court Act 1970 NSW), an appeal lies to the Court of Appeal, with that Court's leave, against a decision of a divisional judge of the Supreme Court to make, or not to make, a suppression order or non-publication order, or a decision of such a judge referable to a review of such orders.

Having made interim orders under s 10 of the Act at the commencement of the hearing of the principal proceedings, and having confirmed those orders during the course of the hearing, I have satisfied myself that they should be continued, provided that their continuation does not interfere with the orderly decision making processes that culminated in the ADT's determination of 7 November 2013 or any appeal from that determination.

The open availability of the parties' written submissions in redacted form, the conduct of the hearing of the proceedings in public, and the publication of Reasons for Judgment in which the parties' submissions are openly canvassed, combine to expose to public scrutiny the nature of the parties' dispute, their competing contentions and the Court's determination of the dispute.

That done, there is a public interest, as well as a private one, in permitting contracting parties to maintain commercial confidentiality in the ongoing performance of complex contractual arrangements. In this case, that public interest includes facilitation of a dispute resolution procedure which, working as it should, contemplates a private decision-making process. The administration of justice, in a system that encourages parties to make, and to adhere to, "alternative dispute resolution" arrangements requires that due allowance be made for the importance attached to confidentiality by participants in many ADR processes. If parties such as those presently before the Court were to be denied all prospect of their commercial arrangements remaining confidential, it would undermine the utility of ADR procedures, upon which the current court system heavily depends for the orderly resolution of civil disputes.

In publishing these Reasons for Judgment, I propose to allow the parties an opportunity to make submissions as to the precise form of the declaratory relief to be granted in the principal proceedings. In entertaining such, if any, submissions as they may make about the form of declarations, I will also allow the parties an opportunity to formulate the precise terms in which, having regard to the proceedings in the ADT, orders under the Court Suppression and Non-Publication of Orders Act should be expressed.

THE QUESTION IN DISPUTE

The beguiling simplicity of the central question stated by the parties for determination by the Court disappears, from time to time, as one enters the thickets of interlocking definitions, and countless qualifications, in complex commercial documents. However, it is important to negotiate a path through the thickets in order to verify the question, and to arrive at an answer, in a manner calculated to accommodate the PDA, as a whole and in its true commercial setting.

The central question in dispute is WHETHER, on the proper construction of the PDA, the definition of "current market value" in PDA Schedule 3 requires or permits an Approved Valuer (that is, as defined by Schedule 3 clause 1.1, an expert valuer registered under the Valuers Act 2003 NSW and possessed of other qualifications, professional experience and reputation as described in the PDA), when assessing the current market value for the premises for the C4 building (and, mutatis mutandis, the C5 building), to include the cash contributions received by the first plaintiff as Developer under an agreement described as "the C4 Agreement" (and a corresponding agreement referred to as "the C5 Agreement") prior to practical completion (as defined in PDA clause 1.1) as cash in-flows in the discounted cashflow analysis undertaken for the purpose of paragraph (g) of the definition of "Current Market Value".

The defendant asserts, and the plaintiffs deny, that an Approved Valuer calculating the Current Market Value of the Premises relating to the C4 Building (and the Premises relating to the C5 Building) must, when performing the discounted cashflow analysis required by paragraph (g), "input" the cash contributions to be received by the first plaintiff under the C4 Agreement (and the C5 Agreement) as cash in-flows of the hypothetical Purchaser.

The word "input", here, is similar to with the expression "taken into account" earlier discussed. Larger issues are hidden from view.

The high water mark of the plaintiffs' case is a contention that payments made to the first plaintiff under the C4 Agreement are to be ignored because they bear the character of "financing" or "funding" payments which paragraph (g) dictates be put aside.

The high water mark of the defendant's case is that all payments under the C4 Agreement are to be included, at full value, on the "revenue" side of the discounted cash flow analysis contemplated by paragraph (g). That is said to be because they bear the character of progress payments for work done or property sold. One side's high water mark is the other's low tide.

The PDA, as presented for review in these proceedings, was entered into on 5 March 2010 and subsequently varied by agreements dated 1 April 2010, 8 June 2010, 30 July 2010, 23 December 2010 and 14 June 2012. The version in evidence is a consolidated version annexed to the "Deed of Amendment" dated 14 June 2012.

The "C4 Agreement" and the "C5 Agreement" are in substantially similar terms. The parties are agreed that, for the sake of convenience, the Court's determination of the question in dispute can be directed to the terms of the PDA Agreement on the one hand and, on the other hand, the terms of the C4 Agreement and a related Side Agreement. They are agreed that that determination will, incidentally, determine their dispute relating to characterisation of the C5 Agreement and its Side Agreement.

The C4 Agreement is a written agreement dated 7 July 2012 made between Lend Lease IMT (LLWTST ST) Pty Limited as "Owner", the first plaintiff as "Developer", Lend Lease IMT (LLWTST) Limited as the "Owner's Guarantor" and Lend Lease (Barangaroo South Co Owner) Pty Limited as "Central Plant Co-owner". For present purposes, only the Owner and the Developer are material parties.

The C5 Agreement is a separate written agreement between the same parties, also dated 7 July 2012. Again, the only material parties for present purposes are the Owner and the Developer.

The complexity of the PDA, the C4 Agreement and the C5 Agreement can be approached, initially, by paraphrasing introductory paragraphs of the plaintiffs' Commercial List Statement (filed 6 December 2012):

"3. In respect of each Works Portion under the PDA, the Authority [the defendant] grants the Developer [the first plaintiff] an option, allowing the Developer to nominate a Nominee to take a 99 year Lease from the Authority of the Premises applicable to that Works Portion.

4. Immediately prior to the commencement of a Lease of Premises, the Developer is obliged to make a payment to the Authority, calculated by reference to the Current Market Value of those Premises. The Current Market Value is to be determined under a process set out in Schedule 3 of the PDA.

5. For the purpose of financing its undertaking of the Works Portion known as Building C4, the Developer has entered into [the C4 Agreement] with a third party, under which the Developer agrees to nominate that third party to take a Lease of the premises for the C4 Building from the Authority, and agrees to carry out the Works relating to the C4 Building, in return for (amongst other things) a series of cash contributions paid by the third party to fund those Works.

6. The Developer has entered into a corresponding agreement in relation to the Works Portion known as Building C5 [the C5 Agreement]."

Despite proliferation of the expression "Lend Lease" in the names of the parties to the C4 and C5 Agreements, the parties to these proceedings are agreed that those agreements are to be treated as arm's length transactions. Substantial investors, independent of Lend Lease, have an economic interest in the Project through the medium of trusts.

The entity described in the C4 Agreement as "the Owner" is the trustee of a trust constituted by a deed dated 20 February 2012. It is, as "the Owner" described in the C5 Agreement, trustee of a separate trust constituted by a deed dated 8 June 2012.

The "third party" referred to in the extracted fifth paragraph of the plaintiffs' Commercial List Statement is "the Owner" identified in the C4 and C5 Agreements.

The introductory words of that paragraph ("For the purpose of financing its undertaking ...") and those at its end ("... a series of cash contributions paid by the third party to fund those Works") point to the nature of the controversy between the parties. Upon the proper construction of paragraph (g) of the definition of Current Market Value, are payments made to the first plaintiff by the third party to finance, or fund, the Works to be taken into account (and, if so, how are they to be taken into account) as revenue items, or "cash inputs", in the discounted cash flow analysis required in the calculation of Current Market Value?

The effect of including those items as revenue items in a discounted cash flow analysis would be to increase the resultant valuation vis á vis a valuation calculation which did not include them. It is in the interests of the defendant to have a higher valuation, and in the interests of the plaintiffs to have a lower one.

It is common ground that whether or not, for the purpose of paragraph (g), the Approved Valuers take into account amounts paid to the first plaintiff under the C4 Agreement (and the C5 Agreement) will have a material effect on the "Current Market Values" assessed by the Valuers and, therefore, on the "Premises Land Value" of Buildings C4 and C5. The evidence does not disclose how large a difference the different constructions of the PDA produce. The construction question has been argued before the Court without quantification of arithmetical consequences.

The plaintiffs contend that inclusion in the Current Market Valuation of payments made to the first plaintiff for the purpose of funding work undertaken in advancement of the Barangaroo Project would distort calculation of Current Market Value by reference to the discounted cash flow methodology that the PDA requires to be used. The defendant contends that the receipts which the plaintiffs, for their own purposes, characterise as "funding receipts" are, in reality, indistinguishable from progress payments made by the "third party" through whose trust arrangements investors in the development are, ultimately, to obtain the benefit of leases.

For convenience, the recitals to the C4 Agreement can be taken as summarising the effect of each of the Agreements for the purpose of elaborating the question in dispute in these proceedings.

Those recitals are expressed in the following terms:

"1. The Owner is the trustee of the Trust.

2. The Developer agrees to carry out on behalf of the Owner, and the Owner agrees to the carrying out of, the Development Works by the Developer on its behalf in accordance with this Agreement. The Development Works will be for the benefit of and for the use and enjoyment of the Owner.

3. The Developer agrees to:

A. Nominate the Owner as being entitled to accept a Call Offer under the terms of the Project Development Agreement and the BDA Side Deed from the BDA [the defendant Authority];

B. Nominate the Owner and the Central Plant Co-Owner in the Central Plant Proportions, as being entitled to accept the Call Offers in respect of the three Leases of the respective Central Plant Lots under the terms of the Project Development Agreement and the BDA Side Deed from the BDA.

The Owner agrees to accept the Call Offers as set out in this Agreement.

4. In consideration of the agreements by the Developer in this Agreement, the Owner must make the payments to the Developer contemplated in clause 18.

5. The Owner's Guarantor guarantees the performance of the obligations of the Owner under this Agreement. [Emphasis added]."

The key recitals, for the purpose of these proceedings, are those numbered 2, 3A and, particularly, 4.

The "payments to the developer contemplated in clause 18" of the C4 Agreement, referred to in recital 4, are those which lie at the heart of the competing claims in these proceedings.

Payments under clause 18 include monthly "Construction Funding Amounts" described as "CFA" (clauses 18.1-18.4 and 18.6) and payments referable to a "Nomination Rights Fee" (clauses 18.1 and 18.7).

The first of two paragraphs designated "(a)" in clause 18.1 provides that each CFA amount payable under clause 18.6 is paid to the first plaintiff "for it to fund the construction and other costs to be incurred by the Developer in connection with the Development Works [the design and construction of Building C4 and associated works] carried out on behalf of the Owner and for the benefit of the Owner".

The second of two paragraphs designated "(b)" in clause 18.1 provides for the payment by the Owner to the first plaintiff of the Nomination Rights Fee (pursuant to clause 18.7) "in consideration of the Developer agreeing to nominate the Owner as the Nominee to accept the Call Offer" for which the PDA, ultimately, provides.

The characterisation of these payments in the C4 Agreement cannot govern their proper construction under, or for the purposes of, the PDA. However an admission made by the defendant (in paragraph 20 of its Commercial List Response filed on 20 December 2012 in answer to the corresponding paragraph in the plaintiffs' Commercial List Statement filed on 6 December 2012) must be taken, for the purpose of these proceedings, as establishing as a fact that CFA amounts bear the character of amounts the Owner is required to pay to the first plaintiff to fund the construction and other costs to be incurred by the first plaintiff in connection with the Development Works.

THE TERMS OF CONTRACTUAL ARRANGEMENTS

The Project Development Agreement

Ownership of the Land by the Defendant. The defendant owns the land or, at least, takes responsibility for title to the land the subject of development under its auspices: PDA Recital A; PDA clause 1.1 definition of "Barangaroo"; BDA Act, s 4(1).

The First Plaintiff's Obligation to carry out Works. Under the terms of the PDA, the first plaintiff agrees to carry out the "Works": PDA Recital B (a); PDA clauses 15.1 and 30.1 (a).

"Works" is defined to mean each of the "Works Portions" and all other work required to be performed or carried out to complete the "Project" in accordance with public authority "approvals", plans and specifications: PDA clause 1.1 definitions of "Works", "Works Documents" and "Approvals".

"Works Portion" is defined to mean separately approved components of the Works: PDA clause 1.1. A full elaboration of the concept would require reference to PDA clause 11. I proceed instead on the basis of the parties' identification of each of the buildings "C4" and "C5" as a "Works Portion"

Shorn of qualifications, the "Project" is defined to mean the undertaking by the first plaintiff of works that include "the design, funding, marketing and delivery of land and Buildings on the Site", as well as infrastructure and remediation works. "Land" is defined to mean the land in specified certificates of title folio identifiers. "Building" is defined to mean buildings to be erected on the Site. "Site" is defined, in extended terms not necessary to set out, to mean land comprising, or in the vicinity of, "Barangaroo" as defined by BDA Act, s 4(1): PDA clause 1.1 definitions of "Project", "Land", "Building", "Site" and "Barangaroo".

The First Plaintiff's Obligation to pay a Development Rights Fee to the Defendant. As consideration for the right granted by the defendant to it to undertake the Project, the first plaintiff agreed to pay a "Development Rights Fee" to the defendant: PDA clause 4.1.

The Development Rights Fee comprises two components: PDA clause 4.2. The first is a "Total Fixed Payment Amount" payable by instalments: PDA clause 4.2(a). The second is "an amount equal to the Value Sharing Payment for each Premises payable to [the defendant] pursuant to clause 4.5 [of the PDA] immediately prior to the Lease Commencement Date for the Lease of those Premises": PDA clause 4.2(b).

PDA clause 4.3 provides for the first plaintiff to pay an "Accelerated Fixed Payment" to the defendant in certain circumstances.

PDA clause 4.5 (entitled "Value Sharing Payment") is in the following terms, so far as presently material:

"If immediately prior to a Lease Commencement Date... the final instalment of the Total Fixed Payment Amount has been paid or is due and payable, the Developer [the first plaintiff] must pay to the Authority [the defendant] immediately prior to that Lease Commencement Date [x%] of the Premises Land Value less the balance outstanding of the Total Fixed Payment Amount, if any."

PDA clause 1.1 defines "Premises Land Value" as having the meaning given to it in PDA Schedule 3.

Schedule 3 is entitled "Value Sharing Payments".

Clause 1.1 of Schedule 3 defines "Premises Land Value" to mean "the unimproved value of the Premises, determined in accordance with [the valuation process, involving participation by the parties' respective valuers after the preparation of a Valuation Brief, set out in clause 1.2 of Schedule 3] based on the Current Market Values provided by the Approved Valuers" respectively nominated by the parties.

That definition leads into the definition of "Current Market Value" in PDA Schedule 3 clause 1.1.

Definition of "Premises". "Premises" is defined to mean, in respect of a Works Portion (such as Buildings C4 and C5), that part of the Site which will comprise the land and Improvements to be leased or licensed (where relevant) to the "Tenant" pursuant to clauses 27 or 28 [of the PDA], together with any Improvements on that land...": PDA clause 1.1. "Improvements" means all improvements erected at any time on the Site: PDA clause 1.1.

PDA clauses 27-29: Nomination of a Tenant, and Grant of a Lease, of Premises. The expression "the Tenant pursuant to clauses 27 or 28" picks up not only those clauses but also clause 29: PDA clause 1.1 definitions of "Tenant", "Nominee" and "Acceptable Tenant". The definition of "Nominee", in particular, means "a person, not being the Developer [the first plaintiff], who [the defendant] has confirmed is an 'Acceptable Tenant' and is nominated by the Developer under clause 29.6 as being entitled to accept the relevant Call Offer": PDA clause 1.1. The plaintiffs' submissions highlight the italicized words, "not being the Developer". "Call Offer" is defined to mean the offer (or offers) made by the defendant to lease the Premises (or any part of the Premises) under PDA clause 27.1.

Subject to various qualifications, PDA clause 27 provides that, in respect of each Works Portion (including Buildings C4 and C5), the defendant "makes" an offer to any relevant Nominee (that is, a person, not being the Developer, who the defendant has confirmed is an Acceptable Tenant and is nominated by the first plaintiff) to lease the Premises (that is, the land and improvements to be leased or licensed) applicable to that Works Portion to that nominee, which cannot be the Developer : PDA clause 27.1(b).

Each Call Offer, thus made, is an irrevocable offer by the defendant to the Nominee to enter into a binding lease of the relevant Premises with that Nominee in the form of the Pro-forma Lease (defined in PDA clause 1.1 to mean the form of lease comprising PDA annexure B, a 99 year lease, at a nominal rental) and may only be accepted in accordance with the provisions of the PDA: PDA clause 27.1(c).

PDA clause 27.2 limits the circumstances in which, and the means by which, a Call Offer can be accepted. Acceptance can occur only during the Call Offer Period applicable to the particular Call Offer and, then, provided that the first plaintiff is not in breach of obligations (including its obligation to pay the Development Rights Fee) and the PDA has not terminated with respect to the relevant Works Portion. "Call Offer Period" means, in respect of the Premises the subject of a Works Portion (or any part of it), the period commencing on the Date of Substantial Commencement of that Works Portion and ending on the date being 60 Business Days after the Date of Practical Completion of that Works Portion: PDA clause 1.1.

Critically, by virtue of PDA clause 27.2(d), a Call Offer can be accepted only by delivery to the defendant of: a Notice of Acceptance of Call Offer signed by the Acceptable Tenant (PDA clause 27.2(d)(i)); copies of the relevant Lease executed by the Acceptable Tenant as lessee (PDA clause 27.2(d)(ii)); a certification by the solicitor for the first plaintiff that the Lease is in accordance with the terms of the PDA (PDA clause 27.2(d)(iii)); anything else the Lease requires the lessee to deliver to the lessor on or before the execution date of the Lease (PDA clause 27.2(d)(iv)); cheques for payment of all registration fees and any stamp duty payable in respect of the Lease (PDA clause 27.2(d)(vi)); and, most critically, "payment of the Value Sharing Payment and any Accelerated Fixed Payment payable in respect of the Premises the subject of the Lease relevant to that Call Offer", plus any amount payable on account of GST (PDA clause 27.2(d)(v)).

If the Call Offer is accepted in accordance with PDA clause 27.2, then at the times the items set out in that clause are delivered to the defendant, Leases applicable to that Call Offer are deemed to have come into existence and are binding on the defendant (as lessor) and the Tenant (as lessee) from the relevant Lease Commencement Date, as if both the Defendant and the Tenant had executed the Leases at that time: PDA clause 27.3(a).

PDA clause 28 provides for a put offer pursuant to which the first plaintiff "makes" an offer to the defendant to require the first plaintiff to lease the Premises applicable to particular Works Portions. In the nature of things, it includes no provision for the payment of a Value Sharing Payment or an Accelerated Fixed Payment.

PDA clause 29 deals with matters consequential upon acceptance of a Call Offer or Put Offer and entry into leases by reason of such an acceptance, and miscellaneous matters. One of those miscellaneous matters, set out in PDA clause 29.6, relates to the mechanics whereby the first plaintiff is entitled to give written notice to the defendant nominating a Nominee as being entitled to accept a Call Offer. The activation of this right put in train the processes leading to the current proceedings.

The Pro-Forma Lease. A pro-forma lease, set out in PDA Annexure B, is incorporated in the text of the PDA by PDA clause 27.1(c) and PDA clause 28.1(c), which respectively define the concepts of a "Call Offer" and a "Put Offer": PDA clause 1.1 definition "pro-forma Lease".

Clause 10 of the pro-forma Lease (entitled "Alienation") is important to note because it explains the context in which the C4 Agreement and the C4 Investor's Side Deed were entered, and, in combination, the pro-forma Lease, the C4 Agreement and the Investor's Side Deed may impact directly on the operation of paragraph (f) of the definition of "Current Market Value" in PDA Schedule 3 clause 1.1.

It is sufficient, for present purposes, to extract clauses 10.1, 10.2, 10.3 and 10.9:

"10. Alienation

10.1 tenant not to alienate

(a) The Tenant must not dispose of, deal with, assign its estate and interest in the Premises or its rights and powers as Tenant under this lease, including by way of sub-lease or concurrent lease, where the result of the sub sub-lease or concurrent lease is an effective disposal or assignment of the Tenant's rights under this lease.

(b) For the purposes of clause 10.1(a), unless the Tenant or a Parent of the Tenant is a company or trust listed on the Australian stock exchange or the trustee of a Wholesale Fund or Superannuation Fund, a person becoming or ceasing to be a Parent of the Tenant will be deemed to be a disposal of the Tenant's estate and interest in the Premises.

10.2 Assignment

Despite clause 10.1:

(a) prior to Practical Completion (as defined in Attachment 1) the Tenant may dispose of, deal with, assign its estate and interest in the Premises or its rights and powers as tenant under this Lease to the Developer or a nominee of the Developer that satisfies the requirements of clause 10.2(b); and

(b) after Practical Completion, the Tenant may assign its estate and interest in the Premises and its rights and powers as a Tenant under this lease with the consent of the Landlord, which must not be unreasonably withheld, provided that, before the proposed transaction takes effect:

(i) the Tenant gives to the Landlord not less than 15 days notice of its intention to assign or transfer which sets out:

A. the name and address of the proposed assignee or transferee; and

B. if the proposed assignee or transferee is a company, the names and addresses of its directors;

(ii) the Tenant proves to the reasonable satisfaction of the Landlord that the proposed new tenant is a respectable, responsible and solvent person capable of duly and punctually observing and performing the obligations of the Tenant under this lease;

(iii) the Landlord, the Tenant and the proposed new tenant sign a deed relating to the transfer or assignment in a form reasonably required by the Landlord under which:

A. the Tenant and the Landlord each release the other from their respective obligations under this lease arising after the transfer or assignment.

B. the Tenant and the Landlord each release the other from all claims in respect of, or in any way arising from, this lease except in respect of any matter or thing which occurs before the date of transfer or assignment; and

C. the proposed new tenant agrees to comply with this lease as if it were the Tenant in respect of

All obligations imposed on the Tenant which arise on or after the transfer or assignment; and

(iv) any Trigger Event or Event of Default by the Tenant, notice of which has been given by the Landlord to the Tenant prior to the Tenant's clause 10.2(b)(i) notice, has been remedied by the Tenant or waived by the Landlord;

(v) the proposed new tenant satisfies the Landlord that it has effected the insurances required under clause 9;

(vi) the Tenant and the proposed new tenant pay the Landlord's reasonable Costs, including legal Costs, of considering the proposed assignment; and

(vii) any guarantee required under clause 10.10 is provided in accordance wit h that clause.

10.3 Assignee to comply with Tenant's obligations

By taking an assignment or transfer, the assignee or transferee is taken to have agreed with the Landlord to comply with the obligations of the Tenant under this lease relating to the period after the assignment or transfer takes effect."

The effect of the Investor's Side Deed was that the defendant agreed that the "Investor" (the "Owner" named in the C4 Agreement) was an Acceptable Tenant for the purpose of the PDA (Side Deed clause 2.1); the first plaintiff nominated the Investor as entitled to accept a Call Offer (Side Deed clause 2.2(a)); and the parties agreed that if the Call Offer were to be accepted pursuant to Side Deed clause 2.2 then the Lease or Leases applicable to that Call Offer were deemed to have come into existence (Side Deed clause 2.4(b). As the Tenant under such a Lease, the Investor would, presumably, be constrained by a clause equivalent to clause 10 of the pro-forma Lease. That means that, to realise its investment in the C4 Building, the Investor may seek to assign each lease (or sublet it) to a number of as yet unidentified, unrelated parties intended to be the ultimate occupiers of the C4 Building.

Viewed in this light, the effect of the C4 Agreement and the Investor's Side Deed, may be characterised as the interposition of a wholesaler (the "Owner"/"Investor" as trustee for an external investor) in the process of the first plaintiff discharging its obligations under the PDA (clause 1.1 definition of "Project", paragraph (a); clause 15.11(e); clause 21.2(j); clause 25.2(b); and clause 41.3(a)) to market property, inter alia, to prospective tenants (in the "retail" market).

The definition of Current Market Value. PDA Schedule 3 clause 1.1 defines "Current Market Value" in the following terms:

"Current Market Value means the amount which a purchaser/assignee (Purchaser) would pay to a vendor/assignor (Vendor) for the grant of a Lease of the Premises on which the relevant Works Portion is to be constructed, assuming:

(a) a willing buyer and a willing seller in an arm's length transaction, after proper marketing, where each party acts knowledgeably, prudently and without compulsion;

(b) the terms of the lease of the Premises are the terms of the Pro-forma Lease, as completed in accordance with this deed;

(c) the Lease is granted by the Authority [the defendant] at Practical Completion and the Value Sharing Payment relevant to the Premises the subject of that Lease will be paid by the Developer [sic] to the Authority at the time of the grant of that Lease and the Developer [sic] will incur no costs of funding that Value Sharing Payment until the time of the grant of that Lease;

(d) the Purchaser must undertake or procure that works are undertaken on the Premises in accordance with the Developer's obligations under this deed (Approved Development Works). These obligations include, without limitation:

(i) those relating to the approval of detailed design documents, including design excellence, relevant requirements of applicable Revised Statement of Commitments and any other applicable minimum standards; and

(ii) the requirement to pay the Developer Contribution and the Public Art and Cultural Development Levy or any payment required under clause 4.11 of this deed;

(e) that the Purchaser will have incurred the following costs on or before Practical Completion of the Approved Development Works:

(i) GST, the actual GST that would be imposed (less any input tax credit entitlement);

(ii) no stamp duty;

(iii) design and construction costs, the amount determined to be reasonable by a Quantity Surveyor, as the cost of undertaking the Approved Development Works, including:

A. the costs incurred by the Developer under clause 23.3(d) of this deed with respect to those Approved Development Works.

B. a x% construction contingency.

C. the likely costs incurred or to be incurred by the Developer as certified by the Independent Certifier as a result of the change in the location (and timing of construction) of the Metro Line 1 (Stage 1) station, station portals, corridors, tunnels and other infrastructure concerning Metro Line 1 (Stage 1) from the location contemplated as at 9 November 2009 (such costs are to be apportioned across GFA comprised in Buildings C5, C6, R1 and R7) (and if the GFA [Gross Floor Area] comprised in such Buildings is not determined at the time the first apportionment is to be made, then the Developer and the Authority must agreed [sic] such GFA (acting reasonably)); and

D. in respect of any Approved Development Works which have been or which are anticipated to be Substantially Commenced prior to 30 June 2012, the costs incurred by the Developer in carrying out and completing the Crossing Works as certified by the Independent Certifier (such costs are to be apportioned on a pro-rata basis in respect of each of those Approved Development Works having regard to the GFA that a particular Approved Development Works bears to the total GFA of all Approved Development Works that have been or are anticipated to be Substantially Commenced prior to 30 June 2012 (and if the total GFA of all such Approved Development Works has not been determined at the time the first pro-rata apportionment is to be made, then the Developer and the Authority must agreed [sic] such total (acting reasonably)).

but excluding always any costs otherwise taken into account under any other subparagraph of this paragraph (e).

(iv) Recoverable Stage Costs, have been paid in equal proportions over the period of 3 months starting on the date on which the Approved Development Works physically commence on-site;

(v) development management fee of x% of the design and construction costs referred to in paragraph (e)(iii) and project management fee of x% of the design and construction costs referred to in paragraph (e)(iii); and

(vi) all other reasonable developer costs, as determined by the Approved Valuers using their professional judgement (and without limitation, taking into account the extent to which any Rates or land tax may or may not be payable during the period up to Practical Completion including any payments to the Authority under clause 4.7(c)),

after taking into account any relevant reimbursement or payments made or to be made by the Authority to the Developer under this deed in relation to such costs;

(f) that:

(i) in the case of non-residential Development Works [such as Buildings C4 and C5], that not less than x% of the GFA [Gross Floor Area] of those non-residential Approved Development Works has been leased to tenants at market rent and with incentives that reflect current market incentives at the Lease Commencement Date for similar pre-lease arrangements; and

(ii) in the case of residential Development Works, apartments representing not less than x% of the anticipated revenue from those residential Approved Development Works have been sold off the plan at a market price,

provided that where the Developer has pre-sold or pre-leased premises included in the Works Portion for which the Current Market Value is being determined, the Developer must provide that information to the Approved Valuer, who must take account of that information;

(g) the Purchaser is entitled to derive a pre-financing (ungeared) project IRR of x% in respect of the costs referred to in paragraph (e) and the carrying out of the Approved Development Works; and

(h) the extent to which any GST (less any input tax credit entitlement) may be payable in respect of the initial transfer of any Lease.

A worked example has been attached (for information purposes only) to this deed at Annexure W for information purposes only showing how the Current Market Value might be determined."

The letter "x", in each place it appears in this extracted definition, represents a numeral in respect of which a suppression order has been made.

No particular significance has been attributed, by either side of the record, to the particular types of costs enumerated in paragraph (e).

Of the two types of "pre-commitment" revenues referred to in paragraph (f), the first is the one applicable to Buildings C4 and C5.

The defendant relies on the terms of the proviso to paragraph (f) to make the point that the definition of Current Market Value is not entirely hypothetical, but directed to the market experience of the first plaintiff.

The plaintiffs contend that the expression "the Developer" twice occurring in paragraph (c) is an erroneous reference to "the Purchaser", relying upon Fitzgerald v Masters (1956) 95 CLR 420 at 426-427 and 436-438. There the High Court confirmed that, in construing a contract as a whole, words may be supplied, omitted or corrected where clearly necessary in order to avoid absurdity or inconsistency.

The plaintiffs' contention (which I accept as correct) has three foundations. First, the definition of Current Market Value is predicated upon adoption of the perspective of a hypothetical Purchaser rather than that of the first plaintiff in fact. Secondly, all reference to the Value Sharing Payment in paragraph (c) would be otiose if the Value Sharing Payment and funding costs referable to it were to be paid and borne by the first plaintiff, rather than borne by the hypothetical Purchaser, from whose perspective such expenses are to be taken into account. Thirdly, there is a clear inconsistency between paragraph (c) and an equally important provision that mirrors it.

The valuation process for which PDA schedule 3 clause 1.2 provides contemplates that, as part of the process of instructing Approved Valuers to prepare valuations of Current Market Value, the first plaintiff is to give each of them "a Valuation Brief". Clause 1.1 of schedule 3 defines "Valuation Brief" to mean "the valuation brief comprising Annexure M" to the PDA. That annexure sets out, in clause 2.1, the text of the definition of "Current Market Value". In doing so, it sets out paragraph (c) of the definition in terms that substitute "the Purchaser" for "the Developer" in the two places the latter expression appears in paragraph (c) of the definition of "Current Market Value in schedule 3 clause 1.1.

The parties have informed the Court that, in their performance of the PDA vis á vis the Buildings C4 and C5, they are at the point that a Valuation Brief has to be delivered to their respective valuers. It is at this point that their differences about the proper construction of paragraph (g) of the definition of Current Market Value have impeded progress.

Some provisions from the template for a Valuation Brief set out in Annexure "M" to the PDA may throw light upon the proper construction of paragraph (g) of the definition of Current Market Value in PDA schedule 3 clause 1.1. Clause 1.1 of the annexure describes the purpose of a Valuation Brief. Clause 1.2 picks up documentation published by the Australian Property Institute, generically identified as "API Guidelines". Clause 5 (which the parties agree should be read as following on from the introductory words in clause 4) sets out "key assumptions" which are to form the basis of the valuation to be prepared by each valuer. The assumptions set out in clauses 5.6 and 5.7, in particular, are worthy of notice.

With that explanation, the following clauses of Annexure M are here set out:

"1. Introduction

1.1 Purpose

(a) The Barangaroo Delivery Authority (Authority) and Lend Lease (Millers Point) Pty Limited (Developer) require a formal valuation to determine the Current Market Value [of Building C4 or Building C5, as the case may be] pursuant to the Project Development Agreement (PDA) between these parties. The land relates to a part of the Barangaroo site, as defined in section 2.1 of these instructions, which is to be leased to a tenant under a 99-year lease.

(b) The Authority and the Developer are separately engaging valuers under these valuation instructions to provide an assessment of the Current Market Value in accordance with processes set out in the PDA.

(c) A worked example is attached for information purposes only showing how the Current Market Value might be determined in accordance with this Valuation Brief.

[Completion Note: Annexure W from the PDA to be attached]

1.2 Policy Codes, Standards and Ethics

The Valuations must be performed in accordance with the prevailing Australian Property Institute (API) Code of Ethics, the API Rules of Conduct and the API Code of Professional Practice. In particular, the API Valuation and report Standards, pages 6.9.1 to 6.9.5 shall be used to guide the preparation of the assessment of value. However, the instructions outlined here will apply if there is a conflict with the API Guidelines. ...

4. Minimum Requirements of a Valuation Report

The Valuation Report must contain all of the following information. However, the item headings are listed merely as a guide. ...

5. Key assumptions which form the basis of valuation

...

5.6 Market Commentary and Assumptions

(a) Detailed demographic review of location.

(b) Comment on underlying supply and demand profile of the market for the proposed development (including projective return in the intermediate and medium term; net absorption analysis; market demand for various products; incentive details).

(c) Rationale for selection of market capitalisation rate(s).

(d) Details of contracted leases, agreements for lease and heads of agreement and commentary on the relevance to the market and impact on value.

5.7 Valuation Model

(a) The DCF valuation should include:

(i) Full details of all revenue, cost and economic assumptions;

(ii) The Current Market Value which must be calculated as an amount which enables the purchaser of the land to achieve exactly a pre-financing (ungeared) project IRR of (x%) on the development costs.

(iii) A detailed statement of monthly cash flows and out flows.

(iv) A separate statement of the justification for each assumption, including relevant benchmark comparisons, det ails of the sources of information used to justify each assumption. The Valuer should explain how any adjustment for comparability has been made to benchmark data.

(v) The valuation should be conducted using Estate Master or an equivalent audited valuation tool as accepted by the API. Please note that an electronic copy of the cash flow analysis will be required. ..."

It is common ground between the parties that the definition of Current Market Value employs a variant of the discounted cash flow method to arrive at the unimproved land value of the subject Premises, whereby (to paraphrase AG Robertson Limited v Valuer General [1952] 18 LGR 261 at 262) a valuer notionally erects a hypothetical building upon the subject land, capitalises the anticipated net return from the building, and subtracts the estimated building cost from the capitalisation, to arrive at an estimate of the unimproved value of the land.

The final lines of the definition of Current Market Value in PDA schedule 3 clause 1.1 and clause 1.1(c) of PDA Annexure M both refer to a "worked example" attached "for information purposes only" to the PDA as Annexure W.

The arithmetic set out in Annexure W is the subject of a suppression order and, accordingly, it is not here set out. Primary significance attaches to the methodology implicit in the worked example, and its use of the expression "ungeared" in connection with references to both "Net Project Cashflow" and "IRR".

However, the entries in the "worked example" leading up to an entry entitled "Net Project Cash Flow (ungeared, before financing costs)" and an "Ungeared IRR" (at the rate specified in paragraph (g) of the definition of Current Market Value) provide context for paragraph (g).

Those descriptors are as follows:

"Barangaroo

Example Current Market Valuation

Start Date

End Date

Revenue Assumptions

GFA [in square metres]

Efficiency (a percentage)

NLA [Net Lettable Area, in square metres]

Car Park Bays [a number]

Commercial [$ / square metres / per annum]

Car Park - associated with buildings [$ / bay / per annum]

Signage [a specified dollar figure]

Initial Yield [a percentage capitalisation rate]

Cashflow

Revenue

End Value

Commercial

Signage

Car Park-associated with buildings

Total Net Revenue

[Less] Incentives

[Equals] End Value Post Incentives

Costs

Construction Costs

D&C [Design and Construction] Costs

Total D&C

Development Costs

Project Management Fee

Development Management Fee

DA Application Fee

Legals-Contract for Sale and Dev Agreement

Legals-Major tenant leases

Legals-Other

Insurance

Valuations

Stamp Duty

Rates

Other (to be determined by a valuer)

Total Development Costs

Selling Costs

Marketing Fees

Commercial Leasing Agent Commission

Total Selling Cost

Levies

Debt Contribution

Art Levy

Total Levies Costs

Total Project Costs (excl land)

Recoverable Stage Costs

Current Market Value [of a 99 year lease]

Total Project Costs

Net Project Cashflow (ungeared, before financing costs)"

It is common ground between the parties that the arithmetic set out in this "worked example" bears no relationship to the exercise that is required to arrive at valuations for the Buildings C4 and C5, save for reference to the internal rate of return (IRR) applied to the figures in the example. That IRR is represented by the symbol "x%" in paragraph (g) of the definition of Current Market Value as extracted in these Reasons. In Annexure W the same percentage rate is described as "Ungeared IRR".

A point made by the plaintiffs by reference to the example is that it contains no reference to financing costs, whether those costs be in the form of debt or equity. On the other side, the defendant observes that the "worked example" does not display every item of costs referable to Premises - it excludes allowances for GST, for example .

What Annexure W contains, in terms of methodology, is a discounted cash flow analysis in which:

(a) the capitalised rental return of the (improved) Premises the subject of valuation appears as a cash inflow at the time of Practical Completion (less an allowance for incentives);

(b) the hypothetical Purchaser's construction and development costs appear as monthly cash outflows;

(d) the Current Market Value represents the Approved Valuer's Estimate of the unimproved value of the Premises as at Practical Completion.

The plaintiffs emphasise that the agreed percentage per annum internal rate of return, which the hypothetical Purchaser is assumed (in PDA schedule 3 clause 1.2(g) and PDA Annexure M clause 4.7(a)(ii)) to earn, is "a pre-financing or ungeared rate of return". By that expression, they contend that it is "a rate of return calculated without regard to cash flows associated with how the Purchaser finances or funds the works" or, more particularly, without regard to "the cash receipt of that finance and any interest or financing fees" associated with it.

The Valuation Process. The definition of "Premises Land Value" (PDA clause 1.1 and PDA Schedule 3 clause 1.1), that lies at the heart of the concept of "Value Sharing Payment" (PDA clause 4.5) incorporates reference to both the concept of "Current Market Value" (defined by PDA Schedule 3 clause 1.1) and the means by which (pursuant to PDA Schedule 3 clause 1.2) Current Market Value is to be determined. It is in the following terms:

The other idiosyncratic provision of the PDA that invites attention is clause 1.6, set out above. It purports, subject to a contingency (the existence of "ambiguity or inconsistency") to attribute an "order of priority" to Project Documents in the resolution of "that ambiguity or inconsistency".

In an endeavour to circumvent problems that may arise in connection with the construction or operation of PDA clauses 1.6 and 57.17, the plaintiffs contend that: first, where there are several documents, forming part of a composite transaction, the rule that a contract must be construed as a whole is applied to the transaction as a whole (JW Carter, The Construction of Commercial Contracts, para [13-34]); and, secondly, it does not matter that some of the documents to which it is necessary to have regard do not themselves have contractual force.

It is not necessary to traverse these contentions, or to do more than notice them. The question(s) of construction identified for decision cannot be answered without negotiating the complexity of the parties' contractual arrangements. However, that done, answers are available within the text of the PDA. That much, at least, is common ground between the parties despite the length and breadth of their debates about the meaning, and their different perspectives, of that text.

Emerging from the thickets through which I have been bound to wander, I am comfortably satisfied that the Court can, and should, focus on the text.

ANALYSIS

Exposition of Current Market Value and the Valuation Process

The valuation exercise for which PDA schedule 3 clause 1.2, and the definition of "Current Market Value" in clause 1.1 of the Schedule, provide is a hypothetical one, based on assumptions, albeit informed by actual, real world facts.

The valuation method contemplated by the definition of "Current Market Value" is one in which, upon assumptions, a valuer notionally erects a hypothetical building upon the land to be valued and capitalises the anticipated net return from the development.

Described in valuation literature as a "hypothetical development method" (AA Hyam, The Law Affecting Valuation of Land in Australia (Federation Press, 4th ed, 2009, Sydney), pp 188-190, citing AG Robertson Limited v Valuer-General (1952) 8 LGR (NSW) 261 at 262, Australian Provincial Assurance Association Limited v Commissioner of Land Tax [1942] ALR 156 at 158 and Boland v Yates Property Corp Pty Limited (1999) 74 ALJR 209 at 268 amongst other cases), care needs to be taken not to substitute shorthand labels for the text that defines, and governs, the valuation task to be performed.

One might, as do the parties here, equally describe the valuation method prescribed by the PDA as a variant of the "Discounted Cash Flow" method: Hyam, op cit at pp 209-217 citing, inter alia, Albany v Commonwealth (1976) 60 LGRA 287 at 293-294 and Boland v Yates Property Corp Pty Limited (1999) 74 ALJR 209 at 268.

At day's end, in the current proceedings one is driven back to the text of the PDA as the source of instructions to the Approved Valuers, setting the task that the parties have agreed is to be performed.

As prescribed by the definition of Current Market Value in PDA Schedule 3 clause 1.1, an Approved Valuer is required to determine a value of property by reference to two hypothetical parties (compendiously described as "Purchaser" and "Vendor" respectively) having, by virtue of paragraph (a) of the definition, a character similar to that commonly associated with Spencer v Commonwealth (1907) 5 CLR 418 at 432 and 441. Those hypothetical parties are required to be viewed as "willing", but acting in an arm's length transaction, after proper marketing, with knowledge and prudence, and without compulsion.

Because the property to be valued is the subject of a hypothetical development, and the hypothetical Purchaser is assumed to be acquiring property for the purpose of effecting that development, attention not unnaturally focuses on the perspective of the hypothetical Purchaser. However, the valuation exercise required to be undertaken requires a reconciliation of the respective perspectives of both the hypothetical Purchaser and the hypothetical Vendor.

The hypothetical Purchaser (whose particular perspective lies at the heart of these proceedings because of the centrality of paragraph (g) of the definition of Current Market Value to the parties' dispute) cannot be simply identified with the Developer (the first plaintiff), notwithstanding: (a) references in the definition to the Developer as a source of information about the development; and (b) the temptation to associate the real life Developer with the hypothetical Purchaser because of the similarity of their roles vis á vis the property the subject of the valuation exercise. To treat them as one and the same for the purpose of the valuation exercise is an invitation to error.

The personality charged, by paragraph (d) of the definition of Current Market Value, with responsibility for undertaking the hypothetical development is the hypothetical Purchaser, not the real-life Developer, notwithstanding definition of the hypothetical Purchaser's development obligations by reference to those of the Developer under the PDA.

The costs of the hypothetical development, required by paragraph (e) of the definition to be assumed, are not necessarily those actually incurred by the real life Developer. That is evident, for example, in the requirement that, for the purposes of valuation, the amount of "design and construction costs" to be taken into account is an amount determined by a Quantity Surveyor to be reasonable.

On the other side of the accounts of the hypothetical development, the hypothetical revenue stream, required by paragraph (f) of the definition to be assumed, is equally distinct from actual revenues, received or anticipated as prospective, by the Developer. Both limbs of paragraph (f) contemplate that individual lots in the hypothetical development will have been taken up by end-users (with a commitment rate of "not less than x%" of an applicable measure) at market rates.

At each step along the way in the valuation exercise there may be scope for an application of expert judgment, informed by real life facts, but always within the context of a hypothetical development constrained by express assumptions. The concept of "market" rates embedded in paragraph (f) marks out territory classically occupied by valuation expertise.

Because the parties' dispute in these proceedings is focussed on the revenue side of the valuation exercise required by the definition of Current Market Value to be undertaken, particular attention must be given to paragraph (f), governing as it does the revenue assumption required to be made by Approved Valuers.

Upon a consideration of paragraph (f) several points must be noticed.

First it speaks of revenue anticipated to be received by the hypothetical Purchaser, rather than revenue actually received by the real-life Developer.

Secondly the assumed revenue stream flows from prospective end-users of individual lots, rather than any larger, global concept of property that must, in the nature of things, be the focus of the Developer's experience in arranging funding for, or marketing, a Works Portion such as the C4 and C5 Buildings.

Thirdly, there is no necessary, or direct, correlation between the commercial decisions, and market conditions affecting decision-making, of the Developer and its investors (on the one hand) and (on the other hand) the hypothetical end-users (tenants and buyers), operating in a different level of market, involving an assessment of "market rent" and "market incentives" or "market price". That is so, notwithstanding that, as paragraph (f) implicitly acknowledges, real life experience of the Developer in marketing the actual development may inform an expert assessment of the market rates that are to be assumed for the purpose of paragraph (f).

When paragraph (g) is read in the context of preceding paragraphs of the definition of Current Market Value, and bearing in mind that the subject of the assumption for which it provides is the hypothetical Purchaser (not the actual Developer), the intended operation of the paragraph is clear. The task of an Approved Valuer is to determine "the amount" which the hypothetical Purchaser would pay to the hypothetical Vendor (assuming that they have the characteristics ascribed to them by paragraph (a) of the definition of Current Market Value) upon an assumption that the hypothetical purchaser is entitled to a specific, nominated rate of return (described in valuation literature as a "profit and risk factor") arising from capitalisation of an anticipated net return, based upon assumptions about costs, and revenue.

There is no foundation within the definition of Current Market Value for inclusion, on the revenue side of the calculation, of any of the amounts actually received by the Developer pursuant to clause 18 of the C4 Agreement (or clause 19 of the C5 Agreement).

That conclusion does not depend (or, perhaps more accurately, does not only depend) on attribution of a particular meaning to the expression "a pre-financing (ungeared) project IRR of x%" (in paragraph (g) of the definition of Current Market Value) which has absorbed the attention of the parties in these proceedings.

Whatever coincidence there may be in the economic perspectives of the hypothetical Purchaser and the Developer, the focus of paragraph (g) is upon the assumed entitlement of the hypothetical Purchaser in the context of the assumptions about costs and revenue prescribed by the definition of Current Market Value. It is not upon the actual position of the Developer vis á vis its investors.

The expression "a pre-financing (ungeared) project IRR of X%" in paragraph (g) reinforces this conclusion, and is itself reinforced by the irrelevance attributed to "costs of funding" in paragraph (c) of the definition of Current Market Value, and in the "worked example" reproduced as PDA Annexure W.

Payments made to the Developer pursuant to clause 18 of the C4 Agreement (or pursuant to clause 19 of the C5 Agreement) cannot, on the proper construction of the PDA, be fed into the discounted cash flow exercise for which paragraph (g) of the definition of Current Market Value (read with the definition of IRR) provides.

Those payments may inform the valuation exercise insofar as they may bear upon an assessment of the "market rents" and "market incentives" required to be the subject of an assumption under paragraph (f)(i), or insofar as they may be thought by an Approved Valuer, acting within his or her area of expertise, to bear upon the reasonableness of a determination of value. However, they are not necessarily, or directly, an ingredient in the valuation exercise.

Elaboration, commencing with Paragraph (g)

Paragraph (g) of the definition of "Current Market Value" lies at the core of the parties' perception of their dispute about the proper construction of the PDA. That is evident in formulation of the "central question" they proferred for determination.

However, that "central question" is asked against the background of a broader question about whether (and, if so, how) payments made to the first plaintiff under clause 18 of the C4 Agreement are relevant to a determination of "Current Market Value" pursuant to PDA Schedule 3 clause 1.2.

That broader question supplies one reason why the focus of attention cannot rest only on the text of paragraph (g) of the definition of Current Market Value. Even if (as I find) C4 Agreement clause 18 payments have to be ignored for the purpose of an application of paragraph (g) - because they do not come within the expression "a pre-financing (ungeared) project IRR" read with the definition of "IRR" - there is a broader question whether (and, if so, how) they can, or must, be taken into account, in the course of a determination of Current Market Value.

Another reason why the focus of attention cannot rest solely on the text of paragraph (g) is that paragraph (g) itself has to be placed in the broader context of the following provisions (listed in ascending order of generality):

(a) the terms of the definition of "Current Market Value" in PDA Schedule 3 clause 1.1, including paragraph (f) of the definition.

(b) the definition of "Premises Land Value" in PDA Schedule 3 clause 1.1, read with clauses 1.2(f)(i) and 1.2(g)(iii) of the Schedule.

(c) the definition of "Premises Land Value" (in PDA Schedule 3 clause 1.1) as picked up by the definition of "Premises Land Value" in PDA clause 1.1 and given operative force by PDA clause 4.5 (entitled "Value Sharing Payment").

(d) PDA clause 4.5 as picked up by PDA clause 4.2(b), in the context of PDA clause 4.1, which make provision for payment by the first plaintiff to the defendant of an amount equal to the Value Sharing Payment for Premises immediately prior to the Lease Commencement Date for the Lease of those Premises.

(e) in the broader context of the PDA as a whole, including provisions incorporated in PDA clause 4.2(b) by the incorporation of definitions found in PDA clause 1.1 and, underlying them all, machinery provisions (such as PDA clause 27.1(b), 27.2(d)(v), 27.3, 29.6 and 29.1(a)) that culminate in the grant of a 99 year lease, at a nominal rental, in favour of a nominee of the first plaintiff.

(f) in the still broader context of the PDA as varied, or affected, by the C4 Investor's Side Deed and, by association, the C4 Agreement.

From the perspective of the defendant, PDA clause 4.1 is the prime contractual provision via which it stands to gain economically from development of its land. In expressing the point that way, I do not overlook the defendant's broader public interest objectives, enumerated in PDA clause 2.1, or the objects of the Barangaroo Delivery Authority Act 2009 NSW (s 3). PDA clause 4.1 is important at a less abstract level. It invokes the language of contract law by identifying the "Development Rights Fee" payable by the first plaintiff to the defendant as "consideration for the right granted to [the first plaintiff] to undertake the [Barangaroo] Project" in accordance with [the PDA]."

As PDA clause 4.2 provides, the Development Rights Fee comprises two components. One is a "Fixed Payment Amount" payable by instalments: PDA clause 4.2(a). The other is an amount equal to the Value Sharing Payment (PDA clause 4.2(b)), literally a means by which the first plaintiff and the defendant have an opportunity to share the benefits of an increase in the value of the Barangaroo land by reason of its development.

Adoption of a contractual mechanism for sharing an increase in land value does not, of itself, import notions of "fairness" or "reasonableness" as governing principles in construction of the contract. The contracts that the parties to these proceedings have made, the PDA and the Investor's Side Deeds chief amongst them, must be construed objectively in accordance with established authority.

PDA clause 4.2(b) focuses attention on PDA clause 4.5 (entitled "Value Sharing Payment") which defines such a payment by reference to a percentage of "Premises Land Value", a concept defined (by PDA Schedule 3 clause 1.1) to mean "the unimproved value of the Premises... based on the Current Market Values provided by the Approved Valuers".

Read in isolation, the expression "based on" might suggest that the concept of Premises Land Value is not strictly tied to the concept of Current Market Value. However, the definition of Premises Land Value contains references to PDA Schedule 3 clause 1.2 that specifically tie it to the Current Market Value as defined by PDA Schedule 3 clause 1.1: PDA Schedule 3 clause 1.2(f), 1.2(g)(iii) and 1.2(i).

In the definition of Current Market Value the introductory words point to the nature of the concept. Current Market Value "means", not only an "amount", but "the" amount that hypothetical parties ("a purchaser/assignee" on the one hand and, on the other hand, "a vendor/assignor") would transact business. In particular, it is the amount a hypothetical purchaser/assignee "would pay" to a hypothetical vendor/assignor "for the grant of a Lease of the Premises on which the relevant Works Portion is to be constructed" making specified assumptions.

The hypothetical purchaser/assignee is not an emanation of the Developer (the first plaintiff), even if real world experience of the first plaintiff may inform an assessment of the assumed costs of construction referred to in paragraph (e) of the definition of Current Market Value, or the assumed pre-commitments on the revenue side (for which paragraph (f) of the definition provides) in the discounted cash flow analysis to be undertaken by the Approved Valuers. The material task of the Valuers is to form an opinion, within these parameters, about what a hypothetical purchaser/assignee would pay to achieve a "pre-financing (ungeared) project IRR of x %" as contemplated by paragraph (g) of the definition.

The word "value" in the context of the definition of "Current Market Value", and the procedural framework of the valuation process for which PDA Schedule 3 clause 1.2 provides, jointly and severally encapsulate the concept of an expert evaluation of a dollar amount.

There is no indication, or at least no express indication, in the definition of Current Market Value that the assumptions specified in the definition are exhaustive of the factors that can be, and are to be, taken into account in the assessment of the "amount" to be attributed to Current Market Value.

However, the concept of Current Market Value is implicitly constrained by the terms of the definition, the fact that it is to be applied by expert valuers possessed of particular professional qualifications and experience and the valuation process which the parties have contractually bound themselves to follow in good faith.

There are various indicators in the definition of Current Market Value and in delineation of the Valuation Process leading to a quantification of Current Market Value that, although constrained by the assumptions for which the definition of Current Market Value provides, the expert assessment to be undertaken by the Approved Valuers can, and should, be informed by available information as to actual facts.

This is illustrated by the proviso to paragraph (f) of the definition of Current Market Value. Where the first plaintiff, as Developer has pre-sold or pre-leased premises including in the Works Portion for which the Current Market Value is being determined, the first plaintiff must provide that information to the Approved Valuer(s), who must take account of it. The reference to pre-sales ties in with paragraph (f)(ii). The reference to pre-leased premises refers back to paragraph (f)(i).

The expression "must take account of" found in the proviso requires the Approved Valuers to give consideration to particular information; but, apart from implying that that information is or may be relevant to the task they are called upon by the PDA to perform, it does not dictate to them the significance or weight to be given to it.

In the context of paragraph (f)(i) - the particular provision of paragraph (f) applicable to the C4 Building - the information referred to in the proviso could reasonably be supposed to be likely to bear upon, if not generally to inform, an Approved Valuer's assessment of the "market rent [or] incentives that reflect current market incentives" at the date, and of the type, required by the PDA to be assumed.

The proviso to paragraph (f) is not the only indication in the PDA that the Approved Valuers are to, or may, take into account evidence of actual facts in their assessment of a hypothetical value.

Other indicators of that can be found in PDA Schedule 3 clause 1.2. Clause 1.2(d) requires the first plaintiff, as Developer, to give each Approved Valuer a Valuation Brief (in the nature of the pro-forma reproduced as Annexure M to the PDA) which has been approved by the defendant, acting reasonably. Clause 1.2(e) requires the first plaintiff to provide additional information if requested by either Approved Valuer to do so.

Information of the character identified by clause 1.2(d), clause 1.2(e) and Annexure M includes real world facts, not merely assumptions of fact.

Furthermore, PDA Annexure M confirms that each Approved Valuer is required to address actual facts. In that connection, both parties refer to clauses 5.6 and 5.7, which direct attention to market conditions and cash flows.

These provisions confirm that a determination of Current Market Value by an Approved Valuer is not a rote, mechanical or purely mathematical exercise. It requires an exercise of independent professional judgement involving qualitative, as well as quantitative, decision-making.

However, particular significance attaches (in favour of the plaintiffs' contentions) to the provisions of clause 5.7(a)(ii) which require that the "DCF [Discounted Cash Flow] Valuation... include ... [the] Current Market Value which must be calculated as an amount which enables the purchaser of the land to achieve exactly a pre-financing (ungeared) project IRR of x% on the development costs."

Consistently with this, the definition of Current Market Value in PDA Schedule 3 clause 1.1 (and clause 1.1(c) of the pro-forma Valuation Brief found in PDA Annexure M) provide, in PDA Annexure W, a "worked example", available "for information purposes only", "showing how the Current Market Value might be determined" by an Approved Valuer.

In this "worked example" and in paragraph (g) of the definition of Current Market Value, the x % nominated as the IRR (internal rate of return) must be construed as providing for an element of profit, and an allowance for risk, to the hypothetical purchaser/assignee in the calculation of the amount which the hypothetical purchaser/assignee would pay for the grant of a lease.

The meaning of the expression "a pre-financing (ungeared) project IRR" must take substantial colour from that worked example.

Whatever meanings may be attributed to the words "pre-financing" and "ungeared", jointly or severally, in other contexts, their joinder in a composite expression, in the context of the definition of Current Market Value and in the broader context of the PDA as a whole counsels caution against more than passing reference to lexicons indicative of word meanings in the abstract. Albeit by a "worked example", the parties have adopted their own dictionary.

The concept of a "pre-financing (ungeared)" rate of return is there deployed as a rate of return calculated without regard to cash flows associated with how the (hypothetical) Purchaser may finance, or fund, the Works.

In my assessment, the plaintiffs are correct in their contention (illustrated by PDA Annexure W and reinforced by, but not dependent upon, reference to antecedent materials incorporated in the contract) that performance of the discounted cashflow analysis required of the Approved Valuers by the definition of Current Market Value does not allow the Approved Valuers to include on the revenue side the moneys periodically received by the first plaintiff under clause 18 of the C4 Agreement.

To include those payments on the revenue side on the cashflow analysis would be to treat the hypothetical Purchaser as if it earned a return on those amounts at the percentage rate identified in paragraph (g) of the definition of Current Market Value. This is contrary to the substantive effect of the C4 Agreement, which provides for the Developer to make in favour of the Owner (Investor) an allowance (defined in clause 18.10, harking back to clause 1.1 definitions of "Computed Return" and "Funding Rate" in the C4 Agreement), in the nature of interest, predicated, one may assume, on a commercial assessment of the end value of the Works financed.

In three distinct, but inter-related ways this disparity tells against attribution to the hypothetical Purchaser of a finance-driven income stream of the Developer. First, it highlights that the valuation exercise required to be undertaken by the Approved Valuers must be viewed from the perspective of hypothetical parties, particularly a hypothetical purchaser/assignee, not that of an actual party, the Developer (first plaintiff).

Secondly, it invites recognition that the revenue assumption for which paragraph (f) of the definition of Current Market Value provides focuses on an assessment of market rates attributable to individual lots within the Works, the subject to valuation, whereas clause 18 of the C4 Agreement has as its subject matter, the whole of a Works Portion.

Thirdly, it supports a conclusion that payments to the Developer, under clause 18, are conceptually different from the assumed revenue stream available to the hypothetical Purchaser within the terms of paragraph (f).

That does not mean, however, that an Approved Valuer is precluded, generally, from taking into account payments made to the first plaintiff under clause 18 of the C4 Agreement.

It is not correct to characterise those payments only as "funding" or "financing" payments. They bear that character but, to some extent, they also implicitly bear the character of consideration for "purchase" of an interest in the defendant's land.

The Approved Valuers are at liberty to consider whether regard might reasonably be had to the clause 18 payments for the purpose of taking into account, in their evaluative process, so much of those payments as may fairly represent, in substance, payment on account of acquisition of an interest in land owned by the defendant.

The Approved Valuers are entitled, on the proper construction of the PDA, to take into account the substantive character of clause 18 payments as implicitly including an element of a "purchase price", having regard to the timing and amounts of such payments and a reasonable apportionment of those payments between the provision of finance and the receipt of consideration.

To the extent that those payments bear the character of a purchase price they may be as indicative of market conditions as transactions the subject of the proviso to paragraph (f) of the definition of Current Market Value and, although not literally falling within the terms of paragraph (f), available to be taken into account in the assessment of Current Market Value.

They are available to be taken into account as bearing upon an assessment of "market rent", "market incentives" or "market price", within the meaning of paragraph (f), and, accordingly, for the purpose of assessment of the revenue stream for which paragraph (f) provides, as part of the Discounted Cash Flow valuation exercise which is at the core of the definition of Current Market Value.

There is no necessary, direct correlation between (on the one hand) the notional value attributed to the C4 Building by an investor funding its construction and marketing to individual end-users and (on the other hand) the market rent, market incentives or market price, attributable to individual parts of it for the purpose of paragraph (f); but, within the field of his or her expertise, a valuer could take the view that the investor's assessment of market conditions is relevant to the valuation task at hand.

The fact that the first plaintiff, implicitly, pays "interest" indirectly (in the form of a price reduction or discount to account for the fact that the bulk of the clause 18 payments have to be paid before completion) should not, as a matter of substance, preclude the Approved Valuers from taking clause 18 payments into account (so far as such payments may, in their professional judgment, rationally reflect the value of the property to be valued) when making an assessment of market conditions for the purpose of making a determination of Current Market Value.

The fact that imprecision may attach to characterisation of some part of clause 18 payments as attributable to an acquisition of land owned by the defendant does not relieve the Approved Valuers from any obligation they may have to consider whether (and, if so, how) it can, and should, be done.

Any difficulty attaching to such a decision-making exercise has been accommodated by the parties in their deliberate entrustment of it to the professional judgement of experts, possessed of particular qualifications, and an orderly dispute resolution mechanism leading to an assessment of value. Implicit in the valuation exercise is a need to exercise sound professional judgement, informed by training and experience, where minds may reasonably differ.

On the proper construction of the PDA, the definition of "Current Market Value" in PDA Schedule 3 does not require (but, subject to qualifications addressed in these Reasons for Judgment, permits) an Approved Valuer, when assessing the Current Market Value for the premises for the C4 Building, to take into account an allowance for some part of the cash contributions received by the first plaintiff as Developer under clause 18 of the C4 Agreement.

On the proper construction of the definition of "Current Market Value" in PDA Schedule 3, an Approved Valuer is permitted to take into account the cash contributions received by the first plaintiff under clause 18 of the C4 Agreement to the extent that those payments:

(a) may, in substance, fairly represent, or be indicative of, a payment implicitly made on account of an interest in land owned by the defendant; and

(b) might reasonably be thought by a person having the qualifications of an Approved Valuer (as defined by PDA Schedule 3 clause 1.1) as having a bearing upon an evaluation of the amount (ie, rationally affect an assessment of the amount) which the hypothetical Purchaser would pay to the hypothetical Vendor, for the property the subject of valuation, identified in the introductory words of the definition of "Current Market Value".

Characterisation of part of the moneys periodically paid to the first plaintiff under clause 18 of the C4 Agreement as referable, in substance, to a payment on account of acquisition of an interest in land owned by the defendant (and hence indicative of land values) involves an evaluative process which the PDA contemplates will be conducted by one or more Approved Valuers leading, in the case of dispute, to an outcome determined by PDA Schedule 3 clause 1.2.

This is consistent with the assumption for which paragraph (g) of the definition of "Current Market Value"

However, the expression "a pre-financing (ungeared) project IRR" in paragraph (g), read with the worked example in PDA annexure W, is, on the proper construction of the PDA, intended to encapsulate the idea that the valuation exercise for which PDA Schedule 3 clause 1.2 provides is to result in a determination of "value" not affected by decisions that may have been made by the plaintiffs about how construction of a building is to be financed, whether by debt or equity financing.

The words "pre-financing" and "ungeared" jointly and severally point in that direction, elliptical though they are. PDA annexure W is to the same effect. The fact that the subject matter of paragraph (f) is an "entitlement" attributed to the hypothetical Purchaser and going to the presumptive profitability of the project reinforces the same conclusion, and tends against factoring into a mathematical IRR calculation cash flows which, though they may bear upon market conditions, are driven by the plaintiffs' funding arrangements.

This is reinforced by the assumption for which paragraph (c) of the definition provides, reading it (as I have determined it must be read) as providing that the hypothetical Purchaser is to be taken not to have incurred funding costs before the grant of a Lease The funding cash flows of the Purchaser (and, for completeness, it must be said, those of the first plaintiff as Developer) are to be ignored in determining Current Market Value.

The plaintiffs contend (and I agree) that the Approved Valuers may have regard to the C4 Agreement and the amounts paid under clause 18 of that Agreement, but not, as the defendant would have it, as moneys required to be used as inputs in the IRR calculation contemplated, by paragraph (g) of the definition of Current Market Value, as indicative of an assumed entitlement of the hypothetical Purchaser.

The principal dispute between the parties focuses, not so much on whether those amounts can be taken into account, but how they may be taken into account.

Provided that the Approved Valuers adopt a valuation methodology consistent with the assumptions for which the definition of Current Market Value provides (including an assumption that the method by which a building is to be financed is not allowed to be an operative factor affecting valuation), how they go about making their determination of value is a matter entrusted to their professional judgement and the peer review, dispute resolution mechanism for which PDA clause 1.2 provides.

CONCLUSION

Subject to allowing the parties an opportunity to make submissions as to the precise form of declarations to be granted consequent upon these Reasons for Judgment, I propose to make the following declarations:

(1) Declare that, upon the proper construction of the Project Development Agreement between the first plaintiff as "Developer", the second plaintiff as "Guarantor" and the defendant, entered into on 5 March 2010 and subsequently amended on 1 April 2010, 8 June 2010, 30 July 2010, 23 December 2010 and 14 June 2012 ("the PDA"), an Approved Valuer, in making a determination of the Current Market Value for the grant of a Lease of the Premises on which the proposed Building C4 is to be constructed (for the purpose of clause 1.2 of schedule 3 to the PDA) is not entitled to input as cash inflows, in performing a discounted cash flow valuation for the purpose of paragraph (g) of the definition of "Current Market Value" in clause 1.1 of schedule 3 to the PDA, those cash contributions paid before Practical Completion to the Developer (by the Nominee nominated by the Developer to accept a Call Offer) referred to in clause 18 of the agreement dated 7 July 2012 entitled "Stage I Project Agreement, Wharf Tower Building C4, Barangaroo South Sydney".

(2) Declare that, upon the proper construction of the PDA, an Approved Valuer, in making a determination of the Current Market Value for the grant of a Lease of the Premises on which the proposed Building C5 is to be constructed (for the purpose of clause 1.2 of schedule 3 to the PDA) is not entitled to input as cash inflows, in performing a discounted cash flow valuation for the purpose of paragraph (g) of the definition of "Current Market Value" in clause 1.1 of schedule 3 to the PDA, those cash contributions paid before Practical Completion to the Developer (by the Nominee nominated by the Developer to accept a Call Offer) referred to in clause 19 of the agreement dated 7 July 2012 entitled "Stage 2 Project Agreement, Wharf Tower Building C5, Barangaroo South Sydney"; but

I do not propose to incorporate in any declaration views here expressed about the use that an Approved Valuer can make of the fact, timing or structure of payments under clause 18 of the C4 Agreement or clause 19 of the C5 Agreement.

Those views lack that degree of essentiality to the determination of the issue tendered for determination (about the proper construction and operation of paragraph (g) of the definition of Current Market Value) necessary to attract rules, governed by cases such as Blair v Curran (1939) 62 CLR 464 at 531-533, that render them binding on the parties.

Moreover, the Court should be slow to give independent legal force to what might be perceived to be a gloss on the language of a contract governing the rights and obligations of litigants about a valuation question and, thereby, to convert into "law" a question which is , and should remain, essentially a question for the expertise of a valuer.

Hopefully, what has been written may be of assistance to the Approved Valuers. Whether or not it is, any declarations that are made should be expressed in terms tightly focussed on the issue tendered for determination.

Prima facie, if costs are to follow the event, the plaintiffs are entitled to an order that the defendant pay their costs of the proceedings. The parties are, however, at liberty to address me on that question.

The only order presently necessary to move the proceedings to a final determination is an order that the parties bring in short minutes to give effect to these reasons for judgment. Those short minutes should address: (a) the form of declarations to be made; (b) the costs orders, if any, to be made; and (c) the form of any ongoing orders under the Court Suppression and Non-Publication Orders Act 2010 NSW.

ADDENDUM

These Reasons for Judgment were published to the parties on 12 December 2013. On the application of the plaintiffs, and without objection by the defendant, on 13 December 2013 Lindsay J revised the Reasons by deleting from paragraph 248 a number erroneously recorded there and substituting the letter "x".

On 13 December 2013 his Honour also made Orders giving effect to the Reasons for Judgment as revised, including declarations in the terms set out in paragraph 316.

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Decision last updated: 02 January 2015

[2013] NSWSC 1848

12 December 2013

Key Legal Topics

Areas of Law

Contract Law

Legal Concepts

Contract Formation

Construction of Contract

Declaratory Relief

Expert Evidence

Medium Neutral Citation:	Lend Lease (Millers Point) Pty Limited v Barangaroo Delivery Authority [2013] NSWSC 1848
Hearing dates:	27, 28 March and 24 May 2013
Decision date:	12 December 2013
Jurisdiction:	Equity Division
Before:	Lindsay J
Decision:	Subject to allowing the parties an opportunity to make submissions as to the form of the orders to be made in disposition of the proceedings, the Court proposes to declare that, upon the proper construction of the Project Development Agreement for the Barangaroo Project, an Approved Valuer making a determination of the Current Market Value for the grant of a Lease of the Premises on which the proposed buildings C4 and C5 are to be constructed (for the purpose of clause 1.2 of Schedule 3 to the PDA) is not entitled to input as cash inflows, in performing a discounted cash flow valuation for the purpose of paragraph (g) of the definition of Current Market Value in clause 1.1 of PDA Schedule 3, those cash contributions paid before Practical Completion to the Developer (by the Nominee nominated by the Developer to accept a Call Offer) respectively referred to in clause 18 of the C4 Agreement and clause 19 of the C5 Agreement.
Catchwords:	CONTRACT - Construction - Dispute resolution clauses - Expert Valuation - Dispute about terms of instructions to Valuers - Declarations sought as to proper construction of contract - Declaratory relief available REMEDIES - Declarations - Declarations without consequential relief - Construction of contract - Commercial contract - Dispute resolution clauses - Declarations granted in aid of contractual dispute resolution procedure
Legislation Cited:	Barangaroo Delivery Authority Act 2009 NSW Court Suppression and Non-Publication Orders Act 2010 NSW Government Information (Public Access) Act 2009 NSW Supreme Court Act 1970 NSW Valuers Act 2003 NSW
Cases Cited:	AG Robertson Limited v Valuer-General (1952) 8 LGR (NSW) 261 at 262 Albany v Commonwealth (1976) 60 LGRA 287 at 293-294 Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 at 109 Australian Provincial Assurance Association Limited v Commissioner of Land Tax [1942] ALR 156 at 158 Blair v Curran (1939) 62 CLR 464 at 531-533, that render them binding on the parties Boland v Yates Property Corp Pty Limited (1999) 74 ALJR 209 at 268 Codelfa Constructions Pty Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 at 350, 352 Equuscorp Pty Limited v Glengallan Investments Pty Limited (2004) 218 CLR 471 at 483 [34] Fitzgerald v Masters (1956) 95 CLR 420 at 426-427; 436-438 Hogan v Hinch (2011) 243 CLR 506 at 531 [21]) John Fairfax & Sons Limited v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477 Legal & General Life of Australia Limited v A Hudson Pty Limited (1985) 1 NSWLR 314 at 335D-336B Pacific Carriers Limited v BNP Paribas (2004) 218 CLR 451 at 461-462 [22] Royal Botanic Gardens and Domain Trust v South Sydney City Council (2009) 240 CLR 45 at 62-63 [39] Spencer v The Commonwealth (1907) 5 CLR 418 at 432, 436-437 and 440-441 Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 at 179 [40] Western Export Services Inc v Gireh International Pty Limited [2011] HCA 45; 86 ALJR 1 at [3]-[5]
Texts Cited:	K Lewison and D Hughes, The Interpretation of Contracts in Australia Law Book Co, Sydney, 2012) paragraph (7.02) JW Carter, The Construction of Commercial Contracts AA Hyam, The Law Affecting Valuation of Land in Australia (Federation Press, 3rd ed, 2004, Sydney), pp 124-126; 143-149
Category:	Principal judgment
Parties:	First Plaintiff: Lend Lease (Millers Point) Pty Limited (ABN 15 127 727 502) Second Plaintiff: Lend Lease Corporation Limited (ABN 32 000 226 228) Defendant: Barangaroo Delivery Authority (ABN 94 567 807 277)
Representation:	IM Jackman SC with SA Lawrance (Plaintiffs) B Walker SC with G Rich and S Nixon (Defendant) Herbert Smith Freehills (Plaintiffs) Clayton Utz (Defendant)
File Number(s):	2012/000379741