Hungry Jack's v Burger King - Addendum [1999] NSWSC 1130

New South Wales Supreme Court CITATION : Hungry Jack's v Burger King - Addendum [1999] NSWSC 1130 CURRENT JURISDICTION : Equity Division Commercial List FILE NUMBER(S) : 50258/96 HEARING DATE(S) : 12/11/99 JUDGMENT DATE : 18 November 1999

Hungry Jack's Pty Limited - Plaintiff PARTIES : Burger King Corporation - First Defendant The Shell Company of Australia Limited - Second Defendant Burger King Australia Limited - Third Defendant JUDGMENT OF : Rolfe J

Mr N.C. Hutley SC/Mr T.D. Castle - Plaintiff COUNSEL : Mr B.C. Oslington QC - First and Third Defendants Mr A.J. Sullivan QC - Second Defendant Mallesons Stephen Jaques - Plaintiff SOLICITORS : Corrs Chambers Westgarth - First and Third Defendants Blake Dawson Waldron - Second Defendant CATCHWORDS : Amendment to Judgment of 5 November 1999 to delete certain references to Shell's having had or breached fiduciary duties, on the basis that these matters were agreed not to be argued and were not argued. DECISION :

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

ROLFE J

THURSDAY, 18 NOVEMBER 1999

50258/1996 - HUNGRY JACK'S PTY LIMITED v BURGER KING CORPORATION & ORS

ADDENDUM TO JUDGMENT OF 5 NOVEMBER 1999

HIS HONOUR:

Introduction 1 On 5 November 1999 I published my reasons for judgment and stood the proceedings over to 12 November 1999 for the parties to bring in Short Minutes of Order to give effect to my findings. I shall assume that the reader of this addendum has access to that judgment, and I shall use the references in it in these reasons. 2 When the matter was called on 12 November 1999 the parties stated that they had not finished preparing draft orders. Mr Sullivan of Queen's Counsel, who appeared for Shell, requested me to recall my judgment to delete certain portions thereof, which related to and caused concern to his client. It will be remembered that on the first day of the hearing HJPL and Shell settled the proceedings between them and, thereafter, Shell took no further part in this litigation. 3 Mr Sullivan had proposed to furnish to my Associate on 11 November 1999 a letter setting out those portions of the judgment on which he wished to comment, but did not do so as the solicitors for HJPL took the view that the matter should be "dealt with in a formal manner". It was, accordingly, mentioned in open Court on 12 November 1999. 4 The settlement between HJPL and Shell left in issue whether BKC's dealings with Shell had caused BKC to breach its fiduciary duties to HJPL, which I found they had. However, conformably with its settlement with Shell, HJPL was not to advance a case that Shell had breached any fiduciary duties it owed to HJPL by reason of any dealings it, Shell, had with BKC. 5 In his letter, which was handed up, without objection, on 12 November 1999 and which will remain with the papers, Mr Sullivan stated:- "Shell has received and considered a copy of your Honour's Reasons for Judgment delivered on 5 November 1999. It has observed in paragraph 369 of your Honour's Reasons, your Honour expresses the view or 'finding' that:- '.. The arrangements into which they entered created, in the view to which I have come, fiduciary obligations between them, which were breached by BKC and Shell prior to the entry into the Tripartite Test Agreement' (emphasis added). Shell has also noted that in your Reasons for Judgment, your Honour sets out that submissions were made (presumably by the Plaintiff) that Shell owed and/or breached fiduciary duties (see paragraphs 14, 300, 302 and 345 of the Reasons)." 6 The letter referred to the fact that Shell had not been heard on any such matters; that the Deed of Settlement between HJPL and Shell precluded HJPL from advancing any such submissions against Shell; and that HJPL's solicitors had advised Shell's solicitors that no submissions were made to the Court "that Shell breached any fiduciary duty it may have owed to the Plaintiff. Moreover, it appears that, given the way the case was run and the orders sought (see, e.g. paragraph 29 of the Reasons), it was unnecessary for the Court to make any finding that Shell owed a fiduciary duty to the Plaintiff, let alone breached any such duty". 7 In addition to the matters to which I have referred in relation to Shell, I should state that Mr Sullivan's letter pointed out that Shell, in its defence, denied that it owed or breached any fiduciary duty to HJPL; stated that it had no notice of the possibility of any adverse findings or view being made or expressed about its conduct; and stated that it did not have the opportunity to call or challenge evidence or to make submissions as to whether it owed or breached a fiduciary duty to HJPL. 8 It must, of course, be steadfastly borne in mind that the case before me was conducted on the basis that BKC, by its dealings with Shell, breached its fiduciary duty to HJPL. Jurisdiction 9 The parties did not suggest that I did not have jurisdiction to amend my reasons at this stage, if I thought it appropriate, nor did any party raise any objection to my doing so. Mr Hutley stated that he did not wish to be heard on the matter. Mr Oslington took the same approach, although he added, lest his silence should be misinterpreted, that if by amending any part of my original reasons that provided BKC and/or BKAL with another ground or grounds of appeal, his clients would be relying upon it or them.