RCL Kalynda Pty Ltd v Urbex Pty Ltd
[2011] VSC 650
•15 December 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST
SCI No. 5286 of 2011
| RCL KALYNDA PTY LTD (ACN 119 930 308) | First Plaintiff |
| RCLT URB PTY LTD (ACN 119 930 344) | Second Plaintiff |
| v | |
| URBEX PTY LTD (ACN 102 865 823) | First Defendant |
| B.M.D. HOLDINGS PTY LIMITED (ACN 010 093 348) | Second Defendant |
---
JUDGE: | Pagone J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2011 | |
DATE OF JUDGMENT: | 15 December 2011 | |
CASE MAY BE CITED AS: | RCL Kalynda Pty Ltd & Anor v Urbex Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 650 | |
---
CONTRACT – Breach of a material obligation – Notice of Dispute – Whether the Notice of Dispute adequately identified the dispute.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr P Solomon S.C. with Ms M Norton | HWL Ebsworth Lawyers |
| For the Defendants | Mr K Howden | Herbert Geer |
HIS HONOUR:
The plaintiffs seek declarations in respect of a notice given under a Sub-participation Agreement dated 5 June 2006 between them and the defendants. Central to the issues in the proceeding is whether a Notice of Dispute given by the plaintiffs to the defendants satisfies the conditions in clause 15(a) of the Sub-participation Agreement.
The Sub-participation Agreement relates to the development of land at Kalynda, Qld, owned by Langroup Pty Ltd and Dilan Corp Pty Ltd. On or about 7 December 2004 the defendants entered into a development agreement with the owners of the Kalynda land. Under the development agreement the first defendant (“Urbex”) has undertaken to develop and sell allotments of the land and the second defendant (“BMD”) has unconditionally and irrevocably guaranteed Urbex’s performance of its obligations under the development agreement.
The plaintiffs and the defendants have entered into a Sub-participation Agreement dated 5 June 2006 under which the first plaintiff (“RCL Kalynda”) agreed to take a sub-participation interest under the development agreement and the second plaintiff (“RCLT”) agreed to provide finance to fund the development on terms set out in separate documents. The effect of the Sub-participation Agreement was for RCL Kalynda to participate in Urbex’s position in the Kalynda development by assuming responsibility for 30 per cent of its costs of the development in return for 30 per cent of distributions received by Urbex under the development agreement.
Clause 13 of the Sub-participation Agreement permits RCL Kalynda (defined in the Sub-participation Agreement as the “participant”) to require Urbex to buy out the sub-participation interest and to repay the debt in accordance with clause 14.3 upon the occurrence of an event of default. BMD has unconditionally guaranteed to RCL Kalynda and RCLT the due and punctual performance of Urbex’s obligations under clause 14.3 of the Sub-participation Agreement. An event of default is defined to mean a default described in either clause 13(a) or clause 13(b). For present purposes the relevant provision is that in clause 13(a)(i) which provides that, relevantly, Urbex is in default if:
it breaches any material obligation imposed on it under this document and if the breach is capable of remedy, the party fails to remedy that breach within 30 days of receiving written notice from the other party of that breach and the need to rectify it.
Clause 13(c) deems the party in default to be the “Defaulting Party” and the other party to be the “Non Defaulting Party”. Clause 13(c) provides that RCL Kalynda may require Urbex to buy out the sub-participation interest and to repay the debt in accordance with clause 14.3 where RCL Kalynda is the Non Defaulting Party.
The Sub-participation Agreement does not confer upon RCL Kalynda a unilateral right to terminate its participation or an unconditional right to require Urbex to buy out the sub-participation interest and to repay the debt. The right in clause 13(c), triggering clause 14.3, is, relevantly, conditional upon the breach of a material obligation imposed by the Sub-participation Agreement and a failure to remedy that breach within 30 days of receiving written notice of the breach and of the need to rectify it. Clause 15 of the Sub-participation Agreement provides that either party may give notice to the other of any dispute in respect of any fact, matter or thing arising out of or in connection with the Sub-participation Agreement. Such a notice is to be in writing and must adequately identify the dispute and state (to the extent relevant) the value of the claims which are the subject of the dispute. The clause also provides a detailed mechanism for dealing with the dispute including the holding of a meeting between representatives of the parties to attempt in good faith to resolve the dispute by amicable settlement. A dispute not resolved by amicable settlement within 10 days of the meeting must then be referred to an independent expert to provide an opinion within 10 business days of the matter having been referred to the independent expert.
On 6 July 2011 RCL Kalynda and RCLT served a Notice of Default on Urbex and provided a copy to BMD. The Default Notice stated that Urbex was in default under the Sub-participation Agreement and that RCL Kalynda might enforce its rights under clause 14.3 unless Urbex remedied the default within 30 days of receiving the Default Notice. A schedule to the Default Notice set out the particular obligations under the Sub-participation Agreement with which Urbex was said to had failed to comply. On 4 August 2011 Urbex provided its response to the Default Notice together with accompanying documents. On 18 August 2011 the plaintiffs’ solicitors wrote to the defendants’ solicitors stating, amongst other things, that the purpose of the letter was to identify whether or not a dispute existed for the purposes of clause 15(a) of the Sub-participation Agreement. On 25 August 2011 the defendants’ solicitors wrote to the plaintiffs’ solicitors stating, amongst other things, that the defendants did not consider there to be a default or a dispute. On 25 August 2011 the plaintiffs served on the defendants a Notice of Dispute which is the subject of controversy in this proceeding. The plaintiffs contend that the Notice of Dispute satisfies the conditions in clause 15(a) of the Sub-participation Agreement whilst the defendants maintain that it does not.
Clause 19 of the Sub-participation Agreement provides that it is governed by the law applicable in Queensland and that each party submitted to the non-exclusive jurisdiction of the Courts of Queensland. The plaintiffs elected to commence proceedings in Victoria and the defendants have submitted to the jurisdiction of this Court without objection. The plaintiffs rely upon one decision of the Supreme Court of Queensland[1] applying the common law to a particular agreement but otherwise refer to no special or particular law of Queensland that might otherwise affect the outcome of this proceeding.
[1]Yendex Pty Ltd v Prince Constructions Pty Ltd (1989) 5 BCL 74.
The principal issue in this case, therefore, is whether the Notice of Dispute dated 25 August 2011 satisfied the conditions required by clause 15(a) of the Sub-participation Agreement. That clause provides:
If any Dispute arises between the parties to this document in respect of any fact, matter or thing arising out of or in connection with this document, either party may give to the other notice of the Dispute in writing which adequately identifies the Dispute and states (to the extent relevant) the value of the claims the subject of the Dispute.
The adequacy of the Notice of Dispute depends upon the proper construction of clause 15(a) and a consideration of the terms of the Notice of Dispute construed objectively having regard to how the reasonable recipient, with the knowledge of the contract and of the surrounding circumstances, would have understood the notice.[2]
[2] Mannai Investment Co. Ltd v Eagle Star Life Assurance Co. Ltd [1997] AC 749, 767-8 (Lord Steyn), 780 (Lord Hoffman), 782 (Lord Clyde); Hudson’s Building and Engineering Contracts (12th Ed) para 8-045.
The Notice of Dispute was in writing as required by clause 15(a) but the parties disagree on the meaning of the words “adequately identifies the Dispute” in the clause. In Yendex Pty Ltd v Prince Constructions Pty Ltd[3] the Full Court of the Supreme Court of Queensland considered the contractual requirement that a notice “shall specify the default, refusal or neglect on the part of the sub-contractor” holding that what the parties had required in their agreement was an unequivocal notice to be given which conveyed to a “commercial builder” what was said to be amiss so that the builder’s mind could be turned to the matter and show cause as the clause required. The contractual requirement in Yendex was not the same as that in clause 15(a) of the Sub-participation Agreement which requires that the dispute be adequately identified. Indeed, Moynihan J (in whose judgment in Yendex Kelly S.P.J. and Ryan J concurred) subsequently said in Australian Premium Coals Pty Ltd v Roche Mining Pty Ltd[4] of a clause requiring a Notice of Dispute to be in writing “adequately identifying and providing details of the dispute”:
[3](1989) 5 BCL 74.
[4][2004] QSC 334.
In my view, the words of the clauses in these cases connote a greater degree of precision and detail than does a clause requiring a notice "adequately identifying and providing details of the dispute". Thus a requirement to "specify" (Yendex) connotes an obligation to "mention or name specifically or definitely; state in detail"; see the (Macquarie dictionary.) In White Industries the clause required the notice to "specify and detail". "Detail" connotes "an individual or minute part; an item or particular ... minutia"; (Macquarie Dictionary). In South Bank Corporation the requirement involved "adequately identifying and providing details." "Adequate" connotes "equal to the requirement or occasion, reasonably sufficient"; (Macquarie Dictionary).[5]
In some cases it may be sufficient for the content of the notice to do little more than to articulate the existence of the dispute or to state it in general terms.[6] The degree of specificity required in any given notice will depend upon the terms by which the parties have agreed that any notice is to be given, the object or purpose for the giving of any notice and the facts and circumstances in each case that may bear upon how the terms of any notice must objectively be understood by the recipient. In this case clause 15(a) did not require an onerous specification of the dispute. The parties agreed in clause 15(a) that the dispute was to be identified “adequately”. In Australian Premium Coals Pty Ltd v Roche Mining Pty Ltd[7] Moynihan J said:
Whether the Dispute Notice in this case is a notice "adequately identifying and providing details of the dispute" is a conclusion to be arrived at in the light of the surrounding facts and circumstances. The requirement is not one of formality but of substance; the issue is whether the notice sufficiently "catches or describes the essence of the dispute" or is "reasonably sufficient in the circumstances" for Australian Coals to know and meet Roche’s complaints.[8]
In Hounslow London Borough Council v Twickenham Gardens Development Limited[9] Megarry J observed that the precision with which a default needed to be identified required that the notice direct the contractors mind to what was said to be amiss.[10]
[5]Ibid [31] (Moynihan J).
[6]Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303, [135]-[151] (McColl JA with Ipp and Tobias JJA agreeing).
[7][2004] QSC 334.
[8]Ibid [35].
[9][1970] Ch 233.
[10][1970] Ch 233, 265; see also FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340, [145] – [151] (Basten JA).
The Notice of Dispute dated 25 August 2011 purported to give notice pursuant to clause 15(a) of disputes having arisen. Clause 10 of the Notice of Dispute described the disputes as follows:
(a)whether or not, for the purposes of clause 13(a) of the Sub-participation Agreement, Urbex is in default under the Sub-participation Agreement by reason of a breach of the identified material obligations, or one or more of them, imposed on Urbex under the Sub-participation Agreement;
(b)whether or not clause 14.3 (Consequences if Urbex defaults) of the Sub-participation Agreement applies;
(c)whether or not, for the purposes of clause 14.3(b) of the Sub-participation Agreement, the participant (as the non-defaulting party) can request a Valuation.
Clause 10 of the Notice of Dispute noted that no value of the claims was identified because, as contemplated by clause 15(a), that was not relevant to the disputes. The Notice of Dispute specified the defaults alleged against Urbex in clauses 6 and 7 as follows:
6.Pursuant to clause 13(a) of the Sub-participation Agreement, Urbex is in default under the Sub-participation Agreement if it breaches any material obligation imposed on it under the Sub-participation Agreement and if the breach is capable of remedy, Urbex fails to remedy that breach within 30 days of receiving written notice from the Participant of that breach and the need to rectify it.
7.The Participant contends that, for the purposes of clause 13(a) of the Sub-participation Agreement, Urbex has breached material obligations imposed on it under that Agreement (Participant’s First Contention). More particularly, Urbex:
(a)has not remedied any of the Urbex Defaults, capable of remedy identified in the Notice of Default;
(b)has breached clause 11.3(a) of the Sub-participation Agreement, in that it has not managed the Sub-Participant Interest in a diligent manner;
(c)has breached clause 11.3(b) of the Sub-Participation Agreement, in that it has not accounted to the Participant for loss in the value of the Sub-Participation Interest caused by its own negligence and/or default;
(d)has breached clause 11.3(e)(iv) of the Sub-participation Agreement, in that it has not promptly notified the Participant (in writing) of matters of which Urbex became aware which materially and/or significantly changed and/or delayed the performance of the Development; and
(e)has breached clause 11.4(c) of the Sub-Participation Agreement, in that it has failed to comply with its obligations under the Sub-Participation Agreement in good faith and with the degree of professional skill, care and diligence expected of a competent professional development manager experienced in carrying out the same or similar size, scope and nature of services.
The Notice of Dispute also referred to, and attached, the earlier Notice of Default dated 6 July 2011 by which Urbex had earlier been notified of alleged defaults. That notice contained a schedule specifying defaults which listed in varying degrees of detail specific defaults alleged against Urbex. That schedule provided:
SCHEDULE SPECIFYING DEFAULTS
1.Urbex has failed to comply with each of clauses 4.2(a), 4.2(c), 11.3(a), 11.3(b) and 11.4 of the Sub-participation Agreement, that is:
(a)Urbex has failed to cause the Project Control Group, prior to the commencement of each calendar month during the term of the Development Agreement dated 8 December 2004 between Urbex, Langroup Pty Ltd, Dilan Corp Pty Ltd and the Guarantor (Development Agreement), to prepare and deliver to the Participant a budget for the relevant month (Monthly Budget) detailing all Budgeted Amounts (clause 4.2(a));
(b)Urbex has failed to cause the Project Control Group, at the end of each calendar month during the term of the Development Agreement, to prepare and deliver to the Participant, a reconciliation of the Budgeted Amounts for the said months against the Actual Amounts together with reasons for any difference (clause 4.2(c));
(c)Urbex has failed to manage the Sub-Participant Interest in a diligent manner (clause 11.3(a));
(d)Urbex has failed to account to the Participant for any loss in the value of the Sub Participation Interest where such loss has been caused by Urbex’s negligence or default (clause 11.3(b)); and
(e)Urbex has failed to comply with its obligations under the Sub-participation Agreement in good faith and with the degree of professional skill, care and diligence expected of a competent professional development manager experienced in carrying out the same or similar size, scope and nature of services (clause 11.4)
(the Urbex Defaults).
2.The Urbex Defaults include but are not limited to the following matters:
(a)Failing to convene meetings of the Project Control Group despite frequent request by the Participant to do so.
(b)Urbex failing to cause the Project Control Group to prepare and deliver Monthly Budgets to the Participant.
(c)Urbex failing to advise the Project Control Group of the Budgeted Amounts being all amounts (including, without limitation, all Development Costs but not Excluded Amounts) the Project Control Group anticipates in a Monthly Budget Urbex will incur under the Development Agreement in the relevant month.
(d)Urbex failing to cause the Project Control Group to prepare and deliver to the Participant reconciliations of the Budgeted Amounts against the Actual Amounts together with reasons for any difference.
(e)On or about 2 December 2010, the Participant received a budget relating to the Kalynda Chase Project (November 2010 Budget).
(f)Despite the Participant requesting budget updates during January 2011, February 2011 and March 2011 and being promised updated budgets (in the case of the March 2011 request, an updated budget was promised within one week of the Project Control Group meeting held on 2 March 2011), the next budget received by the Participant was on or about 22 June 2011 (June 2011 Budget).
(g)In comparison to the November 2010 Budget and in the absence of any justification or explanation to the Participant, the June 2011 Budget has:
(i)Forecast expenditure between February 2011 and September 2011 up by $3.39 million.
(ii)Forecast net cash flow to the Participant down by $3.9 million.
(iii)Forecast lot settlements for the financial year ending June 2011 down by 44 lots.
(iv)Forecast development costs for the Kalynda Chase Project from November 2010 until completion up by $9.3 million once the cost recovery from the road resumption is either removed from the June 2011 Budget or included in the November 2010 Budget.
(v)Forecast development revenue for the Kalynda Chase Project from November 2010 until completion down by $11.6 million.
(vi)Forecast Stage 9 (construction) of the Kalynda Chase Project for completion in August or September 2011 as opposed to April or May 2011.
(h)There has been a substantial increase in the scope of works committed to by Urbex for Stage 9 which was not agreed to at a meeting of the Project Control Group and which was not reflected in any budget until the June 2011 Budget was received by the Participant and once the Stage 9 works were substantially complete.
(i)As a consequence of the above matters, returns to the Participant have materially deteriorated.
TAKE NOTICE that, unless you remedy the abovementioned defaults within 30 days of receiving this notice, the Participant may require you to buy out the Sub Participation Interest (as that term is defined in clause 2 of the Sub-participation Agreement) and repay the Debt (as that term is defined in the Sub-participation Agreement) in accordance with clause 14.3 of the Sub-participation Agreement.
In my view the Notice of Dispute, in the context in which it was served upon the defendants, did adequately identify the dispute which had arisen between the parties. The enquiry to determine that question is to be undertaken objectively by reference to how a reasonable recipient would have understood the notice with the knowledge of the contract and of the surrounding circumstances.[11] The defendants had not claimed any inability to understand the nature of the defaults alleged in the Notice of Default which had been sent earlier and dated 6 July 2011. That Notice received a formal response from the defendants headed “Response to Notice of Default” purporting to answer the plaintiffs’ claims made in the July notice. It was not until 25 August 2011, and after the plaintiffs had given the defendants the Notice of Dispute, that there was any suggestion of the allegations being vague, lacking in detail or being insufficient to understand or to respond better to the matters which had been put.
[11]Mannai Investment Co. Ltd v Eagle Star Life Assurance Co. Ltd [1997] AC 749, 767-8 (Lord Steyn), 780 (Lord Hoffman), 782 (Lord Clyde); M.L.W. Technology Pty Ltd v May [2005] VSCA 29, [78]–[82] (Gillard AJA); Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303, [148] (McColl JA with Ipp and Tobias JJA agreeing); Aura Enterprises Pty Ltd v Frontline Retail Pty Ltd (2006) 202 FLR 435; Lactos Fresh Pty Ltd v Finishing Services Pty Ltd [2006] FCA 219, [129]–[132] (Weinberg J), [2006] FCAFC 177, [28] (Kiefel, Sundberg and Edmunds JJ).
The dispute notified by the plaintiffs is that Urbex has breached a material obligation imposed by the Sub-participation Agreement within the meaning of Clause 13(a)(i). That dispute has been articulated in the Notice of Dispute incorporating the Notice of Default and its schedule as an attachment. The process contemplated by clause 15 of the Sub-participation Agreement provides next for a meeting between the parties in an attempt to resolve the dispute by amicable settlement. It then provides for the referral to an independent expert for an opinion within 10 business days of the referral. Clause 15 provides:
15. Expert Determination
(a)If any Dispute arises between the parties to this document in respect of any fact, matter or thing arising out of or in connection with this document, either party may give to the other notice of the Dispute in writing which adequately identifies the Dispute and states (to the extent relevant) the value of the claims the subject of the Dispute.
(b)Within 10 Business Days of the party receiving the notice referred to in paragraph (a), a representative of each of the parties must meet to attempt in good faith to resolve the dispute by amicable settlement.
(c)If within 10 Business Days of the meeting under paragraph (b) or within such further time as agreed in writing by the parties, the Dispute is not resolved, then the Dispute will be referred to an independent expert agreed by the parties or, failing agreement within 5 Business Days, an independent expert nominated by the President for the time being of the President of the Law Institute of Victoria or by any person nominated by him as his lawful deputy.
(d)The parties must co-operate with and provide all relevant documents and other information relevant to the dispute to the independent expert who must provide his opinion within 10 Business Days of the matter being referred to him.
(e)The parties agree that a determination by the Independent Expert will be a determination on the following bases:
(i)the determination shall be made by the Independent Expert;
(ii)the Independent Expert shall act as an expert and not as an arbitrator;
(iii)the Independent Expert shall determine the dispute on the basis of the rights and obligations set out in this deed, having regard to all relevant factors and circumstances, including, inter alia, any relevant industry or commercial practices;
(iv)the Independent Expert shall retain experts in other fields to assist in the determination of the dispute, when the Independent Expert considers it to be necessary or appropriate;
(v)the determination of the Independent Expert shall be final and binding on the parties; and
(vi)the cost of the determination of an Independent Expert will be borne equally by the parties.
The Notice which has been given by the plaintiffs “sets the scene for dispute resolution”.[12] As was observed by Mason P in State of New South Wales v Austeel Pty Ltd:
Discussion and mediation will follow if necessary. Inevitably some issues will drop away and others will be reformulated.[13]
The dispute which the parties need to have resolved is a dispute about whether Urbex has breached a material obligation. The resolution of that dispute was one agreed to be achieved through the process set out in clause 15. The Notice of Dispute relevantly set the scene for the meeting required by clause 15(b) to take place between representatives of the parties in an attempt in good faith to resolve the dispute by amicable settlement. If the dispute is not resolved at the meeting, it is, by clause 15(c), to be referred to an independent expert who, by clause 15(d), is to provide an opinion within 10 business days of the referral. The expert opinion in this case, if the parties are not able otherwise to resolve the dispute by amicable settlement, will be directed to whether Urbex has breached a material obligation imposed upon it under the Sub-participation Agreement. It is that dispute, as articulated in the Notice, which is to be the subject of the good faith meeting in an attempt to resolve the dispute and the subject of any dispute subsequently referred to the expert. The expert’s opinion is final and binding on the parties. Any right in the plaintiffs to require Urbex to buy out the sub-participation interest under clause 13(c) is dependent upon the expert’s opinion of a breach by Urbex of a material obligation.
[12]State of New South Wales v Austeel Pty Ltd [2003] NSWCA 392, [17] (Mason P).
[13]Ibid.
It may be that some aspects of the Notice of Dispute may be stated in broader terms than contemplated by clause 15(a). Counsel for the defendants noted, for instance, that the terms of the schedule specifying defaults purported to identify the defaults by stating that they “included” but were not “limited to” those specified. However, that the identification of a dispute may not be adequate in some circumstances[14] “would not bring down the whole notice” such as “to strike at the validity of the notice as a whole”.[15] Any reservation purported to be made by the plaintiffs by such a drafting technique is at best ineffective but does not detract from the adequate identification of the dispute which has arisen and which has otherwise been identified.
[14]Yendex Pty Ltd v Prince Constructions Pty Ltd (1989) 5 BCL 74, 75 (Moynihan J with Kelly S.P.J and Ryan J agreeing); cf State of New South Wales v Austeel Pty Ltd [2003] NSWSC 1077, [17] (Palmer J).
[15]State of New South Wales v Austeel Pty Ltd [2003] NSWCA 392, [20] (Mason P).
Counsel for the defendants made a separate submission to the effect that the procedure laid down by clause 15 could not apply to a dispute of the nature and apparent scope of that sought to be engaged by the plaintiffs in this case. The submission had two inter-related aspects, namely, that clause 15 was not apt to deal with fundamental disputes of the kind sought to be engaged by the Notice and that clause 15(a) could apply only to a single dispute and not to multiple disputes. I do not accept the submission or either of its two elements. The parties intended a wide ambit of operation of dispute resolution by clause 15(a). They specifically identified that ambit as being a dispute in respect of “any fact, matter or thing arising out of or in connection with” the Sub-participation Agreement. There is no reason to give a commercial document of this kind a narrow ambit of operation by restricting the nature of the matters for dispute resolution which the parties had sought to anticipate and to provide for resolution through the method provided for in their written document. Nor do I see any reason to narrow the operation of clause 15(a) to single disputes as distinct from disputes involving multiple issues. Clause 15 was intended to be broad in its operation and should not be construed in a way that would defeat its evident purpose of resolution of any dispute by an agreed process involving good faith meetings and the subsequent referral to an expert of any dispute not resolved by agreement at the meeting. The use of the word “any” in clause 15(a) reveals an intention that any notice of dispute could apply to wide circumstances and not that the notice should be restricted to single instances.
Subject to any argument concerning costs the Orders to be made shall be declarations that:
1.A dispute has arisen between the parties for the purposes of clause 15(a) of a Sub-participation Agreement dated 5 June 2006 between the plaintiffs and the defendants.
2.The plaintiffs have given a notice of the dispute in writing which adequately identifies the dispute for the purposes of clause 15(a) of the Sub-participation Agreement.
3.The first defendant has received a notice referred to in paragraph 15(a) of the Sub-participation Agreement, and accordingly its representative must meet with a representative of the plaintiffs to attempt in good faith to resolve the dispute.
4.The second defendant has received a notice referred to in sub-paragraph 15(a) of the Sub-participation Agreement, and accordingly its representative must meet with a representative of the plaintiffs to attempt in good faith to resolve the dispute.
5.In the circumstance that one of the representatives has refused to meet, for the purposes of clause 15(c) of the Sub-participation Agreement the dispute is not resolved, and accordingly the dispute shall be referred to an independent expert.
6.The defendants pay the plaintiffs’ costs of and incidental to the proceeding, including reserved costs.
0
3
0