15 The case advanced by Mr Bingham on behalf of Cavendish could be summarised as follows.
16 The geographical limits of the Marina are not limited to the moorings and the jetties. It is clear from Clause 2(b), (f) and (p) of the mooring agreement that the individual owner is responsible for the maintenance, repair and cleaning of the mooring and jetty. Therefore costs incurred in this regard cannot be costs incurred by Cavendish and Marina Operations. Therefore the reference to the Marina in Clause 3(l) must mean the Marina with the exception of the mooring and jetty.
17 Reference is also made to the definition of the Marina contained in Clause 3(k). The Marina contains the mooring, is both separate to and larger than it, and Cavendish freehold land is part of the Marina. Land that is the subject of the agreement with Melbourne Water is also part of the Marina, which includes freehold land and the licensed, or foreshore land. Reference is made to the affidavit of Mr Zuchowski. Thus, there are three divisions of land within the Marina - freehold, licensed and private. When land was sold to individual owners, they became subject to the covenant with Melbourne Water. The end owner became subject to the same covenants affecting all Marina land as Cavendish and Marina Operations. Reference is made to s.182 of the Planning and Environment Act 1987 and to Clause 3(k) of the mooring licence.
18 The definition of "the Marina" contended for by the Gainards is unconvincing. Taken to its extreme, it would mean that, for the back of house moorings, the Marina would consist solely of a pole sticking out of the water. Attempts to distinguish between a marina and a harbour lead nowhere. If the definition contended for by the Gainards were adopted, there are immediate practical difficulties in drawing boundaries. For example, it was conceded by Mrs Gainard that the security gate at the end of the jetty is part of the Marina, but it is difficult to stop there, because the gate is operated by a computer. The computer is elsewhere. Similarly, the cost of cleaning cannot be confined to the actual cleaning of a finger or jetty, because there must also be considered the cost associated with employment of the cleaner, including supervision and payment, and the cost associated with the office from which the cleaner is so employed, paid and the like. In addition, there is the difficulty of attempting to draw a boundary associated with, for example, public liability insurance. Thus, the definition contended for by the Gainards faces difficulties in relation to the drawing of both physical and non-physical boundaries. A marina is in fact a collection of facilities. It has an integrity. The impracticality of the Gainard's contention is again demonstrated by reference to the cost of power. The Gainards admit that power for the purposes of a light on their finger is a maintenance cost, but this is unmetered and there is no way of dissecting it from the overall power bill for the Marina. The same difficulty applies to insurance.
19 Reference is also made to the expert report of Mr Cayzer and the evidence of Mr Zuchowski. Reference is also made to various decisions, basically planning cases, in which the meaning of the word "marina" was considered.
20 Turning to the meaning of the word "maintenance", again reference is made to various authorities, including cases such as Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSW LR 33. In the context of the present case, maintenance does not mean simply filling in holes in the jetties. It means the keeping of the Marina in a condition which allows it to serve the purpose for which it exists. It means keeping it in good working order, and this can involve replacement - see In the Estate of William Just, Deceased (No. 2) (1974) 17 SASR 515. Examination of the 29 questions or categories of expenditure shows that without these various items there would be no marina. It would simply be a pole sticking out of the water. A marina would not exist without such things as electricity, an office, vehicles, patrol boats and the like. There has to be an allowance for depreciation because the correct meaning of the word "maintenance" requires the replacement of capital items, and there have to be amounts available in order to attend to such replacements when required. In relation to the 29 categories, Cavendish has a very large margin with which to play in order to justify the fees for a year in question. The Gainards have already admitted that some of the items represent proper costs of maintenance. Whilst the Tribunal is asked to answer each of these 29 questions, a simple "yes" or "no" is all that is required in relation to each category of expenditure and any apportionment can be dealt with at the next stage of the case should this become necessary.
21 In relation to the word "costs", this is the equivalent of "expense". Each is a word or wide import. "Expense" means the spending of money or the using up of resources. This is an ongoing concept, concluding the day-by-day destruction of the value of an asset such as a jetty. Thus, the destruction of a jetty is a cost. Equally, the payment of an employee is a cost. The term also includes money to be paid out and money that is in the course of being paid out.
22 In relation to arguments concerning whether or not an additional 10 percent can be added to the dredging charges, it is submitted that the three lines below Clause 3(l)(ii) should not be indented. They are clearly intended to apply to Clause 3(l)(i) and (ii). They give to Cavendish the power to apportion, and, if they applied only to (ii), it would mean that there was no power to apportion in relation to the dredging charges. The purpose of the additional 10 percent is to give to Cavendish some recompense for its trouble. This is similar to a provision in a building contract for "cost plus 10 percent".
23 In relation to the manner in which the agreement is to be interpreted generally, reference is made to the decision of the Court of Appeal in MLW Technology Pty Ltd v May [2005] VSCA 29. Issues as to meaning are to be considered in the setting in which the contract was executed. Business common sense must not be overlooked. Particularly in the case of commercial arrangements, a narrow approach is not warranted. Accordingly, as stated in that case, the first question is to determine what the commercial purpose of the contract was and the background against which it was made. The contract in the present case was between business people or entities. In such a situation, a court should not be the destroyer of bargains.
24 In relation to the 5 further questions (set out in paragraph 2 of these reasons), these should not be answered. They can only be asked and answered in the context of the contract, and take one straight back to it. They are worded in the present tense take, for example, question 1 - "Which company may charge maintenance fees under the relevant clause of the mooring licence?". That can only be answered by using the terms of the contract and by saying "Cavendish Properties, its successors in title and permitted assigns". Thus, the identity of the legal person entitled to charge the maintenance fees can change from time to time and it is irrelevant and of no assistance that the person presently entitled to charge such fees is Marina Operations.
25 Questions (B) and (C) are equally futile. They revolve around the word "payable" which is a term not used in the agreement. In fact, the dredging charges referred to can be "payable" by a number of entities, and, regardless of the assignment, remain payable by both Cavendish and Marina Operations. Thus, there could be a number of answers to these questions.
26 If the additional questions are to be answered, it is submitted that Marina Operations is a permitted assign of Cavendish. It is clear that the business operations were transferred to it in 1996. An assignment of that type is not required to be in writing. However, there was a written assignment, part of which is the licence, but the licence is not the entirety of the assignment.
27 The agreement in evidence between Cavendish and Marina Operations recites the assignment of the business and makes manifest the intention of the parties that the business with all its rights and liabilities be transferred. Thus, there is no doubt but that the business was transferred. This is also clear from the transfer of the agreement with Melbourne Water, from the Marina rules, and from the evidence. Marina Operations did the work, sent out the invoice, and this was paid by the Gainards.
28 This point is further illustrated by reference to the mooring licence. Both Clauses 3(a) and (b) must be examined, and not just 3(b). The effect of 3(a) is that, for example, in 3(l), "Cavendish" should be read as "Cavendish, its successors in title and permitted assigns". Clause 3(a) envisages the transfer of the business. Clause 3(b) deals with the quite separate topic of the transfer of the licence. Were this not so, the licence would already have determined by reason of the operation of Clause 3(k), as it has been Marina Operations, and not Cavendish, that has been exercising the option referred to therein. The logical extension of the argument advanced by the Gainards would be that, as Cavendish did not exercise the option, the licence is at an end. Therefore the owners would have no obligation to pay for any work done and would escape "scot-free". Reference is again made to the decision in MLW Technology, wherein the well-known principle is cited that clear words are needed to rebut the presumption that a contracting party does not intend to abandon any remedies available. Clause 3(a) provides no basis for the argument that the intention of the agreement was that, if the business was assigned, unless notice was given in writing to the owners, there was no obligation on their part to pay for work which had been done for them. Clause 3(b) is not the only mechanism for the assignment of the licence, which can also be assigned as part of the business.
29 If this is wrong, and Clause 3(b) provides the only mechanism by which the licence can be assigned, what then is the purpose of the notice to be given? It is to enable the owners to know to which party to make payment, and thus to receive a full and complete receipt. If no notice is given, it does not mean that the debt cannot be collected, because the assignment would still be effective in equity. The remedy of the debtor is to stay the action so that both the assignor and assignee can be made party to it. Clause 3(b) is not there to impose "sudden death" in the absence of notice. It is there to ensure that the licence holder knows which entity to pay.
30 In any event, if notice of the transfer is required, it was in fact given. Mrs Gainard gave evidence that, in July 2001, the mooring was allocated to the Gainards by Marina Operations and it was with Marina Operations that she dealt. She was invoiced by and paid Marina Operations. The business was in fact being conducted by Marina Operations, and she must have known this. In any event, there is nothing to prevent notice of the transfer being given at a later date, and certainly it has now been given and the Gainards have knowledge of it. In summary, amounts payable by Marina Operations can constitute the licence fee.
31 As a matter of practicality, the assignment point is a futile one. If the term "Cavendish" does not include a reference to Marina Operations, the whole licence fee procedure concerning which there is a dispute does not involve Cavendish, and the proceeding ought to be dismissed. Furthermore, the position of the Gainards has no merit, in that they are seeking to take the benefit of the works and services supplied to them and then take the position that they are not obliged to pay for them. Taking such a position is inequitable and likely to be productive of further legal disputes between the parties, which may be, for example, on a quantum meruit basis.