BETWEEN : EDWF HOLDINGS 1 PTY LTD (ACN 114 267 748)

Assignment - Construction and effect - Joint venture agreement - Change of control of a participant - Provision for change of control of a participant with prior written consent of other participant - Consent not to be unreasonably withheld - Proviso that the new party in control of the affected participant must have 'the financial and technical resources and experience to adequately support the affected participant' - Burden of proof on party seeking consent - Satisfaction of proviso a matter of objective fact - Determination of the considerations which are relevant to the assessment of the reasonableness of refusal - Turns on own facts

Corporations Act 2001 (Cth)

First Defendant : Mr M J McCusker QC & Mr A J Power

Second Defendant : Mr M J McCusker QC & Mr A J Power

1 The plaintiff, EDWF Holdings 1 Pty Ltd (EDWF 1) seeks a declaration that the first defendant, EDWF Holdings 2 Pty Ltd (EDWF 2) has unreasonably withheld its consent to a proposed Change in Control of EDWF 1, in breach of the terms of the Emu Downs Wind Farm Joint Venture Agreement (JVA) between EDWF 1 and EDWF 2 relating to the construction and operation of the Emu Downs Wind Farm. The joint venture between EDWF 1 and EDWF 2 is managed by EDWF Manager Pty Ltd (Manager). All the issued shares in Manager are held equally by EDWF 1 and EDWF 2. Manager was joined as a second defendant, but took no active part in the proceedings.

2 I will set out my findings in respect of the detailed ownership structures of the parties and their associated entities later in these reasons. For present purposes, an overview of the proceedings can be provided by speaking in less than exact terms. The ultimate owner of EDWF 1 is the State of Queensland (Queensland). The interest of Queensland in the Emu Downs Wind Farm is part of a portfolio of wind farm assets acquired by Queensland over a number of years. In the latter part of 2007, Queensland decided to sell its portfolio of wind farm assets. After a competitive tender process, a conditional agreement was entered into, pursuant to which ultimate ownership of Queensland's interest in the Emu Downs Wind Farm would pass to Transfield Services Infrastructure Ltd (TSIL), as a result of a change in the ownership of shares in the corporate entities which ultimately control EDWF 1.

3 In very general terms, the JVA between EDWF 1 and EDWF 2 provides that if there is a change in control of the ultimate owners of the shares in those companies without the prior written consent of the other party to the Joint Venture, which consent is not to be unreasonably withheld, the party whose controller has changed is deemed to offer to sell its interest in the joint venture to the other party. EDWF 1 sought the consent of EDWF 2 to the Change in Control to TSIL. EDWF 2 is a company ultimately owned by Griffin Energy Group Pty Ltd (Griffin), a company which has various interests in the energy market in Western Australia. EDWF 2 sought and obtained detailed information with respect to the proposed Change in Control. After evaluating that information, it decided to withhold its consent. EDWF 1 asserts that it acted unreasonably in doing so, with the consequence that the Change in Control can proceed notwithstanding the refusal of consent.

4 The statement of claim recites the history of the relationships between the parties and the ownership structures. These matters are not controversial and are the subject of findings set out below. The JVA and various specific terms within it are also pleaded. They are also addressed below in detail.

5 The statement of claim further asserts that since the commencement of operations of the Emu Downs Wind Farm, in about October 2006, the revenue received by EDWF 1 from the sale of its share of the proceeds of the joint venture has substantially exceeded its share of the costs of operating the Emu Downs Wind Farm. Particulars of that allegation are annexed to the statement of claim. They show that the operating revenue of the Emu Downs Wind Farm exceeds its operating expenses by an amount of approximately $20 million per annum (in very general terms). These figures, of course, make no allowance for capital costs and depreciation. These assertions are admitted by EDWF 2. EDWF 2 also admits the allegation that as from the time at which its consent was sought, it was reasonable to expect that the revenue to be received by EDWF 1 from the sale of its share of the proceeds of the joint venture would substantially exceed its share of the costs of operating the Emu Downs Wind Farm.

6 EDWF 1 also pleads that after the Change in Control, it will continue to have the necessary financial and technical resources and experience to operate the Emu Downs Wind Farm, and that TSIL has the financial and technical resources and experience to support, reasonably adequately, the pursuit of the purposes of the joint venture which remained to be pursued. EDWF 2 denies those allegations.

7 EDWF 1 pleads that consent to the proposed Change in Control was withheld by EDWF 2 for essentially two reasons, being:

(a) its concerns about TSIL's financial and technical resources and experience to reasonably adequately support EDWF 1; and

(b) the prospect of competition between companies associated with TSIL and companies associated with Griffin.

EDWF 2 does not admit that these were the reasons for the refusal of consent.

8 In the context of its plea as to the reasons for withholding consent, EDWF 1 pleads that the refusal of consent was unreasonable and in breach of the JVA because:

(a) TSIL has the financial and technical resources and experience to reasonably adequately support EDWF 1;

(b) taking account of the prospect of competition between companies associated with TSIL and companies associated with Griffin is inconsistent with an express term of the JVA which permits the participants in the JVA to compete with each other and with the joint venture (cl 3.10), and such a prospect of competition does not sustain a reasonable withholding of consent.

9 In its defence, EDWF 2 makes allegations as to its belief at the time of entry into the joint venture to the effect that neither the ultimate holding company of EDWF 1, nor its related bodies corporate, would compete with Griffin in the Western Australian energy generation market for the term of the JVA. It is further alleged that EDWF 2 was entitled to rely upon the prospect of competition between entities associated with EDWF 2 and entities associated with EDWF 1 as a reasonable basis for withholding consent.

10 EDWF 2 also pleads that in or about April 2007, parties related to each of EDWF 1 and EDWF 2 entered into an agreement relating to the prospective development of other wind farm projects, including projects at Badgingarra, Joanna Plains, and at other possible sites (the Joint Development Agreement, or JDA).

11 By its defence, EDWF 2 joins issues with the allegations made by EDWF 1 with respect to the unreasonable withholding of consent, and further alleges that the information provided by or on behalf of EDWF 1 in response to its requests was inadequate. EDWF 2 further alleges that the decision withholding consent was not unreasonable and was made for five reasons being:

(i) its concerns about the adequacy of the technical expertise and capacity of TSIL and Transfield Services Limited (TSE) with respect to the design, development, construction, commissioning, testing, operation, maintenance and modification of wind farms, including the Emu Downs Wind Farm and any future wind farm arising out of the JDA (which I will collectively depict by the expression 'wind farm operations');

(ii) its concerns about the adequacy of the financial resources available to, and the capacity of TSIL and TSE to adequately finance wind farm operations;

(iii) its concerns about the commercial detriment likely to be caused to EDWF 2 as a result of being in a joint venture in the Western Australian energy market with a competitor in that market;

(iv) its concerns about the adequacy of the information provided; and

(v) its concerns with respect to the transfer of rights in the JDA to another Transfield entity, Transfield Services (Renewables) Pty Ltd (TS Renewables).

12 By its reply, EDWF 1 joined issue with each allegation made in the defence other than the allegations relating to the execution of the JDA, and the intended assignment of the interest in that agreement to TS Renewables.

13 The following facts are established by the documents tendered in evidence.

14 On 14 June 2000, Stanwell Corporation Ltd (Stanwell) entered into a memorandum of understanding (MOU) with The Griffin Coal Mining Co Pty Ltd (Griffin Coal Mining) and W R Carpenter Agriculture Pty Ltd (Carpenter). The MOU recites that Griffin Coal Mining and/or Carpenter own lands in Western Australia that may have the potential to be suitable for a wind farm, and that Stanwell has a track record in rapid low-cost, large scale wind farm developments, and has a number of wind farm sites around Australia at various stages of development. The MOU further recites that the parties have agreed to enter into discussions to investigate whether or not it is economically feasible for Stanwell to develop one or more wind farms upon the land owned by either Griffin Coal Mining and/or Carpenter. Clause 3 provides that the primary purpose of the MOU was to confirm the intention of Griffin Coal Mining and Carpenter to co-operate exclusively with Stanwell for the purpose of working together to achieve the development of a wind farm or wind farms. By a schedule to the MOU, the land which was to be the subject of investigation for the purposes of the possible development of wind farms was specified, and includes land known as Emu Downs.

15 On 16 April 2003, the same parties entered into an agreement described as the Emu Downs Wind Farm Phase 1 Development Agreement. By this agreement, the parties recorded their intention to continue to investigate the development of a wind farm, including by gathering wind data from the relevant land, and agreed to negotiate in good faith in respect of the grant of a lease over that land.

16 By a lease dated 21 July 2005, Carpenter leased the land known as Emu Downs to EDWF 1 and EDWF 2 (as tenants in common in equal shares) for a term of 22 years commencing on 23 July 2005, together with an option of renewal for a further 10 years commencing on 23 July 2027. At that time, EDWF 1 was a wholly-owned subsidiary of Wind Portfolio Pty Ltd (Wind Portfolio), which was a wholly-owned subsidiary of Stanwell. EDWF 2 was a wholly owned subsidiary of Stanwell. At all material times, all of the issued shares in Stanwell have been held by ministers of the State of Queensland on behalf of Queensland.

17 On the same day, a number of other agreements relating to the Emu Downs Wind Farm project were executed. One of those agreements was the JVA. The construction and effect of the provisions of the JVA lie at the heart of this case.

18 The parties to the JVA are EDWF 1, EDWF 2 and EDWF Manager Pty Ltd (Manager). The shares in Manager are, and have at all material times been held by EDWF 1 and EDWF 2 in equal proportions.

19 The JVA recites that on or about the date of its execution, Wind Portfolio would enter into a call option with Griffin Windfarm Holdings Pty Ltd (Griffin Windfarm) by which Griffin Windfarm would have the right, subject to certain conditions, to call on Wind Portfolio to transfer all of the issued shares in EDWF 2 to Griffin Windfarm. The JVA further recites that Manager is to be engaged by the 'Participants' (see definition in following paragraph) to manage their joint venture.

20 Clause 1 of the JVA defines the terms used in the JVA. I will refer to those definitions where relevant to my consideration of the operative provisions of the JVA. I will indicate the use of those defined terms throughout the judgment capitalising the first letter of each word of the term. Four preliminary terms should be set out here. 'Participants' means EDWF 1 and EDWF 2 and any person with a JV Interest from time to time. 'JV Interest' means an interest of a Participant in the 'Joint Venture Property', rights arising under the JVA or JV Documents and any benefits arising from the foregoing. 'Joint Venture Property' is defined and has a broad definition including all 'JV Documents', real and personal property, plant, equipment, etcetera. Finally, 'JV Documents' are a series of documents related to and including the JVA.

21 Clause 2 defines the term of the JVA. It provides that the JVA commences upon its execution and continues until the earliest of the 'JV Termination Date' (defined by cl 1 to mean the date of termination of the lease of the land), the date on which one Participant acquires the whole of the interests of the other, or a date agreed in writing by each of the Participants. Accordingly, unless terminated earlier, the JVA will continue until July 2027, or if the option to renew the lease is exercised, until July 2037.

22 By cl 3.1 of the JVA, the Participants agree to associate as joint venturers to implement and carry the 'Project' into effect. Clause 1 then defines 'Joint Venture' to mean the unincorporated Joint Venture established under cl 3.1. The 'Project' is defined by cl 1 to mean:

[T]he Emu Downs Wind Farm Project involving the design, development, construction, commissioning, testing, operation, maintenance and modification by or on behalf of the Participants of the Wind Farm at the Site but excluding the utilisation or sale of JV Output produced by the Wind Farm.

23 Clause 1 defines the expression 'Wind Farm' to mean:

[T]he development of two wind powered electricity generating plants at the Site of 40MW capacity each (or such other capacity as the Participants determine) and comprising the Wind Farm Facilities.

24 In this judgment I had been previously using the term 'Emu Downs Wind Farm' to connote the same meaning. 'Site' is defined by the same clause to mean the land on which the Wind Farm is to be constructed, defined by reference to specific title descriptions.

25 The expression 'JV Output' is defined by cl 1 to mean the JV Power (which is defined to mean all Energy Production generated by the Joint Venture during its term) and various other consequences of the conduct of the Joint Venture including 'Renewable Energy Certificates', 'Green Electricity', 'Carbon Credits' and so on (the terms 'Energy Production', 'Renewable Energy Certificates', 'Green Electricity' and 'Carbon Credit' are defined in cl 1 but their exact definitions are not relevant to this judgment).

26 The expression 'Wind Farm Facilities' is defined by cl 1 to mean all wind turbines and other facilities including electricity transformation equipment, the electricity transmission and/or distribution lines used to convey the electricity for injection into an electricity transmission network and all associated plants and structures.

27 Clause 3 of the JVA also provides that the rights, duties, obligations and liabilities of each Participant under the Joint Venture are in each case several and proportioned to their interests in the Joint Venture, and that nothing in the JVA is to be considered or interpreted as constituting the relationship between the Participants as a partnership or any other relation in which any one or more of the Participants may be liable for the acts or omissions of any other Participants, or in which the Participants may share profits. There are similar provisions in the clause precluding a construction of the JVA which would constitute any Participant the agent, representative or trustee for any other Participant. The same clause provides that the Joint Venture Project (which does not include the JV Output) is to be beneficially owned by the Participants as tenants in common in proportion to their JV Interests.

28 Clause 3.8 provides that each Participant is entitled to receive and take in kind its share of all JV Output equal to its JV Interest, and to dispose of that share. Accordingly, each Participant in the JVA derives its return from the operation of the Joint Venture from the electricity generated, and the various other benefits arising from electricity generation, and to which I have referred, rather than in the form of a share in the proceeds of sale of those items.

29 Clauses 3.9 and 3.10 are in the following terms:

3.9 Joint Venture Limited to JV Purpose

The Joint Venture is, unless the Participants otherwise agree, strictly limited to the JV Purpose and is not to be construed as extending further by implication or otherwise.

3.10 Activities outside JV Purpose

Each Participant has an unrestricted right to engage in and receive the full benefit of any activity outside the JV Purpose (whether or not in competition with the JV Purpose of another Participant) without consulting the other Participants or permitting the other Participants to participate, and without any liability or accountability to the other Participants provided such activity does not unreasonably interfere with, impede or compromise the JV Purpose.

30 The term 'JV Purpose' is defined by reference to cl 3.1, and therefore by reference to the agreement of the parties to associate as Joint venturers to implement and carry out the Project.

31 Clause 3.13 provides that each Participant is to be just and faithful in all activities and dealings with the other Participants in relation to the Joint Venture.

32 Clause 3.14 deals with intellectual property and provides that each Participant grants to the other a licence to use intellectual property which it owned prior to the commencement of the Joint Venture. 'Intellectual Property' is defined in cl 1 but its exact definition is not relevant to this judgment.

33 Clause 4.2 contains a covenant by each Participant not to 'Dispose' of the whole or any part of its JV Interest except as specifically provided in or permitted by clauses 7.14, 9 or 11. The term 'Dispose' is defined by cl 1 to mean 'to sell, transfer, assign, novate, part with the benefit of, declare oneself a trustee of, or otherwise deal with the whole or in part of property'.

34 Clause 7.14 makes provision for the procedure to be followed in the event of a deadlock in relation to decisions of the Management Committee (see [37]). Clause 9 deals with defaults of various categories, and cl 11 deals with the disposal of JV Interests. I will deal with cl 11 in more detail in due course.

35 Clause 5 of the JVA makes provision for the appointment and removal of a manager which is to undertake the management, supervision and conduct of the Joint Venture, and further provides that the first manager is to be Manager.

36 Clause 6 provides that the Participants will enter into the 'EPC Contract' with the 'EPC Contractor' as soon as possible after the execution of the JVA. The 'EPC Contractor' is defined to mean Vestas-Australian Wind Technology Pty Ltd (Vestas), and the 'EPC Contract' is defined to mean the contract between the Participants and that company for the construction of the Wind Farm at the Site. The EPC Contract was entered into on 22 July 2005 - the day after execution of the JVA.

37 Clause 7 of the JVA deals with the Management Committee. It provides that each Participant is to appoint two representatives to serve on the Management Committee, and further provides that at meetings of the Management Committee, each Participant is entitled to that number of votes which is equal to the number of percentage points comprised in its JV Interest.

38 Clause 7.10 provides that the Management Committee is to be the principal forum for receiving and considering reports on Joint Venture activities and discussing and resolving issues relating to the management of the Joint Venture, and the sole forum for providing directions to the Manager.

39 Clause 8 of the JVA is concerned with the administration of the Joint Venture. It makes provision for the delivery of 'Cash Calls' (defined in cl 1 as an amount specified by the Manager as being required to be contributed by a Participant for expenses associated with the Joint Venture) to the Participants by the Manager and obliges each Participant to pay all Cash Calls received. It also makes provision for the preparation of Annual Programmes and Capital Expenditure Programmes. The former expression is defined to include a work programme and budget for the conduct of the Joint Venture during a financial year prepared by the Manager and to be approved by the Management Committee, but excluding any capital works. Capital works are to be dealt with under the separate Capital Expenditure Programme.

40 Clause 10 of the JVA is concerned with 'Encumbrances' and 'Cross Charges'. Both 'Encumbrances' and 'Cross Charges' are defined in cl 1. They take their general meaning. Clause 10.1 provides that each Participant is not to encumber the whole or any part of its JV Interest or JV Output other than as provided by the clause or as expressly contemplated by any JV Document or as arises by operation of law. Clause 10.4 provides that a Participant may grant an Encumbrance over its JV Interest if it obtains from the Encumbrancee a 'Deed of Priority' (defined in cl 1 to mean a Deed of Priority substantially in the form and to the effect of the Deed of Priority set out in sch 2) giving priority to the rights and entitlements arising under the Cross Charge, and contains a further covenant that in the event of the exercise of any power of sale or other right, power or remedy under the Encumbrance, the Encumbrancee will comply with the provisions of the JVA, including the provisions relating to assignment of an interest.

41 Clause 10.6 provides that contemporaneously with the execution of the JVA, each of the Participants and the Manager is to execute and deliver a Cross Charge which will encumber each Participant's JV Interest and the JV Output of the Joint Venture as security for the performance of its duties and obligations arising under the JVA, and which will rank ahead of any and all other Encumbrances given, created or entered into by a Participant.

42 As I have mentioned, cl 11 deals with the disposal of JV Interests. Clause 11.1 provides that a Participant may not Dispose of the whole or any part of its rights under, or interest in, the JVA other than in accordance with the provisions of the clause. Clause 11.3 makes provision for a Disposal to a Related Body Corporate (the latter term defined as bearing the meaning which it bears in the Corporations Act 2001 (Cth)).

43 Clause 11.4 provides that a Participant may Dispose of its JV Interest in the Joint Venture to a third party with the prior written consent of each other Participant. This consent is not to be unreasonably withheld or delayed if:

(i) the Assignee has agreed to be bound by the terms of the JVA and the JV Documents by a Deed of Assumption; and

(ii) the Assignor has demonstrated that the Assignee is reputable and of good financial standing and has the capability to fulfil all the obligations of the Assignor under this Agreement and the JV Documents.

44 Clause 11.7 deals with changes in control. The term 'Change in Control' is defined by cl 1 to mean a change in the ultimate holding company of a Participant. As it is agreed that the proposed transaction which has given rise to these proceedings would involve a Change in Control within the meaning of that clause, it is unnecessary to consider the definition in detail.

Change in Control

Subject to cl 11.8, if there is a Change in Control of a Participant, such Participant shall immediately give notice in writing thereof to the other Participants and, unless the other Participants had given their prior written consent to the Change in Control (such consent not to be unreasonably withheld or delayed or given subject to unreasonable conditions provided that the new party in Control of the affected Participant must have the financial and technical resources and experience to adequately support the affected Participant), the affected Participant shall be deemed, whether or not such notice has been given, to have offered to assign the whole of its JV Interest to the other Participants ...

46 Clause 11.8 makes a provision for certain exceptions to the operation of cl 11.7, none of which is presently relevant, other than the exception that a Change in Control arising as a consequence of the valid exercise of the 'Call Option' with respect to EDWF 2 does not fall within cl 11.7. The 'Call Option' is defined by cl 1 to mean the document bearing the title 'Call Option to Buy EDWF Holdings 2 Pty Ltd' and dated on or about the date of the JVA. That document does not appear to have been tendered in evidence, but it is common ground that the effect of the document was to give Griffin Windfarm an option to acquire all the shares in EDWF 2. It is also common ground that the option was exercised in December 2005.

47 Clause 15 of the JVA obliges each party to keep 'Confidential Information' confidential and not disclose it to any third party. The term 'Confidential Information' is defined by cl 1 of the JVA. The terms of that definition are not material to the matters in issue.

48 Clause 15.2 provides that the obligation of confidentiality does not extend to disclosure to any Related Body Corporate of the disclosing party.

49 Clause 17.11 of the JVA is an 'entire agreement' clause in conventional terms.

50 I will return to the proper construction and effect of the JVA later in these reasons.

51 As I have mentioned, there were a number of documents executed at about the same time as the JVA which are associated with it. They include the lease agreement between Carpenter and EDWF 1 and EDWF 2 and the Call Option. There was also a Deed of Cross Charge executed. Although this latter document does not appear to have been tendered in its executed form, I assume that it took the form of a document which is a schedule to the JVA, and had the general effect described in the JVA.

52 Another document executed contemporaneously with the JVA and by the same parties was the Emu Downs Wind Farm Joint Venture Management Agreement (Management Agreement). By cl 2 of the Management Agreement, EDWF 1 and EDWF 2 acknowledge that the Manager had been appointed to manage the Joint Venture in accordance with cl 5.1 of the JVA. The clause further provides that subject to provisions of the clause relating to removal or replacement of the Manager, the appointment was to endure for the term of the Joint Venture. Clause 3 of the Management Agreement provides that the Manager is obliged to manage the Joint Venture, including all its activities, as agent for the Participants, subject to the control and direction of the Management Committee. Other provisions of that clause specify the precise duties which are to be performed by the Manager. The Management Agreement contains various other provisions which are not material to the issues in this case.

53 At about the time of execution of the JVA and associated documents, the parties entered into agreements with third parties for the sale and purchase of electricity to be produced through the Joint Venture. As I have mentioned, the day after the execution of the JVA and associated documents, on 22 July 2005, EDWF 1 and EDWF 2 entered into the EPC Contract with Vestas relating to the construction of the Wind Farm.

54 On 20 September 2005, the parties to the JVA entered into a Shareholders' Deed relating to their equal shareholdings in the Manager. By cl 3 of the Shareholders' Deed, each shareholder agreed not to use 'Confidential Information' in a way which damages or is reasonably likely to damage the Manager or any of the other shareholders. The expression 'Confidential Information' is defined by cl 1 of the Shareholders' Deed in terms which are not material to the issues in this case.

55 Clause 4 of the Shareholders' Deed deals with appointments to, and the proceedings of, the board of directors of the Manager. Clause 5 deals with Shareholders' meetings. Clause 6 of the Shareholders' Deed specifies a number of matters which require the unanimous resolution of directors or shareholders.

56 Clause 11 of the Shareholders' Deed provides an acknowledgement by each of the parties to the Deed that no shareholder has given any warranties or made any representations (express or implied) to the other parties in relation to the existing businesses of the shareholders or the proposed business of the Manager, or as to future matters, including future or forecast costs, revenues or profits. EDWF 1 relies upon this clause to exclude any implied representation as to its future business activities, including in particular, any activities which might be competitive with either the Joint Venture or Griffin entities.

57 Clause 14 of the Shareholders' Deed contains another covenant of confidentiality.

58 On 26 August 2005, the Manager entered into a Technical Services Agreement with Stanwell. Under that Agreement, Stanwell was to provide engineering, operations, maintenance, environmental, health and safety, electricity marketing and trading and drafting services, and such other services as the Manager may reasonably require in relation to the Wind Farm, for a fee assessed by reference to specified hourly rates.

59 On 21 December 2005, the Manager entered into a further Technical Services Agreement (the Service Agreement) with Stanwell and Griffin Coal Mining which replaced the earlier agreement. Under the Service Agreement, each of Stanwell and Griffin Coal Mining were to provide services defined in the same terms as the earlier Technical Services Agreement between the Manager and Stanwell, on the same fee basis. The Service Agreement was specified to endure for the term of the Emu Downs Wind Farm Project, subject to earlier termination in the event of default or at the option of a service provider in the event that it divested itself of its interest in the Joint Venture. It is common ground that if Stanwell is entitled to assign its interest in EDWF 1, it will exercise its right to terminate its obligation to provide services under the Service Agreement.

The corporate structure of the Joint Venture

60 Pursuant to the various agreements to which I have referred, and as a result of the corporate structures of the Participants in the Joint venture, the corporate structure of the Joint Venture and its Participants as from December 2005 can be depicted in the following diagram:

State of Queensland Devereaux Holdings Pty Ltd

↓ ↓

Stanwell Corporation Limited W R Carpenter Holdings Pty Ltd

↓ ↓

Wind Portfolio Pty Ltd Griffin Energy Group Pty Ltd

↓

The Griffin Coal Mining Company Pty Ltd

↓ ↓

Griffin Windfarm Holdings Pty Ltd

↓

EDWF Holdings 1 Pty Ltd EDWF Holdings 2 Pty Ltd

61 Construction of the Wind Farm was completed in October 2006, and the generation and sale of electricity from the Wind Farm commenced shortly thereafter.

62 On 26 April 2007, Stanwell and Griffin Windfarm 2 Pty Ltd (another subsidiary of Griffin) entered into the JDA (formally entitled 'Wind Farms - Joint Development Agreement'). The JDA recites the history of the association of related bodies of the parties in relation to the Wind Farm, and their desire to investigate the feasibility of developing further wind farms at Emu Downs North (sometimes described as Badgingarra), Joanna Plains and such as other sites as may be agreed. The general effect of the JDA was to oblige the parties to share joint responsibility for the preparation of a technical feasibility report, a comprehensive economic model of each prospective wind farm, a set of specifications and designs for each wind farm sufficient to take the project to bankability, and various other reports and feasibility assessments in relation to each wind farm project. Under the JDA, those obligations were to be achieved by the appointment of a Project Manager under the control of a committee described as the Project Control Group, to which each venturer was entitled to appoint two members.

63 On 28 November 2007, Queensland, Stanwell, TSI (Wind Farms) Pty Ltd (TSI (WF)) and TSIL entered into an agreement entitled 'WP Sale and Purchase Agreement'. Under that agreement, TSI (WF) agreed to purchase all the issued shares in Wind Portfolio and in EDWF 1 subject to the satisfaction of a number of conditions precedent including the receipt of EDWF 2's consent to the transaction, or an order of a court (which finally determines the matter in dispute) has been made which has the same effect as such consent. That condition was required to be satisfied by 25 February 2008, but if not satisfied by that date, the State of Queensland was entitled to give notice extending the time for satisfaction of that condition until 19 December 2008. It is common ground that such a notice was given.

64 On 29 November 2007, Stanwell entered into an agreement assigning its interest in the JDA to Wind Portfolio. The consequence of that assignment was that Stanwell's interest in the JDA would pass to the purchaser under the WP Sale and Purchase Agreement.

65 On 30 November 2007, EDWF 1 sought the consent of EDWF 2 to the proposed Change in Control. That request precipitated a substantial correspondence between solicitors representing the parties. Much of that correspondence focused upon requests by Griffin for the provision of information, and TSIL's responses to those requests.

66 On 15 January 2008, solicitors acting for TSIL provided answers to a number of specific questions which had been posed by solicitors acting on behalf of Griffin. That information included a diagram setting out the proposed corporate structure by which the interest in the Joint Venture was to be held. A copy of that diagram is attached to these reasons. That diagram shows that if the WP Sale and Purchase Agreement becomes unconditional and is completed, the ultimate controller of EDWF 1 will be TSIL.

67 Griffin's questions sought information in relation to a number of the corporate entities identified in that diagram, including TSIL, TSE, TSI (WF) and TS Renewables. In relation to those entities, information was sought on a variety of topics including general experience and capabilities; specific experience in wind power and renewable energy generation as well as planning, maintenance and management of wind farms; the key personnel proposed to be appointed to EDWF 1 and to the Management Committee; the future plans for Emu Downs and wind power generation in Western Australia; financial matters; prospective competition in the power generation sector; and whether parent company guarantees were proposed. Information was provided on each of those topics.

68 On 1 February 2008, solicitors acting on behalf of Griffin sent a further request for detailed information to the solicitors acting on behalf of TSIL. Further information was provided in response to those questions on 8 and 12 February 2008. Correspondence continued to pass between the solicitors relating to the information sought by Griffin during February and early March 2008.

69 Included in the information provided to Griffin was a copy of a document entitled 'O and M Alliance Agreement' apparently executed on 6 March 2008 by TSIL, TSI International Limited and TSE. The general effect of that agreement is to provide a structure under which Transfield Services (Australia) Pty Ltd is to provide services with respect to the operation and maintenance of assets held by other entities within the 'Transfield group' (Transfield).

70 On 6 March 2008, representatives of the Queensland Treasury, Transfield and Griffin met at the Sydney offices of Griffin's solicitors to discuss the issues associated with the request for consent to the Change in Control. Notes of that meeting prepared by various Participants have been tendered in evidence, and evidence has been given as to the matters discussed. It is clear that those matters included TSIL's wind farm expertise; the linkage between the Wind Farm and the proposed project at Badgingarra; TSIL's capacity to perform a role in relation to the management and administration of the Wind Farm; TSIL's financial position with particular reference to the prospective development of the Badgingarra project; and competition by entities associated with TSIL with Griffin in the Western Australian energy supply market.

The Griffin board meeting and the Griffin Board Paper

71 A meeting of the boards of various companies in the Griffin group, including EDWF 2 was held on 17 March 2008. A paper was presented to that meeting dealing with the request for the consent of EDWF 2 to various changes in control, including Change in Control relating to the JVA (the Griffin Board Paper). The Griffin Board Paper contained many attachments, and included most of the information which had been provided by TSIL.

72 The Griffin Board Paper recited the history of the relationship between Griffin and Stanwell and asserted, as the reasons for Griffin's development of that relationship, the fact that Stanwell was financially sound, had specific expertise in wind farm development and wind farm asset management, and was not in competition with Griffin in any energy market in Western Australia. The Griffin Board Paper further asserted that Stanwell had assured Griffin that it had no intention of entering any energy market in Western Australia in which it might be in such competition.

73 The Griffin Board Paper provides background on Stanwell and the energy markets in which it operates, and upon Transfield and the energy markets in which it operates. The Griffin Board Paper also summarises Griffin's role in the energy market in Western Australia which includes its interest in the Wind Farm, the Bluewaters power station near Collie (which is nearing completion), the proposal to develop another wind farm at Badgingarra, the proposal to construct an open cycle gas turbine to be known as the North Peak power station, and a potential wave technology project at Yanchep. The Griffin Board Paper identifies entities associated with TSIL as competitors of Griffin in the Western Australian energy market.

74 The Griffin Board Paper also summarises the principal agreements underpinning the Joint Venture and the arrangements for the management of the Joint Venture. The Griffin Board Paper goes on to group Griffin's concerns with respect to the proposed Change in Control into three areas namely:

75 The Griffin Board Paper asserts that neither TSIL nor TSI (WF) has the personnel to perform the necessary services, and assumes that TSE would be contracted to supply the relevant services. The Griffin Board Paper summarises the expertise which has been claimed on behalf of TSE and asserts that this expertise comprises a small portion of the technical expertise required to develop, operate and maintain wind farms. Two tables are contained in the Griffin Board Paper to justify that assertion. The first table deals with the expertise required in the development of wind farms and lists a number of the skills said to be required in that regard, and purports to assess the capacity of each of TSIL and TSE to supply those skills. The second table undertakes the same exercise in relation to the expertise required in the operation and maintenance of wind farms. Mr Trumble (whose evidence I will refer to below) confirmed that the first table was aimed at assessing the likely implications of a Change in Control with respect to the development of the proposed Badgingarra wind farm, whereas the second table was directed at assessing the implications of a Change in Control in relation to the existing Joint Venture.

76 The Griffin Board Paper also asserts that a Change in Control would result in loss of access to Stanwell's computer systems and processes and that TSE would have difficulty in replacing those computer systems and processes in the short to medium term.

77 The Griffin Board Paper further assessed the skills and experience of each of the personnel proposed by TSIL and TSE to be engaged in the operation of the Joint Venture, including the two persons proposed for appointment to the Management Committee, Mr David Jones and Mr Albert Jubian. Following that review, the Griffin Board Paper asserts that the combined expertise of the proposed employees is not substantial when compared to the expertise presently provided by Stanwell's personnel. The Griffin Board Paper also asserts that neither of TSIL/TSE's proposed appointees to the Management Committee have any management or technical expertise relevant to the development, construction, operation or maintenance of wind farms. This section of the Griffin Board Paper concludes with a summary in which it is asserted that Transfield had no significant wind farm development, operation or maintenance experience, and were on a steep learning curve which could not be easily scaled, and which was likely to prejudice the operation of the Joint Venture, at least in the short to medium term. The summary further asserts that Transfield did not have sufficient contracted personnel with a sufficient depth of experience in wind farm development, operation and maintenance, and did not have wind farm development, operations or maintenance systems in place. It is further asserted that if consent was given to a Change in Control, through the Joint Venture and the Badgingarra development, Griffin would inevitably 'educate' Transfield in the development, operation and maintenance of wind farms, to the detriment of Griffin in relation to future competitive opportunities in the wind farm generation sector.

78 In this section of the Griffin Board Paper, a distinction is drawn between Stanwell, which is not a competitor of Griffin's in the WA energy market, and the Transfield entities which are. The Griffin Board Paper asserts that there is significant concern that in the event of a Change in Control, Transfield would obtain an understanding of Griffin's business model and economic and financial parameters relating to the development of projects and sales models which could be used by the Transfield entities or their associates against Griffin in the energy generation market generally. The identified concerns relate to information with respect to rates of return for a given risk profile, as a result of which it is asserted that Transfield would understand Griffin's approach to risk, its accepted rates of return for a given risk profile, and its approach to evaluating the financial performance of projects, all of which were said to give Transfield a competitive advantage. In this context, reference is made to the prospects of expansion of Wind Farm, and to the development of wind farms in general, including Badgingarra and Joanna Plains. It is asserted that transmission connection is a critical factor in wind farm development because only one wind farm would be connected to the transmission grid in a particular area, as it is neither economically nor technically desirable to connect two wind farms in the same area. Following on from this, it is asserted that an expansion of the Wind Farm is under active consideration, but might be resisted by Transfield, because of its desire to prefer its own interests by supplying energy from its energy generation assets in Western Australia.

79 The Griffin Board Paper further asserts that Griffin would be inhibited in its discussions with Transfield concerning future trends and opportunities in the energy generation market including the renewable energy market, opportunities for the financing or refinancing of wind farm projects, its business know-how, business model and economic and financial parameters relating to development projects and sales models, methods of financing, debt to equity ratios, financing costs, internal rates of return and the like, and in discussing various other aspects of its business.

80 In this section of the Griffin Board Paper, concerns are expressed as to the capacity of Transfield to fund the Badgingarra development or any expansion of the Wind Farm, or any other development, including Joanna Plains. The Griffin Board Paper asserts that TSIL has debt facilities of $900 million, which are currently drawn to $770 million, and that if the Emu Downs acquisition proceeds, TSIL will only have unborrowed debt of about $30 million, of which $25 million would be committed to pay forecast dividends/distributions. Accordingly, it is asserted that TSIL will then have utilised all of its current debt facility, and is highly leveraged with a limited capacity to borrow further, and because of its highly leveraged position, is vulnerable to significant changes in interest rates.

81 However, the Griffin Board Paper goes on to acknowledge that there are currently no forecast major capital expenditures for the Joint Venture, and that TSIL/TSE's current financial position is adequate to cover ongoing work and capital requirements of about $1 million per month.

82 The Griffin Board Paper also expresses concern in relation to Transfield's approach to financing, and in particular its preference for corporate financing, as compared to Griffin's preference for project financing. The Griffin Board Paper asserts that it may be difficult for Griffin to procure project financing if Transfield utilises corporate financing. Observations are made that the current financing of the Joint Venture expires in around six to seven years, but that refinancing may be required within that time-frame if the Wind Farm is expanded. The Griffin Board Paper expresses doubt as to the capacity of TSIL to refinance, given that its existing debt facilities are near to fully utilised, and its capacity to raise further equity would be limited given that its shares were then trading at a substantial discount to its listing price.

83 The Griffin Board Paper concludes with an overall summary, and repeats the specific concerns identified in earlier sections of the paper. By reason of those concerns, the paper recommends that Griffin not consent to the Change in Control.

84 The board of Griffin (relevantly for the purposes of these proceedings acting as the board of EDWF 2) accepted this recommendation. On 18 March 2008, by letter from EDWF 2 addressed to the relevant representative of the Queensland Treasury, EDWF 2 advised that its board had resolved that it not consent to the proposed Change in Control of EDWF 1. The letter asserts that EDWF 2 has, and continues to have, a number of concerns arising from the Change in Control relating to the future role of each of TSIL and TSE with respect to their technical expertise and capacity in the operation and maintenance of wind farms and in the development and construction of wind farms, with respect to their financial capacity, and the potential commercial detriment to EDWF 2 and related Griffin entities arising from these matters, and the fact that the Transfield and Griffin entities are and will continue to be competitors. By a letter of the same date from Devereaux Holdings Pty Ltd to the Queensland Treasury, notice was given to the effect that the various other consents to changes in control and assignment that were associated with the proposed Change in Control of EDWF 1 were also refused.

86 The documentary evidence took the form of the consensual tender of a trial bundle which contained a large number of documents. I have referred above to the documents within that bundle that appear to me to be most material. I will refer to more documents when reviewing the evidence of the witnesses. However, many of the documents within the trial bundle appeared to me to be of very marginal significance to the resolution of the issues in this case.

87 The evidence-in-chief of all witnesses called took the form of the tender of their statements of evidence. Some of the witnesses were cross-examined. Only a small number of the witnesses were cross-examined at any significant length. I will now summarise the evidence given by the witnesses, and identify the findings of fact which I make based upon that evidence. Because there was very little controversy in relation to the evidence adduced from the witnesses, any reference below to the evidence of a witness should be taken as a finding of fact to that effect, unless I expressly indicate otherwise.

88 The plaintiff's witnesses can be grouped into two categories - officers of Stanwell and officers of Transfield. I will deal first with the officers of Stanwell.

89 Mr Sutcliffe is the finance manager of Stanwell. He was not required for cross-examination and his witness statement was tendered by consent. It establishes that in preparation for the sale of the wind farm assets of Stanwell, all moneys owing in respect of EDWF 1's interest in the Joint Venture were repaid, with the result that its interest is currently unencumbered.

90 Mr Sutcliffe's statement describes the financial operations of the Joint Venture. The Manager maintains a bank account with a balance of approximately $150,000. Monthly estimates are made of likely expenses for the following month, after which a Cash Call is issued by the Manager to the Joint Venture Participants. If an unexpected expense arises, the Manager issues an extraordinary Cash Call. The extraordinary Cash Calls issued by the Manager to date were:

being, in each case, the amount called from both Participants. Stanwell does not provide accounting services to the Joint Venture. Those services are provided by a Griffin entity.

91 Mr Sutcliffe's statement also deals with the off-take agreements which have been entered into in respect of the energy and other tradeable commodities produced by the Wind Farm. He observes that those agreements are all long-term, fixed price contracts with mechanisms for the future calculation of price, with the result that none of the electricity or other tradeable commodities produced by the Wind Farm is traded on the spot market. His evidence does not deal with the circumstances in which those contracts might be terminated.

92 Mr Wheeler is a project manager employed by Stanwell. From the latter part of 2003 until about July 2005, he was the project manager for the feasibility phase of the Wind Farm. From July 2005 until December 2006 or January 2007, he was a technical adviser for Stanwell in relation to its participation in the Management Committee. Shortly after Emu Downs commenced operations, he was replaced in that capacity by Mr Andrew Longbottom. Prior to Mr Wheeler's engagement with respect to the Wind Farm, he had been the project manager for the Toora wind farm in Victoria.

93 Mr Wheeler's statement describes the wind turbine generators of the type that are used at the Wind Farm, and lists the technical expertise required at each stage of the design, construction, operation and maintenance of a wind farm. In the case of Emu Downs, that expertise was largely provided by Vestas. In order to provide those services, Vestas employs skilled electrical and mechanical engineers who have been trained on their wind turbines.

94 In cross-examination, Mr Wheeler confirmed that he had been contacted by Mr Kerry Roberts, an employee of the Manager, on a number of occasions. Mr Roberts had sought his advice in relation to his understanding of the Vestas contract.

95 Mr Longbottom holds the position of 'Manager, Strategy and Commercial' for Stanwell. He has experience in the development and implementation of operating arrangements in relation to wind farms at Windy Hill, Toora and the Wind Farm.

96 In his statement, Mr Longbottom describes the various components of a wind farm, which include the turbines, the meteorological masts, electrical cabling network, substation and operations buildings. The maintenance of a wind farm is primarily associated with the maintenance of the wind turbines. Their operation is controlled by sensors located all over the wind turbine, which communicate with an electric controller. That controller in turn communicates back to a central system which controls the overall operation of the Wind Farm.

97 In his statement, Mr Longbottom deals with the daily operation and maintenance of a wind farm. He also describes his particular role in relation to the Wind Farm. He has visited the site on about six or seven occasions.

98 Mr Longbottom confirmed that Stanwell has been requested to give technical assistance to the Manager on a number of occasions since practical completion of the Wind Farm, under the terms of the Service Agreement. In his experience in the operation of the Wind Farm, the persons most involved in its operations and maintenance are Mr Roberts (an employee of the Manager), officers and employees of Vestas, employees of Power Plan Pty Ltd (an Electrical Engineering Consultant), employees of Downer EDI and Robin Johnson Engineering Pty Ltd (who are contracted by Vestas to conduct routine maintenance and servicing of electrical substations and infrastructure), and various other identified consultants. Mr Longbottom acknowledges that while a majority of the expertise in the operation and maintenance of the Wind Farm is outsourced, there are personnel employed by Stanwell who provide expertise. He identifies five other employees of Stanwell from whom he has sought advice and assistance in relation to the operation of the Wind Farm.

99 In a statement which is responsive to the statement of evidence of Mr Roberts, Mr Longbottom expresses the view that the extent of his involvement in the management of the Wind Farm has been overstated by Mr Roberts. He refers in particular to a number of specified paragraphs of the statement of Mr Roberts. I will deal with his evidence with respect to those paragraphs in the context of the evidence given by Mr Roberts.

100 In cross-examination, Mr Longbottom confirmed that, save for those paragraphs of the statement of Mr Roberts to which he had responded, he accepted the assertions made in Mr Roberts' statement. He confirmed that he would speak with Mr Roberts most weeks, and if there was a topical issue, up to two or three times per day. He agreed that he gave advice to Mr Roberts from time to time.

101 Mr Mott is employed by Transfield Services (Australia) Pty Ltd but is seconded exclusively to Transfield Services Infrastructure Fund (Infrastructure Fund) as its Chief Financial Officer. In his statement, he describes the Transfield group. TSE is publicly listed, and in 2006/07 had a turnover of $2.4 billion. That company owns 49% of the Infrastructure Fund which is also publicly listed. The remainder of the fund, not owned by TSE, is publicly owned.

102 Transfield Services (Australia) Pty Ltd is the main operating subsidiary of TSE. It employs 8,500 people around Australia, with a range of experience in project construction, project management and infrastructure development.

103 TSI (WF) is a wholly owned subsidiary of TSIL incorporated in late November 2007 solely for the purpose of acquiring the operating wind farms which were being sold by Queensland. TSI (WF) is the parent company for a number of entities, including entities which own the Windy Hill wind farm in North Queensland, the Toora wind farm in south-east Victoria, the Starfish Hill wind farm in South Australia, and the Mt Millar wind farm also located in South Australia. Wind Portfolio, which holds the issued shares in EDWF 1, will be a subsidiary of TSI (WF) if the transaction with Queensland proceeds.

104 Mr Mott's statement deals with the relationship between the Infrastructure Fund and TSE. The Infrastructure Fund is an independent enterprise and receives no external credit or financial support from any of its unit holders or other external sources. The Infrastructure Fund wholly owns power stations at Collinsville and Townsville in Queensland, and at Kemerton in Western Australia, and the wind farms to which I have referred. The fund also has an investment stake in the Loy Yang A power station in the La Trobe Valley near Melbourne, and a stake in the Kwinana power station in Western Australia.

105 Mr Mott's statement confirms that if the transaction proceeds, the funds required for the purchase of the interest will be obtained by drawdown of an existing debt facility. Mr Mott confirmed the accuracy of the information given to Griffin in response to the questions it posed.

106 In cross-examination, Mr Mott confirmed that at the time of Transfield's bid for the wind farm assets of Queensland, it had limited wind farm operation experience.

107 Mr Neil is employed by TSE and holds the position of General Manager, Wind Farm Development. In that role, he is responsible for the development of an existing portfolio of 13 potential wind farm sites, acquired as a result of the recent transaction with Queensland. The primary focus of the Wind Farm Development Group which Mr Neil heads is aimed at progressing the Barn Hill wind farm project.

108 In addition to Mr Neil, the Wind Farm Development Group of Transfield consists of Mr Terry Johannesen and Mr Anil Nangia. Mr Neil's statement sets out the qualifications and experience of those persons.

109 Mr Neil's qualification is in accountancy. He has had 18 years experience in the power generation industry, including 10 years experience within Australia. For most of that time he has been involved in project development covering a variety of projects, including renewable energy projects.

110 In his statement, Mr Neil describes in detail the process which is followed when developing a new project, and also sets out the precise point which has been reached in relation to the Barn Hill wind farm project. His statement also sets out in detail the personnel engaged in that project, and their qualifications and experience. Mr Neil asserts in his statement, that in his experience, and particularly based on what has been done at Barn Hill, TSE is capable of developing a wind farm project.

111 Although Mr Neil was produced for cross-examination, he was not challenged on any portion of his statement.

112 Mr Nedov is the General Manager Operations of Power Generation Services for TSE. In that capacity he is responsible for the management of the power generation assets held by the Infrastructure Fund. He describes those assets in his statement. In relation to the wind farm assets, since 20 December 2007, his duties have included responsibility for the wind farm assets acquired from Queensland.

113 TSE has significant experience in providing services to the power generation, transmission and distribution markets in Australia and New Zealand. Mr Nedov sets out in his statement the entities to whom those services have been supplied. TSE also has experience in relation to Codrington wind farm in Victoria, Challicum Hills wind farm, also in Victoria, and Walkaway wind farm in Western Australia. It is currently developing a training programme and operating instructions for the Waubra wind farm.

114 TSE has 2,000 staff located in Western Australia, who provide operations and maintenance services. TSE specialises in managing and maintaining public and private assets. Mr Nedov's statement sets out the personnel who report to him.

115 Mr Nedov was not required for cross-examination and his statement was tendered by consent.

116 Mr Ware holds the position of Operations Manager - Wind Farm for TSE. In that role, he is responsible for the operational performance and maintenance of the wind farms owned by the Infrastructure Fund.

117 Mr Ware's experience in power generation began in 1985 at the Collinsville Power Station in Queensland. His first exposure to wind farm power generation occurred in 2001, when he took up a position as the Construction and Operations Co-ordinator for the Starfish Hill wind farm project. He held an equivalent position in relation to the Mt Millar wind farm. He holds trades and engineering qualifications.

118 In his statement, Mr Ware sets out his experience in relation to power stations generally, and wind farm projects in particular. At the wind farm projects owned by Transfield, day to day responsibility for site activities rests with maintenance and service contractors, being Vestas and Enercon Wind Farm Services Australia, although at Toora, TSE manages the site with its own personnel.

119 Mr Ware's statement lists the personnel within Transfield responsible for the management of the wind farm portfolio. Transfield also has access to specialist engineering support relating to wind farms when required. His statement also confirms the accuracy of the information provided by TSE to Griffin in response to its requests.

120 Mr Ware was not required for cross-examination and his statement was tendered by consent.

121 Mr Johannesen holds the position of Project Development Manager, Wind Farm Development for TSE. He reports to Mr Neil. He is qualified in civil engineering.

122 In his statement, Mr Johannesen sets out his experience in connection with a number of general power generation facilities in Queensland. From 1999 until December 2007, he held the position of Civil Engineer/Wind Engineer with Stanwell. His first exposure to wind farm generation occurred when he took up that position. His duties with Stanwell involved managing the development for wind projects through pre-feasibility and feasibility studies and providing general technical expertise in matters relating to wind resources and wind farms. He was involved in the technical analysis, evaluation and documentation for all stages of project development of the Wind Farm and the Toora wind farm in Victoria, and in the later stages of the project development for the Windy Hill wind farm in North Queensland. He continued to provide technical assistance during the operation of those three sites.

123 Mr Johannesen's employment with TSE commenced at the time of its acquisition of Stanwell's wind farm portfolio. He is now TSE's technical point of contact with respect to wind farm developments, and is currently engaged in the development of the wind project at Barn Hill in South Australia.

124 Mr Johannesen was not required for cross-examination and his statement was tendered by consent.

125 Mr Roberts is employed by the Manager, and holds the position of General Manager. He has held that position since June 2006. Prior to that time he had a variety of experience in relation to electricity generation projects, but no prior experience with wind farm development, or in the operation and maintenance of a wind farm.

126 The Wind Farm is located around 200 km north of Perth and 30 km east of Cervantes on a working beef cattle property known as Emu Downs, which is approximately 5,000 ha in area. The farm comprises 48 Vestas wind turbines providing a total generation capacity of 79.2 mw. It has two 40 mt substations and associated infrastructure, roads and buildings.

127 In his statement Mr Roberts sets out his roles and responsibilities as manager on behalf of the Manager of the Joint Venture. On four occasions in 2007, Stanwell provided services to the Manager on a formal basis pursuant to the provisions of the Services Agreement. However, Stanwell has provided informal advice and direction to Mr Roberts on a regular basis. Mr Roberts states that without that advice, he would find it extremely difficult to properly manage the Joint Venture.

128 In his statement, Mr Roberts provides details of the persons within Stanwell from whom he has sought and obtained advice. They include Mr Longbottom.

129 Mr Roberts asserts in his statement that he has received advice from Mr Kevin Ramm, an employee of Stanwell, in terms which suggest that advice is ongoing. However, in Mr Longbottom's supplementary statement, he asserts that so far as he is aware, the only work done by Mr Ramm was in respect of the preparation of an Asset Life Plan for the Wind Farm, which work was completed in or about September 2007, after which Mr Ramm has had no ongoing involvement with the Wind Farm. As Mr Ramm was not called, and neither Mr Longbottom, nor Mr Roberts were cross-examined on this issue, it is not possible for me to resolve this conflict in testimony. However, it does not seem to me that anything turns upon this issue.

130 Mr Roberts confirms that apart from himself, there are generally six full-time Vestas personnel on site. His role includes ensuring that Vestas complies with its contractual obligations. As the EPC contract was to expire on October 2008, the Manager recently completed a process aimed at identifying possible new contractors. Mr Roberts relied heavily on Mr Longbottom's advice in relation to that issue. He has also relied upon Mr Longbottom's advice and assistance in relation to the negotiation of a new contract with Vestas.

131 Mr Roberts also reviews the data relating to forecast and actual winds, for the purposes of making operational and maintenance decisions. He relies to some extent upon the advice provided by Mr Longbottom in that regard. Mr Longbottom asserts that his role is essentially limited to reviewing the data and looking for trends or inconsistencies. This appears consistent with Mr Roberts' evidence.

132 There are relatively minor differences between the evidence of Mr Roberts and Mr Longbottom with respect to the extent of the advice given by Mr Longbottom to Mr Roberts in relation to scheduled maintenance of the plant. However, it is clear that both witnesses accept that advice is given by Mr Longbottom on this subject on a relatively regular basis. Advice is also given by Mr Longbottom in relation to unscheduled maintenance. There is also a difference between Mr Roberts and Mr Longbottom on the question of whether Mr Longbottom has ever given Mr Roberts advice with respect to the isolation of wind turbines. Mr Longbottom asserts in his responsive statement that he does not recall ever providing direction to Mr Roberts on that subject. However, in cross-examination, Mr Roberts was adamant to the effect that advice had been given by Mr Longbottom on that subject, and I accept that evidence.

133 Further, although there is a difference between the two witnesses as to the time at which Mr Longbottom gave advice in relation to staffing issues and substation usage, they agree that these matters were discussed. Mr Roberts also receives advice from Mr Longbottom on a quarterly basis regarding commercial issues arising under the power sale contracts.

134 In his statement, Mr Roberts refers to the various consultants, other than Vestas who provide services to the Manager. In relation to the engagement of those consultants, he has relied heavily on Stanwell and its personnel for advice in respect of the engagement, and the terms of engagement. Mr Roberts' statement provides a number of specific examples of advice given by Stanwell and its personnel, in the areas of operational issues, maintenance issues, asset management, inventory issues and technical support generally. There are some relatively minor differences to the evidence given by Mr Longbottom on these topics - such as, in relation to the time at which advice was given with respect to the supervisory control and data acquisition system. However, the differences in the evidence are marginal and do not detract from the general thrust of Mr Roberts' evidence, which is to the effect that he has been in the habit of relying upon the personnel of Stanwell to provide advice across a range of areas pertaining to the operation and maintenance of the Wind Farm.

135 Mr Roberts asserts in his statement that where it has been necessary to obtain a consultant, there has been no wind farm consultant with a substantial presence in Western Australia, with the result that he has often had to wait for a consultant to fly to Western Australia before a problem can be attended to. However, by reason of his dealings with Stanwell, he has often been in a position to obtain expertise without requiring somebody to travel to the Site. He further expresses the view that based on his experience, he is not aware of any wind farm consultant who could provide the breadth and depth of wind farm expertise that Stanwell provides. Those statements were not challenged in cross-examination and I accept them.

136 In cross-examination, Mr Roberts confirmed that he had resigned from his position with effect from October of this year, after which he was to take up employment with the Griffin group.

137 Mr Johnstone is a director of Corpac Partners Pty Ltd, which provides corporate financial advice to government and other clients. He is a qualified chartered accountant. Mr Johnstone was the source of the information relating to the financial position of Transfield contained in the Griffin Board Paper and which I have summarised. In his statement he sets out the information upon which he relied for the preparation of that material, and expresses the view that the material in the Griffin Board Paper is accurate. Mr Johnstone was not required for cross-examination and his statement was tendered by consent, but on the basis that it was not evidence of the truth of the assertions made in the Griffin Board Paper. The limited basis of the tender gives rise to an issue with respect to the onus of proof in the context of a case in which it is alleged that consent was unreasonably withheld. I will address this issue later in these reasons.

138 Mr Trumble holds the position of Executive General Manager, Power Generation of 'Griffin Energy' (a business name held by various Griffin entities involved in the operation and development of power generation projects). Mr Trumble is responsible for the management of Griffin's existing energy generation projects and the development of future projects, including various projects to which I have already referred. Mr Trumble has 20 years experience in the energy generation sector in various countries.

139 Mr Trumble was cross-examined at some length. I found the testimony which he gave to be careful, considered, consistent with the documentary evidence, and plausible. I have no hesitation in accepting his evidence in its entirety.

140 Mr Trumble is one of Griffin's two representatives on the Management Committee established to manage the Joint Venture. That Management Committee receives weekly and monthly reports from the Manager.

141 In 2003 Mr Trumble was responsible for Griffin's involvement in a competitive process relating to the supply of electricity to Western Power. In that process, Griffin was in competition with Transfield entities, which were successful. The success of the Transfield entities resulted in the construction of the Kemerton power plant near Bunbury.

142 Mr Trumble was responsible for the material contained in substantial portions of the Griffin Board Paper. In his statement he describes in general terms the matters upon which he relied for the assertions made in the Griffin Board Paper. As with Mr Johnstone, Mr Trumble's evidence was not tendered as evidence of the truth of those assertions. Accordingly, the issue relating to onus which I have already foreshadowed arises also in respect of this evidence.

143 At the board meeting at which the Griffin Board Paper was considered, Mr Trumble explained each section of the Griffin Board Paper to the directors present. No questions were asked by any of the directors regarding any aspect of the Griffin Board Paper. Following his presentation, which took 20 to 25 minutes, the directors resolved unanimously to accept the recommendation not to consent to the Change in Control.

144 In cross-examination, Mr Trumble confirmed that in assessing the issues relating to technical capacity, he had compared the technical capability of Transfield not only to Stanwell, but also to other Participants within the wind farm industry. Further, in preparing his recommendation to the board, Mr Trumble understood that the criteria specified in cl 11.7 of the JVA required the proposed assignee to have a level of technical capability and financial capability that would be acceptable to the continuing Participant. However, in making his recommendation, he did not consider that Griffin was confined to the matters specified in cl 11.7, and included considerations relevant to Griffin's broader commercial position.

145 Mr Trumble admitted that the prospect of being in a Joint Venture with a commercial competitor was one of the principal reasons for his recommendation to refuse consent, but denied that it was the main reason.

146 In relation to that portion of the Griffin Board Paper dealing with the expansion of the Wind Farm, Mr Trumble advised that Griffin has had under consideration the addition of up to six further turbines. The addition of those turbines would not take the Wind Farm beyond a capacity of 80 mw, but would increase the power generated up to 80 mw during the many times at which the Wind Farm operated below maximal output because of reduced winds. He estimated that the capital cost of each of those six turbines would be approximately $2.5 million - producing a total capital cost of about $15 million.

147 Mr Trumble identified a number of unique features of a wind farm generation project, including the intermittent nature of its operations, and the generation of limited amounts of electricity spread across a large area. Mr Trumble did not give any consideration to the question of whether TSIL would have the capacity to fund expenditure of the order of $15 million at the time he prepared the Griffin Board Paper, and was not able to say whether it would be within its capacity or not. He confirmed that the Wind Farm was strongly cash flow positive, although the profitability of the wind farming operation depended upon such things as financing costs and depreciation.

148 Mr Trumble confirmed that it was the intention of the Joint venturers to negotiate an extension or renewal of the EPC Contract with Vestas and at the time of his evidence, they were close to concluding such a contract.

149 Mr Trumble accepted that in the Griffin Board Paper he had understated Mr Ware's operational experience in relation to the Starfish Hill wind farm. He confirmed that he did not form a view, positively or negatively, either way as to Mr Ware's capability with respect to the management of operations and maintenance of wind farms.

150 Mr Trumble confirmed that in preparing the Griffin Board Paper, he did not have regard to the confidentiality provisions in the Management Agreement. However, his concerns with respect to confidentiality were not related to those provisions, but arose from the fact that confidential commercial information would be made available to Transfield who were competitors of Griffin. So far as he was aware, the confidentiality provisions only related to the passage of information to third parties beyond the associates of the parties.

151 Mr Trumble further confirmed that because consent had been sought in relation to assignment of a portion of the obligations relating to the Badgingarra wind farm, he had addressed that wind farm in the Griffin Board Paper.

152 Mr Trumble stated that some expertise would be required to expand the Wind Farm by adding another six turbines - particularly in the area of regulatory and licensing approval, and also in the technical issues relating to the placement of those turbines.

153 In relation to the role of Vestas, Mr Trumble stated that Vestas provides what he described as 'the arms and legs' for maintenance and operation of the Wind Farm, but that issues like long life asset management, planning for the whole of the Wind Farm and commercial matters were matters for the owners. He further stated that the monthly report provided by Vestas was reviewed by Mr Longbottom, as the technical adviser to the Management Committee, who would provide comment to the Management Committee on those reports.

154 Mr Crossman is a director of EDWF 2, and a number of other companies within the Griffin group. He is also a director of Corpac Partners Pty Ltd, along with Mr Johnstone. Mr Crossman is a qualified lawyer and investment banker.

155 Mr Crossman was involved in the provision of information and comment which was included within the Griffin Board Paper presented to the Griffin board on 17 March 2008. In his witness statement, Mr Crossman identifies those portions of the Griffin Board Paper for which he was responsible, and affirms his belief in the accuracy of those statements. As with the evidence of Mr Johnstone and Mr Trumble, that evidence was not received as evidence of the truth of the assertions made in the Griffin Board Paper, and gives rise to the same issue as to onus of proof.

156 In his witness statement, Mr Crossman also describes the events at the board meeting on 17 March 2008. He confirms that Mr Trumble spoke to the Griffin Board Paper for approximately 25 minutes, and that no questions were asked of Mr Trumble during that presentation. Mr Crossman's statement then sets out his recollection of the discussions between the directors. That evidence was received over objection as evidence of the state of mind of the directors, and as evidence going to the subjective reasons for the refusal of consent, and not as evidence of the truth of the matters stated. On that basis, I overruled an objection to the evidence on the ground that it was hearsay. In any event, the discussions related by Mr Crossman are relatively brief, and do not appear to me to either add to, or detract from, the propositions and reasoning set out in the Griffin Board Paper, which I regard as the best evidence of the reasons why consent was refused.

157 Mr Crossman was cross-examined. For the reasons which I will give, I was unimpressed with his testimony. I do not accept the assertions which he made in cross-examination, unless they are corroborated by other evidence.

158 Mr Crossman initially stated that he saw a draft of the Griffin Board Paper. Shortly after that statement, he resiled from that assertion. He also stated that he had reference to the JVA, both before and during the board meeting. However, shortly after those assertions, his evidence as to the extent to which he had referred to the JVA became much less definite - initially stating that he 'probably', then 'would' have a copy of the JVA, but then stating that he 'would have had, for example, a copy extract of the relevant sections'. He then said that he 'may have got out a copy' of the JVA, and then said that he believed he had a copy in his office.

159 Many of the answers given by Mr Crossman were unresponsive to the questions asked, and appeared to be intended to argue Griffin's cause. For example, when asked if he had called for any information other than the questions and answers and the Griffin Board Paper prior to the board meeting, he replied that he:

... did ask for someone to look into who were other potential - could have been potential buyers of the project and I think we came up with about a list of 20 very strong technical expert companies.

160 I think it is of some significance that there is only vague reference to this proposition in Mr Crossman's witness statement, and no reference to this in the Griffin Board Paper, or in any document tendered in evidence. The vague reference consisted of a statement recollecting a response of Mr Crossman to Don Pearson. Mr Crossman stated that he responded 'with words to the following effect' that 'I believe there are a number of players who would have been interested in these assets who were strong financially, had windfarm expertise and were not competitors of ours'. This statement is very broad and makes no reference to 'looking' for potential buyers or the number found. Therefore, I do not accept Mr Crossman's assertion.

161 When asked whether, at the board meeting, he had considered 'as an entire question' the proposed Change in Control in relation to the JVA and the JDA, Mr Crossman replied:

To some degree. We really focused on the Emu Downs joint venture agreement.

162 It was then suggested to him that he focused on both, to which he replied:

No, we focused more on the Emu Downs joint venture agreement.

164 That evidence appears to me to be inconsistent with the terms of the Griffin Board Paper, and the discussions of the directors related by Mr Crossman in his witness statement. I do not accept that evidence. The Griffin Board Paper, which is the best evidence of the reasons for refusal of consent, makes clear that the proposed change of entity in relation to the JDA was regarded as just as significant as the proposed Change in Control of EDWF 1.

165 When Mr Crossman was asked what he understood to be the question that the board of EDWF 2 had to address, he responded by giving evidence as to the reasons why Griffin had entered into the relationship with Stanwell in the first place, in a manner which was unresponsive to the question asked and argumentatively directed to advancing Griffin's cause.

166 Similarly, when asked if he understood that there was some criterion or standard by which the technical and financial issues were to be assessed, he again replied with evidence going to the negotiations which preceded entry into the original arrangement with Stanwell. That answer was not responsive to the question he was asked.

167 When the question was repeated, included within his answer was an assertion that there was nobody in Western Australia to whom tasks associated with the Wind Farm could be outsourced. He elaborated on that proposition in the answer to the next question. His assertions in that regard go beyond the evidence of Mr Trumble and Mr Roberts in their generality, are not consistent with the assertions made in the Griffin Board Paper, were not included in his witness statement, and do not appear to be substantiated by any documentary evidence. I do not accept those general assertions, although I do accept the evidence of Mr Roberts that on occasion there have been problems sourcing specialist wind farm advice within Western Australia.

168 Further, when asked how many people Stanwell had supplied on the ground to assist with the practical management of the Wind Farm, in the course of answering the question, Mr Crossman went on to assert, unresponsively, that there had been a recent issue with a problem with the turbines where they had completely relied on Stanwell. That assertion was not made in his witness statement, and appears to go beyond the evidence of either Mr Trumble or Mr Roberts, who could be expected to have greater knowledge of these matters. Further, when Mr Crossman was asked whether he had any expertise which would enable him to form a reliable opinion of Mr Ware's capability to supervise the operations and maintenance of a wind farm, he initially gave an argumentative answer which was entirely unresponsive to the question asked. Ultimately, when the question was repeated, he conceded that he lacked the technical expertise to assess Mr Ware's capability.

169 At another point in his evidence, Mr Crossman asserted that there was a risk that revenues received by the Wind Farm would not exceed operating costs. That proposition, which is of obvious significance, was not contained in his witness statement, nor in the Griffin Board Paper. It is contrary to an admission made by EDWF 2 in its defence. I gained the distinct impression that it was an assertion made by Mr Crossman in an attempt to advance Griffin's cause.

170 For these reasons, I do not accept the oral testimony of Mr Crossman, unless it is corroborated by other evidence.

171 Dr Gaynor is the founder of a consulting company providing services to industry, including the Western Australian energy generation industry. He has extensive experience in that industry, including the provision of project development services in relation to power generation projects in Western Australia.

172 EDWF 2 tendered a report from Dr Gaynor covering the following subjects:

(a) an overview of the Western Australian energy generation market;

(b) an overview of the outlook in the Western Australian markets for renewable and non-renewable energy generation;

(c) the competitive position of TSIL and TSE in the Western Australian markets for renewable and non-renewable energy generation;

(d) the competitive position of EDWF 2 and its related entities in those markets;

(e) a comparison between the competitive positions of TSIL and TSE on the one hand, and EDWF 2 and its related entities on the other, in these markets.

173 There is no doubt that companies within the Griffin group related to EDWF 2 are in competition with companies related to TSIL and TSE in the power generation market in Western Australia. Dr Gaynor's report provides a context for the assessment of the significance of that competition. However, it is unnecessary to set out that context in these reasons.

174 The legal principles applicable to the assessment of whether a party to a contract has unreasonably withheld consent to the assignment of another party's interest in the contract have been addressed in many cases. They have most often arisen in the context of the relationship of landlord and tenant, in circumstances in which the landlord has refused to consent to an assignment of the tenant's interest in the lease. The cases demonstrate that the assessment of reasonableness must take full account of the commercial context, and so care must be taken before applying principles enunciated in the context of a leasehold relationship, to a quite different commercial context, such as that which exists between joint venturers.

175 The Australian cases in the area refer to and rely upon a number of English cases. However, because it is at least arguable that there is now some divergence in the approach taken in the two jurisdictions, I will first review the English cases before turning to the leading Australian authorities.

176 In this case, the landlord refused consent to an assignment to a respectable and responsible prospective tenant, for the reason that the landlord wished to place commercial pressure on the existing tenant to surrender the lease to the landlord. The Court of Appeal held that the refusal was unreasonable, because the landlord was motivated by a desire to obtain a commercial benefit which was collateral to the lease, in the sense that the lease did not confer any right upon the landlord to terminate the lease. The court also considered that the use of the power to refuse consent for such a purpose was a derogation from the right of assignment conferred upon the tenant.

Houlder Bros & Co Ltd v Gibbs [1925] 1 Ch 575

177 In this case, the landlord owned two adjoining commercial properties. The tenant of one proposed to assign the lease to the tenant of the adjoining property. The landlord refused consent on the ground that if the assignment went ahead, it was likely that the assignee would terminate its tenancy of the adjoining property, which the landlord would have difficulty reletting.

178 The Court of Appeal followed the earlier decision in Bates v Donaldson, and held that the interests of the landlord in maintaining the assignee as a tenant of other premises was collateral and extraneous to the lease in respect of which consent was sought, and did not therefore provide a reasonable basis for refusing consent. Some of the observations made by members of the Court suggest that, in the case of landlord and tenant, the only considerations which might provide a reasonable basis for refusal of consent are those which relate to the personality of the tenant or the tenant's proposed use of the premises.

179 Warrington LJ also affirmed an observation of Kay LJ in Bates v Donaldson, to the effect that a landlord might reasonably refuse consent to an assignment because of the use to which the tenant proposed to put the premises, even though that use was not forbidden by the lease.

180 This case concerned a covenant in a lease which required the lessee to insure the premises with a nominated insurer or another insurer approved by the lessor. The lessor refused to approve a responsible and reputable insurer because of his wish that all tenants insure with the same insurer (for convenience in the event of a claim by more than one tenant).

181 The House of Lords held that the refusal was reasonable. Two members of the House (Lord Dunedin and Lord Phillimore) expressed doubts as to the correctness of some of the narrow expressions of view in Houlder, to the effect that reasonableness was only to be identified in something which touched both parties to the lease. Their obiter observations suggest that interests and motives which are personal to the party whose consent is sought can provide a reasonable cause for refusal.

Premier Confectionery (London) Co Ltd v London Commercial Sale Rooms Ltd [1933] Ch 904

182 This case concerned a landlord's refusal to consent to an assignment to a tenant who proposed to use the premises for a purpose permitted under the lease, because the landlord wanted the premises to be occupied by the same tenant as adjoining premises owned by the landlord. Bennett J upheld the refusal of consent, even though the proposed use was permitted by the lease, on the basis that the landlord's reasons for refusal were reasonable, and were sufficiently related to the relationship of landlord and tenant under the relevant lease.

Pimms Ltd v Tallow Chandlers Company [1964] 2 QB 547

183 In this case, the landlord refused consent to an assignment of the remaining term of a lease to a development company, which desired to acquire the lease because of its nuisance value, and to use its interest as a basis for inducing the landlord to enter into a joint venture for the redevelopment of the property. The court held that the landlord's apprehensions as to the motives of the assignee, and its future intentions, provided a reasonable basis for refusal (even though the tenant was not proposing to do anything other than exercise the rights conferred by the lease). In the course of his reasons, Danckwerts LJ referred to a passage from his own earlier decision (at first instance) in In Re Town Investments Ltd Underlease [1954] 1 Ch 301, in which he had adopted an observation of Lord Cozens-Hardy MR in Shanly v Ward (1913) 29 TLR 714, to the effect that it was not enough for a party asserting unreasonable refusal of consent to show that another person might have granted consent. So, as Danckwerts LJ observed, if the refusal of consent was within the range of decisions that could have been made by a reasonable man, it will not be found to be unreasonable, even though other persons might have taken a different view.

184 These observations are consistent with views expressed in other cases to the effect that when the reasonableness of a refusal of consent is challenged, it is not for the court to substitute its own view for that of the party refusing consent, as if sitting on appeal. Rather, the role of the court is limited to ascertaining whether the refusal of consent was within the range of views that might be formed by a person acting reasonably and having regard to his or her own interests to the extent that those interests are within the range of matters properly considered and are not extraneous to the contract.

Bickel v Duke of Westminster [1977] 1 QB 517

185 In this case, a corporate tenant sought the landlord's consent to an assignment of the lease of residential premises to a natural person who, unlike the corporate tenant, would be in a position to take advantage of statutory provisions which would confer a right to acquire the freehold upon expiry of the lease. The proposed tenant was beyond reproach, and proposed to use the premises for the permitted purpose. Accordingly, it was argued by reference to Houlder's case, that the landlord had no reasonable basis for refusing consent. The Court of Appeal rejected that argument. Lord Denning expressed the view that when a contract did not restrict the grounds upon which a party could reasonably refuse consent, the courts should not provide restrictions which the parties had not themselves imposed. Accordingly, in his view, no decision in this area should be regarded as a precedent binding on future courts. However, the other members of the court proceeded on a somewhat narrower view, holding that the reason for refusal was related to the personality of the assignee, and in particular the fact that she was a natural person, not a corporation.

International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] 1 Ch 513

186 This case concerned the refusal of an assignment of office premises from a tenant who had occupied the premises as its permanent offices, to a tenant who proposed to use the premises as serviced offices - that is, for short-term rent to others. The lease provided that the only permitted use of the premises was as offices.

187 The Court of Appeal drew a distinction between assignment to a tenant who proposed to use the premises for a purpose which was not prohibited by the lease, and the case before it, in which the assignee proposed to use the premises for the only purpose permitted by the lease. Because the assignee proposed to use the premises for the only purpose permitted by the lease, the court considered that the landlord was unreasonable in refusing consent, in part because the detriment to the assignor was extreme and disproportionate to that which would be suffered by the landlord if consent was granted.

188 With respect, the distinction between a use which is expressly permitted, and a use which is not prohibited, is a distinction of form rather than substance. The distinction drawn in this case is inconsistent with the earlier cases in which it was held that a landlord is justified in refusing consent for reasonable reasons arising from the relationship of landlord and tenant, and the use to which the incoming tenant proposes to put the premises, even though the proposed use is a use permitted by the lease.

189 Balcombe LJ (at 519 - 521) distilled seven general principles from a review of the earlier cases:

1. The purpose of a covenant against assignment without the consent of the landlord, such consent not to be unreasonably withheld, is to protect the lessor from having his premises used or occupied in an undesirable way, or by an undesirable tenant or assignee.
2. A landlord is not entitled to refuse his consent to an assignment on grounds which have nothing whatever to do with the relationship of landlord and tenant in regard to the subject matter of the lease.
3. The onus of proving that consent has been unreasonably withheld is on the tenant.
4. It is not necessary for the landlord to prove that the conclusions which led him to refuse consent were justified if they were conclusions which might be reached by a reasonable man in the circumstances.
5. It may be reasonable for the landlord to refuse his consent to an assignment on the ground of the purpose for which the proposed assignee intends to use the premises, even though that purpose is not forbidden by the lease.
6. Although there is a tension in the earlier authorities, the better view is that it is permissible to have regard to the consequences to the tenant if consent to the proposed assignment is withheld.
7. Subject to the preceding propositions, it is in each case a question of fact, depending upon all the circumstances, whether the landlord's consent to an assignment is being unreasonably withheld.

Ashworth Frazer Ltd v Gloucester City Council [2001] 1 WLR 2180

190 In this case, Lord Rodger adopted the broader view of the grounds upon which consent might be refused enunciated by Lord Denning in Bickel's case. A majority of the members of the House concurred in his judgment. Accordingly, at least for the purposes of English law, the broader view of the grounds upon which a party to a contract might reasonably withhold consent to the assignment of another party's interest can be taken to be established. On that view, it will be for the court in each case to determine whether the refusal was reasonable, taking account of all relevant facts and circumstances properly taken into account by the party refusing consent, unconstrained by prior authority.

Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596

191 This case is the leading High Court authority on the subject. The factual finding to the effect that the party refusing consent was motivated by a reasonable concern as to the capacity of the proposed tenant to pay the rent was upheld. Therefore, the outcome of the case was entirely conventional. However, the reasons given by Mason J (with whom a majority of the court concurred) established the following propositions:

1. The assignor carries the burden of proving that consent was unreasonably withheld.
2. In the context of a covenant relating to the consent of one party to an assignment of the interest of another, the word 'unreasonably' can be equated to 'arbitrarily', in the sense that consent was withheld 'without reasonable cause'.
3. The question of whether consent was unreasonably withheld is to be assessed subjectively, in the sense that the focus of inquiry is upon the actual reasons of the party refusing consent at the time of refusal, although (somewhat inconsistently) at trial that party may rely upon a ground not taken at the time of refusal.
4. A party refusing consent is not bound to give reasons, although failure to do so leads more readily to the inference that the refusal was unreasonable.
5. A refusal motivated by the purpose of depriving the other party of a benefit to which that party was entitled under the contract is unreasonable.
6. A doubt based on reasonable grounds as to the assignor's willingness or ability to perform its obligations under the contract is a reasonable basis for refusing consent.

Daventry Holdings Pty Ltd v Bacalakis Hotels Pty Ltd [1986] 1 Qd R 406

192 This case was concerned only with the costs of proceedings which were resolved prior to trial when the landlord reversed its earlier refusal to consent to an assignment. The point taken in relation to the costs of the proceedings concerned the question of whether the initial refusal was reasonable, having regard to the limited information made available to the landlord by the assignor. Thomas J observed that judicial review of the reasonableness of a refusal of consent will have both subjective and objective elements. The assessment will be subjective, in the sense that it will turn upon the information available to the landlord at the time consent was refused, but objective, in the sense that the court will apply the standards of the reasonable man to the assessment of the conduct of the landlord. Accordingly, if insufficient information is provided to the party whose consent is sought, the refusal of consent will be reasonable, although the maintenance of that refusal may become unreasonable if adequate information is later supplied.

Caltex Oil (Aust) Pty Ltd v Allan (Unreported, NSWSC, 10 June 1987)

193 In this case, a refusal of consent based upon concerns arising from previous disputes with the proposed assignee were held to be reasonable. Young J observed that if the ground for refusing consent is based upon the relevant relationship (in that case, landlord and tenant), and is reasonably based, the refusal will be reasonable. So, matters irrelevant to that relationship (such as, for example, the colour of the tenant's hair) will provide no basis for a refusal, but matters that are relevant to the relationship (such as the prior conduct of the tenant) may provide a reasonable basis for refusal.

Noranda Australia Ltd v Lachlan Resources NL (1988) 14 NSWLR 1

194 This case is of particular interest because, unlike most of the cases in this area, it does not concern the relationship of landlord and tenant, but concerns the relationship of joint venturers. However, the comparability of this case to the present circumstances is diminished by the fact that the joint venture was somewhat different in character, and at a different point in its life, to the joint venture in this case. In Noranda, the joint venture concerned the exploration and development of mineral tenements in Queensland. The joint venture was still in the exploration phase. Accordingly, much remained to be done pursuant to the joint venture, including the provision of substantial amounts of capital for exploration and mine development, if that was agreed, and many business decisions in respect of the future of the project remained to be made.

195 In that context, the reasons of Bryson J for concluding that there were reasonable grounds for refusing consent include the following propositions:

1. A clause providing that a party may assign its interest with the consent of the other party to the agreement, which consent is not to be unreasonably withheld, is not a clause exclusively for the benefit of either party.
2. The range of matters properly considered in relation to unreasonableness is not limited to interests affecting only the intended assignee, or only the interests of the party whose consent is sought.
3. Where the agreement does not expressly limit the matters which may be taken into account by the party whose consent is sought, provided that those matters are not extraneous to the agreement, it is for the party whose consent is sought to decide which matters will be treated as important and what weight will be given to them.
4. If the refusal of consent is challenged, the role of the court is not to review the process and decide whether the position adopted by the party refusing consent was correct, as if the court were hearing an appeal from that decision. Rather, the role of the court is to look at the whole process and decide whether, on the basis of the facts as they objectively exist, the withholding was unreasonable.
5. Because of the nature of a joint venture, and in particular the joint venture under consideration in the Noranda case, the range of factors properly taken into account by the party whose consent is sought is very broad indeed, and would extend beyond the factors relevant in a landlord and tenant case.
6. The process by which the party refusing consent made its decision and the matters which it considered are properly reviewed in an investigation of reasonableness.

196 Ultimately, Bryson J considered that if a joint venturer decides that it does not want the proposed assignee as a co-venturer, and makes that decision on reasonable grounds which actually exist, the court would not overturn that decision as unreasonable.

Tamsco Ltd v Franklins Ltd [2001] NSWSC 1205

197 This case concerned the refusal of consent to the assignment of a tenancy because of concerns in respect of the tenancy mix in a shopping centre. In the course of giving his reasons for upholding the refusal of consent, Young CJ made the following observations:

1. Although the party refusing consent may rely upon any ground available at the time of hearing, the essential task of the court is to identify and review the real reasons for refusal (perpetuating the apparent inconsistency in the approach identified by Mason J in Secured Income).
2. The fact that a party refusing consent may be motivated by a purpose which is collateral to the contractual relationship will not vitiate the refusal of consent if there is also a purpose which is relevant to the contractual relationship, and for which there are reasonable grounds.
3. The refusal of consent to an assignment to a creditworthy tenant carrying on a lawful and permitted use can be reasonable if based upon considerations relevant to the relationship between landlord and tenant (such as, in this case, the tenancy mix in the shopping centre).

Cathedral Place Pty Ltd v Hyatt of Australia Ltd [2003] VSC 385

198 This case concerned a provision in a hotel management agreement which provided that the owner of the hotel could not assign its interest in the hotel or the hotel management agreement without the prior written consent of the manager which was not to be unreasonably withheld. The manager refused its consent because of its concern that sale of the hotel might deprive the corporate group, of which the vendor was a member, of the capacity to perform obligations assumed by another member of that group by way of indemnifying the manager from prospective obligations to make payments under the hotel management agreement.

199 Nettle J concluded that the purpose of the assignment provisions in the hotel management agreement was to allow the manager to protect itself against the danger of an assignee who might not be a satisfactory substitute for the original owner of the hotel. Accordingly, the manager could take into account all matters relevant to the proposed assignee's capacity to perform the hotel management agreement, or which might diminish the manager's rights under that agreement. However, the manager could not refuse consent in order to acquire rights or benefits to which it was not entitled under the hotel management agreement. Accordingly, because the manager's purpose was directed to reinforcement of rights which were independent of the hotel management agreement (namely, rights arising under the indemnification agreement), it provided no reasonable basis for refusing consent. On the evidence, Nettle J concluded that the assignee would have the ability to satisfactorily perform the hotel management agreement, and there was therefore no reasonable basis for the manager to refuse consent to the assignment.

200 In the course of his reasons, Nettle J reviewed the relevant authorities and noted the apparent differences between the Australian and English authorities. However, in his Honour's view, those differences were more apparent than substantive, because in each jurisdiction, the emphasis must be upon the terms of the contract and the extent to which those terms reveal the supposed intention of the parties. Accordingly, the differences in the cases are best explained by the differences in the commercial circumstances which may reveal that the parties intended a broader or a narrower range of considerations might properly be taken into account.

201 The apparent inconsistencies in the cases to which I have referred support the observations made by Lord Denning in Bickel, which have been endorsed by Lord Rodger in Ashworth Fraser and Nettle J in Cathedral Place to the effect that in any case much will depend upon the proper construction of the contract and the commercial circumstances pertaining when consent is sought. Accordingly, the precedential value of any particular case is limited.

202 However, there do appear to be three areas of tension revealed by this review of the previous cases. The first concerns the extent to which a particular factor or purpose may be considered extraneous and therefore irrelevant to the relationship between the contracting parties, with the result that it provides no basis for refusing consent. While the principle that a party cannot refuse consent for the purpose of obtaining a collateral benefit not provided by the contract is clear from the authorities (such as the early surrender of the lease in Bates), the authorities are not entirely consistent in the way in which they deal with allied commercial interests of the party whose consent is sought. So, while in Houlder it was held that the landlord's interest in maintaining a tenant in adjoining premises was irrelevant, in Premier Confectionery, the landlord's interest in adjoining premises being occupied by the same tenant was considered reasonable and relevant, as was the landlord's desire for a desirable tenancy mix in Tamsco, and the landlord's desire that all tenants insure with the one insurer in Tredegar. On the other hand, in Cathedral Place, the hotel manager's interest in a contract which was closely related commercially to the hotel management agreement was held to be irrelevant and extraneous.

203 The second area of tension concerns the question of whether the party whose consent is sought may refuse consent even if the proposed assignee intends to do nothing more than exercise the rights lawfully conferred by the contract. With one exception, the cases consistently establish that consent may be refused even though the basis for refusal involves the exercise of an express contractual right - such as the right to carry out a particular use of the premises. The exception is the decision in International Drilling Fluids, which appears to have turned upon the form of the covenant as to the use of the leased premises, and the court's view of the commercial detriment that would be suffered by the assignor if consent was refused.

204 The third area of tension concerns the matters properly investigated by the court when reviewing the reasonableness of a refusal. On the one hand, the cases emphasise that the task of the court is to review the subjective decision taken by the relevant party at the time it was taken, by reference to the actual reasons for refusal and the material before that party. On the other hand, the cases also establish that a party refusing consent may rely upon any ground available up to the time of hearing, even though the ground was not relied upon at the time consent was refused. It seems to me that this tension is minimised if the court proceeds in the following manner. First, the court should identify the reasons why the party refused consent at the time consent was refused. If, having identified those reasons, the court finds that they were objectively reasonable (in the sense that a reasonable person could refuse consent for those reasons), that they were relevant to the relationship between the parties to the agreement, and that it has not been established that the factual premises upon which the refusal was based were erroneous, that will be the end of the inquiry - the other party will have failed to discharge the onus of proving that consent was unreasonably withheld. However, if the court does not conclude that there were relevant reasons which provided a reasonable basis for the decision to refuse consent at the time the decision was made, or that the reasons depended upon a factual premise which was false, it will be open to the party who refused consent to sustain that conclusion by reference to other reasons, supported by objective facts which exist at the time of hearing.

The framework of the issues to be considered and the onus of proof

205 It is appropriate to now address the issue which I foreshadowed in relation to the onus of proof, and which arises from the limited basis upon which the evidence of a number of the witnesses called by EDWF 2 was tendered. It is appropriate to deal with that issue in the context of my elucidation of the framework of the issues which I consider it is necessary for me to resolve in order to determine whether EDWF 2 has unreasonably withheld consent to a Change in the Control of EDWF 1.

206 The text of cl 11.7 at the JVA is set out at [45] above. That clause provides that if there is a Change in Control of a Participant without the prior written consent of the other Participant, the affected Participant is to be deemed to have offered to assign the whole of its interest in the Joint Venture to the other Participant.

207 The words in the clause in parentheses prevent a participant unreasonably withholding or delaying consent, or giving consent subject to unreasonable conditions. However, the operation of those words is expressly conditioned upon satisfaction of the proviso that:

... the new party in Control of the affected Participant must have the financial and technical resources and experience to adequately support the affected Participant ...

208 EDWF 1 asserts that EDWF 2 was not entitled to unreasonably withhold consent to the Change in Control. However, the obligations of a Participant in respect of the provision of consent are conditioned upon it being established, as a matter of objective fact, that the party taking control has the financial and technical resources and experience to adequately support the other Participant. Accordingly, there does not appear to me to be any doubt that EDWF 1 carries the obligation of proving those facts as a necessary element of any cause of action against EDWF 2 for unreasonably withholding consent.

209 The statement of claim has evidently been prepared on this basis. Paragraphs 29 and 30 of the statement of claim specifically plead satisfaction of the proviso, as a matter of objective fact. Those allegations have been denied by EDWF 2. Accordingly, issue has been joined in the question of whether EDWF 1 has discharged the burden of proving, as a matter of fact, that TSIL has the financial and technical resources and experience to adequately support EDWF 1.

210 EDWF 1 submitted that the question of whether or not the proviso was satisfied is a matter to be assessed objectively rather than from the perspective of the subjective perception of EDWF 2. I would prefer to express the matter in terms of the satisfaction of the proviso being a matter of objective fact, the burden of proving which lies on the party seeking consent. That is clear from the plain and ordinary meaning of the words used in cl 11.7

211 EDWF 1 also submits that the proviso exhaustively defines the rights and obligations of the parties in respect of the topics covered by its terms. Put another way, EDWF 1 submits that if it is established that TSIL has the financial and technical resources and experience to adequately support EDWF 1, it is not open to EDWF 2 to withhold consent on the basis of some deficiency in the capacity of TSIL to provide the financial and technical resources and experience to support EDWF 1.

212 I accept that submission. The parties have expressed a condition which must be satisfied before any obligation to consent to a Change in Control arises. That condition identifies a number of specified characteristics of the party taking control. It also specifies the standard which is to be applied to the assessment of those characteristics - namely, that they be adequate to support the affected Participant - in this case, EDWF 1. In that context, it would, I think, be perverse to attribute to the parties an intention that consent could reasonably be withheld by the application of some other or different standard to the assessment of those characteristics.

213 However, it is necessary to note the boundaries of this proposition. Because cl 11.7 is concerned with a Change in Control of a Participant, the characteristics which are identified by the proviso are those of the new controller. By contrast, cl 11.4, which is concerned with an assignment of the JV Interest of a Participant in the Joint Venture, focuses upon the characteristics of the assignee, who is to take on the role of Participant if the assignment proceeds. The proviso to cl 11.7 exhaustively defines the criterion or standard of assessment which is to be applied to the specified characteristics of the new controller - that is, its financial resources, technical resources and experience. The proviso requires that those characteristics be assessed by reference to the adequacy of support to be provided to the affected participant - in this case, EDWF 1.

214 The proviso does not provide an exhaustive statement of all issues relating to financial or technical resources or experience. A Change in Control might have an impact upon the financial or technical resources and experience available to EDWF 1, or to the Joint Venture generally, through some means other than the support to be provided to the Participant by its controller. That would be an effect which falls outside the terms of the proviso (because it does not relate to the controller's capacity to adequately support the Participant) which could therefore be taken into account by the party whose consent is sought, if it is sufficiently related to the Joint Venture to be properly taken into account. So, for example, the fact that the Change in Control will lead to Stanwell exercising an option to terminate the Service Agreement is a matter which falls outside the terms of the proviso, because it does not relate to the capacity of the new controller to support EDWF 1, but rather to the technical services available to the Joint Venture through the Manager. Thus, the proposition that the proviso exhaustively defines the rights and obligations of the parties in respect of the matters it covers does not answer the question of whether or not Stanwell's termination of the Service Agreement in the event of a Change in Control, is a matter properly taken into account by EDWF 2 for the purpose of determining whether or not to give consent to the proposed Change in Control. That is a question which I will address below.

215 The authorities to which I have referred establish beyond argument that a party who asserts that consent has been unreasonably withheld carries the burden of proving the facts which make that assertion good. EDWF 1 accepts that it carries the burden of proving EDWF 2 unreasonably withheld consent. However, somewhat inconsistently with that position, it submits that the definition of the issues relating to the reasonableness of EDWF 2's refusal of consent is to be found exclusively in EDWF 2's defence. Although, in the end, nothing much may turn on this, that is not the correct way of analysing the pleadings in this case.

216 The statement of claim sets out the matters upon which EDWF 1 relies in order to make good its claim against EDWF 2. In the statement of claim, EDWF 1 pleads the reasons why EDWF 2 refused consent and then pleads the reasons why the withholding of consent on those grounds was unreasonable. The defence joins issue with each of those assertions. The defence goes on to assert in different terms, the reasons why consent was withheld and asserts that the withholding of consent for those reasons was reasonable. By its reply, EDWF 1 joins issue with those assertions. At no point in the pleading process is there any common ground in respect of the reasons why consent was refused, or as to the assertions upon which EDWF 1 relies for the proposition that the refusal of consent was unreasonable (although there are, of course, various admissions of fact which are relevant to those assertions). At no point in the pleading process has EDWF 1 embraced or adopted the assertions made in the defence as to the reasons for refusal. If the issues are to be addressed strictly from the perspective of the pleadings, the success of the case of EDWF 1 must depend upon it making out the propositions upon which it relies for its cause of action, being the propositions asserted in the statement of claim.

217 The authorities to which I have referred establish that while the primary area of inquiry in a case such as this is as to the actual reasons for refusal at the time of refusal, it is open to the party refusing consent to rely upon additional grounds at the time of trial. The parties have joined issue as to the actual reasons for refusal. I have found that the best evidence of the actual reasons for refusal is to be found in the Griffin Board Paper provided to the directors of EDWF 2 at the time of their decision [71]. To the extent that the defence of EDWF 2 relies upon grounds which go beyond the reasons enunciated in the Griffin Board Paper, it is entitled to rely upon those grounds at trial, pursuant to the line of authority to which I have referred. However, it only needs to do so if the grounds for its actual refusal are established to be unreasonable. That is why the question of the reasonableness of the actual grounds of refusal must necessarily be the primary focus of inquiry.

218 In order to make out its cause of action, EDWF 1 must establish that EDWF 2's refusal of consent was unreasonable. There are, of course, a variety of ways in which that case could be made out, including by establishing that the grounds relied upon were extraneous to the matters properly considered under the contract properly construed, or that the grounds relied upon depended upon one or more false factual premises. But in each case the burden of proving the facts which lead to the conclusion that consent was unreasonably withheld lies upon the party making that assertion - in this case, EDWF 1.

219 In this case I have held that the Griffin Board Paper provides the best evidence of the reasons why EDWF 2 refused consent. If EDWF 1 wishes to establish the unreasonableness of that refusal of consent because, for example, the facts asserted in the Griffin Board Paper are false, it carries the burden of establishing the falsity of those facts. Accordingly, the limited basis of the tender of the evidence of the witnesses to which I have referred, namely, as not establishing the truth of the facts asserted, is only material if there is a pleading and evidence which establishes the falsity of those facts. However, EDWF 1 did not allege in the statement of claim, nor lead any evidence to establish the falsity of the facts asserted in the Griffin Board Paper. Rather, its attack upon the process of reasoning revealed by the Griffin Board Paper was upon the relevance of some of the matters asserted, and the ultimate conclusions drawn on issues such as technical resources, financial capacity and the like.

220 EDWF 2 does not carry the burden of proving the truth of the facts upon which it relied at the time of refusing consent, although if it wishes to rely upon additional reasons for refusal at the time of trial, it may carry the burden of proving the objective facts sustaining those reasons. Accordingly, the limited basis upon which the evidence of some of the witnesses called by EDWF 2 was received does not appear to me to advance the case of EDWF 1, although it could impede the case advanced by EDWF 2 in its defence, if it comes to that.

221 For these reasons, the framework of the issues to be determined can be described as follows. First I must determine whether the evidence establishes, as an objective fact, that TSIL has the financial and technical resources and experience to adequately support EDWF 1. If that condition is not satisfied on the evidence, EDWF 2 is under no obligation to consent, and EDWF 1's claim must be dismissed. However, if the condition is satisfied on the evidence, I must then determine whether EDWF 1 has established that EDWF 2 acted unreasonably at the time it withheld its consent for the reasons which I have found, being the reasons enunciated in the Griffin Board Paper presented to the board of EDWF 2. That question is to be determined by reference to the assertions made in the statement of claim. If the evidence does not make good the assertions made in the statement of claim, by reference to the reasons for the decision made by EDWF 2, the claim must be dismissed. However, if it is concluded that the refusal of consent was unreasonable by reference to the actual reasons for that refusal, it would then be necessary to determine whether any additional reasons asserted in the defence justify the refusal of consent, and whether the facts sustaining those reasons have been established.

222 Within that framework, it is necessary to determine the considerations which are relevant to the assessment of the reasonableness of the refusal of consent, and those that are irrelevant to that assessment. During the course of the trial, the parties joined issue with respect to the relevance of the following matters:

(a) Griffin's beliefs at the time of entry into the JVA;

(b) the proposed assignment of Queensland's interest in the JDA to TS;

(c) the proposal to add additional turbines to the Wind Farm;

(d) the prospect of competition between entities associated with EDWF 1 and entities associated with EDWF 2;

(e) the termination of the Service Agreement with Stanwell in the event of a Change in Control of EDWF 1.

(a) Griffin's beliefs at the time of entry into the JVA

223 EDWF 2 has pleaded Griffin's beliefs at the time of entry into the JVA, and in particular its belief as to the unlikelihood of competition between entities associated with Griffin, and entities associated with the ultimate parent of EDWF 1 during the term of the Joint Venture. It is, of course, clear that the subjective views held by a party at the time of entry into an agreement are irrelevant to the construction of that agreement, because the process of construction is an objective process (see for example Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40]). EDWF 2 does not rely upon its subjective beliefs for the purpose of construing the JVA. However, EDWF 2 asserts that its subjective beliefs at the time of entry into the JVA are relevant to the assessment of the reasonableness of its decision to refuse consent.

224 This submission must be rejected. The assessment of reasonableness is, by definition, an objective process, albeit that it is applied to the subjective or actual reasons of the party refusing consent. It involves the determination of whether the refusal of consent is a decision which is within the range of decisions that might be made by a person acting reasonably taking account of all relevant considerations. It follows that the subjective beliefs of the party whose consent is sought at the time of entry into the agreement are as irrelevant to the assessment of the reasonableness of the refusal of consent by that party, as they are to the construction of the agreement itself.

225 That is not to say that the objective facts known to the party refusing consent are irrelevant. Plainly they might be of the utmost relevance to the assessment of reasonableness. So, if the prospect of competition is a relevant consideration, the objective fact that EDWF 1 and entities associated with EDWF 1, had not competed with entities associated with EDWF 2, and had not manifested any apparent intention of competing could be a relevant consideration. Of course, the significance of that consideration would be heavily tempered by the express term in the JVA authorising the parties and their associates to compete with each other and with the Joint Venture itself (cl 3.10). However, while the objective facts known to EDWF 2 at the time of refusing consent might be relevant, subjective beliefs held at the time of entry into the JVA are irrelevant.

226 A significant component of the Griffin Board Paper presented to the board of EDWF 2, and therefore of its reasons for refusing consent to a Change in Control under the JVA, related to the simultaneous proposal to change the entity ultimately controlled by Queensland which was a party to the JDA. EDWF 1 submits that those considerations are irrelevant to the assessment of the reasonableness of the refusal of consent, because they are extraneous to the relationship between the parties to the JVA. I accept that submission.

227 I have referred to the various cases dealing with the question of whether a particular consideration is sufficiently relevant to the relationship between the parties to the agreement in respect of which consent was sought to be properly considered when assessing reasonableness, or, alternatively, so extraneous to that relationship as to be irrelevant. In those cases, the line of distinction is not always bright and clear. However, it does seem to me to be clear from the decisions in cases like Houlder, International Drilling Fluids, and Cathedral Place, that a separate agreement, between separate entities (albeit related) and dealing with quite separate projects is extraneous to the relationship of the Joint Venture constituted by the JVA.

228 Accordingly, I conclude that EDWF 2 was not entitled to have regard to the simultaneous proposal to change the party to the JDA when considering whether or not to consent to the proposed Change in Control of EDWF 1. It may therefore be necessary to assess whether the refusal of consent was within the range of reasonable conclusions open to EDWF 2 without regard to the JDA.

229 EDWF 1 submits that it is not permissible to have regard to the effect which a Change in Control of EDWF 1 might have upon any prospective expansion of the Wind Farm. It seems this submission was developed at a time when it was thought that the expansion under consideration was an expansion of the maximum generating capacity of the plant - that is, beyond its 80 megawatt capacity. The effect of a Change in Control on an expansion of that kind would be beyond the range of considerations properly taken into account in assessing the reasonableness of a refusal of consent, because the JVA is confined to the development of the Wind Farm, which is in turn defined by reference to the development of two generating plants of 40 mw capacity each. While the definition of 'Wind Farm' in cl 1 of the JVA refers to 'such other capacity as the Participants determine', it is to be remembered that the JVA was executed prior to the construction of the Wind Farm. Accordingly, in my opinion, the better view is that the reference to an alternative capacity to be determined by the Participants was a reference to an alternative capacity to be determined before or during the course of construction of the Wind Farm. That did not occur and the Wind Farm has been constructed to a total capacity of 80 mw. Any expansion beyond that capacity would, in my view, be beyond the terms of the current JVA, and therefore extraneous to the existing relationship of the parties under that JVA.

230 However, there was no evidence of any current proposal to expand the maximum generating capacity of the Wind Farm beyond 80 mw. Rather, the evidence was of a proposal to increase the number of turbines at the Wind Farm, so that the actual power generated from time to time, below the maximum output of 80 mw would be increased. The term 'Project' is defined by cl 1 of the JVA to include 'modification' of the Wind Farm. The construction of additional turbines to improve output within the constraints imposed by the maximum generating capacity of the plants (being 80 mw) seems to me to be quite appropriately described as a 'modification', and therefore within the scope of the current JVA. The effect of a Change in Control upon such a 'modification' is therefore a consideration which is relevant to the relationship between the parties to the JVA, and is properly taken into account in assessing the reasonableness of the refusal of consent.

231 EDWF 1 submits that the prospect of competition between entities associated with the new controller of EDWF 1, and entities associated with EDWF 2, is irrelevant to the assessment of the reasonableness of the refusal of consent to the proposed Change in Control. It relies upon the express provision of the JVA (cl 3.10) which entitles the Joint venturers to compete with each other or the Joint Venture. It relies also upon cl 11 of the Shareholders' Deed, in which the parties agree they make no promises or give no warranties as to their future plans. It argues that if the prospect of such competition is to be taken into account in assessing the reasonableness of the refusal of consent, the principle established by the authorities to the effect that consent cannot be refused for the purpose of depriving a party of a right conferred by the agreement would be infringed.

232 However, it is significant that the principle upon which EDWF 1 relies for this submission exists alongside a line of authority which also establishes that the manner in which a right conferred by the agreement might be exercised can be relevantly considered by the party whose consent is sought. So, in Premier Confectionery and Tamsco, the fact that the use proposed by the assignee was expressly permitted under the relevant lease agreements, did not preclude the landlord from taking account of that proposed use when considering whether or not to consent to the assignment. This is not a case like Bates where the party refusing consent has been motivated by a desire to deprive the other party of a right to which they were entitled - in that case the right to remain in occupation for the term of the lease. Nor is it a case in which it is alleged that consent has been refused in order to deprive EDWF 1 of the right to assign its interest, or to undergo a Change in Control or deprive entities associated with the new controller of the right to compete with entities associated with EDWF 2. This is a case which is analogous to those cases in which the change for which consent is sought would have an impact upon the manner in which rights conferred by the agreement are likely to be exercised - in this case, the right to compete. Put another way, there is no suggestion that the right of EDWF 1 to compete with EDWF 2 or the Joint Venture itself is to be curtailed. However, the proposed Change in Control would make it much more likely, indeed almost inevitable, that associates of EDWF 1 will exercise the right to compete with associates of EDWF 2. Accordingly, in my opinion, the increased likelihood of competition between entities associated with EDWF 1 and entities associated with EDWF 2 in the event of a Change in Control, is a matter properly taken into account in assessing the reasonableness of the refusal of consent by EDWF 2, to the extent that it is relevant to the relationship created by the Joint Venture as regards the Joint Venture. I will deal later in these reasons with the manner in which the prospect of competition between the associates of the parties to the Joint Venture could be reasonably expected to impact upon their relationship as joint venturers.

233 The evidence establishes that in the event of a Change in Control, Stanwell will exercise a right conferred by a provision of the Service Agreement to terminate that agreement because of the Change in Control. EDWF 1 submits that the termination of a relationship between another entity (Stanwell) and Manager is extraneous to the relationship between the parties to the Joint Venture, and therefore is not a matter permissibly taken into account in assessing the reasonableness of the refusal of consent.

234 However, that submission overlooks the fact that it is the very Change in Control for which consent is sought which triggers the capacity of Stanwell to terminate the Service Agreement pursuant to its terms. Thus, the termination of the Service Agreement would be the direct consequence of the Change in Control for which consent is sought. Further, the services provided under the Service Agreement, are provided to Manager on behalf of the Participants and for the purposes of the Joint Venture. It follows that the effect of a Change in Control upon the provision of services by Stanwell under the Service Agreement is a matter directly related to the Joint Venture itself, and to the relationship between the Participants in the Joint Venture. The Service Agreement can be distinguished from the JDA which was a separate agreement, between separate entities (albeit related) and dealing with separate projects. Therefore, the termination of the Service Agreement is a matter permissibly taken into account in assessing the reasonableness of the refusal of consent.

235 For the reasons I have given, Griffin's subjective beliefs at the time of entry into the JVA, the proposed change in the entity which is a party to the JDA, and any prospective expansion of the Wind Farm beyond a generating capacity of 80 mw are irrelevant to the assessment of the reasonableness of the refusal of consent. However, the prospect of a modification to the Wind Farm (in the form of adding turbines to increase generating capacity within the maximum of 80 mw), the prospect of increased likelihood of competition between entities associated with EDWF 1 and entities associated with EDWF 2 following the Change in Control, and the termination of the Service Agreement with Stanwell are matters properly taken into account in the assessment of the reasonableness of the refusal of consent, to the extent that they are relevant to the relationship created by the Joint Venture.

Has satisfaction of the proviso been established?

236 As I have observed, the proviso which must be satisfied before EDWF 2 is under any obligation to consent to a proposed Change in Control focuses upon the capacity of the new controller to adequately support EDWF 1. Thus, attention is directed to the relevant capacities of the new controller, and the extent to which those capacities are adequate to support EDWF 1. While the extent of that support may be affected by the capacities of EDWF 1, the focus of inquiry, when the proviso is under consideration, is not EDWF 1, but the new controller.

237 It is therefore of considerable significance that the Joint Venture is structured in such a way that its activities are conducted by the Manager on behalf of the Participants. Accordingly, neither party to the Joint Venture is obliged to itself conduct the Joint Venture, or to acquire the services required for the purpose of conducting the Joint Venture. Rather, that role and responsibility is discharged by the Manager. The effect of that structure is to diminish the need for support from an incoming controller - at least in respect of those matters within the responsibility of the Manager.

238 The activities of the Manager are supervised by the Management Committee created under the JVA. Accordingly, the capacity of a proposed new controller to appoint appropriately qualified and experienced representatives to the Management Committee, is relevant to the question of whether it has the technical resources and experience to adequately support the Participant. However, the quality of the qualifications and experience required of members of the Management Committee is to be assessed having regard to the fact that the Committee is not itself engaged in day to day management, and can be expected to have specialised advice and expertise made available to it in the form of consultants' reports and advice, as has occurred in the past. The Management Committee's role is essentially one of oversight and supervision.

239 It is also of significance that the capacity of the new controller to 'support' EDWF 1 is not unqualified, but is qualified by the criterion of adequacy. The criterion of 'being able to adequately support' appears to me to impose an objective criterion upon the capacities of the new controller to support EDWF 1. Because that criterion is objective, it is unrelated to the extent of the support provided by the outgoing controller. In other words, the criterion of 'adequate support' is to be distinguished from 'the same degree of support as provided by the outgoing controller'. The criterion of 'adequate support' imposed by the proviso could be paraphrased in the following terms:

Sufficient support to enable EDWF 1 to perform its obligations under the JVA.

240 The characteristics of the new controller to which that criterion is to be applied can be separated into two categories, namely:

241 Very little direct evidence was led as to the capacity of TSIL to provide adequate financial support to EDWF 1. The case essentially seems to be limited to the proposition that EDWF 1 is now debt free and the Joint Venture is cash-flow positive, with the result that no financial support will be required from the new controller of EDWF 1. As I have mentioned, it is admitted on the pleadings that the revenue to be derived from the Joint Venture in the future is likely to exceed the costs of participation. Apart from the tender of historical accounts as part of the trial bundle (the most recent being accounts for the period to end December 2007), no evidence was led as to the current financial position of TSIL, or as to what is proposed in relation to the revenue stream to be derived by EDWF 1 from its participation in the Joint Venture.

242 There is a fundamental difficulty flowing from this minimalist approach to the assessment of the financial capacity of TSIL to adequately support EDWF 1. The evidence establishes that Cash Calls are made by the Manager to the Participants from time to time. Those Cash Calls have included substantial amounts - one amount being more than $1 million to both parties, and another amount approximating $1 million to both parties. While it could be expected that such amounts could be met from the revenue stream to be derived from participation in the Joint Venture, that would only be so if the new controller was committed to the preservation of that revenue stream so as to be available to meet the commitments of EDWF 1. No evidence was given as to the attitude or plans of TSIL in this regard.

243 Because of the lack of evidence as to the likely use of the future revenue stream of the Joint Venture, it is of some significance that no evidence was given as to the likely future expenditure obligations of the Joint Venture. Further, no evidence was given in respect of the term of the contracts which have been entered into by the parties to the Joint Venture for the sale of the products of Joint Venture operations, or as to the maintenance cycle of the turbines, from which an assessment could be made of the likelihood of significant expenditure on maintenance or replacement of the turbines in the future. These are topics that have not been addressed by the evidence to any extent. Accordingly, in the absence of evidence as to the likely future use of the revenue stream, it is not possible to conclude that EDWF 1 will have the capacity to meet all future expenditure obligations from that source alone. Nor was any evidence led on the topic of the financial risks to which the Joint Venture and its Participants are exposed. While one might assume that the Joint Venture is insured against the calamitous loss of the turbines or plant comprising the Wind Farm as a result of storm or other damage, no evidence was led on that topic, nor as to the conditions of any such insurance cover, nor as to the amount of any excess that might have to be paid in the event of such a calamitous loss.

244 Further, there is evidence of a proposal to modify the Joint Venture by the addition of new turbines costing approximately $15 million which would in turn require a contribution of capital of approximately $7.5 million from each party. There is no evidence as to the capacity of TSIL to make a contribution of that order of magnitude. Such evidence as there is appears limited to the conclusions drawn in the Griffin Board Paper to the effect that following completion of the acquisition of the interest in EDWF 1, and satisfaction of other obligations, TSIL would have little or no apparent capacity to contribute significant amounts to the operation of the Joint Venture.

245 I do not overlook the fact that EDWF 1 is currently debt free, and could therefore presumably offer security to prospective lenders in the form of that part of its interest in the Joint Venture that is not encumbered. However, this is another area which has not been addressed to any extent by the evidence. I am therefore unable to draw any conclusions as to the capacity of EDWF 1 to obtain capital through this means. In particular, there was no evidence as to the impact which the charge granted by EDWF 1 to EDWF 2 to secure its Joint Venture obligations would have upon its capacity to borrow funds against the security of its interest in the Joint Venture.

246 It seems to me that in order to demonstrate that TSIL had sufficient financial resources to adequately support EDWF 1, the first matter that was required to be addressed by the evidence was the possible future financial needs of EDWF 1 over the period of the Joint Venture, and across a range of potential contingencies, including such things as Cash Calls, to meet the expenses of operating and maintaining the Wind Farm, modifications to the Wind Farm, changes in market conditions including the price at which the products of the Joint Venture could be sold, and the possibility of calamitous loss of the turbines and plant. From this assessment, conclusions could be drawn as to the likely future financial needs of EDWF 1, and in particular, whether it was capable of meeting those needs from its own resources. If it was not, the next matter that would require to be addressed is the capacity of TSIL to provide any support needed by EDWF 1 in meeting those financial needs.

247 As I have mentioned, no attempt was made to lead evidence addressing these issues, even though EDWF 2 has denied the express plea of EDWF 1 that TSIL has the financial resources to adequately support it. The various gaps in the evidence to which I have referred make it impossible for me to conclude that EDWF 1 has established this contested assertion on the balance of probabilities. Proof of that assertion is a condition upon which the obligation of EDWF 2 to consent to the proposed Change in Control depends. It follows that the failure of EDWF 1 to establish that assertion means that its claim must be dismissed, irrespective of the question of whether or not the refusal of EDWF 2 to consent was unreasonable.

248 This conclusion is sufficient to dispose of the case. However, it is appropriate that I set out my findings in relation to the various other matters in contest.

249 The second aspect of the proviso concerns the capacity of TSIL to provide the technical resources and experience necessary to support EDWF 1. The fact that the Joint Venture is run on behalf of the Participants by the Manager is of particular significance to the assessment of this limb of the proviso. The obligations of the Participants with respect to technical issues and experience are focused upon the evaluation of the performance of the Manager in addressing those issues through the medium of the Management Committee. Accordingly, TSIL's capacity to adequately support EDWF 1 in respect of technical resources and experience would be adequately demonstrated if TSIL has access to personnel who have sufficient general energy industry experience, and sufficient wind energy experience in particular, to assess and evaluate the technical issues which arise from time to time, for the purpose of enabling the Management Committee to assess the performance of the Manager and the significant decisions proposed by the Manager or the other Participant in respect of those issues.

250 The evidence to which I have referred establishes that TSIL will have access to personnel who have a very substantial body of experience in the energy industry generally, and will also have access to some personnel who have significant experience in the design, establishment and operation of wind farms. In particular, Mr Neil, Mr Johannesen and Mr Ware have that experience, and will be available to provide that experience if called upon. The persons proposed to be appointed to the Management Committee, being Mr David Jones and Mr Albert Jubian, both have significant experience in the management of power generation projects. Neither has any specific experience in the wind power sector, but there is no reason to think they would lack the capacity to evaluate advice from those with specific expertise in that sector. Accordingly, I conclude that it has been established that TSIL has the technical resources and experience to adequately support EDWF 1.

251 For the reasons I have given above, the issues in the case relating to the reasonableness of the decision of EDWF 2 to refuse consent should first be addressed by reference to the allegations made by EDWF 1 in the statement of claim on that subject. In that pleading, EDWF 1 asserts that there were essentially two reasons why the decision of EDWF 2 to refuse consent was unreasonable, being:

(a) there was no reasonable basis for its concerns about whether TSIL had the financial, technical resources and experience to adequately support EDWF 1; and

(b) it took into account the increased likelihood of competition between companies associated with EDWF 1 and companies associated with EDWF 2 when deciding to refuse consent, when such a matter was not properly taken into account.

252 It will be apparent from the views I have already expressed that I reject each of these assertions. I have concluded that it has not been established that TSIL has the financial resources to adequately support EDWF 1. Accordingly, it cannot be concluded that EDWF 2 was acting unreasonably when refusing consent on that ground. I have also held that it was open to EDWF 2 to take into account the increased likelihood of competition between associates of EDWF 1 and its own associates at the time of considering whether or not to refuse consent (and expand upon the reasons for that view below). Accordingly, it cannot be said that its decision to refuse consent was unreasonable on that ground.

253 It follows that, in my view, EDWF 1 has failed to make out its pleaded case as to the unreasonableness of the refusal of consent by EDWF 2.

254 However, lest it be argued elsewhere that EDWF 1 is not confined to its pleaded case, I will set out the views I have formed by reference to the broader issues canvassed by the evidence.

255 In the Griffin Board Paper which I have found provides the best evidence of the reasons for refusal of consent, concern is expressed as to the capacity of TSIL to meet any future substantial commitments, based upon the financial analysis set out in the paper. No attempt was made in the evidence or the argument to challenge that financial analysis, either by reference to the facts upon which it was based, or the processes of reasoning employed. The concerns enunciated in the Griffin Board Paper included concerns as to the refinancing of the project upon the expiry of the current financial arrangements. Again, no attempt was made in the evidence adduced on behalf of EDWF 1 to challenge the basis for those concerns or their reasonableness. Accordingly, I conclude that it was reasonable for a party in the position of EDWF 2 to refuse consent to the proposed Change in Control because of its concerns in respect of the financial capacity of TSIL, for the reasons enunciated in the Griffin Board Paper, excluding those reasons that relate to the JDA or which might be construed as relating to the possible expansion of the Wind Farm beyond a capacity of 80 mw.

256 I have given my reasons for concluding that TSIL has the technical resources and experience to adequately support EDWF 1, and for my conclusion that it is not open to EDWF 2 to apply some other criterion of assessment to the capacity of TSIL to support EDWF 1 in these areas. However, I have also concluded that this does not mean that EDWF 2 is precluded from taking account of the effect which a Change in Control would have upon the technical resources and experience available to the Joint Venture Participants, if that impact occurs through some means sufficiently connected to the relationship between the parties to the Joint Venture other than the extent of the support provided by the new controller to EDWF 1 in these areas.

257 The evidence establishes that personnel employed or associated with Stanwell have provided significant technical resources and experience to the Manager of the Joint Venture. Those resources and experience have been supplied both formally, pursuant to the Service Agreement, and informally, as a result of informal requests made by Mr Roberts, on behalf of the Manager. This is not support provided to EDWF 1. Accordingly, it is not support of a kind covered by the proviso to cl 11.7 of the JVA. The provision of those technical resources and experience is, on the evidence, of substantial benefit to the Joint Venture, and therefore to EDWF 2 as a Participant in the Joint Venture. Although the day to day operation and maintenance of the Wind Farm is carried out by the contractor who constructed the Wind Farm (Vestas), this has been described in evidence, which I accept, as an 'arms and legs' operation. On that analogy, the intellectual input has to be provided from other sources, and in the past, Stanwell has made a significant contribution in this respect. It was reasonable for EDWF 2 to conclude that those benefits would be lost in the event of a Change in Control. EDWF 1 does not challenge that conclusion, which is in any event established by the evidence.

258 The loss of the benefit of the technical resources and experience supplied both formally under contract and informally by personnel related to Stanwell is a matter which directly affects the relationship between the parties which was created by the Joint Venture as regards the Joint Venture. The loss of those benefits could not be said to be a matter extraneous to their relationship as Joint venturers - rather, it bears directly upon that relationship and the Joint Venture itself, and would be the direct consequence of the proposed Change in Control. Although the new controller of EDWF 1 will be in a position to direct some personnel who have particular experience in wind farm energy projects to assist the Joint Venture, notably Mr Neil, Mr Johannesen and Mr Ware, the technical resources and experience available from that quarter would be a significant reduction in the technical resources and experience presently available, both informally and formally, through Stanwell and its associates. The evidence also establishes that while it may not be impossible for the Manager to augment the technical resources and experience available to support the maintenance and operation of the wind farm, such expertise is not readily available, and might only be sourced with some difficulty.

259 Of course I exclude from consideration any technical resources or experience that might be required by the parties to the JDA. Focusing only on the Wind Farm, for the reasons I have given, it was reasonable for EDWF 2 to conclude that it was more likely than not that the proposed Change in Control would result in a diminution in the range and quality of the technical resources and experience available to the Joint Venture through the Manager. That conclusion would, of itself, have been sufficient to justify a reasonable party in the position of EDWF 2 refusing consent to the proposed Change in Control.

260 I have set out above my reasons for concluding that the increased likelihood of competition in the event of a Change in Control is a matter potentially taken into account when assessing whether refusal of consent to that Change in Control is reasonable, if sufficiently related to the relationship between the Joint venturers as regards the Joint Venture, notwithstanding the express provisions of the JVA which authorise competition (cl 3.10). I have also given my reasons for concluding, in that context, that the subjective beliefs of Griffin at the time it entered the JVA, the prospect of an expansion of the Wind Farm beyond 80 mw capacity, and the relationship between the parties to the JDA are irrelevant to the assessment of the impact of the Change in Control, and are therefore irrelevant when assessing the significance of the likelihood of increased competition.

261 However, the evidence does establish that, consistently with the views expressed in the Griffin Board Paper, there is a real prospect that issues might arise in the future operation of the Wind Farm which will necessitate negotiations between the parties to the JVA. Those negotiations might relate, for example, to a modification of the Wind Farm to add an additional six turbines. They might relate to the financing or securitisation of a party's interest in the JVA. They might also relate to the possibility of the joint negotiation of agreements for the sale of the outputs of the JVA.

262 The evidence also establishes, and I find, that negotiations on subjects of this kind would be likely to be enhanced if the parties to those negotiations were free to communicate with each other without concern that commercially confidential aspects of their business or plans for the future might give the other party, or associates of the other party, a competitive advantage in relation to other projects. For example, disclosure of a party's attitude in respect of the internal rate of return required to justify capital investment; its expectations as to future demand in the Western Australian energy market; as to future revenue likely to be derived from the sale of energy into the Western Australian market; or as to its perceptions of the risks which attend energy generation and the sale of energy into the Western Australian market might all be matters which would be regarded as commercially sensitive in the context of prospective competition. In such a circumstance, the parties to the Joint Venture would either have to take the risk of commercial damage arising from disclosure to the other party of commercially sensitive information, or restrict the nature and content of their communications in relation to potentially significant issues arising under the Joint Venture. The dilemma faced by each party in that circumstance is an aspect of their relationship under the Joint Venture as regards the Joint Venture, and can therefore be taken into account in assessing whether or not to refuse consent. In my view, it would be reasonable for a party in the position of EDWF 2 to form the view that the prospect of such a dilemma having an adverse impact upon the Joint Venture was sufficiently undesirable to reasonably conclude that consent to the Change in Control should be refused.

263 The defence contains a significant number of assertions as to the reasons why it was reasonable to refuse consent to the proposed Change in Control. Given the conclusions at which I have arrived in relation to the plaintiff's claims, it is unnecessary to go through each of those assertions in detail. A number of them are excluded from consideration by reason of the views that I have formed in respect of the irrelevance of Griffin's subjective beliefs at the time of entry into the JVA, and the JDA. Other assertions have been posed in the defence in terms which do not correspond with the construction which I have put upon the Joint Venture, and in particular, cl 11.7 - for example, because, in the context of assessing the capacity of TSIL to adequately support EDWF 1, the assertions are made by reference to a comparison with Stanwell, rather than by reference to the objective standard of adequacy.

264 Paragraph 14 of the defence asserts that the decision to withhold consent was not unreasonable for five reasons. The first reason concerns the adequacy of technical expertise. Although I would not couch my conclusions in quite the same terms as the allegations made in the defence, for the reasons I have given I have concluded that the diminution in the Joint Venture's access to technical resources and experience in the event of a Change in Control provides a reasonable basis for refusing consent.

265 The second reason concerns the adequacy of the financial resources available. Again, while I would not couch my conclusions in the terms of the defence, and in particular reject any assertion that the potential obligations arising under the JDA are relevant, for the reasons I have given I have concluded that the lack of demonstrated financial capacity to adequately support EDWF 1 provides a reasonable basis for refusing consent to the proposed Change in Control.

266 The third reason pleaded in the defence relates to the likelihood of increased competition. While I would again express my conclusions in rather different terms to those pleaded, for the reasons I have given, I have concluded that the likelihood of increased competition between entities associated with EDWF 1 and entities associated with EDWF 2 provides a reasonable basis for refusing consent.

267 The fourth reason pleaded in the defence relates to the inadequacy of the information provided in support of the request for consent to a Change in Control. To the extent that the information provided was inadequate to establish the financial capacity of TSIL to adequately support EDWF 1, this reason overlaps with the reason given related to lack of demonstrated financial capacity. To that extent, it provides a reasonable basis for the refusal of consent. However, in relation to matters other than those concerning financial capacity, the information provided to EDWF 2 appears to me to have been adequate for proper assessment and evaluation of the proposal for a Change in Control.

268 The fifth reason pleaded in the defence relates to the contemporaneous proposal to assign an interest in the JDA. For the reasons I have given, this reason is extraneous to the matters properly considered by a party in the position of EDWF 2, and therefore provides no reasonable basis for a refusal to consent to the proposed Change in Control.

269 For the reasons I have given, EDWF 1 has failed to establish the factual conditions which, on the proper construction of cl 11.7 of the JVA, are a pre-requisite to any claim to the effect that EDWF 2 has unreasonably withheld consent to the proposed Change in Control. Further and in any event, EDWF 1 has failed to make good the grounds upon which it asserts that EDWF 2 unreasonably withheld consent. Further, even if a broader view of the question of the reasonableness of consent is taken, unconstrained by EDWF 1's pleading, I have concluded that there are a number of reasons why a party in the position of EDWF 2 was and remains justified in refusing consent to the proposed Change in Control. Accordingly, these proceedings must be dismissed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : EDWF HOLDINGS 1 PTY LTD -v- EDWF HOLDINGS 2 PTY LTD [2008] WASC 275 (S)

BETWEEN : EDWF HOLDINGS 1 PTY LTD (ACN 114 267 748)

Costs - Special costs order - Principles to be applied - Whether proceedings were proceedings of 'importance' - Adequacy of evidence in support of application

Legal Practice Act 2003 (WA), s 215(2)

Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA)

Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (WA)

First Defendant : Mr M J McCusker QC & Mr A J Power

Second Defendant : Mr M J McCusker QC & Mr A J Power

1 MARTIN CJ: On 28 November 2008, I published reasons for my conclusion that the plaintiff's claim should be dismissed, and entered judgment to that effect: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275. As the first defendant foreshadowed an application for particular orders in relation to the costs of the proceedings, a timetable for the bringing of that application and for the exchange of submissions relating to it was established. I further directed, without objection, that the first defendant's application for a special costs order be determined on the papers without further hearing.

2 The first defendant applies for orders pursuant to s 215(2) of the Legal Practice Act 2003 (WA) (the Act) which empowers the court to make special costs orders in the circumstances specified in that section. The orders sought by the first defendant are orders to the effect that its costs be taxed without reference to the limits provided in item 3(b) of the relevant costs determination (Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA)) and items 7(b), 16 and 19(a) of the relevant costs determination (Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (WA)). The item covered by the 2006 costs determination is the item relating to the preparation of the defence. The items covered by the 2008 costs determination are items relating to the provision of discovery, getting up for trial, and fee on brief for junior counsel.

3 I will adopt the approach to s 215 of the Act which I enunciated in Heartlink Ltd v Jones [2007] WASC 254 (S). Neither party submitted that I should do otherwise. Accordingly, I approach the first defendant's application on the basis that there are two issues to be addressed, namely:

(a) is there a fairly arguable case to be put before a taxing officer to the effect that the first defendant's bill of costs should tax out at more than the limit which would be imposed by the relevant costs determination; and

(b) is the action of unusual difficulty, complexity, or importance?

4 It is convenient to address the second limb first, because the plaintiff concedes that I can and should conclude that these proceedings were proceedings of 'importance' within the meaning of s 215 of the Act. That concession was properly made. The proceedings concerned a transaction relating to a valuable asset - namely, a wind farm. Although there was no direct evidence as to the value of the wind farm, the evidence as to the cash flow it generated suggests that its value would exceed $100,000,000. The issues were also of considerable importance to the parties because of their competitive position in the market for the supply of energy in Western Australia. As the court's power under s 215 of the Act is enlivened by satisfaction of any of the factors of 'unusual difficulty', 'complexity' or 'importance' (see SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) [106]), it is unnecessary to address the factors other than 'importance' specified in the section.

5 My observations as to the importance of these proceedings to the parties informs my assessment of the first limb of the issues to be addressed under s 215 - that is, the issue concerning the arguable case for raising the limits imposed by the relevant items. This is because the significance of the issues at stake to the parties is relevant to the degree of work properly and reasonably done in preparing for and presenting the case at trial.

6 The first defendant relies upon an affidavit of its solicitor. He deposes to his estimate of the costs which were billed to the first defendant in relation to the particular items the subject of the application. However, the affidavit provides no details or particulars whatever to support the estimates which he has made. The affidavit does not depose to the professional time spent in relation to each item, or as to the practitioners involved, or as to the rates used when calculating the fees charged to the first defendant. It follows that the evidence is of little or no value, because it does not enable any meaningful comparison to be undertaken of the work allowed in the relevant item of the relevant costs determination, and the work actually performed. The affidavit also annexes invoices rendered by junior counsel. However, those invoices are equally unhelpful, as they do not identify the professional time spent on any particular aspect of the case, or the rate at which fees have been rendered.

7 Despite the porosity and inadequacy of the evidence proffered in support of the first defendant's application, as the questions to be addressed under s 215 of the Act are to be addressed as matters of impression rather than detailed evaluation (Heartlink v Jones (S) [20] and Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [No 4] [2006] WASC 317 (S) [13]), I will do the best I can on the materials available.

8 Item 3(b) of the 2006 costs determination allows a maximum amount of $3,630 for the preparation of the defence, assessed at 10 hours of senior practitioner time. Although the defence was not a particularly helpful document, in that it failed to enunciate with clarity the precise way in which the first defendant proposed the court should address the issues raised in the proceedings, it canvassed a wide range of factual issues relating to the operation of the wind farm and the reasons why consent to the transaction was refused. It seems to me to be fairly arguable that more than 10 hours of a senior practitioner's time was properly spent preparing and finalising the defence, and I therefore propose to remove the upper limit on that item for the purposes of taxation.

9 Item 7(b) of the 2008 determination provides a limit for the provision of discovery of $3,960. This has again been calculated on the basis of 10 hours of senior practitioner time. The evidence filed in support of the application reveals that the documents discovered comprised approximately eight lever arch folders of documents. Those documents covered a variety of topics including topics relating to the operation of the wind farm, and the reasons why consent to the proposed transaction was refused. Advice also had to be given in relation to legal professional privilege with respect to some of the documents discovered. Again, there seems to me to be an arguable basis for the proposition that more than 10 hours of the time of a senior practitioner was properly spent providing discovery in this case, and I therefore propose to allow taxation to proceed without reference to the upper limit imposed in respect of this item.

10 Item 16 of the 2008 determination provides that the maximum allowable for getting up case for trial is $39,650, which is calculated at 100 hours of senior practitioner time.

11 The solicitor to whom I have referred estimates that the costs billed to the first defendant in relation to getting up this action for trial exceed $250,000. However, that estimate suffers the various deficiencies to which I have referred, and is of little assistance.

12 I note that the trial was conducted over only two and a half days, and did not involve unusually complex issues of law. Cross-examination of the plaintiff's witnesses was limited, and a substantial part of the expert evidence tendered by the first defendant was inadmissible. Limited oral and written submissions were made. Evidence was adduced from a number of witnesses, but the number of witnesses was not unusual, nor were the topics addressed unusually complex or protracted.

13 On the basis of the materials made available to me, it is not possible for me to conclude that there is a fairly arguable case to lift the limit imposed by the costs determination in relation to getting up case for trial, and I do not therefore propose to make any order in that regard.

14 Item 19(a) of the 2008 determination provides that the maximum allowable for fee on brief for junior counsel is $12,760, allowing for three days preparation and the first day of trial. As I have indicated, the affidavit of the first defendant's solicitor annexes the invoices rendered by junior counsel for the first defendant. Those invoices, which cover all work done from the time of delivery of the brief until completion of the trial, exceed $200,000. However, as I have indicated, the form in which the invoices are rendered provides no basis for assessing the amount properly done by junior counsel, as such, as compared to providing advice to the solicitors in relation to their getting up the case for trial. The solicitor deposes that he estimates junior counsel spent seven days preparing for the trial. Given the character of the trial to which I have referred - namely, a trial of two and a half days' duration in which there was limited cross-examination of the plaintiff's witnesses and limited oral and written submissions, it is difficult to see how seven days could have been properly and reasonably spent by junior counsel doing work which would ordinarily be comprised within the fee on brief. Accordingly, the materials presently available to me do not persuade me that there is an arguable case to the effect that this item should tax at above the limit specified in the relevant costs determination, and I propose to make no order in relation to it.

15 For these reasons, I propose to allow the first defendant's application insofar as it relates to item 3(b) of the relevant costs determination 2006 (defence) and item 7(b) of the costs determination 2008 (discovery), but not otherwise.

16 The orders will therefore be that the first defendant's costs be taxed without reference to the limits imposed by item 3(b) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 and item 7(b) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008. As each party has been partially successful in relation to the issues raised by the first defendant's application, there should be no order as to the costs of that application.