Court of Appeal Supreme Court New South Wales Medium Neutral Citation: UAERJ Pty Ltd v Jupiters Ltd [2014] NSWCA 213 Hearing dates: 6 May 2014 Decision date: 03 July 2014 Before: Beazley P at [1]; McColl JA at [2]; Macfarlan JA at [3] Decision: (1) Appeal allowed. (2) Cross-appeal dismissed. (3) Set aside the following orders made on 23 October 2013: (a) Order 1 made in proceedings 2013/131366; (b) Orders 1, 2 and 5 made in proceedings 2013/164924. (4) Judgment for the first, second, fifth, sixth and seventh defendants on Jupiters Ltd's claims against them in proceedings 2013/164924. (5) Order Jupiters Ltd to pay the costs of those defendants at first instance and of the appeal and cross-appeal. (6) Grant Jupiters Ltd a certificate under the Suitors' Fund Act 1951, if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: EQUITY - assignment or charge of property - appellant engaged agent to organise tour by musical group The Jacksons - agent gave concert venues irrevocable directions to pay part of ticket sale proceeds to the respondent to discharge personal debt - whether agent had authority to deal with ticket sale proceeds on behalf of appellant - whether appellant precluded from withdrawing irrevocable directions to pay - election - whether appellant's conduct in earlier District Court action precluded it from bringing the present proceedings - whether appellant had alternative or cumulative remedies Legislation Cited: Conveyancing Act 1919 (NSW), s 12 Property Law Act 1969 (WA), ss 11, 20 Uniform Civil Procedure Rules 2005 (NSW), r 14.26 Cases Cited: Baxter v Obacelo Pty Ltd [2001] HCA 66; 205 CLR 635 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226 Damberg v Damberg [2001] NSWCA 87; 52 NSWLR 492 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Petersen v Moloney [1951] HCA 57; 84 CLR 91 Tang Man Sit v Capacious Investments Ltd [1996] AC 514 United Australia Ltd v Barclays Bank Ltd [1941] AC 1 Category: Principal judgment Parties: UAERJ Pty Ltd (Appellant/First Cross-Respondent) Ruchitha Perera (Second Appellant/Second Cross-Respondent) Jupiters Ltd (Respondent/Cross-Appellant) UAE Presents Pty Ltd (Third Cross-Respondent) John Denison (Fourth Cross-Respondent) Brisbane City Council (Fifth Cross-Respondent) State of New South Wales (Sixth Cross-Respondent) AEG Ogden (Perth Arena) Pty Ltd (Seventh Cross-Respondent) Representation: Counsel: T J Morahan (Appellants/First and Second Cross-Respondents) K Dawson/J Curtin (Respondent/ Cross-Appellant) Submitting Appearance (Sixth Cross-Respondent) Solicitors: Emprise Legal (Appellants/First and Second Cross-Respondents) King & Wood Mallesons (Respondent/Cross-Appellant) UAE Presents Pty Ltd (Third Cross-Respondent) John Denison (Fourth Cross-Respondent) Brisbane City Legal Practice (Fifth Cross-Respondent) NSW Crown Solicitor's Office (Sixth Cross-Respondent) Clayton Utz (Seventh Cross-Respondent) File Number(s): CA 2013/349095 Decision under appeal Jurisdiction: 9111 Citation: Jupiters Ltd v UAERJ Pty Ltd [2013] NSWSC 1469 Date of Decision: 2013-10-04 00:00:00 Before: Stevenson J File Number(s): SC 2013/164924 HEADNOTE [This headnote is not to be read as part of the judgment] In September 2012, Mr Perera (one of two directors of the appellant, UAERJ Pty Ltd) engaged Mr John Denison (a director of UAE Presents Pty Ltd) to handle negotiations to secure the rights to promote an Australasian tour by the musical group, The Jacksons, and to liaise with the artists and the venues in Australasia at which they were to perform. Following negotiations between Mr Denison and The Jacksons' agent, International Creative Management Inc ("ICM"), Mr Perera caused deposits of $US250,000 and $US100,000 to be sent to ICM in October and December respectively. On 27 November 2012, ICM confirmed receipt of an offer from Mr Denison for an eight-show Australasian tour by The Jacksons in March 2013, with shows at the Crown Theatre in Perth (the "Perth Venue"), the Wollongong Entertainment Centre (the "Wollongong Venue"), The Riverstage in Brisbane (the "Brisbane Venue") and other venues. In late 2012, Mr Denison (through UAE Presents Pty Ltd) had also been acting as the promoter of a concert to be given by Mariah Carey on 1 January 2013 at a venue on the Gold Coast owned by the respondent, Jupiters Ltd. However, in December 2012 Mr Denison informed Jupiters that UAE Presents Pty Ltd did not have sufficient funds to comply with its obligation to supply all equipment and materials required for the concert. By an agreement with UAE Presents Pty Ltd dated 24 December 2012 ("the Costs Agreement"), Jupiters agreed to pay the subject expenses in return for UAE Presents Pty Ltd giving the Perth, Wollongong and Brisbane Venues irrevocable directions to pay part of the ticket sale proceeds for The Jacksons' concerts to Jupiters. Mr Denison had represented to Jupiters, at least by implication, that he was the promoter of The Jacksons' tour and was entitled to deal with its ticket sale proceeds. Before the irrevocable directions to pay were acted upon, Mr Perera and UAERJ Pty Ltd intervened, with the result that the relevant parts of the ticket sale proceeds from The Jacksons' concerts remain with the three Venues. In the present proceedings, UAERJ Pty Ltd and Mr Perera claim that Mr Denison was not entitled to deal with the ticket sale proceeds from The Jacksons' concerts, whilst Jupiters claims that they are bound by Mr Denison's conduct in purporting to do so. By judgment of 4 October 2013, Stevenson J of the Equity Division found that Jupiters was entitled to the amount claimed from the ticket sale proceeds held by the Perth Venue, but not to any of the proceeds held by the Wollongong and Brisbane Venues. UAERJ Pty Ltd and Mr Perera appeal against the former decision, and Jupiters appeals against the latter. Held (allowing the appeal and dismissing the cross-appeal): (1)Mr Denison had no right to deal with the proceeds of ticket sales for The Jacksons' concerts. In so far as Mr Denison acquired any rights against The Jacksons' agent or the concert venue operators, he did so on behalf of Mr Perera and subsequently UAERJ Pty Ltd and could not deal with those rights without their authority ([44]). (2)The primary judge's conclusion that UAERJ Pty Ltd, by its conduct vis-à-vis the Perth Venue, had conferred ostensible authority on Mr Denison to give the Second Perth IDP would have been relevant if the Perth Venue had acted upon the IDP ([48]). However, the relevant funds remain with the Perth Venue, and UAERJ Pty Ltd withdrew in March 2013 any authority on Mr Denison's part to direct application of the ticket sale proceeds ([49]). Whilst the Second Perth IDP was expressed to be irrevocable, there was no reason why UAERJ Pty Ltd could not withdraw it in the absence of any contract binding it not to do so ([49]). No sound reason for treating the IDP as a contract was provided ([50]-[51]). (3)In the absence of any case that Mr Perera or UAERJ Pty Ltd expressly or impliedly represented to Jupiters that Mr Denison or UAE Presents Pty Ltd had authority to assign or charge in favour of Jupiters the ticket sale proceeds, Jupiters' claim to those proceeds failed ([53]). (4)Although the Wollongong and Brisbane IDPs were expressed to be deeds poll executed by UAE Presents Pty Ltd in favour of Jupiters (and the Venues), neither UAE Presents Pty Ltd nor Mr Denison had authority to deal with the ticket sale proceeds. The purported deeds poll were accordingly ineffective at least as far as Jupiters was concerned ([57]). (5)UAERJ Pty Ltd's conduct in the earlier District Court action did not amount to an election precluding it from bringing the present proceedings. UAERJ's claims against Jupiters and the venue owners on the one hand, and UAE Presents Pty Ltd and Mr Denison on the other, were cumulative rather than alternative ([65]). UAERJ Pty Ltd was not required to choose between them but could pursue both, so long as it did not obtain double recovery ([68]-[69]). Judgment 1BEAZLEY P: I have had the advantage of reading in draft the reasons of Macfarlan JA. I agree with his Honour's reasons and the orders he proposes. 2McCOLL JA: I agree with Macfarlan JA's reasons and the orders his Honour proposes. 3MACFARLAN JA: In August 2012 Mr Ruchitha Perera expressed interest to Mr Scott Mantell of International Creative Management Inc ("ICM") in promoting an Australasian tour by the musical group The Jacksons, for which ICM acted as agent. Mr Perera had previously been associated with the trading name "Urban Agent", a reference to urban style music. In November 2012 he acquired a company, UAERJ Pty Ltd, to conduct his business. 4In September 2012 Mr Perera engaged Mr John Denison, a director of UAE Presents Pty Ltd, to "handle" The Jacksons' tour negotiations and to "liaise" with the artists and with the venues in Australasia at which they were to perform. 5Following negotiations between Mr Denison and Mr Mantell, Mr Perera caused deposits of $US250,000 and $US100,000 to be sent to ICM on 26 October and 4 December 2012 respectively and, by email of 27 November 2012 to Mr Denison, Mr Mantell confirmed receipt of an offer from Mr Denison for an eight-show Australasian tour by The Jacksons in March 2013, with shows at the Crown Theatre in Perth, the Wollongong Entertainment Centre, The Riverstage in Brisbane and other venues. 6In late 2012, Mr Denison had also been acting, through his company UAE Presents Pty Ltd, as the promoter of a concert to be given by Mariah Carey on 1 January 2013 at a venue on the Gold Coast owned by Jupiters Ltd. Under the Performer's Agreement dated 21 October 2012 between Jupiters and UAE Presents Pty Ltd, the latter was to supply all equipment and materials required for the concert. However, in December 2012 Mr Denison informed Mr Peachey of Jupiters that UAE Presents Pty Ltd did not have sufficient funds to comply with this obligation and that the concert would therefore have to be cancelled. Nonetheless, by an agreement with UAE Presents Pty Ltd dated 24 December 2012 ("the Costs Agreement"), Jupiters agreed to pay the subject expenses in return for UAE Presents Pty Ltd giving to the owners of the venues in Perth, Wollongong and Brisbane at which The Jacksons were to perform, irrevocable directions to pay funds out of the proceeds of ticket sales for the concerts there to reimburse Jupiters. Mr Denison had informed Jupiters, at least by implication, that he was the promoter of The Jacksons' tour and was entitled to deal with its ticket sale proceeds. 7Jupiters paid the production expenses for the Mariah Carey concert and it proceeded as planned, as did The Jacksons' concerts. Earlier, Mr Denison had caused various purportedly irrevocable directions in favour of Jupiters to be given to the three venue owners for The Jacksons' concerts (referred to in this judgment as "the Perth Venue", "the Wollongong Venue" and "the Brisbane Venue"). Before they were acted on, Mr Perera and his company UAERJ Pty Ltd intervened, with the result that the relevant parts of The Jacksons' ticket sale proceeds remain with the three venues and there are competing claims in the present proceedings between UAERJ and Mr Perera on the one hand, and Jupiters on the other, to those proceeds. The former claim that Mr Denison was not entitled to deal with The Jacksons' concerts' ticket sale proceeds, whilst Jupiters claims that they were bound by Mr Denison's conduct in purporting to do so. 8By judgment of 4 October 2013, Stevenson J of the Equity Division of the Supreme Court found that Jupiters was entitled to the amount that it claimed from the ticket sale proceeds held by the Perth Venue but not to any of the proceeds held by the Wollongong and Brisbane Venues: Jupiters Ltd v UAERJ Pty Ltd [2013] NSWSC 1469. It followed that UAERJ was entitled to the proceeds held by the Wollongong and Brisbane Venues, although it did not seek any order to that effect (Judgment [253]). 9UAERJ and Mr Perera appeal against the decision concerning the Perth Venue proceeds and, by cross-appeal, Jupiters appeals against those relating to the other two venues. For the reasons that appear below, Jupiters was not entitled to succeed in relation to the ticket sale proceeds of any of the three venues. As a result, the appeal against the finding in Jupiters' favour in relation to the Perth Venue should be allowed and Jupiters' cross-appeal should be dismissed. THE DEALINGS WITH THE CONCERT VENUES The Wollongong Venue 10Following negotiations that had commenced on 29 October 2012 and involved both Mr Denison and Mr Perera, the Wollongong Venue sent a letter dated 14 December 2012 to Mr Denison advising that a tentative booking had been made for the Wollongong concert and enclosing copies of a proposed venue hire agreement, showing "UAE Presents Pty Ltd" as the hirer. The form of agreement was not executed but the primary judge found that a contract in the terms of the draft came into existence by reason of the conduct of the parties (Judgment [123] and [126]). 11On 24 December 2012 UAE Presents Pty Ltd gave a written irrevocable direction to the Wollongong Venue which executed an acknowledgment of receipt that appeared on it (the "WIN IDP"). By that document, the Wollongong Venue was directed: "[t]o immediately on completion of the Concert, pay directly to Jupiters all Ticket Proceeds which the Venue Operator is obliged to pay to the Hirer under the Venue Hire Agreement, up to a maximum of $186,377.07. Payment must be made by cheque made out to Jupiters Ltd". 12In March 2013 Mr Perera discovered that Mr Denison had issued the WIN IDP and that UAE Presents Pty Ltd, rather than UAERJ, was named as the counterparty to the venue hire agreement. At Mr Perera's insistence, Mr Denison wrote to the Wollongong Venue requesting amendment of that agreement to replace UAE Presents Pty Ltd with UAERJ. He also purported to withdraw the WIN IDP. This communication led to a replacement venue hire agreement being entered into on 14 March, naming UAERJ as the counterparty. It was executed by Mr Perera on behalf of UAERJ. The concert took place on 17 March 2013. The Brisbane Venue 13On 6 December 2012, Mr Denison signed on behalf of "UAERJ Pty Ltd trading as UAE Presents" a Venue Booking Application in relation to a concert to be held at the Brisbane Riverstage venue on 24 March 2013. 14On 17 December 2012 Mr Denison requested the Brisbane Venue to amend the "venue contract" by changing the counterparty to UAE Presents Pty Ltd. An amendment was issued and signed by Mr Denison on behalf of UAE Presents Pty Ltd but was not signed on behalf of the Brisbane Venue until 10 January 2013. The primary judge inferred that Mr Denison sought this change because of his negotiations with Jupiters (Judgment [148]). 15On 24 December 2012 Mr Denison caused UAE Presents Pty Ltd to give to the Brisbane Venue an irrevocable direction to pay (the"Brisbane IDP") in similar terms to the WIN IDP. The Brisbane Venue executed an acknowledgment of receipt that appeared on it. 16As in relation to the Wollongong Venue, Mr Perera discovered in March 2013 that the Brisbane IDP had been isssued and that the venue hire agreement was in the name of UAE Presents Pty Ltd. About this time, Mr Denison requested the Brisbane Venue to amend the contract to show UAERJ as the counterparty and purported to withdraw the irrevocable direction. This request was followed by a letter from UAERJ's solicitors to the Brisbane Venue alleging that Mr Denison had acted in December outside the scope of his agency agreement with UAERJ. The venue hire agreement was duly amended on the day the concert took place, 24 March 2013. The Perth Venue 17On 12 December 2012, the Perth Venue entered into a venue hiring contract with "UAERJ Pty Ltd trading as UAE Presents" in relation to a concert to be performed by The Jacksons on 14 March 2013. Mr Perera had approved UAERJ's entry into the contract. 18On 24 December 2012 Mr Denison caused an irrevocable direction to pay to be given to the Perth Venue by "UAE Presents Pty Ltd" (the "First Perth IDP"). Jupiters does not however rely upon this IDP in these proceedings. Rather, it relies upon a further irrevocable direction to pay Jupiters purportedly given to the Perth Venue on 13 March 2013 by UAERJ Pty Ltd (the "Second Perth IDP"). Mr Denison executed the document but had no express authority to do so. 19When Mr Perera found out about the First Perth IDP in March 2013, he informed the Perth Venue that he had not authorised it and, at least by implication, any other IDP that Mr Denison had caused to be given in favour of Jupiters. UAERJ'S CLAIMS AGAINST MR DENISON 20A deed dated 18 March 2013 to which Mr Denison, UAE Presents Pty Ltd and UAERJ were parties recited that Mr Denison admitted his "wrongful conduct" in giving the IDPs and that he had undertaken to indemnify UAERJ "in respect of any proceedings which may arise from the Jupiters Limited debt and the distribution of box office receipts from the Jacksons Unity Tour". 21The following day, UAERJ commenced a District Court action against Mr Denison and UAE Presents Pty Ltd, obtaining default judgment against both defendants on 21 March 2013. It thereafter attempted to enforce the judgment by garnishee proceedings. The Statement of Liquidated Claim in the action relevantly alleged the following: (a)On or about 13 February 2013, UAERJ entered into a contractual arrangement with The Jacksons in relation to their March 2013 Tour. (b)UAERJ entered into venue hire agreements with inter alia the operators of the Wollongong, Brisbane and Perth Venues proposed for concerts on the Tour. (c)Mr Denison was hired by UAERJ "to secure venues and negotiate the artist's fee in respect of the Tour as agent for the plaintiff". (d)Mr Denison and UAE Presents Pty Ltd wrongfully represented to a number of venue operators that UAE Presents Pty Ltd was the tour promoter and wrongfully directed that all proceeds of ticket sales be paid to a creditor of Mr Denison. (e)UAE Presents Pty Ltd's conduct, including the giving of the IDPs, constituted a breach of the agency agreement between UAERJ and Mr Denison. (f)UAERJ's loss is $700,000 plus interest and Mr Denison and UAE Presents Pty Ltd consent to judgment against them for those amounts. THE PRESENT SUPREME COURT PROCEEDINGS 22On 28 May 2013 Jupiters commenced the present proceedings naming UAERJ, Mr Perera, UAE Presents Pty Ltd, Mr Denison and the Brisbane, Wollongong and Perth Venues as defendants. 23In its Commercial List Statement, Jupiters made the following presently relevant allegations: (a)"By on or about 21 December 2012, UAE and/or Denison had an agreement with ICM for the Jacksons Concerts and had paid a 50% deposit on the tour" (paragraph 27). (b)By means of the Wollongong, Brisbane and Second Perth IDPs, UAE Presents Pty Ltd assigned to Jupiters its interests in the ticket proceeds for the relevant Jacksons concerts, or created equitable charges over them. (c)UAERJ was on notice of, and remains bound by, the equitable charges. (d)That in bringing the District Court action against UAE Presents Pty Ltd and Mr Denison, in obtaining judgment in the action and in subsequently attempting to enforce the judgment, UAERJ elected to take those steps instead of exercising "any direct right to the ticket proceeds" from the Brisbane and Wollongong Venues. (e)That election precludes UAERJ denying Jupiters' claim to the proceeds held by those two venues. 24The Commercial List Response of UAERJ and Mr Perera stated that those defendants "do not plead" to many of the paragraphs in the Commercial List Statement. Importantly, these included paragraph 27 of the Commercial List Statement referred to in [23(a)] above. 25UAE Presents Pty Ltd and Mr Denison, although served, did not appear in the proceedings. The three venue owners did not take an active part in the proceedings but submitted to such order, other than in relation to costs, that the Court might make concerning the ticket sale proceeds held by them. THE JUDGMENT AT FIRST INSTANCE The admissions in the pleadings 26The primary judge dealt in detail with the effect of UAERJ and Mr Perera not pleading to paragraph 27 of the Commercial List Statement (see [23(a)] above). The Commercial List Response was presumably framed as it was because the pleader erroneously thought that if UAERJ and Mr Perera did not have direct knowledge of facts pleaded in the Commercial List Statement, they could not plead to them. That a party is not alleged to have participated in a pleaded transaction does not relieve that party of the obligation of stating in its pleading in response whether it admits, does not admit or denies the fact pleaded. If the allegation is not traversed, it will be taken to be admitted (Uniform Civil Procedure Rules 2005 (NSW), r 14.26). Stating that an allegation is not pleaded to does not constitute a traverse. 27Despite this being drawn to the attention of UAERJ and Mr Perera's representatives, the Commercial List Response was not sought to be amended prior to the commencement of the hearing. When an application to amend was made thereafter, the primary judge refused it because the admissions constituted by the failure to traverse paragraph 27 were made on advice, they were clear, Jupiters had relied upon them in preparing for the hearing and the application was, he considered, made too late (Judgment [55] - [59]). 28Relying on Damberg v Damberg [2001] NSWCA 87; 52 NSWLR 492, the primary judge however took the view that he was not bound to act on the admissions if there was "reason to doubt their correctness". 29His Honour found that there was no reason to doubt the first part of the admission, namely, that Mr Denison had an agreement with ICM in relation to The Jacksons' concerts (although his Honour did have reason to doubt that there was a signed agreement to that effect). However his Honour concluded that there was reason to doubt the second part of the admission, concerning payment of the 50% deposit, because the evidence indicated that it was Mr Perera, or entities associated with him, rather than Mr Denison, who paid the deposits. 30His Honour nevertheless considered that, although binding on UAERJ and Mr Perera, the first part of the admission was not of significance because it did not demonstrate that such agreement as Mr Denison or UAE Presents Pty Ltd had with ICM gave them the right to assign the Wollongong and Brisbane ticket sale proceeds to Jupiters. The position was a fortiori in relation to the Perth concert as, in relation to the Perth proceeds, Mr Denison did not purport to act on his own behalf (but on behalf of UAERJ). 31His Honour did not therefore treat the admissions as of any significance. Whether Mr Denison had authority to deal with The Jacksons' ticket sale proceeds 32The primary judge first addressed the question of whether Mr Denison, in his dealings with ICM, was acting on his own account or as agent for Mr Perera or one of his entities (in particular, UAERJ). 33Having considered the evidence, including admissions made by Mr Denison in March 2013, his Honour concluded that such agreement as Mr Denison might have had with ICM in relation to the tour was not made by him in his own right but was made on behalf of Mr Perera's interests. As a result, Mr Denison had no right to deal with the concert ticket sale proceeds for his own benefit (Judgment [115]). 34His Honour took the view that this finding resolved in favour of UAERJ the competing claims in respect of the Wollongong and Brisbane ticket sale proceeds (Judgment [116]). As UAERJ, not Mr Denison or UAE Presents Pty Ltd, was the party truly entitled to the ticket sale proceeds, Jupiters' claim that it acquired an equitable charge in respect of the Wollongong and Brisbane ticket sale proceeds was rejected (Judgment [200] - [201]). The Perth ticket sale proceeds 35The primary judge noted that Jupiters relied on the Second Perth IDP as constituting an assignment to it by UAERJ (which, rather than UAE Presents Pty Ltd, was the counterparty to the Second Perth IDP) of the Perth ticket sale proceeds. 36His Honour held that Mr Denison did not have actual authority from UAERJ to sign the IDP, nor therefore to make an assignment. Whilst Mr Perera and UAERJ had conferred some authority on Mr Denison, it did not extend to the execution by Mr Denison of documents "causing funds otherwise due to UAERJ to be paid to a creditor of Mr Denison (or UAE Presents), such as Jupiters" (Judgment [205]). This finding was not challenged on appeal. 37However, for the following reasons, his Honour found that Mr Denison had UAERJ's ostensible authority to execute the Second Perth IDP: "211 I have set out above (see [173] to [175] above) the circumstances in which Mr Perera authorised Mr Denison to execute the Perth Venue Hire Agreement on behalf of UAERJ. Mr Denison purported to execute that document as a director of UAERJ. Mr Perera, being the person with 'actual' authority to manage the business of UAERJ, knew of and accepted the fact that Mr Denison had taken that step and was, I have found, indifferent to the manner in which he had done so. He thus represented to Perth Arena that Mr Denison had authority to enter into the contract that was at the foundation of UAERJ's contractual relationship with Perth Arena. 212 Further, as I have mentioned, Mr Perera agreed that Mr Denison was authorised to deal with Perth Arena, on behalf of UAERJ, in relation to irrevocable directions to pay albeit, as Mr Perera said, not to execute such documents. 213 That combination of events constitutes, in my opinion, a clear representation by UAERJ that Mr Denison had authority to enter into the Second Perth Arena Irrevocable Direction." 38His Honour then found that the Second Perth IDP, having been executed with UAERJ's (ostensible) authority, constituted an assignment at law to Jupiters of the debts the subject of the assignment (s 20 of the Property Law Act 1969 (WA) being in similar terms to s 12 of the Conveyancing Act 1919 (NSW)). Jupiters' election argument 39As an alternative contention in relation to the Wollongong and Brisbane ticket sale proceeds, Jupiters argued that UAERJ's claim in the present proceedings was inconsistent with the position it adopted in the District Court, resulting in UAERJ being precluded by the doctrine of election from making its present claim. 40The primary judge described Jupiters' argument as to what occurred in the District Court as follows: "232 UAERJ ... asserted in the District Court that the venue operators were debtors of UAE Presents (or Mr Denison) (see s 117 of the Civil Procedure Act 2005). As the only dealings the venue operators had with UAE Presents (or Mr Denison) were those that led to the venue operators holding the Ticket Sale Proceeds, UAERJ also implicitly asserted that UAE Presents (or Mr Denison), and not UAERJ, was entitled to the Ticket Sale Proceeds." 41His Honour considered that even if UAERJ was precluded by the doctrine of election from claiming the ticket sale proceeds for Wollongong and Brisbane, Jupiters' claim was not thereby assisted as, on his Honour's findings, Jupiters had acquired no interest in those proceeds. In other words, whilst the argument may have helped Jupiters if there was a question as to which of Jupiters' and UAERJ's interests had priority, it could not assist Jupiters if Jupiters had no interest at all (Judgment [234] - [238]). Interference with contractual relations 42The primary judge then dealt with Jupiters' claim that Mr Perera and UAERJ had wrongfully interfered with contracts to which Jupiters was a party, namely, the Costs Agreement with Mr Denison, and agreements constituted by the Brisbane and Wollongong IDPs. 43His Honour dismissed the claim on the basis that Mr Denison's unauthorised attempts to deal with the ticket sale proceeds amounted to breaches of those agreements (assuming there were such agreements) and that those breaches occurred without any inducement of them by Mr Perera or UAERJ. RESOLUTION OF THE APPEAL AND CROSS-APPEAL THE PERTH TICKET SALE PROCEEDS 44By his Costs Agreement with Jupiters, Mr Denison undertook to pay part of the proceeds of ticket sales for The Jacksons' concerts to Jupiters to reimburse it for expenses it agreed to pay. To give effect to that undertaking, Mr Denison directed three of The Jacksons' concert venues to pay ticket sale proceeds to Jupiters. However, he had no right to deal with those proceeds. He was not the promoter of the concerts. Rather, he had been engaged by Mr Perera (and subsequently the company Mr Perera acquired, UAERJ) to act as Mr Perera/UAERJ's agent in organising The Jacksons' Tour. In so far as Mr Denison acquired any rights against The Jacksons' agent (ICM) or the concert venue operators, he plainly did so on behalf of Mr Perera/UAERJ and could not deal with those rights without Mr Perera/UAERJ's authority (I shall henceforth refer simply to UAERJ as it came to assume Mr Perera's position from November 2012). 45The primary judge found this to be the position (Judgment [115]) and the evidence to which the Court's attention was directed on appeal clearly supported the finding. 46An inevitable corollary of this finding was the primary judge's further conclusion (not challenged on appeal) that, in so far as UAERJ gave Mr Denison some authority in relation to organisation of The Jacksons' concerts, that authority did not extend to using UAERJ's money for his own benefit, for example, by directing that ticket sale proceeds for the concerts be paid to discharge Mr Denison's own debt to Jupiters (Judgment [205]). 47The primary judge however held that Jupiters had acquired a right to the Perth ticket sale proceeds for The Jacksons' concert. His Honour's reasoning was that UAERJ had, as a result of Mr Perera's conduct described in [211] to [212] of the Judgment (see [37] above), led the Perth Venue to believe that Mr Denison had authority to give the Second Perth IDP on behalf of UAERJ. That is, that UAERJ, by its conduct vis à vis the Perth Venue, had conferred ostensible authority on Mr Denison. 48As I pointed out during argument on the appeal (Transcript p 2), the conclusion that UAERJ had represented to the Perth Venue that Mr Denison had authority to give the Second Perth IDP on its behalf would have been relevant if the Perth Venue had acted upon the IDP. UAERJ could not have complained if the Perth Venue had acted upon UAERJ's representation of Mr Denison's authority by paying money to Jupiters at Mr Denison's direction. 49However, that did not occur. The funds still remain with the Perth Venue, awaiting this Court's decision. Although, on his Honour's findings, UAERJ at first communicated to the Perth Venue that Mr Denison had authority to direct application of the ticket sale proceeds, it withdrew that authority when Mr Perera contacted the Perth Venue in March 2013 following his discovery of Mr Denison's activities. As a result, the Perth Venue would no longer have been justified in acting upon the basis that Mr Denison had authority to give a direction to pay part of the ticket sale proceeds to Jupiters. Whilst the Second Perth IDP (like the others given by Mr Denison) was expressed to be irrevocable, there was no reason why UAERJ (on whose behalf his Honour concluded that the IDP was given) could not withdraw it in the absence of any contract binding it not to do so. 50No sound reason for treating the IDP as a contract was provided on the appeal. Accordingly, the IDP would in my view have operated no differently than the familiar form of authority and direction to pay given on settlement of a conveyancing transaction. In the ordinary case, there is no reason why such an authority and direction cannot be withdrawn prior to it being acted upon. 51Even if UAERJ represented to the Perth Venue that Mr Denison had authority to act on its behalf in dealings with that venue, UAERJ's giving of the IDP and the venue's agreement, noted on it, to abide by it did not give rise to a contract precluding UAERJ from withdrawing the IDP as neither party gave consideration. UAERJ agreed by the terms of the IDP to hire or continue hiring the venue, but it was already bound by the venue hiring contract of 12 December 2012 (see [17] above) to do this. Likewise, the venue was already bound by that contract to act on UAERJ's instructions as to the disposition of the net proceeds of the concert ticket sales. Furthermore, the IDP did not operate as a deed because it was not expressed to be a deed and neither party purported to seal it. 52If the facts had warranted it, Jupiters might have been able to establish that, vis à vis it (as distinct from the Perth Venue), UAERJ had conferred ostensible authority on Mr Denison and/or UAE Presents Pty Ltd. That is, hypothetically Jupiters might have attempted to establish that UAERJ, presumably through Mr Perera, had represented to Jupiters that Mr Denison had UAERJ's authority to deal with it, in reliance upon which Jupiters agreed to pay and/or paid the expenses relating to the Mariah Carey concert which Mr Denison was unable to pay. However, no doubt because it did not consider that the facts would have supported such a contention, Jupiters did not make it (Transcript pp 18, 32). 53The position is thus that Mr Denison purported to assign or charge to Jupiters the ticket sale proceeds from The Jacksons' Perth concert but had no authority from UAERJ, the true owner of them, to do so. In the absence of any case that Mr Perera or UAERJ expressly or impliedly represented to Jupiters that Mr Denison or UAE Presents Pty Ltd had such authority, Jupiters' claim to the ticket sale proceeds, however framed, must fail. Mr Denison could not assign or charge property to, or in favour of, Jupiters when he had no authority to deal with the property and the owner of the property had not represented to Jupiters that Mr Denison had any such authority. 54I add in conclusion that my view that no contract between the Perth Venue and UAERJ arose out of the Second Perth IDP must lead to the rejection of Jupiters' argument that, as a third party beneficiary of the asserted contract, it has a right to enforce it by reason of s 11 of the Property Law Act 1969 (WA). 55In these circumstances, the appeal must be allowed. THE WOLLONGONG AND BRISBANE TICKET SALE PROCEEDS 56As noted earlier (see [44] and [45] above), Mr Denison was not entitled to deal with the proceeds of ticket sales for any of the three concerts with which these proceedings are concerned. That was the case in relation to the Perth concert where the venue hire agreement was in the name of UAERJ, and was equally the case in relation to the Wollongong and Brisbane concerts, notwithstanding that in those instances UAE Presents Pty Ltd was the party that initially contracted with the venue owner (see [10] and [14] above). As in the case of the Perth concert, Jupiters did not contend that Mr Perera or UAERJ made any representation to it, either directly or indirectly, that Mr Denison or UAE Presents Pty Ltd was entitled to deal with those proceeds. Thus neither were clothed with ostensible authority. Moreover, again as in the case of the Perth Venue (see [50]-[51] above), there is no basis in the evidence for concluding that a contract between Mr Perera/UAERJ and one or both of the Wollongong and Brisbane Venues on the terms of the IDPs came into existence so as to entitle or bind those venues to act upon the IDPs that Mr Denison caused to be given to them, even if Mr Perera/UAERJ purported to withdraw them. 57The Wollongong and Brisbane IDPs were not expressed to be deeds inter partes and the venues did not purport to seal them. Although the IDPs were expressed to be deeds poll executed by UAE Presents Pty Ltd in favour of Jupiters (and the venues), UAE Presents Pty Ltd (and Mr Denison who signed the IDPs on its behalf) had no authority to deal with the ticket sale proceeds and the purported deeds poll were accordingly ineffective at least so far as Jupiters was concerned. I do not consider that the fact that the venues might have (but have not) chosen to enforce them and might have succeeded (because Mr Perera and UAERJ represented to them that Mr Denison had authority to deal with those proceeds) assists Jupiters. UAERJ has purported to withdraw the IDPs and the venues have not sought to hold it to them. Rather, they have submitted to the Court's decision as to the party entitled to the ticket sale proceeds. 58Jupiters relied upon two arguments (its admission and election arguments) to contend that it was, despite the above, entitled to the amounts which it claimed out of the Wollongong and Brisbane ticket sale proceeds. I therefore turn to address those arguments. Jupiters' admission argument 59Jupiters relied upon the admission by UAERJ and Mr Perera in their pleading of paragraph 27 of the Commercial List Statement ([23(a)] - [27] above). The first part of paragraph 27 contained an allegation that UAE [Presents Pty Ltd] (or its principal, Mr Denison) had an agreement with The Jacksons' agent, ICM, that it would have the right to promote The Jacksons' tour of Australasia. As the primary judge pointed out, however, whether UAE Presents Pty Ltd (or Mr Denison) had such an agreement is not of significance as the evidence before his Honour left no doubt that any such agreement was made on behalf of UAERJ in the course of UAE Presents Pty Ltd and Mr Denison performing their duties as UAERJ's agent in respect of promotion of the tour. That the venues may not have been aware of UAERJ's role and that it may therefore have been an undisclosed principal is not of significance in considering Mr Denison and UAE Presents Pty Ltd's actual authority. The second part of paragraph 27 (containing the allegation that UAE [Presents Pty Ltd] and/or Mr Denison had paid a 50% deposit in respect of the tour) is similarly not of significance as, consistently with the allegation, the deposit could have been, as the evidence established it was, supplied by UAERJ. 60Notwithstanding the admission, the position remained that UAE Presents Pty Ltd and Mr Denison had no right to deal with ticket sale proceeds from the tour for their own benefit. As a result, they did not have any authority to make the alleged assignments or charges to Jupiters to discharge Mr Denison's personal debt to Jupiters. As noted above, Jupiters did not attempt to establish that UAERJ had expressly or impliedly represented to Jupiters that UAE Presents Pty Ltd or Mr Denison had authority to make the assignments or charges, thereby clothing them with ostensible authority. 61For these reasons, Jupiters' admission argument must be rejected. As the admission was of no consequence, it is unnecessary to deal with UAERJ's application made on the hearing of the appeal to withdraw it. Jupiters' election argument 62In its written submissions on appeal, Jupiters described the basis of its election argument as follows: "The conduct of UAERJ in bringing the UAERJ Claim and in obtaining and attempting to enforce the UAERJ Judgment and Garnishee Orders is inconsistent with UAERJ having, and manifests a choice by UAERJ to exercise this purported right instead of, any direct right to the Brisbane and WIN Ticket Sale Proceeds. It would be inconsistent for UAERJ to claim both that it has suffered the loss of the ticket sale proceeds (as the UAERJ Claim alleges and the UAERJ Judgment assumes in its award of damages) and that it remains entitled to receive those proceeds directly from the fifth and sixth cross respondents ... ". 63For good reason, this submission did not assert that the fundamental nature of UAERJ's case in the District Court action was inconsistent with its case in the present proceedings. The two cases were consistent, because UAERJ alleged in the District Court that it had suffered loss by reason of UAE Presents Pty Ltd and Mr Denison representing, without authority from UAERJ, that they were The Jacksons' tour promoter and therefore entitled to deal for their own benefit with the proceeds of ticket sales for the tour. In the present Supreme Court proceedings, UAERJ makes the same case by alleging that UAE Presents Pty Ltd and Mr Denison had no authority to give the IDPs to the venue owners and that the ticket sale proceeds should therefore be paid to UAERJ. 64The inconsistency in UAERJ's conduct is said to be that in the District Court action it asserted that it had suffered loss by reason of UAE Presents Pty Ltd and Mr Denison's conduct (because of the loss to it of the ticket sale proceeds) whilst in the Supreme Court proceedings it claims those proceeds from the venue owners and, if successful, will recoup that loss. 65UAERJ's conduct in the District Court did not in my view preclude it from bringing the present proceedings. Assuming the correctness of UAERJ's underlying factual contentions, this is a case where UAERJ has cumulative rather than alternative rights against two sets of parties: Jupiters and the venue owners on the one hand, and UAE Presents Pty Ltd and Mr Denison on the other. 66An example of alternative liability is Petersen v Moloney [1951] HCA 57; 84 CLR 91 where a real estate agent for the vendor received the sale price of a property. The vendor sued the purchaser for the price of the property sold, on the basis that the purchaser had not paid the price to the vendor or his agent authorised to receive the price, and in the alternative sued the agent upon the basis that the agent was authorised to receive the sale price on behalf of the vendor and had to account to him for it. On appeal, the vendor's judgment obtained at first instance against the agent was held not to preclude him obtaining judgment against the purchaser, because the vendor did not seek to maintain the judgment against the agent on appeal but to substitute for it a judgment against the purchaser. If the judgment against the agent had stood, it would have precluded the vendor obtaining judgment against the purchaser. The vendor could not obtain judgment on claims that on the one hand assumed that the agent was authorised, and on the other that it was not. 67The principle of election when applied to alternative liabilities was similarly recognised in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226 at 243 - 4. 68UAERJ's claims against the two sets of parties were not alternative as they were both founded upon the proposition that UAE Presents and Mr Denison acted without UAERJ's authority in purporting to confer rights upon Jupiters in relation to the ticket sale proceeds. UAERJ's claims against them were cumulative in the sense that Jupiters and the venue owners, and UAE Presents Pty Ltd and Mr Denison, were two sources from which UAERJ might recover its loss. UAERJ did not have to choose between them. It could pursue both, so long as it did not obtain double recovery (United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 20). 69A plaintiff is not required to choose between cumulative remedies. As stated in the judgment of the Privy Council in Tang Man Sit v Capacious Investments Ltd [1996] AC 514 at 522, cited with evident approval by Gleeson CJ and Callinan J in Baxter v Obacelo Pty Ltd [2001] HCA 66; 205 CLR 635 at [39]: "Faced with alternative and inconsistent remedies a plaintiff must choose between them. Faced with cumulative remedies a plaintiff is not required to choose. He may have both remedies. He may pursue one remedy or the other remedy or both remedies, just as he wishes. It is a matter for him. He may obtain judgment for both remedies and enforce both judgments. When the remedies are against two different people, he may sue both persons. He may do so concurrently, and obtain judgment against both. Damages to the full value of goods which have been converted may be awarded against two persons for successive conversions of the same goods. Or the plaintiff may sue the two persons successively. He may obtain judgment against one, and take steps to enforce the judgment. This does not preclude him from then suing the other. There are limitations to this freedom. One limitation is the so called rule in Henderson v Henderson ... In the interests of fairness and finality a plaintiff is required to bring forward his whole case against a defendant in one action. Another limitation is that the court has power to ensure that, when fairness so requires, claims against more than one person shall all be tried and decided together. A third limitation is that a plaintiff cannot recover in the aggregate from one or more defendants an amount in excess of his loss. Part satisfaction of a judgment against one person does not operate as a bar to the plaintiff thereafter bringing an action against another who is also liable, but it does operate to reduce the amount recoverable in the second action. However, once a plaintiff has fully recouped his loss, of necessity he cannot thereafter pursue any other remedy he might have and which he might have pursued earlier. Having recouped the whole of his loss, any further proceedings would lack a subject matter. This principle of full satisfaction prevents double recovery." See also Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [70] per McColl JA (with whom Giles and Campbell JJA agreed). 70In these circumstances, Jupiters' election argument must be rejected. Interference with contractual relations 71Jupiters accepted that if (as is the case) the primary judge's finding that neither Mr Denison nor UAE Presents Pty Ltd had any entitlement to deal with the Brisbane or Wollongong ticket sale proceeds stands, Jupiters' claim against UAERJ and Mr Perera for interference with contracts to which Jupiters was a party must fail (Amended Submissions, [47]). NOTICE OF CONTENTION 72It is unnecessary to give separate consideration to UAERJ and Mr Perera's Notice of Contention seeking to uphold the primary judge's decision in relation to the Wollongong and Brisbane Venues on different grounds to those given by his Honour, as I have concluded that that decision should be upheld for the reasons I have identified above. ORDERS 73For the reasons that I have given, Jupiters' claims in relation to the ticket sale proceeds for The Jacksons' concerts in Perth, Wollongong and Brisbane must be rejected. As the primary judge found in Jupiters' favour in relation to the Perth concert, the appeal should be allowed. The cross-appeal should be dismissed because the primary judge was correct in rejecting Jupiters' claims in relation to the Wollongong and Brisbane concerts. 74I propose the following orders: (1)Appeal allowed. (2)Cross-appeal dismissed. (3)Set aside the following orders made on 23 October 2013: (a)Order 1 made in proceedings 2013/131366; (b)Orders 1, 2 and 5 made in proceedings 2013/164924. (4)Judgment for the first, second, fifth, sixth and seventh defendants on Jupiters Ltd's claims against them in proceedings 2013/164924. (5)Order Jupiters Ltd to pay the costs of those defendants at first instance and of the appeal and cross-appeal. (6)Grant Jupiters Ltd a certificate under the Suitors' Fund Act 1951, if qualified. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2014