CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH
AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND
NON-PERFORMANCE
– REPUDIATION – WHAT AMOUNTS TO REPUDIATION – where the
Source
Original judgment source is linked above.
Catchwords
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACHAND DEFENCES TO ACTION FOR BREACH – REPUDIATION ANDNON-PERFORMANCE– REPUDIATION – WHAT AMOUNTS TO REPUDIATION – where theplaintiff boxing promotion company contractedwith the defendant boxer to be thedefendant’s exclusive promoter – where the plaintiff was contracted
by a broadcaster
to broadcast fights – where the plaintiff’s
contract with the broadcaster was not renewed after 2022 – where the
defendant was required to participate in a match to defend his championship
title within a certain period – where the defendant
purported to terminate
the contract because the plaintiff had not identified any television deal which
would enable it to promote
the defendant in Australia or overseas, and because
the plaintiff failed to organise and promote fights for the defendant in
Australia
– where the defendant also terminated on the basis that the
plaintiff sought to compel him to participate in overseas boxing
matches
organised by a third party promoter without his agreement – where the
plaintiff contended that the purported termination
amounted to repudiation
– whether the plaintiff repudiated the contract so as to make the
defendant’s purported termination
of the contract lawful and effective
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND
INTERPRETATION OF CONTRACTS – IMPLIED TERMS –
TERMS ESSENTIAL TO
ENABLE PERFORMANCE – where the defendant argued that it was an implied
term of the contract that the plaintiff
would maintain its contract with the
broadcaster or secure materially equivalent broadcasting rights – where
the defendant
argued that this implied term was breached and that breach
entitled him to terminate the contract – where the parties contemplated
that the plaintiff, but not the defendant, would be entitled to terminate the
contract in the event that the broadcasting contract
was lost – whether
the term contended for could be implied into the contract
TRADE AND
COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION
– CONSUMER PROTECTION – MISLEADING
OR DECEPTIVE CONDUCT OR FALSE
REPRESENTATIONS – CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION
– STATEMENTS AS
TO FUTURE MATTERS AND PROMISES – where the defendant
argued that he was induced to enter the contract by misrepresentations
made by
the director of the plaintiff such that the plaintiff could not claim damages
for any unlawful termination of the contract
by the defendant – where the
defendant argued that the plaintiff’s director made representations as to
the circumstances
in which the plaintiff might lose its broadcasting rights
– where the defendant argued that the plaintiff’s director
did not
disclose that the broadcasting rights would expire at the end of 2022 –
whether the purported representations were
made, and if so, whether they
induced the defendant to enter the contract
DAMAGES – ASSESSMENT
OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – PARTICULAR HEADS OF LOSS
– LOSS OF CHANCE OR
OPPORTUNITY – where the plaintiff argued that it
lost several commercial opportunities relating to the defendant participating
in
boxing matches as a result of the defendant terminating the contract –
where it remained possible that some or all of the
proposed United Kingdom
fights the plaintiff sought to have the defendant participate in may not have
occurred – whether the
defendant’s termination of the contract
caused the plaintiff to lose those commercial opportunities – assessment
of the
value of the commercial opportunities which the plaintiff lost
Australian Consumer Law, s 4, s 18, s 243
BP Refinery
(Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, applied
Codelfa Construction Pty Ltd v State Rail Authority of New South
Wales (1982) 149 CLR 337, applied
Fightvision Pty Ltd v Onisforou
(1999) 47 NSWLR 473, applied
Koompahtoo Local Aboriginal Land
Council v Sanpine Pty Ltd [2007] HCA 61
(2007) 233 CLR 115, applied
Laurinda Pty
Ltd v Capalaba Shopping Centre Pty Ltd [1989] HCA 23
(1989) 166 CLR 623,
cited
Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14
(1985) 157
CLR 17, cited
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332,
applied
Shevill v Builders Licensing Board [1982] HCA 47
(1982) 149 CLR 620,
applied
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245, cited
Judgment (111 paragraphs)
[1]
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - REPUDIATION - WHAT AMOUNTS TO REPUDIATION - where the plaintiff boxing promotion company contracted with the defendant boxer to be the defendant's exclusive promoter - where the plaintiff was contracted by a broadcaster to broadcast fights - where the plaintiff's contract with the broadcaster was not renewed after 2022 - where the defendant was required to participate in a match to defend his championship title within a certain period - where the defendant purported to terminate the contract because the plaintiff had not identified any television deal which would enable it to promote the defendant in Australia or overseas, and because the plaintiff failed to organise and promote fights for the defendant in Australia - where the defendant also terminated on the basis that the plaintiff sought to compel him to participate in overseas boxing matches organised by a third party promoter without his agreement - where the plaintiff contended that the purported termination amounted to repudiation - whether the plaintiff repudiated the contract so as to make the defendant's purported termination of the contract lawful and effective
[2]
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS - TERMS ESSENTIAL TO ENABLE PERFORMANCE - where the defendant argued that it was an implied term of the contract that the plaintiff would maintain its contract with the broadcaster or secure materially equivalent broadcasting rights - where the defendant argued that this implied term was breached and that breach entitled him to terminate the contract - where the parties contemplated that the plaintiff, but not the defendant, would be entitled to terminate the contract in the event that the broadcasting contract was lost - whether the term contended for could be implied into the contract
[3]
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS - CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION - STATEMENTS AS TO FUTURE MATTERS AND PROMISES - where the defendant argued that he was induced to enter the contract by misrepresentations made by the director of the plaintiff such that the plaintiff could not claim damages for any unlawful termination of the contract by the defendant - where the defendant argued that the plaintiff's director made representations as to the circumstances in which the plaintiff might lose its broadcasting rights - where the defendant argued that the plaintiff's director did not disclose that the broadcasting rights would expire at the end of 2022 - whether the purported representations were made, and if so, whether they induced the defendant to enter the contract
[4]
DAMAGES - ASSESSMENT OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT - PARTICULAR HEADS OF LOSS - LOSS OF CHANCE OR OPPORTUNITY - where the plaintiff argued that it lost several commercial opportunities relating to the defendant participating in boxing matches as a result of the defendant terminating the contract - where it remained possible that some or all of the proposed United Kingdom fights the plaintiff sought to have the defendant participate in may not have occurred - whether the defendant's termination of the contract caused the plaintiff to lose those commercial opportunities - assessment of the value of the commercial opportunities which the plaintiff lost
[5]
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, applied
[6]
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales(1982) 149 CLR 337, applied
[7]
Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473, applied
[1] The plaintiff, D & L Events Pty Ltd, is a boxing promotion company. It is controlled by Dean Lonergan.
[2] The defendant, Mr Opetaia, is a professional boxer. He won the International Boxing Federation (IBF) world cruiserweight championship on 2 July 2022.
[3] D & L Events and Mr Opetaia executed a boxer promotion contract on 25 August 2019 (Contract), pursuant to which Mr Opetaia appointed D & L Events as his exclusive promoter. At that time, D & L Events was contracted by Fox Sports to produce lineal shows and pay-per-view (PPV) shows for broadcast on Foxtel and the Main Event PPV service (Fox Sports Contract). The Fox Sports Contract expired on 31 December 2022.
[4] On 20 February 2023, Mr Opetaia's solicitors sent a letter to D & L Events purporting to terminate the Contract on various grounds. Later the same day, D & L Events' solicitors responded by rejecting the purported termination of the Contract as unlawful, asserting that the purported termination amounted to a repudiation, and advising that D & L Events did not accept that repudiation but instead chose to affirm the Contract.
[5] D & L Events commenced this proceeding on 8 March 2023, seeking a declaration that the purported termination was of no force or effect, together with an order for specific performance of the Contract by Mr Opetaia.
[6] On 17 March 2023, Burns J refused an application by D & L Events for interlocutory relief which would have restrained Mr Opetaia from acting upon the purported termination of the Contract or entering a contract with any other boxing promoter.[1] Following that decision, Mr Opetaia signed a contract with a different promoter.
[7] When the trial commenced, D & L Events elected to treat the Contract as being at an end, and to seek damages in lieu of specific performance, in circumstances where it submits that Mr Opetaia's repudiatory conduct is continuing.[2] It claims damages for loss of the benefits which performance of the Contract would have conferred on it. That is, the amounts it would have earned from promoting boxing matches involving Mr Opetaia in the period from the purported termination on 20 February 2023 up to 30 June 2024 when the Contract would otherwise have come to an end.
[15]
(a) whether D & L Events repudiated the Contract after it lost its broadcasting rights for fights involving Mr Opetaia upon the expiry of the Fox Sports Contract;
(b) whether D & L Events breached an implied term of the Contract that it had, and would maintain for the term of the Contract, broadcasting rights with Foxtel and Main Event or equivalent broadcasting rights;
(c) whether Mr Opetaia was induced to enter Contract by misrepresentations made by Mr Lonergan.
[16]
[9] If I find that Mr Opetaia's purported termination of the Contract was unlawful, I must consider whether D & L Events has established an entitlement to the damages it claimed, particularly whether:
[17]
(a) Mr Opetaia's termination of the Contract caused D & L Events to lose the benefits it has identified in its pleaded counterfactual scenario; and
(b) there is a sufficient basis to value such loss.
[18]
[10] For the reasons which follow, D & L Events' originating application must be dismissed.
[19]
The parties' dealings before entry into the Promotion Contract
[20]
[11] From about 2016, Mr Opetaia was managed by Michael Francis. Mr Francis initially approached Mr Lonergan in about August 2017. Mr Francis gave evidence, which I accept, that he approached Mr Lonergan to promote Mr Opetaia because Mr Lonergan had a deal with Fox Sports.
[12] Mr Francis wanted to get Mr Opetaia's fights broadcast on Fox Sports as a means of raising his profile to the level where he became what Mr Francis described as a "pay-per-view fighter".[3] To similar effect, Mr Lonergan said that, from his perspective as a boxing promoter, he sought to develop the fighters he promoted into "pay-per-view stars" because PPV fights was where he made money.[4]
[13] In early March 2019, Stuart Duncan (who worked for Mr Lonergan and was a friend of Mr Francis) began negotiating with Mr Francis for D & L Events to promote Mr Opetaia.
[14] Following those discussions, D & L Events sent several written offer sheets to Mr Francis in late April and early May 2019.[5] Each of those offer sheets set out a proposed fight schedule for Mr Opetaia: two fights up to the end of 2019 and four fights in both 2020 and 2021. The offer sheets also contained the following statement about the proposed schedule:
[21]
"Obviously 2020 could see Jai fighting in an eliminator and the amount of fights in 2020 and 2021 can be determined success [sic]. In the event Jai secures a world title late 2020 - he may only fight 2 times in 2021. We believe to build Jai into a PPV fighter will require 5 fights to build his profile."
[22]
[15] The offer sheets also prescribed the payments Mr Opetaia would receive from D & L Events for each fight: $20,000 for each of the first and second fights; $25,000 for the third fight; $30,000 for each of the fourth and fifth fights; $50,000 for a world title eliminator fight; $125,000 for a world title fight; $150,000 for a world title defence. The offer sheets further provided for Mr Opetaia to receive, if he became a PPV headline fighter, a bonus of 10% of PPV revenue above 10,000 PPV buys, increasing by 10% with every successful world title defence up to a cap of 50% of PPV revenue above 10,000 PPV buys.
[16] On 17 June 2019, Mr Lonergan sent a draft contract to Mr Francis.[6]
[17] Mr Francis met with Mr Lonergan on 15 August 2019 in Sydney. Mr Francis gave evidence that, during that meeting, Mr Lonergan referred to D & L Events' exclusive contract with Fox Sports. He said he wanted to work with the fighters managed by Mr Francis, and he wanted to build Mr Opetaia into a PPV fighter over the next two years.[7] I accept that evidence. It is consistent with the statement made by D & L Events in the offer sheets extracted at [14] above.
[18] On 20 August 2019, Mr Lonergan sent an email to Mr Francis complaining about the time it was taking to finalise a contract with Mr Opetaia. In that email, Mr Lonergan stated that he had not received any comments back from the solicitor engaged by Mr Francis to review the draft contract.[8]
[19] On 21 August 2019, Mr Francis sent D & L Events a marked-up version of the draft contract which had been reviewed by the solicitor acting for Mr Opetaia.[9]
[20] On 22 August 2019, Mr Lonergan sent an email to Mr Francis rejecting the proposed changes. He told Mr Francis that if Mr Opetaia did not sign the draft contract in the form it was first provided to Mr Francis drafted then the parties would both have to move on.[10]
[21] Mr Francis and Mr Opetaia accepted that position and the parties signed the Contract on 25 August 2019 at Mr Francis' apartment on the Gold Coast. There is conflicting evidence about what discussion occurred before the agreement was signed. I will address that evidence when I come to consider the misrepresentation case.
[23]
[22] Clause A of the Introduction to the Contract recorded that, except as expressly provided in the agreement itself, D & L Events would be the promoter for all events in relation to the agreement. Clause B of the Introduction recorded that Mr Opetaia wished to obtain promotional services and commitments from D & L Events to further his career as a professional boxer.
[23] The operative part of the Contract comprised two parts: the Key Terms in clauses 1 to 7 and the General Terms in clauses 8 to 24.
[24] Clauses 1 and 2 of the Key Terms addressed the term of the Contract. Despite not being signed until 25 August 2019, the Contract had a commencement date of 1 July 2019 (clause 1) and an end date of 30 June 2022 which would automatically renew for a further term of two years to 30 June 2024 provided D & L Events complied with all its material obligations under the agreement up to the date of the renewal (clause 2). It is common ground that the Contract was renewed under clause 2 such that it would continue until 30 June 2024.
[25] Clause 3 of the Key Terms is important. It dealt with "Promotions and Payments". It comprised five parts, but it is sufficient at this stage to refer to only two of those, namely:
[24]
(a) clauses 3.1 to 3.6, which were set out under the heading "DLE Boxing Matches"; and
(b) clause 3.7, which addressed "Non-DLE Boxing Matches".
[25]
[26] Various terms used in these clauses were defined in clause 8.1 of the General Terms:
[26]
(a) "Event" was defined to mean a promotion featuring a "Boxing Match";
(b) "Boxing Match" was defined to mean either a "DLE Boxing Match" or a "Non-DLE Boxing Match";
(c) "DLE Boxing Match" was defined to mean a professional boxing match featuring Mr Opetaia which was organised and promoted by D & L Events as lead promoter; and
(d) "Non-DLE Boxing Match" was defined to mean a professional boxing match featuring Mr Opetaia which was not organised or promoted by D & L Events and was instead promoted by a third party, although D & L Events may be a co-promoter on a limited basis.
[27]
[27] Under the heading "DLE Boxing Matches", clause 3.1 provided:
[28]
"Except as is expressly provided otherwise in this Agreement, DLE will run all Events in its discretion. [Mr Opetaia] acknowledges DLE's expertise in this area and while DLE shall take all reasonable steps to consult [Mr Opetaia] in relation to an Event, DLE shall be entitled in its discretion to make the final decisions in relation to the promotion of Events, including but not limited to venues, dates, sponsors and TV deals. [Mr Opetaia], in consultation with his manager and DLE, will make the final decision on all opponents of [Mr Opetaia] as provided for in clause 16.2 of the General Terms."
[29]
[28] Clause 3.2 provided that, except as expressly provided otherwise in the Contract, D & L Events would provide all necessary capital to promote each Event and would assume all financial risk of all Events promoted in relation to the Contract.
[29] Clause 3.3 recorded the parties' intention that Mr Opetaia would fight in at least four Boxing Matches each calendar year during the initial term of the Contract.
[30] Clause 3.4 set out the fees which were payable to Mr Opetaia for his participation in DLE Boxing Matches as part of a televised fight night on Fox Sport, referred to as a "Fight Night Boxing Match". Those fees were consistent with those set out previously in the offer sheets referred to at [14]-[15] above. The final paragraph of clause 3.4 provided as follows:
[30]
"DLE may in its discretion seek to have [Mr Opetaia] participate in a DLE Boxing Match that is not a Fight Night Boxing Match (including a DLE Boxing Match that is part of an Event that is broadcast on a Pay Per View ('PPV') basis but is not the Main Event) in order to meet its minimum number of boxing matches per year set out above in [clause 3.3] provided that, subject to [clause 3.5] below, [Mr Opetaia] will be entitled to the same fee as set out above."
[31]
[31] Clause 3.5 set out the fees which were payable to Mr Opetaia for his participation in a PPV Event involving a DLE Boxing Match that was any of the following: the Main Event of the PPV Event; a world title eliminator boxing match; a world title boxing match; or a world title defence boxing match. If such a match was the Main Event of the PPV Event, Mr Opetaia would be entitled to a share of the PPV revenue, commencing at 10% of the residential PPV sales revenue received by D & L Events for sales above the first 10,000 residential PPV buys. This revenue share would increase by 10% following each PPV Main Event won by Mr Opetaia, up to a cap of 50%. Again, those fees were consistent with those set out previously in the offer sheets referred to at [14]-[15] above.
[32] Clause 3.6 dealt with the mechanics of payment by D & L Events to Mr Opetaia for his participation in DLE Boxing Matches.
[33] Under the heading "Non-DLE Boxing Matches", clause 3.7 provided:
[32]
"If [Mr Opetaia] participates in a Non-DLE Boxing Match then [Mr Opetaia] will be entitled to whatever Fighter's fee is negotiated between DLE and the promoter of such Non-DLE Boxing Match, provided that it is expressly agreed that DLE will not be any [sic] way liable for the payment of such fee, whether due to non-payment, in whole or in part, by the third party promoter or otherwise. [Mr Opetaia] will retain 100% of such fee (subject to the deduction of any applicable withholding tax and applicable sanctioning fees). [Mr Opetaia]'s prior approval of such fee will be required if such fee can reasonably be expected to be less than what [Mr Opetaia] would have received for an equivalent Boxing Match had it taken place in Australia as a DLE Boxing Match. If the fee can reasonably be expected to equal or exceed such level then [Mr Opetaia]'s approval of the fee will not be required. It is expressly agreed and acknowledged that DLE will be entitled to negotiate for and retain the broadcast rights for Australia, New Zealand and other territories in relation to any such Non-DLE Boxing Match (and the Event of which it forms part) and retain 100% of resulting revenue. It is also expressly agreed and acknowledged that DLE will be entitled to charge and fully retain a provision of services fees [sic] (or equivalent) payable by the third party promoter of any Non-DLE Boxing Match."
[33]
[34] Clause 4 of the Key Terms provided that D & L Events would use all reasonable endeavours to provide Mr Opetaia with a minimum of four Boxing Matches every 12 months unless the parties agreed otherwise, but that D & L Events would not be in breach of that clause if Mr Opetaia failed to approve reasonable opponents.
[35] Clause 11 of the General Terms set out Mr Opetaia's obligations, which relevantly included:
[34]
(a) to attend and fight in the Boxing Matches - that is, either DLE Boxing Matches and Non-DLE Boxing Matches (clause 11.1);
(b) to co-operate with and assist D & L Events in its promotion of him and the Boxing Matches - again, either DLE Boxing Matches and Non-DLE Boxing Matches (clause 11.4(b));
(c) performing all of his obligations under the Contract with due care, skill and diligence, in a timely and professional manner and in accordance with (among other things) the reasonable directions of D & L Events (clause 11.5(a)(iii)).
[35]
[36] By clauses 12.1(a) and 12.1(d), Mr Opetaia agreed that he would not enter into an agreement to fight, and would not participate, in a Non-DLE Boxing Match without the prior written consent of D & L Events.
[37] Clause 13 of the General Terms set out various other obligations of D & L Events under the Contract, including:
[36]
(a) using all reasonable endeavours to secure the minimum of four Boxing Matches every 12 months for Mr Opetaia as required by clause 4 of the Key Terms (clause 13.2);
(b) using all reasonable endeavours to promote Mr Opetaia and to provide appropriate Boxing Matches that would assist Mr Opetaia to attain a number one ranking with one or more of the major sanctioning bodies as soon as reasonably possible to enable him to compete in world title boxing matches, subject to his performance in those Boxing Matches (clause 13.4); and
(c) making every reasonable effort to obtain as many PPVs as possible for the PPV Boxing Matches in which Mr Opetaia participated, by professionally promoting both Mr Opetaia and the PPV Boxing Matches in which he participated (clause 13.5).
[37]
[38] By clause 15.1 of the General Terms, Mr Opetaia appointed D & L Events as his exclusive promoter and, subject to the terms of the Contract, granted it the exclusive right to promote him and the Boxing Matches in which he participated. This included the exclusive right to organise all of the Boxing Matches.
[39] Clause 15.2 contained certain acknowledgements by Mr Opetaia, relevantly including that:
[38]
(a) D & L Events may exploit the rights granted to it under clause 15.1 in any manner it considered appropriate (clause 15.2(a));
(b) in respect of Non-DLE Boxing Matches, D & L Events would enter into, manage and control all negotiations in relation to those Non-DLE Boxing Matches, in consultation with Mr Opetaia (clause 15.2(c)).
[39]
[40] Clause 16 of the General Terms dealt with Boxing Matches. It relevantly provided that:
[40]
(a) D & L Events would select the date and location of each Boxing Match "after negotiation and written agreement with [Mr Opetaia]" (clause 16.1);
(b) D & L Events would select the opponent for each Boxing Match subject to the approval of Mr Opetaia (clause 16.2);
(c) Mr Opetaia acknowledged that D & L Events would have full control over the DLE Boxing Matches and may change any aspect of a DLE Boxing Match at any time, save that it would not change Mr Opetaia's opponent without his prior written consent (clause 16.3); and
(d) Mr Opetaia acknowledged that, in circumstances where D & L Events would not have any control over the Non-DLE Boxing Matches, any aspect of a Non-DLE Boxing Match may be subject to change at any time (clause 16.4).
[41]
[41] Clause 21.1 of the General Terms gave D & L Events a right to terminate the Contract in various circumstances. Relevantly, clause 21.1(c) provided a right to terminate if the Fox Sports Contract expired and was not renewed for at least another three years or a materially equivalent broadcast agreement was not entered into for a term of at least three years. Clause 21.2 of the General Terms set out the circumstances in which Mr Opetaia could terminate the Promotion Contract, but it made no reference to the renewal of the Fox Sports Contract.
[42]
Events following entry into the Promotion Contract
[43]
[42] Mr Opetaia participated in five fights under the terms of the Contract. The first was against Nikolas Charalampous at Luna Park in Sydney. That match took place in early August 2019, prior to the signing of the Contract but after its commencement date (see [24] above). The second was against Mark Flanagan at the Hordern Pavilion in Sydney in late 2019. After delays due to COVID, Mr Opetaia's third match was against Benjamin Kelleher at the Fortitude Valley Music Hall in Brisbane in October 2020. Mr Opetaia won those fights.
[43] In late 2020, Mr Opetaia informed Mr Lonergan that his hand was broken. As a consequence, Mr Lonergan took Mr Opetaia off a proposed card of fights which had been scheduled for December 2020. Mr Opetaia's fourth fight under the Contract did not take place until December 2021, when he defeated Daniel Russell at the Fortitude Valley Music Hall.
[44] By late 2021, D & L Events had begun negotiations to promote a fight in Australia for the IBF world cruiserweight championship between Mairis Briedis, then the IBF world champion, and Mr Opetaia.[11] After some delays, that match took place on the Gold Coast on 2 July 2022. As already noted , Mr Opetaia won that fight.
[45] To secure the world title fight on the Gold Coast, D & L Events paid Mr Briedis a fee of US$350,000 and a further US$200,000 as a provision of service fee to Mr Briedis' promoters. The total cost incurred by D & L Events in promoting the world title fight with Mr Briedis was a little under AU$2.1 million.[12] In order to ensure D & L Events had sufficient funds to secure the world title fight, Mr Lonergan sought financial assistance from Fox Sports. Fox Sports paid D & L Events AU$1.1 million to defray the cost of staging the fight. In return, Fox Sports was to receive 100% of the revenue from PPV buys up to an agreed number, with a 50/50 split of revenue from PPV buys above that agreed number between Fox Sports and D & L Events.[13]
[46] Mr Opetaia's fight against Mr Briedis generated only around AU$1.7 million in revenue.[14] It generated between 6,000 and 7,000 PPV buys.[15] Mr Lonergan accepted in cross-examination that this level of PPV buys was low, and that he knew that would be the case because the match had been scheduled to take place on a Saturday night during rugby league season. He explained that he had scheduled the fight on that date because Mr Opetaia wanted the fight to happen and to wait for a date which would lead to more PPV buys would mean a further delay of two to three months.
[44]
"I refer you to clause [3.1] of the promotional contract between D and L Events and Jai Opetaia signed by both Jai and yourself, it states:
[45]
Except as is expressly provided otherwise in this Agreement, DLE will run all Events in its discretion. The Fighter acknowledges DLE's expertise in this area and while DLE shall take reasonable steps to consult the Fighter in relation to an Event, DLE shall be entitled in its discretion to make the final decisions in relation to the promotion of Events including but not limited to venues, dates, sponsors, and TV deals. The Fighter, in consultation with his manager and DLE, will make the final decision on all opponents of the Fighter as provided for in clause 16.2 of the General Terms;
[46]
Please be advised I am taking on board all thoughts being forwarded by Tasman Fighters [Mr Francis' boxing management company] and they are under consideration.
[47]
I will inform you of my decision as to when and where the fight with Masternak will take place, based on all the information, not limited to but including, information from Mark Mathie [Mr Opetaia's fitness trainer] on Jai's fitness and readiness, with consideration also given to the thoughts and/or requirements of Mark Wilson [Mr Opetaia's boxing trainer], Jai himself and financial consideration.
[48]
The outcome also depends on the Polish Promoters being reasonable in their requests, which to date they have not been.
[49]
As you may be aware if D and L Events and Masternaks [sic] promoter can't come to an agreement on dates and fight value, the event will go to a purse bid. Upon which time D and L Events will put in a bid that we see as fair value for an event that brings a Polish boxer to the table with zero promotional equity.
[50]
And yes we are more than able to put this event on in Australia."
[51]
[62] Mr Francis replied later the same day, stating that Mr Lonergan had not identified any television deal which D & L Events had which would enable it to promote Mr Opetaia as a world champion in Australia or as an "A fighter" overseas.[30]
[63] As previously noted, Mr Opetaia's solicitors sent a letter to D & L Events purporting to terminate the Promotion Contract on 20 February 2023.[31]
[52]
[64] In claiming damages in lieu of specific performance, D & L Events pleaded that its loss of bargain resulting from Mr Opetaia's termination of the Contract should be assessed on the basis that, had that not occurred, Mr Opetaia would have fought in and won five fights in defence of his IBF world title between the date of the purported termination and the expiry of the Contract on 30 June 2024. The particulars of the counterfactual scenario advanced by D & L Events are as follows:[32]
[53]
(a) Mr Opetaia's mandatory IBF world title defence against Mateusz Masternak would have gone to a purse bid. Boxxer would have been successful in securing the rights to promote that fight by bidding up to US$300,000. That title defence would have taken place in the United Kingdom. Mr Opetaia would have been paid 75% of the purse bid by Boxxer for his participation in the fight. D & L would have been entitled to receive 30% of Mr Opetaia's purse pursuant to clause 3.8 of the Contract (which applied to a situation where D & L Events lost a purse bid for a world title defence). Mr Opetaia would have won his world title defence against Mr Masternak.
(b) Mr Opetaia would have fought Lawrence Okolie in the United Kingdom in June or July of 2023. Mr Opetaia would have received US$350,000 from Boxxer for his participation in that fight. D & L Events would have received a provision of services fee of US$150,000 from Boxxer. D & L Events would also have received the revenue from 6,000 PPV buys in Australia on the Endeavour streaming platform. Mr Opetaia would have won this fight against Mr Okolie.
(c) Mr Opetaia would have fought against either Chris Billam-Smith or Richard Riakporhe in the United Kingdom in September or October of 2023. Mr Opetaia would have received US$250,000 from Boxxer for his participation in that fight. D & L Events would have received a provision of services fee of US$120,000 from Boxxer. D & L Events would also have received the revenue from 5,000 PPV buys in Australia on the Endeavour streaming platform. Mr Opetaia would have won this fight against either Mr Billam-Smith or Mr Riakporhe.
(d) Mr Opetaia would have fought a re-match against Lawrence Okolie in the United Kingdom in December 2023 or January 2024. Mr Opetaia would have received US$500,000 from Boxxer for his participation in that fight. D & L Events would have received a provision of services fee of US$300,000 from Boxxer. D & L Events would also have received the revenue from 10,000 PPV buys in Australia on the Endeavour streaming platform. Mr Opetaia would have won this fight against Mr Okolie.
(e) D & L Events would have staged a fifth world title defence in Gosford, Australia in about May 2024. The fight would have been streamed in Australia on the Endeavour streaming platform. Mr Opetaia would have received 70% of the net profit generated by that fight and D & L Events would have received 30% of the net profit, pursuant to clause 3.9 of the Contract (which provided for the parties to enter into a co-promotional arrangement for all of Mr Opetaia's fights after he won or drew his fourth consecutive world title defence).
[54]
[65] I turn to the question whether, by reason of the expiry of the Fox Sports Contract itself or the events which followed that expiry, D & L Events repudiated the Contract.
[66] The term repudiation has been described as an ambiguous word which is used in various senses.[33] In relying upon repudiation as a basis to terminate the Contract - or renunciation as it was referred to by the High Court in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd[34]- Mr Opetaia was referring to conduct by which a party to a contract evinces an unwillingness or an inability to render substantial performance of the contract; that is, an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations.[35]
[67] A failure by one party to perform, even if not a breach of an essential term, may evidence unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements.[36] This may occur in a situation where a number of breaches taken together evince an intention not to be bound by the terms of the contract even though the consequences of such breaches might be relatively minor.[37]
[68] The test is an objective one; that is, whether the conduct of one party to the contract is such as to convey to a reasonable person, in the situation of the other party, the defaulting party's inability to perform the contract or the intention not to perform it or to fulfil it only in a manner substantially inconsistent with the defaulting party's obligations and not in any other way.[38]
[69] Repudiation of a contract is a serious matter and is not to be lightly found or inferred.[39]
[70] Where factual inability to perform is relied upon, what needs to be shown is that the defaulting party has become wholly and finally disabled from performing the essential terms of the contract.[40]
[71] Mr Opetaia pleaded alternative bases upon which he submitted D & L Events should be found to have repudiated the Contract.
[55]
(a) effectively promote Mr Opetaia or his fights;
(b) organise a major fight in Australia with broadcast television rights; and
(c) obtain any significant number of PPV buys for Mr Opetaia's fights.
[56]
[73] Secondly, that D & L Events was not ready, willing or able to perform its obligations under the Contract. I understand this aspect of Mr Opetaia's case to mean that, by its conduct, D & L Events evinced an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. The conduct Mr Opetaia identified as evincing such an intention is its conduct in:[42]
[57]
(a) failing to genuinely negotiate and contract for a world title defence fight between Mr Opetaia and Mr Masternak; and
(b) failing to negotiate, contract, organise and promote fights for Mr Opetaia in Australia, but instead seeking to compel Mr Opetaia to fight his mandatory world title defence, and subsequent fights, in the United Kingdom.
[58]
[74] The parties' submissions addressed the effectiveness of steps which Mr Lonergan was taking, prior to the purported termination of the Contract, to organise a world title defence against Mr Masternak, to organise fights with the boxers promoted by Boxxer, and to negotiate a broadcasting agreement with Endeavour to replace the Fox Sports Contract (including whether Endeavour was an appropriate platform on which to broadcast Mr Opetaia's fights). To assess those submissions, it is necessary to consider the extent to which D & L Events was obliged under the terms of the Contract to secure appropriate fights for Mr Opetaia, to organise for those fights to take place in Australia and to arrange for the broadcast of those fights, including on a PPV basis.
[75] As to this, Mr Opetaia submitted that:
[59]
(a) the Contract was predicated on the assumption that most, if not all, of the fights he was to participate in would be promoted by D & L Events, televised on Fox Sports or its Main Event PPV service, and (at least in the case of a world title fight) result in potentially significant PPV revenue for him;
(b) upon losing the Fox Sports Contract, D & L Events became unable to offer him any of the fights referred to in clauses 3.4 to 3.6 of the Contract;
(c) it was only through fights which came under those clauses that D & L Events could perform many of its primary obligations under the Contract.
[60]
[76] I accept the first part of this submission. The assumption referred to by Mr Opetaia is apparent from the statements made by D & L Events in the offer sheets sent to Mr Francis before the Promotion Contract was signed (see [14]-[15] above), the fights which D & L Events arranged for Mr Opetaia to participate in (see [42]-[46] above) and the proposal which Mr Lonergan made to senior personnel at Fox Sports about Mr Opetaia's fight schedule for 2023 before he was informed that the Fox Sports Contract would not be renewed (see [49] above).
[77] That does not persuade me, however, that the commercial purpose of the Contract is as narrow as Mr Opetaia submitted for: that is, to enable him to fight on Fox Sports and Main Event thereby becoming a household name and generating significant PPV revenue for him. Having regard to the more qualified language which the parties used to express their agreement, I have concluded that their commercial purpose was broader: that is, the provision of promotional services to Mr Opetaia by D & L Events with the aim of furthering Mr Opetaia's career as a professional boxer. The result which Mr Opetaia identified as the commercial purpose was one possible outcome of the performance of the parties' respective obligations under the Contract. That does not mean, however, that failure, or even inability, to achieve that desired outcome meant that compliance by D & L Events with its contractual obligations could not further the broader commercial purpose as I have stated it. In those circumstances, I cannot accept the second and third parts of Mr Opetaia's submission recorded at [75](b) and [75](c) above.
[78] The second part of the submission, expressed in [75](b), does not take account of the final paragraph of clause 3.4. That paragraph contemplated that Mr Opetaia might fight in a DLE Boxing Match that was not televised on Fox Sports and need not have been broadcast on a PPV basis in order to meet its obligation to provide a minimum number of fights (see above). This means that, so far as DLE Boxing Matches were concerned, D & L Events could seek to perform its obligations by arranging for Mr Opetaia to participate in a fight which was not televised on Fox Sports or on a PPV basis. It follows that the loss of the Fox Sports Contract did not preclude D & L Events from offering Mr Opetaia a fight falling within the final paragraph of clause 3.4.
[61]
[105] As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales,[49] the implication of a term which is necessary to give business efficacy to a particular contract is the result of a deficiency in the expression of the parties' consensual agreement. A term which should have been included in that contract has been omitted. The implied term is one which it is presumed that the parties would have agreed upon had they turned their minds to it. The deficiency in the expression of the consensual agreement is caused by the failure of the parties to direct their minds to a particular eventuality and to make explicit provision for it. The implication of a term is designed to give effect to the parties' presumed intention.
[106] The conditions that must be satisfied for the implication of a such a term are:[50]
[62]
(a) it must be reasonable and equitable;
(b) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
(c) it must be so obvious that "it goes without saying";
(d) it must be capable of clear expression;
(e) it must not contradict any express term of the contract.
[63]
[107] Mr Opetaia sought to rely on two implied terms. He asserted:
[64]
(a) it was an implied term of the Contract that D & L Events would maintain the Fox Sports Contract or secure materially equivalent broadcasting rights. This implied term was said to be a condition or, alternatively, and intermediate term of the Contract, which entitled him to terminate the agreement upon breach;
(b) in the alternative, it was an implied term of the Contract that he would be entitled to terminate the agreement in the event that D & L Events lost the Fox Sports Contract and did not secure materially equivalent television broadcasting rights.
[65]
[108] In my view, neither of these terms should be implied onto the Promotion Contract.
[109] For the reasons set out in [75]-[86] above, I have concluded that D & L Events could comply with its obligations under the Contract after losing the Fox Sports Contract. For the reasons set out there, I do not accept that the Contract could not work in any manner consistent with business efficacy for both parties if D & L Events did not have the benefit of the Fox Sports Contract or a materially equivalent agreement. True it might be that, if D & L Events' loss of the Fox Sports Contract, the parties would not obtain the greatest possible financial benefit from the provision of D & L Events' promotional services, but I do not accept this would render D & L Events unable to perform its contractual obligations in a manner consistent with the broader commercial purpose of the Contract as I have stated it at [77] above. In those circumstances, I do not accept that either of the implied terms propounded by Mr Opetaia is necessary to give business efficacy to the Contract.
[110] Further, this is not a case where the asserted deficiency in the expression of the parties' agreement has been caused by a failure on their part to direct their minds to the relevant eventuality - the loss of the Fox Sports Contract - and to make explicit provision for it.
[111] The draft contract which Mr Lonergan sent to Mr Francis on 17 June 2019 addressed the issue of the loss of the Fox Sports Contract by including it in clause 21.1(c) as a circumstance in which D & L Events would be entitled to terminate the Contract, but without providing an equivalent right of termination for Mr Opetaia in clause 21.2.[51]
[112] The marked-up version of the draft contract prepared by the solicitor who acted for Mr Opetaia, sent by Mr Francis to Mr Lonergan on 21 August 2019, also addressed the loss of the Fox Sports Contract by providing for automatic termination if that eventuated and D & L Events gave a notice of termination to Mr Opetaia.[52]
[113] After Mr Lonergan refused to sign the revised draft sent to him by Mr Francis, the parties reverted to previous position and signed the Contract in the form of the draft initially provided by Mr Lonergan as set out in above.
[66]
[117] Mr Opetaia pleaded his misrepresentation case by way of counterclaim but did so defensively, seeking relief under s 243 of the Australian Consumer Law which would defeat D & L Events' claim for damages for unlawful termination of the Contract. He expressly disavowed any claim for damages on his counterclaim.
[118] Although it is not strictly necessary for me to decide Mr Opetaia's counterclaim, in case my conclusion on the repudiation case is later found to be wrong, I will set out as briefly as possible my conclusion on the misrepresentation case.
[119] By the time of closing addresses, Mr Opetaia relied on two different representations.
[120] First, on 25 August 2019, before the Contract was signed, Mr Lonergan made the following statements to Mr Opetaia and Mr Francis:
[67]
(a) the only reason clause 21.1(c) was included in the Contract was because if D & L Events lost its broadcasting rights with Fox Sports it would not be able to afford to promote Mr Opetaia and would therefore bring the Contract to an end;
(b) the only way D & L Events could lose its broadcasting rights with Fox Sports would be if it became insolvent or if Mr Lonergan became bankrupt or broke the law.
[68]
[121] Secondly, before the Contract was signed D & L Events did not disclose to Mr Opetaia or Mr Francis (or any other person associated with Mr Opetaia) that the Fox Sports Contract would, on its own terms, come to an end on 31 December 2022, or that the Fox Sports Contract could come to an end in any other circumstance than those described in the Express Representations (the Representations by Silence).
[122] Mr Opetaia submitted that these were representations as to future matters, within the meaning of s 4 of the Australian Consumer Law, which D & L Events did not have a reasonable basis for making such that the representations were misleading and deceptive contrary to s 18 of the Australian Consumer Law.
[69]
[123] Mr Francis' evidence was that, when he looked at a draft form of the Contract, the provision which permitted D & L Events to terminate if it lost the Fox Sports Contract (clause 21.1(c)) caught his attention. He said he raised that matter with Mr Lonergan when they met at Mr Francis' apartment on the Gold Coast on 25 August 2019, together with Mr Opetaia, to sign the Promotion Contract. When he asked Mr Lonergan about losing the Fox Sports Contract, Mr Lonergan said that the only way that would happen would be if he was to become insolvent or a bankrupt, or if he was to commit a crime. Because of that, Mr Francis' impression was that the Fox Sports Contract was safe.[53]
[124] That evidence, if accepted, would only establish the making of the statement set out at [120](b) above.
[125] Mr Lonergan's evidence in chief was that there was no discussion about the broadcasting rights with Fox Sports at the meeting on 25 August 2019 before the Contract was signed.[54] When the Express Representations were put to him in cross-examination, he denied having said those things.[55]
[126] Mr Opetaia's evidence about his discussions with Mr Lonergan before the Contract was signed did not address the Express Representations.[56]
[127] Mr Francis' evidence does not persuade me that Mr Lonergan made the statement set out at [120](b) above. It seems implausible that Mr Lonergan would make an unqualified statement of that nature in circumstances where the Fox Sports Contract had a limited term and Mr Lonergan had previously referred to the length of D & L Events' broadcast partnership with Fox Sports in a brochure he gave to Mr Francis when they met in Sydney on 15 [57]gust 2019.57 That document included the followin[58]statement:58
[70]
"D & L Events are proud to have partnered with Fox Sports Australia to secure 7 subscription based fight nights and 3 pay per view events per year for the next 3 years, broadcasting nationally across Australia on Fox Sports."
[71]
[128] Mr Opetaia argued that Mr Francis' evidence about the statement on 25 August 2019 was consistent with a conversation in late 2022 when Mr Francis heard rumours that the Fox Sports Contract would not be renewed. Mr Francis' evidence was that Mr Lonergan told him on that occasion that there was no way he would lose the Fox Sports Contract when he was promoting fights involving Mr Opetaia and Justis Huni, another boxer managed by Mr Francis.[59] When Mr Francis' account of that later conversation was put to Mr Lonergan in cross-examination, Mr Lonergan said he did not recall it, but he did not deny that it took place.[60] Mr Opetaia submitted that this later conversation indicated that Mr Lonergan was overly confident that the Fox Sports Contract was not going to come to an end, and minimised the prospect that it would in his dealings with Mr Francis. That was said to be consistent with him having made the statement set out at [120](b) above.
[129] I do not accept that submission. Mr Francis' communications with Mr Lonergan towards the end of 2022, addressing the prospect that the Fox Sports Contract would not be renewed, occurred in a context where Mr Huni's contract with D & L Events contained an express entitlement for Mr Huni to terminate if D & L Events lost its broadcasting rights with Fox Sports.[61] Mr Lonergan's statements at that later time seem to have been coloured by his concern to avoid Mr Huni terminating his contract.[62] That pressure to try and avoid the termination of one of D & L Events' promotion contracts did not exist on 25 August 2019 when Mr Lonergan is said to have made the statement set out at [120](b) above. However confident Mr Lonergan might have been at that earlier time that the Fox Sports Contract would be renewed, I do not accept that confidence would have caused him to make the statement set out at [120](b).
[130] Further, there is no evidence of any reference to the alleged misrepresentation, or any complaint by Mr Francis about it, after Mr Lonergan informed him on 5 December 2022 that the Fox Sports Contract would not be renewed. The notice of termination sent on 20 February 2023 makes no reference to any misrepresentation by Mr Lonergan. If Mr Lonergan had made the statement set out at , and that had induced Mr Opetaia to enter into the Contract, I would have expected Mr Francis to make some complaint about that matter to Mr Lonergan in the period leading up to the termination of the Contract.
[72]
[132] Mr Francis' evidence was that he was not provided with a copy of the Fox Sports Contract and Mr Lonergan did not tell him anything abouts its terms. He did not know when the Fox Sports Contract commenced or when it might end.[63] He did not become aware that the Fox Sports Contract might come to an end until 8 to 10 weeks before the end of 2022.[64]
[133] Mr Opetaia's evidence was that when he signed the Contract: he had not seen the Fox Sports Contract; he had not been told anything about the terms of that contract; and he did not know if or when that contract might expire.[65]
[134] D & L Events submitted that the term of the Fox Sports Contract was disclosed to:
[73]
(a) Mr Opetaia by the reference in clause 21.1(c) of the Contract to a situation where the Fox Sports Contract terminates and was not "renewed or extended for at least another three years" or a materially equivalent agreement was not entered into "with a term of at least three years";
(b) Mr Francis by the reference in clause 8.2 of a Regional Promotional Agreement which he signed on 25 August 2019,[66] to a situation where the Fox Sports Contract was not "renewed or extended for at least another three years" or a materially equivalent agreement was not entered into "with a term of at least three years".
[74]
[135] Further, D & L Events submitted that Mr Francis was aware of the term of the Fox Sports Contract because of the statement in the brochure referred to at [127] above.
[136] Were it not for the statement in that brochure, I would not have been satisfied that the terms of clause 21.1(c) of the Contract (or clause 8.2 of the Regional Promotional Agreement) were sufficient to disclose to Mr Francis and Mr Opetaia the fact that, if not renewed, the term of the Fox Sports Contract would expire while the Contract remained on foot. As Mr Opetaia submitted, the wording of clause 21.1(c) is conditional: "if the [Fox Sport Contract] terminates" not "when the [Fox Sports Contract] terminates". Clause 8.2 in the Regional Promotional Agreement was in the same form. Nor would the reference to renewal for "another" three years ordinarily be understood, without more, as indicating that the Fox Sports Contract must have had an initial 3-year term.
[137] The position changes, however, when the terms of clause 21.1(c) are considered in the context of the statement in the brochure given to Mr Francis. It is true that statement did not refer to a contract with a firm end date but, given the importance which Mr Francis and Mr Opetaia said they placed on the broadcast rights with Fox Sports, it ought to have been apparent to Mr Francis that the partnership referred to in the brochure was the subject of the Fox Sports Contract. It was a clear statement that an arrangement had been reached between D & L Events and Fox Sports "for the next three years". In that context, when Mr Francis' attention was drawn to clause 21.1(c) of the Promotion Contract,[67] it ought to have been apparent to him, from the reference to renewal of the Fox Sports Contract for at least "another three years", that D & L Events' existing contract had an initial term of three years (as stated in the brochure). Further, it ought to have been apparent to Mr Francis, from the fact that clause 21.1(c) addressed the possibility that the Fox Sports Contract might not be renewed, that D & L Events might lose the broadcasting rights with Fox Sports during the term of the Contract (a period of three years with automatic renewal for an additional two years to 30 June 2024 provided D & L Events was not in material breach).
[138] In those circumstances I am not satisfied that Mr Opetaia has established that D & L Events failed to disclose that the Fox Sports Contract might come to an end during the term of the Contract.
[75]
[141] I have approached the questions of causation and the assessment of damages on the footing that my conclusion on the repudiation case is found to be wrong. In that event, these issues would fall to be determined on the basis that D & L Events could exercise a discretion under the Contract to compel Mr Opetaia to participate in fights organised by Boxxer in the United Kingdom.
[142] D & L Events claimed damages assessed by reference to amounts which, but for the termination on 20 February 2023, it says it would have earned under the terms of the Contract from fights Mr Opetaia would have participated in. Those fights are identified in the pleaded counterfactual scenario referred to at [64] above.
[143] To obtain an award of damages, D & L Events must first establish that Mr Opetaia's termination of the Contract caused him to suffer some loss or damage. In a case such as this, that will be done by demonstrating, on the balance of probabilities, that the termination of the Contract caused the loss of a commercial opportunity which had some value (not being a negligible value).[68] An opportunity will be of value where there is a substantial, and not a merely speculative, prospect that a benefit will be acquired.[69] That raises hypothetical questions as to what D & L Events would have done, and also what others would have been disposed to do if D & L Events had attempted to arrange the fights identified in the counterfactual scenario. Notwithstanding that these questions are hypothetical, at the stage of considering whether causation has been established there must be proof on the balance of probabilities.[70]
[144] If D & L Events satisfies the burden of proof on the issue of causation, the value of the lost opportunity is to be ascertained by taking account of events that allegedly would have occurred, but cannot now occur, in terms of the degree of probability of those events occurring.[71] That is, if causation is established, the correct approach in the assessment of damages for loss of the commercial opportunity of earning revenue from fights in which Mr Opetaia would have participated, is by reference to the degree of possibility or probability of such fights occurring and resulting in revenue for D & L Events as claimed.
[76]
[146] The counterfactual scenario pleaded by D & L Events comprises three separate commercial opportunities which it says it lost upon termination of the Contract.
[147] The first lost opportunity was the opportunity to earn a share of Mr Opetaia's purse for participating in a fight against Mr Masternak in the United Kingdom, after Boxxer succeeded in winning a purse bid for the right to promote that fight. I do not accept that D & L Events has established, on the balance of probabilities, that Mr Opetaia's termination of the Contract caused D & L Events to lose that opportunity.
[148] One difficulty with this aspect of the causation case is that it required that D & L Events prove, on the balance of probabilities, that Boxxer was prepared to bid up to US$300,000 in a purse bid to secure the right to promote the fight between Mr Opetaia and Mr Masternak.[74] The only evidence led on that question was Mr Lonergan's assertion that this was something communicated to him by Ben Shalom of Boxxer.[75] Mr Lonergan said this was the subject of texts between himself and Mr Shalom. Those texts were not put into evidence. Mr Lonergan's oral evidence is hearsay. It does not prove that Boxxer was, in fact, willing to bid for the right to promote the fight against Mr Masternak. Nor does it prove any amount which Boxxer was prepared to bid.
[149] In any event, this aspect of Mr Lonergan's evidence finds no support in the contemporaneous email communications between Mr Lonergan and Boxxer's representatives. In an email to Mr Wischhusen on 14 December 2022, Mr Lonergan stated:[76]
[77]
"In all communications with Boxxer, Ben was of the opinion you would sort out the mandatories, in today's discussion I think Ben asked if we could take care of [Mr Opetaia's]? Is this the case? or did I hear it worng [sic, wrong]?"
[78]
[150] Mr Lonergan was seeking confirmation from Boxxer that it was prepared to take steps to obtain the rights to promote Mr Opetaia's mandatory defence of his IBF world cruiserweight title against Mr Masternak. There was no evidence of any response by Mr Wischhusen providing the clarification or confirmation sought by Mr Lonergan.
[151] In an email to Mr Wischhusen and Mr Shalom on 19 December 2022,[77] Mr Lonergan suggested that Mr Opetaia's mandatory fight against Mr Masternak be scheduled on the undercard of another fight involving Mr Okolie (one of Boxxer's fighters). He asked that Mr Wischhusen and Mr Shalom revert to him about that suggestion as he was about to start discussions with Mr Masternak's promoter. There was no evidence of any response by either Mr Shalom or Mr Wischhusen to Mr Lonergan's suggestion.
[152] On 7 January 2023, Mr Wischhusen set out Boxxer's offer for Mr Opetaia to participate in matches against Boxxer's fighters as part of the cruiserweight tournament.[78] He stated that the offer was made on the condition that Mr Opetaia "gets his mandatory out of the way sooner rather than later, and he wins". The email makes no reference to Boxxer being willing to bid any amount to secure the rights to promote Mr Opetaia's mandatory fight against Mr Masternak.
[153] On 2 February 2023, Mr Lonergan sent an email to Mr Shalom and Mr Wischhusen in which he said:[79]
[79]
"... to refresh all discussions and move to contract can you please in one email send to me what the final offer is detailing all financial aspects of the contract from all of our correspondence for [Mr Opetaia] and [D & L Events] ..."
[80]
[154] The fight against Mr Masternak was one of four fights Mr Lonergan referred to in that email but, again, there is no evidence of any response from Mr Shalom or Mr Wischhusen to Mr Lonergan's email, let alone a response which evidences Boxxer's willingness to bid for the right to promote the Masternak fight. Thus, although the contemporaneous communications demonstrate Mr Lonergan's evident desire to persuade Boxxer to bid for that right, they provide no support for the suggestion that Boxxer was prepared to accede to that request.
[155] Consistently with that position, when Mr Lonergan sent an email to Mr Francis and Mr Opetaia on 20 December 2022,[80] advising them of the potential opportunities for fights which he had been negotiating, he dealt with the Boxxer offer separately from the mandatory fight against Mr Masternak. Nothing he said about the fight against Mr Masternak gave any indication that Boxxer had indicated a willingness to bid to secure the right to promote that fight. Similarly, in his email response to Mr Francis' queries on 13 February 2023,[81] Mr Lonergan said no more than that he was working to get the mandatory fight with Masternak held in the United Kingdom in order to build his profile in that country.[82] He said nothing about Boxxer having given any indication that it was willing to bid to secure the right to promote the Masternak fight as a way of making that happen.
[156] For these reasons, I am not satisfied that D & L Events proved on the balance of probabilities that Boxxer would have bid the amount pleaded in the counterfactual (or any amount) to secure the right to promote Mr Opetaia's mandatory fight against Mr Masternak. It follows that D & L Events failed to establish on the balance of probabilities that the termination of the Contract caused it to lose a valuable opportunity of receiving a share of Mr Opetaia's purse for participating in a fight with Mr Masternak.
[157] A further difficulty in the causation case involving the fight against Mr Masternak is that Mr Francis gave evidence,[83] which I accept, that following the termination of the Contract, Mr Opetaia did not fight Mr Masternak. That was because Mr Masternak pulled out of a purse bid 24 hours before the winner of the bid was to be declared. This evidence of Mr Masternak's response to the purse bid which actually occurred is a further reason why D & L Events failed to establish that the termination of the Contract caused it to lose the commercial opportunity of receiving a share of Mr Opetaia's purse for that fight.
[81]
[169] For these reasons, the value of the lost opportunity I must assess is limited to the second opportunity: that is, to earn revenue from Mr Opetaia's participation in three fights in the United Kingdom against fighters promoted by Boxxer, together with revenue from PPV buys in Australia on the Endeavour streaming platform for each of those fights.
[170] D & L Events relied on a report prepared by Mr Howard of KordaMentha Forensic, which calculated the lost earnings from each of those fights. That report stated the lost earnings to be:
[82]
(a) $357,616 for the proposed fight with Mr Okolie in June/July 2023;[94]
(b) $285,503 for the proposed fight against Mr Billam-Smith or Mr Riakporhe in September/October 2023;[95]
(c) $690,932 for the proposed rematch against Mr Okolie in December 2023/January 2024.[96]
[83]
[171] I accept that the method which Mr Howard used to calculate those lost earnings was appropriate, and there was no suggestion of any material error in his calculations. However, as already observed, the value of the opportunity to receive those earnings must be assessed by reference to the degree of possibility or probability that the events pleaded in the counterfactual scenario (which Mr Howard was instructed to assume) would have occurred. The earnings calculated by Mr Howard must be discounted to reflect this degree of possibility or probability.
[172] D & L Events submitted that the risk that it would not have earned the amounts calculated by Mr Howard are largely associated with the probability of Mr Opetaia winning each fight. On that basis, it submitted that a global discount of 20% should be applied to those amounts.
[173] I accept that it is appropriate to apply a global discount to the overall estimate of lost earnings. Any attempt to strike a degree of possibility or probability of each fight occurring and resulting in earnings as claimed would be unrealistic.[97]
[174] I do not accept, however, that a discount of 20% properly reflects the degree of possibility that, had the Contract not been terminated, D & L Events would have earned the amounts calculated by Mr Howard. That degree of possibility is affected by matters other than the risk of Mr Opetaia might not have won each fight.
[175] First, the discount figure must account for the risk that none of the fights might have taken place. Although I have concluded that Mr Lonergan's communications with Boxxer establish that the prospect of D & L Events reaching an agreement with Boxxer were more than speculative that does not alter the fact that those negotiations were at a relatively early stage and were expressed to be subject to contract. The risk that the parties might not have been able to reach agreement on contract terms cannot be disregarded. This risk would have been greatest for the third of the fights - the rematch against Mr Okolie - in circumstances where Boxxer had not confirmed its willingness to promote that fight (see [161] above).
[176] Secondly, regard must be had to the risk that, if an agreement was reached with Boxxer, Mr Opetaia might have become unable by reason of injury in one fight to take part in the later proposed fights. I have already referred to the injury which Mr Opetaia suffered in the fight against Mr Briedis and the shoulder injury which he suffered when he recommenced training. On the evidence, after the fight against Mr Briedis, Mr Opetaia was not in a condition to fight until April 2023, a period of almost 10 months.
[8] The central issue in this proceeding is whether Mr Opetaia's purported termination of the Contract was lawful and effective. This requires consideration of the various grounds upon which Mr Opetaia claimed to have been entitled to terminate. Mr Opetaia abandoned some grounds during the trial. By the time of closing addresses the following issues remained for consideration:
[47] Mr Opetaia's jaw was fractured in two places during his fight with Mr Briedis. Those injuries took over six months to heal. He then suffered nerve damage in his shoulder when he recommenced training and underwent surgery.
[48] After claiming the IBF world title, Mr Opetaia was required to participate in a match to defend his title within a period of nine months. This is referred to as the mandatory defence.[17]
[49] On 16 November 2022, Mr Lonergan sent an email to various senior personnel at Fox Sports informing them of D & L Events' intention to stage Mr Opetaia's mandatory defence against Mateusz Masternak on 29 March 2023 at either Nissan Arena in Brisbane or the Sydney Convention and Exhibition Centre known as ICC Sydney.[18] A little over a month before that, on 10 October 2022, Mr Lonergan had sent a proposed fight schedule for 2023 to senior personnel at Fox Sports, including the number of PPV buys that Mr Lonergan believed those fights would generate.[19] That schedule involved Mr Opetaia participating in four fights during the following year. Mr Lonergan accepted in cross-examination that, when he sent that email, he intended to stage each of those fights in Australia.[20]
[50] By about 21 November 2022, Mr Lonergan had been informed that the Fox Sports Contract would not be renewed after 31 December 2022. Mr Lonergan informed Mr Francis of this on 5 December 2022.
[51] Between 9 and 15 December 2022, Mr Lonergan exchanged emails with John Wischhusen and Ben Shalom of Boxxer, a boxing promotion company in the United Kingdom. Those emails addressed the prospect of Mr Opetaia participating in a cruiserweight tournament promoted by Boxxer in the United Kingdom.[21] The other boxers proposed to be involved in the tournament - Lawrence Okolie, Richard Riakporhe and Chris Billam-Smith - were all promoted by Boxxer.
[52] On 15 December 2022, Fox Sports announced that it had entered an exclusive broadcasting arrangement with No Limit Boxing, another boxing promotion company.
[53] On 19 December 2022, Mr Lonergan sent an email to Jacek Szelagowski, the promoter of Mr Masternak, about the arrangements for Mr Opetaia's mandatory IBF world title defence. In that email, Mr Lonergan proposed that D & L Events would pay a fee of US$35,000 to Mr Masternak for him to fight Mr Opetaia in Australia on 30 March 2023. Mr Szelagowski responded by asking if the fee offered by Mr Lonergan was a mistake and if he had meant to offer US$350,000. Mr Lonergan sent a further email to Mr Szelagowski on 29 December 2022 stating that there was no mistake because Mr Masternak had no profile in Australia and the fight would generate very little revenue. Mr Lonergan said he was open to discussing the opportunity for Mr Opetaia to fight Mr Masternak in Poland.
[54] Mr Lonergan continued to negotiate with Boxxer about the proposed cruiserweight tournament in the United Kingdom during this period. On 19 December 2023, he sent an email to Mr Wischhusen which set out five key points to be addressed if Mr Opetaia was to participate in that tournament.[22]
[55] On 20 December 2022, Mr Lonergan sent an email to Mr Francis and Mr Opetaia informing them of the Boxxer offer and other opportunities for Mr Opetaia to participate in fights in 2023.[23] One of those other opportunities was a fight promoted by a company called Queensbury which was proposed to take place in Saudi Arabia. Another opportunity was a rematch with Mr Briedis.
[56] On 7 January 2023, Mr Wischhusen sent an email to Mr Lonergan providing further information about Boxxer's proposal for the cruiserweight tournament in the United Kingdom. The offer set out in that email was expressed to be conditional on Mr Opetaia winning his mandatory IBF world title defence and subject to contract.
[57] On 8 February 2023, Mr Francis sent an email to Mr Lonergan informing him of the outcome of Mr Opetaia's surgery (see [47] above) and that Mr Opetaia would be ready to fight again from[24] May 2023.24 In that email, Mr Francis asked Mr Lonergan whether he had arranged an opponent, a date and a venue for Mr Opetaia's next fight and how that next fight would be broadcast in Australia.
[58] Mr Francis sent a further email to Mr Lonergan on 11 February 2023, having not received a response to his email of 8 February 2023.[25] Mr Francis expressed his concern that, having lost the Fox Sports Contract and not having a broadcast deal with any other Australian broadcaster, D & L Events did not have a suitable plan for Mr Opetaia's future fights and would be unable to promote Mr Opetaia as a world champion.
[59] Mr Lonergan responded on 13 February 2023, by inserting his comments into the text of Mr Francis' email.[26] Mr Lonergan provided further information about the opportunities he said were available to Mr Opetaia. In doing so, he said that fighting in the United Kingdom would provide the best opportunities for Mr Opetaia. He stated that Mr Opetaia's next opponent would be Mr Masternak, but he thought that the promotion of that fight would go to a purse bid - where two negotiating parties cannot agree upon commercial terms so that every promoter registered with the IBF is given the opportunity to bid for the right to promote the fight.[27] If that happened, the location of the fight would be determined by the winner of the purse bid. Mr Lonergan also said that once the details of the fight with Mr Masternak had been settled, he would be putting the rights to broadcast that fight out to tender by Australian broadcasters. He also stated that he was discussing a broadcast partnership with an entity called Endeavour, which he described as the world's largest combat sports company.
[60] On 15 February 2023, Mr Lonergan forwarded to Mr Francis an email from the IBF which discussed an extension of the date by which Mr Opetaia was required to undertake his mandatory world title defence. Mr Francis sent an email back to Mr Lonergan emphasising his and Mr Opetaia's insistence that the mandatory world title defence take place in Australia. He sought Mr Lonergan's confirmation that D & L Events was able to put the mandatory fight on in Australia and that it was able to secure a deal to have the fight broadcast on Main Event or Fox Sports.[28]
[61] Mr Lonergan responded to Mr Francis by email on 16 February 2023.[29] In that email he said:
[72] First, that D & L Events was unable to perform its obligations under the Contract from about 31 December 2022, because the loss of the Fox Sports Contract meant that D & L Events was unable, or apparently unable, to:[41]
[79] More importantly I also cannot accept the third part of the submission, expressed in [75](c). It is correct to state that, after it lost the Fox Sports Contract, D & L Events could not offer Mr Opetaia a Fight Night Boxing Match under clause 3.4, or (at least until a replacement broadcast agreement was secured) a DLE Boxing Match that was part of a PPV Event under clause 3.5. I am not persuaded, however, that this rendered D & L Events unable to perform its obligations under the Promotion Contract. Clauses 3.4 and 3.5 imposed obligations on D & L Events to pay certain amounts to Mr Opetaia if he participated in a DLE Boxing Match which fell within the terms of those clauses. They did not, however, impose an obligation on D & L Events to arrange for Mr Opetaia to participate in such a DLE Boxing Match.
[80] As to providing fights for Mr Opetaia to participate in, D & L Events was required to use reasonable endeavours to provide four "Boxing Matches" in a 12-month period (clauses 4 and 13.2). Consistently with that obligation, clause 3.3 referred to the parties' intention that Mr Opetaia would fight in at least four "Boxing Matches" each calendar year. As already explained, the term "Boxing Match" was defined to mean either a DLE Boxing Match or a Non-DLE Boxing Matches. Thus, it was plainly contemplated that D & L Events could seek to comply with its obligations under clauses 4 and 13.2 by arranging for Mr Opetaia to participate in fights which were Non-DLE Boxing Matches. Further, as just mentioned, the final paragraph of clause 3.4 expressly contemplated a situation in which D & L Events could arrange for Mr Opetaia to participate in a DLE Boxing Match which was not a Fight Night Boxing Match and might not be broadcast on a PPV basis in order to meet the minimum number of boxing matches. Those considerations, together with the characterisation of D & L Events' obligation as one of having to use reasonable endeavours, mean I am not satisfied that D & L Events was unable to comply with its obligations under clause 4 or clause 13.2 after it lost the Fox Sports Contract.
[81] That analysis applies with equal force to the promotion of Mr Opetaia's boxing career. D & L Events' obligation in that regard was to use reasonable endeavours to promote Mr Opetaia and to provide appropriate "Boxing Matches" that would assist Mr Opetaia to attain a number one ranking with one or more of the major sanctioning bodies as soon as reasonably possible to enable him to compete in World Title Boxing Matches, subject to his performance in those Boxing Matches (clause 13.4). The term World Title Boxing Match was defined to mean a Boxing Match in which Mr Opetaia fought and in which the winner would become the holder of a world championship title. Accordingly, a World Title Boxing Match might be either a DLE Boxing Match (including one which was not a Fight Night Boxing Match or one that was not broadcast on a PPV basis) or a Non-DLE Boxing Match.
[82] Putting to one side the issue of fights being held in the United Kingdom and promoted by Boxxer, Mr Opetaia did not argue that the opportunities which D & L Events identified for him to fight against Mr Masternak or the fighters proposed to be involved in the cruiserweight tournament, were not "appropriate" fights. Nor did he submit that those fights would not assist him to attain a number one ranking or enable him to compete in World Title Boxing Matches (as defined). For example, Mr Okolie held the World Boxing Organisation (WBO) cruiserweight world championship at that time. Mr Opetaia acknowledged in cross-examination that he wanted to unify the IPF world title which he held with the WBO world title.[43]
[83] Rather than criticising the quality of the fights which Mr Lonergan had proposed, Mr Opetaia submitted that D & L Events arranging for him to participate in those fights would not comply with its obligation to promote his boxing career because the fights would not be broadcast on Fox Sports or its Main Event PPV service (and therefore not engage clauses 3.4 to 3.6). I do not accept that submission. Here again, the parties' use of the term "Boxing Matches" in clause 13.4 plainly contemplated that D & L Events could seek to comply with its obligations under that clause by arranging for Mr Opetaia to participate in fights which were Non-DLE Boxing Matches.
[84] As to PPV buys, D & L Events' obligation was to make every reasonable effort to obtain as many PPVs as possible for the PPV Boxing Matches in which Mr Opetaia participated, by professionally promoting both Mr Opetaia and the PPV Boxing Matches in which he participated (clause 13.5). That clause did not impose an obligation on D & L Events to arrange for Mr Opetaia to participate in fights which were broadcast on a PPV basis. It can be accepted that it would have been in both parties' financial interests for D & L Events to have done that, and if it had done that its obligation under clause 13.5 would have been engaged. However, if D & L Events did not arrange for Mr Opetaia to participate in fights which were broadcast on a PPV basis it would not be in breach of its obligations under the Contract. It that event, the obligations contained in clause 13.5 would not be engaged and there is no other clause which requires D & L Events to organise a minimum number of PPV fights for Mr Opetaia to participate in.
[85] Further, my conclusion at [79]-[82] above, that D & L Events could seek to comply with its obligations to promote Mr Opetaia's boxing career and to provide fights for him to participate in by arranging Non-DLE Boxing Matches, is inconsistent with Mr Opetaia's submission. As Mr Opetaia acknowledged in clause 16.4 of the Contract, D & L Events did not have any control over Non-DLE Boxing Matches and, consequently, could not have any obligation to ensure that those fights were broadcast on a PPV basis. Consequently, I do not accept that an inability on D & L Events' part to arrange for Mr Opetaia's fights to be broadcast on a PPV basis after it lost the Fox Sports Contract meant it was unable to comply with its obligations under the Contract.
[86] It follows that I do not accept that the fact the Fox Sports Contract was not renewed, without more, meant that D & L Events was unable to perform its obligations under the Contract.
[87] That is not the end of Mr Opetaia's repudiation case. Mr Lonergan's email of 16 February 2023, in which he referred to clause 3.1 of the Contract and stated that he would inform Mr Francis of his decision as to when and where the fight against Mr Masternak would take place (see [61] above), together with D & L Events' pleading that (absent the purported termination) the Masternak fight and subsequent fights would have taken place in the United Kingdom (see [64] above), evidences an intention on the part of D & L Events to perform the Contract by, in effect, compelling Mr Opetaia to participate in Non-DLE Boxing Matches held overseas. This raises a different issue which turns upon the proper construction of clauses 3.1 and 16.1 of the Contract. That is, whether D & L Events was entitled to insist, against Mr Opetaia's wishes, that he fight in Non-DLE Boxing Matches held overseas.
[88] D & L Events submitted that, on the proper construction of clauses 3.1 and 16.1, if the parties could not agree on a date and location for a Boxing Match (including a Non-DLE Boxing Match), as contemplated by clause 16.1, then D & L Events was entitled to exercise its discretion under clause 3.1 to make the final decision about those matters, including by compelling Mr Opetaia to take part in a fight organised by a third party promoter overseas. I do not accept that submission.
[89] One textual indicator against that construction is the express qualification of D & L Events' discretion by the opening words of clause 3.1: "Except as is expressly provided otherwise in this Agreement, ...". By their agreement in clause 16.1 that D & L Events would select the date and location of each Boxing Match "after negotiation and written agreement with [Mr Opetaia]", the parties expressly provided otherwise than for the discretion conferred by clause 3.1 to apply to those matters. I do not accept D & L Events' submission that there was an inconsistency between clause 3.1 (a special condition of the contract) and clause 16.1 (a general term of the contract) such that the special condition should prevail. The qualification I have identified means no inconsistency existed. Nor do I accept D & L Events' submission that the qualification applied only to the first sentence of clause 3.1, with the second sentence of the clause operating separately and unfettered by the operation of the opening words of qualification. Both the first and second sentences referred to the same discretion conferred upon D & L Events. The second sentence simply elaborated on what was meant by the statement in the first sentence that D & L Events would "run" Events in its discretion. Both sentences were subject to the qualification imposed by the opening words of clause 3.1.
[90] A second textual indicator is the use of the words "run all Events" in the first sentence of clause 3.1, and the words "promotion of Events" in the second sentence, to describe the circumstances in which D & L Events would be entitled to exercise its discretion. At least in the case of a Non-DLE Boxing Match, D & L Events would not be running an Event or promoting an Event in the sense those words were used in clause 3.1. So much is clear from the definition of Non-DLE Boxing Match ("a match that is not organised and promoted by [D & L Events] and is instead promoted by a third party"), and from clause 16.4 which recorded Mr Opetaia's acknowledgement that D & L Events did not have any control over Non-DLE Boxing Matches. Under cross-examination, Mr Lonergan appeared to accept that, in arranging for Mr Opetaia to participate in a Non-DLE Boxing Match, D & L Events would be handing him over to the responsibility of a different promoter.[44] That accords with my reading of the definition of Non-DLE Boxing Match and clause 16.4.
[91] As to the parties' commercial purpose, the conferral of a discretion under clause 3.1 for DLE Boxing Matches would recognise the financial risk undertaken by D & L Events in organising and promoting a fight in which Mr Opetaia participated. A boxer in Mr Opetaia's position would be expected to accept the existence of the discretion in those circumstances because his promoter - whose financial interest in the success of the boxer's professional career was aligned with that of the boxer - would control the organisation and promotion of the fight.
[92] That does not hold true, however, for a Non-DLE Boxing Match. Considered objectively, I can see no reason why a boxer in Mr Opetaia's position would agree to grant D & L Events the discretion to compel him to fight in a match promoted by a third party promoter. That third party promoter's financial interests may not (and, perhaps, would be unlikely to) lie in a boxer which it does not promote winning the fight. That is, the third party promoter's financial interest might lie in furthering the career of the opponent (who it promotes) rather than the career of the boxer in Mr Opetaia's position. There is also the not insignificant issue of security of payment of the fee for participating in the fight. Fighting in a Non-DLE Boxing Match would involve a risk that the boxer would not get paid by the third party promoter (see clause 3.7). It is difficult to see why a boxer in Mr Opetaia's position would agree to grant D & L Events a discretion to force him to accept that risk against his wishes.
[93] Further, as acknowledged in clause 16.4 of the Contract, in circumstances where D & L Events would not have any control over the fight, the boxer would be forced into a situation where the third party promoter could change any aspect of the fight at any time. Mr Opetaia referred to the situation where a boxer's promoter is in control of the fight as "being on the A side".[45] Mr Francis[46] and Mr Watt[47] also gave evidence about what is meant by fighting on the "A side" and fighting on the "B side". I accept the evidence both men gave about the importance of fighting on the "A side".
[94] In rejecting D & L Events' construction of clauses 3.1 and 16.1, I have considered the way that clause 3.7 deals with Mr Opetaia's fee for a Non-DLE Boxing Match. That clause addresses two situations. Mr Opetaia's approval of such fee was required if it could reasonably be expected to be less than what he would have received for an equivalent Boxing Match if it had taken place in Australia as a DLE Boxing Match. However, if the fee could reasonably be expected to equal or exceed that level then Mr Opetaia's approval would not be required. Read in isolation, this might suggest that, as long as the fee which D & L Events was able to negotiate for Mr Opetaia to participate in a Non-DLE Boxing Match overseas could reasonably be expected to equal or exceed the fee he would have received from D & L Events if it had promoted the fight in Australia, then D & L Events could require that Mr Opetaia participate in that Non-DLE Boxing Match without his approval or agreement. That is not how I would construe clause 3.7 in the context of the provisions of the Contract as a whole. The fee to be paid to Mr Opetaia is only one matter which might affect his decision whether to participate in a Non-DLE Boxing Match. Other matters are likely to include the proposed date and location of the match for which Mr Opetaia's written agreement is required under clause 16.1.
[95] The question of Mr Opetaia's fee for participating in a Non-DLE Boxing Match would not arise until he had provided his written agreement to the date and location for that match under clause 16.1. At that point, D & L Events would seek to negotiate Mr Opetaia's fee with the third party promoter and clause 3.7 would be engaged. In that way, Mr Opetaia's written agreement under clause 16.1 to the date and location of a Non-DLE Boxing match would not bind him to accept a fee that could reasonably be expected to be lower than the equivalent fee if D & L Events had promoted the match in Australia. That could only occur with his further approval under clause 3.7.
[96] I have also considered the general obligation imposed on Mr Opetaia under clause 11.1 to attend and fight in "the Boxing Matches", which would include Non-DLE Boxing Matches. Construing that clause in the context of the Contract as a whole, I cannot accept it requires that Mr Opetaia attend and fight in any Non-DLE Boxing Match which D & L Events might arrange with a third party promoter, if Mr Opetaia had not agreed to the date and location of that Non-DLE Boxing Match under clause 16.1. A Non-DLE Boxing Match is a match which features Mr Opetaia. Mr Opetaia is not required to feature in any match unless he has agreed to the date and location of that match under clause 16.1. Once he provides that agreement, the obligation under clause 11.1 operates to require him to honour that agreement by attending and fighting in the match.
[97] The same is true of the general obligation on Mr Opetaia under clause 11.5(a)(iii) to perform his obligations under the Contract in accordance with (among other things) the reasonable directions of D & L Events. Until Mr Opetaia provides his agreement to the date and location of a Non-DLE Boxing Match, he is under no obligation to attend or fight in such a match so there is no obligation to be performed in accordance with any direction D & L Events might give. A direction given by D & L Events that Mr Opetaia attend and fight in a Non-DLE Boxing match could not overcome a failure to obtain Mr Opetaia's agreement to the date and location of that match under clause 16.1.
[98] I note that, in circumstances where D & L Events' right to organise Boxing Matches conferred by clause 15.1(a) was expressed to be subject to the terms of the Contract, the obligation to obtain Mr Opetaia's written agreement under clause 16.1 qualified that right as well.
[99] Finally, and as already observed, D & L Events' proposed construction of clauses 3.1 and 16.1 does not sit comfortably with the commercial purpose of the parties set out at [77] above. That purpose involves the provision of promotional services by D & L Events. As already observed, a Non-DLE Boxing Match is not organised or promoted by D & L Events. It follows that, to the extent that D & L Events seeks to arrange for Mr Opetaia to fight in Non-DLE Boxing Matches, it would not be providing the promotional services envisaged by the Contract. Neither party entered the Contract expecting that D & L Events would seek to compel Mr Opetaia to participate in a substantial number of Non-DLE Boxing Matches. In his cross-examination, Mr Lonergan described D & L Events' focus on opportunities for fights in the United Kingdom as a "pivot". He agreed that the non-renewal of the Fox Sports Contract was a major factor in that pivot and said that, in those circumstances, the financially smart thing to do was to fig[48] overseas.48 The result of the construction submitted for by D & L Events would be that the discretion in clause 3.1 could be exercised in a manner which would significantly alter the nature of the commercial arrangement between the parties in circumstances where Mr Opetaia has not agreed to that alteration. For the reasons I have given, I do not accept that, on an objective construction of the relevant terms, this was what the parties intended.
[100] If D & L Events had sought and obtained Mr Opetaia's agreement to participate in the Non-DLE Boxing Matches against Mr Masternak and Boxxer's fighters in the United Kingdom, it could have complied with its obligations under the Contract notwithstanding the non-renewal of the Fox Sports Contract. However, it was not entitled to insist that Mr Opetaia participate in those Non-DLE Boxing Matches in the United Kingdom in circumstances where Mr Francis had clearly communicated to Mr Lonergan that Mr Opetaia had not agreed to that course (see [60]-[62] above).
[101] From Mr Lonergan's insistence that D & L Events would make the final decision as to when and where the Masternak fight would take place - irrespective of whether Mr Opetaia agreed to what was proposed - and D & L Events' pleading that (absent the purported termination) the Masternak fight and subsequent fights would have taken place in the United Kingdom, I infer that D & L Events intended to perform the Contract only in a manner substantially inconsistent with its obligation under clause 16.1 to obtain Mr Opetaia's written agreement to the date and location of each Boxing Match. I am satisfied that D & L Events' conduct in seeking to compel Mr Opetaia to participate in Non-DLE Boxing Matches overseas, without his agreement, was conduct which would convey to a reasonable person in Mr Opetaia's position D & L Events' intention to perform the Contract only in a manner substantially inconsistent with its obligations.
[102] As a final point, I do not accept D & L Events' submission that the dispute resolution procedure set out in clause 23 of the Contract, or the fact that Mr Opetaia did not avail himself of that procedure before terminating, means that a dispute as to the location of a fight was not a matter capable of amounting to a repudiation. Having regard to the entrenched positions evident in the email communications which Mr Lonergan and Mr Francis exchanged regarding D & L Events' plan for Mr Opetaia's fights in 2023 after it lost the Fox Sports Contract, I am not persuaded that the dispute was one which the parties could have resolved by engaging in the dispute resolution procedure. Further, although Mr Opetaia's failure to engage with D & L Events under that dispute resolution procedure meant he was precluded from commencing any court or arbitration procedure in respect of the dispute, I cannot see how that has any bearing upon his entitlement at common law to terminate the Contract in circumstances where, as I have found, D & L Events intended to perform it only in a manner substantially inconsistent with its obligation under clause 16.1 to obtain his written agreement to the date and location of each Boxing Match.
[103] For these reasons, I am satisfied that D & L Events repudiated the Contract. Mr Opetaia was entitled, as he did, to accept that repudiation and terminate the Contract. I find that the termination of the Contract by Mr Opetaia on 20 February 2023 was lawful and effective. Consequently, D & L Events' originating application must be dismissed.
[104] Given that conclusion, I will set out my conclusions on the other matters addressed by the parties' submissions more briefly.
[114] From this, I am satisfied that the parties did direct their minds to the possibility that D & L Events might lose the Fox Sports Contract and made explicit provision for that eventuality in the terms set out in clause 21.1(c) of the Contract. My conclusion about that is not altered by Mr Opetaia's submission that clause 21.1(c) was void as an unfair term under s 23(1) of the Australian Consumer Law. The focus of that submission was the issue whether the proposed implied terms would contradict any express term of the Contract. Even if I were to accept that submission, it would not change the fact that the parties turned their minds to the prospect that the Fox Sports Contract might end and addressed that eventuality in the Contract. In those circumstances, I do not accept that either of the implied terms propounded by Mr Opetaia were so obvious as to go without saying.
[115] Having reached that position, it is not necessary for me to address the parties' other arguments concerning the implication of terms, including whether clause 21.1(c) of the Contract was void as an unfair term.
[116] For these reasons, if Mr Opetaia had not succeeded on his repudiation case, I would not have accepted that either of the implied terms propounded by Mr Opetaia provided a lawful basis for the purported termination of the Contract.
[131] For these reasons, I am not satisfied that D & L Events made the Express Representations. That is the end of the first part of the misrepresentation case.
[139] That is the end of the second part of the misrepresentation case.
[140] If Mr Opetaia had not succeeded on his repudiation case, I would not have accepted that he established an entitlement to relief under s 243 of the Australian Consumer Law.
[145] Although there are difficulties in a case such as this in calculating damages with any precision, mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can.[73]
[158] The second lost opportunity pleaded in the counterfactual was the opportunity to earn a provision of service fee from Mr Opetaia's participation in three fights in the United Kingdom against fighters promoted by Boxxer, together with revenue from PPV buys in Australia on the Endeavour streaming platform for each of those fights.[84]
[159] I am satisfied that Mr Lonergan's email communications with Boxxer's representatives are sufficient to establish, on the balance of probabilities, that the termination of the Promotion Contract caused D & L Events to lose that opportunity, and that the opportunity was valuable in the sense that there was a substantial prospect that D & L Events would have obtained a financial benefit from it.
[160] The initial proposal made by Mr Wischhusen,[85] set out the amounts (expressed in US dollars) which Boxxer was prepared to offer as a purse for Mr Opetaia, and as a promotional fee for D & L Events, for Mr Opetaia to participate in two fights: one against Mr Okolie and one against either Mr Billam-Smith or Mr Riakporhe. It also offered the television broadcast rights for those fights for Australia, New Zealand and Samoa to D & L Events.
[161] In response, Mr Lonergan described the amounts offered to both Mr Opetaia and D & L Events as "a little light".[86] This led to Mr Wischhusen's email of 7 January 2023, in which Boxxer increased the total amount it was prepared to offer for each of the two fights, with the division of that amount between Mr Opetaia and D & L Events to be left to Mr Lonergan.[87] Although that email did not indicate the currency of the amounts offered, I infer from Mr Wischhusen's previous reference to US dollars that the increased offer was also made in that currency. In his email Mr Wischhusen also addressed the possibility of a third fight, being a rematch with the loser of the final of the cruiserweight tournament. He asked Mr Lonergan to give Boxxer a little more time to work out that possibility.
[162] Even though there was no evidence of any further email communication from Boxxer after 7 January 2023, I am satisfied that, if the Contract had not been terminated, there was a prospect, which was more than speculative, that D & L Events would have reached an agreement with Boxxer pursuant to which it would have secured the right to be paid a provision of services fee for at least two fights involving Mr Opetaia - the first proposed fight against Mr Okolie and the fight against either Mr Billam-Smith or Mr Riakporhe - as well as the right to broadcast those fights in Australia.
[163] As D & L Events has established that the termination of the Contract caused it to lose that opportunity, its value must be determined by reference to the degree of likelihood that the opportunity would have been realised to D & L Events' financial gain (as to which see below).
[164] The third lost opportunity pleaded in the counterfactual was the opportunity for D & L Events to earn profits from its promotion of a fight involving Mr Opetaia in Gosford.[88] I do not accept that D & L Events has established, on the balance of probabilities, that the termination of the Contract caused D & L Events to lose that opportunity.
[165] On the pleaded counterfactual, promoting a fight held in Gosford would have required D & L Events to incur expenses of $2,284,700. I am not satisfied that D & L Events has proved on the balance of probabilities that, after it lost the Foxtel Sports Contract, it would have had the financial capacity to stage that fight in Gosford.
[166] As noted in [45] above, D & L Events sought and received financial assistance in the amount of $1.1 million from Fox Sports for the promotion of Mr Opetaia's IBF world title fight against Mr Briedis on the Gold Coast on 2 July 2022. In text messages which Mr Lonergan exchanged with a senior representative of Fox Sports, he stated that D & L Events would not have been able to stage the fight against Mr Briedis in Australia without that financ[89]l support.89 Following the loss of the Fox Sports Contract, there is no reason to think Fox Sports would have provided D & L Events with any assistance to stage a fight in Gosford. Further, the financial accounts for D & L Events for the year ended 30 June 2023 showed that the company made a loss of more than $1.5 milli[90] that year90 and had liabilities which exceeded its assets by more than $[91]6 million.91
[167] Mr Lonergan gave evidence that the company had the financial backing of Mr Cliff Cook, who he described as one of New Zealand's richest men.[92] To the extent that evidence was intended to convey that Mr Cliff would have provided D & L Events with the funds it required to stage a fight in Gosford, it was hearsay. It does not prove that Mr Cliff was prepared to advance those funds to the company for the purpose of putting on a fight in Gosford. Absent evidence of that, or some other source of funding that would have been available to the company to meet the expense of staging a fight in Gosford, I am not satisfied that D & L Events has established that the termination of the Contract caused it to lose the opportunity of earning profits from such a fight.
[168] A further difficulty with this aspect of the causation case is that the proposed fight in Gosford would be the fifth fight in which Mr Opetaia would have participated in a period of less than 15 months. Mr Watts gave evidence that there is only ever an expectation that a world champion would fight one or two fights in the 12-month period following a world title fight. He said that it would be unheard of for a world champion to fight five times in 15 months.[93] I accept that evidence. It is consistent with the statement which D & L Events made in the offer sheets which preceded the Contract, about the prospect that Mr Opetaia would only fight twice in the 12 months after he claimed a world title (see [14] above). It is also a better reflection of the risk that a boxer fighting for a world title will suffer an injury which takes time to recover from. That had already happened to Mr Opetaia in his fight against Mr Briedis (see [47] above). Taking these matters into account, I regard the prospect that Mr Opetaia would have participated in the fifth defence of his IBF world title in a period of 15 months, in Gosford, to be entirely speculative.
[177] Thirdly, there is the risk (acknowledged by D & L Events) that Mr Opetaia might have lost one of the fights. This might have meant he would not have fought in the later fights, or that D & L Events' earnings from the later fights would not have been as high as pleaded in the counterfactual scenario. Perhaps unsurprisingly, Mr Opetaia's evidence was that he thought he would have won each of the fights.[98] There is no doubt that Mr Opetaia is a very skilled boxer. Winning the IBF world title demonstrated that.[99] Nevertheless, that he might have lost a fight to defend his world title against another highly skilled boxer remains a possibility.
[178] Fourthly, there is the question whether, if an agreement was finalised with Boxxer, the amount it ultimately agreed to pay for Mr Opetaia to take part in the fights would have matched the figures it offered in Mr Wischhusen's email of 7 January 2023.
[179] Fifthly, there is the question whether D & L Events would have finalised an agreement with Endeavour to broadcast the fights in Australia on a PPV basis, and the terms on which such agreement might ultimately have been struck, in circumstances where negotiations with Endeavour ceased after Mr Opetaia terminated the Contract.
[180] Sixthly, if an agreement was reached with Endeavour, there is the question whether Endeavour and D & L Events would have succeeded in selling the number of PPV buys, and at the price of $54.50, assumed in the counterfactual scenario in circumstances where Endeavour had no history of broadcasting boxing matches in Australia and had no database of boxing followers to assist in marketing the PPV broadcast of the proposed fights.[100]
[181] It would be unrealistic to attempt to work out the separate impact which each of these matters would have had on the likelihood of D & L Events receiving the earnings pleaded in the counterfactual. The application of a global discount to the amounts calculated by Mr Howard is an exercise in judgment which necessarily involves a measure of guesswork. Taking all of the matters I have referred to into account, it seems to me that the probability that D & L Events would have received the earnings calculated by Mr Howard for the three fights set out above was no more than 50%.
[182] Applying that order of discount to the amounts calculated by Mr Howard, if Mr Opetaia had not succeeded on his repudiation case, I would have assessed D & L Events' damages for the unlawful termination of the Contract as $650,000.