Allianz Australia Insurance Ltd v Probuild Constructions

Surplus Bond Moneys

1. The question is whether the Settlement Sum received by Probuild constituted "Surplus Bond Moneys" for the purpose of cl 2.6 of the Deed of Indemnity.
2. The answer to that question depends upon the proper construction of the expression "Surplus Bond Moneys" in cl 2.6(c) of that document.

The proper construction of cl 2.6(c)

1. Clause 2.6 of the Deed of Indemnity provided, relevantly: "(a) [Probuild] undertakes in favour of [Allianz] that: (i) any Surplus Bond Moneys received by it will be held on trust in favour of [Allianz] and must be returned to [Allianz] forthwith; and (ii) it will hold all right, title or interest in Surplus Bond Moneys for the benefit of [Allianz]. … (c) For the purposes of this clause 2.6, 'Surplus Bond Moneys' means any money paid by [Allianz] in relation to a Bond [3] in excess of the amount required by the beneficiary [here, May21 [4] ] to meet the contractual obligation which the Bond supports (and 'Surplus Bond Moneys' received by [Probuild] will include amounts payable by [May21] to [Probuild] as reimbursement of, or as damages arising from, [May21's] receipt of Surplus Bond Moneys)." (Emphasis in original.)
2. Clause 2.6(c) is awkwardly worded.
3. It must be construed according to conventional principles, about which there was no dispute before me.
4. A court in interpreting a provision of a document must have regard to its context and the purpose of the document as a whole. The leading modern statement on the importance of context and purpose is found in the reasons of French CJ, Nettle and Gordon JJ in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd: [5] "The rights and liabilities of parties under a provision of a contract are determined objectively, [6] by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose. [7] … Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning. [8] However, sometimes, recourse to events, circumstances and things external to the contract is necessary." [9]
5. Further, as has also been correctly stated, concerning contracts generally: "… the only relevant meaning is that which the text conveys. This follows from the need to ascertain the intention expressed in the document. Although … context and purpose are relevant, ultimately the court must attribute meaning to the words actually used." [10] (Emphasis in original.)
6. There was also no dispute before me about the following matters.
7. First, May21's entitlement to call on Allianz to pay it the amount of the Bonds was unconditional.
8. Second, if the amount paid by Allianz pursuant to that call exceeded the amount due by Probuild to May21 under the Building Contract (the parties referred to this as an "Overcall"): 1. May21 had no obligation to repay to Allianz the amount of any Overcall; [11] but 2. May21 was obliged to pay the amount of any Overcall to Probuild. [12]
9. Clause 2.6 is evidently intended to impose on Probuild an obligation to pay Allianz the amount of any such Overcall received by it. This is described and defined in the clause as the Surplus Bond Moneys referred to above.
10. The definition of Surplus Bond Moneys refers both to "money paid by" Allianz and Surplus Bond Moneys "received by" Probuild. But Allianz and Probuild must be taken to have understood the contents of their agreement and to know that any call made by May21 under the Bonds would result in a payment by Allianz to May21, rather than to Probuild. Further, the undertaking given by Probuild in cl 2.6 was only engaged on receipt "by it" of any Surplus Bond Moneys.
11. In that context, on my reading of the definition, Surplus Bond Moneys has two elements.
12. First, the money must be money paid by Allianz "in relation to a Bond". Here, that can only be the $34.5 million paid by Allianz to May21 on 25 March 2022.
13. Second, the money paid must be in excess of the amount required by May21 to meet "the contractual obligation which the Bond supports". It is common ground that the contractual obligation which the Bonds supported was Probuild's obligation to May21 under the Building Contract.
14. Clause 2.6 as a whole is concerned only with Surplus Bond Moneys received by Probuild. As I have said, Allianz and Probuild must be taken to have known that Probuild would not receive the proceeds of the Bonds directly from Allianz. It must follow that this element of the definition is directed to money received by Probuild that, while not actually being the money paid by Allianz to May21 under the Bonds in excess of the amount of Probuild's contractual obligations, had a sufficient connection with that money so as to be seen, in substance, as forming part of it. That is, the money received by Probuild must be able to be characterised, as a matter of substance, as representing, corresponding to or as referable to, the monies paid by Allianz to May21.
15. During oral submissions, it emerged that there was little dispute about this, and that the questions before me were whether, as matters of fact, the Settlement Sum received by Probuild should be seen as: 1. representing the amount of Probuild's "contractual obligation" to May21 under the Building Contract; and 2. in substance, representing, corresponding to or being referable to the "money paid by" Allianz to May21 on 25 March 2022 (the $34.5 million) in excess of that "contractual obligation".
16. I will return to these matters below, after briefly considering the balance of the definition of Surplus Bond Moneys.
17. In addition, cl 2.6 parenthetically includes a subset of Surplus Bond Moneys; being moneys having the characteristics earlier specified in the definition and being amounts "payable" by May21 to Probuild "as reimbursement of, or as damages arising from" May21's "receipt of Surplus Bond Moneys".
18. If the amount received by May21 from Allianz under the Bonds was the result of an Overcall (and thus in excess of the amount owing by Probuild to May21 under the Building Contract) then, by reason of the principle to which I referred at [25(b)] above, that amount would be "payable" by May21 to Probuild. This appears to be the matter to which the reference to an amount being "payable" by a party in May21's position as "reimbursement" or "damages" to Probuild is directed.
19. It is not necessary to express a final view about that as, in order to enliven the parenthetical part of the definition, it is necessary that the moneys be Surplus Bond Moneys in the first place and thus to be moneys in substance representing, corresponding to or referable to money having the characteristics in the earlier part of the definition; this characterisation being sufficient to answer the questions before me.
20. I turn now to the two questions of fact to which I have referred at [32].

Was the Settlement Sum the amount of Probuild's contractual obligation under the Building Contract?

1. It is common ground that the answer to this question depends upon the proper construction of the Settlement Deed.
2. In its Commercial List Statement, Allianz contended that "by the Settlement Deed, the parties to it agreed, and is the fact, that on an account, the amount owed to Probuild exceeded the amounts owed to May21 by the Settlement Sum".
3. Allianz submitted that the Settlement Deed comprised a "netting off" between May21 and Probuild of the amounts they each contended were due and represented an agreement between Probuild and May21 as to the quantum of Probuild's "contractual obligation" under the Building Contract for the purposes of the first element of the definition of Surplus Bond Moneys. As under the Settlement Deed May21 agreed to pay Probuild the Settlement Sum of $7.7 million, Allianz contended that the effect of the Settlement Deed was that the parties to it agreed that Probuild had no such "contractual obligation" to May21.
4. The Settlement Deed commenced with eight recitals as follows: "A [May21] and Probuild are parties to a contract dated 2 October 2017 (Contract) for design and construction works (Works) at West Side Place (Stage 1) at 250 Spencer Street, Melbourne VIC 3000 (Project). B On 23 February 2022, Probuild entered into voluntary administration and on 4 March 2022, [May21] issued a notice to take the remaining works out of Probuild's hands. C A dispute arose between [May21] and Probuild (Dispute) relating to the parties' entitlements to various claims under the terms of the Contract and otherwise at law. D On 16 May 2022, a determination was made by an adjudicator in respect of Probuild's February Payment Claim under the Building and Construction Industry Security of Payment Act 2002 (Vic) (reference 2022ADJTVIC057) awarding Probuild with $12,181,271.30 plus GST and adjudicator's fees (Adjudication Determination). E [May21] has alleged that it has suffered loss and damage of $78,536.277.00 arising from the Project. F By proceeding number S ECI 2022 01984 commenced by [May21] in the Supreme Court of Victoria (Proceeding), [May21] sought, among other things, judicial review of the Adjudication Determination and an injunction restraining Probuild from enforcing the Adjudication Determination. G Pursuant to Orders made by Justice Riordan in the Proceeding, on 31 May 2022 [May21] paid $12,181,271.30 (inclusive of GST) into Court with respect to the Adjudication Determination. H Without admission of liability, [May21] and Probuild have agreed to settle the Dispute and the Proceeding on the terms set out in this Deed." (Emphasis omitted.)
5. Recitals form part of a document as a whole and are part of the context to be considered when interpreting the operative part of the document. [13]
6. The recitals show that, by the Settlement Deed, May21 and Probuild agreed to settle the "Dispute" and the "Proceeding" in which May21 sought judicial review of the "Adjudication Determination" (each such expression being defined in the recitals).
7. By cl 2.2 of the Settlement Deed May21 agreed to pay Probuild $7.7 million from the funds that May21 had paid into court in the Proceeding.
8. Clause 3 provided for mutual releases.
9. By cl 3.1, May21 agreed to release Probuild and the administrators from: "… any claim, action, proceeding or entitlement (including any claim for costs), whether past, present or future, which [May21] has or might have under or in any way connected to the Dispute, the Contract, the Adjudication Determination or the performance of the work under the Contract, whether known or unknown arising from any event or circumstance (of whatsoever nature) whether occurring on, before or after the date of this Deed."
10. By cl 3.4, Probuild provided like releases to May21.
11. Clause 3.1(g) provided that May21: "represents and warrants that there are no surplus bond proceeds owing to [May21] under the Contract, following payment to [May21] of the proceeds of the Probuild Securities [defined to mean the Bonds] on or around 25 March 2022 pursuant to clause 5 of the Contract."
12. This is a peculiar provision.
13. There is no other reference in the Deed of Settlement to the "Probuild Securities".
14. The representation made and warranty given by May21 in cl 3.1(g) are expressed to be made in favour of Probuild. They are not expressed to be a representation and warranty that no further money is due by Probuild to May21 under the Building Contract. Rather, they are a representation and warranty by May21 that there are no "surplus bond proceeds" owing "to" May21 by Probuild under the Building Contract, following payment of the amount of the Bonds on 25 March 2022. Money could only be owed by Probuild "to" May21 "under the Contract". The representation and warranty thus appear to be that no further amount is owing by Probuild to May21 on this account. It is hard to see how any moneys paid under the Bond could have been owing by Probuild "under the Contract".
15. It is therefore not clear to me what the parties sought to achieve by this clause. However, as Allianz pointed out, the clause does show that the parties took into account the $34.5 million that Allianz paid Probuild under the Bonds.
16. The effect of the mutual releases in the Settlement Deed was that Probuild released May21 from any claim it might otherwise have had to recover any such "surplus bond proceeds" from May21. Thus, the terms of the Settlement Deed appear to bespeak the intention of the parties that May21 retain all of the $34.5 million it received from Allianz on 25 March 2022 in fulfilment of Probuild's contractual obligations.
17. In these circumstances, and assuming that May21 and Probuild must be taken to have known of their legal entitlements, and thus to have known that by reason of the matters I have set out at [25] above, if May21 had received from Allianz more than was "required to meet its claims" [14] under the Building Contract, it was obliged to pay Probuild the excess, it may be possible to infer that the parties intended that the $7.7 million payable by May21 to Probuild pursuant to the Settlement Deed to represent the amount in excess of that "required to meet" May21's claims under the Building Contract for which May21 was accounting to Probuild. On behalf of Allianz, it was submitted that this was "obvious".
18. But there are other possibilities.
19. One is that, as Probuild submitted, the parties intended that the $7.7 million be referable to the $12.18 million the subject of the Adjudication Determination and to bespeak Probuild's agreement to accept a "reduced amount" on that account.
20. Subject to the outcome of the pending application for judicial review of the Adjudication Determination, Probuild had an immediate right to enforce the Adjudication Determination. There is no evidence before me touching on the question of May21's prospects of success in the judicial review application and neither party made any submissions to me about those prospects. As the price for restraining Probuild from enforcing the Adjudication Determination pending the application for judicial review, May21 had been ordered by the Victorian Supreme Court to pay the $12.18 million into court. Indeed, that fund was the source of the payment of the $7.7 million to Probuild.
21. Unless the Adjudication Determination was quashed, May21 could not resist enforcement of a judgment obtained in respect of the Adjudication Determination, and thus payment out to Probuild of the $12.18 million paid into Court. May21 could only prosecute its claim for its alleged loss and damage of some $78.54 million within the administration, with all the uncertainties that would thereby be involved. It appears likely that these matters would have played a role in the negotiations that led to the Settlement Deed. A factor pointing to this probability, albeit not one of great strength, is the fact that the $7.7 million was paid from the funds in court.
22. Another factor the parties may have taken into account was the desirability, from May21's point of view, of obtaining Probuild's active cooperation to the resumption of work on the site by the alternative contractor.
23. In that regard, by cl 4 the parties made extensive provision for "Project Handover". As stated in recital B, May21 had taken the works out of Probuild's hands on 4 March 2022. The provision for Project Handover was plainly for the purpose of enabling May21 to continue with work on the project with the new contractor.
24. By cl 4.1 Probuild agreed to, among other things, provide May21 with a wide range of documents "stored on either the System Project [15] or Probuild's Project Server necessary to facilitate the transition of the Project and the Works" to May21, to make a representative available from time to time during the Handover Period, to grant May21 licences in respect of Intellectual Property, to facilitate the assignment of the System Project to May21, and to facilitate novation of Probuild's subcontracts and subcontractor securities to May21.
25. My attention was not drawn to any provision in the Building Contract which imposed on Probuild obligations of the nature for which provision was made in cl 4. This may well have been a factor, or one of a number of factors, that led to the final agreement that May21 pay Probuild the $7.7 million.
26. My attention was not directed to any evidence concerning the nature of the negotiations leading to the agreement recorded in the Settlement Deed. As I have discussed, the Settlement Deed itself suggests that there were, or at least that there may have been, a number of elements at play in those negotiations.
27. In the circumstances, I do not see how I could conclude that the Settlement Deed bespoke the parties' agreement that the Settlement Sum of $7.7 million was the amount in excess of Probuild's "contractual obligation" to May21.
28. Rather, it was an overall settlement compromising a range of financial and practical imperatives on the part of both Probuild and May21.
29. Accordingly, Allianz has failed to demonstrate that the $34.5 million it paid to May21 under the Bonds was an amount "in excess of the amount required" to be paid to May21 "to meet the contractual obligation which the Bond supports" and has thus failed to establish that the Settlement Sum represents Surplus Bond Moneys for the purpose of cl 2.6 of the Deed of Indemnity.

Did the Settlement Sum represent or correspond to the amount paid by Allianz in excess of that contractual obligation or was it referable to such an amount?

1. In any event, in my opinion, Allianz has failed to establish the necessary link between the $34.5 million it paid to May21 on 25 March 2022 under the Bonds and the $7.7 million Settlement Sum which Probuild received from May21 almost four months later on 22 July 2022.
2. I do not think it would have been necessary for Allianz to demonstrate that it would be possible to trace the funds it paid to May21 into the hands of Probuild adopting equitable tracing principles. As I have said, it would have been sufficient for Allianz to demonstrate that the money received by Probuild could be characterised as, in substance, representing, corresponding to or as referable to, the monies paid by it to May21. But all that Allianz has been able to demonstrate is that its payment to May21 and Probuild's receipt from May21 arose out of circumstances having a connection with the project the subject of the Building Contract. But those circumstances, and their connection with the project, were very different in nature and were temporally remote.
3. I am not satisfied that Allianz has established a sufficient connection between its payment to May21 of the Bond moneys and Probuild's receipt of the $7.7 million under the Settlement Deed to warrant what I consider to be necessary to conclude that, in substance, the receipt was from that payment.

Conclusion on Surplus Bond Moneys cl 2.6(a)

1. For those reasons, my conclusion is that Allianz has not shown that the Settlement Sum represents Surplus Bond Moneys and has thus not shown that Probuild holds that sum on trust for it.
2. In those circumstances, it is not necessary for me to deal with Probuild's alternative contention that cl 2.6(a) of the Deed of Indemnity created a "security interest" for the purposes of s 12(1) of the Personal Property Securities Act 2009 (Cth) ("the PPSA") that was not perfected by registration and has now vested in Probuild by operation of ss 267(2) or 267A of the PPSA upon appointment of the administrators or on payment of the Settlement Sum.
3. However, I will do so, albeit briefly.
4. Section 12 of the PPSA provided, relevantly: "(1) A security interest means an interest in personal property provided for by a transaction that, in substance, secures payment or performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property). Note: For the application of this Act to interests, see section 8. (2) For example, a security interest includes an interest in personal property provided by any of the following transactions, if the transaction, in substance, secures payment or performance of an obligation: (a) a fixed charge; (b) a floating charge; (c) a chattel mortgage; (d) a conditional sale agreement (including an agreement to sell subject to retention of title); (e) a hire purchase agreement; (f) a pledge; (g) a trust receipt; (h) a consignment (whether or not a commercial consignment); (i) a lease of goods (whether or not a PPS lease); (j) an assignment; (k) a transfer of title; (l) a flawed asset arrangement." (Emphasis in original.)
5. The parties' submissions focused on two aspects of the Deed of Indemnity.
6. The first was the proper construction of cl 2.6(a) itself.
7. It was common ground that if, under cl 2.6(a), the only interest that Allianz had was as the beneficiary of a trust, this was not sufficient to create a "security interest" for the purposes of s 12 of the PPSA. As an "interest held by a beneficiary does not secure any obligation independent of those arising pursuant to the trust", if Allianz had "only the proprietary interest of a beneficiary under a trust, that alone … cannot amount to a security interest". [16]
8. As I have set out above, cl 2.6(a) provided that any Surplus Bond Moneys received by Probuild would be "held on trust in favour of" Allianz "and must be returned to [Allianz] forthwith".
9. The matter that divided the parties here was whether, as Probuild submitted, this provision should be seen as imposing on Probuild two separate obligations (to hold the Surplus Bond Moneys on trust and then, separately, to pay those moneys to Allianz) or, as Allianz submitted, that the obligation to return the Surplus Bond Moneys to Allianz was a term of the trust itself and not an obligation separate from the terms of the trust.
10. In my opinion, Probuild's submission is to be preferred. The natural reading of cl 2.6(a) is that Probuild has two obligations and that the trust obligation "did not exhaust" its overall obligations under the clause. [17]
11. Second, Probuild submitted that, in any event, its obligations under cl 2.6(a) should be seen as being security for its obligations under cl 1.1 of the Deed of Indemnity which provided: "[Probuild]" (a) unconditionally and irrevocably indemnifies [Allianz] against all Loss; and (b) must upon demand immediately pay [Allianz] all Loss."
12. Probuild's obligation of indemnity under cl 1.1(a) arose on its execution of the Deed of Indemnity. Its obligation to make payment of the amount the subject of the indemnity was subject to Allianz making the demand referred to in cl 1.1(b). The enlivenment of the trust referred to in cl 2.6(a) was contingent on Probuild receiving Surplus Bond Moneys. Once such moneys were received, they were to be subject to the obligation to return them "forthwith" to Allianz, on account of Probuild's obligation of indemnity under cl 1.1(a), and whether or not Allianz had made a demand under cl 1.1(b). In those circumstances, I see substance in Allianz's submission that Probuild's obligation under cl 2.6(a) cannot be seen to be security for its obligation under cl 1.1 because those obligations would arise at different times and in different circumstances and, possibly, in respect of different money.
13. However, as I said, it is not necessary for me to express any final view about these matters.

Conclusion

1. Overall, the result is that Allianz has failed to establish an entitlement to the relief it seeks. The proceedings must be dismissed. I will hear the parties on costs, although on the face of it, costs must follow the event.

Endnotes

1. Clause 1.1.
2. Clause 2.6.
3. Defined to include any bond given by Allianz, and thus to include the Bonds.
4. For clarity, I will henceforth substitute "May21" as appropriate.
5. (2015) 256 CLR 104; [2015] HCA 37.
6. Citing Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at 656; [2014] HCA 7 at [35].
7. Citing Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 350, 352; [1982] HCA 24; and Reardon Smith Line Ltd v Hansen-Tangen; Hansen-Tangen v Sanko Steamship Co [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574.
8. Citing Codelfa Construction at 352.
9. At [46] and [48]-[49].
10. P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [19.60].
11. See, for example, N Dennys and R Clay (eds), Hudson's Building and Engineering Contracts (14th ed, 2020, Thomson Reuters) at [10-0900] citing Uzinterimpex JSC v Standard Bank Plc [2007] 2 Lloyd's Rep 187 at [155]-[158]; [2007] EWHC 1151.
12. See, for example, Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (in liq) (1978) 141 CLR 335 at 353-355 (Gibbs ACJ, Jacobs and Murphy JJ agreeing); [1978] HCA 45; Cargill International SA & Anor v Bangladesh Sugar and Food Industries Corp [1996] 2 Lloyd's Rep 254; [1996] 4 All ER 563 (Morrison J); Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd (No 3) [2007] FCA 2082 at [52] (Gilmour J); The Good Living Company Pty Limited atf the Warren Duncan Trust No 3 v Kingsmede Pty Ltd [2019] FCA 2170 at [144]-[151] (Markovic J); Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) (No 3) [2022] FCA 1280 at [386] (Middleton J).
13. P Herzfeld & T Prince (n 10) at [23.10].
14. To adopt the language of Middleton J in Hastie Group v Multiplex Constructions (n 12) at [386].
15. Defined as a "collaborative environment enabled on the Oracle Aconex Cloud Services for the Project".
16. Stiassny v North Shore City Council [2009] 1 NZLR 342; [2008] NZCA 522 at [29] (William Young P, Glazebrook and O'Regan JJ); considering identically worded legislation.
17. Ibid at [30]. 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: 23 November 2022