Perth Airport Pty Ltd v Ridgepoint Corporation Pty Ltd
[2013] WASC 33
•5 FEBRUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PERTH AIRPORT PTY LTD -v- RIDGEPOINT CORPORATION PTY LTD [2013] WASC 33
CORAM: KENNETH MARTIN J
HEARD: 22 AUGUST & 25 OCTOBER 2012
DELIVERED : 5 FEBRUARY 2013
FILE NO/S: CIV 1870 of 2012
BETWEEN: PERTH AIRPORT PTY LTD
Plaintiff
AND
RIDGEPOINT CORPORATION PTY LTD
First DefendantMcCALLUM DONOVAN SWEENEY (A FIRM)
Second DefendantPHILLIPS FOX (A FIRM)
Third Defendant
Catchwords:
Deeds of release - Negative covenant - Alleged breach - Commencement of action in 2007 - Application to enforce restraint by a permanent injunction - Assessment of damages in the alternative - Application to reopen by undertaking
Legislation:
Nil
Result:
Application granted
Injunction issued
Category: B
Representation:
Counsel:
Plaintiff: Mr M D Howard SC & Ms K R Lendich
First Defendant : Mr J W S Peters SC & Mr P Mendelow
Second Defendant : Mr S C R Sudweeks
Third Defendant : Mr S F Popperwell
Solicitors:
Plaintiff: Norton Rose Australia
First Defendant : Fiocco's Lawyers
Second Defendant : Jackson McDonald
Third Defendant : Pynt & Partners
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Evans v Miller [2011] WASCA 89
Georges v Davies [2007] NSWSC 1284
Government Employees Superannuation Board v Martin (1997) 19 WAR 224
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216
Homestake Australia Ltd v Metana Minerals NL (1991) 11 WAR 435
J C Williamson Ltd v Lukey (1931) 45 CLR 282
James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53
Janssen‑Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526
Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181
McCourt v Cranston [2012] WASCA 60
Osborne v Landpower Developments Pty Ltd (in liq) [2003] WASCA 117
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323
Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (a firm) [2011] WASC 167
Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287
Smith v New South Wales Bar Association (1992) 176 CLR 256
Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602
Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1
KENNETH MARTIN J:
Introduction
This is a breach of contract action advanced by Perth Airport Pty Ltd (Perth Airport) seeking to permanently restrain the first defendant (Ridgepoint) from continuing to advance as plaintiff in another action in this court, namely CIV 2127 of 2007 (the 2007 Action). Both actions are case managed in my CMC List.
In late 2011, Perth Airport found itself joined as a third party to the 2007 Action. Perth Airport's late inclusion in those proceedings did not occur at the instigation of Ridgepoint. Rather, Perth Airport was joined by the two firms of solicitors that are the defendants to the 2007 Action. Those defendants, McCallum Donovan Sweeney (MDS) and Phillips Fox (PF), whilst strongly resisting Ridgepoint's professional negligence actions against them, alternatively seek, in the event of liability to Ridgepoint, contribution or indemnity from Perth Airport.
Contribution or indemnity is sought from Perth Airport on the basis that it, along with the two firms of solicitors, would be a concurrent wrongdoer in the ultimate loss and damage that Ridgepoint claims it sustained via the 2007 Action. Alternatively, contribution or indemnity is sought under a co‑ordinate liability.
PF also pursues Perth Airport via the third party proceedings for damages or statutory compensation. PF seeks to apply a Janssen‑Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 line of reasoning, whereby a wide view is taken of damage suffered by parties in consequence of a statutory wrong, extending out to embrace parties who are not even the direct recipients of the impugned misleading or deceptive representation or conduct.
Perth Airport commenced this action in mid 2012, shortly after it had been drawn into the 2007 Action as a third party by MDS and PF. It now seeks to permanently restrain Ridgepoint from further pursuing its 2007 Action.
Perth Airport seeks to achieve this injunctive outcome vis‑à‑vis Ridgepoint by invoking, to its advantage, a no‑litigation covenant in a deed of release entered into on 22 December 2006 by a number of parties. The parties to this deed included Perth Airport, Ridgepoint, members of the Cardaci family (being directors and shareholders of Ridgepoint) and another corporation related to the Cardaci family, Centurion Transport Co Pty Ltd (Centurion). I will refer to the 22 December 2006 instrument as the WAC Deed.
Whilst Perth Airport and Ridgepoint are parties to the WAC Deed, the two firms of solicitors that are the defendants pursued by Ridgepoint in the 2007 Action are not. Clearly, MDS and PF are not bound by, and cannot enforce, the terms of the WAC Deed, to which they are not privy.
Nevertheless, Perth Airport contends one of the covenants in the WAC Deed prevents Ridgepoint from commencing proceedings, in respect of certain matters, against anyone. Perth Airport's argument is that this covenant prevents Ridgepoint commencing or maintaining causes of action against any party, even if that party is not privy to the WAC Deed. Relevantly, Perth Airport says the covenant prevents Ridgepoint commencing proceedings where the cause of action that is pursued is in relation to a designated area of land at the Perth Airport, being land over which multiple commercial disputes have arisen in the past, as is explained in the recitals to the WAC Deed.
The WAC Deed was entered into on 22 December 2006. This was done contemporaneously with the execution of another deed involving other parties including Ridgepoint, but not Perth Airport. The WAC Deed, in its interpretation definitions, refers to this other deed as the 'Settlement Deed' (the SD). The WAC Deed's definition for the SD, as seen at cl 1.1, identifies the SD as being a deed between its various parties, 'in relation to the Premises on or about the date of [the WAC Deed]' (emphasis added).
The term 'Premises' is defined in the WAC Deed, by a reference to areas of land coloured blue, orange and green on a plan that is annexed to the WAC Deed and which together comprise an area of land of approximately 22.14 hectares.
Uncontroversially, it can be seen that this land was a subset of a greater area of land around the Perth Airport that was owned by the Commonwealth of Australia, and was leased under a head lease of 2 July 1997 to Perth Airport (Perth Airport being known at that time as Westralia Airports Corporation Pty Ltd. Hence the acronym 'WAC').
'Land' is defined in the WAC Deed and the SD as the land leased by the Commonwealth to WAC under the head lease. The head lease from the Commonwealth gave WAC its leasehold interest in land at the Perth Airport.
'Premises' is similarly, although not precisely, defined in the SD as the 22.14 hectare area.
The WAC Deed's provisions make recurrent references to the contemporaneously executed SD. It is therefore necessary and appropriate in interpreting the WAC Deed to take account of the SD as the WAC Deed's surrounding context.
The SD sits in something of an umbrella position as regards the WAC Deed and four other deeds of release. That conclusion is apparent from the defined term, 'Releases', as found in the SD. The definition of 'Releases' in the WAC Deed refers the reader back to the definition in the SD.
The term 'Releases' encapsulates not only the WAC Deed but also the:
(a)Whitewood Deed of Release;
(b)Ridgepoint Deed of Release;
(c)Proceedings Deed of Release; and
(d)Pioneer Deed of Release.
These five releases are instruments that are explained further in the definitions of the SD. Hence there is a clear interrelationship as between the five deeds of release beneath the overarching SD. Six contemporaneously entered deeds of 22 December 2006 implement wide‑ranging commercial settlements ending many commercial disputes that involved many parties. The settlements were all to be achieved in December 2006.
Ridgepoint resists all Perth Airport's contentions. It argues that, on the proper construction of the WAC Deed, Ridgepoint is fully at liberty to pursue the 2007 Action against the two defendant firms of solicitors. The fact that those defendant firms have, at the end of 2011, acted themselves to draw Perth Airport into the 2007 Action via contribution and indemnity claims, and PF's independently grounded direct alleged causes of action against Perth Airport, is, according to Ridgepoint, wholly irrelevant.
Background
By its 2007 Action, Ridgepoint pursues MDS and PF, seeking damages by reason of alleged professional negligence or misleading or deceptive conduct, in relation to the circumstances in which Ridgepoint entered a sub‑sublease on 21 December 2001 for an area of land at the Perth Airport. Ridgepoint's 2001 sublease was then granted to it by Westgroup Pty Ltd (Westgroup). Receivers and managers were later appointed to Westgroup.
Westgroup had obtained its interest in the relevant airport land by two subleases from WAC. The SD refers to these as the Blue and Orange Lease and the Green Lease, respectively. The Blue and Orange Lease, undated but stamped 12 April 2001, was executed by Westgroup and members of the Pollock family (Westgroup's guarantors). The Green Lease, of 12 February 2002, concerned 3.69 hectares of land. It was executed by WAC, Westgroup and the Pollocks (again as guarantors).
Together, these areas of land subleased from WAC to Westgroup comprise the areas coloured blue, orange and green on the plan that is Annexure A to the WAC Deed, and comprise approximately 22.14 hectares of land at the Perth Airport. The same three areas of land together make up the Premises mentioned in the WAC Deed and the SD.
WAC granted these subleases over land at the Perth Airport to Westgroup in April 2001 and February 2002. In turn, Westgroup then granted what were actually sub‑subleases to other parties. One such sub‑sublessee party was Ridgepoint, under what the SD calls the Ridgepoint Sublease, of 21 December 2001, but which is, more correctly, a sub‑sublease.
There appears to be no controversy over the entry of these sublease arrangements as between WAC and Westgroup. But a major problem and, in my assessment, the root cause of ensuing disputation, has emerged out of Westgroup's sub‑subleases. Specifically, Westgroup also granted another sub‑sublease over airport land to the corporation Whitewood Pty Ltd (Whitewood). Whitewood's sub‑sublease is undated, but is stamped 12 April 2001, the same day as the Blue and Orange 'Lease' between WAC and Westgroup (Whitewood later entered receivership and then a deed of company arrangement).
It can be seen that Ridgepoint's sub‑sublease of 21 December 2001 from Westgroup came post Whitewood's sub‑sublease by approximately eight months.
Unfortunately, there was by error some overlap as between areas the subject of the two sub‑subleases granted by Westgroup to Whitewood and Ridgepoint. This overlap, once subsequently discovered, generated a priority dispute as between Ridgepoint and Whitewood. Security interests over the same land clashed as well: the lenders to Whitewood and Ridgepoint (the National Australia Bank and Police & Nurses Credit Society) had secured their loans by caveats over the Whitewood/Ridgepoint sub‑sublease areas.
The law firms PF and MDS had been involved in conveyancing work concerning preparing caveats by reason of the taking of Ridgepoint's sub‑sublease of 21 December 2001. MDS had acted directly for Ridgepoint. PF had acted for Police & Nurses Credit Society, the entity advancing secured funds to Ridgepoint. Further details about this end of 2001 transaction and the clashing caveats as prepared can be obtained from my earlier reasons: see Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (a firm) [2011] WASC 167.
The 2007 Action essentially sees Ridgepoint pursue the law firms for alleged professional negligence by reason of their failing to detect the same land overlap in the land sub‑sublet by Westgroup to Ridgepoint and Whitewood.
The WAC Deed refers, as defined terms, to a 'Ridgepoint Sub‑Lease' and a 'Whitewood Sub‑Lease'. Both instruments are mentioned as being 'over part of the Premises'.
Specifically, Ridgepoint's grievance against the two law firms is that the land title searches they conducted before 21 December 2001 failed to detect the airport land overlap in the areas sub-sublet by Westgroup.
The pleaded position of Ridgepoint in the 2007 Action is that if the two firms had been more diligent in their land title searches, the overlap problem (which, at root, was Westgroup's error as sub‑sublessor) would have been discovered by Ridgepoint earlier than it actually was. Ridgepoint then appears to contend that if it had been alerted to the overlap earlier in time by MDS or PF, it then would have had an opportunity to resolve the overlap problem with Westgroup before Westgroup entered receivership. The hypothesis suggests a more favourable resolution for Ridgepoint than under the eventual rehabilitation and new tenure settlement arrangements which ultimately emerged at the end of 2006.
From recitals in the SD, it can be discerned that through 2005, some efforts were made (with Westgroup and Whitewood then in receivership) to fix the land overlap problem by rehabilitation arrangements involving other parties. There was a Leasehold Interest Agreement and a Side Agreement. By the Leasehold Interest Agreement, WAC agreed to consent to an assignment of the Westgroup subleases (see recitals E(a) and G to the SD).
However, the Leasehold Interest Agreement of May 2005 and Side Agreement of March 2005 ultimately failed to resolve the matter and only generated even more disputation. These further disputes are the 'Westgroup Dispute' and the 'Ridgepoint Dispute' (see recitals H and I, respectively, to the SD).
Those disputes, in turn, gave rise to legal proceedings previously pursued in this court: CIV 2065 of 2005 (the Westgroup Proceedings) and CIV 1924 of 2005 (the Ridgepoint Proceedings) (see SD, recitals J and K).
The two actions were consolidated (see the definition of 'Consolidated Proceedings' in the SD, and the definition of 'Proceedings' in the WAC Deed).
A court‑sponsored mediation in this court during April 2006 resulted in a Heads of Agreement, by way of an in-principle resolution of the Consolidated Proceedings. That Heads of Agreement is Annexure A to the SD.
The parties to the SD appear to have settled the Westgroup dispute and the Ridgepoint dispute upon the terms of the Heads of Agreement. However, that agreement was 'superseded entirely' by the terms of the SD (recital L of the SD).
There is an interval of about 8 months between the Heads of Agreement of 10 April 2006 and the SD of 22 December 2006.
WAC, as it then was, multi-dispute resolution delivered by the SD required to significantly assist in achieving the end resolution. The assistance was by WAC's grant of fresh subleases, now directly to Ridgepoint and to another party that effectively replaced Whitewood, Abernethy Road Pty Ltd (Abernethy). There was now no land overlap in the discrete areas the subject of these new subleases by WAC.
It was a condition precedent of the SD that WAC agree to accept a surrender of the old Westgroup leases and grant new subleases directly to Abernethy and Ridgepoint (see SD cl 3.1(a)). All WAC's costs, as regards the new subleases and WAC's legal advice concerning the SD and releases as contemplated by the SD, were met by Abernethy and Ridgepoint: (see SD cl 9.2(a)).
The SD is expressed to be an entire agreement (cl 12.1). By cl 12.3, the parties to the SD covenant that they relied only on their own information. The language of cl 12.3 reflects a resonance and accord with the text of cl 2.4 in the WAC Deed, to which I will refer shortly.
The operative subject matter upon which the self‑reliance covenants at cl 12.3 SD is grounded is the Westgroup dispute, the Westgroup proceedings, the Ridgepoint dispute and the Ridgepoint proceedings. By contrast, the operative subject matter of the self‑reliance covenants of cl 2.4 of the WAC Deed is different. The subject matter which grounds the similarly phrased self‑reliance covenant is in description wide and generic, namely the 'Premises'. I return to cl 2.4 of the WAC Deed later, to discuss its important contribution in the construction exercise for cl 2.1(d) of the WAC Deed.
Recitals in the WAC Deed are a little confusing in terms of their organisation and assembly. Oddly, there are two recital Ds and two recital Hs. This is an obvious, but in the end, easily navigable error. For convenience I shall refer herein to the first recital D as D/1 and the second as D/2. Likewise, for what I call recitals H/1 and H/2.
With nomenclature clarification it will now be seen that the WAC Deed recitals D/2 and E both refer to conflicting claims to the Premises by Whitewood and Ridgepoint. This must be a reference to the land area overlap problem which arose as Ridgepoint took its partially overlapping sub‑sublease area from Westgroup in December 2001.
The eventual solution to that multifaceted problem is eventually identified in recital H/1 as the settlement to be effected between the parties to the SD. There follows recognition in recital H/1 of the grant of new subleases by WAC to Ridgepoint and Abernethy.
Finally, H/2 recites that 'Westgroup, Whitewood, Ridgepoint, Centurion, C Cardaci, F Cardaci and Abernethy [who, along with the Receivers, are defined elsewhere as the Releasing Parties] have agreed to provide certain releases in favour of WAC, on the terms set out in this deed' (emphasis added). The beneficial intent of the operative releases towards WAC found in the WAC Deed is objectively very clear at this point.
Of some significance as well to a resolution of the present construction dispute is a very wide definition, which is essentially common as between the SD and the WAC Deed, for the word 'Claims'.
'Claims' is defined in almost identical terms in the SD and the WAC Deed. The WAC Deed defines 'Claims' as meaning (unless a contrary intention appears) 'any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature (including in relation to costs) howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise'.
Deliberation upon that wide definition (and, as I infer as well, for 'Claim') delivers the assessment that it could hardly have been drawn in wider terms, particularly by its phrase, 'howsoever arising of any nature' (emphasis added). Its breadth embraces not only present claims, but also future claims.
This trial proceeded on the basis that all parties accept the SD and the WAC Deed were drawn with professional assistance (as is obvious from the face of both instruments). It was also accepted that all parties were commercially sophisticated.
As regards the SD, it is clear there was an extensive disputation and litigious history prior to December 2006 as between the many parties who, in the end, came to be involved in the various settlements effected and implemented by the SD. Of course Perth Airport (or WAC as it then was known) was not a participant in the Consolidated Proceedings, ongoing in 2005 and 2006. There is a suggestion in the SD, within the context of the issues being fought out in the Consolidated Proceedings, that some allegations had been made against WAC from time to time. One allegation was that WAC unreasonably withheld its consent to assignment proposals concerning the original Westgroup subleases: see SD recital J. Note also the definition of the 'Ridgepoint Claim'.
However, no litigation had been commenced against WAC by December 2006. It is apparent from the SD and the WAC Deed that WAC was cooperative and facilitating the overall settlement reached between all parties being achieved under the umbrella of the SD by a grant of fresh subleases directly by WAC to Abernethy and Ridgepoint.
At that time, WAC (Perth Airport) was essentially a cooperative and essential facilitator of the SD settlement. The SD sat above five deeds of release, multiple parties and the Consolidated Proceedings.
Core issues
The trial was argued across one day on agreed documentary materials. Perth Airport relies, as against Ridgepoint, upon the covenant not to sue found within cl 2 of the WAC Deed. Perth Airport contends the wide scope of cl 2.1(d) is such that it prevents Ridgepoint from maintaining its 2007 Action, even as against MDS and PF.
Perth Airport contends Ridgepoint's breach of cl 2.1(d) of the WAC Deed is graphically illustrated by what occurred at the end of 2011: PF's third party notice issued against Perth Airport on 18 November 2011, and MDS's third party notice issued against Perth Airport on 23 December 2011. Those third party notices drew Perth Airport into the 2007 Action, even though its involvement was not at the instigation of Ridgepoint.
Perth Airport says its key point is well illustrated by the fact it has now become involuntarily embroiled in third party contribution and indemnity arguments, on the basis that it is a several or concurrent tortfeasor in the same damage as was allegedly sustained by Ridgepoint.
Perth Airport invokes cl 2.1(d) of the WAC Deed (read in conjunction with cl 2.4) to say that Ridgepoint's breach of that covenant should be restrained by permanent injunction, thereby preventing Ridgepoint from continuing the 2007 Action against MDS and PF.
I have set out the entirety of cl 2 of the WAC Deed at Appendix 2 of these reasons. For present purposes I observe globally that cl 2.1 has four subparagraphs, (a) through (d). Clause 2.1(a) provides for 'releases' by the Releasing Parties (as defined) and expressly favouring only Perth Airport.
Clause 2.1(c) is a plea in bar clause, also expressly only favouring WAC.
Each of the subcl (a) ‑ (d) within cl 2.1 is framed upon or by reference to the word 'Claims' or 'Claim'. I have already examined the breadth of the word 'Claims'. As constructed, it is in extremely broad terms.
Textual similarities may be seen as between cl 2.1(b) and cl 2.1(d). Both are drawn as covenants not to sue - making them conceptually distinct from the releasing subcl 2.1(a), or the barring subcl 2.1(c) favouring WAC.
Clause 2.1(b) is a covenant not to sue by commencing or maintaining any claim 'against WAC' (Perth Airport). But subcl 2.1(d) is not so expressly directed as to a benefit only to WAC.
Clauses 2.1(b) and (d) are both drawn as covenants not to sue (ie not to commence or maintain) and in relation to the word 'Claim'. Clauses 2.1(b) and (d), viewed one as against the other, respectively present as:
2.1Release in favour of WAC
With effect from the date of this deed:
(a)…
(b)agree not to commence or maintain any Claim, action or causes of action (including in relation to costs) against WAC brought in relation to the Premises, the Leases or any way arising out of or incidental to or related to the Leases or the Premises or circumstances related to the Leases or the Premises prior to the Settlement Date whether the Claims, actions and clauses of action arise by virtue of a breach of any contractual or statutory duty or term or any other wrongdoing by WAC;
(c)…
(d)The Parties agree not to commence or maintain any Claim brought in relation to the Premises arising from matters and circumstances occurring up to the Settlement Date (with the exception of a Claim, action or cause of action for breach or enforcement of this deed).
There are words missing at the start of subcl 2.1(b). This appears as very obvious. There was no dispute about this erroneous omission during the trial. Clearly, the missing words at the commencement of subcl 2.1(b) must be the same as those at the beginning of cl 2.1(a), namely 'the Releasing Parties'. That expression is defined to mean the parties to the WAC Deed, save for WAC. Properly understood cl 2.1(b), like cl 2.1(a) and (c), expressly favours WAC.
With that erroneous omission borne in mind, cl 2.1(b) and (d) can then be compared as being, in effect, dual covenants not to sue, in contrast to the differing work of the releasing subclause seen in 2.1(a) and a plea in bar seen in subcl 2.1(c).
It will be observed, contrasting cl 2.1(b) and (d), that (d) is different as regards the parties or persons bound by a no suit covenant. Whilst (b) expressly favours WAC by binding only the Releasing Parties, in contrast, (d) imposes the negative burdens upon all parties to the WAC Deed. Relevantly WAC and Ridgepoint as a result are now equally bound by (d) not to commence or maintain a Claim (as defined) brought 'in relation to the Premises'.
So, Perth Airport submits Ridgepoint's claims in the 2007 Action against MDS and PF are manifestly a 'Claim' or 'Claims' advanced by Ridgepoint 'in respect of the Premises'. This is because the causes of action pressed against MDS and PF by Ridgepoint clearly relate back to the overlapping land areas in the two sub‑subleases given by Westgroup at the Perth Airport. That issue is the very subject matter of the covenant not to sue, set down by cl 2.1(d), says Perth Airport.
By reference to cl 2.1(d) of the WAC Deed, Perth Airport says whilst cl 2.1(b) stops Claims against WAC by the Releasing Parties, cl 2.1(d) must be wider. It stops claims by any of the WAC Deed parties (including WAC) against anyone, if the 'Claim' advanced is properly to be characterised as one which is 'brought in relation to the Premises'. Perth Airport says the breadth of such no litigation protection is necessary, to prevent any parties to the WAC Deed commencing proceedings against anybody that has a prospect of drawing any of the other parties to the WAC Deed into litigation over the overlapping sub‑subleases issues, and as has now happened to Perth Airport in 2011.
For convenience, I have set out at Appendix A to these reasons some pertinent terms from the SD. I have done the same thing at Appendix B, for the WAC Deed.
Sources of evidence at the trial
Apart from the SD and the WAC Deed, both of 22 December 2006 and admitted respectively as exhibits A and B at trial, the only other document tendered by Perth Airport at trial was Ridgepoint's re‑amended statement of claim of 3 May 2011 in the 2007 Action. This document became exhibit C. Upon that limited evidence Perth Airport closed its case.
For Ridgepoint, eight documents were tendered. See exhibits D through L.
Exhibits D and E are communications to WAC either directly (exhibit D) or through solicitors (exhibit E), concerning Westgroup Pty Ltd, and proposed sublease arrangements.
Exhibit E identifies Abernethy as a proposed assignee of the Blue and Orange Lease and the Green Lease from Westgroup, subsequent to the appointment of its receivers and managers.
Exhibit F is a writ of subpoena to produce documents, of 11 January 2006, issued pursuant to the leave granted by Hasluck J in the Consolidated Proceedings (CIV 2065 and 1924 of 2005). This subpoena was directed to WAC, seeking the lease documents of 12 April 2001 and 12 February 2002. The subpoena sought:
All documents in the possession, custody or power of Westralia Airports Corporation Pty Ltd ('WAC') brought into existence after 1 April 2004 relating to the proposed assignment by Westgroup Pty Ltd (Receivers and Managers Appointed) (Controller Appointed) ('Westgroup') of:
(1)the lease stamped 12 April 2001, by WAC to Westgroup of part of the land at Abernethy Road, Perth International Airport being an area of 18.45 hectares (known as the Blue and Orange Lease);
(2)the lease dated and stamped 12 February 2002, by WAC to Westgroup of part of the land at Abernethy Road, Perth International Airport being an area of 3.69 hectares (known as the Green Lease);
to firstly, Hampton Transport Pty Ltd and Darmax Pty Ltd, and, later, Abernethy Road Pty Ltd.
Exhibit G relates to inspection of the subpoenaed documents within a fixed time, expiring 7 February 2006, and a request by Freehills on behalf of WAC for return of the documents post inspection.
Exhibit H is a copy of the amended statement of claim in the Consolidated Proceedings, amended March 2006. Attention was directed particularly to the averment in par 25.3:
25.Alternatively, if (which is denied) the WAC Condition has not been satisfied, the non‑satisfaction thereof arose because Westgroup breached the Implied Term, in that Westgroup did not:
…
25.3further, did not contest the position adopted by WAC, namely that WAC required a separate Deed of Release from Westgroup and Whitewood in relation to any claims arising by virtue of a breach of any contractual duty or term or any other wrong doing by WAC, relating to the Premises, the Leases or any way arising out of or incidental to or related to the Leases or the Premises or circumstances related to the Premises prior to settlement (under the Agreement), in circumstances where, by reason of the imposition of such requirement, WAC unreasonably withheld its consent to the proposed Assignment to Abernethy under the Agreement in breach of the term implied into the Blue and Orange Lease, and the Green Lease, by reason of the operation of Section 80(1) Property Law Act 1969 (WA).
Exhibit J is a letter of 26 April 2006 to one of the receivers of Westgroup (and Whitewood), Mr Ryan of Taylor Woodings, sent by Mr Peter Lees, development manager, leasing, of WAC. By this communication, Mr Lees advises Mr Ryan in terms:
Ridgepoint and Abernethy have approached WAC to seek our agreement to have all existing lease agreements surrendered and reissued in two separate documents, one between WAC and Ridgepoint and the other between WAC and Abernethy. WAC has discussed this with Freehills who are acting for us on this matter and wish to advise that we are comfortable with this request subject to being satisfied that we are not exposed to further action or claims from any of the parties mentioned in this letter including certain commitments Westgroup had with Pioneer Road Services, and that Ridgepoint and Abernethy accept and execute new lease agreements with WAC
…
While all this seems straightforward, it may be complicated to achieve, but it is logical for all parties to reach agreement on a common joint road access now. Unfortunately, while the road access matter between these parties was discussed many months ago and not resolved, it is now essential to resolve this in the next few weeks, as Paramon has commenced construction on their site and will need to make a decision on the ultimate road access arrangement both into and around their site within the next two weeks. I therefore seek your urgent consideration of this matter.
WAC has no commercial or operational involvement in these proposed arrangements, however we wish to assist meeting all parties' needs. I also have a letter from Mallesons dated 20 April 2006 advising that they act for Westgroup, are aware of this matter and have no objection to the transfer of Westgroup's interest by way of a surrender and grant of separate sub leases to Ridgepoint and Abernethy.
It will be remembered the Heads of Agreement document, which is annexure A to the SD, was dated 10 April 2006.
Exhibit K is a trail of emails from Friday 28 April 2006 concerning Westgroup, culminating in a communication by a Mr Philip Cardaci to the solicitor acting on their behalf at the time, a Ms Sarah Burke. This communication is of little, if any, moment in my assessment.
Exhibit L contains a series of admissions agreed between the parties prior to trial. These are admissions by the plaintiff, only some of which, namely admissions at pars 5 ‑ 8, 17 ‑ 19 and 21 ‑ 22, were tendered. Admission 17 concerns the earlier letter of 26 April 2006 from Mr Lees, which is exhibit J.
Admission 18 concerns exhibit K and the forwarding by Mr Lees, on behalf of WAC, of a copy of the 26 April 2006 letter, by email, to Carl Cardaci on behalf of Ridgepoint, and a Paul Mullins on behalf of Abernethy.
Admission 19 is:
[Perth Airport] admits that prior to 22 December 2006 various parties including Westgroup, Whitewood, the Receiver of Whitewood and/or Westgroup, the First Defendant, Centurion and Abernethy Road claimed an entitlement to an interest in the Premises (as defined in the Deed of Release) (Paragraph 9(a) Amended Reply - Papers at p 18.)
Admission 21 concerns exhibit D (of 17 September 2004). Its admission was on the basis of it 'being led for the purpose of showing [Perth Airport's] knowledge that Darmax and Hampton Transport had had an offer accepted but not for any other purpose'.
Admission 22 concerns exhibit E, the email of 10 May 2005 from Mallesons to Freehills. Freehills were acting for WAC at the time. This email was adduced on the basis it is
[b]eing led as evidence of the Plaintiff's knowledge of the position of Abernethy Road and the Plaintiff's knowledge that it was required to give consent to the proposed variation of the leases as stated. If those documents are sought to be led for any other purpose then they are objected to as being evidence of negotiations and irrelevant to the matters to be decided by the Court.
Admissions 17 ‑ 22 go to clarify the basis of Ridgepoint's limited documentary evidence at trial.
Admissions 5 ‑ 8, however, concern facts admitted by Perth Airport. These were:
5.There existed at a date prior to execution of the Deed of Release an overlapping area of land in relation to the land leased under the Ridgepoint Sub Lease and in relation to the land leased under the Whitewood Sub Lease ...
6.Prior to the execution of the Deed of Release the Plaintiff became aware of the existence of a dispute between the Receivers and Managers ('Receivers') of Whitewood Pty Ltd ('Whitewood') and Westgroup Pty Ltd ('Westgroup') of the one part and [Ridgepoint] of the other part regarding competing leasehold interests in an overlapping area of land …
7.Prior to the execution of the Deed of Release [Perth Airport] was aware that the Receivers had offered the leasehold interests held by Whitewood and Westgroup for sale …
8.Prior to the execution of the Deed of Release the Plaintiff was aware that the Receivers had called for expressions of interest for the sale of the leasehold interests held by Whitewood and Westgroup …
That comprised the limited evidence upon which this trial proceeded.
The law, the parties' pleadings, written submissions and oral arguments at trial
As may now be appreciated, Perth Airport's case is grounded upon the asserted breadth of the words in cl 2 of the WAC Deed, particularly cl 2.1(d) and cl 2.4.
Ridgepoint rejects that construction of cl 2 of the WAC Deed, contending that it is too wide. Ridgepoint invokes in its aid Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112, which concerned the scope of general releases in deeds. Grant establishes a proposition that general releases will be construed in a fashion that does not exceed the true purpose of the transaction, as ascertained from the nature of the instrument.
Senior counsel made it clear that he was only relying upon the first two limbs of the Grant principle. Ridgepoint does not rely upon a third limb of the Grant principle concerning equitable grounds and the potential intervention by a court of equity.
Dixon CJ, Fullagar, Kitto and Taylor JJ addressed the first limb of the principle in Grant in these terms (123):
The principle relied upon is that adopted by the common law long ago for the restriction of wide general words in a release of obligations, viz that the general words of a release should be restrained by the particular occasion: Knight v Cole (1690) 83 ER 686. Thus the general words of a release are to be restrained by the particular recital: Payler v Homersham (1815) 105 ER 890. As it is concisely expressed by Best J in Lampon v Corke (1822) 106 ER 1312 at 1314: 'If there be introductory matter, that will qualify the general words of the release.'
Addressing the second limb, the plurality said (123 ‑ 124):
The principle which it is thus sought to apply was expressed by Lord Westbury in London & South Western Railway Co v Blackmore [(1870) LR 4 HL 610] as follows: 'The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given' [(1870) LR 4 HL, at p 623]. It was expressed by Taunton J in Upton v Upton [(1832) Dow PC 400; 36 RR 817], in this way: ' ... the general words of a release may be limited by the particular matter out of which the release springs and the particular intent of the parties by whom the release is executed [(1832) Dow PC at p 406; 36 RR at p 821].
The plurality explain the difference between the first two limbs as follows:
The difference between the two replications lies in the difference between controlling the general words by reference to the express recital and controlling them by reference to the disputes which existed between the actual releasor (in this case the plaintiff) and the releasee (the defendant) (123).
In this realm I mention as well observations by Gleeson CJ and Handley JA made in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26. Referring to the Grant decision, their Honours said:
The rule is that the general words of a release will, in an appropriate case, be read down to conform to the contemplation of the parties at the time the release was executed (29).
I note as well Kirby P's observations made in Gubbins (43 ‑ 44).
I make three further observations about Grant:
(a)It is a decision binding upon me concerning general release covenants in deeds. The actual release clause that was relied upon by Mr Grant is seen at Grant (115). However, when I view the scope of cl 2 in the WAC Deed, particularly cl 2.1(d), I do not think it a proper approach to blandly categorise cl 2.1(d) as just a 'general release' covenant. On the contrary, the overall assembly and structure of cl 2.1(d) in the context of cl 2, presents to me to be an elaborately crafted interconnecting regime of covenants, performing distinct work. Sweeping generalisations in the present context do not, I find, assist the required task of interpretation.
(b)In Grant (129), the reasoning of the plurality, expressly recognises that it is open, by using clear drafting, to create a release clause which 'blots out' all disputes. Conceptually, therefore, there is no reason why a properly drafted clause cannot legitimately achieve that aim, if that is assessed (of course, objectively) as the function of the clause, evaluated in overall context.
(c)As regards the principle from Grant concerning the force of recitals in identifying (and thereby delimiting) a 'field of controversy' the subject of a release, it is significant here, to my view, to see that the recitals of the WAC Deed are not determinative of a 'field' identification. The recital I have designated H2 only says that the parties 'have agreed to provide certain releases in favour of WAC, on the terms set out in this deed' (emphasis added). The recital effectively only redirects attention on, towards the operative terms of the deed itself. Rather than delimit, constrain or elucidate the release clause's field of operation, the recitals to the WAC Deed direct attention to the significance of the operative parts of the instrument, effectively posing the (objective) question as to the scope of the release clause (more specifically, as regards cl 2 1(d) a no litigation clause), rather than answering it.
Perth Airport's arguments by its pleadings and submissions
Perth Airport's construction argument is shortly expressed in its statement of claim:
4.By a term of the Deed, Ridgepoint in effect covenanted with the other parties to the Deed (including Perth Airport) that it would not commence or maintain proceedings in relation to the Premises arising from matters and circumstances which occurred on or before 22 December 2006: cl 2.1(d) of the Deed.
Later, Perth Airport pleads:
9.In the premises pleaded in paragraphs 4 to 8 above, in commencing and maintaining the CIV 2127 Proceedings, Ridgepoint breached, and continues to breach, its covenant pleaded in paragraph 4 above.
…
11.Perth Airport has suffered loss and damage by reason of Ridgepoint's breach of its covenant pleaded in paragraph 4 above, and will continue to suffer loss and damage if Ridgepoint is not restrained from maintaining the CIV 2127 Proceedings.
By the prayer for relief, Perth Airport seeks against Ridgepoint:
AAn order that the CIV 2127 Proceedings be permanently stayed;
BDamages ...
In written submissions of 16 August 2012 Perth Airport elaborated upon the construction position by emphasising three points.
First (and about this there can be little controversy), the 2007 Action by Ridgepoint against MDS and PF meets the wide definition of a 'Claim' or 'Claims', as that word is defined in the SD and the WAC Deed.
Second (there being much controversy over this, both as to contractual construction and upon the issue of correct characterisation), the 2007 Action is brought 'in relation to the Premises'. Perth Airport says that the action by Ridgepoint against MDS and PF is clearly in relation to an asserted failure(s) by (which is strongly denied) those two solicitor firms to properly conduct title searches concerning the land which was the subject matter of the sub-sublease granted to Ridgepoint by Westgroup. Thorough title searches were required, it is put by Ridgepoint, for those solicitor firms to properly prepare effective caveats in respect of the sub-sublease, to advise Ridgepoint of the area of the land comprising the Ridgepoint sub-sublease and to point out to Ridgepoint a degree of overlap or intersection with areas of the earlier Whitewood sub‑sublease.
Perth Airport says Ridgepoint's negligence action arguments against MDS and PF are clearly in relation to the land overlap problem that arose concerning the sub‑subleased land at Perth Airport.
Third, Perth Airport argues that the 2007 Action against MDS and PF clearly arises from 'matters and circumstances occurring up to the "Settlement Date",' ie arising in the period before 22 December 2006. So, in the temporal sense, the 2007 Action is said to meet the timing requirement within cl 2.1(d) of the WAC Deed. This point also seems to be a point of minimal controversy. The SD and the WAC Deed are both accepted as having been entered on 22 December 2006.
It can now be better appreciated that it is the second point above, which is highly controversial. It was the focus of the parties' arguments at the trial. Before evaluating those arguments it is necessary to extract from the plaintiff's written outline of submissions a summary of the 2007 Action.
The 2007 Action
I extract from pars 23 ‑ 43 of Perth Airport's written submissions this convenient and (save for pars 40 - 43, which explain Perth Airport's arguments), what is essentially an uncontroversial summary of the underlying facts:
23.The Commonwealth leased certain land to Perth Airport: RSOC [6].
24.Perth Airport says that is the 'Land' as defined in the Deed of Release.
25.Perth Airport entered into subleases of that land with various parties, including Westgroup: RSOC [8].
26.Perth Airport says that those subleases included the 'Blue and Orange Lease' as defined in the Deed of Release; and that lease was definitionally over part of the Premises. To make good that proposition: see also RSOC [7(c), (d) and (g)] and [8(b)].
27.Westgroup in April 2001 itself subleased some of that land to Whitewood under the Whitewood Lease: RSOC [9(a)].
28.Perth Airport says that is the 'Whitewood Sub-Lease' and so part of the Premises as both terms are defined in the Deed of Release.
29.Westgroup in about December 2001 further subleased some of that land to Ridgepoint under the Ridgepoint Lease: RSOC [10] and [11].
30.Perth Airport says that is the 'Ridgepoint Sub‑Lease' and so part of the Premises as both terms are defined in the Deed of Release.
31.At the time of the grant of the Ridgepoint Lease, unknown to Ridgepoint, there was an overlap of approximately 6 hectares between the Whitewood Lease and the Ridgepoint Lease: RSOC [18].
32.This overlap resulted in the overlap dispute and the 'Priority Dispute …' see the defence at [7].
33.On or about 28 November 2011 Whitewood (and its mortgagee NAB) both lodged caveats in respect of the land which was the subject of the Whitewood Lease: RSOC [13].
34.On about 7 January 2002, Ridgepoint mortgaged the Ridgepoint Lease to Police and Nurses Credit Society Ltd (PNC): RSOC [14].
35.Ridgepoint instructed MDS in late December 2001 (after it had entered into the Ridgepoint Lease) to:
(a)undertake title searches in relation to the land comprising the Ridgepoint Lease and to prepare and lodge caveats on behalf of Ridgepoint to protect its interests under the Ridgepoint Lease: RSOC [37(a) and (b)]; and
(b)instruct Phillips Fox (which had been retained by PNC) to conduct the title searches in relation to the land comprising the Ridgepoint Lease on behalf of Ridgepoint and provide a copy of those to MDS and to provide MDS with a copy of the caveat prepared by Phillips Fox for PNC to enable MDS to prepare and lodge its caveat on behalf of Ridgepoint: RSOC [37(c)].
36.MDS gave those instructions to Phillips Fox: RSOC [39]. Phillips Fox conducted title searches of the land comprising the Ridgepoint Lease and provided a copy of the caveat that it prepared (along with the title search to MDS) and MDS prepared and lodged a caveat for Ridgepoint in respect of the same land: RSOC [40].
37.Ridgepoint alleges that both MDS and Phillips Fox failed to ascertain that a significant part of the area of the land comprising the Ridgepoint Lease was already the subject of two caveats lodged by Whitewood and National Australia Bank, and so failed to ascertain that there was the overlap between the land in the Whitewood Lease and the land in the Ridgepoint Lease: RSOC [41].
38.In those circumstances, Ridgepoint alleges that both MDS and Phillips Fox breached duties which they owed to Ridgepoint: RSOC [42], [44], [48] and [53].
39.Ridgepoint alleges that it has suffered loss and damage in that, inter alia, but for the breaches it would have resolved the priority dispute as soon as it was discovered, and prior to the appointment of the receiver and manager of Westgroup; or alternatively it would have secured an enforceable sublease over an alternative 8 hectare area of the land on which it would have constructed its transport distribution facility: RSOC [45(a)].
40.Ridgepoint's claims (including the way it formulates its losses by reference to lost opportunities) in the CIV 2127 Proceedings are all in relation to the 'land which comprised the Ridgepoint Lease'.
41.That is, MDS and Phillips Fox failed to ascertain certain things from conducting title searches of that land and from preparing caveats in respect of that land, such that Ridgepoint lost certain opportunities in respect of the land.
42.As said, the land which comprised the Ridgepoint Lease was part of the Premises as defined in the Deed of Release.
43.It follows from the analysis above, that the claims made by Ridgepoint in the CIV 2127 Proceedings are 'in relation to the Premises' within the meaning of cl 2.1(d) of the Deed of Release.
Ridgepoint's re‑amended statement of claim in the 2007 Action (exhibit C), confirm that pars 23 ‑ 43 as extracted above, are an accurate summary of Ridgepoint's claim against MDS and PF.
MDS and PF, as defendants to the 2007 Action, provided separate submissions, effectively in support of the construction and relief stance advocated by Perth Airport. They, of course, do not accept the validity of a number of the factual matters now alleged by Ridgepoint. They sought that their ultimate positions be protected from any future trial, so they might there dispute various of the above factual assertions, if necessary, in defending the 2007 Action. I accept that position as being reasonable towards the longer term, if matters go that far.
However, I am presently concerned with ascertaining the nature of the causes of action advanced by Ridgepoint, rather than evaluating now their ultimate merits or demerits as against MDS and PF. My task is undertaken in a context of presently evaluating whether or not there is a Ridgepoint 'Claim' or 'Claims' raising causes of action against MDS and PF which is legitimately characterised as being advanced 'in relation to the Premises'.
Ridgepoint refutes any proposition that its claims against MDS and PF are properly characterised as claims in relation to the Premises. To the contrary Ridgepoint contends that the causes of action it is presently advancing against MDS and PF in the 2007 Action are properly characterised as its professional negligence grievances over the sub‑sublease it received from Westgroup. Ridgepoint argues that it is wholly inappropriate to characterise its claims against MDS and PF in the 2007 Action as being 'Claims' in relation to the Premises.
Ridgepoint's characterisation stance requires a closer examination of the pleadings in this action and then Ridgepoint's submissions.
I have already mentioned that Ridgepoint invokes the Grant authority to support its construction arguments and advocating its narrower scope for the work of cl 2.1(d) of the WAC Deed.
Ridgepoint's pleading
By an amended defence of 13 July 2012, Ridgepoint makes nomenclature distinctions, then sets out its construction of cl 2.1(d) of the WAC Deed. It pleads:
4F.By reason of the matters pleaded in paragraphs 4A to 4E hereof, the Deed of Release draws a distinction between claims in relation to the 'Leases' and claims in relation to the 'Premises';
4G.the claim in Supreme Court Proceedings CIV 2127 of 2007 ('CIV 2127 Proceedings') is a claim arising out of or incidental to the 'Leases' and/or the 'Ridge Point Sub Lease' and accordingly does not fall within sub clause 2.1(d) of the Deed of Release.
At par 4I, Ridgepoint, as regards construction, pleads:
4I.On its proper construction, clause 2.1(d) of the Deed of Release provides that the parties to the Deed of Release:
(a)agree not to commence or maintain any claim brought in relation to the Premises ... against any other party to the Deed of Release; or
(b)agree not to commence or maintain any claim in relation to the Premises ... against any other party to the Deed of Release (but does not preclude claims in relation to the Leases or in any way arising out of or incidental to or related to the Leases, or from circumstances related to the Leases); or
(c)agree not to commence or maintain any claim in relation to the Premises ... but does not preclude claims in relation to the Leases or in any way arising out of or incidental to or related to the Leases, or from circumstances related to the Leases; or
(d)agree not to commence or maintain any claim brought in relation to the Premises ... against any party to the Deed of Release, claiming an interest in the Premises; or
(e)agree not to commence or maintain any claim brought in relation to the Premises ... claiming an interest in the Premises.
Observing at par 4J that neither MDS nor PF are parties to the WAC Deed, Ridgepoint at par 4K and par 4L, finally seeks to characterise the 2007 Action against MDS and PF as:
4K.In the CIV 2127 Proceedings against MDS, the first defendant's claim is a claim for damages for professional negligence against its solicitors arising out of, incidental to or related to the Leases (in particular the Ridgepoint Sub Lease);
4L.In the CIV 2127 Proceedings against Phillips Fox, the first defendant's claim is a claim for damages for professional negligence and/or misleading or deceptive conduct against its mortgagee's solicitor, namely the solicitors for Police and Nurses Credit Society Ltd.
Ridgepoint's pleaded surrounding circumstances
Paragraphs 6 ‑ 22 of Ridgepoint's amended defence alleges certain facts and circumstances said to have been known to the parties to the WAC Deed, and further that these facts and circumstances bear upon and favour its construction of cl 2.1(d).
I have already indicated my view that the WAC Deed must be interpreted in conjunction with the SD. The two instruments were both executed on 22 December 2006 and both make internal reference to the other. Accordingly, references to the WAC Deed and SD are descriptive terms used within each instrument. Their content is admissible to explain and understand the content of each: see Homestake Australia Ltd v Metana Minerals NL (1991) 11 WAR 435, 447 and Government Employees Superannuation Board v Martin (1997) 19 WAR 224, 236 (Ipp J). The content of the SD bears upon (contextually) the interpretation of the WAC Deed (and vice versa).
Recitals to the WAC Deed are also of significance in providing historical background and context for understanding the ensuing operative clauses such as cl 2.
But beyond that material, Ridgepoint then contends that even more mutually known facts support its construction of cl 2.1(d). The surrounding facts as raised in support by Ridgepoint, include:
(a)eruption of a dispute in 2003 between Ridgepoint and the receivers and managers of Whitewood and Westgroup over competing leasehold interests in overlapping parts of the Premises (referred to as a priority dispute);
(b)efforts of Receivers to dispose of the interests of Whitewood and Westgroup in the premises between 2003 and August 2004;
(c)Receivers' acceptances of Hampton Transport Services Pty Ltd (Hampton) and Darmax Pty Ltd (Darmax) as successful tendering parties and an assignment in 2005 to Abernethy Road Pty Ltd (Abernethy) of the rights of Hampton and Darmax;
(d)commencement in 2005 of the two actions which became the Consolidated Proceedings in this court;
(e)the Heads of Agreement of 10 April 2006 concerning the settlement of the Consolidated Proceedings on conditions, on the basis of the surrender of all leases and subleases over the Premises and a grant of a new sublease by WAC to Ridgepoint and Abernethy Road;
(f)the communications of 12 and 26 April 2006, the latter of which is the subject of the evidence introduced as exhibit J. On 28 April 2006, Mr Lees forwarded his letter of 26 April 2006 via email. That email became exhibit K;
(g)paragraph 18 of Ridgepoint's amended defence seeks to make something of exhibits J and K, contending that at 'no material time prior to the execution of the Deed of Release did the plaintiff or any other party to the Deed of Release through their solicitors or otherwise demur from the content of the plaintiff's letter dated 26 April 2006';
(h)paragraph 19 is in terms:
At no material time prior to the execution of the Deed of Release was it discussed or agreed between [Ridgepoint] and/or its legal advisors of the one part and any of the other parties to the Deed of Release of the other part that [Ridgepoint] was to be precluded from making a claim against its solicitors or the solicitors of its mortgagee.
(i)paragraph 22 of the amended defence contends that matters and circumstances occurring up to the settlement date referred to in cl 2.1(d) of the WAC Deed were that the parties to the WAC Deed 'had each claimed an entitlement to an interest in the premises such that the commercial objective of the Deed of Release was to quell competing claims in relation to the Premises'.
For extrinsic facts to be admissible in a construction exercise there first needs to be established some textual ambiguity, or the existence more than one possible meaning. The High Court recently re‑emphasised on a special leave application in Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1, the need, in a contractual construction case, to follow the 'true rule' as it was explained by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 352.
For the reasons I will explain, I am ultimately of a view that there is only one viable meaning and no ultimate ambiguity found in cl 2.1(d) of the WAC Deed. But following McCourt v Cranston [2012] WASCA 60 [23] ‑ [24] (Pullin JA, with whom Newnes JA agreed) I will receive the evidence of Ridgepoint's further asserted mutually known surrounding facts, albeit in the end, I do not think they bear much, if at all, upon my ultimate construction of cl 2.1(d). If they do, then they are heavily outweighed in the overall process of construction by the force of the recitals to the WAC Deed (particularly recital H/2, referring to an agreement of the Releasing Parties 'in favour of' WAC) and the overall context of the WAC Deed, positioned as it is under the umbrella of the SD. The WAC Deed is one of five deeds of release within the wide‑ranging settlement of multiparty disputes in December 2006. Multifaceted, multiparty commercial disputes requiring and reaching a resolution at this time, as I would assess it, can all be ultimately be traced back to the land overlap vice manifested between the Whitewood and Ridgepoint sub‑subleases, of April and December 2001 respectively as granted by Westgroup.
I will offer some further observations concerning some of these surrounding facts raised by Ridgepoint's amended defence.
As regards item (g) above and par 18 of Ridgepoint's amended defence, I assess what is contended for in terms of an alleged absence of demur, derived from the content of the letter of 26 April 2006, to be mainly parties argument, rather than a mutually known fact relevantly bearing upon construction. Mr Lee's letter of 26 April 2006 was sent approximately six months prior to the SD and the WAC Deed. It is too distant from December 2006 in a temporal sense to carry a significant relevance. The WAC Deed and the SD are both commercial instruments in which each party was sophisticated and represented by solicitors. The SD is also an entire agreement (see cl 12.1), replacing in entirety the earlier Heads of Agreement of 10 April 2006. It is the key repository of the bargain reached by these parties.
A negative fact plea in par 19 of the amended defence, which asserts what was not discussed between Ridgepoint and the other parties, or was not discussed between their legal advisors, is argumentative. It does not raise a legitimate extrinsic fact. The alleged absence of discussion is invoked with it suggested there is significance in what was not discussed or agreed at the time. But worse than argument, this is attempted negative evidence about the parties' negotiations preceding the WAC Deed (more correctly, what was not said in those negotiations, as the alleged negative fact of construction significance). Such evidence is inadmissible and is an unreliable distortion towards the written instrument ultimately finalised.
Paragraph 22 of the amended defence concerns the parties' alleged commercial objective of quelling competing claims in relation to the Premises. This again is also more of a submission than a fact.
But I say in passing that I agree the WAC Deed and the SD were directed towards the quelling of disputes arising between many commercial parties in the sense of delivering a wide‑ranging peace following a period of long-running, no doubt expensive, disputation and ensuing commercial uncertainty. The end peace sought was to be between multiple parties, not only the parties to the WAC Deed. The resolution extended to all the parties to the five deeds of release (referred to in the SD).
A word 'Releases' is used in cl 2.4 of the WAC Deed in this context:
Each party to this deed acknowledges that it is their intention to, and they do:
(a)pursuant to the Releases fully and finally settle all Claims which may now exist, or may ever exist or may ever have existed in relation to the Premises; and
(b)provide the releases in this deed in relation to the Premises as agreed in the Settlement Deed.
Ridgepoint's par 22 argument attempts to make a distinction regarding an argued narrower controversy, arising out of the early (unsuccessful) efforts to fix the overlapping sub‑subleases problem, which only culminated in the Consolidated Proceedings of 2005. But this approach rather conveniently ignores the historical fact that the only reason those then unsuccessful efforts became necessary and were undertaken in the first place, was the December 2001 land area overlap problem over the Whitewood and Ridgepoint sub‑subleases.
Significantly, to my end conclusions of construction, recitals C, D/1, D/2 and E in the WAC Deed capture this historical genesis, setting out what essentially led to the attempted fix, then to subsequent problems when early rehabilitation efforts foundered and degenerated into more disputation.
At par 31(b) of its amended defence, Ridgepoint also contends that even if it is wrong in its primary characterisation and construction arguments concerning cl 2.1(d) of the WAC Deed, it still ought not be restrained from pursuing the 2007 Action. Ridgepoint says that common law damages would be an adequate remedy against it for Perth Airport.
Ridgepoint also pleads (at par 31(b)) that a stay of the 2007 Action would exceed the 'minimum equity' to which Perth Airport would be entitled.
The contention as to the appropriate remedy for Perth Airport, should Ridgepoint be assessed to fail in its main contractual construction and characterisation arguments, requires a distinct consideration.
Law concerning the construction of commercial instruments
The legal principles applicable to the contractual construction of commercial instruments such as the WAC Deed, were not controversial between the parties at trial: see Ridgepoint's written submissions pars 6 ‑ 12, in contrast to Perth Airport's written submissions at pars 52 ‑ 56.
Briefly then, I can mention the following construction considerations:
1)The commencing (sometimes end) point is always the text of the instrument the subject of the construction exercise. Here, cl 2.1(d) needs to be assessed where found, within cl 2 of the WAC Deed, but then, more widely placed in the framework of that deed as a whole. As I have observed, the WAC Deed contains internal references to the contemporaneously entered SD. The WAC Deed deploys some of the SD's defined terminology, such as definitions of 'Claims', 'Settlement', 'Settlement Date' and 'Releases'. Hence the SD is also very much a part of the context in which cl 2.1(d) operates.
2)If there is an ambiguity or more than one potential meaning arising as to the text which is the subject of a contractual construction exercise, the court may take account of mutually known surrounding circumstances at the time of contracting, in the overall construction, where relevant. However, the extrinsic fact exercise should not degenerate into turning over what are really the parties' pre‑contractual negotiations, including their exchange drafts: see McCourt v Cranston [24], [30]; Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 [105] ‑ [127].
3)A contractual construction exercise is objective in character. It is performed by assessing the positions of the parties, at the time they enter their agreement, on the basis that they act as reasonable contracting parties, rather than receiving evidence about the actual subjective views of the parties or their beliefs held at the time.
4)A commercial instrument will generally be given a commercial interpretation.
5)A court should attempt to ascribe a functional meaning for the words of each provision in an agreement or deed. No clause, sentence or word should be assessed as superfluous, or insignificant, if by a reasonable construction approach, the words can be made useful and pertinent: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [71].
6)Textual expressions of breadth such as 'in relation to', need to be assessed in their overall context within a particular agreement: see Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, 620.
Ridgepoint's written submissions concerning construction and characterisation
Four fundamental arguments emerge out of Ridgepoint's construction and characterisation submissions concerning cl 2.1(d) of the WAC Deed:
(a)Ridgepoint contends cl 2.1(d), assessed in overall context within cl 2.1, is narrow in scope and needs to be read down to what are said to be the true parameters of the WAC Deed parties' disputes, applying principles from Grant applicable to general release clauses.
(b)Ridgepoint says cl 2.1(d) only operates as between the parties to the WAC Deed and not as regards external non-parties. Contrasting cl 2.1(b) and cl 2.1(d), Ridgepoint appears to suggest that whilst (b) favours only WAC, (d) is meant to advantage the remaining parties to the WAC Deed and to place burdens upon WAC. That is demonstrated by use of the introductory terminology of 'the Parties' in (d). Or in other words, (d) favours the Releasing Parties to the WAC Deed, and not WAC, because WAC already has the benefit of (b).
(c)Ridgepoint argues a characterisation distinction over what it accepts are 'Claims' by Ridgepoint in relation to the Premises. These it argues are grievances wholly distinct from the professional negligence causes of action that it raises against MDS and PF. In advancing that classification distinction, Ridgepoint heavily relies on the exclusive use of the word 'Premises' as seen in (d). That is contrasted to the terminology in (b) that refers not only to Premises, but also to 'Leases'. Ridgepoint draws attention to cl 2.1(a) and its textual use of 'Leases', 'Premises', and to 'Land' (all being defined terms in the WAC Deed and also in the SD).
(d)Ridgepoint rejects Perth Airport's contention there is no relevant significance towards construction between the words 'Premises' and the 'Leases' in cl 2.1. Ridgepoint says such an approach fails to give sufficient recognition to the different drafting as is used in cl 2.1(a) and cl 2.1(b). Ridgepoint says that read in context and objectively assessed, cl 2.1(d) has a narrower operation than the wider release and no litigation subclauses that favour WAC, as seen at cl 2.1(a) and 2.1(b).
I have already noted, that within cl 2.1 there is found the release clause at (a), the plea bar clause at (c), along with the two covenants not to sue by (b) and (d). To the extent Ridgepoint's construction argument is that subcl (a) and subcl (c) needs to do some independent work, my assessment is that such independent work is obvious. This is by reason of the different legal character of these clauses operating as releases or as bars, respectively.
The real question arises towards the (objectively) intended work of subcl 2.1(b) and subcl (d) assessed against each other, as distinct covenants promising not to sue.
The relevant assessment needs to be made, noting that (b) is a covenant expressly favouring Perth Aiport (from the words 'against WAC'). Furthermore, (b) was rather cumbersome in its assembly. Obviously the required introductory words were absent. The missing introductory words for (b) should be the same as for cl 2.1(a), namely 'the Releasing Parties'.
With that rehabilitation to (b), it may then be contrasted with (d). For (d) the express introductory words of (d) are seen to be wider. The word 'Parties' as used in (d) clearly embraces all parties to the WAC Deed, including WAC. I reject an argument that WAC does not, along with the other parties, take also benefit from (d), by reason of (b).
In the error neighbourhood, I also observe that reference in cl 2.1(b) to the 'Leases' leads back to a definition of 'Leases', found at cl 1.1. That definition contains obvious errors, insofar as it refers to a Centurion Lease and a Ridgepoint Lease. Correctly understood (the WAC Deed definitions apply unless a contrary intention appears), that definition of Leases should also have made reference to the Centurion Sub‑Lease and the Ridgepoint Sub‑Lease.
This is an easy error to recognise and allow for, bearing in mind there are express definitions for both a Centurion Sub‑Lease and a Ridgepoint Sub‑Lease and no definitions given for a Centurion Lease or a Ridgepoint Lease. There are no references to a Ridgepoint Lease or to a Centurion Lease in the WAC Deed. Thus this error in the definition of Leases at cl 1.1, is clear. But, there was a further omission. The definition of Leases in the WAC Deed ought to have covered all relevant Sub‑Leases and hence, have included the Whitewood Sub‑Lease, which is also a defined term in cl 1.1.
Ridgepoint's construction arguments, seeking to draw meaningful distinctions as between differing terminology used in (b) and (d) regarding Premises and the Leases, ought to proceed to an evaluation on the basis that the WAC Deed, by using the term 'Leases' in cl 2.1(a) and (b), captures, as well, the three subleases I have now identified, and which are defined in cl 1.1 of the WAC Deed.
Construction: Analysis and conclusions
It is demonstrable from the text of the WAC Deed and the SD that prior to 22 December 2006, multiple commercial parties had been involved in extensive, ongoing disputation tied to disputed areas of land at the Perth Airport.
The disputes led to litigation as the Consolidated Proceedings in this Court. There had been what I can assess (objectively) to be very considerable efforts with legal assistance on all sides to quell the ongoing commercial disputation once and for all, by the medium of the SD and five deeds of release. But in order for a resolution to occur, Perth Airport (WAC, as it was then known), needed to assist, by granting fresh subleases directly to Abernethy and to Ridgepoint (which did not clash in terms of their areas overlapping). In providing that assistance Perth Airport would help in resolving an ongoing dispute arising from a land overlap problem in the two subleases Westgroup had granted to Whitewood and to Ridgepoint in 2001. In 2006, WAC was not itself embroiled as a party in the Consolidated Proceedings, albeit some allegations had been ventilated over WAC failing to agree to the earlier assignment of the problematic original Westgroup subleases.
So in 2006, WAC was primarily assisting the parties in their efforts to quell very extensive prior disputation. Mediation between the parties had led to the Heads of Agreement of 10 April 2006. In December that year, there emerged the SD, plus five deeds of release proposed to be entered into as part of an overall multiparty settlement. One of these five deeds was the WAC Deed, to which Perth Airport was made a party. The WAC Deed saw Ridgepoint, Perth Airport, and other parties, including the Cardaci family (the natural persons associated with both Ridgepoint and Centurion), committing to arrangements pursuant to which the fresh subleases would now be granted directly to Abernethy and Ridgepoint, by Perth Airport. That result would help finally resolve the land clash areas problem which had manifested in the Whitewood and Ridgepoint sub‑subleases as granted by Westgroup in 2001.
It is apparent from the definition of the 'Ridgepoint Claim' in the SD, that (objectively) assessed, Ridgepoint in 2006 was professionally advised. Ridgepoint must be (objectively) assessed as a reasonable party, to have given some consideration to the extent of its potential 'Claims' against many parties in 2006, including as against Whitewood, Westgroup, WAC and NAB (see the definition of 'Ridgepoint Claim' - which refers to 'the circumstances in which Ridgepoint came to enter into the Ridgepoint Sub‑Lease (including any claim by Centurion in relation to the Centurion sublease)').
The SD also identifies a Ridgepoint Deed of Release. This is an instrument distinct from the WAC Deed (referred to as the WAC Deed of Release in the SD). By the Ridgepoint Deed of Release, Ridgepoint settled its disputes with other parties.
The comprehensive effort at the end of 2006 to finally settle all disputes via the SD as an umbrella agreement working in conjunction with five other deeds of release, is also objectively apparent.
A wide-ranging peace objective at the time (December 2006) is also apparent in the text of the WAC Deed. Clause 2.4 says so in terms, providing:
Each party to this deed acknowledges that they enter into the deed voluntarily upon their own information, investigation and legal advice. They acknowledge that they may learn new or different information with respect to the Premises, arising from matters and circumstances occurring up to the Settlement Date and that it is their intention to, and they do:
(a)pursuant to the Releases fully and finally settle all Claims which may now exist, or may ever exist or may ever have existed in relation to the Premises;
(b)provide the releases in this deed in relation to the Premises as agreed in the Settlement Deed,
which will take effect in accordance with their terms notwithstanding any other matters or circumstances. (emphasis added)
Like subcl 2.1(d), cl 2.4 of the WAC Deed can be seen to operate upon the subject matter of 'Premises'. It may be contrasted with a similarly constructed self‑reliance clause in the SD, namely, cl 12.3. But that SD clause is seen to be grounded upon different subject matters. It refers to the Westgroup Dispute, the Westgroup Proceedings, the Ridgepoint Dispute and the Ridgepoint Proceedings.
Contrasting cl 12.3 of the SD with cl 2.4 of the WAC Deed, assists my construction conclusion that the chosen subject matter terminology used in cl 2.4, of —'Premises'—, has been deployed carefully, in order to obtain the benefit of the generic breadth of the meaning of 'Premises', applied to an area of land. That may be contrasted with more targeted nomenclature used for the disputes the subject of cl 12.3 of the SD.
Bearing in mind the longstanding nature of the land overlap-related disputation, which goes back to December 2001, including the subsequently ensuing efforts to fix that problem (which themselves degenerated into disputes and litigation involving many parties), it is not surprising (objectively) that fulsome efforts to reach a permanent, comprehensive peace are exhibited in December 2006, after the Heads of Agreement of April 2006.
Whatever might be said about Ridgepoint's disputes with Westgroup, Whitewood, or the receivers and managers of those entities, it is clear the causative genesis of Ridgepoint's problems will always be traced back to 2001 and the airport land overlap problem from Ridgepoint's sub‑sublease from Westgroup. Ridgepoint's failure to obtain priority to that overlapping land against Whitewood (which held an earlier in time sub‑sublease over its 6 hectares of land at the Perth Airport), arose in circumstances where both Whitewood and Whitewood's financier, NAB, had lodged earlier caveats. That caveat protection delivered had them a priority over the subsequent caveats by Ridgepoint and Ridgepoint's lender, the Police and Nurses Credit Society, as regards overlapping land areas, which Westgroup had in error, sought to sub‑sublease to both these parties.
That land overlap problem created by Westgroup in December 2001 is very a much a problem properly characterised as being in relation to a part of the land at the Perth Airport. It is airport land that falls within the WAC Deed's (and the SD's) defined term, 'Premises'.
Ridgepoint's professional negligence grievances against two law firms, concerning their failures to conduct sufficient or adequate land title searches in order to identify and then alert Ridgepoint to the overlap land problem in 2001, have the same ultimate origin. The fact that they also raise grievances over alleged negligent professional legal work, does not inhibit the base grievances from, at the same time, as being properly characterised to be grievances in relation to airport land (following what is defined as the Premises).
MDS and PF are not parties to the WAC Deed, or to the SD. Ridgepoint argues that the scope of the provisions within cl 2.1 of the WAC Deed only bind and reach the parties to that instrument. So much is trite. But that answer does not resolve the issue as between Perth Airport and Ridgepoint. The question arising out of the WAC Deed, evaluated between Perth Airport and Ridgepoint who are parties to the WAC Deed, is: can cl 2.1(d) inhibit Ridgepoint pursuing litigation against non‑parties to the WAC Deed, in circumstances where the 2007 Action against the two firms of solicitors, as shown, does carry a very real prospect of drawing Perth Airport into that litigation as a third party? Perth Airport is now drawn into the 2007 Action. Contribution and indemnity claims by MDS and PF raise, against Perth Airport, are causes of action said to lie in Ridgepoint against Perth Airport - in terms of MDS, PF and Perth Airport being concurrent tortfeasors in generating Ridgepoint's ultimate loss and damage.
Ridgepoint says, assessing the parties objectively, its grievances against the two solicitor firms were never contemplated as being covered or inhibited by the December 2006 settlement arrangements. But the key difficulty I have with that submission, assessing the parties' extensive history of disputation prior to December 2006, is that in the end, all roads, including the road explained by the recitals, leads back to the underlying airport land overlap problem of December 2001.
The grievances raised by Ridgepoint as against MDS and PF are very much, in my assessment, concerns which can be properly characterised as grievances or causes of action 'in relation to' Perth Airport land, which is the subject of the original subleases from WAC to Westgroup, and then onward to Whitewood and Ridgepoint.
I am unmoved by Ridgepoint's efforts at erecting its classification distinction between differing classes of disputes covered by the WAC Deed, in contrast to its asserted causes of action against MDS and PF. In the end, in my assessment, the disputes have the same airport land‑based genesis.
I earlier explained Ridgepoint's arguments invoking Grant, to contend that the WAC Deed's recitals require the ambit of cl 2.1(d) to be read more narrowly than Perth Airport contends. But in my view, recital H/2 renders it very clear that the resolution reached by way of releases in favour of WAC, was to be upon the operative terms of the WAC Deed. So, the WAC Deed's recitals just direct attention onwards to cl 2.1(d). It rests there, to be assessed in an overall framework of cl 2.1(a), (b) and (c), which precede it and with cl 2.4 which follows.
Clearly, cl 2.1 (a) and cl 2.1(c) do very different legal work to (b) and (d), by way of their releasing and barring tasks respectively.
Ridgepoint contends (d) is effectively a counterpart of (b), and only favouring the other parties, by binding WAC not to bring claims against them. I agree (d) favours the other parties. But cl 2.1(d) favours all parties one against the other, including WAC.
Given a covenant not to sue, which favours only WAC by (b), what more, if anything, does WAC derive (together with the other parties) out of (d)?
I assess (d), vis-à-vis WAC, as building upon the earlier non‑suit work of (b), with (d) promising not to sue, as far as all parties are concerned. It delivers further no‑litigation benefits that WAC did not receive via (b). In my view, (d) is more expansive than (b), concerning WAC and the WAC Deed parties, rather than being narrower than (b). That conclusion is reinforced by H/2, reciting that the other parties have agreed to provide certain releases 'in favour of' WAC. Hence (d) must favour WAC, as well as the other parties.
| I | A dispute arose between Hampton, Darmax, Ridgepoint and Trentwood ('Ridgepoint Dispute') relating to whether Ridgepoint: · failed to do all things necessary on its part to enable Hampton, Darmax and Abernethy (their nominee), to have the benefit of the Side Agreement; · failed to do all such things as were necessary to surrender the Ridgepoint Sublease; and · prevented the performance of the Leasehold Interest Agreement and, in turn, the Side Agreement. |
| J | By proceedings number CIV 2065 of 2005 commenced by Abernethy and the Guarantors in the Supreme Court of Western Australia ('Westgroup Proceedings'), Abernethy alleged against Westgroup that: · the LIA Conditions Precedent were fulfilled by the Latest Date; · if the LIA Conditions Precedent were not fulfilled, Westgroup had made an inadequate attempt to fulfil the LIA Conditions Precedent, in breach of an implied term to do all such things as were reasonably necessary to enable the other parties to have the benefits of the Leasehold Interest Agreement; · Westgroup was estopped from asserting that the Conditions Precedent were not satisfied; and · the Leasehold Interest Agreement had not come to an end on 31 August 2005, by operation of clause 3.4 of the Leasehold Interest Agreement, and claimed: · a declaration that the Leasehold Interest Agreement is valid, subsisting and binding on Westgroup; · specific performance of the Leasehold Interest Agreement; · if necessary, an order compelling Westgroup to take all necessary steps to obtain the consent of WAC to the Leasehold Interest Agreement; · if necessary, an order compelling Westgroup to take all necessary steps to reach an agreement with Pioneer and Abernethy as to Pioneer's access to the Premises and any other right, if any, of Pioneer to the Premises; and · interest and costs. |
| K | By proceedings number CIV 1924 of 2005 commenced by Hampton and Darmax in the Supreme Court of Western Australia ('Ridgepoint Proceedings'), Hampton and Darmax alleged against Ridgepoint and Trentwood that: · Ridgepoint failed to do all such things as were necessary on its part to enable Hampton and Darmax and their nominee, Abernethy, to have the benefit of the Side Agreement; · Ridgepoint failed to do all such things as were necessary to surrender the Ridgepoint Sublease; and · Ridgepoint prevented performance of the Leasehold Interest Agreement and, in turn, the Side Agreement, and claimed: · a declaration that Hampton and Damiax and Ridgepoint and Trentwood entered into a binding agreement (namely the Side Agreement); · an order that Ridgepoint do all such things as are necessary to surrender the Ridgepoint Sublease; · an order that Ridgepoint and Trentwood specifically perform the Side Agreement; · alternatively, damages; and · costs and such further or other relief as the Court should deem just. |
| L … | Without admission of liability: · Abernethy, the Guarantors and Westgroup have agreed to settle the Westgroup Dispute and the Westgroup Proceedings; and · Hampton, Darmax, Ridgepoint and Trentwood have agreed to settle the Ridgepoint Dispute and the Ridgepoint Proceedings, on the terms set out in the Heads of Agreement (a copy of which is attached as Annexure A), which agreement is intended to be superseded entirely by the terms of this Deed. |
Terms of the Settlement Deed (the SD)
1Acknowledgment & Consideration
1.1Acknowledgment
The parties to this Deed acknowledge that Westgroup and Whitewood each agrees to surrender their respective interests in the Premises to WAC in return for the Surrender Fees to be paid by Abernethy and Ridgepoint on the terms set out in this Deed.
1.2Consideration
This Deed is entered into in consideration of the parties:
(a)agreeing to settle the Westgroup Dispute, the Westgroup Proceedings, the Ridgepoint Dispute, the Ridgepoint Proceedings on the terms set out in this Deed and the Releases; and
(b)incurring obligations and giving rights under this Deed.
1.3Heads of Agreement
The parties to this Deed acknowledge and agree that the Heads of Agreement (a copy of which is attached in Annexure A) is intended to be superseded entirely by this Deed.
2Payment to Westgroup
2.1Consideration payable to Westgroup
Abernethy and Ridgepoint agree to pay the sum of:
(a)$3,273,148 (exclusive of GST) to Westgroup (Westgroup Surrender Fee), and
(b)$1,851,852 (exclusive of GST) to Whitewood (Whitewood Surrender Fee),
(collectively the Surrender Fees) for the surrender by Westgroup and Whitewood of their respective interests in the Premises. The Surrender Fees shall be paid by Abernethy and Ridgepoint in the proportions set out below.
2.2Payment to Westgroup by Abernethy
(a)The parties agree that the sum of $197,960 paid by Abernethy to Westgroup as a deposit under the Leasehold Interest Agreement ('Abernethy Deposit') which Westgroup has unsuccessfully attempted to repay Abernethy will be held by Westgroup by way of deposit under this Deed.
(b)Subject to the terms of this Deed, at Settlement, Abernethy must pay:
(i)Westgroup, the sum of:
(A)$2,474,819 (exclusive of GST), less the Abernethy Deposit ('Abernethy Westgroup Contribution'); and
(B)$247,481.90 on account of GST; and
(ii)Whitewood, the sum of:
(A)$1,400,181 (exclusive of GST) ('Abernethy Whitewood Contribution'); and
(B)$140,018.10 on account of GST,
(the Abernethy Westgroup Contribution and the Abernethy Whitewood Contribution being collectively the Abernethy Contributions).
2.3Payment to Westgroup by Ridgepont
(a)Westgroup acknowledges that, at the date of this Deed, Ridgepoint has paid the sum of $125,000 ('Ridgepoint Deposit') to Westgroup, by way of deposit.
(b)Subject to the terms of this Deed, at Settlement, Ridgepoint must pay:
(i)Westgroup, the sum of:
(A)$798,329 (exclusive of GST), less the Ridgepoint Deposit ('Ridgepoint Westgroup Contribution'); and
(B)$79,832.90 on account of GST; and
(ii)Whitewood, the sum of:
(A)$451,671 (exclusive of GST) ('Ridgepoint Whitewood Contribution'); and
(B)$45,167.10 on account of GST,
(the Ridgepoint Westgroup Contribution and the Ridgepoint Whitewood Contribution being collectively the Ridgepoint Contributions)
…
3Conditions precedent to Settlement
3.1Conditions Precedent
The parties to this Deed agree that Settlement will be conditional upon the following being obtained by the Latest Settlement Date:
(a)WAC agreeing to:
(i)accept the surrender of the Westgroup Leases by Westgroup and to execute the Westgroup Surrender and WAC Release;
(ii)grant separate sub-leases:
(A)to Abernethy, in respect of that part of the Premises marked in blue on the map attached in Annexure B on the terms set out in the New Abernethy Leases; and
(B)to Ridgepoint (or its nominee), in respect of that part of the Premises marked in red on the map attached in Annexure B on the terms set out in the New Ridgepoint Lease; and
(b)Pioneer agreeing to execute the Pioneer Release.
…
5.2Ridgepoint's obligations at Settlement
At Settlement, Ridgepoint must:
(a)deliver to Westgroup:
(i)the Ridgepoint Surrender duly executed by Ridgepoint;
(ii)executed withdrawal of caveat forms for any caveats lodged by Ridgepoint against the Premises or any part of the Premises;
(iii)an executed ASIC Form 312 to discharge the fixed and floating charge provided by Ridgepoint to Police & Nurses, to the extent that it relates to the Premises or Ridgepoint's interest in the Premises;
(iv)executed withdrawal of caveat forms for any caveats lodged by Police & Nurses in relation to the Premises to the extent that the caveats derive from or relate to Ridgepoint's interest in the Premises; and
(v)a written acknowledgment from Centurion that it no longer has any legal or equitable interest in the Premises.
(b)execute the Releases to which it is a party;
(c)procure that each of Trentwood, Centurion, Francesco Cadarci and Carl Cadarci executes the Releases to which they are a party; and
(d)make the payments referred to in clause 2 which are payable by Ridgepoint at Settlement.
…
7Finalisation of Proceedings
7.1Parties to finalise the Consolidated Proceedings
As soon as reasonably practicable after Settlement, Abernethy, the Guarantors, Hampton and Darmax will take all steps necessary to finalise the Consolidated Proceedings on the basis that both the Consolidated Proceedings (and each of the Westgroup Proceedings and the Ridgepoint Proceedings) are to be dismissed, with no order for costs.
7.2Completion and filing of Notices of Dismissal
For the purposes of clause 7.1 ('Parties to finalise the Consolidated Proceedings'), but without limiting their obligations under that clause:
(a)Abernethy, the Guarantors, Hampton and Darmax will complete any Notice of Dismissal required to be completed by them; and
(b)Abernethy will file and serve the Notices of Dismissal.
…
12.3Reliance on their own information
Each party to this Deed acknowledges that they enter into the Deed voluntarily upon their own information, investigation and legal advice. They acknowledge that they may learn new or different information with respect to the Westgroup Dispute and the Westgroup Proceedings and the Ridgepoint Dispute and the Ridgepoint Proceedings and that it is their intention to, and they do, fully and finally settle all claims, actions and causes of action which may now exist, or may ever exist or may ever have existed in relation to the Westgroup Dispute and the Westgroup Proceedings and the Ridgepoint Dispute and the Ridgepoint Proceedings.
…
14Interpretation
14.1Definitions
These meanings apply unless the contrary intention appears:
…
Airport means the airport described as Perth Airport in the Regulations and including the land at the Airport together with any buildings or other structures erected at the Airport.
…
Blue and Orange Lease means the lease of part of the Premises, being an area of 18.45 hectares, undated but stamped 12 April 2001 made between WAC, Westgroup as lessee and Noel John Pollock, Jamie Kevin Pollock and Kevin Trevor Pollock as guarantors.
…
Centurion Sub-Lease means the former sub-lease between Westgroup, Centurion, Noel John Pollock, Jamie Kevin Pollock and Kevin Trevor Pollock as sublessor's guarantors and Carl Cardaci and Francesco Cardaci as Sublessee's Guarantors over part of the Premises.
…
Consolidated Proceedings means both the Westgroup Proceedings and the Ridgepoint Proceedings.
…
Green Lease means the lease of part of the Premises, being an area of 3.69 hectares, dated 12 February 2002 made between WAC, Westgroup as lessee and Noel John Pollock, Jamie Kevin Pollock and Kevin Trevor Pollock as guarantors.
…
Heads of Agreement means the summary of agreement dated 10 April 2006, entered into by the parties to the Ridgepoint Proceedings and the Abernethy Proceedings.
Head Lease means lease G520495 dated 2 July 1997 made between the Commonwealth and WAC.
Land means the land leased to WAC under the Head Lease and the leasehold interest of WAC in the Airport.
…
New Abernethy Leases means the 3 leases over lease areas 2, 3 and 4 marked in blue on the map attached in Annexure B to be granted by WAC in favour of Abernethy on or about the date of this deed.
New Ridgepoint Lease means a lease 1 marked in red on the map attached in Annexure B to be granted by WAC in favour of Ridgepoint on or about the date of this deed.
…
Premises means the total leased area of 22.14 hectares, being the total area of Land sub-leased by WAC to Westgroup under the Blue and Orange Lease and the Green Lease.
Proceedings Deed of Release means the Proceedings Deed of Release to be entered into between Westgroup, Ridgepoint, Trentwood, Abernethy, the Guarantors, Hampton, Darmax, the Receivers and Mallesons Stephen Jaques on or about the date of this deed.
…
Releases means the Whitewood Deed of Release, the WAC Deed of Release, the Ridgepoint Deed of Release, the Proceedings Deed of Release and the Pioneer Release individually and collectively.
…
Ridgepoint Claim means all Claims by Ridgepoint or Centurion arising out of the grant (or purported grant) of the Ridgepoint Sub-Lease by Westgroup, including any Claim arising out of the allegations made by Ridgepoint against Whitewood, Westgroup, WAC and NAB in relation to the circumstances in which Ridgepoint came to enter into the Ridgepoint Sub-Lease (including any claim by Centurion in relation to the Centurion Sub-lease).
Ridgepoint Contribution has the meaning given in clause 2.3(b) of this Deed.
Ridgepoint Deed of Release means the Ridgepoint Deed of Release to be entered into between Westgroup, Whitewood, Ridgepoint, Carl Cardaci and Frank Cardaci, the Receivers Centurion and NAB on or about the date of this deed.
…
Ridgepoint Dispute has the meaning given in the Recitals.
…
Ridgepoint Proceedings has the meaning given in the Recitals.
Ridgepoint Sublease means the sublease of part of the Premises dated 21 December 2001 made between WAC as lessor, Westgroup as sublessor, Ridgepoint as sublessee, Noel John Pollock, Jamie Kevin Pollock and Kevin Trevor Pollock as sublessor' s guarantor and Francesco Cardaci as sublessee's guarantor.
Ridgepoint Surrender means the surrender of the Ridgepoint Sublease to be made by Ridgepoint in favour of Westgroup on or about the date of this deed.
…
Settlement means settlement of the transactions contemplated by this Deed.
…
Settlement Deed means the deed titled 'Settlement Deed - leasehold land at Abernethy Road, Perth Airport' executed in July 2005 between Westgroup, Whitewood, Ridgepoint, Centurion, Nab, the Receivers and Managers and Carl Cardaci.
…
WAC Deed of Release means the WAC Deed of Release to be entered into between Westgroup, Whitewood, Ridgepoint, Centurion, Carl Cardaci, Frank Cardaci Abernethy, WAC and the Receivers on or about the date of this deed.
WAC Documents means the Westgroup Surrender, the New Leases and the WAC Release.
…
Westgroup Dispute has the meaning given in the Recitals.
Westgroup Leases means the Blue and Orange Lease and the Green Lease.
…
Whitewood Deed of Release means the Whitewood Deed of Release to be entered into between Westgroup and Whitewood on or about the date of this deed.
Whitewood Sublease means the sublease of part of the Premises undated but stamped 12 April 2001 made between WAC as lessor, Westgroup as sublessor, Whitewood as sublessee, Noel John Pollock, Jamie Kevin Pollock and Kevin Trevor Pollock as sublessor's guarantor and Thomas Bruce Cameron as sublessee's guarantor.
Whitewood Surrender means the surrender of the Whitewood Sublease to be made by Whitewood in favour of Westgroup on or about the date of this deed.
APPENDIX B: The WAC Deed (*as corrected)
Recitals to the WAC Deed
| Recitals | A | The Commonwealth is the owner of the Land and has leased the Land to WAC by way of the Head Lease and pursuant to the Act. |
| B | The Premises form part of the Land. | |
| C | WAC has sub‑leased the Premises to Westgroup under the Blue and Orange Lease and the Green Lease. | |
| D 1 | The Receivers have been appointed in respect of certain assets of Westgroup including the Blue and Orange Lease and the Green Lease. | |
| D 2 | Whitewood claims an interest in the Premises under the Whitewood Sub‑Lease. | |
| E | Ridgepoint claims an interest in the Premises under the Ridgepoint Sub‑lease. | |
| F | Centurion is a company related to Ridgepoint, which previously claimed an interest in the Premises. | |
| G | C Cardaci and F Cardaci have been, from time to time, | |
| H 1 | Westgroup, Whitewood and Ridgepoint (among others) have entered into a Settlement Deed which contemplates (among other things) the: • surrender of the Ridgepoint Sub‑Lease to Westgroup; • surrender of the Whitewood Sub‑Lease to Westgroup; • surrender of the Westgroup Lease to WAC on the terms of the Westgroup Surrender; • grant of a new sub‑lease by WAC to Ridgepoint on the terms of the New Ridgepoint Lease; and • grant of new sub‑leases by WAC to Abernethy on the terms of the New Abernethy Leases, at Settlement. | |
| H 2 | Westgroup, Whitewood, Ridgepoint, Centurion, C Cardaci, F Cardaci and Abernethy have agreed to provide certain releases in favour of WAC, on the terms set out in this deed. |
Terms of the WAC Deed
General terms
1.Interpretation
1.1Definitions
...
Blue and Orange Lease means the lease of part of the Premises, being an area of 18.45 hectares, undated but stamped 12 April 2001 made between WAC, Westgroup as lessee and Noel John Pollock, Jamie Kevin Pollock and Kevin Trevor Pollock as guarantors.
…
Claims means any allegation debt, cause of action liability, claim, proceeding, suit or demand of any nature (including in relation to costs) howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.
…
Green Lease means the lease of part of the Premises, being an area of 3.69 hectares, dated 12 February 2002, made between WAC, Westgroup as lessee and Noel John Pollock, Jamie Kevin Pollock and Kevin Trevor Pollock as guarantors.
Head Lease means lease G520495 dated 2 July 1997 made between the Commonwealth and WAC.
Land means the land leased to WAC under the Head Lease and the leasehold interest of WAC in the Airport.
Leases means the Green Lease, the Blue and Orange Lease, the Centurion Lease and the Ridgepoint Lease.
…
Premises means the area coloured in blue, orange and green (other than the area identified as Pioneer Land) comprising an area of approximately 22.14 hectares, set out in the plan in Annexure A.
Proceedings means the consolidated proceedings CIV 2065 of 2005 and CIV 1924 of 2005.
…
Releases is defined in the Settlement Deed.
Releasing Parties means Westgroup, Whitewood, the Receivers, Ridgepoint, C Cardaci, F Cardaci, Centurion and Abernethy.
Ridgepoint Sub‑Lease means the sublease between WAC, Westgroup, Noel John Pollock, Jamie Kevin Pollock, Kevin Trevor Pollock, Francesco Cardaci and Ridgepoint dates [sic] 21 December 2001 over part of the Premises.
Settlement means settlement under the Settlement Deed.
Settlement Date means the settlement date defined in the Settlement Deed.
Settlement Deed means a Settlement Deed entered into by Westgroup, Whitewood, Ridgepoint, Abernethy, Hampton Transport Services Pty Ltd ACN 008 733 060, Darmax Pty Ltd ACN 104 047 878, Trentwood Corporation Pty Ltd ACN 078 831 437, Burchell Francis Cecil Jones, John Load Cecil Jones, Maxwell Robert Broughton and Darren Wayne Smith in relation to the Premises on or about the date of this deed.
WAC means Westralia Airport Corporation Pty Ltd (ACN 077 153 130).
Whitewood Sub‑Lease means the sub‑lease between WAC, Westgroup, Whitewood, Noel John Pollock, Jamie Kevin Pollock, Kevin Trevor Pollock and Thomas Bruce Cameron undated but stamped 12 April 2001 over part of the Premises.
…
2Release
2.1Release in favour of WAC
With effect from the date of this deed:
(a)The Releasing Parties release WAC from all Claims, present and future, whether the Claims, actions and causes of action arise by virtue of a breach of any contractual duty or term or any other wrongdoing by WAC and whether notice of any Claim has been made or indicated to WAC, in relation to the Leases or any way arising out of or incidental to or related to the Leases, the Land or the Premises or circumstances related to the Leases or the Premises prior to the Settlement Date, or relating to the Premises, arising from matters and circumstances occurring up to the Settlement Date;
(b)(*The Releasing Parties) agree not to commence or maintain any Claim, action or causes of action (including in relation to costs) against WAC brought in relation to the Premises, the Leases or any way arising out of or incidental to or related to the Leases or the Premises prior to the Settlement Date whether the Claims, actions and causes of actions arise by virtue of a breach of any contractual or statutory duty or term or any other wrongdoing by WAC;
(c)WAC may plead this deed as a bar to any Claim brought in relation to the Premises, arising from matters and circumstances occurring up to the Settlement Date; and
(d)the Parties agree not to commence or maintain any Claim brought in relation to the Premises arising from matters and circumstances occurring up to the Settlement Date (with the exception of a Claim, action or cause of action for breach or enforcement of this deed).
2.2Acknowledgement by WAC
WAC acknowledges and agrees that:
(a)WAC has no claim against the Receivers in their personal capacity in relation to the Premises, whatsoever; and
(b)save for paragraph 2.2(a), the Receivers execute this deed in their capacity as receivers and managers of Westgroup (and thereby agent of Westgroup) and not in their personal capacity; and
(c)Brian McMaster executes this deed in his capacity as Deed Administrator of Whitewood and not in his personal capacity.
2.3Receivers and Administrator have no personal liability
The parties acknowledge that neither the Receivers nor Brian McMaster incur any personal liability under this deed or under any other deed, instrument or document entered into under or in connection with it but nothing in this clause excuses the Receivers nor Brian McMaster from liability in relation to fraudulent (including in an equitable sense) or wilful acts of neglect or default.
2.4Reliance on their own Information
Each party to this deed acknowledges that they enter into the deed voluntarily upon their own information, investigation and legal advice. They acknowledge that they may learn new or different information with respect to the Premises arising from matters and circumstances occurring up to the Settlement Date and that it is their intention to, and they do:
(a)pursuant to the Releases fully and finally settle all Claims which may now exist, or may ever exist or may ever have existed in relation to the Premises; and
(b)provide the releases in this deed in relation to the Premises as agreed in the Settlement Deed
which will take effect in accordance with their terms notwithstanding any other matters or circumstances.
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5Stamp duty and legal costs
(a)Abernethy and Ridgepoint agree to pay all stamp duty (including any fines or penalties) chargeable, payable or assessed in relation to this deed.
(b)Abernethy and Ridgepoint agrees to pay to pay or reimburse WAC for WAC's legal costs in connection with the preparation and execution of this deed on a full indemnity basis.
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