Jupiters Ltd v UAERJ Pty Ltd

[2013] NSWSC 1469

Supreme Court of NSW|2013-09-09|Before: Stevenson J

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Supreme Court of NSW

Decision date

2013-09-09

Before

Stevenson J

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Judgment (23 paragraphs)

[1]

nt) State of New South Wales (sixth defendant) AEG Ogden (Perth Arena) Pty Ltd (seventh defendant) Representation: Counsel: K W Dawson (plaintiff) T J Morahan (first and second defendants) Solicitors: King & Wood Mallesons (plaintiff) Stephen Smart & Associates (first and second defendants) File Number(s): SC 2013/164924 Publication restriction: Nil

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Introduction 1The plaintiff, Jupiters Limited, operates casinos and convention centres in Queensland. 2The issue in this case is whether Jupiters is entitled to be paid $321,605.38 out of ticket sale proceeds ("the Ticket Sale Proceeds") held by three concert venue operators (the fifth, sixth and seventh defendants) in satisfaction of money owed to it by a concert promoter, the third defendant, UAE Presents Pty Ltd, pursuant to an agreement between them that the parties have described as "the Costs Agreement". Jupiters claims to be so entitled by reason of irrevocable directions to pay given to two of the venue operators by UAE Presents and to the other venue operator by another concert promoter, the first defendant, UAERJ Pty Ltd. 3Jupiters' case also depends on, indeed arises out of, the Costs Agreement itself. As I describe below, it is in the Costs Agreement that UAE Presents makes the relevant promise to Jupiters in respect of the Ticket Sale Proceeds. 4Alternatively, Jupiters claims to be entitled to recover the $321,605.38 from UAE Presents and its director Mr John Denison, the fourth defendant, on various bases. 5On 5 June 2013, the Court granted an injunction preventing the Ticket Sale Proceeds from being dispersed pending the resolution of these proceedings.

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Background 15On 21 October 2012, Jupiters entered into a performance agreement with UAE Presents in relation to a concert to be given by Mariah Carey and Jessica Mauboy on 1 January 2013 ("the Mariah Carey Concert") at one of Jupiters' venues on the Gold Coast ("the Mariah Carey Agreement"). 16It was a term of the Mariah Carey Agreement that UAE Presents supply all equipment and materials required to carry out the Mariah Carey Concert. 17Shortly before 24 December 2012, Mr Dension told Mr Craig Peachey, chief financial officer of Jupiters, that UAE Presents did not have the funds to supply that equipment and those materials, and that, in his view, it would be necessary to cancel the Mariah Carey Concert. 18The following conversation occurred between Mr Denison and Mr Peachey: "Mr Denison: We don't have sufficient funds to pay the production costs for the [Mariah Carey] performance. The performance is not going to go ahead. Mr Peachey: You are required to pay for all production costs for the performance. We can fund these costs provided you reimburse us. Mr Denison: I have shows coming up for The Jacksons in March next year. I will pay you from the ticket sale proceeds." 19On or about 24 December 2012, and to give effect to the arrangement referred to in the preceding paragraph, Jupiters and UAE Presents entered the Costs Agreement pursuant to which: (a)Jupiters agreed to pay certain technical and production costs on behalf of UAE Presents in relation to the Mariah Carey Concert (totalling $186,377.07); (b)UAE Presents agreed that Jupiters "will be entitled" to receive $186,377.07 and "any other amount owing" by UAE Presents to Jupiters from the Ticket Sale Proceeds for the performances by The Jacksons at the Jacksons Concerts in Perth, Wollongong and Brisbane; (c)UAE Presents agreed it would do all things necessary (including signing any documents) to allow Jupiters to receive those payments, including providing to Jupiters irrevocable directions from it to the relevant venue operator; and (d)UAE Presents agreed that, if the Ticket Sale Proceeds were "insufficient for Jupiters to be paid all amounts it is owed, Jupiters may recover any outstanding amounts from [UAE Presents] as a liquidated debt". 20Jupiters contends that it was an implied term of the Costs Agreement that at the time of entry into the Costs Agreement, UAE Presents was, and would remain, entitled to receive the Ticket Sale Proceeds for the three Jacksons Concerts. 21Although Mr Morahan, who appeared for UAERJ and Mr Perera, disputed this proposition, in my opinion it is plainly correct. 22The terms that are summarised at [19 (b) and (c)] above have the effect that UAE Presents promised Jupiters that it would cause Jupiters to be paid the nominated sum from the Ticket Sale Proceeds of the Jacksons Concerts. UAE Presents thus implicitly represented that it was, and would remain, entitled to make that promise; and thus that it was, and would remain, entitled to the Ticket Sale Proceeds from which the nominated sum was to be paid. 23This satisfies each of the five requirements for an implied term, namely: (1)it is reasonable and equitable; (2)it is necessary to give business efficacy to the contract; (3)it so obvious it "goes without saying"; (4)it is capable of clear expression; and (5)it does not contradict any express term of the contract. (See BP Refinery (Westernport) Pty Ltd v Shire of Hasting (1977) 180 CLR 266 at 285; and the numerous endorsements of that principle by the High Court of Australia referred to in N Seddon, R Bigwood and M Ellinghaus, Cheshire & Fifoot Law of Contract, 10th Aust ed (2012), at [10.55] footnote 557). 24The existence of this implied term is critical to Jupiters' claim to an equitable charge over the Ticket Sale Proceeds. Such a charge could only arise if UAE Presents was, or would become, entitled to the Ticket Sale Proceeds. It is for this reason that I have said at [3] above that the Costs Agreement provides the foundation for Jupiters' claim to an equitable charge over the Ticket Sale Proceeds held by WIN Wollongong and Brisbane Riverstage. 25On 22 December 2012, Mr Peachey sent Mr Denison three forms of irrevocable direction to be executed by UAE Presents and each of Perth Arena, WIN Wollongong and Brisbane Riverstage. Each document contained the following terms: "Background 1. The Venue Operator has entered into a venue hire agreement with the Hirer ("the Venue Hire Agreement") under which the Venue Operator will make Perth Arena, 700 Wellington Street, Perth ("Venue") available to the Hirer so that the Hirer may conduct a concert by entertainers "The Jacksons" at the Venue on 14 March 2013 ("Concert"). 2. Pursuant to the Venue Hire Agreement, the Venue Operator or their representative will see tickets for the Concert and will account to the Hirer for the proceeds of sale of tickets, net of any fees and charges the Venue Operator is entitled to retain under the Venue Hire Agreement ("Ticket Proceeds"). 3. The Hirer confirms that it has an arrangement with Jupiters Limited ABN 78 010 741 045 trading as Jupiters Gold Coast of Broadbeach Island, Broadbeach QLD 4218 ("Jupiters"), under which the Venue Operator must account to Jupiters for Ticket Proceeds the Hirer is entitled to receive from the Venue Operator under the Venue Hire Agreement. Direction 4. The Hirer irrevocably directs the Venue Operator: a. that until the completion of the Concert, all Ticket Proceeds for the Concert will be held by the Venue Operator and shall not be paid to any party; and b. to immediately on completion of the Concert, pay directly to Jupiters all Ticket Proceeds which the Venue Operator is obliged to pay to the Hirer under the Venue Hire Agreement, up to a maximum of $186,377.07. Payment must be made by cheque made out to Jupiters Limited. 5. The direction by the Hirer set out in this letter is irrevocable and cannot be amended or retracted without the prior written consent of Jupiters and the Hirer. General 6. This letter and any acknowledgement is governed by the laws of Queensland as is executed by the Hirer as a deed poll." 26On 24 December 2012, Mr Denison executed each of the irrevocable directions on behalf of UAE Presents. On the same day, WIN Wollongong and Brisbane Riverstage executed and acknowledged the irrevocable directions directed to them ("the WIN Wollongong Irrevocable Direction" and "the Brisbane Riverstage Irrevocable Direction" respectively). 27Although Perth Arena did the same on 28 December 2012 ("the First Perth Arena Irrevocable Direction"), Jupiters does not rely on this document. That is because, as I discuss below, UAERJ, rather than UAE Presents, was the counterparty to the relevant venue hire agreement with Perth Arena. 28Further, as I discuss below, on 13 March 2013, Mr Denison purportedly executed on behalf of UAERJ (rather than UAE Presents) a further irrevocable direction directed to Perth Arena ("the Second Perth Arena Irrevocable Direction"). Perth Arena executed and acknowledged that document. There is an issue in these proceedings as to whether Mr Denison had authority to execute the Second Perth Arena Irrevocable Direction on behalf of UAERJ. I will return to this below. 29By the Second Perth Arena Irrevocable Direction, UAERJ purportedly directed Perth Arena to pay $150,000 to Jupiters, and to then pay certain amounts to other, unrelated, parties (Artist Escrow Services Pty Ltd and Phase 1 Audio). 30Each of the Irrevocable Directions referred to a "Venue Hire Agreement". The WIN Wollongong and Brisbane Riverstage Irrevocable Directions (and the First Perth Arena Irrevocable Direction) named the venue "hirer" as UAE Presents. The Second Perth Arena Irrevocable Direction named the venue hirer as UAERJ. I will discuss the circumstances surrounding those venue hire agreements below. 31Pursuant to its obligations under the Costs Agreement, Jupiters paid various expenses (ultimately totalling some $321,605.38, rather than the $186,377.07 referred to in the Costs Agreement) in respect of the Mariah Carey Concert. This payment enlivened UAE Presents' obligations to Jupiters under the Costs Agreement. 32The Mariah Carey Concert took place at Jupiters' venue, as scheduled, on 1 January 2013. 33Before proceeding further, it is necessary to say a little more about the parties, and to discuss the status of admissions said to have been made by UAERJ and Mr Perera in their Commercial List Response.

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UAE Presents and UAERJ 34UAE Presents was incorporated on 18 September 2012. Its directors are Mr Denison and a Mr Richard Storey. Mr Storey appears to have played no role in the events with which this case is concerned. The shareholders of UAE Presents are Denison Corporation Pty Ltd (of which Mr Denison is the sole shareholder) and Commercial Asset Lending Pty Ltd (which I assume to be a company associated with Mr Storey). 35UAERJ was incorporated on 29 November 2012. Its directors and shareholders are Mr Perera and Mr Eric Woo. According to records maintained by the Australian Securities and Investments Commission, Mr Woo only became a director on 16 May 2013 (after the events with which I am concerned). Mr Perera said he regarded this as a "mistake" and considered Mr Woo a director of UAERJ at all relevant times. 36Mr Perera explained that the "UAE" in the names UAE Presents and UAERJ stood for "Urban Agent Events". Mr Perera said that he created that name because a focus of his business was on urban music and the promotion of tours by urban artists in Australia. Mr Perera said that the name "Urban Agent" had been registered in the names of entities other than the parties to these proceedings. 37Mr Perera said that he devised the name "Urban Agent Events Presents", to be shortened to "UAE Presents", as the possible name of a "special events division in Urban Agent". Mr Perera said he spoke to Mr Denison about this in May 2012. Nonetheless, he said he knew Mr Denison had a company called UAE Presents and that he saw invoices made out to UAE Presents. He said: " ... I didn't think much of it because I thought I was trading as UAE Presents, and also, Mr Denison had stated that he wasn't using UAE Presents Pty Ltd, and he just left it there in case I wanted to use it". 38Mr Perera's relationship with Mr Denison revealed a lack of appreciation by Mr Perera of elementary corporate formalities. On occasions he referred to Mr Denison as a "partner", for example, in an email to Mr Marc Swan at WIN Wollongong dated 30 October 2012. 39When asked about that Mr Perera gave this response: "Yes, I did notice at one point I had [referred to Mr Denison as a 'partner'] - that was in error. It was, I was trying to refer to him as well. It was in reference to some negotiations that I was doing, and it was in consideration of the fact that I was going to consult my - consult Eric Woo who was a direct of UAERJ, and also, I'd be seeking some advice from Mr Denison." 40In that regard, Mr Perera said he had a "very loosely formed board of advisers" and that Mr Denison was one person from whom he sought advice, especially when it came to negotiating with venues. 41At times, Mr Perera referred to Mr Denison as a "director". For example, on 20 February 2013 he sent an email to Mr Swan at WIN Wollongong referring to Mr Woo and Mr Denison as "the 2 other directors". 42In that regard, Mr Perera said in cross-examination: "As mentioned previously, like it's to my knowledge it was common practice that the venues, major venues, Government owned venues, did a company search when issuing a licence. Also refer to people as partners, promoters or even perhaps directors, which I did do in error which I realise now. I wasn't in any doubt as to whether they knew who the actual directors were... Like, I did send [the email referred to at [35]], but in my mind [there] was no doubt as far as who the hirer was. To my knowledge, I thought the venues would know where everyone fitted in, especially myself." 43Further, as I discuss below, Mr Perera knew that Mr Denison had signed a venue hire agreement with Perth Arena in December 2012 as "COO" and "Director/Secretary" of UAERJ, yet did not correct this error. Indeed, he later confirmed to Perth Arena that Mr Denison was authorised to sign that agreement. 44Mr Perera said that he "retained" Mr Denison to "handle The Jacksons Tour negotiations" and to "liaise with the artist, liaise with the venues and look after the artist when they [were] on tour". 45In the District Court proceedings referred to at [12] above, UAERJ alleged that: "At all material times, the Director of UAE Presents Pty Limited, Mr John Denison, was a contractor hired by [UAERJ] to secure venues and negotiate the artist's fee in respect of the [Jacksons] Tour as agent for [UAERJ]..." 46These highly informal set of circumstances have led to the controversy now before me.

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The admissions in the pleadings 47In their Commercial List Response, UAERJ and Mr Perera responded to a large number of the allegations made by Jupiters by saying that they "do not plead" to the allegations (occasionally with the rider "as those paragraphs do not raise allegations against the First and Second Defendants"). 48Critically, UAERJ and Mr Perera pleaded in that fashion to the following allegation in the Commercial List Statement: "By on or about 21 December 2012, UAE [Presents] and/or Denison had an agreement with ICM for the Jacksons Concerts and had paid a 50% deposit on the tour." 49"ICM" refers to International Creative Management, Inc., a United States corporation acting as the agent for The Jacksons. 50Rule 14.26 of the Uniform Civil Procedure Rules 2005 (UCPR) provides: "(1) An allegation of fact made by a party in a pleading is taken to be admitted by any opposite party required to plead in response unless: (a) in the pleading in response, the opposite party traverses the allegation... (2) A traverse may be made by denial or by a statement of non-admission, either expressly or by necessary implication, and either generally or as to any particular allegation." 51In Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd [2008] NSWCA 39, Campbell JA (with whom McColl JA and Handley AJA agreed) said, at [62] and [63]: "A statement by a defendant that it 'does not plead to' a particular allegation in a Statement of Claim is neither a denial, nor a non-admission. Thus, for the purpose of defining issues by pleadings, a statement that a defendant 'does not plead to' a particular allegation counts as an admission of that allegation... No doubt the reason why the pleader of a defence sometimes chooses to say that the defendant 'does not plead to' some particular allegation is because the pleader perceives that that allegation is not part of the case that is made against that particular defendant. If the pleader is right in his or her perception, no harm will come to his or her client from the deemed admission that arises from saying that the defendant 'does not plead to' the particular allegation. However, if the pleader is wrong in his or her assessment of what count as the elements of the case made against his or her client, the fact admitted by being 'not pleaded to' has the same status as any other admission on the pleadings." (See also Branson v Tucker [2012] NSWCA 310 at [4] per Campbell JA (with whom Beazley and Barrett JA agreed)). 52On several occasions, prior to the commencement of the hearing before me, the solicitors for Jupiters drew these matters to the attention of the solicitors for UAERJ and Mr Perera. In her outline of submissions served prior to the commencement of the hearing, Ms Dawson, who appeared for Jupiters, referred to Campbell JA's observations in Rockcote. 53Ms Dawson also raised the matter during her opening submissions. Mr Morahan then foreshadowed that UAERJ and Mr Perera would seek to amend their Commercial List Response in effect to withdraw most of the admissions made by the failure of the Commercial List Response to traverse allegations in the Commercial List Statement. 54The application to amend was made at the commencement of the second day of the hearing. I refused leave to amend as I was not satisfied that proper grounds had been established to justify withdrawal of the admissions (see UCPR r 17.2(2) and Langdale v Danby [1982] 1 WLR 1123 at 1134; SLE Worldwide v Wyatt Gllagher Bassett Pty Ltd [2005] NSWSC 816 at [57], [62] and [65]). 55I came to that conclusion for the following reasons. 56First, the admissions were made on advice from counsel and were, in that sense, deliberate. 57Second, the admissions were clear. 58Third, Jupiters accepted the admissions, relied upon them and would be prejudiced if leave were granted to withdraw the admissions. Jupiters made a number of forensic decisions based on the admissions and in particular, had elected to put on either no, or cursory, evidence of certain matters and did not make enquiries which may have revealed evidence relevant to establishing the matters the subject of the admissions. 59Fourth, the application, having only been foreshadowed on the first day of the hearing, was made too late in circumstances where UAERJ and Mr Perera were on clear and express notice of Jupiters' intention to rely upon the admissions. 60It follows that UAERJ and Mr Perera have admitted the matter referred to at [48] above ("the Admission"). 61In Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492, Heydon JA (with whom Spigelman CJ and Sheller JA agreed) said at [154]: "A party may admit allegations made in pleadings by the opposing party, and may do so either expressly or by non-traverse. The effect of such admissions is to narrow the issues in dispute: they can thus have the effect of restricting the evidence to be tendered and can prevent evidence being called to the contrary". 62A court is not, however, bound to act on admissions made by the parties (Damberg at [157]). 63Further: "... the courts are averse to pronouncing judgments on hypotheses which are not correct. To do so is tantamount to giving advisory opinions and to encouraging collusive litigation. On the other hand, the courts will act on admissions of or agreements about matters of fact where there is no reason to doubt their correctness. But they are reluctant to do so where there is reason to question the correctness of the facts admitted or agreed." (Damberg at [160]) (Emphasis added). 64However: "Courts commonly act on admissions in relation to matters of fact which might be disputed if the parties desired to do so, but which they have chosen to arrive at a compromise about". (Symes v The Proprietors Strata Plan No 31731 [2003] NSWCA 7 at [45] per Heydon JA (with whom Sheller JA and McClellan J agreed)). 65White J considered Damberg in Ciaglia v Ciaglia [2010] NSWSC 341 at [20]: "Damberg v Damberg demonstrates that a court is not bound to act on the parties' admissions. But a fundamental purpose of pleadings is to define the issues so as to confine the matters on which evidence need be led. In Damberg v Damberg Heydon JA observed (at [160]) that courts will act on admissions of or about matters of fact where there is no reason to doubt their correctness, but are reluctant to do so if there is such doubt. Where a matter of fact is admitted on the pleadings, it is not a reason to doubt the correctness of the admission that attenuated evidence is given on that matter, which, but for the admission, would be insufficient to prove the fact. Were it otherwise pleadings would not only fail in their purpose, but could be the source of injustice. If a party who admits a fact is later able to say that the court should not act on the admission because the opposite party's evidence about the fact does not amount to proof on the balance of probabilities, the efficacy of pleadings is much diminished. The opposite party would have to prepare his or her case as if no such admission were made. That is not the law. I do not doubt the correctness of the admission because of the insufficiency of the objective corroboration of the plaintiff's evidence, considered without the admission, to prove the fact if it had been in issue. Other evidence might well have been called..." 66I accept Ms Dawson's submission that this analysis applies here. Jupiters has conducted its case on the basis of the admissions made on the pleadings and, in relation to some matters, had not taken steps to obtain evidence from third parties or certain defendants that may have been available. 67In those circumstances, I accept the submission that I should act on the Admission, unless satisfied that there is reason to doubt its correctness. 68The conclusion to which I have come is that there is no reason to doubt the correctness of the first part of the Admission (that there was an "agreement" between ICM and Mr Denison or UAE Presents "for" the Jacksons Concerts). 69However, I do not consider that the Admission provides an answer to what I regard as a critical issue in this case. For Jupiters to succeed in relation to its claim for an equitable charge over the Ticket Sale Proceeds held by WIN Wollongong and Brisbane Riverstage, it must show that the "agreement" between ICM and Mr Denison (or UAE Presents) gave Mr Denison (or UAE Presents) the right to assign to Jupiters such of the Ticket Sale Proceeds as would be necessary to discharge UAE Presents' obligations to Jupiters, and to give corresponding irrevocable directions to those venue operators. I consider this question further below. 70The Admission certainly casts no light on Jupiters' entitlement to the Ticket Sale Proceeds held by Perth Arena, which depends on the Second Perth Arena Irrevocable Direction (purportedly executed by Mr Denison on behalf of UAERJ, not UAE Presents). 71So far as concerns the second part of the Admission (that Mr Denison or UAE Presents had paid to ICM a 50 per cent deposit for the tour) my conclusion is that there is reason to doubt its correctness. 72I will now explain how I have come to these conclusions.

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The first part of the Admission: was there an "agreement" between Mr Denison and ICM? 73On 17 December 2012, Jupiters' legal counsel, Mr Adam Ferenczy, wrote to Mr Denison: "As discussed, so that we can consider your proposal [to pay the expenses associated with the Mariah Carey Concert] would you please provide the following... Copy of the performers agreement with The Jacksons." 74On 18 December 2012, Mr Denison replied to Mr Ferenczy's request by forwarding an email that he, Mr Denison, had received from Mr Scott Mantell, from ICM, on 27 November 2012. 75Mr Denison's email to Mr Ferenczy read: "See below the formal confirmation in writing from ICM - The Jacksons Agent - contracts are to follow this week. The tour is on sale and formally approved." 76Mr Mantell's 27 November 2012 email was in the following terms: "Hello John, I am pleased to confirm your eight-show offer for THE JACKSONS to tour Australia and NZ under the following terms: SCHEDULE March 14 Perth, Australia Crown Theatre (2,200 cap) March 16 Sydney, Australia Sydney Entertainment Centre (5,000 cap) March 17 Wollongong, Australia Wollongong Entertainment Centre (3,000 cap) March 19 Melbourne, Australia Melbourne Exhibition and Convention Centre (5,070 cap) March 22 Sydney, Australia State Theatre (2,000 cap private show) March 24 Brisbane, Australia The Riverstage (5,000 cap) March 26 Auckland, NZ Vector Arena (4,000 cap) GUARANTEE: US$1,000,000 guarantee less applicable Australian and NZ Artist Taxes; PLUS: Purchaser shall provide and pay for the following local expenses: - First Class Hotel Accommodations - Local Ground Transportation - First Class Sound & Lights - Backline - Video - Catering - Visas/Work Permits PAYMENT SCHEDULE: - US$250,000 due to the ICM Escrow Account by November 1, 2012 - US$250,000 due to the ICM Escrow Account by November 30, 2012 - US$145,000 flight contribution due to the ICM Escrow Account by December 12, 2012 - US$250,000 due to the ICM Escrow Account by January 14, 2013 - US$250,000 due to the ICAM Escrow Account by February 14, 2013 Kevin in my office will reach out to you for all contract details. We look forward to a successful tour with you. Regards, Scott." 77Mr Mantell's email makes no mention of UAE Presents. It refers to "your" eight show offer. The email was addressed to Mr Denison at the email address "john@entouragemanagement.com.au" (whereas Mr Denison forwarded the email to Mr Ferenczy from his email address "john@uaepresents.com.au"). 78Notwithstanding Mr Denison's statement in his 18 December 2012 communication, contracts (with The Jacksons) did not "follow this week"; or at all. 79Instead, on 20 December 2012, Mr Brian Hodge, the entertainment services manager at Jupiters, wrote to Mr Mantell: "Can you please confirm that John Denison has the signed agreement with ICM to bring The Jacksons to Australia for a tour in 2013?" 80Mr Mantell replied on 21 December 2012: "Yes, we are confirmed and I have his 50% deposit on the whole tour". 81It is against that background that UAERJ and Mr Perera have made the Admission. 82Mr Mantell's 27 November 2012 email "confirms your eight-show offer" for The Jacksons tour and sets out particulars of the "offer" both in terms of the details of the proposed shows (venues and dates) and the payments to be made to The Jacksons. The email goes on, however, to say that "Kevin in my office will reach out to you for contract details". That suggests that Mr Mantell was not intending that his email constitute the "contract" pursuant to which The Jacksons would tour; but that "Kevin" would liaise with Mr Denison in due course to finalise "contract details". Those "contract details" could include the identity of the counterparty to the contract from ICM's point of view; perhaps Mr Denison, or perhaps an entity that Mr Denison was representing. 83In my opinion, Mr Mantell's 21 December 2012 reply to Mr Hodge confirms that there was, by then, an "agreement" (of some kind) between ICM and Mr Denison "to bring The Jacksons to Australia for a tour in 2013" (to adopt the words in Mr Hodge's email). 84There is thus no reason to doubt that Mr Denison had some kind of "agreement with ICM for the Jacksons Concerts" and thus no reason to doubt that part of the Admission (as far as it goes). 85But Mr Mantell's terse response to Mr Hodge's enquiry does not enable me to draw any conclusion as to the content of that agreement, nor as to Mr Denison's status in the agreement. 86There is no evidence of there being a "signed agreement" between Mr Denison and ICM as at 21 December 2012 beyond Mr Mantell's statement "we are confirmed" in the face of Mr Hodge's request for confirmation that Mr Denison "has the signed agreement". 87Notwithstanding Mr Mantell's statement, I consider there is reason to doubt that there was a "signed agreement" between Mr Denison and ICM as at 21 December 2012. 88This is because on 13 February 2013, ICM entered into a formal, ten page "Talent and Literary Agency" Agreement with UAERJ pursuant to which UAERJ "engaged" The Jacksons to perform eight concerts in Australia and New Zealand (being those referred to in Mr Mantell's 27 November 2012 email, plus a further concert in Newcastle); including at WIN Wollongong, Perth Arena and Brisbane Riverstage. 89Mr Denison executed that document on behalf of UAERJ. There was no suggestion in the proceedings that Mr Denison was not authorised by UAERJ to execute this document. Nor was there any dispute before me that, once the 13 February 2013 Talent and Literary Agency Agreement was executed, it was that contract that governed the Jacksons Concerts. 90Those facts suggest that ICM had not entered any earlier formal written agreement concerning the Jacksons Concerts, despite Mr Mantell's failure to say so in response to Mr Hodge's 20 December 2012 email.

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What authority did Mr Denison have under his "agreement" with ICM to deal with the Ticket Sale Proceeds? 99Mr Mantell's email of 27 November 2012 stated that the fee to be paid to The Jacksons was the total of the figures in the "Payment Schedule" referred to in that email, namely a total of US$1.145 million (evidently the total of the guaranteed figure of US$1 million and the various "local expenses" referred to). 100There is no suggestion in Mr Mantell's 27 November 2012 email that any part of the Ticket Sale Proceeds were to be paid to The Jacksons. According to Mr Mantell's email, The Jacksons were to be paid a fixed price for the tour. 101There is also no suggestion in the communications from Mr Mantell that UAE Presents had any entitlement to the Ticket Sale Proceeds. There is no mention of UAE Presents in those communications. Mr Mantell's email of 27 November 2012 is addressed to Mr Denison at an "entouragemanagement" email address, rather than the "uaepresents" email address Mr Denison used when writing to Mr Ferenczy (see [77] above). 102A question arises as to whether Mr Denison was dealing with Mr Mantell, and thus ICM, as principal (that is, on his own account) or as agent for Mr Perera or one of his entities (in particular, UAERJ). 103On 1 November 2012, Mr Denison wrote to Mr Hodge, at Jupiters (with a copy to Mr Perera and Ms India Bent): "Just a quick note - as I'm managing the Mariah [Carey] project and taking up all my time - Richie [Perera] and India [Bent] will be managing the Jacksons tour - so for any dealings going forward for the event please deal directly". 104The evidence did not reveal who Ms India Bent was. However, Mr Denison's communication to Mr Hodge reveals that his state of mind, as at 1 November 2012, was that Mr Perera and Ms Bent were "managing the Jacksons tour". 105An insight as to Mr Denison's true status in these dealings with ICM is given by admissions he made in a document called "Deed of Release/Indemnity" that he, UAE Presents and UAERJ executed on 18 March 2013. 106That Deed recited (substituting terms which are defined in these reasons): "A In or about June 2012, Mr Perera engaged Mr Denison to act as Talent Acquisition Manager in consideration of a fee and promise of shareholding in UAERJ. Mr Denison's role included but was not limited to liaising with venues, ticketing agencies, marketing and all aspects of a Special Events/Concert promoter. B UAERJ was formed on 29 November 2012 with Mr Perera appointed as sole Director. Petina Denison, being the spouse of Mr Denison, was assigned a shareholding of 33%. C UAE Presents was created on 18 September 2012. John Denison and Richard Storey were appointed directors. D In or about August 2012 Mr Perera received email correspondence from an agent advising that 'the Jacksons' were touring Asia and inviting an offer for an Australian and New Zealand leg of that tour. Mr Perera instructed Mr Denison to liaise with the agent to secure that tour. E On or about 1 November 2012 an initial good faith Artist Deposit payment of US$250,000 was paid by AJVE Pty Ltd, being the parent company and 67% shareholder owner of UAERJ to ICM (Contracting Agent) to secure the rights to the Jacksons' Unity Tour in Australia and New Zealand. F On or about 28 November 2012 Mr Denison advised Mr Perera that an agreement with the agent had been reached in principle to secure the Jacksons for the Australia and New Zealand Unity Tour. Contracts would not be formalised until venues could be confirmed. G On or about 30 November 2012 a further Artist Deposit of US$250,000 was paid... by UAERJ to ICM. H The performance contract for The Jacksons Unity Tour was finalised with ICM on 13 February 2013 with UAERJ as the tour promoter. I Further sums of approximately US$500,000 were paid for The Jacksons to ICM and to Artists Escrow Services by UAERJ... M On or about 14 March 2013 UAERJ became aware that Jupiters was seeking approximately $186,000 from Perth Arena, WIN Wollongong and Brisbane Riverstage. N On or about 16 March 2013 John Denison admitted the wrongful conduct and undertook to indemnify UAERJ in respect of any proceedings which may arise from Jupiters debt and the distribution of box office receipts from the Jacksons Unity Tour." (emphasis added) 107On 19 March 2013, UAERJ commenced the District Court proceedings referred to at [12] above against Mr Denison and UAE Presents. In the Statement of Liquated Claim in those proceedings, UAERJ repeated several of the matters referred to in the recitals to the Deed to which I have referred and also alleged that: (a)Mr Denison and UAE Presents had "wrongfully represented" to Perth Arena, WIN Wollongong and Brisbane Riverstage that UAE Presents was the tour promoter for the Jacksons tour and "wrongfully directed that all the Ticket Sales Proceeds for the tour be paid to a third party creditor" of Mr Denison; (b)in furtherance of that "misleading conduct" UAE Presents and Mr Denison had caused an irrevocable direction to transfer the Ticket Sale Proceeds held for UAE Presents in respect of the tour "to be executed between the respective venues in favour of" Mr Denison's "creditor"; and (c)UAE Presents and Mr Denison had admitted to that misleading conduct. 108Clearly enough, the "third party creditor" that Mr Denison referred to is Jupiters (although Jupiters was in fact a creditor of UAE Presents, not Mr Denison). 109In the Statement of Liquidated Claim, UAERJ claimed $700,000 plus interest and court fees. 110The day before the District Court proceedings were commenced, on 18 March 2013, Mr Denison executed an "Acknowledgment of Liquidated Claim" in which he acknowledged "the whole of the amount being claimed" by UAERJ. That document was filed at the District Court on 21 March 2013, and took effect as a judgment against UAE Presents and Mr Denison. 111Mr Denison thus, in effect, admitted the allegations made against him (and I would add, against UAE Presents) in the Statement of Liquidated Claim. 112The admissions made by Mr Denison, for himself and for UAE Presents, in the Deed and in the Acknowledgement of Liquidated Claim, were against the interests of both Mr Denison and UAE Presents. There is no reason why Mr Denison would admit those matters, or cause UAE Presents to admit those matters, unless they were true. 113The matters that Mr Denison admitted included that: (a)he was acting as Mr Perera's agent when liaising with ICM in relation to the Jacksons tour; (b)on or about 28 November 2012 (that is, immediately after Mr Mantell's email of 27 November 2012 which confirmed to Mr Denison "your eight-show offer"), Mr Denison told Mr Perera that an agreement "in principle" with ICM had been reached but that contracts would not be formalised until venues could be confirmed; and (c)Mr Denison had "wrongfully represented" to Perth Arena, WIN Wollongong and Brisbane Riverstage that UAE Presents was the tour promoter for the Jacksons tour whereas the true position was that, by reason of the 13 February 2013 Talent and Literary Agency Agreement between UAERJ and ICM, UAERJ was, ultimately, the promoter entitled to the Ticket Sale Proceeds. 114Mr Denison thereby admitted that in his dealings with Mr Mantell he was not acting on his own account and was not entitled to the Ticket Sale Proceeds. 115In those circumstances, my conclusion is that although there was an "agreement" in or about 21 December 2012 between Mr Denison and ICM, that was not an agreement that Mr Denison entered in his own right. It was an agreement "reached in principle to secure The Jacksons for the Australia and New Zealand Unity Tour" on behalf of, ultimately, UAERJ. It was not an agreement which gave Mr Denison any entitlement to the Ticket Sale Proceeds. It must follow from this that, at no time, did UAE Presents have any such entitlement.

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WIN Wollongong 118On 14 December 2012 Mr Stuart Barnes, the general manager of WIN Wollongong, wrote to Mr Denison care of "UAE Presents" enclosing a proposed Venue Hire Agreement and Conditions of Hire "detailing the times and hiring conditions for" the proposed Jacksons Concert on 17 March 2013. 119The document that Mr Barnes sent to Mr Denison under cover of that letter was not in evidence. However, Mr Barnes gave evidence of its form. The counterparty to that agreement was "UAE Presents". 120Neither WIN Wollongong nor UAE Presents executed that document. 121On 19 December 2012, WIN Wollongong sent UAE Presents an invoice for the venue booking fee. Further, and as I have mentioned, on 24 December 2012, WIN Wollongong acknowledged and executed the WIN Wollongong Irrevocable Direction. That document recited that, as part of the "Background", WIN Wollongong "has entered into a venue hire agreement" with UAE Presents "under which" WIN Wollongong agreed to make the relevant stadium available to UAE Presents for the 17 March 2013 Jacksons Concert. 122Mr Barnes gave evidence that all of the dealings of WIN Wollongong had been with Mr Denison and UAE Presents and that WIN Wollongong proceeded upon the basis that UAE Presents was the correct party. Tickets went on sale from 10 December 2012. The only venue hire agreement (albeit one which was not executed) in place until March 2013 was with UAE Presents. 123In these circumstances, I accept Ms Dawson's submission that both parties, by their conduct (including by the execution, and acknowledgment, of the WIN Wollongong Irrevocable Direction) agreed to contract on the terms of the document that Mr Barnes had sent Mr Denison under cover of his letter of 14 December 2012. 124As stated in Cheshire & Fifoot Law of Contract: "Acceptance can be inferred from conduct if that inference is indicated by the objective circumstances. An offeree 'promises' to be bound by the terms of the offer by simply getting on with it. This is an important aspect of the law because it recognises what commercial people actually do." (at [3.23]). 125Mr Morahan pointed to an email that Mr Denison sent Mr Swan at WIN Wollongong on 29 November 2012, in which Mr Denison asked WIN Wollongong to "proceed to contract for Jacksons" and said that the "company details" were "UAERJ Pty Ltd t/as UAE Presents". 126Mr Barnes accepted that, in light of that email, it was a "mistake" for the contract that he distributed on 13 December 2012 to nominate the counterparty as "UAE Presents". Nonetheless, and assuming that the reference in Mr Barnes' letter of 14 December 2012 to "UAE Presents" was intended by him to be a reference to the party nominated in Mr Denison's 29 November 2012 email ("UAERJ Pty Ltd t/as UAE Presents"), the manner in which the parties conducted themselves thereafter shows that the contract was between WIN Wollongong and UAE Presents. 127From early March 2013, Mr Perera engaged in email correspondence with Mr Swan concerning the costs of staging the Wollongong Jacksons Concert. One result of that negotiation was that WIN Wollongong agreed not to charge a venue hire fee. 128Following that negotiation, on 8 March 2013, Mr Perera sent an email to Mr Swan: "Can you send me an updated/executed venue contract mentioning zero venue hire etc pls." 129As Ms Dawson submitted, implicit in that email is the suggestion that Mr Perera was aware of the existence of the unexecuted venue hire agreement. 130On 11 March 2013, Mr Swan sent an email to Mr Perera attaching an "updated venue hire agreement". That document was the venue hire agreement that Mr Barnes identified as being in the same form as that referred to in his letter of 14 December 2012 to Mr Denison (see [119] above). The document identified the counterparty as "UAE Presents". Mr Swan's email continued: "We also have the attached irrevocable direction to pay on file, as instructed by John Denison. Happy to arrange settlement at earliest convenience post show." 131The "irrevocable direction to pay" to which Mr Swan referred, and which was attached to his email, was the WIN Wollongong Irrevocable Direction of 24 December 2012 referred to at [26] above. 132In his affidavit evidence, Mr Perera said he did not discuss the WIN Wollongong Irrevocable Direction with representatives of WIN Wollongong because he had a conversation with Mr Denison who told him that the document was a "mistake" and that it had been "withdrawn". Mr Perera said in his affidavit: "I accepted Mr Denison at his word and forgot about the Irrevocable Direction to Pay to Jupiters." 133I do not accept this evidence, for the following reasons. 134First, Mr Perera asked WIN Wollongong to change the "contact person" from Mr Denison to himself. He gave this explanation in cross-examination: "Q. And you asked for the contact details to be changed on the contract from John Denison to you? A. Yeah, as mentioned. I mean, at this point I was getting a little concerned. Q. Because you were concerned you asked them to put the contact person in the venue hire agreement as you rather than Mr Denison? A. Yeah, that's correct." 135The evidence shows that Mr Perera was more than "a little concerned". He said in cross-examination that when he saw the WIN Wollongong Irrevocable Direction he was "alarmed". He gave this evidence: "Q. That alarmed you? A. Yes, it did. Q. Did you mention that to [WIN Wollongong] that it alarmed you? A. No. I took that up with Mr Denison. Q. You didn't raise it with [WIN Wollongong] at any point? A. No, because I had a conversation with Mr Denison. He told me it was by mistake and he'll get it removed." 136Second, on the same date as Mr Swan's email to Mr Perera, 11 March 2013, Mr Denison wrote to Mr Barnes at WIN Wollongong: "Please find attached the contract that our parent company UAERJ Pty Ltd has executed [with] ICM for their services of The Jacksons in Australia. The performance contracts for the event was [sic] always in the name of the above company and accordingly the hiring contract has to reflect this - currently its [sic] in the name of UAE Presents which is incorrect. All our current venue contracts are in UAERJ Pty which has nothing to do [with] UAE Presents who [sic] is merely a promotions company owned by me. Please amend to UAERJ Pty Ltd... Please rescind the current Irrevocable as it has been incorrectly executed in the name of the wrong company. Hopefully the above suffices and look forward to your revised venue contract." 137Although there was no direct evidence of this, I infer that Mr Denison wrote this email at Mr Perera's insistence. There is no other reason why Mr Denison would write in these terms. 138Mr Barnes replied to Mr Denison's email stating that he had asked Mr Swan to "issue a new contract in the name of UAERJ Pty Ltd" but that, as the WIN Wollongong Irrevocable Direction of 24 December 2012 referred to UAE Presents (and not UAERJ) as the hirer, he felt "beholden" to advise Mr Peachey: "... of the fact that the [irrevocable direction] is not in the name of the company with whom we are contracting." 139Mr Denison replied by saying that he would speak to Mr Peachey "soon" and "advise". 140Mr Barnes informed Mr Peachey of these developments. Mr Peachey wrote to Mr Barnes on 13 March 2013: "I consider this matter is clear, and I have discussed the matter with [Mr Denison] at length and he understands Jupiters position very well. Jupiters was advised by John Denison that $186,377.07 would be paid to Jupiters from the box office proceeds for the performance by The Jacksons at WIN Stadium on 17 March 2013. This is confirmed in the irrevocable direction, which was signed by WIN [Wollongong] on 24 December 2012... We request that you direct Ticketek to make payment of $186,377.07 to [a nominated account] immediately on settlement of the box office proceeds for the performance." 141On 14 March 2013, Mr Perera heard from representatives of Perth Arena that "there may be other Irrevocable Directions out there". 142With that knowledge, and the knowledge gained by perusal of the WIN Wollongong Irrevocable Direction itself, Mr Perera executed a further "Venue Hire Agreement" with WIN Wollongong on 14 March 2013 on behalf of UAERJ ("the Wollongong Venue Hire Agreement"); three days before the 17 March 2013 WIN Wollongong Jacksons Concert. 143It is admitted on the pleadings (in terms) that on 11 March 2013, WIN Wollongong rescinded or terminated the UAE Presents WIN Wollongong venue hire agreement and that, on the same day, UAERJ and WIN Wollongong entered into the Wollongong Venue Hire Agreement for the 17 March 2013 WIN Wollongong Jacksons Concert. 144It is clear from the evidence, and I find, that WIN Wollongong took these steps at Mr Perera's insistence. 145The WIN Wollongong Jacksons Concert took place on 17 March 2013.

[14]

Brisbane Riverstage 146On 6 December 2012, Mr Denison executed a "Venue Booking Application" in the name of "UAERJ Pty Ltd trading as UAE Presents" with Brisbane Riverstage in respect of the proposed 24 March 2013 Jacksons Concert. Mr Denison purported to execute that document as "COO" of "the hirer". 147On 17 December 2012, Mr Denison wrote to Mr Richardson at Brisbane Riverstage: "I need the venue contract urgently please. Please amend to UAE Presents Pty Ltd." 148I infer that Mr Denison sought this change because of his pending negotiations with Jupiters, which led to the Costs Agreement. I infer that Mr Denison's state of mind was that, in order to make good his promise to Mr Peachey to "pay you from the ticket sale proceeds" (see [18] above), it would be necessary to arrange for UAE Presents, and not UAERJ, to be a party to a venue hire agreement with Brisbane Riverstage. 149Mr Richardson prepared a "Venue Hire Contract" which nominated UAE Presents (not UAERJ) as the hirer. 150Mr Denison executed that document on 18 December 2012 as "COO" of UAE Presents. 151The person at Brisbane Riverstage authorised to sign the contract was Mr Timothy Flood. Mr Flood was on leave on 18 December 2012 so did not immediately sign the Venue Hire Contract. However, he said it was the usual practice of Brisbane Riverstage that, once a venue hire contract was signed by the hirer, everything proceeded as if the contract was on foot. Because Mr Flood was on leave, he did not execute the Venue Hire Contract on behalf of Brisbane Riverstage until 10 January 2013, shortly after his return to work. 152In the meantime, on 24 December 2012, Mr Flood executed the Brisbane Riverstage Irrevocable Direction (which recited that Brisbane Riverstage "has entered into a venue hire agreement with the Hirer") from his home. 153At that stage, tickets for the 24 March 2013 Brisbane Riverstage Jacksons Concert were on sale and "everything was proceeding". Mr Flood said that, as far as he was concerned, the hiring contract was in place. Mr Flood said that, as at 24 December 2012, it would just be "a matter of course" that he would sign the Venue Hire Contract when he returned to the office after the Christmas break. He said that he would not have signed the Brisbane Riverstage Irrevocable Direction if he had the slightest doubt that when he got back to the office he would sign the Venue Hire Contract. That is what, in fact, occurred. 154On 8 March 2013, Mr Denison wrote to Mr Richardson at Brisbane Riverstage: "We need to cancel the current irrevocable because it's in the wrong name, wrong signatory etc... the contract which [you] are drafting is the correct entity... should I call Tim Flood?" 155The "contract which [you] are drafting" was a further version of the Venue Hire Contract but with UAERJ (not UAE Presents) as the hirer ("the Brisbane Venue Hire Agreement"). 156It is unclear from the evidence whether Mr Denison wrote to Mr Richardson in these terms on 8 March 2013 because Mr Perera told him to, or rather, because Mr Denison believed Mr Perera was about to discover the circumstance that Mr Denison had entered a Venue Hire Contract with Brisbane Riverstage in the name of UAE Presents. 157On 11 March 2013, Mr Denison sent to Mr Flood a further version of the Brisbane Venue Hire Agreement which bore the date 1 December 2012 and which purported to be signed by Mr Perera as managing director. 158Mr Perera denied that the signature purporting to be his on that document was genuine. Nonetheless, as we will see, Mr Perera asserted to Brisbane Riverstage, directly, and through his legal representative, that Brisbane Riverstage was bound by the Brisbane Venue Hire Agreement. 159Later on 11 March 2013, Mr Denison wrote to Mr Flood: "As discussed this afternoon - the venue agreement is in the name of UAERJ Pty Ltd as is the artist executed contract and not UAE Presents as executed in the irrevocable agreement. The 2 companies are totally separate entities and have different ACN and Directors and more importantly I am not an authorised signatory on [sic] the UAERJ Pty Ltd company. I ask you to please rescind the current Irrevocable that is executed as it is not legally valid. I will be speaking to Jupiters to make alternative arrangements for any outstanding debt I personally have [with] them." 160Mr Flood replied: "Can you please confirm when you have spoken to Craig Peachey from Jupiters and provide a summary of your conversation?" 161Mr Denison said that he would do that. However, having heard no further from Mr Denison, the next day, 13 March 2013, Mr Flood wrote to Mr Denison: "I am taking this issue to our legal team. The original contract signed by yourself in the name of UAE Presents on the 18/12/2012 and accepted and signed by myself on the 10/1/2013 is the current contract. The contract sent through on the 11/03/13, and backdated under the name of UAERJ Pty Ltd, has not been accepted by myself, and will not be accepted until I either have advice from both yourself and Craig [Peachey] from Jupiters that an agreement has been reached. (and that the irrevocable direction can be cancelled) If you wish to dispute this I can pass you on to our legal team to discuss?" 162Mr Denison replied: "I am confirming the [irrevocable direction to pay] to be paid to Jupiters Casino". 163In the meantime, on 13 March 2013, Mr Peachey wrote a letter to Mr Flood, in similar terms to the one he had sent to Mr Barnes at WIN Wollongong, asserting Jupiters' rights under the Brisbane Riverstage Irrevocable Direction. 164In the Deed set out at [106] above, it is recited that: "On or about 14 March 2013 UAERJ Pty Limited became aware that Jupiters Limited were seeking approximately $186,000 from Perth Arena, WIN Entertainment Centre and Brisbane Riverstage." 165On 20 March 2013, four days before the Brisbane Jacksons Concert, the solicitors for UAERJ wrote to Mr Flood and Brisbane Riverstage stating that UAERJ "is the tour promoter for the Jacksons Unity Tour and is the party whom [sic] executed the Artist's Performance Agreement with the Jacksons" (a reference to the 13 February 2013 agreement to which I have referred at [88] above) and continued: "We confirm that Mr Denison acted as an agent on behalf of UAERJ in respect of booking the venues, including the Riverstage Brisbane venue, for the Jacksons Unity Tour and an agency agreement was executed. Accordingly, Mr Denison apparently acted outside of the scope of this agency agreement by allegedly entering into the agreement with you in the name of UAE Presents Pty Ltd, being a company which he is a director of and has no interest, affiliation or involvement with the Tour... Please be advised that Mr Denison has admitted that he acted outside the scope of the agency agreement with UAERJ. He has requested that you rescind this contract and the Irrevocable Direction to Pay... In any event, we note that UAE Presents Pty Ltd cannot complete the agreement you as it has no contract with the artist or control of same... We request that you provide your urgent undertaking that in the event you receive or have received any monies for the Jacksons performance scheduled for 24 March 2013 you will not pay any of these monies pursuant to the Irrevocable Direction to Pay Jupiters Limited... Further, we ask that you accept the termination of the agreement with UAE Presents Pty Ltd and request that you accept that the rightful contracting party is our client, UAERJ Pty Limited. You should immediately confirm in writing that you accept the Venue Hire Agreement dated 11 March 2013 with our client and intend to honour that agreement..." 166Thus, although Mr Perera denied that he signed the Brisbane Venue Hire Agreement which Mr Denison forwarded to Mr Flood on 11 March 2013, his solicitors were, on 20 March 2013, exhorting Brisbane Riverstage to "accept" that Agreement. There was no suggestion in the evidence that UAERJ's solicitors wrote this letter without, or contrary to, instructions. 167It is admitted on the pleadings (in terms) that on or about 22 March 2013: (a)Brisbane Riverstage rescinded or terminated the Venue Hire Contract executed by it and UAE Presents; and (b)entered into the Brisbane Venue Hire Agreement with UAERJ for the 24 March 2013 Jacksons Concert. 168It is clear from UAERJ's solicitors' letter of 20 March 2013, and I find, that Brisbane Riverstage took these steps at the insistence of Mr Perera and UAERJ. 169It is admitted on the pleadings that prior to 22 March 2013, both Mr Perera and UAERJ knew of the existence of the 24 December 2012 Brisbane Riverstage Irrevocable Direction and the UAE Presents Venue Hire Contract. Mr Perera's oral evidence was that he also knew, by then, that UAE Presents owed money to Jupiters and that the Brisbane Riverstage Irrevocable Direction was to secure payment of monies owed by UAE Presents to Jupiters. 170In fact, the Brisbane Venue Hire Agreement was executed by Mr Perera and by Mr Flood on 24 March 2013, the day of the Concert. 171The Brisbane Jacksons Concert took place on 24 March 2013.

[15]

Perth Arena 172In December 2012, Perth Arena entered into a "Hiring Agreement" for the 14 March 2013 Perth Jacksons Concert with "UAERJ Pty Ltd trading as UAE Presents" ("the Perth Venue Hire Agreement"). That document was executed for UAERJ by Mr Woo (described as a director of UAERJ) and by Mr Denison (described at one point as "COO" of UAERJ and another as "director/secretary" of UAERJ). The document is dated 12 December 2012 but, as emerges below, was evidently executed Mr Denison and Mr Woo a short time earlier. 173Neither Mr Perera nor UAERJ dispute that this Agreement was entered into by UAERJ. 174Mr Perera agreed that he had authorised Mr Denison to sign the Perth Venue Hire Agreement. He was able to see in what capacity Mr Denison purported to sign the document as Mr Denison sent him a copy of the "executed pages" of the document by email of 7 December 2012. Mr Perera said he did not open the attachment to the email as: " ... all I wanted to know was whether the venue hire agreement was executed and I was led to believe that it was and I had authorised Eric [Woo] and John [Denison] to execute these documents". 175That evidence suggests, and I find, that Mr Perera was not concerned to know, and did not care about, the capacity in which Mr Denison purported to execute the document. 176As I have mentioned, on 28 December 2012, Mr Steve Hevern, general manager of Perth Arena, executed and accepted the First Perth Arena Irrevocable Direction. 177Thus, unlike the situation with WIN Wolllongong and Brisbane Riverstage (where the counterparty to the venue hire agreements was originally UAE Presents but was changed shortly before the relevant concert to UAERJ), the counterparty to the Perth Venue Hire Agreement was at all times UAERJ. 178There is also in evidence a further venue hire agreement between Perth Arena and "UAERJ Pty Ltd trading as UAE Presents" dated 4 March 2013. That document purports to have been executed by UAERJ by Mr Perera (whose "signature" is witnessed by Mr Denison). Mr Perera denies that he executed this document. Nonetheless he later asserted the validity of the 4 March 2013 agreement (see [192] below). As UAERJ and Mr Perera do not dispute the existence of the Perth Venue Hire Agreement dated 12 December 2012, the validity of the 4 March 2013 document is not a vital issue in the proceedings. 179On 12 March 2013, Mr Peachey and Mr Denison had the following conversation on the telephone. Mr Hevern, from Perth Arena, was also present on the line (although there is no evidence of anything said by Mr Hevern): "Mr Denison: The show is not going to go ahead as the artist wants to get paid from the box office. I want to reduce the $186K out of the Perth box office. I need to pay the artists their $150K fee and you will get $89K. Mr Peachey: There is no way I could accept a payment amount of anything less than $150K in respect of the Perth box office. Mr Denison: I don't think it is going to fly." 180There must have been further discussion on this topic, as evidenced by the following email exchange on 13 March 2013. 181Mr Denison sent an email to Mr Hevern (with a copy to Mr Peachey): "I confirm to pay $150,000 to Jupiters Casino in accordance [with] the IDP and accordingly please furnish a copy of the bank account details to Ticketek to effect the transfer." 182Mr Peachey sent an email to Mr Hervern (with a copy to Mr Denison): "Could you please confirm your agreement to execute against ou Irrevocable Direction in accordance with [the email referred to in the preceding paragraph]". 183Mr Glen Hall from Perth Arena then sent an email to Mr Peachey: "We understand that agreement has been reached between yourself and [UAERJ] and as such attach an amended IDP in accordance with that agreement, which we are requesting that [UAERJ] execute today. Upon execution - then the process will be that on Friday 15th March, we will distribute the payments in accordance with the IDP in order as expressed by the document and will send a remittance advice to the appropriate parties informing them that payment has been made." 184Mr Peachey replied: "I have reviewed the revised Irrevocable Direction to Pay. We require [a nominated alternation]. So that we can confirm the details of the direction are correct, we require a copy of the signed venue hire agreement. Subject to the above, on receipt of the updated direction signed by all other parties, I will arrange for execution by Jupiters." 185Later on 13 March 2013, Mr Denison executed the Second Perth Arena Irrevocable Direction on behalf of UAERJ (as "director"). 186UAERJ denies that Mr Denison had authority from it to execute that document. Jupiters contends that if Mr Denison did not have actual authority from UAERJ, he had ostensible authority to execute the document. 187Despite Mr Peachey's email referred to at [184] above, there is no evidence the document was executed by Jupiters. 188Relevantly, the terms of the Second Perth Arena Irrevocable Direction were as follows: "Irrevocable Direction to Pay I refer to the [Perth Venue Hire Agreement] between [Perth Arena] and [UAERJ] in relation to the hire of Perth Arena for The Jacksons on 14 March 2013 ("the Show"). Under the [Perth Venue Agreement], [Perth Arena] is entitled to hold ticketing revenues collected from the sale of tickets to the Show for [UAERJ] until after the Show is completed at which point [Perth Arena] will deduct monies payable to [Perth Arena] under the [Perth Venue Hire Agreement] and remit the balance ("Net Ticketing Monies") to or as directed by [UAERJ]. All of the parties to this Irrevocable Direction to Pay...acknowledge and agree that this direction supersedes any previous directions which may have been given to [Perth Arena] and represents the only direction with which [Perth Arena] must comply. [UAERJ] irrevocably directs and authorises that after performance of the Show is complete, [Perth Arena] shall pay the amount of the Net Ticketing Monies payable to [UAERJ] under the [Perth Venue Hire Agreement] in accordance with the following list and in the order as described:

Jupiters Limited trading as Jupiters Gold Coast $150,000 ...
Artist Escrow Services Pty Limited $140,000 ... after payment of the amount to Jupiters Limited in accordance with paragraph 1 above...
Phase1 Audio...$40,000 ... after payment of the amounts to Jupiters Limited and Artist Escrow Services Pty Limited in accordance with paragraphs 1 and 2 above... ... [Perth Arena] and [UAERJ] agree that this letter is governed by the laws of Western Australia." 189The document thereafter made provision for execution by the parties. Mr Denison signed as director of UAERJ. Mr Hall witnessed his signature. 190The document thereafter continued: "Acceptance In consideration of [UAERJ] hiring or continuing to hire the venue, [Perth Arena] acknowledges and accepts the terms of this Letter. [Perth Arena] agrees to abide by the terms of this Letter." 191The document was executed on behalf of Perth Arena by Mr Hall. 192On the day of the Perth Jacksons Concert, and in response to emails Mr Perera sent on 14 March 2013 (referred to at [222] and [223] below), Perth Arena wrote to Mr Perera at UAERJ: "We refer to your email today and note that [UAERJ] asserts that both of the hiring agreements entered into by it with [Perth Arena] are valid on the basis that the people who signed those agreements were authorised by UAERJ. Perth Arena is not in a position to determine whether this is correct or not prior to the commencement of the show tonight. Therefore, Perth Arena is relying upon your confirmation to us this afternoon (as the sole Director and Secretary of UAERJ) that those people were authorised to bind UAERJ and that the terms contained in those agreements govern the hire of the Perth Arena for the show tonight. On that basis, the show will proceed tonight as you have requested. In the absence of your confirmations, there would have been no hiring agreement for tonight, Perth Arena would not have allowed the show to proceed tonight and, instead, would have returned all box office proceeds to the ticket holders." (emphasis added). 193Thus, despite asserting, in these proceedings, that the signature purporting to be his on the 4 March 2013 venue hire agreement was a forgery, Mr Perera had asserted to Perth Arena that "the person who signed" that venue hire agreement was authorised to bind UAERJ. 194The Perth Jacksons Concert took place on 14 March 2013.

[16]

Equitable charge over the Ticket Sale Proceeds - WIN Wollongong and Brisbane Riverstage 195As I have mentioned, Jupiters' primary contention is that it has an equitable charge over the Ticket Sale Proceeds held by WIN Wollongong and Brisbane Riverstage. 196The relevant principle is summarised in Palmer v Carey [1926] AC 703; (1926) 37 CLR 545 at 548 as follows: "The law as to equitable assignment, as stated by Lord Truro in Rodick v. Gandell, is this: 'The extent of the principle to be deduced . . . is, that an agreement between a debtor and a creditor that the debt owing shall be paid out of a specific fund coming to the debtor, or an order given by a debtor to his creditor upon a person owing money or holding funds belonging to the giver of the order, directing such person to pay such funds to the creditor, will create a valid equitable charge upon such fund, in other words, will operate as an equitable assignment of the debts or fund to which the order refers'." (citations omitted) Palmer v Carey was cited with approval in Halsted (Bankrupt) v The Official Trustee in Bankruptcy, in the matter of Halsted (Bankrupt) [2011] FCA 1242 at [9] per Logan J. 197The "agreement between a debtor (UAE Presents) and a creditor (Jupiters) that the debt owing shall be paid out of a specific fund" upon which Jupiters relies is the Costs Agreement. 198The "order(s) given by a debtor (UAE Presents) to his creditor (WIN Wollongong and Brisbane Riverstage)... holding funds belonging to the giver of the order (UAE Presents)" upon which Jupiter relies are the WIN Wollongong Irrevocable Direction and the Brisbane Riverstage Irrevocable Direction. 199But, as I have stated (at [24] above), a charge cannot arise unless UAE Presents was, or would become, entitled to the Ticket Sale Proceeds. That is why Jupiters has pleaded that it was an implied term of the Costs Agreement that UAE Presents was so entitled. I have found the existence of that implied term (see [20] to [23] above). 200But I have also found that such agreement as Mr Denison had with ICM, evidenced by Mr Mantell's emails of 27 November 2012 and 21 December 2012, and the subject of the Admission, did not confer on Mr Denison any such entitlement; UAERJ - not Mr Denison or UAE Presents - was the party entitled to the Ticket Sale Proceeds (see [99] to [115] above). 201That conclusion is fatal to Jupiters' claim for an equitable charge over the funds held by WIN Wollongong and Brisbane Riverstage.

[17]

Assignment of interest in the Ticket Sale Proceeds - Perth Arena 202So far as concerns the funds held by Perth Arena, as I have mentioned, Jupiters relies on the Second Perth Arena Irrevocable Direction as constituting an assignment by UAERJ to it of the Perth Arena Ticket Sale Proceeds. 203Mr Denison purportedly executed that document on behalf of UAERJ. 204Ms Dawson submitted that Mr Denison had either actual or ostensible authority to sign the Second Perth Arena Irrevocable Direction. 205I do not accept the submission that Mr Denison had actual authority to sign the document. Mr Perera agreed that Mr Denison was authorised to liaise with venues on behalf of UAERJ in relation to irrevocable directions to pay but denied that Mr Denison was authorised to execute such documents. Even if, generally, Mr Denison was authorised to sign irrevocable directions to pay on behalf of UAERJ, I do not accept that he was authorised to execute such documents if they had the effect of causing funds otherwise due to UAERJ to be paid to a creditor of Mr Denison (or UAE Presents), such as Jupiters. To come to any different conclusion would amount to concluding that Mr Denison had actual authority to appropriate UAERJ's property to his own use. 206I do, however, accept Ms Dawson's submission that Mr Denison had UAERJ's ostensible authority to execute the Second Perth Arena Irrevocable Direction. 207The principles relevant to the question of ostensible authority are well known. In Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480, Diplock J held that in order for a principal to be bound by a contract with a third party that was executed by a person allegedly acting as an agent for the principal: "It must be shown: (1) that a representation that the agent had authority to enter on behalf of the company into a contract of the kind sought to be enforced was made to the contractor; (2) that such representation was made by a person or persons who had 'actual' authority to manage the business of the company either generally or in respect of those matters to which the contract relates; and (3) that he (the contractor) was induced by such representation to enter into the contract, that is, that he in fact relied upon it..." (at 505 - 6). 208These principles were applied by Lush J in Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co Pty Ltd [1975] VR 607 at 614. 209In dismissing an appeal from Lush J's decision, the High Court approved his Honour's application of the principles in relation to ostensible authority (see Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co Pty Ltd (1975) 133 CLR 72 at 78). 210In my opinion, the requirements referred to in Freeman & Lockyer are satisfied here. 211I have set out above (see [173] to [175] above) the circumstances in which Mr Perera authorised Mr Denison to execute the Perth Venue Hire Agreement on behalf of UAERJ. Mr Denison purported to execute that document as a director of UAERJ. Mr Perera, being the person with "actual" authority to manage the business of UAERJ, knew of and accepted the fact that Mr Denison had taken that step and was, I have found, indifferent to the manner in which he had done so. He thus represented to Perth Arena that Mr Denison had authority to enter into the contract that was at the foundation of UAERJ's contractual relationship with Perth Arena. 212Further, as I have mentioned, Mr Perera agreed that Mr Denison was authorised to deal with Perth Arena, on behalf of UAERJ, in relation to irrevocable directions to pay albeit, as Mr Perera said, not to execute such documents. 213That combination of events constitutes, in my opinion, a clear representation by UAERJ that Mr Denison had authority to enter into the Second Perth Arena Irrevocable Direction. 214The evidence at [179] to [184] above makes clear that Perth Arena was induced by such representation to enter into the contract. 215The Second Perth Arena Irrevocable Direction was expressed to be subject to the laws of Western Australia. 216Section 20 of the Property Law Act 1969 (WA) is in the following terms: "Assignment of debts and choses in action (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim that debt or chose in action, is effectual in law (subject to equities having priority over the right of the assignee), to pass and transfer from the date of the notice - (a) the legal right to that debt or chose in action; (b) all legal and other remedies for the debt or chose in action; and (c) the power to give a good discharge for the debt or chose in action, without the concurrence of the assignor. ... (3) For the purposes of this section any debt or other legal chose in action includes a part of any debt or other legal chose in action." (emphasis in original) 217I accept Ms Dawson's submission that each of the requirements of this section was satisfied. 218First, UAERJ's interest in the Perth Arena Ticket Sale Proceeds was a legal chose in action, part of which UAERJ assigned to Jupiters. Subsection 20(3) of the Property Law Act (WA) permits assignment of part of a legal chose in action. 219Second, the assignment was "absolute", in the sense of being unconditional (see Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 20 per Mason J) and did not purport to be by way of charge only (cf Re Row Dal Constructions Pty Ltd [1966] VR 249 at 259 per Herring CJ). 220Third, the assignment was in writing and written notice of it was given to Perth Arena (which executed the document). 221Thus, by operation of s 20 of the Property Law Act (WA), the Second Perth Arena Irrevocable Direction was "effectual in law" sufficient to assign from UAERJ to Jupiters what would otherwise be UAERJ's entitlement to the Ticket Sale Proceeds from the Perth concert, up to $150,000. 222After the execution of the Second Perth Arena Irrevocable Direction, Mr Perera sent the following email to Mr Hevern: "I can confirm that Contracts with venue are meant to be under UAERJ Pty Ltd. Since we are proceeding on this basis, I can confirm that I am unaware of any arrangements with Jupiters and any payment to them without my prior consent is unauthorised." 223Later on the same day, Mr Perera sent a further email to Mr Hevern: "As per discussion, please see points below for clarification: ● I am the sole director of UAERJ Pty Ltd ● John Denison is a contractor for UAERJ Pty Ltd ● John Denison does not have authority to assign any money from Box Office ● All instructions to the venue in relation to the matter is [sic] only to be given by myself ● I am authorising payment for Artist Escrow Services and Phase 1 Audio ● No other authorities are to be in place. Remainder of all other monies is to be paid only to UAERJ Pty Ltd." 224By these emails, Mr Perera was making clear to Perth Arena that, in fact, Mr Denison did not have the authority of UAERJ to execute the Second Perth Arena Irrevocable Direction. 225However, I accept the following submissions made by Ms Dawson: "... to the extent that Mr Perera may have purported to revoke Mr Denison's authority (whether actual or ostensible) in his email communications with Perth Arena on 14 March 2013, this purported revocation is irrelevant, as the assignment of UAERJ's interest in... the ticket proceeds had already taken place. Therefore, the only person with power to deal with that interest was Jupiters... At the time that UAERJ entered into the [Second Perth Arena Irrevocable Direction], Mr Denison's authority had not been revoked. Further, a revocation of authority is only effective once it is communicated to the third party: Scarf v Jardine (1882) 7 App Cas 345 at 356-7 per Lord Blackburn; Bowman v Bacon (1897) 18 LR (NSW) L 12. To the extent that Mr Perera, by his email communications with Perth Arena on 14 March 2013, purported to revoke Mr Denison's authority in relation to irrevocable directions, that revocation came too late. By 13 March 2013, UAERJ and Perth Arena were contractually bound to the terms of the [Second Perth Arena Irrevocable Direction]." 226In these circumstances, Jupiters is entitled to be paid $150,000 from the Ticket Sale Proceeds held by Perth Arena.

[18]

Election - the settlement between UAERJ, UAE Presents and Mr Denison and the subsequent District Court proceedings 227Ms Dawson developed comprehensive submissions concerning an election that she contended UAERJ had made by commencing and prosecuting the District Court proceedings to which I have referred (see [12] above). Ms Dawson drew attention to the observations of Gummow, Hayne and Kiefell JJ in Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at [56], Sifris J in Steadmark Pty Limited v Bogart Lingerie Limited [2013] VSC 402 at [34] - [35] and Lindsay J in The Owners - Strata Plan 62658 v Mestrez Pty Ltd [2012] NSWSC 1259 at [150]. 228However, assuming the correctness of those submissions, I have concluded they do not take Jupiters any further. 229 In the District Court proceedings, UAERJ alleged that: (a)UAE Presents and Mr Denison had wrongfully represented to Perth Arena, WIN Wollongong and Brisbane Riverstage that UAE Presents was the tour promoter for the Jacksons tour and had wrongfully directed that all proceeds at the box office of the tour be paid to "a third party creditor" of Mr Denison (that is Jupiters); (b)in furtherance of that misleading conduct, UAE Presents and Mr Denison caused the December 2012 irrevocable directions to be executed by those venue operators; and (c)as a result of that conduct, UAERJ "suffered loss and damage". 230In the circumstances I have described above (at [107] to [110]), UAERJ obtained judgment in the District Court proceedings against UAE Presents and Mr Denison in the sum of $700,000. 231Further, UAERJ sought to enforce that judgment by garnishee orders directed to Perth Arena, WIN Wollongong and Brisbane Riverstage. 232UAERJ thereby asserted in the District Court that the venue operators were debtors of UAE Presents (or Mr Denison) (see s 117 of the Civil Procedure Act 2005). As the only dealings the venue operators had with UAE Presents (or Mr Denison) were those that led to the venue operators holding the Ticket Sale Proceeds, UAERJ also implicitly asserted that UAE Presents (or Mr Denison), and not UAERJ, was entitled to the Ticket Sale Proceeds. 233UAERJ takes the opposite position in these proceedings. 234But I have found that neither UAE Presents, nor Mr Denison, has an interest in the Ticket Sale Proceeds; and that, therefore, Jupiters does not have an equitable charge over those proceeds in the hands of WIN Wollongong or Brisbane Riverstage. 235Thus, even if UAERJ has, by conducting itself in the District Court proceedings as I have described, made an election to eschew an entitlement to the Ticket Sale Proceeds, it does not follow that UAE Presents, Mr Denison or Jupiters has such an entitlement. 236Nor could it follow, in my opinion, that UAERJ is foreclosed, in any circumstances, from claiming the Ticket Sale Proceeds. 237If Jupiters did have an interest in the Ticket Sale Proceeds held by WIN Wollongong and Brisbane Riverstage, it may very well be that, by virtue of an election made by UAERJ, Jupiters' interest in the proceeds would be superior to that of UAERJ. 238But absent any interest in the Ticket Sale Proceeds of UAE Presents, Mr Denison, or Jupiters, who else but UAERJ could have such an interest? According to the terms of the 13 February 2013 Talent and Literary Agency Agreement between UAERJ and ICM, UAERJ is the party entitled to the Ticket Sale Proceeds. WIN Wollongong and Brisbane Riverstage do not, and could not, assert any such entitlement. 239For those reasons, I do not find it necessary to consider this aspect further.