Technology Management and Marketing Pty Ltd v Hydrocool Pty Ltd
[2008] WASCA 161
•1 AUGUST 2008
TECHNOLOGY MANAGEMENT AND MARKETING PTY LTD -v- HYDROCOOL PTY LTD [2008] WASCA 161
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 161 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:98/2007 | 16 JUNE 2008 | |
| Coram: | PULLIN JA BUSS JA MURRAY AJA | 1/08/08 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | TECHNOLOGY MANAGEMENT AND MARKETING PTY LTD (ACN 076 143 247) HYDROCOOL PTY LTD (ACN 067 525 366) |
Catchwords: | Appeal Contract Implied terms Success fee Whether entitlement to success fee dependant on payment of grant monies Turns on own facts |
Legislation: | Nil |
Case References: | BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Poseidon Ltd v Adelaide Petroleum NL (1991) 105 ALR 25 Re Elgar Heights Pty Ltd [1985] VR 657 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Technology Management and Marketing Pty Ltd v Hydrocool Pty Ltd [2007] WADC 80 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TECHNOLOGY MANAGEMENT AND MARKETING PTY LTD -v- HYDROCOOL PTY LTD [2008] WASCA 161 CORAM : PULLIN JA
- BUSS JA
MURRAY AJA
- Appellant
AND
HYDROCOOL PTY LTD (ACN 067 525 366)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MCCANN DCJ
Citation : TECHNOLOGY MANAGEMENT AND MARKETING PTY LTD -v- HYDROCOOL PTY LTD [2007] WADC 80
File No : CIV 1268 of 2005
(Page 2)
Catchwords:
Appeal - Contract - Implied terms - Success fee - Whether entitlement to success fee dependant on payment of grant monies - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr P D Quinlan
Respondent : Mr D J Pratt
Solicitors:
Appellant : Shaw & Associates
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Poseidon Ltd v Adelaide Petroleum NL (1991) 105 ALR 25
Re Elgar Heights Pty Ltd [1985] VR 657
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Technology Management and Marketing Pty Ltd v Hydrocool Pty Ltd [2007] WADC 80
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
(Page 3)
1 PULLIN JA: This is an appeal against the judgment of McCann DCJ who dismissed an action brought by the appellant against the respondent. The appellant claimed the sum of $139,043.60 which it said the respondent was obliged to pay under a contract between them.
2 The only evidence led was led on behalf of the appellant and the trial judge said that he accepted the evidence. Mr Whitton, an officer of the appellant, who had worked in the area of research and development funding since 1985, gave evidence that in September 2003, he was contacted by a researcher for the respondent, Mr Peter Clarke. Mr Clarke informed Mr Whitton that the respondent was interested in obtaining a research and development grant from AusIndustry, an agency of the Commonwealth of Australia in respect of a thermo-electric project which the respondent was then developing. Mr Whitton met with Mr Clarke and with Mr Hepburn who was the managing director of the respondent. Mr Clarke and Mr Hepburn informed Mr Whitton that the respondent had previously obtained a grant called a 'Start Grant' in respect of an earlier project. The respondent had prepared the earlier grant application and there were a number of reasons why they were uncertain as to whether a second grant could be obtained.
3 A number of facts were agreed by the parties as common ground at the trial, a number of findings were made by the trial judge which are not in dispute and there was uncontradicted evidence which allows the facts to be stated as follows:
(a) On or about 27 September 2003 the parties entered into a contract which set forth the obligation on the appellant to provide certain services for the respondent and set forth the fees which would be payable by the respondent.
The services the appellant was obliged to carry out involved inter alia a review of the respondent's operations, advice about 'options' relating to the grant, advice about whether to proceed with a grant application, preparation of an application for a grant, a meeting with the Commonwealth grant assessor to discuss a form of draft application for a grant, the preparation of the grant application in its final form and lodgement of it with AusIndustry in Perth, advice concerning the negotiation of a grant agreement and the setting up of procedures to meet reporting responsibilities and other 'strategic issues' to help the respondent to make the most of its grant.
(Page 4)
- The provision regarding fees was contained in a paragraph which read:
We offer two fee options that consist of two components, an upfront fee and a success fee:
Option 1
The upfront fee is $11,000 (GST incl) payable in two instalments. The first instalment of $2,200 is payable when you accept our proposal. The second instalment of $8,800 is payable on lodgement of the application.
If grant funding is approved, the success fee is 7.5% of the amount approved (plus GST). This success fee may be paid in instalments as grant payments are received.
Option 2
[This alternative was for a different upfront fee and a higher percentage success fee].
The letter was signed by Mr Whitton. At the foot of the letter appeared the following:
I accept this proposal on the terms expressed in this letter under the fee option indicated below.
There were then two boxes with fee option 1 or fee option 2 to be checked. Mr Hepburn, on behalf of the respondent, checked fee option 1.
(b) Before entering into the contract the parties were both aware that a grant, if approved, would be payable in instalments as and when 'performance milestones' were achieved [34]. It is clear that both parties understood that a grant approval was not guaranteed.
(c) The appellant provided the services it was obliged to carry out under the contract including the preparation of an application on behalf of the respondent for a Start Grant. This was lodged with AusIndustry on or about 30 January 2004.
(d) The respondent paid the 'up-front' fee of $11,000 (inclusive of GST).
(e) On or about 23 March 2004, Ausindustry approved a Start Grant of $1,943,037.
(f) On 13 May 2004, the respondent entered into an agreement with the Commonwealth, setting out the terms and conditions on which the grant payments would be made (Grant Agreement). This was in non-standard form, the detailed terms of which were not known
- to the appellant at the time it entered into its contract with the respondent.
- (g) In May 2004 the respondent received $283,429.30 from Ausindustry, this being the first instalment of the Start Grant.
(h) The respondent paid a sum of $21,256.40 by way of part payment of the success fee. This sum is 80 cents less than 7.5% of $283,429.30.
(i) On 3 January 2005, the Executive Chairman of the respondent wrote to the appellant stating that the respondent was having discussions with the Commonwealth with a view to suspending the implementation of the grant for up to a year, but in the meantime the respondent did not propose to apply for any further funds pursuant to the grant.
(j) On 12 April 2005, a director of the respondent emailed the appellant saying that he could state that no further payments of the grant would be received by the respondent.
(k) On 26 July 2006, the respondent and the Commonwealth entered into a deed terminating the grant agreement. The recitals to the deed stated that this was because of 'changes to [the respondent's] operational environment'.
As a result of this, the trial judge found that the respondent failed to receive grant payment instalments for a reason attributable to its conduct in that the respondent 'ceased work and ultimately terminated the grant agreement because of changes to its operational environment' [31].
(l) Subsequently the appellant sent an invoice for the balance which it claimed to be due, namely $160,300.54, minus the success fee payment it had received, making a total of $139,043.30 (sic the amount claimed in the invoice is different from the figure of $139,043.60). The respondent admitted that it has not paid that sum and denied that it was liable to do so.
The appellant commences proceedings
4 The appellant then commenced proceedings in the District Court. It pleaded the existence of the agreement dated 27 September 2003 and pleaded the provision that the respondent would pay to the appellant a success fee of 7.5% of the amount approved. Paragraph 5 of the statement of claim read:
(Page 6)
- Upon a proper construction of the Agreement, the [respondent] was obliged to pay the Success Fee to the [appellant] in full upon approval of the grant, although the [appellant] would accept payment of the Success Fee from the [respondent] in instalments pro rata as the grant payment instalments were received by the [respondent].
- It pleaded in par 6 that in the alternative, it was an implied term and condition of the agreement that if the respondent failed for any reason attributable to the conduct of the respondent to receive any further grant payment instalments, the balance of the success fee outstanding at that time had to be paid in full by the respondent to the appellant within a reasonable period after that time.
5 The defence of the respondent admitted the plea as to the express terms of the agreement, but pleaded:
It was a term of the Agreement that the success fee of 7.5% of the amount of the approved grant ('the grant') would not become due and payable by the [respondent] to the [appellant] unless and until the payments pursuant to the grant were received by the [respondent].
6 The defence contained an admission that the grant of 50% of eligible expenditure up to a maximum amount of $1,943,037 was approved subject to the Grant Agreement general conditions. The respondent admitted that the first instalment of the grant was paid and admitted that it had paid $21,256.40. It also admitted that it had not paid the claimed amount of $139,043.60 and denied that it was liable to do so.
The trial judge's reasons for decision
7 The trial judge, after noting the submissions made by the parties concluded:
In my opinion the two sentences of the success fee clause should be read together and construed on the basis that the success fee was only payable by the defendant to the plaintiff in instalments as and when instalments of the Start Grant were paid by the Commonwealth for the following reasons.
First, I am unable to see what purpose the second sentence would serve if it did not confer the right to pay by instalments on the defendant. On the plaintiff's construction the defendant was given an option to either pay the full success fee immediately upon approval, or in instalments, without any provision for a discount or premium as the case may be. In my view, that arrangement lacks commercial sense. As I have said above, the Agreement is written in a style which tends to extol the benefits of dealing with the plaintiff. It appears to me that the second sentence of the success fee clause was offered as a positive benefit to the defendant if it employed the plaintiff's services. Given the mutually understood factual background,
(Page 7)
- namely that the defendant's Start Grant (and hence approximately half of its Project cash-flow) would be paid in instalments which were each conditional on factors both within and without the defendant's control (including the outcomes of research and development which could potentially affect the achievement of performance milestones), I cannot see the purpose of the plaintiff offering the defendant the advantage of paying the success fee in instalments if such was not intended to be contractually binding. [38] - [39]
8 At [40] the trial judge concluded that there was no ambiguity or uncertainty in the success fee clause and said:
In my view, if there is any uncertainty it lies in the construction contended for by the plaintiff, which predicated a vested right which was somehow subject to a permissive payment regime. In my view the success fee clause simply means what it says when it is read as a whole.
9 The trial judge then concluded:
Therefore, in my view, on the true construction of the success fee clause the defendant was obliged to pay the plaintiff a success fee calculated at the rate of 7.5 per cent of the maximum amount of the Start Grant approved by the Commonwealth and such success fee was payable by the defendant to the plaintiff in instalments calculated at the rate of 7.5 per cent of each instalment of the Start Grant as and when the same was paid by the Commonwealth to the defendant. [41]
10 The trial judge then dealt with the implied term which was pleaded in par 6 of the statement of claim. His Honour noted at [48]:
The purpose of the instalment payment provision … was not intended to give the defendant unfettered freedom to choose whether it took up an approval, or embarked on the Project and/or performed the Grant agreement. However, it does not follow that one, of the two alternative terms pleaded by the plaintiff ('the proposed term') needs to be implied [into] the Agreement.
11 His Honour concluded that the proposed term should not be implied because the necessary conditions were not fulfilled, namely:
(a) the proposed term was not so obvious that it went without saying;
(b) that the proposed term was not necessary in order to give business efficacy to the agreement;
(c) it was debatable whether the proposed term was reasonable or equitable.
12 As a result, the trial judge concluded that the proposed term should not be implied into the agreement. As a result the claim was dismissed.
(Page 8)
Grounds of appeal
13 The appellant appeals on the following grounds:
(a) The trial judge erred in his construction of the agreement when he held that the success fee was only payable by instalments, calculated at the rate of 7.5% of each instalment as and when paid by the Commonwealth to the respondent.
(b) In the alternative that the trial judge, having found that the respondent failed to receive the grant payment instalments for a reason attributable to its conduct, erred in failing to hold that it was an implied term of the agreement that, in the event that the respondent failed for a reason attributable to the conduct of the respondent to receive any further grant payment instalments, the balance of the success fee must be paid in full within a reasonable period after that time.
(c) In the further alternative the trial judge, having found that the respondent failed to receive grant payments for a reason attributable to its conduct and that it was an implied term that the respondent take all necessary steps to carry out the project and perform the grant agreement, erred in his conclusion that the appellant was not thereby entitled to damages reflecting the balance of the success fee.
The correct construction of the agreement
14 Despite what the trial judge said (at [40]), the clause does contain ambiguity or perhaps more accurately a lacuna.
15 In construing the agreement and the fee clause in particular, the meaning is to be determined by what a reasonable person would have understood the agreement and the clause to mean. That normally requires consideration, not only of the text, but also the surrounding circumstances known to the parties and the purpose and object of the agreement (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40]).
16 At trial the respondent submitted that the word 'approved' in the phrases 'If grant funding is approved' and '7.5 per cent of the amount approved' was ambiguous and submitted at trial that it meant 'in effect, the amount approved for payment by the Commonwealth from time to time in accordance with the conditions and legislation attaching to the Start Grant': Technology Management and Marketing Pty Ltd v Hydrocool
(Page 9)
- Pty Ltd [2007] WADC 80 [37]. A similar submission was made to this court. The trial judge did not deal precisely with the respondent's submission. Instead, as quoted above, he referred to the overall effect of the clause and said that 'the two sentences of the success fee clause should be read together and construed on the basis that the success fee was only payable by the defendant to the plaintiff in instalments as and when instalments of the Start Grant were paid by the Commonwealth' [38].
17 If attention is paid to the sentence which contains the words 'approved' on two occasions, there is no ambiguity. The word is uncomplicated and unambiguous and the plain meaning is not altered by a reading of the contract as a whole. The plain meaning is supported by the surrounding circumstances known to both parties when they entered into the agreement. They knew that the application for a Start Grant, ie for 'grant funding', could either be approved or rejected. The agreement provided that the appellant's entitlement to the success fee was dependent upon the approval of the grant funding. When that happened the success fee then fell due (meaning it became owing).
18 The trial judge's conclusion in [38] concentrates on when the success fee was payable. That conclusion must have followed from an undue concentration on the second sentence in the fee clause which unquestionably dealt with the subject of payment. When it was payable was a different question from when the success fee fell due. When it fell due was the subject of the first sentence. Although it is always necessary when construing an agreement to have regard to the whole of the agreement, this rule of construction does not require the conflation of two separate provisions.
19 The presence of the second sentence in the fee clause did not alter the fact that the success fee became due when the grant was approved on 23 March 2004. In ground 1 the appellant contends that the trial judge erred in concluding that the success fee was only 'payable' by instalments, but that was not an error. The success fee was unquestionably payable by instalments at the option of the respondent and it is clear that it did exercise that option and the appellant accepted that this was so and received an instalment of the success fee when the first instalment of the grant was paid.
20 Ground 1 should be dismissed.
(Page 10)
Ground 2 - implied term
21 That leaves open then the question about what happens where, as here, subsequent instalments of the grant were not paid due to a reason solely attributable to the conduct of the respondent. The fee clause was silent on this point. This is the lacuna in the fee clause. The appellant contended at trial, and before this court, that a term should be implied that, in such circumstances, the balance of the success fee had to be paid in full a reasonable time after the conduct occurred.
22 The trial judge correctly directed himself about the law governing the implication of terms in a contract, referring in particular to Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 and the adoption in that case of the conditions stated in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20, 26 and by acknowledging the existence of an implied term in every contract that each party will do all things necessary on its part to enable the other party to have the benefit of the contract (Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, 607 (Mason J)). The trial judge held that there should be no implied term of the kind contended for by the appellant because it was not necessary to give business efficacy to the agreement and because it was debateable whether the proposed term was reasonable or equitable. The respondent submitted that those conclusions were correct.
23 However, the trial judge's reasons and the respondent's submissions did not take into account the conclusion reached above about the correct construction of the fee clause, namely, that upon approval, the success fee then became due (meaning owing) by the respondent to the appellant. In those circumstances, the implied term contended for was necessary to give business efficacy to the contract. It would have been obvious to the parties at the time the agreement was signed, that if the appellant performed all its services and if the success fee fell due, and if the respondent exercised its right to pay by instalments, that the parties would have agreed that the balance of the fee should become payable if the grant instalments were not made as a result of conduct solely attributable to the respondent. It would be reasonable and equitable to imply such a term because it would supply the means of ensuring that the appellant recovered the money which was due and owing to it in circumstances where it had performed all the services required of it. The implied term contended for by the appellant is capable of clear expression and it does not contradict any express term of the agreement. The trial judge erred in his conclusion that the term contended for should not be implied.
(Page 11)
24 As a result, ground 2 should be upheld. It is not necessary to consider ground 3. The appeal must be allowed, the judgment of the trial judge set aside and in lieu, there should be judgment for the appellant. There is a slight difference between the amount shown on the invoice for the part payment and the amount which the pleadings state was paid in relation to that invoice. The parties should confer regarding the correct amount of the sum which should be used to calculate the judgment sum. There was also a minor discrepancy in the appellant's calculation of the final amount due. The parties should also confer about that aspect.
25 BUSS JA: The material facts, the reasoning of the learned trial judge and the issues in the appeal are set out in the reasons of Pullin JA.
26 The critical questions in the appeal are the proper construction of the express term of the contract between the appellant and the respondent in relation to the payment of the success fee and whether a term should be implied as asserted by the appellant.
27 The express term of the contract with respect to the up-front fee and the success fee was as follows:
The up-front fee is $11,000 (GST inc) payable in two instalments. The first instalment of $2,200 is payable when you accept our proposal. The second instalment of $8,800 is payable on lodgement of the application.
If grant funding is approved, the success fee is 7.5 per cent of the amount approved (+ GST). This success fee may be paid in instalments as grant payments are received.
28 The learned trial judge found, relevantly, in relation to the payment of the balance of the success fee:
(a) on a proper construction of the contract, the respondent was obliged to pay the appellant a success fee calculated at the rate of 7.5% of the maximum amount of the Start Grant approved by the Commonwealth, and such success fee was payable by instalments calculated at the rate of 7.5% of each instalment as and when the instalment was paid by the Commonwealth to the respondent [41]; and
(b) the contract did not contain an implied term that, in the event the respondent failed, for any reason attributable to its conduct, to receive any further Start Grant instalments, the balance of the success fee outstanding must be paid in full within a reasonable time [49] - [50].
(Page 12)
- His Honour was, with respect, in error in making those findings.
29 In my opinion, the 'success' to which the success fee was referable was the approval of the Start Grant and not the receipt of the maximum amount or instalments of the approved Grant. The whole of the success fee became due, in the sense of becoming owing as distinct from becoming payable, upon the Commonwealth approving the Start Grant. The word 'due' is capable of a wide or a narrow construction and its meaning, in a particular case, depends on the context. See, generally, the discussion in Re Elgar Heights Pty Ltd [1985] VR 657, 662 - 669 (Ormiston J). The express term conferred on the respondent a right to pay the success fee in instalments as and when each instalment of the approved Start Grant was paid by the Commonwealth to the respondent. The respondent availed itself of this right. No doubt, the right was conferred on the respondent in the context of the expectation of each of the parties that if the Commonwealth approved the Start Grant, then the respondent would accept the approved Grant including all instalments payable under it. The parties did not contemplate that the respondent might not proceed with, or might terminate, an approved Start Grant and, in consequence, they failed to make any express provision for the payment of the balance of the success fee outstanding upon the occurrence of either of those contingencies.
30 The learned trial judge, with respect, placed undue emphasis on the common understanding of the parties that an approved Start Grant would be subject to conditions including the satisfaction by the respondent of performance milestones [39]. In my opinion, the fact that an approved Start Grant was commonly understood to be made 'on conditions' underscores the significance of the parties having decided to base the success fee on the amount approved as distinct from the amount received.
31 I am therefore of the opinion that the express term of the contract, properly construed, imposed on the respondent an obligation to pay the appellant a success fee, calculated at the rate of 7.5% of the maximum amount of the Start Grant approved by the Commonwealth, and that the whole of the success fee became owing, but not payable, upon the Commonwealth approving the Grant.
32 I turn now to consider whether the contract contained an implied term as alleged by the appellant.
33 Relevantly, for present purposes, a term will be implied in a contract only if it is apparent that the parties have not enunciated all of the terms of their agreement and the alleged implied term meets all of the requirements
(Page 13)
- stipulated in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 346 - 347 (Mason J, Stephen and Wilson JJ agreeing), 401 - 404 (Brennan J). Also see Byrne v Australian Airlines Ltd (1995) 185 CLR 410. An implied term gives effect to the presumed intention of the parties and is not supplied to add what some may perceive as a desirable improvement to their agreement. See Poseidon Ltd v Adelaide Petroleum NL (1991) 105 ALR 25, 44 (Lee J).
34 The learned trial judge held, correctly, that the respondent 'failed to receive Grant payment instalments for a reason attributable to its conduct, in so far as the [respondent] ceased work and ultimately terminated the Grant agreement because of changes to its operational environment' [31].
35 In my opinion, the contract did include an implied term that, in the event the respondent failed, for any reason attributable to its conduct, to receive any further instalments of the approved Start Grant, the balance of the success fee outstanding would be payable within a reasonable time. It is necessary to imply this term in that:
(a) the whole of the success fee became due, in the sense of owing as distinct from payable, upon approval of the Start Grant; but
(b) the express term failed to make any provision for the payment of the balance of the success fee outstanding in the event that the respondent failed to accept the approved Start Grant or terminated the Grant before receiving all amounts payable under it.
36 The learned trial judge was, with respect, in error in denying the existence of the implied term. His Honour gave three reasons for rejecting it.
37 First, the learned trial judge held that the implied term was not obvious or capable of clear expression or application in that it would introduce difficult issues relating to causation and the meaning of the expression 'attributable to the conduct of the [respondent]' [49(i)]. On analysis, there is no such difficulty or uncertainty. The language of the implied term provides greater clarity than a term requiring 'reasonably necessary steps', a term which his Honour held did not create any difficulty. Further, his Honour had no difficulty in making a finding precisely in the terms of the alleged implied term [31].
38 Secondly, the learned trial judge held that the implied term was not necessary to give business efficacy to the contract [49(ii)]. This conclusion was based on his Honour's finding that the parties intended that the appellant's right to receive the success fee was conditional on the
(Page 14)
- success of the respondent's project and not merely on the appellant's success in obtaining an approved Start Grant [38]. There was, with respect, no basis for the finding. The express term plainly and unambiguously contemplated that the 'success' to which the success fee was referable, was obtaining approval of the Start Grant.
39 Thirdly, the learned trial judge doubted whether the implied term was reasonable or equitable. His Honour held that it was reasonable for the appellant to have accepted a measure of risk as to whether the respondent's project was implemented successfully or not [49(iii)]. His Honour's conclusion in this respect was inconsistent with his earlier finding that the parties intended that the appellant's services would be wholly performed before the respondent entered into the Start Grant agreement with the Commonwealth consequent upon the approval of the Grant [8], [25]. His conclusion was also inconsistent with the uncontested fact that, after approval of the Start Grant was obtained, the appellant was unable to affect or influence the implementation of the respondent's project or the respondent's compliance with the conditions of the approved Grant (ts 18).
40 In my opinion, the implied term satisfies all of the requirements stipulated in Codelfa Construction.
41 It is unnecessary, in the circumstances, to consider the alternative implied term contended for by the appellant.
42 I would allow the appeal.
43 MURRAY AJA: I agree with Pullin JA that, for the reasons he gives, to which I have nothing to add, the appeal should be allowed and, in lieu of the orders made by the trial judge, the appellant should have judgment.
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