Supreme Court New South Wales Medium Neutral Citation: Western Australian Rugby Union v Australian Rugby Union Ltd [2017] NSWSC 1174 Hearing dates: 23 August 2017 Decision date: 05 September 2017 Jurisdiction: Equity - Commercial Arbitration List Before: Hammerschlag J Decision: Appeal dismissed Catchwords: COMMERCIAL ARBITRATION - Commercial Arbitration Act 2010 (NSW) s 34A - CONTRACT - contractual construction - appeal from arbitrator's award declaring the proper construction of the provisions of an Alliance Agreement - HELD: arbitrator's award not wrong - appeal dismissed Legislation Cited: Commercial Arbitration Act 2010 (NSW) Cases Cited: Pukallus v Cameron (1982) 180 CLR 447 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd [2016] NSWCA 297 Bowes v Chaleyer (1923) 32 CLR 159 Bowes v Shand (1877) 2 App Cas Texts Cited: Oxford English Dictionary (3rd Ed) 2009 Macquarie Dictionary (7th Ed) 2017 Category: Principal judgment Parties: Western Australian Rugby Union - Plaintiff Australian Rugby Union Ltd - Defendant Representation: Counsel: C.R.C. Newlinds SC with V. Whittaker - Plaintifff J.T. Gleeson SC with A.J. Papamatheos - Defendant Solicitors: McCullough Robertson - Plaintiff Clayton Utz - Defendant File Number(s): 2017/246761 Judgment what this case is about 1. HIS HONOUR: This is an appeal, brought pursuant to leave granted by the Court under s 34A(1) of the Commercial Arbitration Act 2010 (NSW), on a question of law arising out of an arbitral award (the award) made by Mr B.A. Coles QC (the arbitrator) on 11 August 2017. 2. The only issue before the arbitrator was whether, on its proper construction, the Alliance Agreement dated 26 August 2016 (the Alliance Agreement) between the Western Australian Rugby Union (WARU) and the Australian Rugby Union (ARU) came to an end when, in July 2017, the last of the SANZAR Broadcast Agreements was renegotiated. 3. Clause 1.1 of the Alliance Agreement contains the following definition of Term: Term means the period commencing on the Commencement Date and ending on the expiry date of the last of the SANZAR Broadcast Agreements (being 31 December 2020) or, subject to clause 2.4, if the last of the SANZAR Broadcast Agreements is terminated or renegotiated earlier as a result of the renegotiation of the commercial terms of a broadcast arrangement, such earlier date. 1. SANZAR is a joint venture between the national rugby unions of South Africa, New Zealand, Australia and Argentina. The joint venture operates the Rugby Championship, which is a competition between the national teams of those countries, and also the Super Rugby competition, which is a competition between professional unions or franchises from those countries, whose participation in the competition is licensed by their respective national rugby unions. 2. There were 18 licensed provincial unions or franchises with teams in the 2016 and 2017 Super Rugby competition, 5 of them from Australia, including WARU, whose team is known as the Western Force (the Force). 3. In late 2015, WARU was, by all accounts, under some financial strain. This led to the entry into of an Asset Sale Agreement dated 2 June 2016, under which ARU bought the Force team or franchise (described as WARU's Professional Rugby Assets) from WARU. ARU and WARU then entered into the Alliance Agreement under which ARU would operate, fund and maintain the Force for the Term as defined. The Alliance Agreement made provision for WARU to buy back the Force in the future if particular (and somewhat stringent) conditions were met. 4. Arrangements between SANZAR and broadcast networks are an essential source of revenue. The SANZAR Broadcast Agreements referred to in the definition of Term are a series of agreements with broadcast networks across the world. In simple terms, SANZAR gives those networks the right to broadcast games in return for significant amounts of money. When the Alliance Agreement was entered into, most (if not all) of the SANZAR Broadcast Agreements had the expiry date of 31 December 2020. These agreements identify the matches for which broadcast rights are given. At that time, they provided that there would be 135 Super Rugby matches each season involving no fewer than 18 teams being at least 5 teams from Australia, at least 6 from South Africa, at least 5 from New Zealand and at least 1 from Argentina. 5. In late 2016 to early 2017, SANZAR apparently came to the conclusion that it needed to reduce the Super Rugby competition from 18 teams to 15. This meant cutting at least one team from Australia. This propelled the members of SANZAR (including ARU) to renegotiate the SANZAR Broadcast Agreements to change the Super Rugby competition broadcast arrangements in the following way: instead of no fewer than 18 teams, there would be no fewer than 15 teams, being at least 4 from Australia, at least 4 from South Africa and at least 1 from each of Argentina and Japan. Each of the SANZAR Broadcast Agreements was modified accordingly, and this process was completed by 19 July 2017. The period of the SANZAR Broadcast Agreements remains unchanged. They will still expire on 31 December 2020. 6. It is (and it was in the arbitration) common ground that the last (indeed all) of the SANZAR Broadcast Agreements have been renegotiated as a result of the renegotiation of the commercial terms of a broadcast arrangement. 7. Upon the last of the SANZAR Broadcast Agreements being renegotiated in the way I have described, ARU took the position that the Alliance Agreement had come to an end because "the last of the SANZAR Broadcast Agreements…" had been "renegotiated earlier as the result of the renegotiation of the commercial terms of a broadcast arrangement". It argues that where the definition of Term refers to the renegotiation earlier of the last of the SANZAR Broadcast Agreements, this means the renegotiation of any of the commercial terms of that agreement, including, as occurred here, the reconfiguration of the broadcast rights essentially to apply to a 15 rather than an 18 team Super Rugby competition. 8. WARU disputes that the Term of the Alliance Agreement has expired. It argues that where the definition of Term refers to the last of the SANZAR Broadcast Agreements being "renegotiated earlier", and to the Term ending on "such earlier date", this means a renegotiation which has the effect that the last of the SANZAR Broadcast Agreements expires on an earlier date than 31 December 2020. It argues that a renegotiation which leaves the period of the last of the SANZAR Broadcast Agreements unaffected, as occurred here, is not a renegotiation within the meaning of the provision. 9. If ARU is correct, it can, with impunity, cut the Force from the Super Rugby competition because it now unconditionally owns the Force free of the impediment of the Alliance Agreement. 10. It is apt to emphasise that WARU's case before the arbitrator was narrow. The only issue was the objective one of whether the definition of Term in the Alliance Agreement is to be read as operating as ARU says, or as WARU says. This is a matter purely of contractual construction, a matter of law. 11. WARU's principal contention before the arbitrator was that where the definition referred to "renegotiated earlier", this meant renegotiated to end earlier. One can readily see the difficulty with this contention. It requires the words "to end" to be read in to the definition. 12. WARU put no contention that made relevant to the operation (or termination) of the Alliance Agreement, ARU's purpose or motive in renegotiating (or participating in the renegotiation of) the SANZAR Broadcast Agreements which ARU says brought the Alliance Agreement to an end. It put no contention that ARU's purpose was to cut the Force and that where the Alliance Agreement makes reference to earlier renegotiation, this did not cover renegotiation contrived for the purpose of bringing the Alliance Agreement to an end, to achieve that result. 13. WARU put no contention that, on their proper construction, the words "renegotiation of commercial terms" mean renegotiating the terms upon which Super Rugby matches in which the Force plays will be broadcast, and not changes to which ARU has agreed which result in the exclusion entirely of the Force from Super Rugby with the consequence that there will be no broadcast of its matches at all. 14. To the contrary, in the arbitration, WARU agreed that the change to the SANZAR Broadcast Agreements was the result of renegotiation of the commercial terms of a broadcast arrangement within the meaning of the definition of Term in the Alliance Agreement. 15. In the arbitration, WARU made no claim for rectification of the Alliance Agreement. [1] 16. The arbitrator upheld ARU's construction. He rejected WARU's contention that "renegotiated earlier" actually means "renegotiated to end earlier". He held that the words "such earlier date", where they appear in the definition of Term, refer to the time when the earlier renegotiation of the last of the SANZAR Broadcast Agreements happened. That happened by 20 July 2017. Accordingly, the arbitrator declared that the Alliance Agreement had ceased to be in effect and terminated by no later than 20 July 2017 when the last of the SANZAR Broadcast Agreements was renegotiated. 17. The arbitrator found that the reference in the definition of Term to the last of the SANZAR Broadcast Agreements being renegotiated did not confine the subject matter of the renegotiation to any particular topic. He thought it difficult to discern why the parties should be taken to have understood their agreement as subject to any further limitations on the provision which might bring it to an end beyond those for which they had explicitly provided. He was not able to identify anything sufficiently compelling in the totality of the provisions of the Alliance Agreement to require the reference to renegotiated earlier to be read as renegotiated to end earlier. He considered that the relative generality of the expression "renegotiated" seemed simply to reflect the very large degree of uncertainty prevailing in the market and the impossibility of being able to predict with any precision or particularity what might be the possible course of renegotiation of the commercial terms of any broadcast arrangement or what might be the ultimate outcome of the renegotiation process. From this he concluded that the parties formulated their description of the Term in language of inevitable generality and that they had no basis or reason for limiting that generality. He considered that the provisions of cl 2.4 represent what the parties saw as the appropriate way of endeavouring to manage issues of importance to them which could arise if as a result of renegotiation of the SANZAR Broadcast Agreements, the Alliance Agreement came to an end. He did not think that the text and language of the Alliance Agreement, read as a whole, supported WARU's construction. 18. At para 87 of his award, the arbitrator stated: In addition, as noted above, there was adduced a very considerable volume of evidence of matters external to the contract. This material has been of great assistance in understanding the rationale and commercial purpose objectively intended to be secured by the Alliance Agreement. However, that evidence, taken altogether, has not produced any credible basis for confining, modifying or restricting the parties' contractual language or the effect which objectively it was intended to accomplish in a way that could supply the support which WARU needs in order to make good its preferred construction. 1. The evidence of matters external to the contract was set out by the arbitrator in paras 14 – 35 of the award. None of it was apparently contentious. By way of example, it included that prior to mid-2016, the memberships, viewing audience and attendance at games were declining significantly in large measure due to an uneven standard of rugby as between the teams, some of whom were not sufficiently competitive to sustain viewer interest in the overall competition, and that consultants reporting in July 2016 did however note that attendance had been slightly up in that year. more about the alliance agreement 1. The Alliance Agreement commences with a section headed "Background" which records, amongst others, that the parties had entered into the Asset Sale Agreement under which WARU would sell, and ARU would purchase, WARU's "Professional Rugby Assets". It records that ARU will be responsible for all aspects of managing Professional Rugby within Western Australia, and WARU will be responsible for administering and developing Community Rugby. It records that the parties entered into the Asset Sale Agreement to set a framework in which they can both work co-operatively in an alliance to grow and develop the game of rugby in Western Australia, in alignment with Australian Rugby's strategic plan, and to provide a strong pathway from the grassroots to the professional game, in a model that is financially sustainable. 2. Clause 2 is headed "Alliance". Clause 2.1 provides, amongst others, that with effect from the Commencement Date, and for the Term, the parties will co-operatively work in an alliance to grow and develop rugby in Western Australia, provide a strong pathway from the grassroots to the professional game, in a model that is financially sustainable and continually review rugby operations to explore options. 3. Clause 1.1 contains the following relevant definitions: Broadcasting and Commercial Rights means the Super Rugby Competition commercial, audio and audio visual rights including advertising rights, access and broadcasting rights, data rights, non broadcast technology rights, sponsorship rights, Super Rugby Competition online and digital platform rights and the right to appoint suppliers and licensors in relation to the Super Rugby Competition. Commencement Date means the date upon which completion occurs under the Asset Sale Agreement. SANZAR Broadcast Agreements means any contract, arrangement or understanding entered into in respect of Broadcasting and Commercial Rights during the term or for any part of the Term. 1. Clauses 2.2, 2.3 and 2.4 provide: 2.2 This Agreement commences on the Commencement Date and continues in effect for the Term unless terminated in accordance with clause 10 or extended in accordance with clause 2.3. 2.3 The parties may extend the Term, and will negotiate in good faith to agree an extended term beginning at least 6 months before the scheduled end of the Term, or if the term ends prior to 31 December 2010 or in circumstances in which 6 months' notice of the expiry of the Term is not able to be provided, the parties will commence negotiations to extend the Term as soon as practicable after becoming aware of the end of the Term. Any references to "Term" in this agreement will refer to the extended term under this clause (as applicable). 2.4 Without prejudice to clause 2.3, if the SANZAAR Broadcast Agreements are renegotiated during the Term, or if it is reasonably likely that the SANZAAR Broadcast Agreements will be so renegotiated, WARU may issue written notice to ARU pursuant to this clause 2.4 (Renegotiation Notice). If WARU issues a Renegotiation Notice in accordance with this clause 2.4, the parties must enter into discussions in good faith with a view to agreeing the arrangements to apply to the alliance constituted pursuant to this agreement for the benefit of the sport of rugby in Western Australia (which may include, without limitation, termination of this agreement, extension of this agreement, variation of this agreement and/or the purchase of the Professional Rugby Business by WARU). (The Alliance Agreement contains references to both SANZAAR and SANZAR.) 1. Clause 9 is entitled "Dispute Resolution" and makes provision for the submission of disputes to arbitration. 2. Clause 10 is entitled "Termination" and makes provision for termination. It entitles a party to give notice of termination on a number of specified grounds, including but not limited to, breach of a material provision of the Alliance Agreement. 3. Clause 11 contains buy-back provisions. the appeal 1. Mr C.R.C. Newlinds of Senior Counsel with Ms V. Whittaker of counsel appeared for WARU. 2. Mr J.T. Gleeson of Senior Counsel with Mr A.J. Papamatheos of counsel appeared for ARU. 3. The Court had the benefit of written submissions and oral argument. I have had regard to all of the arguments but do not intend to restate them. 4. WARU argues that the arbitrator fell into error in the construction he gave the Alliance Agreement. The emphasis of its argument before me was different to that before the arbitrator. 5. Instead of arguing that renegotiated earlier means renegotiated to end earlier, WARU argues that the words "such earlier date" (at the end of the definition of Term) relate to the words "the expiry date of the last of the SANZAR Broadcast Agreements" so that the definition is to be read so as to make the "ending" date the expiry date of the last of the SANZAR Broadcast Agreements or "such earlier [expiry] date". 6. ARU argues that, as the arbitrator found, the words "such earlier date" refer to the date at which the last of the SANZAR Broadcast Agreements is renegotiated. 7. The Alliance Agreement is a commercial contract. The meaning of the words used in it is to be determined objectively, that is, by what a reasonable person would have understood them to mean. [2] This approach is commonly described as the objective theory of contract. 8. It requires attention to the language used by the parties, the commercial circumstances which the document addresses, the purpose of the transaction and the objects which it was intended to secure. The whole of the instrument has to be considered. Preference is given to a construction supplying a congruent operation to the various components of the whole and which does not make commercial nonsense or work commercial inconvenience. [3] 9. As was pointed out by French CJ, Nettle and Gordon JJ in Mount Bruce Mining v Wright Prospecting at 116-7 [48]-[49], ordinarily, this process of construction is possible by reference to the contract alone, and that if an expression in a contract is unambiguous or susceptible only of one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning. However, sometimes recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract, where that task is facilitated by an understanding of the genesis of the transaction, the background, the context and the market in which the parties are operating. It may be necessary in determining the proper construction where there is a constructional choice. 10. In Codelfa Construction v State Rail Authority (NSW), Mason J (with whom Stephen and Wilson JJ agreed) made the following now often quoted statement: [4] The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. 1. In WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd [2016] NSWCA 297 [59] Barrett AJA said of Mason J's statement, after referring to the fact that it had been approved in Mount Bruce Mining v Wright Prospecting: A potential tension that inheres in this proposition is that to recognise words as bearing a "plain meaning" is merely to state a conclusion arrived at by some process of interpretation which cannot, as a matter of logic, exclude context. As Leeming JA noted in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 at [77], to state that a legal text is "clear" does no more than recognise that "there is nothing in the context which detracts from the ordinary literal meaning". It therefore becomes clear that the notion that it may first be necessary to consider context when construing a contract is not inconsistent with Mason J's "true rule". On this footing, it does not follow that the task of assessing whether a phrase or expression is ambiguous or susceptible of more than one meaning must be undertaken without regard to evidence of surrounding circumstances. This position corresponds with the approach of the High Court in Victoria v Tatts Group Ltd [5] where the relevant contract was construed by reference to its text, context and purpose without any anterior finding of ambiguity as a precondition to a consideration of surrounding circumstances as an aid to discovering or elucidating context and purpose. 1. The task of assessing whether a phrase or expression in an agreement is ambiguous or susceptible to more than one meaning may be undertaken having regard to evidence of surrounding circumstances. Text, context and purpose may be taken into account without any anterior finding of ambiguity in making that assessment. 2. It is not infrequent with complex commercial arrangements, that the meaning of the words used by parties ultimately emerges to be entirely clear after regard is had to objective extraneous material, but at the outset, was not plain. This is merely a reflection of the objective theory of contract working out in practice. 3. Where, however, by reference to the contract alone (read together with instruments to which it may refer) the meaning is demonstrably not amphibolous, it is not appropriate to refer to external material. This is particularly so in a case such as the present, where the contract itself sets out in detail the background against which, and the context in which, it was made, and the objects which it intended to achieve. 4. The constructional choice here, if indeed there truly is one, is: to what do the words "such earlier date" in the definition of Term refer? To a date earlier than 31 December 2020 at which the last of the SANZAR Broadcast Agreements will be brought to an end by renegotiation, or to a date earlier than 31 December 2020 on which the last of those agreements is renegotiated in any way so long as the renegotiation is as a result of the renegotiation of the commercial terms of a broadcast arrangement? 5. WARU argues that where for the first time the word "earlier" is used in the definition, after the word "renegotiated", this must refer back to the 31 December 2020 expiry date and that it is illogical to then connect the second use of the word, in "such earlier date", back to the date of renegotiation instead of to the 31 December 2020 expiry date. 6. It argues that if the parties intended to have the date of renegotiation as a trigger for the end of the Alliance Agreement, the wording used in the definition of Term is an extremely oblique way of achieving such a serious consequence. It argues that the Term of the Alliance Agreement was "pegged" to the expiration of the SANZAR Broadcast Agreements in the first place and that the fact that the parties identified as alternative contingencies that those agreements be "terminated or renegotiated" before that date, shows that the objective of the clause was to provide a mechanism by which the Alliance Agreement and the SANZAR Broadcast Agreements would end on the same date with an ultimate end date of 31 December 2020. 7. It argues that on the construction accepted by the arbitrator, a renegotiation of the SANZAR Broadcast Agreements which was commercially advantageous to ARU and WARU would bring about the end of the Alliance Agreement, that it is near impossible to delineate commercial terms from uncommercial ones and that the Alliance Agreement would terminate as a consequence of minor or inconsequential changes to the SANZAR Broadcast Agreements. These consequences, it suggests, are inexplicable and wholly uncommercial and that it is more commercially sensible that the parties intended the content of the renegotiations to be delineated in some way, particularly as it suggests. 8. It argues that the arbitrator's construction runs counter to the intended longevity of the Alliance Agreement reflected in the recording by the parties of their intention to set a framework in which they can work co-operatively in an alliance to grow and develop rugby in Western Australia. 9. It argues that the arbitrator's construction does not fit with cl 2.4 because that clause contemplates, if the SANZAR Broadcast Agreements are renegotiated during the Term, discussions between the parties with a view to agreeing arrangements to apply to the alliance which may include termination of the Alliance Agreement. On the arbitrator's construction, the Alliance Agreement will have terminated as a consequence of such renegotiation so that there would be no scope for the parties to discuss termination. 10. It argues that the arbitrator was wrong to take into account the background circumstances in respect of which he made findings, because the words of the Alliance Agreement are unambiguous. discussion 1. The difficulty for WARU is that the words of the definition of Term do not say that the renegotiation of the last of the SANZAR Broadcast Agreements must result in a change of its expiry date to accelerate it. 2. Moreover, the words of limitation the parties chose, namely that the renegotiation must be as a result of the renegotiation of the commercial terms of a broadcast arrangement, undermine the suggestion that there is some other unexpressed limitation. 3. "Renegotiated" is a broad term. [6] 4. The default position in the definition of Term is that the Alliance Agreement will end on the expiry date of the last of the SANZAR Broadcast Agreements (being 31 December 2020). The default position is displaced if that agreement is renegotiated earlier, that is, earlier than 31 December 2020. There is no sensible way in which the words "such earlier date" can be read to mean anything other than an earlier date of termination or of renegotiation. Whatever its reason, termination brings an end to something. In contrast, renegotiation does not have to, and ordinarily, one would not expect it to. 5. If the parties had intended the Term to end only upon earlier termination or expiry of the last of the SANZAR Broadcast Agreements, rather than the renegotiation of its commercial terms at large, they could easily have said so. They did not. 6. It would be surprising, given the words which the parties chose, if they intended the renegotiation earlier as a result of the renegotiation of the commercial terms of a broadcast arrangement to be limited to (or require) earlier expiry. 7. Clause 2.4 does not assist WARU. Even if the renegotiation of the last of the SANZAR Broadcast Agreements had resulted in the foreshortening of the Term (and consequently the termination of the Alliance Agreement) the parties could still discuss that termination, and agree otherwise. 8. It is impermissible to have recourse to background circumstances in an endeavour to ascertain what parties, acting commercially sensibly, could or should have agreed, but did not agree. 9. Recourse to background material is permissible where it is necessary to resolve the meaning of the words which the parties chose to express their agreement. 10. It is not for the Court to weigh the importance of conditions which parties chose to put into their contract: Bowes v Chaleyer (1923) 32 CLR 159 at 191. 11. Recourse to background circumstances to ascertain the commercial purpose or objects of the Alliance Agreement was unnecessary, and in my view, impermissible in the manner in which the arbitrator had such recourse, because the terms of the instrument itself (read together with the instruments to which it refers) disclose its context, purpose and objects. 12. Insofar as the arbitrator had regard to background circumstances in an endeavour to divine the parties' commercial motivations for the provisions which they agreed (including, for example, by reference to apparent market uncertainty), he did so impermissibly. I uphold WARU's submission to this effect. However, whilst I agree that the relevant provisions of the Alliance Agreement are unambiguous, they unambiguously accord with ARU's construction. The arbitrator's approach, therefore, did not affect the correctness of his conclusion. In the circumstances, it is unnecessary to deal with the detail of the background circumstances, outside of the Alliance Agreement and cognate instruments, which the arbitrator prayed in aid of his conclusion. 13. WARU's submissions, it seems to me, invite the Court, in effect, to engage in the exercise in which the arbitrator impermissibly, as WARU itself submits, engaged. The peril of doing so (and no doubt, one of the reasons why it is impermissible) is revealed by the following. 14. It may be accepted that it would have been commercially sensible for the parties to have provided that the Alliance Agreement would end earlier only if the last of the SANZAR Broadcast Agreements ended earlier. But it would be equally commercially sensible for the Alliance Agreement to end if the commercial terms of one of its underpinning broadcasting agreements changed in some commercial respect, even, and maybe particularly, one which advantages ARU. It may be commercially sensible for parties to agree a provision of broad import in the face of future uncertainty. It may be equally commercially sensible for them to agree in the face of uncertainty, a provision which operates only in stringent circumstances. 15. It would be faulty to proceed to construe the Term from an assumption that the parties had an identity of interest in the longevity per se of the Alliance Agreement. First, the longevity which they had in mind is reflected in the formulation they chose. Second, the parties do not have identical interests in the longevity of the Alliance Agreement, although hopefully they both had the interests of furthering the game of rugby union in mind. It is to be remembered that ARU owns the Force. If the alliance comes to an end, it owns the Force unconditionally without any potential obligation to sell it back in the future, and can do with it what it likes, even destroy it. 16. As the facts of this case demonstrate, they were supposed to be allies, but they were not friends. 17. It is not necessarily inimical to ARU's interests for the Alliance Agreement to terminate where the renegotiation of the commercial terms of the last of the SANZAR Broadcast Agreements may be thought to result in an inconsequential change or one to its advantage. In fact, in this situation, ARU may be thought to be left with the upper hand. 18. One can readily understand that in a given case there might be difficulty in determining what is a commercial term and what is not a commercial term of a broadcast arrangement. Any term may have commercial ramifications. [7] 19. However, no such difficulty arises here, because it was conceded before the arbitrator that the renegotiation of the last of the SANZAR Broadcast Agreements as earlier described, qualifies. conclusion 1. The appeal is dismissed with costs. ********** Endnotes 1. Where the written form of a document embodies a mistake so that it does not conform to the common intention of the parties, the court may rectify it to make it conform; see Pukallus v Cameron (1982) 180 CLR 447 at 452 per Wilson J. 2. Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179. 3. Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 350-352; Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 at 529; International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 at 160; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at 657; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 117. 4. Approved in Mount Bruce Mining v Wright Prospecting at [48]. 5. (2016) 90 ALJR 392. 6. The Oxford English Dictionary (3rd Ed) 2009 defines renegotiation as: "the action of negotiating something again, esp. in order to change the original terms of the agreement". The Macquarie Dictionary (7th Ed) 2017 defines it as: "to negotiate again or further". 7. In Bowes v Shand (1877) 2 App Cas at 463, Lord Cairns remarked: "Merchants are not in the habit of placing upon their contracts stipulations to which they do not attach some value and importance" (cited with approval by Starke J in Bowes v Chaleyer supra at 195). 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: 05 September 2017