Edmunds-Jones Pty Ltd & 1 Ors v Australian Women's Hockey Association Inc [1999] NSWSC 1014 | Case summary | Zoe

NSWNSWSC

Edmunds-Jones Pty Ltd & 1 Ors v Australian Women's Hockey Association Inc

[1999] NSWSC 1014

Supreme Court of NSW|1999-10-07|Before: Santow J, Mackenzie J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

1999-10-07

Before

Santow J, Mackenzie J

Catchwords

EVIDENCE - Failure to put allegations of untruthfulness against plaintiff in cross-examination - Unfairness and principle of Browne v Dunn.
WORDS AND PHRASES - "Sponsorship"
"and/or"

Source

Original judgment source is linked above.

Catchwords

EVIDENCE - Failure to put allegations of untruthfulness against plaintiff in cross-examination - Unfairness and principle of Browne v Dunn.WORDS AND PHRASES - "Sponsorship""and/or"

Judgment (230 paragraphs)

[1]

INTRODUCTION PRINCIPAL MATTERS IN DISPUTE FACTUAL BACKGROUND The Telecom/Telstra Agreements The Telecom Stix Series Conclusion The 1995 Telstra Agreement The 1994 Proposal Reasons for Refusal Legal Advice The Media Campaign Representations by Telecom that the Door was Still Open 1995 Sponsorship Proposal Mrs Jones' Credit Conclusion The alleged failure to act in a professional and businesslike fashion and to "maintain and enhance the image of the Defendant and women's hockey generally". Summing Up Expectation of 1995 Telstra agreement - Evidence Findings The Qantas Agreements LEGAL QUESTIONS Question 1 - uncertainty: Principles "and/or" (a) Relationship between opening part of clause 4 and concluding proviso in the case of sponsorship by the provision of goods and services (b) When must any agreement for the purpose of clause 4(b) with Telecom Australia be entered into - meaning of first proviso. (c) Reconciliation of clauses 4(b) and 4(a) (d) Uncertainty of second proviso to clause 4(b) (e) Uncertainty of third proviso to clause 4(b) (f) Clause 4(c) not reconcilable with clause 4(b) Uncertainty generally Conclusion Question 2 - fulfilment of conditions for entitlement to commission: Conclusions Question 3 - disentitling breach: Question 4 - commission on $80,000 in relation to 1993 Telstra Stix Series: Question 5 - "renewal" or "subsequent year of sponsorship": Subsequent year of sponsorship - fifteen per cent fee under clause 4(b) Conclusion Renewal - twelve per cent fee under clause 4(c) Conclusion Question 6 - Qantas commission: Conclusion Question 7 - Quantum Meruit entitlement: OVERALL CONCLUSIONS COSTS AND ORDERS

[12]

(ii) a renewal of the 1993 Telstra sponsorship to which twelve per cent commission applies under clause 4(c) of the 1994 (or 1993) Consultancy Agreement. 10 It was contended in relation to Qantas that in 1994, culminating in the agreement with Qantas of 7 November 1994, the Plaintiffs negotiated with Qantas for Qantas to provide sponsorship to the Defendant whereby Qantas provided domestic and international air carriage in return for the supply of specified revenue and publicity benefits by the Defendant for the period 1995 until 1998. 11 The Qantas Agreement further provided for Qantas to sponsor the Telstra Stix for the sum of $5,000 for the 1994 Series, 1995 Series and each Series thereafter. Based upon the alleged monetary benefits received by the Defendant from Qantas under that Qantas Agreement between 1994 and 1998 (or the monetary benefit of services provided and sponsorship payments paid by Qantas), the First Plaintiff claims commission of fifteen per cent under clause 4(b) of the 1994 Consultancy Agreement. Alternatively the First Plaintiff claims twelve per cent under clause 4(c) of the relevant Consultancy Agreement in respect of any renewal by Qantas of its sponsorship arrangement with the Defendant 12 Both in respect of Telstra and Qantas into the future, the First Plaintiff similarly claims in respect of each year of sponsorship or renewal. 13 The Defendant denies any liability, disputes the relevant amounts, claims the Plaintiffs were in breach of the contractual obligations or of an implied condition so as to disentitle them to any commission and contends that in any event the relevant Consultancy Agreements are void for uncertainty. The Plaintiffs respond by claiming in the alternative on a quantum meruit basis, similarly calculated, should the relevant contract be void for uncertainty. 14 The Plaintiffs provide a detailed quantification of their claim as at 26 August 1999 (including interest) referenced to the relevant invoices and other records in respect of both Telstra and Qantas. It is expressed in the alternative (twelve per cent or fifteen per cent), totalling respectively $962,154.29 or $810,516.50 plus interest; see PX7. The Defendant has not at this stage agreed with the relevant calculations. But it has been accepted that any dispute on that could be dealt with if it arises, after I have given judgment on liability. FACTUAL BACKGROUND 15 What follows is a statement of facts a substantial portion of which is uncontroversial; however there are areas of significant difference upon which I make findings where necessary. 16 References are as follows: BEC: Affidavit of Mrs Cawood sworn 5 September 1996 BEC2: Affidavit of Mrs Cawood sworn 3 December 1996 HEJ: Affidavit of Mr Jones sworn 21 May 1996 HEJ 19/9/96 Affidavit of Mrs Jones sworn 19 September 1996. AEO: Affidavit of Mr O'Neill sworn 9 June 1998 ECN: Affidavit of Miss Nixon sworn 1 December 1998. The numbers following the initials of the deponents are page references.

[17]

"Further, we confirm your instructions that a fee of 12% will be paid to Ms Edmunds-Jones on agreements which are entered into subsequent to the 1st January 1990, the sponsor of which was previously approached to introduce, or negotiations commenced or or [sic] subsequent to the 1st January 1989" (PTB 6). 22 On 12 December 1989, the Plaintiffs entered into the first of a number of consultancy agreements with the Defendant. The Defendant entered into that agreement with "Helen Edmunds-Jones carrying on business as Edmunds-Jones Sports Marketing Pty Limited" [BEC 2, 25]. Speaking generally, the Plaintiffs agreed to provide advice and assistance in marketing, sponsorship and communications in return for certain fees and commissions payable by the Defendant. 23 Consultancy agreements in similar terms were entered into between the plaintiffs and AWHA for periods up to December 1994 as follows: · an agreement in 1991 for a period of 18 months commencing on 1 July 1991. The monthly retainer increased to $1,200. Commission on new sponsorship remained at 15%, and 12% upon the renewal of these contracts [BEC 60]; · In 1993 an agreement for one year commencing on 1 January 1993 in which the retainer increased to $1,500 per month [BEC 75]; · A final agreement for a period of one year commencing on 1 January 1994 [BEC 89]. 24 The various consultancy agreements were in similar terms and, by reference to the agreement for the period 1 January 1994 to 31 December 1994, relevantly included the following provisions: Clause 3 Ms Jones shall, during the term of this agreement implement in a professional and businesslike fashion all the duties specified in the Consultancy Brief annexed hereto and marked with the letter "A" (hereinafter referred to as "the Consultancy Tasks"). [BEC 90] Clause 5 In consideration for the satisfactory rendering the service of carrying out the Consultancy Tasks the Association shall pay to the Company a retainer as specified in the Schedule annexed hereto and marked with the letter "B" together with fees as specified in the Schedule annexed hereto and marked with the letter "C". [BEC 91] Sub-clause 7(a) The Company shall have the exclusive right to undertake and complete the Consultancy Tasks PROVIDED THAT if in the reasonable opinion of the Association the tasks are not performed with skill and expertise by Ms Jones, the Association may upon fourteen (14) days notice terminate this Agreement by notice in writing and appoint at its discretion an alternative person or company to carry out the Consultancy Tasks. [BEC 91] Annexure "A" - Consultancy Brief The Company and Ms Jones shall provide and render the following services in conjunction with officers nominated by the Association: A.. Negotiate and submit for approval by the Association all sponsorship contracts of any kind and in particular, but without limitation, for monetary payments and the provision of goods and/or services. .. C. Maintain and enhance the image of the Association and womens hockey generally and act within the determination of the Association and the International Hockey Federation policies. D. The seeking of sponsorships, negotiating sponsorship agreements and the servicing of sponsors. ... F. Ms Jones shall attend regular monthly meetings with the Association and shall present to the Association at such meetings written reports detailing such information as reasonably required by the Association and in particular but without limitation detailing action taken with respect to all activities being carried on pursuant to this Agreement and in particular but without limitation the status of each matter, the current progress and the proposed timetable for further action together with budgets for estimated income and expenditure for each matter. The meetings shall be held at such place and at such time as reasonably required by the Association and it is agreed that Ms Jones shall not be required to attend meetings of the Association on more than one day per calendar month. [BEC 95] Annexure "B": Remuneration - Consultancy Clause 1 A retainer of One thousand Five Hundred Dollars ($1,500.00) per month in arrears shall be paid by the Association to the Company on or before the 1st day of each and every month of the term of this Agreement, the first payment being due on the 1st January 1994 subject to and conditional upon the terms and conditions of this Agreement. Clause 2 In addition to the retainer referred to in Clause 1 herein, the Association shall bear: (a) all the direct costs of the Company or Ms Jones incurred when undertaking the Consultancy Tasks including any travel, accommodation and hospitality costs, claims for which must be supported by documented evidence of the expense; (b) all costs associated with the design, production and distribution of printed material which costs have been authorised by the Association prior to their being incurred provided however that the costs shall either be refunded to the Company or Ms Jones upon production of written evidence of there being incurred or paid by the Association directly upon the production of the account. [BEC 97] Annexure "C" - Fees In addition to the retainer referred to in Annexure "B" herein the Association shall pay to the Company fees determined in accordance with the following provisions: Clause 1 Ms Jones shall submit a report to the Association on or prior to the first day of the month immediately succeeding the execution of this Agreement being in satisfaction of the requirements of the provisions of Clause F of Annexure "A" hereto for the first monthly report:- (i) Detailing all contracts entered into on or prior to 1st January, 1994 as a direct result of services being rendered by the Company and Ms Jones; (ii) Detailing names of potential sponsors and/or donors and advances made and otherwise and the individual contact in that organisation the Company has pursued since the 1st January 1994 and proposes to pursue; (iii) Detailing all contracts in the process of negotiation as at 1st January 1994 and at the date of this Agreement, including a fully summarised report of the status of the negotiations and the programme for future action (where appropriate) as regards these contracts; (iv) Detailing plans for the opening of negotiations for further proposed agreements. This report shall be updated in similar form on a monthly basis in accordance with the requirements of Clause F of Annexure "A" hereto and presented to the Association within seven (7) days of the expiry of each and every month of the term of this Agreement. With respect to this Agreement the submission of the reports referred to herein is acknowledged by the parties to be an essential term. [BEC 99] Clause 3 A Fee is payable in accordance with the provision of Clause 4 only on Agreements entered into as a result of the other party (sponsor and/or donor or otherwise) being located and/or introduced by the Ms Jones and/or the agreement being negotiated and/or concluded by Ms Jones and all negotiations and other actions by Ms Jones being in accordance with the provisions of this Agreement. [BEC 100]. Clause 4 The Fee payable to the company will be calculated and payable as follows where the percentage to be paid relates to the monetary amount of the sponsorship and in the case of the provision of goods and services as hereinafter set forth:- (a) Nil on any and/or all agreements entered into by the Association on or prior to the 1st January 1994 or agreements entered into subsequent to 1st January 1994 with a person or company with whom the Association has previously had an agreement PROVIDED THAT nothing herein shall be deemed to relieve the Association from the payment of any fee payable in relation to any such Agreements under any previous Consultancy Agreement with the Company; (b) Fifteen per cent (15%) on any concluded agreement entered into on or prior to the 31st December 1994 PROVIDED HOWEVER that this shall only apply to concluded agreements, the other party having been approached or introduced or negotiations commenced on or subsequent to the 1st January 1989 and on any agreement entered into with Telecom Australia PROVIDED THAT a fee of fifteen per centum (15%) shall be paid on subsequent years of sponsorship where the original sponsorship was negotiated by the Consultant and such sponsorship was for a period in excess of one (1) year up to the date of expiry of that actual Agreement and no further AND PROVIDED FURTHER THAT no fee shall be payable to the Company pursuant to this sub-paragraph where a fee has already been paid by the Association to the Company pursuant to the Consultancy Agreement between the parties prior to this present Agreement and that fee related to a period of sponsorship ending prior to 1st January 1994 or a sponsorship which extended beyond the 1st January 1994 but the said fee which has already been paid related to the whole period of sponsorship. (c) If the sponsorship arrangement in any concluded agreement of the kind referred to in sub-clause (b) of this Clause is renewed for periods commencing on or after 1st January 1995, twelve per cent (12%) whether or not this Agreement has otherwise terminated through effluxion of time or by the act of either party to the intent that this Clause shall enure for the benefit of the Company until such time as all fees payable pursuant hereto have been received by the Company. [BEC 100]

[20]

The Telecom/Telstra Agreements 34 The Defendant entered into a sponsorship agreement with Australian Telecommunications Corporation trading as Telecom Australia in respect of the 1990 Hockey World Cup, on 21 August 1989. The sponsorship was to provide promotion and exposure for Telecom which agreed to pay $152,000 in sponsorship; that is $80,000 to the Australian Women's Hockey team to be known as "the Australian Women's Hockey Team sponsored by Telecom Australia" and the balance of $72,000 towards video and the awards. AWHA retained that the right to negotiate minor sponsorship agreements for the national teams which did not conflict with Telecom, excluding agreements in place with companies including Australian Airlines and Qantas. It appears that the negotiations for that agreement began at the end of 1988, most probably around 22 or 23 December 1988 [Jones T, 94 .20; 164 .45]. 35 The 1989 Consultancy Agreement specifically referred to sponsorship arrangements with Telecom, differentiating them from other sponsorship arrangements, commission on which would not be payable if the negotiations leading to their execution commenced before 1 January 1989. 36 On the same date, that is, 21 August 1989, Telecom Australia and the Defendant also entered into a general sponsorship agreement (the "1989 Telecom Agreement"). It can be accepted that the 1989 Telecom agreement was a result of the Plaintiffs' efforts to obtain sponsorship for the Defendant and in relation to which the Plaintiffs were entitled to 15% of the sponsorship monies paid in respect of its terms. 37 On 8 May 1991, the Defendant entered into a further sponsorship agreement with Telecom Australia (the "1991 Telecom Agreement"). Under the provisions of the 1991 Telecom Agreement, Telecom Australia agreed to provide sponsorship for the years 1991 and 1992 in the sums of $100,000 and $150,000 respectively [BEC, 132]. The 1991 Telecom Agreement was entered into at a time when the Plaintiffs were employed pursuant to a consultancy agreement with the Defendant. 38 The sponsorship relationship was extended when on 15 February 1993, through the marketing efforts of the First Plaintiff, a further agreement was reached between Telecom Australia and the Defendant (the "1993 Telecom Agreement"). The 1993 Telecom Agreement provided for sponsorship for 1993 and 1994 of $200,000 per year [BEC, 140]. The 1993 Telecom Agreement provided in clause 8: 8.1 In the event that the Sponsor wishes to extend its sponsorship (and for the purposes of this clause, 'sponsorship' will refer to and include both the Team Sponsorship and the "Let's Play Hockey" sponsorship) for a further period of twelve (12) months for the calendar year 1995; it must notify AWHA in writing by 30 June 1994 whereupon AWHA will advise Telecom of the terms and conditions to apply to the sponsorship and a decision will be made by the parties as to the continuation of the sponsorship by 30 August 1994.

[23]

In early June 1994 Ms Cawood, the Executive Director of AWHA since 1987, telephoned the Second Plaintiff in relation to the letter of 13 May 1994 requesting payment of the commission. Ms Cawood suggested that the two parties needed to meet to discuss the commission issue. 46 At a meeting between Mrs Jones and the Marketing Committee of the Defendant in June 1994, this issue of commission on the Telecom Stix Series sponsorship was discussed. Rosemary Scott of AWHA said to Mrs Jones at that meeting that the Defendant had not budgeted for commission on the sum of $80,000 paid by Telecom for broadcasting expenses. She said to Mrs Jones that if she wanted to be paid commission "you will have to negotiate an amount for Telecom to cover both production costs and your commission. We will not pay commission out of production costs". Mrs Jones did not agree to the proposal put by Rosemary Scott - not surprisingly as there was no basis for it in the relevant Sponsorship Agreement. AWHA produced a document entitled "National Budget", which did set aside $130,000 for "Telecom sponsorship including TV coverage" [Jones T, 122 .24]. 47 During that meeting the AWHA suggested that if the Plaintiffs generated in excess of $45,000 additional or secondary sponsorship for the 1994 Telecom Stix Series, commission on the 1993 production costs would be paid out of any excess of that figure of $45,000. Although a memorandum written by the Defendant with regard to the meeting refers to the arrangement so stated as "agreed", Mrs Jones denied that the Plaintiffs consented to the course of action. Mrs Jones rather asserts that it was a resolution of the Defendant and was not agreed to by the Plaintiff [Jones T, 124 .55], However, the Second Plaintiff cannot point to any communication of her dissatisfaction with the arrangement to the Defendant. The Second Plaintiff indicated that the reason for her apparent acquiescence at first was to ensure the smooth running of the consultancy relationship at that time. 48 It was further 'agreed' that any money negotiated by the Plaintiffs for the 1994 television production costs must incorporate any commission that was to be paid to the Plaintiffs. 49 The Plaintiffs did not, as it turns out, manage to generate in excess of $45,000 in secondary sponsorship income for televising the 1994 Telecom Stix Series. Accordingly no commission was ever paid in respect of the 1993 television productions costs paid by Telecom Australia. 50 Finally, on 4 November 1994, the First Plaintiff, by invoice, sought payment of the sum of $461.63 as commission on a payment by Telecom of the sum of $3,770.50 for the design and printing of a brochure for the Stix Series. Thus in respect of the 1994 Telstra Agreement for the Telecom Stix Series from 1993, there was $12,000 claimed.

[25]

The 1995 Telstra Agreement 52 The 1993 Telecom Agreement was scheduled to expire at the end of 1994. Materially, the 1993 Telecom Agreement contained provision, at clause 8.1 (quoted above), for certain communications to be made if Telecom wished to renew its sponsorship with the Defendant. 53 The first requirement of clause 8.1 was that, if it were wishing to extend the sponsorship relationship, Telecom was to notify the Defendant "in writing" by 30 June 1994. Although no letter was sent to this effect, the Plaintiffs were satisfied that Telecom had communicated a desire to extend the sponsorship relationship by way of various meetings and other oral communications [Jones T, 139 .39] including discussions with Annamaree Pinner of Telecom in May of 1994 [Jones T, 148 .35]. Further discussions to a similar effect were alleged by the Second Plaintiff to have occurred in July or August 1994 between Mr O'Neill, the national sponsorship manager of Telecom, and the Second Plaintiff [Jones T, 149 .6]. The precise content and force of those conversations is unascertainable. They were not referred to by Ms Cawood in further correspondence with O'Neill or other Telecom representatives [Jones T, 152 .45]. I am nonetheless satisfied that the parties and in particular Telecom acted on the common assumption that Telecom wished to renew. 54 Thus it appears from the evidence of Mrs Wilson, President of AWHA, that despite not receiving written confirmation of a willingness to proceed with sponsorship on behalf of Telecom, it appears that the budget for the 1994-95 year of the Defendant included contributions from Telecom running into 1995 [Wilson T, 289 .5]. It seems even if there was some doubt as to the precise amount that would be forthcoming from Telecom, that the expectation certainly of the Board of the Defendant at the time the 1994-95 budget was drawn up was that the Telecom sponsorship would continue into 1995: Q. And the usual practices, to your knowledge, were, in 1994, that if something was known to the committee, which cast significant doubt upon whether sponsorships would be renewed, that information would be passed on to the person preparing budgets, isn't that right? A. They would be based on the fact that the Telecom sponsorship ended in that year and the amount from the sponsorship therefore, from when the sponsorship would be renewed, was not known. [Wilson T, 289 .30]

[27]

The 1994 Proposal 56 A sponsorship proposal was formulated by the Plaintiffs for submission to Telecom aiming to secure further Telecom sponsorship. This proposal was presented to Telecom by the Plaintiffs in late August 1994, some four days before the deadline for the submission of such a proposal as required by clause 8.1 of the 1993 Telecom Agreement. It appears that the late submission of the proposal was due to practical matters. The proposal had to be approved by a committee of the Defendant, members of which were overseas for the Hockey World Cup. Furthermore, a video was prepared that took some time to produce [Jones T, 158 .5-.30], though her evidence was that she personally felt that the proposed annual fee of $650,000 was "a bit high" and claims to have told Mrs Jones of that view (T, 323 .55 to 324.5), but relied on the Plaintiffs' professed expertise in allowing the proposal to go forward. 57 Before submission of the 1994 proposal, I am satisfied that the proposal was approved by the Defendant. Ms Cawood admits, in particular, to approving the fee structure provided for in the 1994 Sponsorship Proposal [Cawood T, 323 .30]. 58 The proposal envisaged the sponsorship in 1995 of the national women's hockey team (known as the Telecom Hockeyroos), the Stix Series, the Buchannan Cup and the Players' Fund by Telecom. The total amount of sponsorship sought in the proposal for 1995 was $650,000 followed by another $650,000 for 1996. Alternatively, the amount would be $600,000 in 1995 if Telecom made a commitment for four years. Both these figures represented a very significant increase in sponsorship - from $200,000 to almost treble. 59 The August 1994 proposal submitted by the Plaintiffs to Telecom was rejected by Telecom. Mr O'Neill, as the responsible officer at Telecom, stated by way of affidavit that: "Under no circumstances would I have recommended a proposal that was based on an amount of $650,000 or any amount of a similar magnitude. Further I was not prepared to consider taking less than the entire rights for an amount which was comparable to what we had paid for the entire sponsorship rights." [AEO 9/6/98 para 8]

[34]

Ms Cawood could only be confidently anticipated by Ms Passmore as understanding the words in their ambiguous state, if when drafted Ms Passmore had already given Ms Cawood their intended message - that the price was too high. 68 On 13 October 1994, O'Neill of Telecom wrote a letter to the Second Plaintiff and copied to Ms Cawood. Ms Cawood was thus aware, as of the arrival of that letter that the Second Plaintiff had been told that the reasons for refusal of the 1994 proposal was that it did not fit into Telecom's "current strategy" [PTB, 44]. The nearest the letter gets to price is in the very general words which follow: "… based on its current content and funding requirements, Telecom Australia must decline the proposal." 69 On 14 October 1994, a meeting of the Marketing Committee of the Defendant was convened before Mrs Jones' arrival to discuss the rejection of the 1994 Telecom proposal chaired by one of its board members Ms Tye. Mrs Jones attended the meeting and says in her affidavit [HEJ, 41] "the mood of the Marketing Committee was jovial" - hardly congruous with a genuine expectation on the Committee's part that Telstra's sponsorship was really lost. At this point, Mrs Jones raised her concern that someone from the Defendant had been in contact directly with a representative of Telecom. She reproduces the conversation (HEJ, 41) in terms whose accuracy was not doubted by Ms Cawood (T, 353.4) Jones: I'm surprised that you are taking this news so calmly.' Cawood: 'What else can we do?' Jones: 'I have read and re-read O'Neill's letter and it doesn't add up. Reading between the lines, I suspect that there is more to this letter than he wants me to know. Have you or anyone from WHA had any direct contact from anyone at Telecom whatsoever about this.' Cawood: 'No.' Jones: 'I would be very upset if anyone from WHA was dealing directly with Telecom.' Tye: 'What do you (Jones) suggest should happen now?' Jones: 'I will ring O'Neill and discuss this rejection but from the tone of the letter I suspect that he won't want to speak to me.' Tye: 'What if he won't?' Jones: 'I will write to him requesting a meeting to discuss ways to reach a compromise. If I get no response from the letter then I will make contact with Diedre Mason.' Cawood: 'I must insist that you give me a draft of the letter to Alan O'Neill for comment by the Marketing Committee before you send it.' Jones: 'I always do this so why would I not on this occasion? It seems to me that you want to monitor my words and actions very closely. Is there something that you are not telling me.' Cawood: 'No.' Jones: 'Maybe that Telecom want to deal with WHA and not through an agent. Do you think this could be the case?' Tye: 'If it were?' Jones: 'We would have to find a way around the problem. My prime objective is to have Telecom renew with you because it is going to be a lot easier at this stage than finding a new sponsor and obviously I have an ongoing vested interest in Telecom sponsorship continuing. I believe that it will continue until the Sydney 2000 Olympics.' Tye: 'I understand.'

[35]

70 Ms Cawood certainly did not raise the issues of concern made known to her by O'Neill or Ms Passmore in the conversation referred to above nor had she told Mrs Jones. If, indeed, as I conclude as more likely, that conversation between Ms Passmore and Ms Cawood had occurred before the Marketing Committee meeting of the 14 October 1994, it is significant that this information was not revealed to the Plaintiffs before or at that meeting. Ms Cawood, firstly, would not have been truthful in denying that she had had direct contact with Telecom, as I conclude she did. Second, such a denial and omission supports the inference that Ms Cawood desired the Plaintiff's efforts to secure Telecom sponsorship to fail through ignorance of the true position. The Plaintiffs contend that the only reason such a course of action would be embarked upon is that Ms Cawood had in her mind the idea that if the Plaintiffs failed to continue the sponsorship arrangement, the Defendant could do so 'in house' - as later occurred - and, by so doing, could avoid the commission payable otherwise. I return later to that contention. 71 In a telephone conversation on 19 October 1994 between Mr O'Neill of Telecom and Mrs Jones (reproduced HEJ, para 42), Mr O'Neill confirmed the refusal of the 1994 Proposal by Telecom and that "I am not prepared to negotiate the proposal as I can't afford the package". He was not prepared to negotiate individual parts of the package: "if I can't have everything, then I don't want it at all". Telecom would not negotiate the price with the Plaintiffs nor meet "to discuss options". Rather, Mr O'Neill suggested that the Plaintiffs should offer the sponsorship proposal in the wider market place saying: "But I said I won't break the package up so get out there and flog it - it's worth the money and the women deserve it". Note, contrary to the attack by the Defendant on Mrs Jones' credit Mr O'Neill was here confirming that $600,000 was not too expensive in the market - just too expensive for Telecom. While he does not say it is "too cheap", he comes close to it. 72 In the same conversation, Mr O'Neill asserted Telecom's last right of refusal as contained in the 1993 Telecom agreement stating "you have to come back to me and I will make up my mind then". He thus reflected clause 8 of the 1993 Telecom Agreement which reads (in part): 8.2 In the event that the parties fail to agree on new terms and conditions by 30 August 1994, AWHA will be free to negotiate with any other prospective sponsor PROVIDED HOWEVER that before committing itself to the prospective sponsor, AWHA must afford the Sponsor the opportunity to renew its sponsorship upon the same terms and conditions that have been negotiated between AWHA and the prospective sponsor. The Sponsor's election to renew must be exercised no later than seven (7) days after notification by AWHA of the terms and conditions that the prospective sponsor has agreed to accept.

[42]

The letter makes it clear that what AWHA was seeking to ascertain were the obligations to which AWHA might be exposed if the Telecom sponsorship were renewed during 1994 and how those obligations might differ if no renewal took place on or prior to 31 December 1994 (being the date of expiry of the 1994 consultancy Agreement if itself not renewed). It is clear (see PX6) that so far as any new sponsorship agreement with Telstra was concerned, the advice of Lane & Lane was there be a new agreement "which has been wholly and separately negotiated on new terms". 84 Under cross-examination, Ms Cawood, being the recipient of the facsimile, was unable to give any reason, other than that referred to in the document, as to why the advice had been sought [Cawood T, 328]. Nor could she give any clear evidence as to whom it was shown when received, and what discussion there was about it. The inference sought to be made by the Plaintiffs is that Ms Cawood was contemplating ways in which the Defendant could avoid the payment of commission to the Plaintiffs on any sponsorship agreement with Telecom Australia entered into after the termination of fourth Consultancy Agreement with the Plaintiffs. 85 Significantly in support of that inference, Ms Cawood admitted that it was her belief, on receiving the advice from the solicitors of the Defendant, that a Telecom Sponsorship agreement, if not entered into in 1994 could well be entered into in 1995. [Cawood T, 329 .40] That is, Ms Cawood could not have entertained the view that the sponsorship relationship between the Defendant and Telecom had permanently come to an end as she claimed to have done [Cawood T, 362 .25]. So far as credit is concerned, I did not find Ms Cawood at all a satisfactory or candid witness. Thus she frequently said she did not recall, rather than concede what would harm or be awkward for her case (see among many examples T, 364 .6). She would positively deny other matters with a confidence hardly congruent with her otherwise lacking recall. In contrast, I found Ms Jones a reliable witness, precise and forthcoming and where her recollection differs from Ms Cawood, I prefer the evidence of Mrs Jones. I deal later with the attacks on her credit which as I explain were without proper foundation and unfair.

[45]

89 However, when questioned further by the Plaintiffs about the refusal of the Defendant to provide the $3,000 necessary to launch a campaign (by letter 18.11.94 PTB, 59), AWHA maintained that provision of only $1,000 was all that could be justified under budget restrictions present at that time (by letter from Meg Wilson 1.12.94 PTB, 62). Earlier on 1 November 1994, Ms Cawood telephoned Mrs Jones in relation to the funds requested for the media campaign. According to Mrs Jones, the conversation was to the following effect [HEJ, para 47]: Jones: 'This campaign is going to cost $5,000-$,6000. All I am asking is for WHA to pay $3,000 towards it and Edmunds-Jones will meet the rest. Our input of money and effort makes sense given that we believe our contract with WHA will be renewed beyond this year. Has the Marketing Committee recommended to the Board that the contract be renewed yet?' Cawood: 'I am not at liberty to disclose whether they have or not.' Jones: 'Why?' Cawood: 'You are not going to force any statements of this from me. This is a Board decision and that is all I can say.' Jones: 'The question that I'm asking is 'has the Marketing Committee made its usual recommendation to the Board?' This all sounds ominous. Are you saying that there is some doubt because if you are, I would be mad to spend money on a sponsorship campaign which may not bear results until after our contract expires?' Cawood: 'I hate to be bearer of doom and gloom but WHA has decided to seek expressions of interest from a number of interested agencies for sponsorship management.' Jones: 'This is a ridiculous situation. I thought that we are a team but it seems I may no longer be on the team but no one is telling me. Are you happy for me to spend thousands of dollars on a sponsorship campaign when you may already know that we will not be around any more? Do you think this is fair? Regardless of your comments, we need to do the campaign for the team's sake so I want you to contribute $3,000 out of the marketing budget that I haven't fully spent." Cawood: 'No we can't afford it.' Jones: 'But we have just saved you that amount from your budgeted allocation to buy the team awards for each member of the team. The sponsorship of Gold Mark Jewellery saved you that money. If we don't do the campaign, what are you going to do in January when your team has no sponsor?' Cawood: "Telecom may renew and because of this we shouldn't be going to the media with stories about WHA needing a sponsor at this time.' Jones: 'So you are prepared to run the risk. This is very much out of character and I am at a loss to understand the logic.' Cawood: 'We will give you $1,000 and that's all.'

[46]

90 Ms Cawood understood from speaking to Mr O'Neill or Ms Passmore of Telecom that whilst no assurance could be given, Telecom were willing to discuss the question of sponsorship with the Defendant in 1995 if the Defendant pursued sponsorship at that time [Cawood T, 369 .45]. This was a matter that Ms Cawood regarded as a matter of particular significance at the time [Cawood T, 370 .35]. 91 The conversation is echoed by a letter of 20 December 1995 from Mrs Jones to Meg Wilson [PTB, 69]. In the course of that letter, Mrs Jones mentioned that the Plaintiffs had saved the Defendant some $2,500 out of its budget allocated to the work of the Plaintiffs. There was never any response to that assertion [Cawood T, 385 .47]. It appears, then, that strict budgetary considerations were not behind the refusal of the Defendant to afford $3,000 towards the media campaign which further strengthens the inference that AWHA had reason to be confident that Telecom intended to renew its sponsorship and had no wish to allow the Plaintiffs to be involved in that anticipated outcome. 92 Despite not receiving the $3,000 fee, the Plaintiffs formulated a media campaign strategy design to raise awareness of the sponsorship opportunity available in the absence of Telecom. The media campaign was sent as an enclosure to a letter dated 4 November 1994 from the Plaintiffs to Telecom. Copies of the letter were sent to Mr O'Neill and to two other officers of Telecom in higher level positions than Mr O'Neill. 93 Ms Cawood objected to the fact that the letter was copied to Messrs Hinchcliffe and Denton, the two officers of Telecom Australia senior to Mr O'Neill [Cawood T, 379 .45] 94 The possibility of a media strategy had already once been raised with Mr O'Neill by the Second Plaintiff. In a telephone conversation of 19 October, Mrs Jones suggested that a campaign to find an alternative sponsor in replacement of Telecom might reflect badly upon Telecom [Jones para 59]. Although O'Neill maintains that such negative "fall out" was a source of concern for himself and Telecom [O'Neill T, 237 .15] it appears not to have been sufficient to elicit a compromise proposal from Mr O'Neill with respect to the sponsorship proposal of 1994 [O'Neill T, 237-8]. During that conversation, the Second Plaintiff said words to the effect: "If you don't agree to the proposal we will have to go out into the marketplace and find a new sponsor and, of course, tell the media that Telstra won't renew the sponsorship."

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(ii) on the part of the Defendant, an expectation that if a proposal were submitted in 1995 there would be an ability to consult with Telstra regarding the proposal, and to reach an agreement thereby on price. 109 Mr O'Neill denied ever having such a conversation. Ms Passmore was uncertain whether she would have had that conversation [Passmore T, 274]. On the other hand, Ms Passmore admitted that she was, as of November 1994, willing to give consideration to a proposal lodged by the Defendant in 1995 [Passmore T, 275 .1]. 110 While maintaining that the conversation quoted above did take place, there is no evidence that Ms Cawood communicated that knowledge to Mrs Jones despite being of the opinion that it was information that was important and should have been passed on to the Plaintiffs as exclusive marketing agents at that time [Cawood T, 378 .1]. 111 In December 1994 Ms Cawood appears to have had a second relevant conversation. Ms Cawood talked to Ms Passmore of Telecom and communicated to her a concern on the part of the Defendant that they did not have a major sponsor lined up for 1995. Ms Cawood was concerned to ensure that the prospect of Telecom Sponsorship in 1995 remained a viable one [Cawood T, 397 .45]. Ms Cawood understood the effect of the conversation to be an invitation on behalf of Telecom to recommence correspondence with a view to a future sponsorship arrangement [Cawood T, 397 .50]. 112 A letter to Mrs Jones of 17 November 1994 expressed a belief on the part of Telecom that its first right of refusal continued into 1995. That letter read, relevantly: "Discussions with Annamaree Pinner in June/July of this year advised Edmunds Jones to submit a new proposal to Telecom to ensure timeframe for negotiation was satisfactory to both parties. The proposal was received on 26 August allowing us only four days for review as our contract states a decision must be made by 30 August. As you are aware, Telecom's current contract with Women's Hockey Australia offers Telecom the opportunity to renew its sponsorship under the same terms and conditions being offered to a prospective sponsor. The timeframe that Edmunds Jones are now left with to seek prospective sponsors for WHA cannot therefore, be attributed to Telecom's decision not to further elaborate on our sponsorship strategy."

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1995 Sponsorship Proposal 120 In early January 1995, swiftly after the expiration of the First Plaintiff's consultancy arrangements, Ms Cawood told Ms Nixon of the Defendant that Ms Passmore of Telecom had offered to advise the Defendant on what to put in a proposal to Telecom with regard to sponsorship in 1995 [Cawood T, 398 .40]. Ms Cawood spoke to Ms Passmore at that time to discuss what assistance she might provide in submitting a further proposal for sponsorship to Telecom [Cawood T, 400 .55]. 121 By 23 January 1995, the Defendant and Telecom had arranged a meeting to discuss further Telecom sponsorship. Notes made in preparation for the meeting describe the purpose of the meeting as "sponsorship renewal" and refer to the "Re-launch of Telecom sponsorship". 122 The purpose of the meeting was said to be to assist the Defendant in formulating a proposal that would be acceptable to Telecom and, in particular to Mr O'Neill [Passmore T, 276]. A similar meeting was not convened in relation to the 1994 proposal [Passmore T, 277 .25]. Ms Passmore, at the meeting of 23 January 1995 suggested that the Defendant should incorporate certain messages, the content of which Telecom wished to convey to the media as part of its corporate image. 123 A new proposal was submitted to Telecom by the Defendant on or about 3 February 1995 [ECN, 3]. It is certainly not an outline of a contract, but mainly consists of the lengthy calendar of future hockey events with identification of advertising opportunity. The only "contractual" aspect of the proposal was that it envisaged a total sponsorship of $570,000 broken up into a sum of $270,000 for 1995 and $300,000 for 1996. The date of the proposal is uncertain. But certainly by early February a draft sponsorship agreement had been brought into existence between the Defendant and Telstra Corporation Limited (Telstra) dated 1 February 1995 and contained these figures for year 1 and year 2; PTB, 75. It is my conclusion that though the agreement was not finalised till later, commercial agreement on its essential terms had been reached. 124 Significantly, no proposal was submitted by the Defendant to any potential sponsor other than Telecom then, earlier, or later. [Wilson T, 312] 125 In about February 1995 Telstra produced a post evaluation document of the WHA and Telstra sponsorship: "December 1994 saw the departure of WHA's marketing promotions agency, which now provides for easier channels of communication between the sponsor and WHA. Hence, WHA have prepared their proposal and wish to deal directly with Telecom Australia in the hope of securing a new partnership". (PTB, 79)

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136 After considerable further questioning on the matter, Ms Cawood belatedly admitted that it was not proper to refer to the 1995 Telecom Agreement as being the result of 'extensive negotiations' [Cawood T, 411 .55]. Ms Cawood could not then proffer any reason why the recitals to the 1995 Telecom agreement referred to extensive negotiations [Cawood T, 412]. None of this evidence did anything to assist her credibility as a witness. 137 A further draft of the Telecom Sponsorship agreement was then faxed on 21 March 1995 by Simon Tan of Telecom to the solicitors of the Defendant. Obligingly the accompanying letter pointed out that "I have structured the agreement as "a new agreement between the parties". He reiterated the notion of a renegotiated agreement arising from a "new" proposal when he then adds; "The draft contemplates a proposal prepared by AWHA. Please send me a copy of the proposal for inclusion in the final agreement" (PTB, 102). 138 That this was really a facade is evident from the fact that the draft agreement was successfully drafted with no such prior proposal. All of this supports the inference that both sides were co-operating to "dress-up" the agreement as a new agreement based on a supposedly "new" AWHA proposal, rather than what it really was, that is a renewal of the past sponsorship on "generic" Telecom terms with a relatively modest increase in sponsorship amounts. Thus comparing the 1993 Telstra Agreement entered 15 February 1993 (BEC, 139), to this draft they are not markedly different. There are updating changes, a self-serving recital B, quoted below and the amounts for 30 June 1993 and 1994 were $200,000 each, as against $270,000 on signing and then $300,000 paid on the Agreement's first anniversary. Recital B provides: "B. The parties entered into a sponsorship agreement dated 15 February 1993 under which, inter alia, Telecom reserved the right to extend or renew its sponsorship of AWHA. After extensive negotiations did not result in a renewal or extension of the earlier sponsorship, AWHA submitted a proposal to Telecom (a copy of which is attached) which forms the basis of this agreement."

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149 Again, how the figure of $2M referred to in that paragraph was derived was not explored in cross-examination. It was never put to Mr & Mrs Jones that her subjective belief was that $2M was all that the Defendant was worth. For all one knows, the $2M could have represented the net benefit after various expenses had been defrayed out of sponsorship funds. Or it could be that this more closely represented the Defendant's own estimate of what they thought they could get by way of sponsorship, though Mrs Jones thought the figure of $800,000 per year should be sought. It is hardly to be thought that if Mrs Jones truly believed that the Defendant was only worth about $300,000 per year sponsorship, and that was all she could realistically ask, that, given her own commercial interests, she would not have communicated such a view to Mr O'Neill in an attempt to renew the Telstra sponsorship, though it was evident Mr O'Neill was not encouraging negotiations. 150 The Defendant's submissions also assert that the statement made by Mrs Jones in the letter of 18 November 1994 to the effect that Mr O'Neill had "said that $600,000 a year was too cheap for what WHA is offering" was clearly false; see para 4.5 of the Defendant's written submissions. Mrs Jones gave evidence of this conversation; see HEJ, para 42 in particular page 13.8. She was not cross-examined about it. Mr O'Neill put on an affidavit subsequently to Mrs Jones first affidavit. It is clear from the quoted conversation that Mrs Jones was led to believe by Mr O'Neill that "you must have plenty of sponsors who would take it for $600,000 - haven't you" and "it's worth the money and the women deserve it". That comes close to saying that if anything $600,000 was too cheap if there were plenty of sponsors willing to offer that amount. Certainly it is not in any substantive sense markedly different from Mr O'Neill was saying. 151 Next it is asserted (in para 4.9 of the Defendant's written submissions) that Mrs Jones employed "the tactic of veiled threat" by making a reference to the negative publicity that would undoubtedly follow the Defendant seeking a new sponsor. The implication from the word "veiled" is that while the words may have been innocuous, they would reasonably have been understood in quite a different sense as a threat. But no such proposition was ever put to Mrs Jones in cross-examination. Although Mr O'Neill made reference to this aspect of the conversation in his affidavit (AEO, para 10) he did not suggest that the words were to be understood other than in their ordinary sense. 152 Then it was suggested that in the conversation Mrs Jones "resorted to the ploy of deceit"; a proposition again not put to Mrs Jones in cross-examination as elementary fairness would have required. She was said to have so resorted the ploy of deceit by using these words: "I realise this is a big jump, but I've been under a lot of pressure from the coaching staff saying that I am selling the sport off too cheap. You know, WHA can't really afford this sponsorship at $200,000 as it's costing them too much". 153 The bases upon which it is said that this statement was deceitful seemed to be:

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(b) Ms Cawood's view that the $650,000 was "a bit high". 154 As to the former, there was no issue raised in the proceedings and has been none since which required Mrs Jones to justify the statement. The Defendant could have adduced evidence of contrary facts, subject to an argument about the width of the pleadings, if the facts were thought to be relevant. It chose not to do so. Mrs Jones was not cross-examined on the proposition that she lacked any adequate factual foundation for the statement. Ms Cawood's reservation about the price being "a bit high" is not inconsistent with the statement that the coaching staff thought that the sport was being sold off too cheap. Clearly, the ultimate level of sponsorship must be a matter of opinion, in which there is room for legitimate difference. Certainly there was no basis for the Defendant to have asserted that the statement about pressure from coaching staff was deliberately false. 155 It is next alleged (in para 4.11 of the Defendant's written submissions) that Mrs Jones repeated "her veiled threat" to Mr O'Neill by writing to him on 3 November 1994. That letter enclosed the planned media campaign. Mr O'Neill was asked about the detail of that media campaign (T, 244 .10 - 246 .22). Mr O'Neill's only complaint seemed to be that the statement that Telstra doubled its return on investment was untrue because the return on investment was unquantifiable (T, 245 .25 - .41). The letter did no more than the conversation that preceded it between Mrs Jones and Mr O'Neill. Mrs Jones was again not cross-examined to suggest that she had made any veiled threat in the letter, and Mr O'Neill gave no evidence that he understood what was in the letter to be a veiled threat. 156 Next the Defendant (para 4.12 of its written submissions) deals with Mrs Jones' statement (made to Ms Cawood) that she knew what Mr O'Neill's agenda was. The Defendant called that "dissembling", because the reference to "our current strategy" was not understood. Once again this is a matter upon which Mrs Jones was not cross-examined. Moreover it overlooks entirely the context of the conversation. Mrs Jones' account of the conversation is given in her affidavit; HEJ, 50. Mrs Jones said, in the very same conversation, to Ms Cawood: "I think that you all (WHA and Telecom) know exactly what's going on and I'm the only one doing the guess work."

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were words chosen by Mr O'Neill specifically and deliberately for refusal of Mrs Jones' sponsorship proposal on behalf of the Defendant (T, 270 .30). It should be concluded that Mr O'Neill's evidence on this point (the use of a "standard" letter) was at least lacking in candour. It would have been simple enough for Mr O'Neill at the time to state to Mrs Jones that the level of sponsorship being sought was too high and to communicate that view to Mrs Jones very shortly after the proposal was assessed in August 1994. The unexplained delay and the failure to identify the true reason for rejection with any clarity is more consistent with a preference on Mr O'Neill's part, encouraged by the Defendant, to deal in due course with the Defendant itself without Mrs Jones. Indeed, Mr O'Neill's inferred knowledge of the difficulties in locating major sponsors, combined with his knowledge of Telstra's right of first refusal must, when combined with the date of the rejection letter (13 October 1994) have meant that it was obvious to Mr O'Neill that the course of conduct that he was engaged in was highly likely to promote the prospect of Telstra being able to deal directly with the Defendant in 1995 free of the Plaintiffs. The Defendant had a commercial interest in achieving that outcome in the perceived scope for avoiding paying a commission to the Plaintiffs having regard to the legal advice it had received from Lane & Lane on 19 October 1994 (PX6). In particular, a replacement sponsorship agreement could be altered to look like a new sponsorship in accordance with the advice received from Messrs Lane & Lane. It was suggested by Messrs Lane & Lane (at page 3 of the letter) that there be a new agreement "at some future time" "which has been wholly and separately negotiated on new terms". Telstra's objective is less clear. It seems clear, however, that at or about the time that Mrs Jones was submitting her sponsorship proposal, Telstra had become critical of some aspects of her performance; see, for example BEC, para 39.

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The Second Plaintiff admits to being aware that Qantas was described as a minor sponsor in the sponsorship agreement. However, Ms Cawood was not aware, or did not admit to being aware, of any agreements being in existence at that time. 186 In 1992, an agreement was entered into for sponsorship by Australian Airlines Limited of the Defendant and thus prior to any consultancy agreement with the Plaintiffs. Accordingly, no commission was payable on sponsorship monies provided by Australian Airlines Limited [clause 4(a) BEC, 100]. 187 By letter dated 15 April 1992 Australian Airlines Limited agreed to provide further sponsorship for a period of three years commencing on 1 January 1992 and concluding on 31 December 1994 [BEC, 166]. In 1993, the merger of Australian Airlines Limited with Qantas resulted in the replacement of Australian Airlines with Qantas as sponsor as the Australian Airlines brand name was phased out. On 27 May 1993, a letter from Qantas to the Defendant confirmed that the agreement that then existed between the Defendant and Australian Airlines Limited would, from that time on, be administered by Qantas. 188 In the program for the 1993 Telecom Stix Series, Qantas was acknowledged as a sponsor and the "official airline of Telecom Stix Series". [BEC, 174] The Qantas name and logo appeared on banners displayed at matches during the 1993 Telecom Stix Series alongside banners for other sponsors. [BEC, 9, 176] Sponsorship payments in 1994 pursuant to the letter of agreement dated 15 April 1992 with Australian Airlines Limited were made by Qantas Airways Limited. [BEC, 9]. 189 In the 1993 Annual Report, under the acknowledgments at the commencement, Qantas Australian Airlines is mentioned in respect of "continuing financial assistance and provision of contra travel" and Mrs Jones reported in her marketing report that: Support sponsorships also important to WHA which have been maintained throughout the year are Qantas Australian Airlines and Kookaburra Sport. [BEC, 179]

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191 It appears that much of the 'sponsorship' provided by Qantas to the Defendant was therefore in the form of "contra travel" up to 7 November 1994. However, on 18 March 1994, the Defendant did receive a cheque from Qantas for $5,000, being a sponsorship payment for the period 1 July 1993 to December 1993. 192 On 11 August 1994 a representative of the First Plaintiff met with Steve Loader, a representative of Qantas (Mr Steve Loader was the person responsible for making all sponsorship decisions for Qantas with sporting bodies) to discuss the possibility of Qantas sponsorship of the Defendant. In September, a marketing report of the Plaintiffs referred to further meetings with Qantas. 193 On 21 September 1994 a proposal was presented by the Plaintiffs to Qantas. A further meeting was then held between the Plaintiffs and Qantas about the terms of a sponsorship agreement. Qantas represented that they would sponsor the 1994 Stix Series with respect to airfares. A draft agreement incorporating that and other representations was faxed to the Defendant by Qantas on 18 October 1994. 194 By a letter of agreement dated 7 November 1994 between Qantas and AWHA, Qantas agreed to provide sponsorship for four years commencing on 1 January 1995. 195 The sponsorship consisted air carriage in annual instalments of $50,000, $52,500, $55,000 and $57,500 [Annexure J to HEJ, 76] . Tickets issued as sponsorship were to be used by employees or members of the Defendant or persons designated by the Defendant. The agreement also involved a minimum 9% discount off international air fares and a waiver of excess baggage requirements on such international flights. 196 Furthermore Qantas agreed to provide to the Defendant a 40% discount on airfares on certain (domestic - above QF400) flights for a period of three years from the commencement of the agreement. 197 Finally, Qantas agreed to provide $5,000 cash per year to the Defendant for the naming rights and sponsorship of the Player of the Match and Player of the Series Awards pertaining to the Stix Series. 198 On 31 December 1994 the Plaintiffs forwarded to the Defendant an invoice for the amount of $8,550.00. This represented commissions on both the 1994 Stix Series and on the domestic and international travel arrangements. 199 In a letter dated 6 February 1995 to Mrs Jones, Ms Cawood states: 2. Re commission on Qantas sponsorship "As you know Australian Airlines has been a sponsor of AWHA for over 8 years and the fact that Qantas and Australian Airlines merged the legal technicality which you highlighted of Australian Airlines no longer being a separate entity should not result in increased costs for WHA or a bonus for Edmunds-Jones. Given this, my opinion is that $25,000 of the Qantas funding should be applied to the previous Australian Airlines arrangement being for domestic airfares which would, had not the merger occurred being under that long standing arrangement. The remaining $25,000 of the Qantas arrangement, being for overseas flights would then legitimately apply a claim by Edmunds-Jones of 15% being $3,750.

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Principles 210 Before dealing with the elaboration of that basis for alleging uncertainty and the others that follow, I set out below what can be taken to be common ground as to the principles applicable to dealing with allegations of uncertainty and the differentiation between uncertainty and ambiguity. These are usefully summarised by Mackenzie J of the Queensland Supreme Court in Coomera Resort Pty Ltd v Kolback Securities Ltd & Ors (Mackenzie J, BC9800289, 20 February 1998, unreported) at 97: "A contract is only void for uncertainty if an essential term is uncertain ( Thorby v Goldberg (1964) 112 CLR 597; Godecke v Kirwin (1973) 129 CLR 629, 646). Because of the great inconvenience otherwise resulting, Courts nowadays strive to uphold the existence of a contract if possible ( York Air Conditioning & Refrigeration (A'asia) Pty Ltd v The Commonwealth (1949) 80 CLR 11; Meehan v Jones (1982) 149 CLR 571. The notion that it would be a reproach upon the law if the parties had intended to agree and believed they had agreed were told that for legal reasons the contract had never come into existence is uppermost in the Court's mind ( Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503; Prints for Pleasure Limited v Oswald-Sealy (Overseas) Ltd (1968) 3 NSWLR 761. But such belief is not decisive of the existence of a certain contract. It is important to avoid a 'narrow or pedantic' approach ( Upper Hunter District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429, 437). If the parties have acted on the basis that there is agreement, the readiness to uphold it may be reinforced ( F & g Sykes (Wessex) Ltd v Fine Fare Limited (1967) 1 Lloyds Rep 53; Brown v Gould [1972] Ch 53. Where the parties have shown by conduct that they can understand and apply the terms of the contract, a Court should be reluctant to find the contract is uncertain ( Hillas & Co Ltd v Arcos Ltd ; York Air Conditioning & Refrigeration (A'asia) Pty Ltd v Commonwealth ). But if an uncertainty cannot be resolved there is no room for upholding the agreement. It is, however not uncommon that parties may clarify what was previously uncertain… ."

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(a) The concluding proviso to clause 4 is uncertain (see paras 7.4 and 7.9 of the Defendant's written submissions). It is said that the proviso is uncertain in that: (i) in distinguishing between monetary sponsorship and sponsorship by way of the provision of goods and services, where the sponsorship is by way of goods and services, the final proviso to clause 4 stipulates that "the fee payable to the Company relating to agreements for supply of goods and services shall be calculated upon the actual monetary amount received by the Association when utilising the goods and/or services and not the actual value of the goods and/or services. Payment shall be made to the Company within thirty days of such date." It is then said that such proviso produces an absurd result where, for example, a sponsor provides hockey uniforms and the uniforms are worn by players in a match promoted by the Defendant to which members of the public attend on paying an entrance or gate fee. It is then suggested that if "the actual monetary amount received by the [Defendant] when utilising goods" is the amount of that gate or entry fee, the Plaintiffs have provided no evidence to support any claim for commission based on such a mode of calculation but equally, if the proviso does not mean that, there is no other ascertainable meaning. (ii) In a case of "agreements for the provision of goods or services" as referred in the words immediately preceding the final proviso to clause 4, the fees payable to the Plaintiffs are required to be paid "at such time as the Association receives a monetary benefit from the supply of the goods and services". If such goods and services were thus provided in kind rather than by way of direct monetary payment, how does one calculate "a monetary benefit" from their supply and, more particularly, how does one do so in accordance with the final proviso which requires that the calculation be "upon the actual monetary amount received by the Association when utilising the goods and/or services and not the actual value of the goods and/or services". Ex hypothesi the actual monetary amount was never received and the concluding proviso eliminates as a possible answer to that question "the actual value of the goods and/or services".

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(a) Relationship between opening part of clause 4 and concluding proviso in the case of sponsorship by the provision of goods and services 222 Essentially the Defendant's contention is that the concluding proviso to clause 4 is uncertain and that uncertainty relates to sponsorship by way of the provision of goods and services, whether effected by the sponsor providing goods and services direct, or by the sponsor making a payment to a third party where the third party in turn provides the goods and services to the Defendant. The alleged uncertainty relates to the method of calculating the sum by reference to which commission is payable and the time from which commission is payable. 223 The starting point in attempting to construe a contract potentially ambiguous, is to determine whether a meaning can be attributed objectively to the words used, from the evident commercial purpose of the parties' overall arrangements; compare Lord Steyne "Contract Law: Expectations of Honest Men" (1997) 130 LQR 431 at 441. That in turn requires a determination of what Lord Steyne calls "the objective contextual scene", though the extent of extrinsic evidence which may be called upon to resolve ambiguity is a matter of debate as is the scope for finding ambiguity; Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 at paras 39-44 (Santow J, 25 August 1999, unreported). In Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 2 WLR 945 Lord Steyn at 961 explains: "First, in respect of contracts …. the contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant. But admissibility is not the decisive matter. The real question is what evidence of surrounding circumstances might ultimately be allowed to influence the question of interpretation. That depends on what meanings the language read against the objective contextual scene will let in. Thirdly the inquiry is objective: the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind."

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224 Here there can be no rational basis for distinguishing between the situation where the sponsor pays a monetary amount direct to the Defendant, for example to buy hockey uniforms, and where the sponsor pays that same monetary amount to a third party supplier to provide the hockey uniforms to the Defendant. In either case, the payment has the same purpose, namely to provide a benefit to the Defendant readily ascertainable by reference to the money amount actually paid by the sponsor. In my judgment, clause 4 treats both payments in the same way, such that the expression "receipt by the Association of the monetary payments owing pursuant to the terms of the relevant agreement" where it appears in the last sentence of clause 4 before the final proviso is intended to embrace monetary payments directly received or indirectly received. The obvious example would be where the sponsor is directed by the Association to make a payment direct to a supplier which otherwise the Association would have had to pay itself. While literally the Association has not received the monetary payment, it has in a practical sense done so and both a direct receipt or such an indirect or constructive receipt are embraced by the earlier quoted words. 225 In contrast to that situation, is the situation where the sponsor never makes a monetary payment but simply provides goods and services to the Association. In that circumstance, clearly enough there is a commercial purpose in having a mechanism for calculating a monetary value to be attributed to the goods and services. The opening part of clause 4 and the lead in to its final proviso are directed to providing a basis for determining, but in that situation only, both how such a value is to be attributed and the time from whence commission is to be calculated. It does so, admittedly in clumsy and imprecise language. The question is whether any sense can be made of it which accords with a discernible commercial purpose of the parties derived from the objective contextual scene. 226 Clearly enough the possibilities for different values to be attributed ranging from the value of the goods and services to the sponsor, their market value, or their peculiar value to the Association, render it necessary for there to be some objective means of ascertainment of which if any of these possibilities was the parties' objective intent when attributing a mode of calculating a value. 227 I am satisfied that the words "the actual monetary amount received by the Association when utilising the goods and/or services" applies to notional receipts, as if the Defendant had disposed of such goods and/or services, and means ordinarily the proceeds that would be received upon such a notional disposal. The outcome is ordinarily to attribute market sale value to the relevant goods and services. However, the qualifying word "actual" enables the Defendant, in the less usual case where this is so, to demonstrate that the benefit that would be received from such a notional sale should not be treated as the actual market value, in the event that the same goods or services could be acquired from some other source at lower than the market sale price. An example might be a standard discount available from several sources for the particular service, such as air travel for a community sporting group, which Qantas and other airlines might provide. 228 Support for this interpretation is gleaned from the words immediately preceding the last proviso. There reference is made, in the case of an agreement for the provision of goods or services, to the time when the Association "received a monetary benefit" from supply thereof. 229 Although as I have said the language is imprecise and clumsy, I am satisfied that this interpretation avoids consequences which would otherwise be "capricious, unreasonable, inconvenient or unjust" (to use the words from earlier authorities cited in Locke v Dunlop 39 ChD 387 at 393 in turn referred to by Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109-10). What would clearly be capricious in the present circumstance would be to have a gap in respect of sponsorship in kind as would be the case were there no method for calculating its attributable value for commission purposes. But I am satisfied there is no such gap. Rather, the relevant provisions clearly contemplate that such sponsorship in kind should be taken into account no less than monetary sponsorship in the conventional sense. Indeed, were it necessary to do so, if that were a source of ambiguity for which no content could be provided, there would be adequate basis for severing that part of the relevant clause; see Mcfarlane v Daniell [1938] 38 SR(NSW) 337 at 345. However, I do not consider that that course is necessary.

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231 I consider that the first purpose of the proviso is to confer an entitlement to commission or fee on telecom sponsorship without the Plaintiffs having to establish that the Plaintiffs had any role with respect to approaching, introducing or negotiating with Telecom Australia after the relevant date (1st January 1989). That provision finds its origin in the sequence of Consultancy Agreements starting with 1989. Clause 3(a) of the first one, entered on 17 July 1989 excepts Telecom Australia from the preclusion of any fee on any agreements "entered into by the World Cup with a person or company with whom the Australian Women's Hockey Association Inc have previously had an agreement except in relation to Telecom Australia". [emphasis added] This is similarly provided in clause 4(b) of the 1991 Consultancy Agreement; see first proviso quoted earlier. In addition, by the preceding words of clause 4(b) of the 1991 and following Consultancy Agreements, this sponsorship agreement must have been entered into on or prior to the end of the relevant December year in which the relevant Consultancy Agreement expires. 232 It will be recalled that according to Ms Cawood's evidence (BEC, para 10) she was approached by an employee of Telecom as early as 1988 and, in consequence, asked Mrs Jones to speak to that employee. There were negotiations in 1988 in which Mrs Jones thus played a part, in respect of the 1990 Womens Hockey World Cup (HEJ, 8). At the same time that Mrs Jones was speaking to Telecom about 1990 Womens Hockey World Cup, she was speaking to Telecom generally about sponsorship (T, 83 .20). I should add that the reference to "any agreement entered into with Telecom Australia" was not intended to apply to any agreement ever entered into with Telecom Australia but rather any Telecom Australia agreement which existed at the time of the relevant Consultancy Agreements. Other parts of the consultancy Agreements, in particular the second proviso to clause 4(b) and clause 4(c) dealt with the position of the Plaintiffs in relation to renewals of, inter alia, the Telecom sponsorship after the termination of any consultancy. 233 I therefore conclude that there is no sufficient basis for uncertainty on this ground either.

[194]

(ii) did the Plaintiffs maintain and enhance the image of the Defendant and women's hockey generally (as required by clause C of Annexure A)? 249 Earlier, at para 170 I concluded that even if it were a condition precedent to any relevant entitlement to commission, that the Plaintiffs act in a professional and businesslike fashion, the evidence does not demonstrate that the Plaintiffs acted otherwise. Likewise, I concluded that there was no failure to "maintain and enhance the image of the Defendant and women's hockey generally". 250 Thus, even if, prima facie, a breach of clause 3 would disentitle the Plaintiffs to their commission or at any rate a breach of sufficient magnitude, no such breach is made out. In those circumstances, I do not need to determine whether, as a matter of construction, the entitlement to commission under clause 4 depends upon "other actions by Ms Jones being in accordance with the provisions of this agreement", as provided in clause 3. The Plaintiffs argue that there is a presumption of independence (rather than interdependence), citing, for example, Ryan v Ferguson (1909) 8 CLR 731; Colley v Overseas Exporters [1921] 3 KB 302, 309-311; McDonald v Dennys Lascelles Limited (1933) 48 CLR 457; Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Babour Ltd [1943] AC 32; Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, 450-452, 461, 463-465, 475, 476; Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812, 830 (aff. [1977] 1 NSWLR 553). 251 I would agree that any failure by Mrs Jones in performance of the provisions of this agreement must be a failure connected to the manner in which the sponsorship agreement has been negotiated or concluded, and probably also as to the way in which the relevant sponsor has been "located and/or introduced", as those expressions are used in clause 3. 252 Taking that as the relevant interdependence, and in circumstances where there was no repudiation of the agreement on the grounds of breach or alleged breach by the Plaintiffs, none of the allegations of breach by the Plaintiffs of the 1994 Sponsorship Agreement could of themselves relate to the negotiation and/or conclusion "by Ms Jones" of the 1995 Telstra Agreement; she was simply not involved in that process after 31 December 1994 on the Defendant's own case. That she may have laid the groundwork for that later agreement, though excluded from its negotiation, yet somehow contravened the provisions of the 1994 Consultancy Agreement, would be to stretch interdependence further than the clause warrants. And, in any event, I have already concluded that that assumption of contravention is not made out.

[205]

Subsequent year of sponsorship - fifteen per cent fee under clause 4(b) 259 The starting point is to consider clause 4(b) of Annexure "C" in order to determine whether the conditions laid down by that sub-clause are satisfied for the fifteen per cent commission to be payable. In my judgment they are not. 260 The fundamental requirement for commission to be payable under clause 4(b) is contained in its first two lines prior to the provisos which follow. That requires "any concluded agreement entered into on or prior to the 31st December 1994". That clearly enough means a contractual agreement for sponsorship of the Association, as the opening words of clause 4 indicate. Thus ad hoc sponsorship without such an agreement does not suffice; indeed its value to the sponsee must be less as it is ad hoc and not contractual. Unless clause 4(b) read in the context of the clause as a whole including the following provisos, leads to any different interpretation of what appears to be the evident meaning of its opening requirement, on no view could it be said that the agreement entered into with Telstra for 1995 had been entered into on or prior to 31 December 1994. This is so, even if the gap thereafter was not as great as 5 May 1995 when the 1995 Telstra Agreement was in fact executed; contractual agreement appears to have been reached in commercial terms as early as February 1995, though the precise date is unclear (paras 120-144). In particular it could not be said that the 1995 Telstra Agreement was simply an extension of the 1994 Telstra Agreement; it differed in one essential respect, namely that the price or level of sponsorship was increased. 261 Turning to the provisos, it is clear enough from the first proviso that what is required is a "concluded agreement" where (unless Telecom Australia) the other party was approached or introduced or negotiations commenced on or subsequent to 1 January 1989. There simply was no "concluded agreement" with Telecom on or prior to 31 December 1994 which extended beyond that date. The words "on any agreement entered into with Telecom Australia" could not on any rational interpretation override the requirement of a concluded agreement entered into on or prior to the 31st December 1994 in the opening words of clause 4(b). 262 The Plaintiffs however rely on the second proviso which is in these terms: "PROVIDED THAT a fee of fifteen per cent (15%) shall be paid on subsequent years of the sponsorship where the original sponsorship was negotiated by the Consultant and such sponsorship was for a period in excess of one (1) year up to the date of expiry of that actual Agreement and no further."

[206]

263 The Plaintiffs' argument is that this proviso in effect expands the opening words to embrace any situation where first, the "original sponsorship" was negotiated by the Plaintiffs, assuming that that requirement applies also to an agreement entered into with Telecom Australia, and second, the "original sponsorship" was for a period in excess of one year so as to give rise to "subsequent years of sponsorship", even though this be under a later and differing agreement rather than a continuation of the original one. The Plaintiffs' argument is that the original sponsorship of Telstra was entered into on 28 August 1989 (see Annexure "I", BEC, at 112). Furthermore, there is no dispute that first the Plaintiffs negotiated it and second that the sponsorship was one for a period in excess of one year (see Recital B and clause 2). 264 The fallacy in the Plaintiffs' reasoning is that it relies upon a proviso not to qualify what precedes but to expand what precedes. But when one looks at the words of the second proviso, it would be drawing a long bow indeed to treat the reference to fifteen per cent as applicable to a subsequent year of sponsorship where there has been a break in the underlying agreement such that it expired on 31 December 1994 and was replaced by a different one; meantime the parties proceeded thereafter under an arrangement of continuing sponsorship whose terms so far as price was concerned remained to be negotiated. Indeed that is how I would so characterise the arrangements as my earlier findings indicate. But so characterising them does not assist the Plaintiffs. 265 I have earlier said that I do not consider the words "any agreement entered into with Telecom Australia", coupled with the reference to sponsorship in the second proviso, justify an interpretation that gives Telstra sponsorship payments any special treatment in this particular context beyond that they do not need to be shown to have been the result of Telstra having been approached or introduced by the Plaintiffs. That is reinforced by the second proviso with its reference to "and no further", clearly directed to a sponsorship agreement whose term was in excess of one year, being a sponsorship agreement entered into on or prior to 31 December 1994. Clause 4(b) was not intended to embrace a subsequent differing sponsorship agreement even if that subsequent agreement extended the actual sponsorship. 266 Finally, that fundamentality of finding a contractual agreement is reinforced by the concluding paragraph to clause 4 (quoted in para 272 below). It makes clear the fees are only payable on contracts, not on ad hoc sponsorship payments. A "subsequent year of sponsorship" means in this context a subsequent year of contractual sponsorship by way of extension of that same contract.

[208]

Renewal - twelve per cent fee under clause 4(c) 268 It remains to consider whether clause 4(c) of Annexure "C" applies to Telstra sponsorship payments after 31 December 1994 so as to apply the lower fee of twelve per cent on renewal. This is on the basis that the sponsorship agreement between Telecom and the Defendant of 5 May 1995, with or without such agreement or arrangement as preceded it, comes within the notion of renewal as embodied in the opening words of clause 4(c): "If the sponsorship arrangement in any concluded agreement of the kind referred to in sub-clause (b) of this Clause is renewed for periods commencing on or after 1st January 1995…" 269 I should add that the remainder of clause 4(c) provides for a rate of twelve per cent commission "whether or not this Agreement (meaning this Consultancy Agreement) has otherwise terminated through effluxion of time or by the act of either party to the intent that this Clause shall enure for the benefit of the Company until such time as all fees payable pursuant hereto have been received by the Company." Those words as I explain clearly point to a continuing right to twelve per cent, notwithstanding expiry or termination of the Consultancy Agreement, provided there has occurred what clause 4(c) requires as regards the original sponsorship arrangement in any concluded agreement being later renewed. 270 The Plaintiffs' argument for contending that clause 4(c) is applicable to the Telstra sponsorship payments made pursuant to the 1995 Telstra Agreement is that a distinction is here drawn between the "sponsorship arrangement" in clause 4(c) and the "concluded agreement" in that same sub-clause. Indeed, based on the interpretation of clause 4(b) which I consider correct, the two sub-clauses 4(b) and 4(c) do have independent operation. They recognise the relatively greater worth to the Association of a sponsorship agreement which continues for a longer term (clause 4(b)) and an agreement which is renewed, earning the lesser percentage of twelve per cent. However, as I explain below, I do not consider that a mere sponsorship arrangement, absent any concluded contractual agreement, does suffice for the twelve per cent commission to be payable. There is simply no mechanism for payment of a fee without a sponsorship contract; see para 272 below. But that, as I explain, does not mean the phrase "sponsorship arrangement" has no part to play. Rather it bears upon the degree of permitted difference between successive sponsorship contracts denoted by the term "renewed" in clause 4(c). What I conclude is that the original sponsorship arrangement in a concluded contract "entered into on or prior to 31 December 1994" is renewed, for purposes of clause 4(c), on the basis that the later sponsorship contract still gives effect to a continuing sponsorship arrangement, though essential terms of sponsorship such as price differ as between contracts and there was a brief interval between them. Such an interpretation recognises that a sponsorship relationship will necessarily evolve over time, including as to the level of sponsorship and the opportunities it gives sponsor and sponsee. The word "arrangement" is broad enough to accommodate such an evolution and sensibly does so. 271 To explain, were the position simply that there was a subsequent sponsorship arrangement never embodied in a "concluded agreement" used in the contractual sense, that would disqualify the arrangement from any commission under clause 4(c) or at all. That introduces at least one rational limitation consonant with the parties evident commercial purpose on the Plaintiffs' entitlement to a continuing commission after "this Agreement [meaning the Consultancy Agreement] has otherwise terminated through effluxion of time or by the act of either party…"; see clause 4(c). The clear intent of clause 4(c) is that it should have a continuing operation notwithstanding the termination of the relevant consultancy agreement, as borne out by the concluding words "to the intent that this Clause shall enure for the benefit of the Company until such time as all fees payable pursuant hereto have been received by the Company.". 272 I should add that the requirement for there being a concluded agreement of the contractual sense is reinforced by the whole of the last paragraph to clause 4, and is clear from the highlighted words quoted below: "The above stated fees are payable on all contracts entered into in accordance with the provisions of this Agreement. All fees shall become payable to the Company upon performance of the Agreement by the other contracting party (or from time to time if the Agreement provides for payment from time to time to the Association of lump sums) and receipt by the Association of the monetary payments owing pursuant to the terms of the relevant agreement and in the case of agreements for the provision of goods and services …" [emphasis added]

[213]

(iv) A continuing sponsorship arrangement subsists, requiring no more than: (a) the same entity or organisation stands behind the relevant activity in providing financial assistance or assistance in goods and services to the same sponsee, with the sponsor seeking to obtain for its product the endorsement, express or implied, of (here) admired sportswomen by their continued association with the sponsor and its logo; see the definition of "sponsorship" in 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 18 FCR 285; 79 ALR 299, and (b) a substantial equivalence between the activity sponsored in the original agreement and the activity sponsored in the subsequent agreement. 274 But such a renewal within clause 4(c) does not require any identity in dollar amount (or its equivalent in goods and services) between the original sponsorship agreement and the subsequent agreements. Nor need the two agreements (or subsequent agreements in the series) follow each other with no break, so long as the broad character of the sponsorship arrangement continues. By the contract being "broadly" contemporaneous with the sponsorship arrangement, I mean that the contract need not subsist without break, such as where, as here, the sponsorship was briefly in a kind of temporary holding pattern though never terminated, in the period after 31 December 1994, or where time is needed to negotiate new commercial terms, though the sponsorship arrangement continues meantime. However, no fee or commission can be recovered until there is a concluded agreement. 275 Likewise for such renewal to come within clause 4(c), there is no need for the Plaintiffs or either of them to be involved in the negotiation of the subsequent agreement or any requirement for the Plaintiffs to maintain a continuing consultancy relationship with the Defendant. 276 Such an interpretation comes closest to accommodating the phraseology used by the parties in the relevant consultancy agreement with its reference in clause 4(c) to a sponsorship arrangement in a concluded agreement being renewed. It respects the necessity to find both a contractual agreement, and continuity in an overarching sponsorship arrangement. The latter gives some elasticity to what divergence can be accommodated by the word "renewed", though limited by the requirement of a continuing sponsorship arrangement. It thus accords with the parties' evident commercial purpose in reducing the commission to twelve per cent where there has been a renewal by successive agreements, rather than an original long term of (say) three years. It is perfectly understandable that a party introducing a sponsor or having had sufficient involvement in the original introduction of the sponsor should have a continuing commission based on the renewal of the sponsorship arrangement. The Defendant has the safeguard of requiring a fresh concluded contract for sponsorship before any commission is payable. That is not to be characterised, as the Defendant sought to do, as a monopoly right. Rather it is a reasonable safeguard for the party originally involved in obtaining the sponsorship to be rewarded, though at a lesser percentage rate, for continuation by renewal of that sponsorship, even if that party's consultancy be not renewed. Thus, for example, an estate agent is often protected for commission if a tenant the agent originally introduced renews the lease, whether the agent still retains the agency or not. This recognises that renewal may have been only possible because of the agent's original introduction. That is hardly a "monopoly right" especially as the agency can be terminated. 277 Much reference was made in both parties' written submissions to the meaning of the term "renewed", in the context of leases or franchises. That comparison is of limited use. What is to be renewed is not the agreement itself but the sponsorship arrangement embodied in the agreement (though a new agreement will also be necessary). Hence the word "renewed" arises in the more general context of an overall arrangement rather than the more precise context of a particular contract. Thus arrangement has the sense of a plan arranged between two or more parties; see, for example, Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465. That points to a broader interpretation to the term "renew" than if the requirement were simply a comparison between the original concluded agreement and any subsequent agreement. The comparison is rather to renewal for purposes of a continuing overarching sponsorship arrangement as it evolves between agreements. That precludes the necessity for each agreement to follow immediately upon the other without break. That said, the absence of any break in the sponsorship arrangement points to renewal, though it would not be essential if the arrangement were simply suspended for a brief time with no substitute sponsorship. 278 Indeed, a renewed lease can vary in its terms from the original lease, whether as to rent, term or otherwise; Trade Practices Commission v Tooth & Co (1979) 142 CLR 307. The position is even clearer as to a franchise. 279 Thus Esso Australia Ltd v R T & M R Abella Pty Ltd (1989) 91 ALR 476 was decided in relation to the Petroleum Retail Marketing Franchise Act (1980) (Cth). At issue was whether a franchise agreement with followed either a consensual determination of an earlier franchise agreement or a holding over from an earlier franchise agreement could be treated as a "renewal". The Full Federal Court gave an affirmative response in relation to both. In relation to the consensual termination circumstances it was said (at 486) that: "The respondent referred to Associated Minerals Pty Ltd v NSW Rutile Mining Co Pty Ltd (1961) 35 ALJR 296 at 298, as indicating that in ordinary usage the word 'renewal' used in relation to a lease, identifies a lease which is granted during, and which follows immediately upon, the term of a lease which has expired by effluxion of time. But the 1980 Act, as is indicated by s3(2) and (4), is so drawn that a franchise agreement may be a renewal of a franchise agreement which preceded it and came to an end before the renewal was granted."

[214]

280 Section 3(2) of that Act provided that a reference to an agreement included a reference to a "terminated or expired" agreement. Section 3(4) provided that the terms of the new franchise agreement (in order for there to be renewal) should not be substantially different from the provisions of the original franchise agreement, except in certain identified respects. 281 As was pointed out by the Plaintiffs in their written submissions, clause 4(c) of Annexure "C" similarly applies "whether or not this Agreement has otherwise terminated through effluxion of time or by the act of either party". Clause 4(c) contemplates that any renewal might be on or after 1 January 1995; thus the renewed term does not have to commence on the day following the expired term. Clause 4(c) was clearly intended to provide an ongoing benefit. It is specifically stated that the provision "shall enure for the benefit of the Company until such time as all fees payable … have been received". Were on the other hand the Defendant's construction correct, the contractual benefit conferred on the Plaintiffs by clause 4(c) would be illusory. It could be done away with in a moment simply by the device of arranging a day's break between the expiration of one sponsorship arrangement and the commencement date of the next. That would not accord with the evident commercial purpose of clause 4(c) to which I have referred. 282 The commercial position contemplated by clause 4(c) is significantly different from the relationship which exists between a lessor and lessee, where (only by reason of the rights conferred by the original lease) the party entitled to the benefit (the lessee) is empowered to compel the renewal, if necessary, starting on the day after the expiration of the term. Here renewal is a matter of consensual choice by both sponsor and sponsee. Each has an ongoing and increasing investment in the continuance of the sponsorship relationship but equally a commercial motivation over time to squeeze out the original introducing party if possible - hence the need for protection under a clause such as clause 4(c) while the Plaintiffs' leverage and contribution remain fresh in the Defendant's mind. 283 The Full Federal Court in Esso Australia Ltd (supra) went on to consider the circumstance of the holding over under the original franchise agreement, and concluded that, in the context of the legislation, the expression "term" did not bear its technical meaning but, rather, included the whole of the period of occupation, including that under any holding over. In that respect only, their Honours departed from the reasoning of Hill J (the trial judge) who dealt with the matter on the footing that the expression "term" bore its technical meaning. Hill J's analysis, however, is relevantly quoted in the Full Court's decision (at 487 .7). Hill J said: "Nevertheless the wording of s13 of the 1980 Act does rather imply that the concept of the term of an agreement on the one hand and the time when the agreement would expire on the other are both the same. However, it seems to me that whether it can be said that the franchise agreement expired when its term came to an end, or whether it continued in existence during the holding over period notwithstanding that its term had come to an end, I think that where there has been a franchise agreement which has expired and no new franchise agreement has been entered into either with the franchisee or any other person, a subsequent franchise agreement entered into with the franchisee is properly to be seen as a renewal of the franchise agreement, notwithstanding that the term of the franchise agreement had expired and in respect of the holding over period ." [emphasis added]

[215]

On the present facts, the sponsorship agreement with Telstra expired. Immediately after its expiry no new sponsorship agreement was entered into, either with Telstra or any other person. A subsequent sponsorship agreement was entered into with Telstra. Hill J's analysis supports the conclusion that that subsequent sponsorship agreement is properly to be seen as a renewal of the original sponsorship agreement, notwithstanding that the term of the original sponsorship agreement had expired. 284 Turning again to the present circumstances, it follows from the interpretation which I consider correct of clause 4(c) that the fact that the 1995 Telstra Agreement increased the sponsorship payment or made other changes, does not alter the essential character of the sponsorship arrangement, which I am therefore satisfied was thus renewed in that concluded agreement. Nor does it matter that the 1995 Telstra Agreement had a brief gap from the expiry of its predecessor on 31 December 1994, whether that gap was simply to mid-February 1995 or till 5 May 1995. There is ample evidence as set out in my findings at para 175 that as of 31st December 1994 and in the ensuing period till commercial and then formal agreement was reached, Telstra and the Defendant were proceeding on the basis that they were maintaining no other sponsorship arrangement than with Telstra and there was every confidence that a concluded contractual agreement would be reached. I have referred earlier to the numerous "Tenth Anniversary documents" (PX10) which leave no suggestion that there was otherwise than a continuing sponsorship arrangement and relationship. Even in that intervening period, on 23 January 1995 a meeting took place between AWHA and Telecom which discussed "sponsorship renewal" and "re-launch of Telecom sponsorship" with the object, inter alia, of obtaining from Telecom a statement of the form of sponsorship proposal that would need to be submitted by AWHA to Telecom for the years 1995 to 1996 in order to obtain a favourable consideration of it. Thus there is the evidence of Ms Ellie Nixon's affidavit of 1 December 1996 at paras 8-11. The heading to Ms Nixon's notes of the meeting - Annexure "B" - plainly indicate that what was regarded as being discussed was "sponsorship renewal". 285 Apart from Ms Passmore's affidavit at para 14 and Ms Cawood's first affidavit at para 48, Ms Nixon conceded in cross-examination that the basis of the proposal by the Association were the suggestions emanating from Telstra via Ms Passmore; see T, 313 .42-322 .27 and note also the cross-examination of Ms Passmore at T, 277 .1-288 .36 and of Ms Cawood at T, 398 .15. Whilst the sponsorship proposal which was submitted in consequence of the meeting held on 23 January 1995 sought a sponsorship amount which was significantly less than that sought by Ms Jones in August 1994, the commercial content of the proposal was otherwise the same. Mr O'Neill gave this evidence (T, 254): "Q. Was your only real focus (in assessing the 1995 proposal) to make sure the money was right? A. To make sure that what we had was commercially viable. Q. Does that mean that your only focus was to make sure the money was right? A. No, it was not. Q. What other matters did you say you considered in 1995? A. What was actually part of the proposal was in place before 1994, if we had the same dozen eggs we would pay the same freight, same money for anything else that we could do to actually vamp up the proposal and make it better for Telstra." [emphasis added]

[220]

293 To this the Plaintiffs respond that even if it were correct to describe Qantas as a sponsor, none of the various annual or other reports so cited prove any agreement. As indeed the Defendant contended in the context of Telstra, it is only upon a contractual agreement for sponsorship that a commission or fee is payable, as I have already concluded in relation to question 5. Each of the Consultancy Agreements emphasise the primacy of contractual sponsorship rather than ad hoc sponsorship. 294 Dealing with each of the documents relied upon by the Plaintiffs as "evidencing the sponsorship agreement to 1988" it is clear that none of the arrangements referred to by the Defendant (being the documents from tab 18 to tab 23 and then tabs 25 to 30 of DX9) constitutes or evidences a sponsorship agreement. 295 Thus, for example, there is a letter from Qantas to the Defendant dated 20 March 1986 indicating a preparedness on the part of Qantas to provide discount travel, a contra of $10,000 and a baggage allowance (document 26) then there is a letter from the Defendant to Qantas dated 3 April 1986 accepting the proposal (document 27). That is not a contractual sponsorship agreement properly enforceable as a contract. 296 Then on 27 January 1987 there is a letter from the Defendant to Qantas seeking confirmation that the proposal put forward in February 1986 (presumably that in document 25) would be operative for 1987 (document 28). There is a letter in response from Qantas to the Defendant dated 13 February 1987 confirming the availability for 1987 of a nine per cent discount and a $10,000 contra (document 29). Finally, there is a letter from Qantas to the Defendant dated 8 June 1988 offering only a nine per cent discount on the best available fare types for overseas travel undertaken by officials (document 30). 297 I agree with the Plaintiffs' contention that the documents identified in the Defendant's tender bundle do not prove any sponsorship "agreement". Nothing was promised on the part of the Defendant in the terms of the provision of either the nine per cent discount, the $10,000 contra or the baggage allowance. If Qantas had unilaterally decided to withdraw these privileges, no claim could have been successfully brought by the Defendant alleging any breach of contract. 298 The transcript references to the evidence of Ms Jones take the matter no further. Ms Jones did, however, give relevant evidence. She denied (at T, 90. 52) that she was aware of any previous "sponsorship agreement" with Qantas. In her professional opinion a sponsorship only existed if the Association gave benefits in return (T, 98 .20). Contra travel was only a form of sponsorship if the Association gave benefits (T, 98 .40). The group travel discount arrangement was not sponsorship (T, 99 .1). Sponsorship required "a very detailed agreement with tenure that lists benefits for both parties and is much more involved than simply a marketing deal" (T, 105 .42). A group discount was something that virtually any community group could get (T, 106 .15), and the same was true of a baggage allowance (T, 106 .20). Ms Jones did not regard Qantas as a sponsor prior to her negotiation of the agreement of 7 November 1994 (T, 110 .35). The reference in the annual reports to Qantas being a sponsor represented the loose public use of the term "sponsorship" (T, 111 .20); it was not an agreement for sponsorship contemplated by the Sponsorship Agreements. 299 Ms Cawood's first affidavit annexes, as annexure "I", the sponsorship agreement between the Association and Telstra. That agreement referred in clause 2 (page 117 .2 of the affidavit) to Qantas' minor sponsorship. Ms Jones was not, however, a party to that agreement. Even if she had been, the statement contained within it would be no more than an admission. The evidence manifestly fails to demonstrate any sponsorship agreement with Qantas prior to the Consultancy Agreements. 300 In determining what meaning is to be given to the sponsorship referred to in clause 4(a) of the Consultancy Agreements, in resolving any ambiguity regard can properly be had to the conduct of the parties where probative, as here, of a mutual subjective intention at the time of contracting; see Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290. In this regard, if is highly significant that when the Plaintiffs made a claim for commission in respect of the Qantas agreement, the discount travel arrangement was not relied upon by the Defendant at any time prior to the commencement of these proceedings as a basis for denying the Plaintiffs' commission. The sole basis of denial, now apparently abandoned was the pleaded assertion that there had been effective novation from Australian Airlines to Qantas. For example, on 5 December 1994 the Defendant wrote to the Plaintiffs (HEJ Annexure "O") stating: "It is noted you have requested payment of 15% of the agreement entered into with Australian Airlines (now known as Qantas) and hereby draw your attention to annexure "C" - Fees - Clause 4(a) of the Association's Agreement with you. I confirm that the Association has previously had agreements with Australian Airlines (now known as Qantas) and accordingly, no fee is payable."

[221]

And by 6 February 1995 the Defendant had accepted that a commission was properly payable to the Plaintiffs on, at least, the overseas component for the Qantas sponsorship (as overseas travel was not part of any Australian Airlines sponsorship) (PTB, 82). 301 Accordingly, I conclude that there was no agreement and in particular no agreement for sponsorship with Qantas prior to the agreement for sponsorship of 7 November 1994 and it is undisputed that that agreement was negotiated by Mrs Jones. 302 Turning to the specific provisions of the relevant Consultancy Agreements, from the very first sponsorship agreement in 1989, commission is payable if an agreement for sponsorship is "negotiated and/or concluded by First or Second Plaintiff"; see clause 2 of the 1989 Agreement and clause 3 of each succeeding agreement. 303 Then clause 3(a) of the 1989 Agreements precludes any fee being payable on any agreements "entered into by the World Cup with a person or company with whom the Australian Women's Hockey Association Inc have previously had an agreement except in relation to Telecom Australia". [emphasis added] That preclusion is thus not for prior ad hoc arrangements. 304 The later agreements in clause 4(a) similarly preclude any fee on any "agreements entered into by the Association on or prior to the 1 July 1991 (see the 1991 Consultancy Agreement). In subsequent agreements later dates were substituted, with 31st December 1994 and 1st January 1989 appearing in clause 4(b) of the 1994 Consultancy Agreement. Naturally, in the agreements after 1989 there is a proviso to ensure that the Association is not relieved from the payment of any fee payable in relation to any such agreement payable under any previous Consultancy Agreement whilst clause 4(b) in the concluding proviso only precludes a fee being payable where a fee has already been paid relating to the whole period of sponsorship. No fee has been paid to Mrs Jones relating to the whole period of the Qantas sponsorship. 305 It must follow that there being no prior agreement with Qantas in the nature of a sponsorship agreement, the relevant 1994 Consultancy Agreement is not precluded from application. 306 Thus insofar as the agreement of 7 November 1994 has continued application, clause 4(b) would apply at the rate of fifteen per cent on the monetary amount of any Qantas cash payment sponsorship and, so far as the provision of goods and services, in particular air travel, that is applied to "the monetary benefit" for the supply of the relevant goods and services. That means comparing the discounted price to the ordinary market value or price of the relevant tickets, available to the Defendant elsewhere. 307 No detailed submissions have been made in relation to payments other than pursuant to the agreement of 7 November 1994 and thus I make no determination in relation to that issue. 308 I accept the Plaintiff's contention as to quantum, that absent any contradictory explanation from the Defendant, the only available inference is that fares which were paid for by the Defendant for the period of the Qantas sponsorship agreement were fares which were discounted in accordance with the Qantas sponsorship agreement. I note that an updated schedule will be provided when the case on quantum is closed so as to precisely calculate the relevant sponsorship payment. 309 I should add, for completeness, that I do not consider that the novation argument has been substantiated and indeed it was not pressed in the Defendant's written submissions. Essentially the contention is that in 1993 Australian Airlines Limited and Qantas Airways Limited merged and that prior to that date, namely for the period 1 January 1992 to 31 December 1994, Australian Airlines entered into a sponsorship agreement with the Defendant; see letter dated 15 April 1992 from Australian Airlines Limited. Insofar as Qantas became a sponsor of the Defendant by novation of the Australian Airlines agreement or by implied agreement, that can bear only upon commission with respect to the Australian Airlines agreement and not upon commission payable pursuant to the Qantas agreement of 7 November 1994.

Parties

Applicant/Plaintiff:

Edmunds-Jones Pty Ltd & 1 Ors

Respondent/Defendant:

Australian Women's Hockey Association Inc

Legislation Cited (1)

Australian Capital Territory's Associations Incorporation Act 1991(ACT)

Cases Cited (19)

New South Wales Supreme Court CITATION : Edmunds-Jones Pty Ltd & 1 Ors v Australian Women's Hockey Association Inc [1999] NSWSC 1014 revised - 11/10/99 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 2180/96 HEARING DATE(S) : 23/06/98, 24/06/98, 25/06/98, 26/06/98, 15/03/99, 16/03/99, 17/03/99, 18/03/99, 19/03/99, 24/03/99, 23/06/99, 07/09/99 JUDGMENT DATE : 7 October 1999

COUNSEL : J B Simpkins (First and Second Plaintiffs) D E Grieve, QC/ G P F Rundle (Defendant) SOLICITORS : Minter Ellison (First and Second Plaintiffs) Norton Smith & Co (Defendant) CATCHWORDS : CONTRACT - Was consultancy agreement providing for various commission-type payments on third party sponsorship to association governing Australian women's hockey void for uncertainty - Use of "and/or" - Distinction between ambiguity and uncertainty - Construction of contract - Principles - Independence or interdependence of obligations of consultant and association ; EVIDENCE - Failure to put allegations of untruthfulness against plaintiff in cross-examination - Unfairness and principle of Browne v Dunn.; WORDS AND PHRASES - "Sponsorship"; "and/or"; "renew" Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 at paras 39-44 (Santow J, 25 August 1999, unreported) Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 Bonitto v Fuerst Bros [1944] EC 75 Browne v Dunn (1894) 6 R 67 (HL) Colley v Overseas Exporters [1921] 3 KB 302 Coomera Resort Pty Ltd v Kolback Securities Ltd & Ors (Mackenzie J, BC9800289, 20 February 1998, unreported) Cuthbert v Cumming (1855) 10 Exch 809; 156 ER 668 Esso Australia Ltd v R T & M R Abella Pty Ltd (1989) 91 ALR 476 Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Babour Ltd [1943] AC 32 Gurney v Grimer [1932] 38 Comm Cas 7 Hillas & Co Ltd v Arcos Ltd 147 LT 503 CASES CITED : Hyde & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Locke v Dunlop 39 ChD 387 McDonald v Dennys Lascelles Limited (1933) 48 CLR 457 Mcfarlane v Daniell [1938] 38 SR(NSW) 337 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 2 WLR 945 Meehan v Jones (1982) 149 CLR 571 Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 (aff. [1977] 1 NSWLR 553) Millen v Grove [1945] VLR 259 Ryan v Ferguson (1909) 8 CLR 731 Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 18 FCR 285; 79 ALR 299 Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465 Trade Practices Commission v Tooth & Co (1979) 142 CLR 307 York Air Conditioning & Refrigeration (A'asia) Pty Ltd v The Commonwealth (1949) 80 CLR 11 DECISION : Plaintiffs entitled to commission claimed.

(1973) 129 CLR 99

(1946) 72 CLR 435

(1989) 91 ALR 476

(1990) 20 NSWLR 310

(1933) 48 CLR 457

(1982) 149 CLR 571

(1909) 8 CLR 731

(1994) 36 NSWLR 290

(1987) 18 FCR 285

(1975) 5 ALR 465

(1979) 142 CLR 307

(1949) 80 CLR 11

(1964) 112 CLR 597

(1973) 129 CLR 629

(1968) 3 NSWLR 761

(1968) 118 CLR 429

(1961) 35 ALJR 296

Cited By (1)

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