Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Righi v Kissane Family Pty Ltd [2015] NSWCA 238 Hearing dates: 1 July 2015 Date of orders: 18 August 2015 Decision date: 18 August 2015 Before: Ward JA at [1]; Emmett JA at [2]; Gleeson JA at [99] Decision: 1 Appeal allowed. 2 Orders made by Lindsay J on 22 April 2015 be set aside, and in lieu thereof, there be orders that: (a) there be judgment for the fourth defendant and the fifth, sixth and seventh defendants; and (b) the plaintiff pay the costs of the fifth, sixth and seventh defendants. 3 The first respondent pay the appellants' costs of the appeal. Catchwords: CONTRACT – construction – whether a clause of a deed providing for the repayment of a loan should be construed as limiting the funds from which such repayment would be made Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Uniform Civil Procedure Rules 2005 (NSW), r 28.2 Cases Cited: Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 Goss v Lord Nugent (1833) 5 B & Ad 58; 110 ER 713 Kissane Family Pty Ltd as Trustee for the Kissane Family Trust v Burns [2015] NSWSC 423 Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184 Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 NZI Capital Corporation Pty Ltd v Child (1991) 23 NSWLR 481 Oceanbulk Shipping and Trading SA v TMT Asia Ltd [2011] 1 AC 662 Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 240 CLR 45 Texts Cited: JW Carter, The Construction of Commercial Contracts (Hart Publishing, 2013) Robert McDougall, "Construction of Contracts: The High Court's Approach" (Paper delivered at the Commercial Law Association Judges' Series, 26 June 2015) Category: Principal judgment Parties: Sam Righi (First Appellant) Alan Fleming (Second Appellant) Rodney Stewart (Third Appellant) Kissane Family Pty Ltd (First Respondent) Trinity Sports & Events Management Pty Ltd ACN 143 090 626 (in liq) (Second Respondent) Representation: Counsel: G Lucarelli (Appellants) V Bedrossian (First Respondent) Solicitors: Mitry Lawyers (Appellants) Etheringtons Lawyers (First Respondent) Bartier Perry (Second Respondent) File Number(s): 2015/128691 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Date of Decision: 16 April 2015 Before: Lindsay J File Number(s): 2012/23898 [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.] Judgment 1. WARD JA: I have had the advantage of reading in draft the reasons of Emmett JA, with which I agree. For those reasons the appeal should be allowed and the orders proposed by Emmett JA should be made. 2. EMMETT JA: This appeal is concerned with the proper construction of a deed entered into on 13 May 2010 (the May Deed) between Trinity Sports & Events Management Pty Ltd (Trinity); the respondent, Kissane Family Pty Ltd (as trustee for the Kissane Family Trust) (Kissane); and the appellants, Messrs Sam Righi, Alan Fleming and Rodney Stewart (the Guarantors). The May Deed was concerned with a venture (the Project) involving the bringing out to Australia of a team of the Everton Football Club Ltd (Everton) to play matches against three Australian football clubs. 3. The question is the extent to which Trinity incurred a liability under the May Deed to repay to Kissane advances made by Kissane to Trinity in connection with the Project to the extent that revenue from the Project fell short of the expenses of the Project. The Guarantors guaranteed the performance of all obligations and liabilities of Trinity under or arising from the May Deed. The Guarantors accept that, if Trinity has an obligation to Kissane to repay the amount of the shortfall, they are liable under their guarantee. 4. In pursuance of the May Deed, Kissane advanced a total amount of $5,235,000 to Trinity. The proceeds from ticket sales in respect of football matches played by the Everton team fell short of the total amounts advanced and Kissane received repayment of no more than $1,705,715.55. Kissane claims that, on the proper construction of the May Deed, Trinity is liable to pay to it the amount of that shortfall. Trinity is now in liquidation and is unable to pay any amount owing to Kissane. Hence, Kissane looks to the Guarantors for payment of the amount that it claims it is owed by Trinity. 5. Kissane commenced proceedings in the Equity Division against Trinity and the Guarantors, together with other defendants who are not privy to the present dispute. An order was made under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the question of the liability of the Guarantors to Kissane be determined separately from, and in advance of, any other question in the proceedings. 6. On 22 April 2015, for reasons published on 16 April 2015, [1] a judge of the Equity Division (the primary judge) ordered that there be judgment in favour of Kissane against each of the Guarantors jointly and severally for an amount equal to the difference between $5,235,000 and $1,705,715.55, together with pre-judgment interest. The primary judge also ordered the Guarantors to pay Kissane's costs. By notice of appeal filed on 30 April 2015, the Guarantors appeal from those orders. 7. The liability of the Guarantors depends upon whether, on the proper construction of the May Deed, Trinity has a liability to Kissane. Accordingly, Trinity is a necessary party to the proceedings. However, at some point, Trinity ceased to be a defendant and it was not originally a party to this appeal. Further, the liquidator of Trinity has indicated that Trinity does not agree to be bound by the determination of the appeal. Accordingly, the Court granted leave nunc pro tunc for the original proceedings and the appeal to be commenced and continued as against Trinity on terms that Kissane would not seek to enforce any judgment against Trinity, otherwise than by proving in the winding up. Trinity was afforded the opportunity of making submissions on the appeal. It has declined to do so. The May Deed 1. In order to put the question raised by the appeal into context, it is necessary to explain the relevant provisions of the May Deed. As I have said, the parties to the May Deed were Trinity, Kissane and the Guarantors. The May Deed recited that Trinity had invited Everton to send a football team to Australia, that Everton had agreed in principle to send a team to Australia, that Trinity required funding to cover the costs of the tour by the Everton team, that Trinity had requested "funding" from Kissane and that Kissane had agreed to "provide funding" in accordance with the terms of the May Deed. Clauses 1 and 2 of the May Deed dealt with "Definitions" and "Interpretation", respectively. It is desirable to refer to several of the definitions before dealing with the relevant operative provisions. 2. The May Deed defined the Tour as the tour "as outlined in defined in [sic]" the Tour Agreement, being the agreement set out in Schedule 4, to which both Trinity and the Guarantors were also parties. By the Tour Agreement, Everton was to agree to field a team from a squad of nominated players to play in matches against three nominated Australian clubs. In consideration of Everton carrying out the Tour and performing its obligations under the Tour Agreement, Trinity was to pay Tour Fees to Everton as follows: * "Guaranteed Match Fee" of $US 1,700,000; * "Win Bonus Payment" of a maximum of $US 500,000; * merchandising, sponsorship, advertising and broadcast income consisting of a 25 per cent share of all net merchandising, sponsorship, advertising and broadcast income received by Trinity in excess of $US 1,700,000; and * Everton's obligations under Australian taxation laws, in respect of which Everton would indemnify Trinity. The Tour Agreement was to contain specific provisions dealing with merchandising and sponsorship and with broadcasting. [2] 1. The term Profits is defined in the May Deed as "Net Profit before tax" and Net Profit is defined as "Revenue less Expenses". Tax is defined as meaning any amounts payable pursuant to "GST, CGT, ITAA 36, ITAA 87, FBT" and any subordinate or related Acts and regulations. The term Revenue is defined as "all revenue received from ticket sales, sponsorship, merchandising, TV rights, interest or any other revenue in relation to the Tour". The term Expenses is defined as "all expenses, taxes and duties payable by Trinity in relation to the Tour and particularly those shown in the Budget". The term Budget is defined as "the budget for the anticipated Revenue and Expenses of the Tour" annexed as Schedule 2 (reproduced in the Appendix to these reasons). 2. The Budget in Schedule 2 shows "Total Net Revenue" of $14,625,000. While the Budget contains provision for amounts of revenue from "sponsorship", "merchandise" and "TV rights" to be inserted, no figures are contained in the Budget for those items. That may suggest that the parties did not expect to receive any revenue in respect of those items. On the other hand, cl 14 of the May Deed contains disclosure by Trinity that the Tour Agreement is not in its final form and may be subject to amendments at the request of either Everton or Trinity. Thus, one cannot necessarily conclude that the parties to the May Deed did not expect that there may be some revenue from sources other than ticket sales. The significance of that matter will become apparent below. 3. The Budget contains a list headed "Expense Category". The list includes items such as the following: * Venue hire * Accounting * Freight clearance * Accommodation * Catering * Press and television * Printing and artwork * Insurance * Door staff and security * Everton fee The list also includes a fee of $250,000 for each of the Guarantors and for "Felicity". Finally, the list includes an item for "Felicity - Principal Repayment" of $5,160,000. Felicity is apparently the principal of Kissane. The Budget shows "Total Expenditure" of $14,050,305 as the total of the items in the "Expense Category" list. 1. The Budget then shows "Net Proceeds – for Distribution" of $5,734,695 and shows "Distribution to Stakeholders" of that amount as follows: Trinity 60% $3,440,817 Kissane 40% $2,293,878 In order to arrive at the amount of $5,734,695 as the net proceeds for distribution, it is necessary to deduct total expenditure less principal repayment from the total net revenue as shown in the Budget. Thus, total expenditure of $14,050,305 less principal repayment of $5,160,000 gives $8,890,305. Total revenue of $14,625,000 less $8,890,305 gives net proceeds for distribution of $5,734,695. 1. It is curious that "Principal Repayment" was included as an expense since it had to be deducted in order to arrive at the figure available for distribution stated in the Budget. On the other hand, given the definitions of Profits, Net Profit and Expenses (the last of which relevantly includes "all expenses … shown in the Budget"), and given the terms of cl 12 (discussed below), the Budget contemplated that there could be no net proceeds for distribution until the principal repayment had been made. Thus, contrary to the figures shown in the Budget as the "Distribution to Stakeholders", on the forecast revenue and expenditure, there could not have been $5,734,695 available for distribution. Instead, after deducting $5,160,000 from that figure, there would have been a much lesser amount of $574,695 available for distribution. On that analysis, the 60:40 split would result in a forecast distribution of $344,817 to Trinity and $229,878 to Kissane. The Budget must therefore be understood to be inaccurate in respect of the forecast distribution. 2. Clause 4 of the May Deed provided that it was to remain in force for a term commencing on "the operative date" and terminating on 31 August 2010 or the occurrence of an event "contained within clause twelve". The term "operative date" is defined as the day the May Deed is executed. The May Deed superseded a deed in almost identical terms entered into by the same parties on 29 April 2010 (the April Deed). Accordingly, the date of commencement was probably intended to be 29 April 2010. The reference to "clause twelve" appears to be an error. Clause 12, as will be shown below, is concerned with "profit sharing". However, cl 16 is concerned with "termination". Clearly enough, the reference to cl 12 was intended to be a reference to cl 16. 3. The pivotal provisions of the May Deed were cll 5, 6, 7 and 8, dealing with matters relating to "Funds" and "Draw Down", cl 11 dealing with "Repayment of Funds" and cl 12 dealing with "Profit Sharing". It will be necessary to examine those clauses in some detail. However, other provisions throw light on the construction of the critical clauses. 4. The term Funds was defined as the advances to Trinity as identified in Schedule 1, which specifies the amount of $5,134,315. By cl 5, Kissane covenanted "to provide funds by way of a loan for [the Project]". Prior to each of the Drawdown Dates, as defined, Kissane was to deposit amounts in the Project Account, being an account in the name of Trinity with Westpac Banking Corporation. The amounts and the Drawdown Dates were as follows: Operative Date: $2,500,000 17 May 2010: $2,100,000 14 June 2010: $560,000 Trinity warranted that the funds were to be for "the sole purpose of, incidental to or arising out of the Project and no other purpose". It is quite unclear how the amount of $5,160,000, being the amount referred to in the Budget and the total of the amounts referred to in cl 5, is to be reconciled with the amount of $5,134,315 referred to in the Schedule. Further, for the reasons indicated above, the first Drawdown Date was probably intended to be 29 April 2010. 1. By cl 6, Trinity was to have no entitlement to draw down any funds from the Project Account until such time as the Tour Agreement had been executed by Everton. Clause 6 also provided that, if Trinity was not in a position to comply with "the pre-condition outlined" in cl 6 within 21 days of the operative date, then "the funds advanced by Kissane", if any, were to be returned "in full together with any accrued interest". Clause 7 provided that Trinity was to have the right to draw down funds in accordance with the Budget and cl 8 dealt with the possibility of additional drawdowns. 2. The question of Trinity's liability to Kissane turns upon the proper construction of cl 11 and cl 12 of the May Deed. It is desirable to set out the terms of those provisions verbatim. Clause 11 consists of five separate sentences, each of which is typed in the May Deed as a separate unnumbered paragraph. For ease of reference, it is convenient to treat each sentence as a separate numbered sub-clause of cl 11 as follows: 11. Repayment of Funds (1) Trinity covenants that the funds shall be repaid to Kissane from the distribution of ticket sales. (2) Trinity discloses to Kissane and Kissane acknowledges that the proceeds from ticket sales will be held on trust by Ticketek until each match [played by Everton Football Club FC] is concluded at which time Ticketek shall distribute the revenue from ticket sales. (3) The parties agree that Kissane shall have the sole benefit of the interest, if any, that accrues on the funds whilst they remain on trust with Ticketek. (4) The parties agree that the funds and accrued interest, if any, will be paid directly to Kissane's nominated account and that any amount over and above the funds advanced by Kissane will be paid directly into the Project Account. (5) Kissane agrees and warrants that on receipt of the full funds and interest that the payment and manner in which it is paid will be in full and final satisfaction of the funds advanced and, subject to any other provision of this Deed, in particular clause 12 Kissane shall make no claim, raise objection or bring an action or suit in any Court of competent jurisdiction in relation to the Funds. 12. Profit Sharing In consideration for the Funds advanced by Kissane the parties agree that the profits from the Project shall be distributed in the following proportions: Trinity 60% Kissane 40% With the written consent of both parties the parties may make an interim distribution of Profits with the balance being made at the end of the Project. The term Ticketek is defined as Ticketek Pty Ltd or a similar corporation engaged in the business of distributing and selling event tickets. 1. Clause 16 of the May Deed provided that, subject to its provisions and without prejudice to any other rights or remedies that the parties may have, either party could terminate the May Deed without liability to the other, immediately on giving notice to the other if one of twelve events occurred. The events included: * failing to comply with the "pre-condition" in cl 6A and the Funds being returned in accordance with cl 6B; * the other party failing to pay any amount due under the May Deed on the due date for payment and remaining in default after being notified in writing; and * the other party committing a breach of a material term of the May Deed. The other events might generally be described as events of insolvency. 1. Clause 16B of the May Deed provided as follows: On termination of this Deed for any reason: (i) Trinity shall immediately pay to Kissane all Funds advanced pursuant to clause 5; and (ii) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected. 1. Clause 16C provided that, on termination, cll 1, 2, 3, 12, 16, 17 and 18, which deal respectively with Definitions, Interpretation, Governing Law, Profit Sharing, Termination, Dispute Resolution and Confidentiality, were specifically to survive and continue in full force and effect. 2. Clause 22 of the May Deed provided that it constituted the whole agreement between the parties and superseded any previous arrangement, understanding or agreement between them relating to the subject matter of the May Deed. Thus, it is clear enough that the April Deed no longer had any operative effect as between the parties. 3. Clause 25 of the May Deed provided that the legal costs of both parties were to be an expense of the Project. However, stamp duty on the May Deed and the charge to be given by Trinity under cl 27 were to be borne by Trinity. While stamp duty was to be paid as an expense of the Project, it was to be deducted from Trinity's share of the profit when disbursed. 4. The guarantee and indemnity by the Guarantors was contained in cl 26 of the May Deed. Nothing turns on the specific language used in cl 26. As I have said, it is common ground that, if Trinity has any liability to Kissane under the May Deed, that liability is covered by cl 26. 5. Clause 27 of the May Deed provided that, in further consideration of Kissane's "agreeing to lend the funds to Trinity", Trinity agreed to grant a charge in the form of the fixed and floating charge annexed as Schedule 3 to the May Deed. By that form of charge, Trinity, as mortgagor, charged to Kissane, as mortgagee, the whole of its undertaking, property and assets to secure the payment of the "Secured Money". Secured Money was defined as all money that, at any time, is or becomes due to Kissane under any of the "Collateral Documents" or which Trinity is or becomes liable to pay to Kissane on any account. The term Collateral Documents was defined as the documents specified in Item 1 and any other present or future agreement under which Trinity agrees with Kissane in any way. 6. Item 1 of the form of charge in Schedule 3 specifies the following: Profit Share Deed between the Mortgagor and the Mortgagee Dated ____ 2010. It is clear enough that the May Deed was intended to be referred to in Item 1. However, it does not purport to be a "Profit Share Deed". On the other hand, that description of it in the form of charge could conceivably have some bearing on the question of construction of the May Deed raised in the appeal. Reasons of the Primary Judge 1. The claims by Kissane against Trinity and the Guarantors, as contained in the further amended statement of claim filed on 10 February 2014, may be summarised as follows: * On 29 April 2010, Kissane, Trinity and the Guarantors entered into the April Deed for the provision of funding by Kissane to Trinity in respect of the Project. * On 12 and 13 May 2010, Kissane, Trinity and the Guarantors executed the May Deed in relation to the Project. * By cl 26 of the May Deed, each of the Guarantors jointly and severally guaranteed the performance of all obligations and liabilities of Trinity under or arising from the May Deed and undertook to keep Kissane fully indemnified against all losses, costs and expenses of whatever nature which it may suffer or incur as a result of any failure or delay on the part of Trinity in the performance of its obligations under the May Deed. * Pursuant to the May Deed, Kissane made payments to Trinity between 29 April 2010 and 30 June 2010 of amounts totalling $5,235,000. * Pursuant to the May Deed, Kissane received amounts totalling $1,463,777.17 and $393,862.40. * As a consequence of the payments and receipts referred to above, Kissane has suffered loss and damage comprising a shortfall in the receipts that it ought to have received pursuant to the May Deed of a total of $3,778,307. * In breach of the terms of the May Deed, Trinity failed: • to repay or cause to be paid to Kissane the entirety of the amount of $5,235,000 that had been advanced by Kissane pursuant to the May Deed; • to cause or ensure that all income received by way of ticket sales or other sources of revenue associated with the venture were paid to Kissane; and • to cause or ensure that Kissane received the sole benefit of any interest accrued on any ticket sales or funds held. * Pursuant to the personal guarantee and indemnity given by each of the Guarantors, each of the Guarantors is liable to Kissane for: • the full amount of loss and damage suffered by Kissane claimed in the proceedings; • the full amount of the costs and expenses incurred by Kissane, which are recoverable under the guarantee and indemnity; • interest on the loss, damage, cost and expenses. 1. In their defence filed on 17 March 2014, the Guarantors admitted execution of the May Deed but denied that there was a breach. They did not seek any further particulars of the allegation of breach, but made the following further allegations: * By cl 11 of the May Deed, Trinity agreed that funds would be paid to Kissane from the distribution of ticket sales the subject of the Project (ticket revenue); * Ticket revenue would be held in trust by Ticketek before being paid to Kissane; * Receipt of the full funds by Kissane from the ticket revenue, together with interest earned on the ticket revenue whilst held by Ticketek, would be in full and final satisfaction of the funds advanced by Kissane and Kissane would not be entitled to make any further claim, objection or bring any action or suit in relation to the funds advanced; * The full funds comprising the ticket revenue and interest were repaid to Kissane; * Accordingly, Kissane is not entitled to make any claim, objection or bring any action or suit against the Guarantors in relation to the funds advanced that were the subject of the Project. 1. The primary judge observed that the May Deed provided for Kissane to provide funds by way of advance for a limited purpose and for a limited time, until 31 August 2010. His Honour considered that the use of the word "loan" and, even more so, the use of the word "advance" implied the existence of a borrower, being Trinity, and an obligation on the part of that borrower to repay the funds provided "by way of a loan". 2. The primary judge also considered that, having regard to the commercial character of the arrangements, the characterisation of the payments by Kissane as a "loan" might also be thought to imply an obligation to repay with interest, at least from the expiry of the time limited for the loan. However, his Honour concluded that, when read together, cl 11 and cl 12 leave little room for any implication of a contractual obligation on Trinity to pay interest as such. His Honour considered that the arrangements proceeded on the footing that Kissane was to be "repaid" the "funds advanced" by 31 August 2010, with a prospect of a share in profit. 3. The primary judge said that, in the absence of any definition of the words "profit" and "profits" found in cl 12, those words might reasonably be taken to mean a financial calculation in which expenses, including repayment of the loan from Kissane, have been deducted from gross receipts. His Honour considered that that interpretation was reinforced by the distinction drawn in cl 11 and cl 12 between "revenue" and "profits". His Honour did not consider that cl 12 required the existence of any relationship other than that of lender and borrower. His Honour held that, in the events that had happened, cl 12 had no material operation and had no impact on the proper construction of cl 11. Curiously, his Honour did not refer to the definitions of Profits and Net Profit in cl 1 of the May Deed. 4. The primary judge considered that, unless cl 11 operated as a limitation on the implied right of Kissane to have its loan repaid, confirmed by the use of the word "repaid" in cl 11(1), the May Deed must be read as providing for Kissane to be repaid, on or before 31 August 2010, the funds provided to Trinity by way of a loan. His Honour held that cl 11 contemplated that the proceeds from ticket sales would be held on trust by Ticketek until such time as Kissane was "repaid" from those trust moneys. 5. Clause 11(4) contemplated that any additional sales revenue over and above the funds advanced would be paid directly into "the Project Account", rather than the nominated account of Kissane. The primary judge did not consider that cl 11(5) was intended to limit Kissane's recourse to Trinity in the event that sales revenue fell short of the amount of the funds advanced. His Honour concluded that cl 11 and cl 12, read together, embodied an intention that Kissane be repaid at least the whole amount of "the funds advanced" on or before 31 August 2010. If, within that time frame, Kissane received the whole of "the funds advanced", together with any interest accrued on the Ticketek trust account, but there were no profits, then cl 11(5) was intended to operate so as to disentitle Kissane to any other benefit. However, his Honour said, nothing in cl 11 operated to limit Kissane's recourse to Trinity in the event that the revenue from ticket sales was insufficient to repay to Kissane "the funds advanced" within the agreed time frame. 6. The primary judge considered that that construction of cl 11 accorded with an objective reading of the May Deed as a whole. The absence of any general provision for the payment of interest was not remarkable because the parties contemplated that Kissane would be repaid "the funds advanced" no later than 31 August 2010, together with any residual interest that it accrued in the Ticketek trust account, together with a share of any profits that may have been derived from the Project. 7. In the light of those conclusions, the primary judge answered specific questions as follows: 1. Upon the proper construction of the April Deed and the May Deed, Trinity agreed to bear an obligation to repay Kissane at least the same amount as advanced or provided by Kissane to Trinity pursuant to the April Deed and the May Deed, but with credit to the extent of any net monies generated by ticket sales; 2. Clause 26 of the April Deed and the May Deed caused the Guarantors to bear personal liability for any failure by Trinity to pay to Kissane at least the same amount as advanced or provided by Kissane to Trinity pursuant to the April Deed and the May Deed; 3. Kissane advanced a total amount of $5,235,000 to Trinity pursuant to the April Deed and the May Deed; 4. Kissane received repayments totalling $1,705,715.55 pursuant to the April Deed and the May Deed; 5. Kissane is entitled to judgment against each of the Guarantors for an amount equivalent to the difference between the amount advanced of $5,235,000 and the amount of repayments received of $1,705,715.55, namely, the sum of $3,529,284.55 exclusive of interest; 6. Kissane is entitled to pre-judgment interest under s 100 of the Civil Procedure Act 2005 (NSW) from 31 August 2010 up to and including the time of entry of judgment. The Appeal 1. In their notice of appeal, the Guarantors rely on the following grounds: 1. The primary judge erred by proposing the wrong or an irrelevant issue, namely, whether the funds were advanced by Kissane as loans or by way of a capital contribution by a joint venturer; 2. The primary judge erred, having concluded that the funds were advanced as loans, by approaching the issue of construction on the basis that such loans implicitly had to be repayable; 3. The primary judge erred by not providing reasoning for the critical conclusion or finding that the contract proceeded on the footing that Kissane was to be repaid by 31 August 2010; 4. The primary judge erred insofar as any finding that the loans fell due for repayment on 31 August 2010 was based on a construction of the May Deed so as to conform with an implied promise to repay; 5. Alternatively, the primary judge erred insofar as any finding that the loans fell due for repayment on 31 August 2010 was based on a construction of cl 4 and cl 5 of the May Deed; 6. The primary judge erred in construing cl 11(5) of the May Deed as not limiting Kissane's recourse to Trinity in the event that the proceeds of ticket sales and interest paid by Ticketek fell short of the funds advanced by Kissane. 1. The Guarantors contend that his Honour ought to have concluded that, on the proper construction of the May Deed, Trinity did not agree to repay Kissane at least the same amount as advanced or provided pursuant to the May Deed, with credit to the extent of any net moneys generated by ticket sales. They also contend that his Honour ought to have concluded that the provisions of cl 26 of the May Deed did not cause the Guarantors to bear personal liability for any failure by Trinity to pay to Kissane at least the same amount as advanced or provided by Kissane to Trinity pursuant to the May Deed. Grounds 1 and 2 1. There is no substance or merit in the first ground of appeal that the primary judge posed the wrong or an irrelevant issue, namely, whether the funds advanced by Kissane were advanced as loans or by way of capital contribution by a joint venturer. Whether or not the funds were advanced by way of capital contribution by a joint venturer was no more than a basis for explaining the possible commercial rationale for the construction of cl 11(5) contended for by the Guarantors. There can be no doubt that the advances made by Kissane to Trinity were by way of loan, an incident of which was an obligation to repay in full unless there was a provision of the May Deed that had the effect of limiting the obligation of Trinity to repay the advances to the extent that the advances were not repaid from the distribution of the proceeds of ticket sales by Ticketek. 2. The pivotal provision of the May Deed is cl 5, whereby Kissane covenanted with Trinity "to provide funds by way of a loan". The May Deed refers several times to "the funds advanced": in cl 1 in the definition of "Funds" ("the advance to Trinity by Kissane"), in cl 6B, in cl 11(4) and in cl 11(5). Clause 11(1) and cl 16B also speak in terms of the advances being "repaid". Further, cl 27 refers to the agreement of Kissane "to lend the funds" to Trinity. That language, in the absence of a provision having the effect of cl 11(5), as contended for by the Guarantors, would indicate that the parties contemplated that Trinity would have an obligation to repay to Kissane the amount of any monies advanced by way of loan or lent to it. 3. A loan is a temporary transfer of funds by a lender to a borrower. In the absence of a time for repayment, a loan or an amount advanced by way of loan would be repayable on demand. It is the essence of a loan or lending that the recipient becomes subject to an obligation to repay, in that it is an incident of a loan that the borrower incurs an obligation to repay. [3] Such an implied obligation may be deflected by specifying a particular source of repayment and restricting the lender to that source. [4] 4. In the ordinary course, a promise to pay interest in respect of a loan or advance is the consideration for the making of the loan or advance. However, that is not essential to the characterisation of an arrangement as a loan carrying an obligation to repay. The old laws against usury prohibited the charging of interest. Nevertheless, the absence of an obligation to pay interest would not eliminate an obligation to repay a loan or advance once a transfer of funds was properly so characterised. There is no suggestion that Kissane was intending to make a gift to Trinity. The real question, therefore, is whether any provision of the May Deed should be construed so as to limit the extent of Trinity's obligation to repay the loan or advance. That is raised by Ground 6. Ground 6: Construction of cl 11(5) of the May Deed Principles of Construction 1. The parties accepted before the primary judge, and there was no dispute before this Court, that the principle of objectivity operates in relation to the construction of contracts. That is to say, the meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That process requires a consideration of not only the language used by the parties, but also the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. An appreciation of that final element is facilitated by an understanding of the genesis of the transaction, the background, the context and the market in which the parties are operating. [5] 2. The "true rule" is that surrounding circumstances are admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. [6] (The word "admissible" should there be understood as referring to useability, not to the anterior issue of evidentiary admissibility. [7] ) However, whether or not ambiguity exists cannot be evaluated without recourse to those same surrounding circumstances. [8] Such evidence is also admissible to identify the meaning of a descriptive term and to explain the genesis or aim of a transaction. [9] 3. The Guarantors adduced a substantial amount of evidence before the primary judge of pre-contractual negotiations and draft versions of the May Deed. To the extent that prior negotiations have the tendency to establish objective background facts that were known to both parties and the subject matter of the contract, they are of course admissible, [10] since they form part of the "surrounding circumstances" of the contract. However, insofar as they consist of statements and actions of the parties that are reflective of their actual intentions and expectations, they are, for the most part, not admissible, [11] for the obvious reason that their admission for that purpose would contravene the principle of objectivity in contractual construction. 4. Further, although the primary judge did not refer to it, cl 22 of the May Deed is an entire agreement clause, the first paragraph of which reads: This Deed constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Deed. Thus, the parol evidence rule operates to exclude the use of pre-contractual conduct (such as negotiations between the parties and prior drafts of the contract) so as to add to, subtract from or in any manner vary or qualify the May Deed [12] or as a direct aid in construction of the May Deed. [13] 1. As is clear from the above, the purpose for which such evidence is to be used is critical to determining whether or not it is admissible (in the non-evidentiary sense). Evidence of prior negotiations between the parties can sometimes be used for the purpose of establishing aspects of the contract's context, evidence of which is always admissible. [14] For example, evidence of pre-contractual negotiations between the parties might establish their common understanding that certain work was to be done for three eight-hour shifts per day, six days per week. [15] Even prior drafts of a contract have been used for that purpose. [16] 2. One difficulty that arises is that the line between using extrinsic evidence for the purpose of establishing the context within which a bargain was struck, on the one hand, and using it as a direct aid in the construction of a term of a contract arising from such a bargain, on the other hand, can sometimes be blurred. In the present case, for instance, if it be established (by the use of extrinsic evidence) that the "commercial purpose or object to be secured" by the May Deed was the provision of over $5 million with the risk that that money may not be fully repaid, then an understanding of terms such as "the full funds and interest" in cl 11(5) of the May Deed that is influenced by that context may seem to be irresistible. However, such an understanding may, although not necessarily, constitute an impermissible use of extrinsic evidence as a direct aid to construction. 3. The probative value of the evidence adduced by the Guarantors (even to the limited extent that is admissible, of establishing the surrounding circumstances of the May Deed) is slight, as discussed below. Accordingly, it is not necessary to express a concluded view on that issue. General Observations 1. The essence of the Guarantors' contention is that the effect of cl 11(5) is that the obligation of Trinity to repay the amounts advanced by Kissane is to be limited to the net proceeds of ticket sales made by Ticketek. The consequence would be that Trinity would have no obligation to repay the amount of any advances to the extent that the amount had not been repaid from the proceeds of ticket sales, together with interest on those proceeds that accrued whilst the proceeds were held on trust by Ticketek. The Guarantors contend that sub-cll 11(1) to 11(4) set out the mechanism for dealing with the proceeds of ticket sales, whereas cl 11(5) operates to limit the personal obligation of Trinity to the amount of such proceeds, together with interest on the proceeds while held on trust by Ticketek. It is not in dispute that the incident of a loan of money of a general obligation to repay may be deflected by specifying a particular source of repayment and restricting the lender to that source. [17] 2. Kissane, however, submits that the primary judge was correct in construing cl 11(5) in a way that did not limit Trinity's repayment obligation to the net proceeds of ticket sales made by Ticketek. It agrees with the Guarantors that cll 11(1) to 11(4) deal with the immediate and prioritised entitlement of Kissane to moneys derived by ticket sales and held by Ticketek, but says that the reference in cl 11(5) to "the full funds and interest" is not limited to the proceeds from ticket sales dealt with in the previous four sub-clauses. 3. One of the principal difficulties in construing the May Deed emanates from the fact that it contains many drafting anomalies. It is not a document of which the drafter should be particularly proud. Accordingly, it is difficult to place too much store on subtle differences or similarities of language used in the May Deed. 4. The parties sought to support their respective constructions of the May Deed by reference to a number of factors with which I will deal separately below. Factors in the May Deed (a) The Budget and the Scheme of Repayment 1. The scheme of cl 11 and the Budget appear to confuse cash flow with accounting. The Budget itself is difficult to understand, partly because it appears to treat the repayment of the funds advanced by Kissane as an expense rather than as an aspect of cash flow, and partly because it is not immediately apparent how the advances are to be reconciled with the projected expenditure. 2. The Budget predicted a "total net revenue" of $14,625,000, comprising the net proceeds of ticket sales from the three matches in which Everton was competing: $3,075,000, $5,900,000 and $5,650,000 respectively. As I have said above, although there were three columns provided for revenues from sponsorship, merchandise and TV rights, no figures were inserted into those columns. Instead, dashes were inserted. The cash flow figures for "Expenditure" for each of April, May, June and July 2010 were projected to be $2,026,333, $2,549,584, $557,834 and $9,735,313 respectively. The "total expenditure" (exclusive of GST) was to be $14,050,305, leaving $5,734,695 as "net proceeds". 3. When the terms of cl 5 of the May Deed, dealing with the making of the advances by Kissane, and the Budget are read together, it is possible, to some extent, to reconcile the advances with the expenditure. Thus, in April, there was to be an advance of $2,500,000 and expenditure of $2,026,333. In May, there was to be a further advance of $2,100,000 and expenditure of $2,549,584. In June, there was to be a final advance of $560,000 and expenditure of $557,834. The Budget showed "principal repayment" of $5,160,000 in July 2010, referring to repayment of the advance by Kissane. Given the $14,625,000 as the total net revenue from ticket sales, that would have left the sum of $5,734,695 to be distributed to Trinity and Kissane. Of course, that could only occur if the ticket sales eventuated as projected. 4. Significantly, the Budget is drafted on the basis that the profit share will only take place once Kissane's loan has been fully repaid. That may be seen to clash with the terms (at least on the Guarantors' construction) of cl 11(5). On the other hand, both the tenor of the language of cl 11 and the figures in the Budget suggest that the parties did not contemplate that the net proceeds from ticket sales would fall short of the amount advanced by Kissane. 5. The Guarantors contend that the effect of sub-cll 11(1) to 11(4) is to create a priority of sorts for the repayment of the advances to be made by Kissane. That is to say, successive distributions by Ticketek were to be applied in repaying the advances rather than in the satisfaction of expenses that might not yet have been paid. In particular, expenses such as the fees payable to the Guarantors and to Felicity, if they had not been paid by use of the funds advanced by Kissane, would not be paid unless the amount of proceeds from ticket sales exceeded the amount of the advances. Thus, the advances were to be repaid before any entitlement to share in profits arose. 6. In other words, the Guarantors say, the scheme of cl 11(1) to cl 11(4) is that the advances made by Kissane for the purpose of the Project would be repaid from the distribution of the proceeds of ticket sales as follows: * The proceeds from ticket sales for a particular match would be held on trust by Ticketek until that match had concluded, at which time Ticketek would distribute the proceeds after deducting its fees (cl 11(2)); * Any interest that accrued on the proceeds while they were held on trust by Ticketek would be for the sole benefit of Kissane (cl 11(3)); * The proceeds distributed by Ticketek, together with any interest accrued on such proceeds, would be paid directly to Kissane's nominated account (defined as an account to be advised by Kissane to Trinity), up to the total of the amounts advanced by Kissane to Trinity (cl 11(4)); * The excess of the proceeds and accrued interest over the total of the amounts advanced, if any, would be paid to the Project Account (cl 11(4)). 1. The process just outlined would result in the repayment of the total of the amounts advanced by Kissane only if the proceeds from the sale of tickets exceeded the amount of the advances. However, in the events that occurred, the total proceeds from ticket sales and interest paid into Kissane's nominated account were less than the total of the amounts advanced by Kissane. The Guarantors say that, in those circumstances, cl 11(5) came into play. They say that the effect of cl 11(5) was as follows: * The receipt by Kissane of the proceeds from ticket sales for each match together with interest accrued on those proceeds, distributed by Ticketek in the manner described above, would constitute full and final satisfaction of any liability of Trinity to repay to Kissane the amount of the advances made by Kissane; * Kissane would not make any claim, raise any objection or bring any action or suit in relation to the repayment of the advances made by it to Trinity; * The right of Kissane to share in any profits from the Project under cl 12 would be preserved. 1. In relation to the final point, it is significant (and the Guarantors accept) that, on the terms of the May Deed, the Project could still yield profits pursuant to cl 12 even if the funds advanced by Kissane were not fully repaid. That is because the term "Revenue" is defined as including not only revenue received from ticket sales but also from sponsorship, merchandising, TV rights, interest and any other revenue received by Trinity in relation to the Tour. That is so even though the Budget predicted no revenues from sponsorship, merchandise or TV rights. That apparent inconsistency in the Budget may be explained by a deliberately conservative budgeting approach taken by the parties. In any event, Kissane points to this factor as tending against the construction contended for by the Guarantors, because it would have the effect that Trinity could have begun to share in the profits of the Project prior to and irrespective of whether Kissane had recouped its loan moneys. That, it says, would be an unusual and uncommercial result. 2. The contemplation by the parties that there would be revenues other than those deriving from ticket sales is supported further, in Kissane's submission, by the terms of the Tour Agreement. Clause C(c) provides that Everton would be entitled to a 25 per cent share of all net merchandising, sponsorship, advertising and broadcast income received by Trinity, in excess of $1,700,000. Further, cl F provides for intellectual property rights to be licensed by Everton to Trinity for the purpose of promoting the Tour, and that such licence would terminate on 31 August 2010 (being the termination date of the May Deed), save for a "run-off period" of six months. That suggests that the parties contemplated that revenue other than that from ticket sales might have been received not only during the time of the Everton matches, but also in the months thereafter. (b) The Term "Funds" or "funds" and the Construction of cl 11(5) 1. As will be seen, the drafting of cl 11 in particular does not exhibit a great degree of precision of thought. There is inconsistency in the use of words, both defined and not defined. Significantly, the word "funds" and the word "Funds" appear to be used somewhat loosely. Thus, "funds" appears in cl 11(1) and cl 11(3), twice in cl 11(4), and twice in cl 11(5). In addition, the word "Funds" also appears in cl 11(5). 2. As indicated above, the term "Funds" is defined in cl 1 as meaning "the advance to Trinity by Kissane as identified in Item 1 of Schedule 1". Thus, it is clear that the reference to "the Funds" at the end of cl 11(5) is intended to be a reference to the advances made by Kissane to Trinity. It is also clear that the reference to "the funds" in cl 11(1) is also intended to be a reference to the advances made by Kissane to Trinity, notwithstanding the use of the lower case. Consistent usage would have led the drafter to use the defined term "Funds", rather than "funds advanced by Kissane" in cl 11(4) and "funds advanced" in cl 11(5), but it is clear enough that those phrases mean "Funds" as defined. 3. On the other hand, the use of "funds" in cl 11(3) is clearly intended to refer to "the proceeds from ticket sales" referred to in cl 11(2), since those "funds" are the only moneys that will be held on trust by Ticketek. Similarly, the phrase "the funds and accrued interest" in cl 11(4) is clearly intended to refer to "the proceeds from ticket sales" referred to in cl 11(2), together with "the interest, if any, that accrues on the funds" referred to in cl 11(3). 4. Thus, the drafter has used "funds" in lower case to refer to proceeds from ticket sales except in cl 11(1), the second usage in cl 11(4) and the second usage in cl 11(5). However, the second usage in cl 11(4) is qualified by "advanced by Kissane" and the second usage in cl 11(5) is qualified by "advanced". That is to say, the drafter used the phrases "the funds advanced by Kissane" and "the funds advanced", rather than use the defined term "the Funds". Therefore, it is only the use of "the funds" in cl 11(1) in lower case that is truly anomalous. 5. Against that usage, the critical question is the meaning of "the full funds and interest" when used in cl 11(5). For convenience, I repeat the terms of cl 11(5): Kissane agrees and warrants that on receipt of the full funds and interest that the payment and manner in which it is paid will be in full and final satisfaction of the funds advanced and, subject to any other provision of this Deed, in particular clause 12 Kissane shall make no claim, raise objection or bring an action or suit in any Court of competent jurisdiction in relation to the Funds. The syntax of cl 11(5) is garbled. It appears that the second "that" is surplus. The question is whether the phrase "the full funds and interest" in cl 11(5) refers to the proceeds from ticket sales and interest accrued on those proceeds while on trust with Ticketek or whether it refers to the advances made by Kissane, together with any interest that might have accrued on those advances. Five textual factors provide guidance in considering that question. 1. First, there is the phrase "full and final satisfaction of the funds advanced" and the subsequent limitation on the commencement of court proceedings. The Guarantors place particular emphasis on that phrase as supporting its construction on the basis that Kissane's construction would leave that phrase otiose. That is to say, if the words "the full funds and interest" refer to the funds originally advanced by Kissane, then it would be commercially nonsensical for the clause to provide that the receipt of those funds would be "in full and final satisfaction" of the very same funds. Such a construction, the Guarantors contend, would give no operation to the words "full and final satisfaction", which constitute a legal term of art. 2. Kissane, on the other hand, submits that the Guarantors' argument ignores the import of the words "and [the] manner in which it is paid". Those words have particular importance in the context of the May Deed because a significant source (if not the only source, depending on which party's construction is accepted) of the fulfilment of Trinity's repayment obligation was to be funds held by a third party, namely Ticketek. The relevance of the above phrase is thus to confirm (for the benefit of Trinity) that payments received by Ticketek would be credited against Trinity's repayment obligation. 3. Second, the Guarantors submit that the phrase "the full funds and interest" in cl 11(5), which is very similar to and follows sequentially after the phrase "the funds and accrued interest" in cl 11(4), should be understood as conveying the same meaning as that other phrase, being the revenue from ticket sales. They distinguish the first phrase from "the funds advanced" later in cl 11(5). Kissane counters that that submission relies on the assumption that the only potential source of revenue was the proceeds of ticket sales, and for the reasons given above, that assumption is incorrect. In circumstances where other forms of revenue were contemplated, Kissane says, the Guarantors' construction is commercially nonsensical. 4. Third, Kissane supports its contention that "the full funds and interest" in cl 11(5) refers to the advances made by it to Trinity by pointing to cl 6B of the May Deed, which contemplates that, in the event that the pre-condition in cl 6A that the Tour Agreement has been executed by Everton is not satisfied, "the funds advanced by Kissane" are to be returned "in full", together with any accrued interest. Thus, Kissane says, the failure to use "the full Funds" in upper case in the first line of cl 11(5) is not as significant as the use of "full" in that context, as well as in cl 6B. The Guarantors respond by saying that cl 6B deals with the distinct situation in which Kissane's advances stay intact and are not applied for the purposes of the Project at all. For the word "interest" in cl 11(5) to pick up the interest referred to in cl 6B would presuppose that the interest on Kissane's advance would be quarantined for the duration of the Project and would then be available at its completion. 5. Fourth, Kissane points to cl 16B as supporting its construction of cl 11(5). Under cl 16B, on termination of the May Deed "for any reason", Trinity must immediately pay to Kissane "all Funds advanced pursuant to cl 5". The use of "Funds" (in upper case) rendered the qualification "advanced pursuant to cl 5" otiose, another instance of inconsistency in usage in the May Deed. However, the significance, Kissane says, is that termination of the May Deed "for any reason" would include the May Deed coming to an end by the effluxion of time as contemplated by cl 4 on 31 August 2010. Kissane says that cl 11(5) should be construed in the light of that provision. 6. The primary judge considered that cl 16 was, "at best, an uncertain guide to the proper construction of cl 11", [18] and that since it speaks only to a situation in which there has been an "event of default" (which was not the case here), it could not assist in the question of construction raised. For that reason, and in the absence of a notice of contention, the Guarantors declined to address that matter. 7. Fifth, there is the inclusion of the word "interest" in the phrase "the full funds and interest", which the Guarantors point to as supporting their construction. The Guarantors emphasise that, while interest on ticket sale revenue was of course contemplated by cl 11(3), the May Deed does not say anything about interest applicable to the advances. It is true that interest on the advances is not explicitly provided for elsewhere in the May Deed, except in cl 6B covering the situation in which the Tour Agreement has not been executed by Everton. (In cl 16B(i), which provides for the repayment of "all Funds advanced" in the event of termination, no mention is made of interest. However, an entitlement to interest would arguably form part of the "accrued rights and liabilities" of Kissane under cl 16B(ii).) For that reason, the fact that the critical phrase in cl 11(5) incorporates a reference to "interest" is not of itself determinative of the question whether the phrase refers to Kissane's advances or to the proceeds from ticket sales. (c) Drafting History of cl 11(5) 1. As I have said above, the drafting history of the May Deed can only be taken into account for the limited purpose of establishing the objective surrounding circumstances of the deed, such as the genesis of the transaction, the common intention of the parties and their commercial goal. However, even to that limited extent, the drafting history of the May Deed provides little assistance to the resolution of the construction issue. Amendments were made to cl 11(5) at a late stage in the negotiation process. Specifically, the words "and interest" were inserted in the first line, the words "in particular clause 12" were inserted in the third line and the word "Funds" was substituted for "funds" in the last line. 2. The addition of the words "and interest" could be explained by the drafter realising that cl 11(4) required not only the funds consisting of the proceeds of the sale of tickets, but also accrued interest on those funds, being paid directly to Kissane's nominated account. As indicated above, there are only very limited circumstances in which any other interest would be payable, namely, where the pre-conditions to drawdown are not satisfied and the funds advanced are to be returned, together with any "accrued interest" under cl 6B. 3. The Guarantors contend that the belated capitalisation of "Funds" in the last line of cl 11(5), without an equivalent capitalisation of "funds" in the first line, demonstrates that the parties contemplated a distinction between the concepts conveyed by those two terms. That is to say, the word "funds" in the first line could not have referred to the funds originally advanced by Kissane. 4. The change from the lower case to upper case for the word "Funds" in the last line of cl 11(5) appears to constitute a belated, though still only partial, recognition on the part of the drafter of inconsistency of usage of that word throughout cl 11 in particular. As I have said above, consistency would have required capitalisation for the word "funds" in the second line of cl 11(5) and in the second line of cl 11(4) and the first line of cl 11(1). However, in the first two cases, it is clear by the addition of the word "advanced" that "the funds" is a reference to the defined term of Funds. It is also clear from the context in cl 11(1) that the reference to "the funds" is intended to be a reference to "Funds" as defined. 5. The addition of the phrase "in particular clause 12" is anomalous. It is difficult to understand what the drafter had in mind. Without that addition, the phrase "subject to any other provision of this Deed" would make perfect sense in the context of cl 6B and cl 16B. That is to say, the drafter would have been contemplating that payment of the full funds and interest in the manner provided in cl 11(4) would be full and final satisfaction of the funds advanced by Kissane, except in circumstances where the whole of the funds advanced were to be "returned" or Trinity was to "pay" the funds advanced immediately. Apart from those two specific circumstances, cl 11(5) would make sense as a limitation on the obligation of Trinity to repay the funds advanced that fell short of the proceeds of ticket sales and accrued interest on those proceeds. It is the addition of the words "in particular clause 12" that creates puzzling inconsistency. 6. The above analysis could not fairly be described as establishing an aspect of the "context" of, or the "commercial purpose or objects to be secured" by, the May Deed, and for that reason, I have not taken it into account in coming to the conclusion that I have reached below as to the proper construction of cl 11(5). In any event, as is also clear, any inference to be drawn from these last-minute drafting changes to the May Deed is at best uncertain. (d) Commercial Purpose of the Contract 1. Kissane also points to further evidence adduced on behalf of the Guarantors in support of its contention that the construction for which it contends makes commercial sense, although it does not accept that the evidence in question was admissible. It says that, in any event, the evidence is too general and too removed from the May Deed to perform any significant role in construction. [19] The evidence concerned the parties who are normally involved in a venture such as the Project is. 2. The evidence was to the effect that, in the arrangement of major shows and events (such as the Tour), there are usually three principal parties involved. First, the originator is the party who makes contact with the relevant performer or performer's agent and obtains a form of commitment on behalf of the performer to participate in the tour. Second, the investor is the party whom the originator finds to finance the proposed tour and, in return for bearing the financial risk of loss, takes a share of profit over and above the return of funds invested (which profit is shared between the investor and the originator). Third, the producer or promoter is the party who, for a fixed fee, payable regardless of the success or otherwise of the tour, agrees to take care of all the logistical aspects of the tour such as securing venues, ticket distributors, accommodation, transport, advertising and promotion. Sometimes the originator is also the producer or promoter, such that their roles are not always separate. The evidence suggested that the risk of an unprofitable tour is invariably borne by the investor and the originator, in exchange for which they share the profits. 3. Kissane submits that, contrary to Mr Righi's assertion that he was not an originator of the Project and thus did not bear the risk of any losses that might arise from an unprofitable tour, he was in substance an originator, because he acquired a one-third ownership interest in Trinity. In that commercial context, Kissane says, it makes sense that Trinity would have an obligation, supported by the guarantees provided for in the May Deed, to pay back Kissane's full advance come what may. 4. It is difficult to see where that evidence leads. Clearly, Kissane was an investor in the sense that it provided finance for the Tour. It is by no means clear whether Trinity was an originator or a producer or promoter, in the light of the terms of the May Deed. The terms of the Tour Agreement (in particular, the recital that Trinity had invited Everton to send a football team to Australia) rather suggest that Trinity was an originator. The evidence does not provide assistance in understanding the import of cl 11. 5. There is, however, another aspect of the evidence that does assist in establishing the commercial purpose of the contract, which is the contemplation of substantial profits for Kissane. The Budget predicts that, with the 60-40 split of profits in favour of Trinity (and on the corrected figures as discussed above at [14]), Kissane stood to make $229,878. In addition, there would be a "fee" for Kissane of $275,000 (including GST). It would seem to be a particularly uncommercial arrangement in pursuance of which a party, who advances around $5 million for some four months, is promised not only full repayment of that advance but also a fixed fee of $275,000 and the potential for over $200,000 in profits, without taking on any significant financial risk (having regard to the charge and the guarantee). Indeed, if the parties accepted the figures in the Budget at face value (projecting some $2,293,878 in profits to Kissane), notwithstanding that there could not have been that amount available for distribution on the forecasts contained in the Budget, then that would only underline the uncommercial nature of such an arrangement. (e) Existence of the Charge and the Guarantee 1. Kissane also points to the provision of the May Deed requiring Trinity to give a charge to secure its obligations to Kissane. It says that the commercial purpose of the charge would be more apparent if understood in the context of Trinity's having an obligation to repay to Kissane all of the advances made by way of loan. The same observation, of course, can be made in relation to the guarantee itself. Kissane asserts that, if cl 11(5) is to be construed as the Guarantors contend, there would be no work for the guarantee or the charge to do. 2. However, Kissane's contentions ignore the fact that, for the Project to be successful, Kissane was dependent upon Trinity's making a success of the Project. That included a warranty in cl 14 that Everton Football Club had agreed in principle to the Tour Agreement. There may well have been implied obligations on Trinity to perform its obligations under the Tour Agreement to enable the Project to be undertaken and completed. There was clearly work for the charge and the guarantee by the Guarantors to do beyond securing repayment of the advances made by way of loan by Kissane to Trinity. Conclusion as to Ground 6 1. There is no evidence that Trinity provided any funds for the Project. That suggests that the parties were to contribute different elements necessary for the success of the Project. Trinity was to provide the opportunity and expertise and management. Kissane, on the other hand, was to provide the funding, by way of a loan. In return, Trinity was to receive 60 per cent of the "profits" and Kissane was to receive 40 per cent of the "profits", which must be understood as being "Profits", as defined, notwithstanding the use of the lower case in cl 12. 2. The Budget may suggest that the advances to be made by Kissane were to be paid only out of the "Revenue". If the advances were to be repaid in any event, they would not be treated as expenditure. That is to say, repayment of loans would not be treated as an expense. It would be relevant to the cash flow, but not relevant to the calculation of a profit. 3. The fact that the May Deed provides that Kissane is to receive a share of "profits" without any provision for the payment of interest on any "loan" is an indication that the consideration for the "loan" was a share in profit, rather than interest. The fact that the Budget contemplates (on its face) that the return to Kissane would be some $2,293,878 for a loan of $5,160,000 for some four months indicates that the consideration for the "loan" was to compensate for a significant risk, indicating that Kissane was to share in the risk of the Project being unsuccessful and was to be compensated for the risk of losing part of the funds to be advanced. Although that projected profit to Kissane could not in fact have been accurate on the forecasts contained in the Budget, [20] even a potential profit of $229,878 is consistent with the conclusion just stated. The description of the May Deed as a "Profit Share Deed" in the charge is also consistent with there being no intention to repay the amount of the advances except from the Revenue. 4. Clearly enough the use of the phrase "the funds and accrued interest" in cl 11(4) refers to the proceeds of ticket sales. That use suggests that the phrase "the full funds and interest" in cl 11(5) refers to the same thing. The use of "full" can be explained by the fact that the proceeds from ticket sales were to be distributed in several tranches after each match. Thus, it is only the receipt of the proceeds of sale and accrued interest from all of the matches that is to constitute "full and final satisfaction of the funds advanced". The use of "the funds advanced" in the middle of cl 11(5) is to be contrasted with "the full funds and interest" in the first line of cl 11(5). It would be otiose for the parties to agree that receipt of the full funds advanced would be full and final satisfaction of the funds advanced. The significance that Kissane seeks to attach to the phrase "the manner in which it is paid" is, even in the circumstances of the May Deed in which a third party (Ticketek) is handling the proceeds of ticket sales, slight. 5. The only real anomaly arising from the construction of cl 11(5) contended for by the Guarantors is the reference in that provision to cl 12. While the Budget provided for revenue of different categories, it appears that the amount of the net proceeds for distribution was to be arrived at after taking into account the whole of the "principal repayment". On the assumption that the parties had in their contemplation that there may be sources of revenue beyond the proceeds of ticket sales, it would be anomalous for them to have provided that the obligation of Trinity was limited to the proceeds of ticket sales in circumstances where other revenue was generated by the Project. It would be difficult to see any commercial rationale for Kissane agreeing to limit Trinity's obligation to repay the advances in circumstances where further revenue would be brought to account in determining the profits to be shared under cl 12. 6. But for the reference to cl 12 in cl 11(5), there would be no basis for construing cl 11(5) as contended for by Kissane. All other aspects of the May Deed tend to point to a limitation on the entitlement of Kissane to recover repayment of the loans to be advanced. The anomaly may be explicable by the general sloppiness of the drafting of the May Deed. The drafter simply did not think through the consequences of the reference to cl 12 in circumstances where there might be revenue apart from proceeds of ticket sales. That may have been because, as the Budget suggests, the parties did not actually expect any such revenue. The references in the Budget may have been because a pro forma budget was used without deleting irrelevant material, although there was no evidence as to that matter one way or the other. 7. On balance, I consider that the preferable construction of cl 11(5) is the construction contended for by the Guarantors. That is to say, Trinity had no residual obligation to repay to Kissane the amount of any of the advances made by Kissane for the purpose of the Project beyond the amount distributed by Ticketek from the proceeds of ticket sales and interest on those proceeds. It follows that the primary judge erred and the appeal should be allowed. Grounds 3, 4 and 5 1. The question of liability for interest does not arise, since the Guarantors have been successful in their principal contention that Trinity had no obligation to repay to Kissane the amount of any shortfall. However, I shall say something about that matter. 2. The agreement in cl 12 to distribute profits partly to Trinity and partly to Kissane can be understood as the consideration for the advance by Kissane to Trinity. No contractual interest was payable. However, interest up to judgment could be included in any judgment from the time of default in payment of any balance of the advances that became repayable. 3. It is difficult to avoid the conclusion that, if there were an obligation to repay the advances to the extent that they had not been repaid as contemplated by cl 11, then, to the extent that there was a shortfall, the shortfall was repayable on demand, once it was crystallised. Once the Tour was complete, it would be possible to determine the extent of the shortfall. The shortfall would be repayable once it was determined. The May Deed provides for a termination date of 31 August 2010. That should be understood as an acceptance by the parties that they expected any shortfall to be determined by that time, such that the balance would be repayable no later than 31 August 2010 and interest would appropriately run from that date. Conclusion 1. For the reasons indicated above, the appeal should be allowed. The orders made by the primary judge should be set aside. In lieu thereof, there should be orders that there be judgment for Trinity and the Guarantors and that Kissane pay the Guarantors' costs in the Equity Division. Kissane should pay the Guarantors' costs of the appeal. 2. GLEESON JA: I agree with Emmett JA. ********** Appendix (1.88 MB, pdf) Endnotes 1. Kissane Family Pty Ltd as Trustee for the Kissane Family Trust v Burns [2015] NSWSC 423. 2. See reference to cl 14 of the May Deed below at [11]. 3. See, eg, NZI Capital Corporation Pty Ltd v Child (1991) 23 NSWLR 481 at 489. 4. Ibid. 5. Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 at [35]. 6. Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337 at 352. 7. See Robert McDougall, "Construction of Contracts: The High Court's Approach" (Paper delivered at the Commercial Law Association Judges' Series, 26 June 2015) at [14]; see also Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [258]-[261]. 8. See, eg, Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184 at [71] and [78]; see generally at [73]-[85]. 9. See Codelfa Construction v State Rail Authority at 351. 10. Codelfa Construction v State Rail Authority at 352. 11. Ibid. 12. Goss v Lord Nugent (1833) 5 B & Ad 58 at 64-5; 110 ER 713 at 716; Codelfa Construction v State Rail Authority at 347. 13. Codelfa Construction v State Rail Authority at 347. See also JW Carter, The Construction of Commercial Contracts (Hart Publishing, 2013) at [8-23]. 14. See, eg, Electricity Generation Corporation v Woodside Energy at [35]; see also Franklins v Metcash Trading at [14], [49], [239]-[305]; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [1]. 15. See Codelfa Constructions v State Rail Authority at 354. See also Oceanbulk Shipping and Trading SA v TMT Asia Ltd [2011] 1 AC 662 at [40]. 16. Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 240 CLR 45. But see the criticism of this aspect of the judgment in Carter, The Construction of Commercial Contracts at [7-27]. 17. NZI Capital Corporation v Child at 489. 18. [2015] NSWSC 423 at [51]. 19. Citing Mainteck v Stein at [128]. 20. See [14] above. Amendments 19 August 2015 - [10] Amend "Appendix 1" to "the Appendix" [49] Replace comma at end of final sentence with a full stop 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: 19 August 2015