Practice and procedure - Tomlin order - Application for orders to enforce Tomlin order - Whether appropriate to grant application on a summary basis - Turns on own facts

Commissioner of State Taxation v Extos Pty Ltd [2000] WASCA 293

Dalmation Nominees Pty Ltd v Marinovich (Unreported, WASC, Library No 980670, 20 November 1998)

E F Phillips & Sons Ltd v Clarke [1970] 1 Ch 322

Extos Pty Ltd v Commissioner of State Taxation [1999] WASCA 270

General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 Qd R 6

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115

Programme Holdings Pty Ltd v Van Gogh Holdings Pty Ltd [2009] WASC 79

Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VicLawRp 86; [1956] VLR 555

Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268

Wilson & Whitworth Ltd v Express & Independent Newspapers Ltd [1969] 1 All ER 294

(This is an edited version of the reasons delivered extemporaneously on 11 August 2009.)

1 By letter dated 21 July 2009 the plaintiff, Mr Rhys Thomas, applies to summarily enforce the terms of a compromise agreement recorded in the schedule to the Tomlin order I made on 22 December 2008. For the reasons that follow, I am not persuaded that it is appropriate to grant, on a summary application, the relief sought by Mr Thomas.

2 I begin with some brief observations about the background to the making of the Tomlin order.

3 Mr Thomas commenced proceedings in December 2008 against the defendant, Ms Mary Cummins. Mr Thomas claimed to be the owner of, or to have an interest in, an aircraft VH-NRP (the Aircraft). On 4 December 2008 I granted Mr Thomas an ex parte injunction until 12 December 2008 restraining Ms Cummins from selling the Aircraft or removing the Aircraft from Australia. On 12 December 2008, Ms Cummins gave an undertaking in corresponding terms until 22 December 2008.

4 The parties each filed evidence in relation to the injunction application made by Mr Thomas. The evidence established that the Aircraft was registered in the name of Ms Cummins, or an entity associated with her, and that she or the associated entity had purchased the Aircraft from its previous owner. Consequently Ms Cummins was the legal owner of the Aircraft. A central piece of evidence in Mr Thomas' case was the letter of 9 January 2008 from Ms Cummins to him. By that letter, it was said that the Aircraft would be put in Ms Cummins' name unless and until Mr Thomas paid out the loan referred to in that letter.

5 In the lead-up to the hearing on 22 December 2008, if not earlier, it emerged that the immediate issue was whether the sale of the Aircraft should be by a receiver, as Mr Thomas sought, or by Ms Cummins as she contended, possibly on certain terms. On 22 December 2008 the parties reached the agreement which was constituted by or reflected in the schedule to the order made on 22 December 2008.

1. The parties are hereby discharged from all undertakings given in the proceedings.
2. All further proceedings be stayed on the terms set out in the schedule unless for the purpose of enforcing the terms.
3. Liberty to apply.
4. No order as to costs.

7 The schedule to the order (the compromise agreement) is as follows:

1. The defendant ('Cummins') is to maintain possession of the aircraft VH-NRP ('the aircraft') until sale pursuant to the mechanism recorded below. The aircraft will remain in the custody of Mr Ian Colliville, of Ian Aviation Pty Ltd, unless otherwise agreed.
2. The plaintiff ('Thomas') is to deliver, at his expense, the following equipment taken off the aircraft, to Mr Ian Colliville, of Ian Aviation Pty Ltd, Archerfield Airport, Archerfield, Brisbane. The equipment is to be in the same condition as it was when it was taken off the aircraft:-

1. The left hand elevator trim tab; 2. The engine oil dipstick;

1. The flight manual; 2. The current maintenance release.
2. Cummins will, at her expense initially, engage a LAME (Ian Aviation) to re-fit that equipment, and otherwise keep the aircraft clean, properly maintained and airworthy. Thomas will be consulted prior to any work be undertaken and shall be entitled to negotiate with Ian Aviation as to the reasonable costs to be incurred in attending to that work.
3. Thomas is at liberty to sell the aircraft for the best price and terms reasonably available.
4. Thomas is to liaise and cooperate with Cummins as to the advertising and marketing of the aircraft, including the price and terms of any sale.
5. Cummins may participate in the sale process.
6. The aircraft is not to be sold overseas (or elsewhere), unless:-
   1. a deposit of 10% is paid;
   2. the balance of the price is in hand (if necessary, by means of use of escrow agents and an escrow account, common in aircraft sales).
7. The net proceeds of the sale will be applied as follows (in full and final satisfaction of the parties' rights in respect of VH-NRP and in settlement of all claims in these proceedings):-

1. firstly in reimbursement of Cummins' costs and expenses of re-fitting the above equipment and keeping the aircraft clean, properly maintained and airworthy; 2. secondly, in reduction of Cummins' indebtedness to Bank of Queensland for the sum of $1.15 million, plus interest and other costs and expenses accruing to the Bank, since 2 December, 2008;

1. thirdly, her legal fees incurred as a result of this application;

1. the balance is to be divided 1/3rd in favour of Cummins and 2/3rds in favour of Thomas.
2. Thomas must not enter into any agreement for the sale of the aircraft unless he gives to Cummins (care of her solicitors) a written notice setting out the price and terms of the sale, and one of the following events occurs:-

1. Cummins consents in writing to the sale; 2. Within 14 days of receipt of the notice, the Court does not restrain the proposed sale;

(However, Thomas may enter into an agreement to sell the aircraft, provided any such agreement is subject to a condition precedent that the conditions above are satisfied.)

8 I do not propose to give a detailed outline of all of the evidence in this matter. The parties are in dispute about many aspects of the facts, and it is common ground that this is not an appropriate occasion to attempt the resolution of any disputed facts. Therefore I simply provide the following broad overview of the factual background to this application. The following outline should not be taken to be final findings of fact for any purpose.

9 In February 2009 Mr Thomas listed the aircraft for sale on a web site. On 16 March 2009 he received a verbal offer of $US1.35 million. Mr Thomas' solicitors wrote to Ms Cummins' solicitors about that offer. By letter of 30 March 2009 Ms Cummins' solicitors indicated her acceptance of the terms of that offer, subject to satisfactory arrangements regarding payment. Mr Thomas' evidence is that the verbal offer was withdrawn when he told the possible buyer that the Aircraft could not be test flown.

10 From February 2009 repair work was carried out on the Aircraft by Ian Aviation Pty Ltd. There are issues about whether Mr Thomas agreed that that should occur, whether it was appropriate, and other issues.

11 In early May 2009 a draft brokerage agreement was sent by Aeromil Pacific Pty Ltd to Mr Thomas. By Mr Thomas' solicitor's letter of 6 May 2009, it was said that Ms Cummins had wrongfully unilaterally negotiated that broker agreement.

12 Also on 6 May 2009 Ms Cummins' solicitors wrote to Mr Thomas' solicitors, stating that the Aircraft was now airworthy and inviting Mr Thomas to commence his efforts to sell the Aircraft.

13 By email sent to Mr Thomas' solicitors On 8 May 2009, Ms Cummins' solicitors asserted a continued right on the part of Ms Cummins to sell the Aircraft. It was also said that there was no basis to fear that Ms Cummins would sell without Mr Thomas' concurrence or an order of the court.

14 By letter of 12 May 2009 Ms Cummins' solicitor said that Mr Thomas had been consulted in relation to the retention of Aeromil Pacific Pty Ltd. Ms Cummins invited Mr Thomas to cooperate in making all efforts to sell the Aircraft as expeditiously as possible.

15 On 19 June 2009 Mr Thomas appointed Airflite Pty Ltd as exclusive worldwide selling agent for a price of $US1.395 million. Ms Cummins says in her affidavit that she was not consulted at all about that appointment. The appointment of Airflite was on terms that provided for an exclusive agency for a period of 90 days, following which the agency was terminable on notice. The Airflite agreement also provided for the sale funds to be paid into the trust account of Mr Thomas' solicitors. On 23 June 2009 Mr Thomas' solicitors sent a copy of the Airflite agreement to Ms Cummins' solicitors. On 25 June 2009 Ms Cummins' solicitors wrote complaining about a number of aspects of the Airflite agreement. There was a response to that letter in which any breaches on the part of Mr Thomas were denied.

16 On 2 July 2009 Ms Cummins appointed Eriksson Aviation LLC as the exclusive selling agent for the Aircraft. The terms of the Eriksson agreement provided a right of termination of the agency on 10 days' written notice given not less than 50 days after 2 July 2009. The sale price set out in the Eriksson agreement was $US1.3 million. There is evidence that that may have been an error and that it may have been intended to be $US1.395 million; see the affidavit of Ms Victoria Woolley sworn 29 July 2009.

17 Following correspondence between the solicitors a copy of that agreement was provided to Mr Thomas' solicitors. Mr Thomas contended in subsequent correspondence, and still contends, that the Eriksson agreement is in breach of the compromise agreement.

18 By letter of 24 July 2009 Ms Cummins' solicitors asserted a right to terminate the compromise agreement on the ground of breaches of the agreement by Mr Thomas. The alleged breaches included Mr Thomas' failure to have sold the Aircraft seven months after the compromise agreement was made and, secondly, the circumstances and terms of the engagement of Airflite Pty Ltd. In the letter of 24 July 2009 Ms Cummins' solicitors said that Ms Cummins would follow the terms of the compromise agreement if she found a buyer. The letter also made an offer that if Ms Cummins terminated the agreement she would deal with the proceeds of sale as though the agreement was on foot, except that the two-thirds net proceeds which was payable to Mr Thomas under the compromise agreement would be placed into a trust account pending the result of legal proceedings. That offer was not accepted by Mr Thomas.

19 Mr Thomas refers to other parts of the letter of 24 July 2009 in support of what he says is the proper construction of the compromise agreement, and also in support of a contention that any right to terminate the agreement had been waived. I will return to those topics.

20 Ms Cummins made another offer by her solicitors' letter of 29 July 2009. That offer included the previously offered terms but also proposed that Ms Cummins would give notice in accordance with cl 9 of the compromise agreement if she had terminated it. That offer was not accepted.

21 By letter dated 31 July 2009 Ms Cummins terminated or purported to terminate the compromise agreement on the grounds previously stated by her solicitors in correspondence. That letter also stated that all offers previously made were withdrawn.

22 On 6 August 2009, by letter to Ms Cummins' solicitors, Mr Thomas rejected the purported termination and contended that the compromise agreement remained on foot.

23 I turn to the legal principles relevant to this application.

24 By its nature, a Tomlin order is an order giving effect to settlement terms agreed between the parties. The terms of the settlement are a schedule to the orders but are not orders of the court. The compromise agreement in the schedule supersedes the parties' previous rights and obligations which had been in dispute: Extos Pty Ltd v Commissioner of State Taxation [1999] WASCA 270 [84] - [85]. (This decision was reversed on appeal in Commissioner of State Taxation v Extos Pty Ltd [2000] WASCA 293, but on a different point.)

25 It is not for the court making the Tomlin order to satisfy itself about the clarity of the terms of the compromise agreement in the schedule to the orders: Wilson & Whitworth Ltd v Express & Independent Newspapers Ltd [1969] 1 All ER 294.

26 The terms of the Tomlin order in this action contemplate enforcement of the compromise agreement in the schedule. On certain conditions, that is a permissible course: E F Phillips & Sons Ltd v Clarke [1970] 1 Ch 322, 325. That will be permissible provided that:

(1) the terms of the order include a qualified stay and liberty to apply; and

(2) the application to enforce is strictly to enforce the terms embodied in the orders and the schedule, and does not depart from the agreed terms.

In this case the first condition is satisfied. The second condition is very much in issue.

27 By this application Mr Thomas seeks to enforce the compromise agreement in a summary way. In that respect, substantially the same principles apply to any motion to enforce a compromise agreement, whether recorded in a Tomlin order or not. An agreement compromising the action can be summarily enforced by an application in the action, provided that the court is 'clearly satisfied that justice can be done under the summary procedure': Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VicLawRp 86; [1956] VLR 555; General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 Qd R 6, 9 - 10; Dalmation Nominees Pty Ltd v Marinovich (Unreported, WASC, Library No 980670, 20 November 1998) 12 - 14.

28 Whether justice can be done under the summary procedure requires consideration of all the circumstances of the case, including:

(a) the extent to which extraneous matters to the original action are involved;

(b) how substantial the questions to be determined are;

(c) to what extent questions of credibility are likely to arise; and

(d) whether pleadings and discovery may be desirable: Roberts v Gippsland (564); General Credits v Fenton Lake (9 - 10).

29 In Dalmation Nominees v Marinovich (14), Murray J suggested that an application to summarily enforce an agreement to compromise an action should be viewed as akin to an application for summary judgment under O 14 of the Rules of the Supreme Court 1971 (WA). Consequently, it is for an applicant for summary enforcement to satisfy the court that there is no real question to be tried.

30 In this case there are two questions on which Mr Thomas must succeed: first, is it clear that the orders sought do no more than enforce the terms of the compromise agreement; and secondly, is it clear that the agreement is still on foot (ie that Ms Cummins' purported termination was legally ineffectual)? By 'clear' I mean the contrary is not arguable, so as to make summary judgment appropriate.

31 I begin with the question of construction of the terms of the compromise agreement.

The construction of the compromise agreement

32 The principles relevant to the construction of agreements and other instruments in writing are set out in Programme Holdings Pty Ltd v Van Gogh Holdings Pty Ltd [2009] WASC 79 [36] - [42], [44].

33 The compromise agreement is to be construed in the context of background facts known to the parties at the time the agreement was made. It seems to me that cl 4 to cl 6 of the compromise agreement are to be construed against the background that an issue for determination at the contemplated hearing on 22 December 2008 was the question of who would conduct the sale; a receiver, as Mr Thomas sought, or Ms Cummins, as she contended.

34 Mr Thomas submits that the intention of the compromise agreement is clear; he has the carriage of the sale process. Mr Thomas submits that cl 4 gives him an unfettered right to sell the Aircraft. By contrast, the submission continues, Ms Cummins is given only the option of participation in the sale process; that is, Mr Thomas contends, a lesser and subsidiary role.

35 There is a sound basis for the construction contended for by Mr Thomas. The question for me is whether it is sufficiently clear that summary disposal is appropriate. In support of his construction, Mr Thomas points to subsequent conduct on the part of Ms Cummins which he says reveals Ms Cummins' understanding of the meaning of the compromise agreement. Mr Thomas refers to Ms Cummins' solicitor's letters of 6 May 2009 and 24 July 2009.

36 In my opinion, the passages of the letter to which my attention was drawn are equivocal and do not necessarily support the understanding contended for by Mr Thomas. More significantly though, in any event, I do not accept that a court can have regard to subsequent conduct in the process of construing a written agreement. See, for example, Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268 [86].

37 It seems to me that two different perspectives are available to inform the construction of the compromise agreement. The first perspective is largely that which I have already summarised as Mr Thomas' suggested construction. Mr Thomas has the primary role of selling the Aircraft and that is reflected in the language of the compromise agreement, particularly cl 4 to cl 6. The other perspective is that the reason why so little is said in the compromise agreement about Ms Cummins' right to sell the Aircraft is that little was needed to be said because she was the owner of the Aircraft and in that capacity was anyway entitled to sell.

38 In my opinion, there are triable issues about the proper construction of the compromise agreement, in particular cl 4, cl 5 and cl 6. Those questions include: To what extent is Ms Cummins' general ability as owner to sell the Aircraft constrained by the compromise agreement? What is the meaning of the term 'liaise and cooperate' in cl 5? What is the meaning of 'participate in the sale process' in cl 6?

39 Mr Thomas submits that a unilateral appointment by him of a selling agent is within the broad liberty given to him by cl 4. In my opinion, the contrary is readily arguable. Clause 4 must of course be read in the context of the compromise agreement as a whole, including cl 5 and cl 6. It seems to me to be readily arguable that the unilateral appointment of a selling agent is inconsistent with cl 4, cl 5 and cl 6 on their proper construction.

40 That conclusion is relevant to whether the orders sought by Mr Thomas are for no more than the enforcement of the compromise agreement. It is also relevant to issues of breach by Mr Thomas and the question of any right of Ms Cummins to terminate the compromise agreement.

41 It is necessary to give close attention to the orders sought by Mr Thomas. That is because of the principle that I have already mentioned, that summary enforcement of the compromise agreement is appropriate only if the application is strictly to enforce the terms embodied in the compromise agreement. The proposed orders are in these terms:

1. The agreement by way of compromise contained in the schedule to the Tomlin Order made 22 December 2008 by consent be carried into effect and that the Defendant is:

1.1 directed to forthwith terminate the agreement made between the Defendant and Eriksson Aviation LLC dated 2 July 2009 by giving Eriksson Aviation LLC 10 days written notice of the Defendant's termination by certified mail in accordance with the terms of the said agreement;

1.2 directed to allow the Plaintiff to conduct the sale of the aircraft, VH NRP and to not interfere with the marketing and sale of the aircraft by [Airflite] Pty Ltd or such other agent that the Plaintiff shall nominate from time to time;

1.3 directed to provide, or instruct Mr Collville of Ian Aviation to provide, such information and documentation as may be required by [Airflite] Pty Ltd or such other agent as nominated by the Plaintiff so as to market and effect a sale of the aircraft;

1.4 restrained from engaging in any conduct to market or sell the aircraft without the Plaintiff having control over the marketing and selling process.

42 Proposed order 1.1 would require immediate termination by Ms Cummins of the agreement with Eriksson Aviation. It was, I think, ultimately accepted that an order in those terms would require Ms Cummins to act in breach of the Eriksson agreement by giving notice of termination. Such notice could be given without breach not earlier than 21 August 2009. It is relevant to notice that the order sought in par 1.1 is mandatory in nature.

43 Paragraph 1.2 seems to me to involve several assumptions. It assumes that Mr Thomas has primacy in the carriage of the sale process. Of course, that that is Mr Thomas' contention. However, in my view the contrary is arguable. Next, par 1.2 assumes that the marketing and sale of the Aircraft by Airflite under the Airflite agreement is consistent with and not in breach of the compromise agreement. As I have said, I consider it arguable on the material presently before me that the Airflite agreement was entered into in breach of cl 5 of the compromise agreement. Finally, par 1.2 also involves an assumption that Mr Thomas can unilaterally nominate another agent for corresponding reasons. It seems to me that the contrary position is at least arguable.

44 Paragraph 1.3 also involves at least the second and third of the assumptions I have mentioned in relation to par 1.2.

45 Proposed order 1.4 assumes that Mr Thomas has control over the marketing and selling process of the Aircraft. Again, in my view, the contrary is arguable.

46 Consequently, with the possible exception of par 1.1, I am not satisfied that the orders sought are strictly to enforce the terms embodied in the compromise agreement: E F Phillips & Sons v Clarke (325).

47 I turn to the second issue between the parties; has the compromise agreement arguably been terminated? Principles about when a breach or other conduct entitles an innocent party to terminate are outlined in the High Court's decision in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 [44] - [56]. In summary, the circumstances giving an innocent party a right to terminate include breach of an essential term or condition, serious breach of an intermediate term, or repudiation in the sense of a renunciation. Ms Cummins relies on the first two of those categories of conduct.

48 Ms Cummins relies on what she says was Mr Thomas' unilateral appointment of Airflite, together with a number of aspects of the terms of that appointment. As I have said, it seems to me to be arguable that the appointment of Airflite involved a breach of the compromise agreement. Whether that breach is one which would give rise to a right to terminate would depend upon whether it is properly characterised as either a breach of condition or a substantial breach of an intermediate term. Those seem to me to be matters not appropriately determined summarily. In particular, the question of whether there is a substantial breach of an intermediate term, is by its nature, to be assessed in the light of all of the circumstances.

49 Ms Cummins also relies on Mr Thomas' alleged delay in selling the Aircraft. Mr Thomas submits that there is no clear evidence of delay. Certainly there is some material suggesting that the Aircraft was not airworthy until early May 2009: see Ms Cummins solicitor's letter of 6 May 2009 and the affidavit of Mr Colville, an aircraft engineer, sworn 29 July 2009. That point may however not be determinative. In any event, there is a question as to whether that factual matter should be finally determined now.

50 Mr Thomas further submits that even if there was some delay, the compromise agreement stated no time for performance and Ms Cummins at no time gave notice making time of the essence. I accept those propositions. There may be formidable obstacles to a claim on the part of Ms Cummins that she was entitled to terminate the compromise agreement on grounds of delay, but delay is not the only alleged basis for the termination. I am not satisfied that it is appropriate to determine, in a summary way, adversely to Ms Cummins, whether all of the matters relied on by Ms Cummins, taken together, entitled her to terminate the compromise agreement.

51 Mr Thomas referred to the decision of McPherson J in General Credits v Fenton Lake and submitted that the decision on the facts in that case was of some assistance to the consideration of this case. I accept Ms Cummins' submission that the circumstances of that case were significantly different to the present case. As Ms Cummins submits, in that case there was a deed of compromise; the primary facts were not in substantial dispute; the orders sought reflected precisely what the parties had consented to, and the only issue on which the termination was based was delay.

52 Next, Mr Thomas says that it is clear that by Ms Cummins' solicitor's letter of 24 July 2009 Ms Cummins elected to affirm the compromise agreement and so waived any right of termination that she might have had. I am not satisfied that Ms Cummins' arguments on termination can be dismissed in a summary proceeding on that basis. Mr Thomas' submissions fixed upon the following two paragraphs of Ms Cummins' solicitor's letter of 24 July 2009:

Our client has not yet terminated the Compromise Agreement and, as we have explained to you, her election to do so, or to waive your client's defaults, will depend, at least in part, on his response to the breaches of the Compromise Agreement that we have pointed out. So far, regrettably, your client has not remedied, or even attempted to remedy, any of these defaults.

However, because our client has not yet terminated the Compromise Agreement, she of course acknowledges that she remains bound by it and, accordingly, she will follow the Compromise Agreement should she or her broker, Mr Eriksson, find a buyer. Although the agreement does not expressly deal with this situation, we repeat that our client proposes to consult with your client in relation to any proposed sale and, she hopes, to secure his agreement to any such sale.

53 In my opinion, when the letter of 24 July 2009 is read as a whole it is readily arguable that the effect of the letter can be summarised in this way: Ms Cummins is considering her position in relation to Mr Thomas' breaches, and if Mr Thomas does not remedy the breaches Ms Cummins may terminate the compromise agreement. Throughout the letter it is made clear that Ms Cummins is contemplating terminating the compromise agreement. It is open to infer that that is a reference to terminating the compromise agreement on the grounds of the breaches referred to in the letter. Moreover, the offer made in the letter of 24 July 2009 was an offer that took effect only in the event that Ms Cummins terminated or purported to terminate the compromise agreement.

54 For those reasons I am not satisfied that the letter of 24 July 2009 can be characterised as an unequivocal election to affirm the compromise agreement in the face of the breaches referred to in that letter.

55 For the reasons I have given, Mr Thomas has not clearly satisfied me that it is just to make the orders sought on a summary basis.

56 I am not satisfied that the application is to strictly enforce the compromise agreement and no more. There are real questions in relation to the proper construction of the compromise agreement, and whether on its proper construction it would support the relief sought in pars 1.1 to 1.4 of Mr Thomas' minute of proposed orders. Moreover, there are real questions as to whether Ms Cummins has validly terminated the compromise agreement.

57 For those reasons I would dismiss the application.