Hive Empire Pty Limited v MultiRational Pty Limited

The facts

1. Before setting out the Court's specific findings of fact (no facts having been in dispute), the general background to the dispute can be briefly stated. Hive operates a website (finder.com.au) which enables consumers to compare different products and services. Hive entered into an agreement with the defendants whereby the defendants were to provide "back office" support for Hive's operations, using staff and premises in the Philippines. In the events which happened, the Employees were those staff.
2. After this arrangement had been operating for some time, the Employees resigned en masse and went to work for an entity related to Hive in the Philippines. In these proceedings the defendants claim that in breach of the agreement between Hive and the defendants, Hive enticed the Employees to terminate their employment with the defendants. Hive commenced these proceedings in order to determine what, if any, liability it may have to the defendants. The defendants filed a cross-claim for damages and the quantum meruit. In the Philippines Proceedings, MultiRational Corp sues the Employees for damages said to arise from the breach of their employment agreements with MultiRational Corp by resigning to go to work for Hive's Filipino company.
3. In September 2015, Hive and the defendants entered into what was described as an "International Office Establishment Agreement" (the "Agreement"). In the Agreement Hive was described as the "Client" and the defendants were described as the "Provider". The Agreement included: "1. Recitals 1.1 Provider, being a provider of professional services in the Philippines / Cambodia, wishes to provide Service to Client. 1.2 Client wishes to access the Service offered by Provider for the purpose of establishing one or more offices in the Philippines / Cambodia and hiring employees who will work in those offices. … In this Agreement, unless the context requires another meaning: … "Hosted Employee" means any person hired by Client under this Agreement. … "Provider Staff Member" means employees (including Hosted Employees of Client or any other client) or contractors engaged by Provider or any parent, subsidiary or related entity." … 4. Obligations … 4.2 Notwithstanding Client's right to transition its Hosted Employees to an incorporated entity registered by Client using the services of Provider, neither Client nor its officer's employees and agents will persuade or attempt to persuade any Provider Staff Member to terminate their contracts or employment, nor will Client engage with such persons or candidates offered for employment in any capacity or manner. 4.3 Each breach of Clause 4.2 shall entitle Provider to compensation of twelve months' salary for an equivalent position at salary rates applicable in the labour market at the time, with the rate determined by Provider. … 5.7 Provider shall increase its fees on 1 March each year in line with the CPI of the Philippines / Cambodia for the previous calendar year. 5.8 Provider will maintain ethical pricing standards for its services which are based on the cost and risk of providing each element of the Service and which are the same for all Clients."
4. Between September 2015 and June 2017, the defendants provided services to Hive under the Agreement.
5. On 12 May 2017, the Employees tendered their respective resignations to the defendants and went to work for Hive. The defendants allege that Hive repudiated the Agreement on or about 16 May 2017.
6. Hive commenced these proceedings against the defendants on 15 August 2017.
7. By its amended statement of claim filed on 22 November 2017, Hive sought: "1. A declaration that the Agreement (if any) purportedly entered into between the Plaintiff and the Defendants and signed on behalf of the Plaintiffs on 24 September 2015 and headed "International Office Establishment Agreement"("Agreement") is void and was void ab initio. 2. In the alternative to paragraph 1 above, a declaration that the Agreement (if any) is governed by the law of New South Wales. 3. In the alternative to paragraph 1 above, a declaration that clause 4.3 of the Agreement is void as a penalty and is severed from the Agreement (if any). 4. In the alternative to paragraph 1 above, a declaration that clause 4.3 of the Agreement is void for uncertainty and is severed from the Agreement (if any). 5. In the alternative to paragraph 1 above and further to paragraphs 3 and 4 above, a declaration that clause 5.7 of the Agreement (if any) is void for uncertainty and is severed from the Agreement (if any). 6. In the alternative to paragraph 1 above and further to paragraphs 3 to 5 above, a declaration that clause 5.8 of the Agreement (if any) is void for uncertainty and is severed from the Agreement (if any)…"
8. By cross-claim filed on 25 October 2017, the defendants sued Hive for, among other things, breach of the Agreement based on an allegation that Hive had enticed the Employees to terminate their employment by the defendants. This claim continued to be part of the defendants' cross-claim, which was ultimately crystallised in an amended statement of cross-claim filed on 12 November 2018. That iteration of the pleading sought: "1 An order that the Cross-defendant pay the Cross-claimants the amount due and owing under the International Office Establishment Agreement being a total of $68,519.93. 1A In the alternative, the Cross-defendant pay to the Cross-claimants the sum of $20,579.32, being amounts paid by the Cross-claimant in providing services to the Cross-defendant. 1B Further, or in the alternative, the Cross-defendant pay to the Cross-claimant the sum of $47,940.61, for services provided by the Cross-claimant to the Cross-defendant. 2 An order the Cross-defendant pay to the Cross-claimants damages for breach of the International Office Establishment Agreement in the amount of $226,680.04. …"
9. The claim for breach of contract was pleaded (as it had been in the original cross-claim) as: "19 During May 2017, the Cross-defendant enticed the Employees of the Cross-claimant to terminate their employment by the Cross-claimant. 20 The Employees tendered their resignation on or about 12 May 2017. 21 The Cross-defendant has breached the IOEA by enticing the Employees of the Cross-claimant to terminate their employment by the Cross-claimants. 22 The Cross-claimants have suffered damage as a result of the Cross-defendant enticing the Employees to terminate their employment. PARTICULARS Clause 4.2 of the IOEA. 23 Pursuant to clause 4.3 of the IOEA, the Cross-defendant must pay to the Cross-claimant damages calculated in accordance with the IOEA. PARTICULARS Clause 4.3 of the lOEA specifies the Cross-ciaimants are entitled to compensation equivalent to 12 months' salary of each employee enticed by the Cross-defendant to terminate their employment in breach of clause 4.2 of the IOEA, calculated as follows; Name 12 month salary (in Philippine peso) Philippine peso to Australian dollar as at 17 May 2017 Total - AUD Jeza Mae Parado Alpajora PhP1,056,000 PhP34.91 =AUD1 $30,249.24 Morris Jencen Orihuela Chavez PhP1,182,000 PhP34.91 = AUD1 $33,858.48 Era Calaycay De Villa PhP900,000 PhP34.91 =AUD1 $25,780.56 Remiel Cerda Evangelio PhP1,116,000 PhP34.91 =AUD1 $31,967.88 Carl Anthony Relieve Mabugay PhP960,000 PhP34.91 =AUD1 $27,499.32 Harry Harvey Roy Daligdig Mamba PhP1,020,000 PhP34.91 =AUD1 $29,217.96 Vina Grace Maturan Sadia PhP960,000 PhP34.91 =AUD1 $27,499.32 GST $20,607.28 Total $226,680.04

24 The Cross-claimants claim interest on the amount of $226,680.04 calculated pursuant to section 101 of the Civil Procedure Act."

1. In April 2018 (after issue had been joined between Hive and the defendants in these proceedings), MultiRational Corp initiated a process against the Employees in the Philippines' National Labor Relations Commission for a claim that was described as "money claims, compensation for full commercial loss caused by Employees' collusion with our client". The initiating document also specified a claim described as "failure to comply with 30 days' notice prior to resignation under Article 285 of Labor Code". It included a notice to the Employees "inviting" them to a "conciliation‑mediation conference", and stating that: "Your presence and cooperation are necessary for the purposes of resolving the issues within 30 days from preliminary conference per department order number 151-16, series of 2016 IRR of RA 10396".
2. Although there was no expert evidence about Filipino law before me, I am satisfied from the terms of the initiating document itself that it invoked some form of compulsory conciliation or mediation. The parties before me assumed, although there was no expert evidence, that such a mediation or conciliation was a prerequisite to the commencement of civil proceedings in the Philippines. There was no evidence as to the outcome of the "conciliation-mediation conference", but to the extent it is necessary I readily infer from the commencement of the Philippines Proceedings that it was unsuccessful, at least in part.
3. On 30 August 2018, MultiRational Corp also filed a complaint which gave rise to a criminal investigation by the Republic of the Philippines, Department of Justice, National Prosecution Services, against the Hive Executives in connection with the circumstances in which the Employees left the employment of the defendants. I do not need to refer any further to the criminal complaint because the uncontested evidence before me was that MultiRational Corp has withdrawn that complaint.
4. Although there is no evidence directly on point, I am satisfied that sometime in the first months of 2019 MultiRational Corp commenced the Philippines Proceedings against the Employees. While the initial originating process for the Philippines Proceedings was not in evidence, there were court documents which gave the case number as "R-MKT-19-00905-CV" and which refer to orders dated 4 June 2019 for the filing of what was described as an "Amended Complaint". I infer from those matters (including "19" in the case number) that the Philippines Proceedings were commenced in 2019 on some date before 4 June 2019.
5. The Amended Complaint in the Philippines Proceedings includes (emphasis in original): "2. Defendants, HARRY HARVEY ROY MAMBA ("Mamba"). VINA GRACE SADIA ("Sadia"), ERA JUNE DE VILLA ("de Villa"), REMIEL EVANGELIO ("Evangelio"), JEZA MAE ALPAJORA ("Alpajora"), and CARL ANTHONY MABUGAY ("Mabugay") (collectively "Defendants") are Filipinos, all of legal age, with office address at Suite 16-17, Level 7 Lepanto Bldg., 8794, Paseo de Roxas, Bel-Air Village, Makati City, where they may be served summons and other process of this Court. Defendant MORRIS JENCEN CHAVEZ ("Chavez") may be served summons and other process of this Court in his last known address at 19 Saint Anne St, HDLCH, Barangka, Marikina City. 3. MultiRational is in the business process outsourcing (BPO), seat leasing, staff hosting business and provides these and related services for foreign companies doing business in the Philippines. 4. Finder.Com Philippines ROHQ ("Finder PH") is a Regional Operating Headquarters here in the Philippines of Hive Empire Pty Ltd. ("Finder AU"), a corporation duly organized under the laws of Australia, doing business here in the Philippines. Finder AU, was a former client of MultiRational 5. The Defendants were former employees of MultiRational providing services to Finder AU. During their stint with MultiRational, Defendant Chavez was employed as a Full Stack Developer while Defendant Mamba as a Front End Developer, Defendant Sadia as a Junior Developer while Defendant De Villa as a QA (Quality Assurance) Engineer, Defendants Evangelio and Alpajora as Front End Developers, and Defendant Mabugay as a PHP (PHP: Hypertext Preprocessor) Developer. 6. Defendants' employment contracts stipulate: "You may terminate your employment with the Company by giving thirty (30) days written notice of termination, as required under the Labor Code of the Philippines. Under no circumstances may you reduce your notice period by any means including application of leave credits. Failure to comply shall hold you liable for damages which the Company will enforce." … 11. On 16 May 2017, Defendants were reminded to fulfil their remaining 30 days after their resignation. Copies of the resignation reminder email made by MutliRational addressed to the Defendants dated 16 May 2017 are attached herewith as Annexes "J-1", "K-1", "L-1", "M-1", "N-1", "O-1" and "P-1" respectively. This notwithstanding, the Defendants persisted in abandoning their respective posts. They were last seen at MultiRational's office on the following dates, to wit: 11.1 Chavez, Mamba, Sadia, De Villa and Evangelio were last seen in the office of MultiRational on 12 May 2017. 11.2 Alpajora and Mabugay were last seen at the office of MultiRafional on 15 May 2017, 12. On 18 May 2017, MultiRational, at its Australia office received Summons and an Affidavit dated 16 May 2017 filed with the Supreme Court of New South Wales. The declaration in such Summons is that the International Office Establishment Agreement between Finder AU and MultiRational is void. A copy of the International Office Establishment Agreement between Finder AU and MultiRational dated 28 September 2015 is attached herewith as Annex "R". A copy of the Summons and Affidavit dated 16 May 2017 is attached herewith as Annexes "R-1" and "R-2", respectively. … 15. In an Affidavit filed by Finder AU in the case pending before the Supreme Court of New South Wales for the annulment of contract of Finder AU and MultiRational, it stated that all of the defendants were engaged by Finder AU as sub-contractors at on or about June 2017. This means that all of the Defendants lied and employed deceit on their resignation letters, in particular but not limited to Defendant Chavez who reasoned out, albeit feigned, that his long commute to MultiRational work place is prejudicial to his health only to transfer employment to a company (Finder AU) the location of which is only 600 meters apart from his previous employer's office (MuItiRational). The defendants were allegedly hired as sub-contractors by Finder AU in June 2017, to wit: "7. On or about June 2017, Hive contracted all 7 staff referred In to paragraph 4 above, to work for Hive as sub-contractors. XXX Finally, Defendants were supposedly employed by Finder PH on 16 May 2018, to wit: 8. On or about 16 May 2018, Hive engaged Morris Jencen Orihuela Chavez, Jeza Mae Alpajora, Era Calycay De Villa, Remiel Cerda Evangelio, Carl Anthony Relieve Mabugay, Harry Harvey Roy Daligdig Mamba, and Vina Grace Maturan to work as employees of Finder.Com Philippines ROHQ." XXX and these facts are substantiated by the statements to this effect made by Linda Lum, Company Secretary of Finder AU as contained in her Affidavit dated 22 May 2018, copy of which is attached herewith as Annex "U". … 18. Taken together, the facts as essayed above are summarized as follows: The Defendants collectively and successively resigned from MultiRational on the same week of May 2017. The immediately succeeding week, the Defendants started to not show up at MultiRational's office, abandoning their respective posts notwithstanding their obligation to continue rendering work for 30 days reckoned from their resignation. Also on that same week, MultiRational received the summons for the annulment of contract case filed by Finder AU (Annexes "R-1" and "R-2"). The following month, the Defendants supposedly got employed as sub-contractors by Finder AU and on that same month its local operating headquarters, Finder PH was established. Also in the same year, if was found out that Finder AU is now a client of the competitor company, Pro Source. 19. The seemingly innocent, above quoted statements of Linda Lum and Defendant Chavez gave rise to the conclusion that there was poaching utterly committed by the Defendants against MultiRational. It is manifest that they all agreed to by-pass MultiRational, remove Finder AU as one of MultiRational's clients and deprive MultiRational of lawful fees and commercial profits that it stands to gain from the services that it provided and will continue to provide Finder AU had the abandonment and poaching not transpired. These facts and events clearly and undeniably show that the defendants acted In conspiracy with each other. … 24. Because of such abandonment and poaching made by the Defendants, MultIRational suffered monetary loss in the amount of Php3,003,000.00, which should be paid jointly and solidarily by all defendants, representing MultiRational's prospective unrealized income had the abandonment and poaching not transpired. A spreadsheet detailing the computation of the prospective unrealized income of MultiRational is attached herewith as Annex - "W". … 26. Pursuant to the above-cited contracts and legal bases, MultiRational seeks to collect from all the defendants the amount of money equivalent to its prospective unrealized income had the abandonment and poaching not transpired. … RELIEF Wherefore, premises considered, Plaintiff MultiRational respectfully prays this Honorable Court that after due hearing, Judgment be rendered ORDERING the Defendants to jointly and severally pay MultiRational the following: a) the amount of Php3,003,000.00 as actual / compensatory damages. b) The amount of Php500,000.00 as and for attorney's fees aside from Php8,000.00 for every appearance of undersigned counsels before this Court; and, c) Costs of this suit. Plaintiff further prays other relief which are just and equitable under the premises."
6. Based upon an acceptance between the parties that Filipino pesos 1 million is approximately A$28,623, the amount of Filipino pesos 3,003,000 claimed in the Philippines Proceedings against the Employees is approximately A$86,000.
7. On 21 June 2019, Hive's solicitors wrote to the defendants' solicitors enclosing a Notice of Offer of Compromise under the Rules (the "Offer"). Their covering letter included: "1. We refer to the above proceedings and attach our client's Notice of Offer of Compromise. You will see that our client offers your clients the sum of $30,000 on a purely commercial basis. 2. It is difficult to see how your clients will succeed in their claim for breach of contract, where they have failed to adduce any evidence that our own client breached the contract. Your clients instead appear to assume that the Court will reject the evidence of 6 of your clients' former employees and instead, embark on pure speculation. Your clients' claim for breach of contract is hopeless and there is no objective or rational basis for believing that it will succeed. 3. Even if your clients were to succeed on a quantum meruit basis, we fail to see how its damages could exceed $30,000, even if all of the evidence adduced by your clients is accepted. Your clients' claim upon a quantum meruit appears to include, for example: 3.1 the cost of leasing premises pursuant to a lease which your clients entered into before ever dealing with our client; 3.2 payments of salary to employees after they had ceased to work for your clients; 3.3 payments made to Volenday Recruiting where Steve Burns stated in his email to Fred Schebesta dated 26 August 2015 that: "… There are no additional charges for recruitment … Our fee includes … sourcing, screening & recruiting of employees"; and 3.4 payment of GST to Volenday Recruiting where no GST is payable because Volenday operates and is incorporated in the Philippines. Should your clients not accept our client's offer, our client will rely on this letter and the enclosed Notice of Offer to seek its costs in the proceedings on an indemnity basis."
8. The Offer was: "1 The Plaintiff offers to compromise the whole of all claims in the proceedings on the following terms: (a) The Plaintiff is to pay the Defendants the sum of $30,000 within 28 days of acceptance of this offer. (b) The Statement of Claim be dismissed. (c) The Statement of Cross-Claim be dismissed. (d) No order as to costs with the intent that each party is to pay its own costs in the proceedings. (e) The parties release each other from all claims they may have in relation to the subject matter of the proceedings. (f) The parties covenant not to sue each other with respect to the subject matter of the proceedings, other than to enforce the terms of their settlement agreement. 2 This offer is made in accordance with Division 4 and in particular regulation 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). 3 This offer is open for acceptance for a period of 28 days from the date of this offer. 4 This offer is made "without prejudice as to costs"."
9. On 16 July 2019 the defendants' solicitor sent this email to Hive's solicitors: "We refer to the attached Notice of Compromise. We are instructed that our clients accept the compromise offered by your client in accordance with rule 20.27 of the Uniform Civil Procedure Rules. Pursuant to the terms of the compromise offered by your client we note that payment is due within 28 days of today. Please ensure that your client makes the relevant payment is made (sic) to the following account by close of business 13 August 2019. …"
10. Pausing at this point in the narrative, the Court notes that the parties were in agreement that the Offer complied with the statutory requirements for an offer of compromise under the Rules. Hive also accepts that the defendants validly accepted the Offer by their solicitor's email of 16 July 2019. The present debate has its origins in what happened next.
11. On 7 August 2019 Hive's solicitors sent this letter to the defendants' solicitors "We refer to the above proceedings and the settlement reached between the parties. Please see attached draft deed of settlement ("Deed") for your attention. Please confirm as soon as practicable that your client is agreeable to the contents of the Deed, so that arrangements can be made for the parties to execute the Deed and associated documents."
12. The enclosed draft deed of settlement (the "Draft Deed") included: "D. Multirational Corporation (REG. NO FS200903334) ("Multirational Corporation") has commenced civil proceedings in the Republic of the Philippines Regional Trial Court, National Capital Judicial Region, City of Makati, Branch 145 numbered R-MKT-19-00905-CV against Morris Jencen Chavez, Harry Harvey Roy Mamba, Vina Grace Sadia, Era June De Villa, Remile Evangelio, Jeza Mae Alpajora and Carl Anthony Mabugay alleging that the employees conspired to breach their employment contracts with and obligations to the Multirational Parties ("Philippine Employee Proceedings"). … 2 Terms of Settlement The parties agree that: … 2.3 The Multirational Parties will take all steps within their power to procure that Multirational Corporation discontinue the Philippine Employee Proceedings on the basis that the Philippine Employee Proceedings be dismissed and each party is to pay its own costs or that there be no order as to costs with the intention that each party is to pay its own costs (or substantively similar orders in accordance with Philippine law), including but not limited to executing and filing the attached "Joint Motion to Dismiss" in the form (or substantially in the same form as that) annexed to this Deed in Schedule 3; …"
13. By email on 12 August 2019 the defendants' solicitors responded to Hive's solicitors: "We refer to your letter and proposed deed of 7 August 2019. We assume that the deed is intended to further formalise the terms contained in the offer of compromise that the parties release each other and covenant not to sue each other. Our clients have accepted the terms of the offer of compromise and in the circumstances a deed is not necessary. In any event we note that the proposed Deed contains provisions which go far beyond anything contained in the accepted offer of compromise and would require our client to discontinue unrelated proceedings in different jurisdictions against different parties. Notwithstanding this, we attach a marked up version of the deed in terms that our clients are prepared to execute. We note that there may be some numbering issues if the changes are accepted. We note that that finalisation of the terms of the deed are unrelated to the offer which has been accepted and that payment under the terms of the accepted offer is due tomorrow. We note that if payment is not received your client will be in contempt of the process of the Court."
14. The marked up version of the Draft Deed referred to in that email deleted all references to the Philippines Proceedings.
15. Hive did not accept the defendants' position that, among other things, all references to the Philippines Proceedings should be deleted from the Draft Deed. The parties could not agree on terms of the Draft Deed and Hive did not pay the $30,000 referred to in the Offer.
16. On 11 September 2019 Hive's solicitors wrote to the defendants' solicitors by email: "Your clients continue to assert that they are entitled to maintain concurrent proceedings in the Philippines, notwithstanding that they seek damages in those proceedings for the same loss that they seek to recover in the above proceedings, rendering either the Australian or the Philippines proceedings an abuse of process. As indicated in our previous correspondence, our client regards your clients' position as a repudiation of the parties' settlement agreement. Accordingly, our client elects to accept your clients' repudiation of the settlement agreement and gives notice that it hereby terminates it. Accordingly, we will continue preparing for the hearing set down for 8 to 10 October 2019 on the basis that the hearing will be proceeding on those dates."
17. Five days earlier - on 6 September 2019 - the defendants filed a notice of motion seeking: "1. An order pursuant to section 73 of the Civil Procedure Act 2005 that these proceedings have settled on the terms set out in the plaintiff's offer of compromise dated 21 June 2019 and accepted by the defendant on 16 July 2019. 2. In the alternative, orders in accordance with the terms set out in the plaintiff's offer of compromise dated 21 June 2019 and accepted by the defendant on 16 July 2019 pursuant to UCPR 20.27(3). 3. That the hearing listed for three days commencing on 8 October 2019 be adjourned pending the determination of this motion."
18. On 11 September 2019, Hive filed a notice of motion for relief which sought: "2. A declaration that the Defendants have repudiated the settlement agreement entered into the parties by the defendants' acceptance on 16 July 2019 of the Plaintiff's Notice of Offer of Compromise dated 21 June 2019 ("Settlement Agreement"). 3. A declaration that the Plaintiff has validly terminated the Settlement Agreement. 4. In the alternative to paragraphs 2 and 3 above, an order that the Defendants be restrained from commencing or continuing any legal proceedings with respect to the same subject matter as these proceedings, including but not limited to civil proceedings in the Republic of the Philippines Regional Trial Court, National Capital Judicial Region, City of Makiti, Branch 145 number R-MKT-19-00905-C."
19. At the commencement of the hearing before me, and over the opposition of the defendants, I gave leave to Hive to amend that notice of motion to add the Employees and the Hive Executives as applicants for that relief, in addition to Hive.

The Rules

1. The relevant Rules in relation to offers of compromise are: "20.27 Acceptance of offer (1) A party may accept an offer by serving written notice of acceptance on the offeror at any time during the period of acceptance for the offer. (2) An offer may be accepted even if a further offer is made during the period of acceptance for the first offer. (3) If an offer is accepted in accordance with this rule, any party to the compromise may apply for judgment to be entered accordingly. … 20.29 Failure to comply with accepted offer (1) If the plaintiff, being a party to an accepted offer, fails to comply with the terms of the offer, the defendant is entitled: (a) to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or (b) to an order that the proceedings be dismissed, and to judgment accordingly, as the defendant elects, unless the court orders otherwise. (2) If the defendant, being a party to an accepted offer, fails to comply with the terms of the offer, the plaintiff is entitled: (a) to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or (b) to an order that the defence be struck out, and to judgment accordingly, as the plaintiff elects, unless the court orders otherwise. (3) If a party to an accepted offer fails to comply with the terms of the offer, and a defendant in the proceedings has made a statement of cross-claim or cross-summons that is not the subject of the accepted offer, the court: (a) may make such order or give such judgment under this rule, and (b) may make such order as to the further conduct of proceedings on the statement of cross-claim or cross-summons, as it thinks fit."

Have these proceedings settled and, if so, on what terms?

1. I have already noted - see paragraph [23] above - that Hive accepted the Offer had been validly accepted by the defendants in accordance with the Rules. The issue between the parties - being the issue which raised the proper construction of the terms on which the proceedings had settled - was whether the release and covenant not to sue set out in the Offer extended to the Philippines Proceedings.
2. I should also record at this point that - with respect, correctly - Mr O'Sullivan accepted that the Agreement between the parties was complete with the defendants' solicitor's email of 16 July 2019 (see paragraph [22] above) accepting the Offer (the "Accepted Offer"). In other words, he acknowledged that the debate between the parties about the terms of the Draft Deed said nothing about the contractual position between them, and that this was not a case which required consideration of the familiar principles in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353. Mr O'Sullivan accepted that the central issue at this stage of the inquiry was the proper construction of the terms of the Accepted Offer.
3. It is convenient at this point also to note a logical tension in the way Mr O'Sullivan put his client's case. His primary submission was that on the proper construction of the Accepted Offer, Hive was entitled to an order in the nature of an anti-suit injunction in relation to the Philippines Proceedings pursuant to Pt 20 r 20.29(2)(a) of the Rules. Alternatively, and assuming the same construction of the Accepted Offer, he submitted that Hive had validly accepted the defendants' repudiation of the Agreement evidenced by the Accepted Offer (the acts of repudiation being their refusal to discontinue the Philippines Proceedings, insisting they had the right to continue those proceedings, and by failing to agree to the Draft Deed which would have required MultiRational Corp to discontinue the Philippines Proceedings), such that the settlement agreement between the parties had come to an end and these proceedings should now be fixed for hearing. In that event, he submitted in the alternative that the Court should still grant an anti-suit injunction, not to enforce a right created by the terms of the Accepted Offer, but on general equitable principles.
4. Neither party sought to engage with an important issue which it seems to me was raised by Mr O'Sullivan's alternative argument, namely the extent to which common law principles such as termination for repudiation apply to accepted offers of compromise, the legal incidents of which are governed by the Rules. Because of the view I have taken about the proper construction of the Accepted Offer (that it does not extend to the Philippines Proceedings so that the defendants' conduct could not constitute a repudiation if the common law of contract were applicable), it is not necessary for me to address this aspect of Mr O'Sullivan's arguments further.
5. Insofar as the construction of the Accepted Offer is concerned, it is not being disrespectful to describe Mr Griscti's submissions on the construction question as short and to the point. He submitted that "parties" in clauses 1(e) and (f) of the Offer (see paragraph [21] above) could only mean the parties to these proceedings, being Hive and the four defendants. So much was apparent from the terms of the Offer itself, and the fact that it was expressly made in accordance with the Rules relating to such offers to resolve proceedings before the Court.
6. The argument continued that, contrary to the position advanced by Mr O'Sullivan, the fact that "the subject matter of the proceedings" referred to in both of those clauses included the conduct of the Employees (because their conduct in resigning was pleaded by the defendant cross-claimants - see paragraph [13] above) did not make the Employees "parties" for the purposes of the Offer. Therefore, the release and covenant not to sue included in the Accepted Offer did not on their proper construction include a release by MultiRational Corp of any rights it may have had against the Employees. The "parties" and the "each other" in those clauses were plainly confined to the five parties to these proceedings.
7. Finally, Mr Griscti submitted that if any context outside the terms of the Offer itself was required, it was provided by the defendants' solicitors' covering letter which enclosed the Offer (see paragraph [20] above). That letter made no reference to the Philippines Proceedings and was clearly confined to issues between the parties to these proceedings.
8. Mr O'Sullivan's submissions, while persuasively amplified in oral address, were concisely set out in his written submissions: "18 Section 73 of the Civil Procedure Act 2005 (NSW) ("Act") provides: 73 Power of court to determine questions about compromises and settlements (1) In any proceedings, the court: (a) has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and (b) may make such orders as it considers appropriate to give effect to any such determination. (2) This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question. 17 (sic) In Gorczynski v Bendigo and Adelaide Bank Ltd [2016] NSWCA 170 (19 July 2016) Basten JA said at [6]: [6] Section 73 (and its analogues in other jurisdictions) has been understood to confer power on the court to deal with settlements in the proceedings to which they relate, rather than leaving the parties to commence separate proceedings to enforce a settlement. Accepting that to be the primary purpose of the provision, it is nevertheless expressed in broad terms as to the scope of the power conferred, terms which should not be read down by implied constraints. Rather, the breadth of the power as it operates in the Supreme Court is confirmed when it is read in the context of other powers conferred on the Court. Thus, s 56 of the Civil Procedure Act, to which the primary judge referred, states that the court must give effect to the overriding purpose of facilitating "the just, quick and cheap resolution of the real issues in the proceedings." In order to undertake that function, the court must have the necessary powers to assist it to identify what are the "real issues" in the proceedings. In order to determine what are the real issues in the proceedings it is necessary for the court to seek to ascertain the extent to which the parties can or have narrowed their dispute, so as to limit the proceedings to that part, if any, which remains unresolved. That was the course which the primary judge undertook. If any express power were required for the judge to act on her own initiative, the court had power to act "of its own motion" pursuant to s 86(3) of the Civil Procedure Act, subject always to according procedural fairness to each party. [7] The Court also has power to grant any remedy to which the party appears to be entitled, so that, as far as possible, all matters in controversy may be completely and finally determined, pursuant to s 63 of the Supreme Court Act 1970 (NSW). That may include relief which has not been sought in express terms. To similar effect, s 90 of the Civil Procedure Act provides that the Court is "at or after a trial, or otherwise, ... to give such judgment or make such order as the nature of the case requires". The breadth of these powers is consistent with the general jurisdiction of the Supreme Court, being that which may be necessary for the administration of justice. [emphasis added] 18 In Jingalong Pty Limited v Todd [2015] NSWCA 7, a settlement agreement lacked any express provision in relation to a release of rights. Sackville AJA said: [90]. Both the primary Judge and the respondents placed considerable significance on the absence of a clause by which Mr Todd and Mr Pernice released their claim against Jingalong, or acknowledged that their claims had been satisfied. But if an agreement is inconsistent with the continuation of a claim or cause of action, it is not difficult to construe the agreement as incorporating a release or discharge of the claim or cause of action… [91]. In McDermott v Black, the purchaser's withdrawal of allegations that a vendor of shares had made fraudulent representations in return for an extension of time to complete the purchase of the shares, was construed by the High Court to mean that the purchaser's cause of action was discharged. Dixon J said this (at 186): "The untechnical and inexact expression, 'withdraw allegations,' no doubt causes some difficulty. But it must be borne in mind that the purpose was to settle or compromise a very definite dispute. ... It would be futile for [the purchaser] to withdraw allegations which he was to be at liberty to revive… …[98]….However as the judgment of Dixon J in McDermott v Black makes clear, it should not be assumed that the equitable principles were circumscribed by the limitations imposed on the common law doctrine of accord and satisfaction. On the contrary, the equitable principles were not so circumscribed. …[102]. This Court is bound to comply with the direction in s 63 of the Supreme Court Act, which provides as follows: "The Court shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided." 19 In Grave v Blazevic Holdings Pty Limited [2012] NSWCA 329, the Respondent filed a Notice of Motion seeking a declaration that the parties had reached a settlement agreement, although in the proposed deed of settlement there was no reference to the discontinuance of the proceedings. Bergin CJ in Eq, said: [58]. The fact that there is no express reference in the Deed to the discontinuance of the CTTT proceedings does not mean that a final and binding agreement was not reached. Clearly the parties had decided to release each other from whatever claims were included in those proceedings. 20 In Yule v Smith [2012] NSWCA 191, the Court considered whether a settlement agreement had been reached in relation to division of property of parties to a de facto relationship. Sackville AJA said: [50]. The most obvious apparent omission is that, although the Heads of Agreement contains mutual releases, it does not state explicitly that Ms Yule releases Mr Smith from the claims made by her for property adjustment. Nor does the Agreement specifically state that if Mr Smith complies with the obligations in cll 1 and 2, orders will be made dismissing the proceedings instituted by Ms Yule. [51]. Be that as it may, it is clear from the document itself that the Heads of Agreement was intended to resolve the ongoing dispute between the parties. In return for releases, Ms Yule was to receive a transfer of the Property and a sum of money… 21 Accordingly, although it must be conceded that the Offer does not expressly refer to the Philippine proceedings or the parties to them, this is not an impediment to the Court dealing with the "real issues" in the proceedings pursuant to section 73 of the Act to resolve all matters in controversy between the parties completely and finally. The "real issues" in the proceedings are any and all claims the Defendants may have arising out of the facts and the alleged damage suffered as a result of them that are common to all three matters and that are the "subject matter of the proceedings" to which the Offer refers. The Defendants acceptance of the Offer is inconsistent with a continuation of the Philippine proceedings as they give rise to the possibility of the Defendants being compensated twice for the same loss, or thrice if the Philippine Criminal Complaint also somehow entitles the Defendants to compensation."
9. The Court accepts Mr Griscti's submissions. I do not accept Hive's invocation of s 73 of the Act to resolve the "real issues" insofar as it is suggested (quoting from Mr O'Sullivan's submissions) that: "The "real issues" in the proceedings are any and all claims the defendants may have arising out of the facts and the alleged damage suffered as a result of them that are common to all three matters [the third matter is a reference to the now withdrawn criminal complaint] and that are the "subject matter of proceedings" to which the Offer refers." The Court's power under s 73 is to determine "whether, and on what terms, the proceedings have been compromised or settled". The Court must focus on the "terms" and the "proceedings".
10. Neither party suggested that anything other than the ordinary principles of contractual construction apply to the construction of the Accepted Offer. These require words to be given their natural and ordinary meaning in the context in which they appear, informed where necessary by surrounding circumstances known to the parties at the time the Agreement was made. In this case the context is provided by the clear identification in the title of the Offer of who the parties are, and the express provision that the Offer is made in accordance with that part of the Rules to enable the settlement of proceedings between the parties to the proceedings, being those described as plaintiffs and defendants. If there could be any doubt who those were, then one need only go to the third page of the Offer where the "parties to the proceedings" are expressly listed by name as Hive and the four defendants.
11. A further element of context is provided by the chapeau to the Offer, being that "The plaintiff offers to compromise the whole of all claims in the proceedings". "All claims in the proceedings" must be identified by an examination of the pleadings. The Philippines Proceedings are nowhere referred to in those pleadings. While, obviously enough, the Employees are referred to in the defendants' cross‑claim, there is no "claim in the proceedings" by MultiRational Corp or any other party against the Employees. Nor is there any claim by any party in relation to the Philippines Proceedings.
12. It may also be accepted that the expression "subject matter of the proceedings" is wider than "claims in the proceedings" and is itself prefaced by "in relation to". Those latter words are to be understood as connoting a wide relational connection: see, for example, the decision of the plurality in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [80]. There is also no doubt that "subject matter of the proceedings" includes the conduct of the Employees. However, it would be a case of the interpretative tail wagging the dog to rely on that fact to bring about an interpretation that the Employees are included within the expression "the parties" to the proceedings.
13. For these reasons, the Court finds that these proceedings have been settled on the terms of the Offer and that, on the proper construction of the Accepted Offer, whatever rights MultiRational Corp has against the Employees remain unaffected by that settlement. The terms of the Accepted Offer therefore do not create a right enforceable by an order in the nature of an anti‑suit injunction against MultiRational Corp in relation to the Philippines Proceedings.
14. Before dealing with what orders the Court should make to give effect to the settlement, which I have now found occurred, it is logical next to consider Hive's alternative application relying on general equitable principles for an anti-suit injunction in relation to the Philippines Proceedings.

Should an anti-suit injunction be granted against MultiRational Corp?

1. Hive submits that the continuation of the Philippines Proceedings is vexatious or oppressive so as to attract equity's jurisdiction to restrain the Philippines Proceedings. The principles are now well developed in relation to such applications. It is sufficient for present purposes to refer to the decision of the High Court in CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33: (1997) 189 CLR 345 (at 391-394): "It was pointed out in the joint majority judgment in Voth that it was common ground in the judgments of the majority in the earlier case of Oceanic Sun that "the traditional power to stay proceedings ... on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice ... in the particular case". It is clear from the rationale for the exercise of the power to stay proceedings and, also, from the words "oppressive", "vexatious" and "abuse of process" in Voth, in Oceanic Sun and in the earlier cases considered in Oceanic Sun, including St Pierre v South American Stores (Gath & Chaves) Ltd, that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice. The counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if "an estate is being administered ... or a petition in bankruptcy has been presented ... or winding up proceedings have been commenced ... an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets". Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v The Sentry Corporation, a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court. The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes. Quite apart from the inherent power of a court to protect its own processes, a court may, in the exercise of the power deriving from the Chancery Court, make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights. If the bringing of legal proceedings involves unconscionable conduct or the unconscientious exercise of a legal right, an injunction may be granted by a court in the exercise of its equitable jurisdiction in restraint of those proceedings no matter where they are brought. In some cases, the equitable jurisdiction to restrain unconscionable conduct may be exercised in aid of legal rights. Thus, as the respondents correctly contend, if there is a contract not to sue, an injunction may be granted to restrain proceedings brought in breach of that contract, whether brought here or abroad. Similarly, an injunction may be granted in aid of a promise not to sue in a foreign jurisdiction constituted, for example, by an agreement to submit to the exclusive jurisdiction of the courts of the forum. One well established category of case in which an injunction may be granted in the exercise of equitable jurisdiction is that involving proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive. Thus, it was said in Carron Iron Company v Maclaren that "[w]here [there is] ... pending a litigation here, in which complete relief may be had, [and] a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings." In Société Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect to vexation and oppression, including Peruvian Guano Company v Bockwoldt, have continuing significance for the grant of anti-suit injunctions. Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. In particular, Peruvian Guano establishes that "double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]" does not amount to vexation or oppression. More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Company, if "complete relief" is available in the local proceedings. … Because the power to grant injunctions in respect of foreign proceedings which are vexatious or oppressive, in the sense described, derives from equity, it is not to be confined to the examples found in the decided cases. Rather, it is a power the limits of which are determined by the dictates of equity and good conscience. … It may be that some of the older cases concerned with vexation and oppression, in the sense in which those terms are understood in equity, are properly to be understood as grounded in principles of estoppel. Whether or not that is so, the equitable power to grant injunctions in restraint of litigation exists to serve equity and good conscience. It is not a power which involves a determination that proceedings instituted in a foreign court are vexatious or oppressive in the sense that they are an abuse of that court's processes or, even, in the sense that they should be stayed by the foreign court on forum non conveniens grounds."
2. Hive's submissions that the continuation of the Philippines Proceedings is vexatious or oppressive maybe summarised as: 1. The two sets of proceedings arise out of the same facts. 2. MultiRational Corp has failed to demonstrate that there is any particular forensic or other advantage available to it in the Philippines Proceedings when compared to suing in Australia. 3. The Philippines Proceedings are to recover the same loss as that sought in these proceedings and, in fact, claim less than what was sought in these proceedings. 4. It would be unconscionable for MultiRational Corp to continue to prosecute the Philippines proceeding where these proceedings have been settled, in particular where the continuation of the Philippines Proceedings gives rise to the possibility of conflicting outcomes.
3. The defendants' submissions as to why the continued maintenance of the Philippines Proceedings is not vexatious or oppressive maybe summarised as: 1. These proceedings have been settled. There is now no interest in the integrity of these proceedings to protect by an anti-suit injunction. 2. There is no identity of parties or causes of action between the two sets of proceedings. 3. Maintaining the Philippines Proceedings presents a clear advantage to MultiRational Corp because it is a Filipino company suing Filipino defendants under Filipino law in the Philippines, so that there are none of the difficulties of service or enforcement which would exist if MultiRational Corp were, in effect, required to sue the Employees in Australia. It is not to the point that six of the seven Employees would have been witnesses in these proceedings. 4. The Philippines Proceedings do not seek to recover the same loss as that sought in these proceedings.
4. In weighing the parties' submissions, one matter requires specific elucidation. That is the question of what loss is sought in the two sets of proceedings.
5. The loss claimed by MultiRational in the Philippines Proceedings is A$86,000 for breach of what is described as the "anti-poaching" provision in the Employees' employment contract with MultiRational Corp. In paragraph 24 of the Amended Complaint (see paragraph [18] above) this is said to be a sum "representing MultiRational Corp's prospective unrealised income had the abandonment and poaching not transpired". Unfortunately, the spreadsheet referred to in the Amended Complaint setting out the detail of this calculation was not included in the evidence. I am nevertheless satisfied that the type of loss claimed is sufficiently described in paragraph 24 of the Amended Complaint.
6. The defendants/cross-claimants in these proceedings (including MultiRational Corp) claim four different heads of damage: 1. $68,519.93 for services allegedly rendered under the Agreement between September 2015 and June 2017. 2. An alternative claim for $20,579.32 for expenses alleged to have been incurred in providing services under the Agreement. 3. A further or alternative claim in quantum meruit for provision of the services in the sum of $47,940.61. 4. A claim for damages of $226,680.04 for breach of the Agreement calculated in accordance with clause 4.3 of the Agreement, and particularised as "being compensation equivalent to 12 month's salary of each employee enticed by the cross-defendant to terminate their employment in breach of clause 4.2 of the Agreement".
7. It will be recalled that Hive's principal claim in these proceedings was to challenge the validity of the Agreement and, in particular, clause 4.3.
8. Plainly enough, the first three claims in these proceedings are for past services and cannot overlap with the claim for prospective loss in the Philippines Proceedings. Except in the most general sense I do not agree that the remaining claim in these proceedings is for the "same loss" as that claimed in the Philippines Proceedings. They are between different parties under different agreements and calculated on different bases. They are two juridically different methods of converting into money the loss MultiRational Corp says it suffered arising out of the same set of events. Only in that very general way can it be said that they deal with the same loss.
9. There are five reasons why the Court is not persuaded that the maintenance of the Philippines Proceedings is vexatious or oppressive in the requisite sense.
10. First, there is no longer any interest in the integrity of these proceedings to protect by an anti-suit injunction. These proceedings have been settled on terms that $30,000 is to be paid to all four defendants (not just to MultiRational Corp) without any release of MultiRational Corp's rights against the Employees. The Court would readily restrain the Philippines Proceedings if there had been an agreement to the effect of that asserted by Hive in the Accepted Offer. But that is not what occurred. The Employees are not parties to these proceedings. That position is not altered by the fact that the Employees are applicants on the notice of motion. Nor does the fact that six of the seven Employees swore affidavits to be read in these proceedings make any difference.
11. Second, MultiRational Corp is not the moving party in these proceedings. It is a defendant who had not chosen to engage this jurisdiction, but to the extent it had been sued here, chose to bring a cross-claim against Hive as the plaintiff in these proceedings.
12. Third, even assuming that there was some degree of overlap in the loss claimed in the two proceedings, that is in and of itself insufficient to make the maintenance of the Philippines Proceedings vexatious or oppressive. A party may be entitled to recover damages from several defendants located in different countries. The settlement of these proceedings does not extend to any claim by MultiRational Corp against the Employees in the Philippines Proceedings. There is no expert evidence to suggest to the extent that it is the same loss whether or not MultiRational Corp would have to give credit in any recovery from the Employees for some or all of the amount it received in the settlement of these proceedings. However, in the absence of expert evidence about Philippines law, the Court is entitled to assume that the law is the same as in Australia. In those circumstances, to the extent it can be demonstrated that there is an overlapping of loss, a credit would have to be given in the Philippines Proceedings for some or all of the amount which MultiRational Corp received in the settlement of these proceedings.
13. Fourth, I accept Mr Griscti's submission that there is a genuine juridical advantage for MultiRational Corp as a Filipino company to sue Filipino defendants under Filipino law in the Philippines. For example, complications of service and enforcement of an Australian judgment if the proceedings had been taken in Australia do not arise. In my respectful view, it would be an odd result to grant relief premised on MultiRational Corp (who is not the plaintiff in these proceedings) being expected as a Filipino corporation to cross-claim against Filipino residents (who are not otherwise parties to these proceedings) under Filipino law in Australia.
14. Fifth, there is no possibility of inconsistent outcomes. These proceedings have settled without a hearing and without the Court making any findings. In any event, the cause of action in the Philippines Proceedings is different to those advanced in these proceedings. The cause of action in the Philippines Proceedings is for breach of the Employees' contracts with MultiRational Corp. These proceedings turned on breach of the Agreement, or for services purportedly performed pursuant to the Agreement. In my respectful view, there is little or no room for an anti-suit injunction where the local proceedings have been settled or determined unless one of the outcomes of that settlement or determination is to create an enforceable right in one party to restrain the other from maintaining proceedings in another jurisdiction.

Conclusion

1. The orders of the Court are: 1. Pursuant to UCPR Pt 20 r20.29 (1)(a): 1. the plaintiff must pay the defendants $30,000; 2. the amended statement of claim is dismissed; 3. the amended statement of cross-claim is dismissed. 1. The plaintiff's amended notice of motion dated 4 October 2019 (the "Plaintiff's Motion") is dismissed. 2. The applicants in the Plaintiff's Motion are to pay the defendants' costs of that motion. 3. The plaintiffs are to pay the defendants' costs of the defendants' notice of motion dated 6 September 2019. 4. Note that with the exception of orders 3 and 4, the Court makes no order as to the parties' costs of the proceedings to the intent that each party should bear its own costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2019