(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."