Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : PERTH AIRPORT PTY LTD -v- RIDGEPOINT CORPORATION PTY LTD [2013] WASC 33

Contract law - Proper construction of a Deed of Release - Whether party to Deed prohibited from claiming against non-parties - Whether action against solicitors was a 'claim brought in relation to the premises'

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947

Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635

Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112

1 McLURE P: This is an appeal from an order made by Kenneth Martin J permanently restraining the appellant, Ridgepoint Corporation Pty Ltd (Ridgepoint) from continuing proceedings (CIV 2127/2007) in this court against the second and third respondents (the Ridgepoint Action). The second respondent (MDS) and the third respondent (PF) are firms of solicitors that provided services to Ridgepoint.

2 The sole issue in the appeal is the proper construction of a Deed of Release dated 22 December 2006 between Ridgepoint, Perth Airport Pty Ltd formerly known as Westralia Airports Corporation Pty Ltd (WAC), members of the Cardaci family (directors and shareholders of Ridgepoint), Centurion Transport Co Pty Ltd (Centurion), another company related to the Cardaci family, and others (the WAC Release).

3 In November 2011, the solicitors commenced third party proceedings against WAC in the Ridgepoint Action (the third party proceedings).

4 In May 2012, WAC commenced separate proceedings in this court (CIV 1870/2012) against Ridgepoint for a permanent stay of the Ridgepoint Action.

5 The background facts are complicated. However, an understanding of them is required because they reveal a relevant history of disputation between multiple parties relating to the leasing of land around Perth Airport (the airport land). It is helpful to summarise the major events.

6 In July 1997, the Commonwealth of Australia (Commonwealth) leased the airport land to WAC (Head Lease).

7 In 1998, WAC subleased part of the airport land to Pioneer Road Services Pty Ltd (Pioneer).

8 In December 2000, WAC subleased another part of the airport land (referred to as the Blue and Orange Land) to Westgroup Pty Ltd (Westgroup) (the Blue and Orange Lease).

9 In December 2000, Westgroup subleased part of the Blue and Orange Land (8.18 ha) to Centurion (the Centurion Sublease). At some time (but before entry into the Ridgepoint Sublease, discussed below) the Centurion Sublease came to a premature end. The appellant's pleaded case is that occurred as a result of neighbourhood opposition to Centurion's intended use of the land as a transport distribution facility.

10 In April 2001, Westgroup subleased part of the airport land to Whitewood Pty Ltd (Whitewood Sublease).

11 In April 2001, Whitewood granted a mortgage by way of sub-demise to National Australia Bank (NAB).

12 In November 2001, Whitewood and NAB lodged caveats over the land the subject of the Whitewood Sublease.

13 In December 2001, Westgroup subleased approximately 8 ha of the airport land to Ridgepoint (Ridgepoint Sublease). Unfortunately, part of the land the subject of the Ridgepoint Sublease had already been subleased to Whitewood. That overlap is at the heart of what follows.

14 In late December 2001 or early 2002, in any event after its execution, Ridgepoint sent the Ridgepoint Sublease to MDS instructing it to, among other things, conduct title searches and to lodge a caveat over the subleased land. MDS instructed PF to perform that work.

15 On 7 January 2002, Ridgepoint granted a mortgage by way of sub-demise to Police and Nurses Credit Society Ltd (PNC).

16 In February 2002, WAC subleased a further 3.69 ha of airport land (the Green Land) to Westgroup (the Green Lease).

17 In February 2002, PNC lodged a caveat over the land the subject of the Ridgepoint Sublease. Later in that month, Ridgepoint lodged a caveat over the same land.

18 In March 2003, NAB appointed receivers to, inter alia, Westgroup's lease and licence interests in the airport land (the Receivers). The Receivers became aware that there was an overlap of around 6 ha of land the subject of the Whitewood Sublease and the Ridgepoint Sublease (the overlapping land), with the consequence that Ridgepoint held an enforceable leasehold interest over only 2.27 ha of the land the subject of the Ridgepoint Sublease.

19 In March or April 2005, Abernethy Road Pty Ltd (Abernethy) successfully tendered to acquire the leasehold interests of Westgroup in the airport land.

20 In March 2005, it was agreed between Abernethy and Ridgepoint that a related company of Ridgepoint, Trentwood Corporation Pty Ltd (Trentwood), would acquire a sublease of an area of the airport land and Ridgepoint would surrender its interest in the Ridgepoint Sublease. An agreement between Hampton Transport Services Pty Ltd (Hampton), Darmax Pty Ltd (Darmax), Ridgepoint and Trentwood was executed under which Trentwood agreed to lease from Darmax and Hampton (or directly from WAC) a portion of the airport land after it had been assigned to them (or their nominee) by Westgroup (the Side Agreement).

21 In May 2005 Westgroup (as assignor), Abernethy (as assignee) and others (but not WAC) executed a Leasehold Interest Agreement (LIA). Under the LIA, Abernethy agreed to take an assignment of the Westgroup leases of the Blue and Orange Land and the Green Land (the Westgroup Leases) subject to certain conditions precedent being fulfilled by a specified time, namely:

(a) WAC agreeing to consent to the assignment of the Westgroup Leases;

(b) Whitewood and Ridgepoint agreeing to surrender their interests in the Whitewood Sublease and the Ridgepoint Sublease respectively; and

(c) an agreement being reached between Pioneer, WAC, Westgroup and Abernethy as to:

(i) access across the Premises [the total leased area of 22.14 hectares, being the total area of Land subleased by WAC to Westgroup under the Blue and Orange Lease and the Green Lease];

(ii) any other rights of Pioneer to the Premises.

22 A dispute arose relating to whether Ridgepoint had failed to do all things necessary to enable Hampton, Darmax and Abernethy (their nominee) to have the benefit of the Side Agreement and to surrender the Ridgepoint Sublease and whether Ridgepoint had prevented performance of the LIA and Side Agreement (the Ridgepoint Dispute). In August 2005, Hampton and Darmax commenced proceedings in this court (CIV 1924/2005) against Ridgepoint and Trentwood (the Ridgepoint proceedings).

23 A dispute also arose between Westgroup, Abernethy and its guarantors (the Guarantors) relating to whether (1) the LIA conditions precedent had been fulfilled by the specified time; (2) Westgroup had made an adequate attempt to fulfil those conditions; and (3) the LIA had come to an end (the Westgroup Dispute). In approximately September 2005, Abernethy and the Guarantors commenced proceedings in this court (CIV 2065/2005) against Westgroup (the Westgroup proceedings).

24 Around December 2005, CIV 1924/2005 and CIV 2065/2005 were consolidated (the consolidated action).

25 In April 2006, the parties entered into an in principle settlement agreement and executed a heads of agreement (Heads of Agreement) which was superseded by a settlement deed.

26 By Settlement Deed dated 22 December 2006 between Abernethy, the Guarantors, Hampton, Darmax, Westgroup, Ridgepoint, Trentwood and Whitewood, the parties agreed to settle the Westgroup Dispute, the Ridgepoint Dispute, the Westgroup proceedings and the Ridgepoint proceedings (the Settlement Deed).

27 Recital L of the Settlement Deed relevantly provides that, without admission of liability,

• Abernethy, the Guarantors and Westgroup have agreed to settle the Westgroup Dispute and the Westgroup Proceedings; and
• Hampton, Darmax, Ridgepoint and Trentwood have agreed to settle the Ridgepoint Dispute and the Ridgepoint Proceedings,

on the terms set out in the Heads of Agreement ... which agreement is intended to be superseded entirely by the terms of this Deed.

28 WAC is not a party to the Settlement Deed. However, it was a condition precedent to settlement that WAC agree to, inter alia, accept the surrender of the Westgroup Leases, execute the WAC Release and grant new subleases to each of Abernethy and Ridgepoint or its nominee (cl 3.1). The land the subject of the proposed new subleases is shown in Annexure B. It is apparent that the new Ridgepoint sublease is over most (if not all) of the land the subject of the Ridgepoint Sublease.

29 It was also a condition precedent that Pioneer (also a non-party) execute a deed of release with Westgroup. The Settlement Deed required the execution of five releases in total, the others being the Whitewood Release (between Westgroup and Whitewood), the Ridgepoint Release (between Westgroup, Whitewood, C & F Cardaci, Ridgepoint, the Receivers, Centurion and NAB) and the Proceedings Release (between Westgroup, Ridgepoint, Trentwood, Abernethy, the Guarantors, Hampton, Darmax, the Receivers and Mallesons Stephen Jacques). The only release in evidence in the appeal is the WAC Release.

30 The 'Settlement Date' is defined to mean three business days after the satisfaction or waiver of the last of the conditions precedent.

31 The term 'Ridgepoint Claim' is defined in the Settlement Deed but is not used in its recitals or operative part. The definition is:

Ridgepoint Claim means all Claims by Ridgepoint or Centurion arising out of the grant (or purported grant) of the Ridgepoint Sub-Lease by Westgroup, including any Claim arising out of the allegations made by Ridgepoint against Whitewood, Westgroup, WAC and NAB in relation to the circumstances in which Ridgepoint came to enter into the Ridgepoint Sub-Lease (including any claim by Centurion in relation to the Centurion Sub-Lease). (emphasis added)

32 The WAC Release is between Westgroup, Whitewood, Ridgepoint, Centurion, Carl Cardaci, Frank Cardaci, Abernethy, WAC and the Receivers (the Parties).

33 The recitals refer to the Head Lease, the Premises, the Land, the Westgroup Leases and that Whitewood and Ridgepoint claim an interest in the Premises under their respective subleases. Recitals H(1) and H(2) figured prominently in argument. They provide:

H(1) Westgroup, Whitewood and Ridgepoint (among others) have entered into a Settlement Deed which contemplates (among other things) the:

• surrender of the Ridgepoint Sub-Lease to Westgroup;
• surrender of the Whitewood Sub-Lease to Westgroup;
• surrender of the Westgroup Lease to WAC on the terms of the Westgroup Surrender;
• grant of a new sub-lease by WAC to Ridgepoint on the terms of the New Ridgepoint Lease; and
• grant of new sub-leases by WAC to Abernethy on the terms of the New Abernethy Leases,

H(2) Westgroup, Whitewood, Ridgepoint, Centurion, C Cardaci, F Cardaci and Abernethy have agreed to provide certain releases in favour of WAC, on the terms set out in this deed.

34 The trial judge granted the permanent stay of the Ridgepoint Action pursuant to cl 2.1(d) of the WAC Release. Clause 2.1 provides:

(a) the Releasing Parties release WAC from all Claims, present and future, whether the Claims, actions and causes of action arise by virtue of a breach of any contractual duty or term or any other wrongdoing by WAC and whether notice of any Claim has been made or indicated to WAC, in relation to the Leases or any way arising out of or incidental to or related to the Leases, the Land or the Premises or circumstances related to the Leases or the Premises prior to the Settlement Date, or relating to the Premises, arising from matters and circumstances occurring up to the Settlement Date;

(b) agree not to commence or maintain any Claim, action or causes of action (including in relation to costs) against WAC brought in relation to the Premises, the Leases or any way arising out of or incidental to or related to the Leases or the Premises or circumstances related to the Leases or the Premises prior to the Settlement Date whether the Claims, actions and causes of actions arise by virtue of a breach of any contractual or statutory duty or term or any other wrongdoing by WAC;

(c) WAC may plead this deed as a bar to any Claim brought in relation to the Premises, arising from matters and circumstances occurring up to the Settlement Date; and

(d) the Parties agree not to commence or maintain any Claim brought in relation to the Premises arising from matters and circumstances occurring up to the Settlement Date (with the exception of a Claim, action or cause of action for breach or enforcement of this deed).

35 The meaning of the relevant defined terms are as follows:

Westgroup, Whitewood, the Receivers, Ridgepoint, C Cardaci, F Cardaci, Centurion and Abernethy

any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature (including in relation to costs) howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise

the Green Lease, the Blue and Orange Lease, the Centurion [Sub]-Lease, the Ridgepoint [Sub]-Lease

the land leased to WAC under the Head Lease and the leasehold interest of WAC in the Airport

the area coloured in blue, orange and green (other than the area identified as Pioneer Land) comprising an area of approximately 22.14 hectares, set out in the plan in Annexure A

the settlement date defined in the Settlement Deed.

36 Having regard to Annexure A, the 'Premises' are:

(i) the land the subject of the Whitewood Sublease, being part of the orange land (8.47 ha) and all the blue land (1.8 ha) the subject of the Blue and Orange Lease;

(ii) the land the subject of the Ridgepoint Sublease, being the overlapping land and 1.69 ha that is part of the Green Lease;

(iii) the remaining land the subject of the Green Lease (2 ha);

(iv) the land formerly the subject of the Centurion Sublease (8.18 ha), being the balance of the orange land in the Blue and Orange Lease.

37 The 'Land' includes, but is wider than, the 'Premises'. The 'Leases' refers to the legal instruments over the Land within the definition of Premises. It is accepted by the parties that it should include the Whitewood Sublease.

(a) WAC has no claim against the Receivers in their personal capacity in relation to the Premises, whatsoever.

Each party to this deed acknowledges that they enter into the deed voluntarily upon their own information, investigation and legal advice. They acknowledge that they may learn new or different information with respect to the Premises, arising from matters and circumstances occurring up to the Settlement Date and that it is their intention to, and they do:

(a) pursuant to the Releases fully and finally settle all Claims which may now exist, or may ever exist or may ever have existed in relation to the Premises; and

(b) provide the releases in this deed in relation to the Premises as agreed in the Settlement Deed,

which will take effect in accordance with their terms notwithstanding any other matters or circumstances.

40 'Releases' in cl 2.4(a) is as defined in the Settlement Deed. The term is defined in the Settlement Deed to mean 'the Whitewood Deed of Release, the WAC Deed of Release, the Ridgepoint Deed of Release, the Proceedings Deed of Release and the Pioneer Release individually and collectively'.

41 Ridgepoint's claims against the second and third respondents are as follows. Ridgepoint retained MDS to advise in relation to the Ridgepoint Sublease (including whether Ridgepoint had a good sublease title) and on the proposed grant of a mortgage by PNC. On behalf of Ridgepoint, and with its consent, MDS requested PF, and PF agreed, to conduct title searches in relation to the land the subject of the Ridgepoint Sublease, provide a copy of the title searches to MDS and provide a copy of the caveat prepared by PF for PNC to enable MDS to prepare a caveat for Ridgepoint.

42 MDS relied on the title searches provided by PF (which showed the caveats registered by Whitewood and NAB) and lodged a caveat for Ridgepoint, based on that prepared by PF. At no material time did the second or third respondents ascertain and inform Ridgepoint that a significant part of the area of the land the subject of the Ridgepoint Sublease was already the subject of caveats lodged by Whitewood and NAB and that the Whitewood Sublease had priority over the Ridgepoint Sublease in respect of the overlapping land (the Information).

43 Ridgepoint claims against both respondents that they breached their duty of care by negligently failing to ascertain and inform Ridgepoint of the Information. Ridgepoint claims that if it had been made aware of the Information, it would have resolved the priority dispute as soon it was discovered and prior to the appointment of the Receivers and would thereby have secured an enforceable sublease over the land the subject of the Ridgepoint Sublease or alternatively a different 8 ha area of the airport land.

44 The annual rental under the Ridgepoint Sublease was $1. Ridgepoint pleads that in October 2000 a company in the Cardaci group paid $1.3 million to WAC, by way of contribution towards Westgroup acquiring a leasehold interest in the airport land for a total of $1.9 million, in furtherance of the Cardaci group's objective of acquiring a sublease interest in part of that land to construct a new transport distribution facility thereon.

45 Ridgepoint also claims against PF for misleading and deceptive conduct, claiming that PF represented to MDS on behalf of Ridgepoint that there were no prior interests already registered over the land the subject of the Ridgepoint Sublease.

46 The solicitors claim against WAC for a contribution or indemnity under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) for WAC's breach of its common law and statutory duties owed to Ridgepoint. MDS and PF claim against WAC in negligence and for misleading and deceptive conduct. In broad terms it is alleged that in providing the plan that was subsequently attached to the Ridgepoint Sublease for the purpose of identifying the subleased land, WAC represented to Westgroup and Ridgepoint that the land was available for sublease. It is also alleged that in March 2002 WAC represented to Westgroup and Ridgepoint that there would be a 'plan swap' to remedy the overlapping land issue. These are claims which, but for the WAC Release, Ridgepoint could have litigated against WAC.

47 The claims against WAC in the third party proceedings are the only matters and circumstances which factually correspond with the definition of Ridgepoint's Claim in the Settlement Deed.

48 The appellant relies on three grounds of appeal, the fourth having been abandoned at the hearing. It contends that:

(1) cl 2.1(d) of the WAC Release, properly construed, only applies to the Parties to the WAC Release and not the second and third respondents;

(2) the Ridgepoint Action was not a 'Claim brought in relation to the Premises' in the terms of cl 2.1(d);

(3) the trial judge erred in his application of the principles of construction by commencing with, and being primarily guided by, the purpose of the WAC Release rather than its text.

49 If grounds 1 and 2 fail, ground 3 is not capable of changing the result below.

50 It is accepted by all parties that the words 'the Releasing Parties' should be inserted at the beginning of cl 2.1(b). As to the distinction between a release and a covenant not to sue, see Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 [26].

51 Clause 2.1 is not a model of internal textual coherence. It is to be expected that the scope of the covenant not to sue in cl 2.1(b) would be a mirror image of the scope of the release in cl 2.1(a). It is not, as the following comparison of the number and scope of the connectors demonstrates:

- any way arising out of or incidental to or related to the Leases, the Land or the Premises or

- circumstances related to the Leases or the Premises prior to the Settlement Date, or

- relating to the Premises, arising from matters and circumstances occurring up to the Settlement Date.

- any way arising out of or incidental to or related to the Leases or the Premises or

- circumstances related to the Leases or the Premises prior to the Settlement Date.

52 Further, it is to be expected that the scope of the entitlement in cl 2.1(c) to plead the Settlement Deed as a bar to proceedings would be a mirror image of the release in cl 2.1(a) and the covenant not to sue in cl 2.1(b). However, the text in cl 2.1(c) ('in relation to the Premises, arising from matters and circumstances occurring up to the Settlement Date') is confined, and equivalent, to the last connector in the release provision. That is also the sole connector in cl 2.1(d).

53 It can be inferred that the connectors in cl 2.1(c) and (d) are intended to be the widest and most general and which embrace the other connectors in cl 2.1(a) and (b) insofar as they refer to the Leases and/or Premises.

54 That inference is supported by the text of cl 2.4. The chapeau of cl 2.4 refers to new or different information 'with respect to the Premises, arising from matters and circumstances occurring up to the Settlement Date'. Further, the statements of intent in cl 2.4(a) and (b) refer to claims or releases 'in relation to the Premises'.

55 The purpose of cl 2.4 is manifest. It is to send a none too subtle message that the intention of the Parties is that the text of cl 2.1 means what it says and is not to be read down. In particular, the objectively determined intention of cl 2.4 is to modify the scope and application of the prima facie canon of construction which qualifies general words in a release by reference to the particular matters which the recitals (or the evidence) show to be the occasion of the release: Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112, 123 - 124, 131. The consequence of the prima facie canon of construction is that a general release is confined to disputes that are within the knowledge and contemplation of the relevant parties at the time of entry into the deed of release. That consequence is excluded by cl 2.4.

56 Moreover, cl 2.4(a) also bears upon the intended scope of cl 2.1(d). Each party to the WAC Release states that 'it is their intention to, and they do' pursuant to the 'Releases fully and finally settle all Claims ... in relation to the Premises'. The Releases are all the releases under the Settlement Deed, including those to which they are not a party.

57 Prima facie, the text and context of the operative part of the WAC Release do not favour reading cl 2.1(d) down to mean, as the appellant contends, that 'the Parties agree not to commence or maintain any Claim against another party to this deed brought in relation to the Premises ... '.

58 The appellant's primary contention is that cl 2.1(d) is not a general release and is not intended to deal with the overlapping land issues. It contends that the focus of the text and purpose of the WAC Release is the 'conveyancing' aspects of the Settlement Deed, being the surrender of the Ridgepoint Sublease to Westgroup, the surrender of the Whitewood Sublease to Westgroup, the surrender of the Westgroup Leases (being the Blue and Orange Lease and the Green Lease) to WAC and the grant of new subleases to Abernethy and Ridgepoint. As a result, cl 2.1(d) is confined to claims by persons claiming or affecting an entitlement to or interest in the Land or relevant leasehold estates. This analysis has the twofold effect of confining the scope of cl 2.1(d) to Claims against other parties to the WAC Release and narrows the scope of the expression 'Claim ... in relation to the Premises'.

59 In support of these submissions the appellant points to the following:

- the Settlement Deed is not a rolled up or overarching settlement in which all relevant and interested persons are parties;

- WAC, C & F Cardaci, Centurion and the Receivers are parties to the WAC Release but not parties to the Settlement Deed;

- WAC gets no benefit from any party to the Settlement Deed;

- the Parties to the WAC Release are confined to persons with claims to, or which could affect, an entitlement to or interest in the Land or the leasehold estates;

- the recitals in the WAC Release are confined to claims to, or which could affect, an underlying (I infer proprietary) interest in the Land;

- WAC was not a party to the LIA, the Side Agreement, the Westgroup Proceedings or the Ridgepoint Proceedings;

- WAC did not obtain a release from the following parties to the Settlement Deed: Abernethy, the Guarantors, Hampton, Darmax, or Trentwood.

60 Other matters relied on by the appellant in support of its construction of cl 2.1(d) are (in the order in which they were put at the hearing) as follows. First, the appellant challenges the correctness of the trial judge's conclusion that the scope of cl 2.1(d) went beyond the scope of cl 2.1(b) in order to benefit WAC [162] - [163]. The appellant contends that, on the construction favoured by the trial judge, cl 2.1(d) both burdens and benefits WAC and the other Parties to the WAC Release.

61 Second, the connector in cl 2.1(d) is confined in the same way as cl 2.1(c). That is self-evidently correct but does not advance grounds of appeal 1 or 2.

62 Third, the focus of cl 2.4 is also on an underlying interest in the Premises which in turn relates back to the subject matter of the WAC Release. The appellant contends that cl 2.4, with its focus on matters and circumstances 'in relation to the Premises' is significantly narrower than its equivalent in the Settlement Deed being cl 12.3 which identifies the subject matter of the release as claims etc 'in relation to the Westgroup dispute and the Westgroup Proceedings and the Ridgepoint Dispute and the Ridgepoint Proceedings'.

63 Fourth, the absence in cl 2.1 of an express obligation on the Parties not to commence or maintain proceedings against third parties and the absence of any obligation on the Parties to indemnify any other party in connection with third party claims that fall within the scope of the prohibition.

64 Fifth, if cl 2.1(d) is construed to apply to any Claim against third parties and if 'in relation to the Premises' is given a wide meaning it would capture a claim by WAC against an accountant who gave incorrect tax advice concerning expenditure in relation to the Premises or a claim against a planning consultant for negligent advice about statutory approvals in relation to the Premises.

65 Sixth, it does not make sense to restrain WAC from beginning or commencing proceedings against a third party in relation to the Premises.

66 Seventh, the subjects of the prohibition (the Parties) qualifies the object of the prohibition so as to confine cl 2.1(d) to Claims between the parties relating to their underlying entitlement to or interests in the Premises.

67 I do not accept that the WAC Release is to be construed in isolation from the Settlement Deed, or that the scope of cl 2.1 is confined to the conveyancing matters identified in the recitals in the WAC Release, or that cl 2.1 is not intended to address the overlapping issues and their aftermath.

68 The Settlement Deed is an overarching instrument in its purpose and effect which it achieves by operating indirectly rather than directly. It achieves outcomes that bind persons who are non-parties to the Settlement Deed in two ways. First, it requires parties to the Settlement Deed to deliver at Settlement (inter alia) the 'Releases' (as defined), the parties to which include non-parties to the Settlement Deed (see cl 5.2(b), (c); cl 5.3(b), (c); cl 5.5(a), (b), (c)). The Settlement Deed provides that parties' obligations at Settlement are interdependent and are subject to WAC releasing WAC's counterparts of the WAC Documents (the Westgroup Surrender, the WAC Release and the new subleases) duly executed by WAC (cl 5.7(a)). If Settlement does not occur by the latest Settlement Date, the Settlement Deed immediately terminates (cl 6.2)(a)).

69 Second, in the absence of an obligation on a party to the Settlement Deed, other outcomes are made conditions precedent to Settlement. The conditions precedent require action by the non-parties, WAC (its agreement to accept Westgroup's surrender of the Westgroup Leases, executing the Westgroup Surrender and the WAC Release and granting the new subleases to Abernethy and Ridgepoint) and Pioneer (executing the Pioneer Release).

70 WAC was also closely involved in other matters the subject of the Settlement Deed. The rights of Ridgepoint and Abernethy to have access to the land the subject of the proposed new subleases is expressly dependent upon WAC having approved the access (cl 4.1, cl 4.2).

71 Abernethy and Ridgepoint are also liable for all fees, costs or liabilities incurred in relation to the preparation of any survey, report or study required by WAC to facilitate, or for the purpose of, Settlement (cl 9.3). Abernethy and Ridgepoint also agreed to pay WAC's costs in, obtaining legal advice in relation to the Settlement Deed, the Sublease, access arrangements and 'the Releases' (cl 9.2(a)(iii)). WAC's interest and involvement in and control over the final outcomes to be secured by and at Settlement is, at its lowest, not less than the parties to the Settlement Deed.

72 The manifest purpose and intent of the Settlement Deed is to secure the settlement of all actual and potential disputes and proceedings stemming from Westgroup subleasing the overlapping land to both Whitewood and Ridgepoint. There had been unsuccessful attempts to fix that problem prior to the execution of the Side Agreement and the LIA. Those agreements then generated further multi-party disputation, culminating in the commencement of two Supreme Court actions which in turn led to the Settlement Deed, a central feature of which includes the execution of the Releases. The Releases form part of the consideration for the Settlement Deed and the Settlement Deed informs the construction of the WAC Release and the other Releases.

73 Moreover, the operative provisions of the WAC Release are inconsistent with an intention to confine cl 2.1(d) to Claims against other parties to that Deed and/or confining the scope of the Claims to those relating to an underlying entitlement to and/or interest in the Premises.

74 First, the stated intention in cl 2.4(a) can only be achieved if the prohibition in cl 2.1(d) applies to non-parties, including persons who are parties to the other Releases.

75 Second, WAC acknowledges in cl 2.2(a) that it has no claim against the Receivers in their personal capacity 'in relation to the Premises'. The Receivers in their personal capacity have no underlying entitlement or interest in the Premises. The same is true of Centurion.

76 Turning to the other matters relied on by the appellant, I accept for present purposes that cl 2.1(d) both burdens and benefits the Parties, including WAC. That is the case on the appellant's narrow construction of cl 2.1(d) and the wider construction favoured by the trial judge. However, I do not accept the proposition that, on the wider construction, cl 2.1(d) would capture a claim by WAC against an accountant who gave incorrect tax advice concerning expenditure in relation to the Premises or a claim against a planning consultant for negligent advice about statutory approvals in relation to the Premises. Those examples have no arguable connection with any actual or potential dispute intended to be captured by the Settlement Deed and the WAC Release. They are well outside the 'occasion of the release' to use the language of the High Court in John Grant.

77 That rejected submission undermines the appellant's related submission that it does not make sense to restrain WAC from suing third parties in relation to the Premises. It makes complete sense when regard is had to cl 2.4. In any event, whether or not the prohibition imposed a practical burden on WAC depended on whether WAC had any potential claim against a non-party in relation to the Premises arising from matters and circumstances occurring up to the Settlement Date. There is nothing in the material to suggest that was so at the relevant time, when it was being advised by solicitors.

78 For the reasons given when discussing the text of cl 2.1 and cl 2.4, I do not accept that the connector in cl 2.4 (and cl 2.1(c) and (d)) is significantly narrower than the equivalent provision in the Settlement Deed.

79 Finally, the appellant relies on the absence from cl 2.1 of an express prohibition on suing third parties and the absence of an obligation on the Parties to indemnify one or more of the Parties the subject of a third party claim.

80 It is to be expected that prior to executing the WAC Release the Parties knew that the purpose and effect of such an instrument could be wholly undermined by the conduct of third parties who are not bound by the WAC Release, including third parties who are the servants or agents of a party and that they would seek to prevent that from occurring.

81 On its face, cl 2.1(d) does extend to Claims against third parties and, as is apparent from cl 2.4, is intended to have that effect. In context, the absence of an express statement that cl 2.1(d) applies to third parties is not significant. Moreover, the fact that the same end could practically be achieved by a different means, such as an indemnity, is of no moment. There is no single way of manifesting an intention. At its highest, the omissions are neutral.

82 The prima facie meaning of the text of cl 2.1(d) is supported and confirmed by the history of interconnected disputation between multiple parties captured in the recitals to the Settlement Deed; the resulting interconnectedness of the Settlement Deed and the Releases; and the purpose and effect of cl 2.4 of the WAC Release, particularly the express statement that the Parties' intention is to, 'pursuant to the Releases' fully and finally settle all Claims.

83 For these reasons, on its proper construction, cl 2.1(d) of the WAC Release prohibits a party to it from commencing or maintaining any Claim against a third party brought in relation to the Premises arising from matters and circumstances occurring up to the Settlement Date.

84 Ridgepoint's claims against MDS and PF in the Ridgepoint Action are based on matters and circumstances that occurred prior to the Settlement Date and directly relate to the overlapping land issues over the Premises that led to the Settlement Deed and the WAC Release. Indeed,

the Ridgepoint Action is so closely related thereto that Ridgepoint's agents at the relevant time, the second and third respondents, have brought third party proceedings which squarely fall within the confined scope of cl 2.1(d) for which the appellant contended.

86 NEWNES JA: I agree with McLure P, for the reasons her Honour gives, that the appeal should be dismissed.