Kissane Family Pty Limited as Trustee for the Kissane Family Trust v Burns

The Critical Issue for Determination: the Proper Construction of Clause 11

1. The critical issue for determination on the hearing of the separate questions is the meaning to be attributed to clause 11 of the principal contract between the plaintiff, Trinity and the Guarantors.
2. By clause 11, Trinity covenanted, inter alia, that funds provided by the plaintiff to cover the costs of the Everton FC tour would be repaid to the plaintiff "from the distribution of ticket sales".
3. The plaintiff points to clause 5 of the contract (wherein it covenanted with Trinity "to provide funds by way of a loan") and contends that clause 11 provided but a means of the loan being repaid.
4. The Guarantors point to the full text of clause 11 and other provisions of the contract (including a "profit-sharing" agreement contained in clause 12) in support of a contention that the relationship between the parties was not really that of "lender" and "borrower", but of joint venturers, in an arrangement whereby the liability of Trinity (and, derivatively, that of the Guarantors) was limited to ensuring that the plaintiff received the net proceeds of ticket sales, and any interests on sale proceeds, in the event of the venture failing to make a profit.
5. The Guarantors contend that the parties agreed that the plaintiff's loan would be without recourse to Trinity and the Guarantors because: (a) having "invested" in the tour, the plaintiff stood to make a 50% return or thereabouts within four months had the tour been successful; and (b) as the price for such a prospective return, the plaintiff knowingly assumed the commercial risk of ticket sales not being sufficient to cover the amount invested.
6. A variant of this contention emphasised the size of the plaintiff's prospective commercial return, from a successful tour, by reference to a budgeted allowance of a fee in favour of the plaintiff.

The Terms of Clause 11 (incorporating reference to clause 12)

1. Clauses 11 and 12 of the contract are in the following terms, with the insertion of sub-clause numbering in clause 11 as an aid to analysis: "11. Repayment of funds (1) Trinity covenants that the funds shall be repaid to [the plaintiff] from the distribution of ticket sales. (2) Trinity discloses to [the plaintiff] and [the plaintiff] acknowledges that the proceeds from ticket sales will be held on trust by Ticketek until each match [played by Everton FC] is concluded at which time Ticketek shall distribute the revenue from ticket sales. (3) The parties agree that [the plaintiff] shall have the sole benefit of the interest, if any, that accrues on the funds whilst they remain on trust with Ticketek. (4) The parties agree that the funds and accrued interest, if any, will be paid directly to [the plaintiff's] nominated account and that any amount over and above the funds advanced by [the plaintiff] will be paid directly to the Project Account. (5) [The plaintiff] agrees and warrants that on receipt of the full funds and interest that the payment and manner in which it is paid will be in full and final satisfaction of the funds advanced and, subject to any other provision of this Deed, in particular clause 12 [the plaintiff] shall make no claim, raise no objection or bring an action or suit in any Court of competent jurisdiction in relation to the Funds. 12. Profit-sharing In consideration for the Funds advanced by [the plaintiff] the parties agree that the profits from the Project shall be distributed in the following proportions: Trinity 60% [The plaintiff] 40% With the written consent of both parties the parties may make an interim distribution of Profits with the balance being made at the end of the Project."

Admissibility of Extrinsic Evidence

1. There is room for debate about the meaning of clause 11 because it, and other clauses in the contract, are drafted with loose language reflective of the speed with which the contract was apparently drafted. Complete consistency in the language, or punctuation, of the text is not to be expected.
2. Each party accepts that a principle of objectivity operates in construction of the contracts: The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean; and that, normally, requires consideration, not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40]; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at 656-657 [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2014] NSWCA 323 at [36]-[39].
3. The Guarantors lament that, they say, they executed the contract without appreciating its terms; but they accept that they did sign it and that, having signed it, they became bound by its terms, properly construed.
4. An issue that divides the Guarantors from other active parties (the plaintiff and the third defendant) is the utility of evidence of "surrounding circumstances" in construing the parties' contract. Relying upon Mainteck Services Pty Ltd v Stein Heurty SA [2014] NSWCA 184; (2014) 310 ALR 113 at [71] and [79] and Newey v Westpac Banking Corporation [2014] NSWCA 319 at [86]-[91], the Guarantors emphasise that identification of ambiguity on the face of a contractual document is not a precondition to an examination of surrounding circumstances known to the contracting parties. A contract must, ordinarily, be read in the context of such circumstances. Nevertheless, where the words in a contract are ambiguous or susceptible of more than one meaning evidence of surrounding circumstances may be consulted specifically to assist in interpretation of the contract, though not to contradict the plain meaning of the contract: Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 350 and 352.
5. All parties accept that evidence of a party's subjective belief, understanding or intention about his, her or its rights and liabilities is not, in itself, admissible.
6. Clause 11 is capable of being interpreted (as the plaintiff would have it) as only a machinery provision, indicative of one means via which the plaintiff might recover a loan; or (as the Guarantors would have it) as a limitation on the plaintiff's recourse to Trinity, and the Guarantors, for repayment of funds lent.
7. The word "funds" in clause 11 can be read as referable to the plaintiff's loan or simply to revenue from ticket sales. The references to "interest" and to a payment of "the full funds and interest" being "in full and final satisfaction of the funds advanced" can be read in different ways. There is no general provision in the contract for interest to be paid on the plaintiff's advance. Although clause 11 uses the word "funds" with both a lower and an upper case "F", there appears to be no rhyme or reason in different manifestations of the word. Throughout the contract lower and upper case letters appear to have been used indiscriminately.
8. In their endeavours to unpack the language of clause 11 the parties traversed, particularly, thickets of loose language relating to "termination" of the contract (clause 16, especially clauses 16B and 16C) and the term of the contract (clause 4).
9. The Guarantors, in particular, also referred to the drafting history of the contract and the terms of the "Everton Tour Agreement", provisions of which (specifically, clause 12) were said by them to have been incorporated, inappropriately, in the contract (specifically, clause 16).
10. In an endeavour to support their construction of clause 11 the Guarantors adduced evidence of conversations between representatives of Trinity and the plaintiff, during negotiations for the contract, tending to prove that: (a) an industry custom was that investors, such as the plaintiff is said to have been, ordinarily bore the risk of a project's commercial success or failure; and (b) the plaintiff was specifically warned of this before its entry into the contract.
11. That evidence was admitted subject to relevance. It was not the subject of cross examination.
12. Having reflected on the proper construction of the contract, within the parameters of the contract document, I am not satisfied that the extrinsic evidence relied upon by the Guarantors provides any real assistance in interpretation of clause 11, or any other part of the contract,
13. The text of the contract is too strongly flavoured with the language of financial accommodation to overcome any contrary flavour associated with the Guarantors' advocacy of a non-recourse joint venture based on loose usage of words, punctuation or association of concepts in the contract.
14. The language of financial accommodation (involving a lender and borrower) includes, prominently: 1. express characterisation of the plaintiff's role as that of a "funder": recitals 3 and 4; clause 5. 2. express characterisation of the plaintiff's provision of funding as "by way of a loan": clause 5. 3. express reference to the provision of a Fixed and Floating Charge (to the terms of which, with overt deliberation, no party referred) "in further consideration of [the plaintiff] agreeing to lend the funds to Trinity": clause 27. 4. repeated use of the word "advance" and derivatives of the word "advance" throughout the contract: clauses 6B, 11(4), 11(5), 12, 13, 16B(i) and 26A; First Schedule, Item 1. 5. description of the process of providing funding by reference to the concept of funds being "drawn down": clauses 7 and 8; First Schedule, Item 3. 6. express provision for the funds advanced by the plaintiff to be "repaid": clause 11(1). 7. an express contractual obligation on Trinity to obtain " insurance coverage of an amount equal to or in excess of the Funds advanced": clause 13.
15. This language weighs heavily against arguably contrary indications found in: 1. Trinity's warranty that the funds provided by the plaintiff would be used for the sole purpose of, incidental to or arising out of the agreed Project (the Everton FC Tour) and no other purpose: clause 5. 2. the parties' agreement that each would have a signatory on the "Project [Bank] Account": clause 9. 3. provision for the parties to have regular meetings "to review the performance of the project": clause 10. 4. the agreement between the parties that, in consideration for the funds advanced by the plaintiff, profits from the Project would be distributed between the parties in fixed proportions: clause 12. 5. the express contractual obligation of confidentiality accepted by the plaintiff in consideration of Trinity providing it with access to confidential information: clause 18.
16. In construing the Contract I do not attribute significant weight to the Guarantor's contentions based upon the size of commercial gains the plaintiff may have stood to make from a successful Everton FC tour. The Court is not well placed to assess the fairness or otherwise, or the commerciality, of the particular transaction. The best guide to parties' contractual intention is the wording of the contract, read in light of the purpose and object of the transaction it embodied.
17. In characterisation of a contractual relationship the Court is not bound to embrace the contracting parties' formal characterisation of their relationship or an underlying transaction without regard to the substance of their dealings. Nevertheless, the language of this particular contract is able to be read, objectively and reasonably, in a manner that consistently addresses both form and substance.
18. An additional, fundamental problem with the Guarantors' extrinsic evidence (apart from usual doubts about travelling outside a written agreement) is that the plaintiff's response to being informed of an investor's "customary risk" appears to have been to insist that clause 5 of the contract be amended to include express characterisation of the funds provided as "a loan". In its eagerness to secure the plaintiff's funding against a looming commercial deadline, Trinity agreed to that amendment, and the Guarantors guaranteed Trinity's obligations. Even if an industry norm was that an investor ordinarily had no recourse against a promoter, that norm was departed from in this case.
19. Read in context, the inference I draw from the disputed evidence of pre-contract conversations is that, if relevant, it favours the plaintiff's case, not that of the Guarantors. Trinity entered the contract accepting that the plaintiff insisted on its provision of funds "by way of a loan", implicitly repayable as such.
20. Ultimately, despite any controversy attaching to the meaning of clause 11, there is no substitute for construing its language, objectively, in the context of the commercial purpose and object of the transaction, and the whole of the contract.

The Contractual Context of Clause 11, and Competing Contentions

1. In formal terms, the purpose and object of the contract can be taken from its recitals: "RECITALS 1. Trinity has invited Everton FC to send a football team to Australia to promote its team and brand in Australia. 2. Everton FC has agreed in principle to send a football team to Australia to play three football matches against Brisbane Roar, Sydney FC and Melbourne Heart. 3. Trinity requires funding to cover the costs of the Everton FC tour. 4. Trinity has requested funding from [the plaintiff] and [the plaintiff] has agreed to provide funding in accordance with the terms of this Deed [emphasis added] ."
2. The expression "funding" is not defined in clause 1 of the contract, but the word "Funds" is. It is defined (with emphasis added) as meaning "the advance to Trinity by [the plaintiff] as identified in Item 1 of the schedule".
3. Item 1 specifies an amount of $5,160,000 as "Funds Advanced". The parties are agreed, however, that the relevant figure is $5,235,000, not that specified.
4. Clause 5 (headed "Funds") provides, as earlier noted, a covenant by the plaintiff "with Trinity to provide funds by way of a loan for the project set out herein".
5. Clause 5 also includes a warranty by Trinity "that the funds shall be for the sole purpose of, incidental to or arising out of the Project and no other purpose".
6. The "Project" is defined by clause 1 as meaning "the performance of the "Everton tour agreement between the Everton Football Club Company Ltd and Trinity (and the Guarantors) contained in schedule 4 to the contract.
7. Clause 6 of the contract was in the following terms: "6. Pre-Conditions to Draw Down A. Trinity shall have no entitlement to draw down any funds from the Project Loan Account [a bank account specifically identified in the definition of 'Project Account' in clause 1 of the contract] until such time as the Tour Agreement [defined in clause 1 as schedule 4 to the contract] has been executed by Everton. B. In the event that Trinity is not in a position to comply with the precondition outlined herein within twenty one (21) days of the operative date [defined in clause 1 as "the day that this Deed is executed"] then the fund advanced by [the plaintiff], if any, shall be returned in full together with any accrued interest, if any."
8. Clauses 7 and 8 deal with the mechanics of "draw down".
9. Each of the specific provisions to which reference has been made in the immediately preceding paragraphs uses language appropriate to a lending transaction and a relationship between lender and borrower. It does not use language suggestive of a joint-venture.
10. To get the flavour of a joint venture one must specifically engage clauses 11 and 12, coupled with the absence in the contract of any provision specifically providing for the plaintiff's "advance" to be repaid with interest calculated at a particular rate or rates, or generally.
11. With emphasis, clause 16 of the contract (upon which the parties focused substantial attention) is in the following terms: "16. Termination A. Subject to the provisions of this Deed and without prejudice to any other rights or remedies which the parties may have, either party may terminate this Deed without liability to the other immediately on giving notice to the other if: (i) Trinity fails to comply with the precondition in clause 6a, and the Funds are returned in accordance with clause 6b; or (ii) the other party fails to pay any amount due under this Deed on the due date for payment and remains in default not less than seven days after being notified in writing to remedy the default; or (iii) the other party commits a breach of a material term of this Deed and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach; or (iv) the other party repeatedly breaches any of the terms of this Deed in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Deed; or (v) the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of the Corporations Act; or (vi) the other party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors, or (vii) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party; or (viii) an application is made to a Court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given or an administrator is appointed over the other party; or (ix) a floating charge holder over the assets of that other party has become entitled to appoint, or has appointed, an administrative receiver, or (x) person [sic] becomes entitled to appoint a receiver over the asserts of the other party, or a receiver is appointed over the assets of the other party; or (xi) a creditor or encumbrancer of the other party attaches or takes possession of, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 7 days; or (xii) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business. B. On termination of this Deed for any reason: (i) Trinity shall immediately pay to [the plaintiff] all Funds advanced pursuant to clause 5; and (ii) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected. C. On termination of this Deed (however arising) the following clauses shall survive and continue in full force and effect: (i) Clause 1 (Definitions); (ii) Clause 2 (Interpretation) (iii) Clause 3 (Governing Law) (iv) Clause 12 (Profit Sharing); (v) Clause 16 (Termination); (vi) Clause 17 (Dispute Resolution); (vii) Clause 18 (Confidentiality);"
12. Clause 16, expressly dealing with the topic of "Termination", invites inquiry as to the term of the contract. That inquiry is met by reference to clause 4, which is in the following terms: "4. Term of This Deed This Deed shall remain in force for the following term: Commencement: The operative date [agreed by the parties to be 29 April 2010]. Termination: 31 August 2010 or on the occurrence of an event contained within clause twelve."
13. The reference here to "clause 12" is said by the Guarantors to be a typographical error, intended to be a reference to clause 16. The error, they say, occurred because provisions in clause 16 were taken from clause 12 of the Everton Tour Agreement. That may well be so. In any event, the words "on the occurrence of an event contained within clause…" naturally point to the events specified in clause 16A. There is no other clause, within the confines of the text of the contract, that naturally answers that description.
14. The reference to "31 August 2010" reflects scheduling of Everton FC's tour matches in July 2010.
15. In my opinion, clause 16 is, at best, an uncertain guide to the proper construction of clause 11. The word "Termination" used in the heading to clause 16 finds expression in clause 4 in terms that suggest that, in clause 4, it includes the concept of the contract being discharged by performance or effluxion of time, not merely by service of a notice upon breach. The relationship between the subclauses of clause 16 (A, B and C) has been the subject of debate because subclause 16A is expressed to be "without prejudice to any other rights or remedies which the parties may have"; clause 16B is introduced by the words "on termination… for any reason"; and subclause 16C is introduced by the words "on termination of this deed (however arising)".
16. The plaintiff relies, particularly, on subclause 16B(i) in combination with a contention that (by virtue of clause 4) "all Funds advanced pursuant to clause 5" were repayable on or before 31 August 2010. The Guarantors contend, and the plaintiff denies, that the words "for any reason" in subclause 16B relate back only to the "reasons" set out in clause 16A. The operation of clause 16C is obscured, at least to some extent, by the continuing, post-termination effect attributed by the subclause to clause 16 itself.
17. On the whole, in my opinion clause 16 speaks only to a situation in which there has been an "event of default" (for which clause 16A provides) and a notice of termination is given.
18. In the event of a notice of termination having been given under clause 16A, clause 16B(i) contemplated an "immediate" repayment of "all Funds advanced". In all other eventualities, the problem of the proper construction of clauses 11 and 12 identified by the parties' competing contentions remains prominent.
19. Consideration of clause 16 in these proceedings is confined to its relevance, if any, to the proper construction of clauses 11 and 12. This is not a case in which a notice of termination was given under clause 16. Everton Football FC having played its exhibition matches, the term of the contract came to an end on 31 August 2010. The problem was that revenue from ticket sales was insufficient to cover the funding provided by the plaintiff, let alone to produce a profit contemplated by clause 12.
20. The Guarantors rely heavily upon the sequence of the notional subclauses in clause 11 (culminating in reliance on the expression "in full and final satisfaction" in subclause 11(5)), and the prospect of a clause 12 profit-sharing arrangement, to contend that the contract allocated the commercial risk of the project to the plaintiff.
21. They contend that the terms of the guarantee given by them in clause 26 have no bearing on the proper construction of clause 11 because the contract contained obligations on the part of Trinity other than repayment of the plaintiff's "advance" that explain the need for a guarantee. Those other obligations included, for example, the obligation of Trinity (under clause 13) to obtain insurance coverage and the obligation of Trinity (under clause 14) to ensure that Everton FC would proceed with the Tour Agreement or some modification thereof.
22. As it happens, I agree that that clause 26 casts no great light on the proper construction of clause 11, beyond the fact, significantly, that it contains an acknowledgement that the Guarantors provided their guarantee "in consideration of [the plaintiff] agreeing to advance funds to Trinity". This is another instance of the contractual language attributing to the plaintiff's funding the character of an "advance".

The Proper Construction of Clause 11

1. Leaving aside clauses 11 and 12 for the moment, the contract provided for the plaintiff "to provide funds by way of a loan" ("advance"), for a limited purpose, and for an express limited time (namely, until 31 August 2010). Use of the word "loan", even more than the word "advance", implies the existence of a borrower (Trinity) and an obligation in the borrower to repay funds provided "by way of a loan".
2. Given the commercial character of the agreement, characterisation of the transaction as a "loan" might also be thought to imply, although not as clearly so, an obligation to repay with interest (at least from the expiry of the time limited for the loan) moneys lent/advanced.
3. However, properly read, together, clauses 11 and 12 leave little room for any implication of a contractual obligation on Trinity to pay interest as such. The contract proceeded on the footing that the plaintiff was to be "repaid" the "funds advanced" by a particular date (31 August 2010) with a prospect of a profit share.
4. The contract contains no definition of the words "profit" and "profits" found in clause 12. In ordinary parlance, though, and in the context of the contract (including a budget annexed as "Schedule 2" to the contract), they might reasonably be taken to mean a financial calculation in which, from gross receipts, expenses (including repayment of the plaintiff's loan) have been deducted. That interpretation is reinforced by the distinction drawn, in clauses 11 and 12 read together, between "revenue" (referred to in clause 11) and "profits" (referred to in clause 12).
5. Clause 12 does not require, for its effective operation, the existence of a relationship (such as that of "joint venturers") other than the relationship of a lender and borrower.
6. In the current proceedings, in which no "profits" were earned, attention must return to the terms of clause 11. Clause 11 (5) is expressed to be subject to clause 12. However, clause 12 has no material operation and, as I find, no decisive impact on the proper construction of clause 11.
7. Unless clause 11 operates as a limitation on the plaintiff's implied right to have its loan repaid (confirmed by use of the word "repaid" in clause 11(1)), in my opinion the contract, read as a whole and fairly, must be read, objectively, as providing for the plaintiff to be repaid on or before 31 August 2010 the funds provided to Trinity by way of a loan.
8. The scheme of clause 11 contemplated that the proceeds from ticket sales would be held on trust by Ticketek, probably (but not necessarily) in an interest-bearing bank account, until such time as the plaintiff was "repaid" from those trust moneys (including sales revenue and interest, if any): clauses 11(1)-11(3). If, from that source, the plaintiff were to receive "the funds advanced", clause 11(4) contemplated that any additional sales revenue would be paid directly into the Project Account rather than a nominated account of the plaintiff.
9. Clause 11(5) is subject to clause 12. Had the Project been profitable, clause 12 would have had scope for operation. Absent profitability, it does not control the construction or operation of clause 11. Given the terms of clause 11(4), contemplating that sales revenue in excess of "the funds advanced" would be paid directly into the Project Account, the intendment of clause 11(5) was not to limit the plaintiff's recourse to Trinity in the event that sales revenue fell short of the amount of "the funds advanced".
10. Read jointly and severally, clauses 11 and 12, objectively, embody an intention that the plaintiff be repaid, at least, the whole amount of "the funds advanced" (as contemplated by clauses 4 and 5, on or before 31 August 2010). If, within that timeframe, the plaintiff received the whole of "the funds advanced" and any interest accrued on the Ticketek trust account, but there were no profits, clause 11(5) was intended to operate so as to disentitle the plaintiff to any other relief. However, nothing in clause 11 operated to limit the plaintiff's recourse to Trinity in the event that the revenue from ticket sales was insufficient to repay the plaintiff "the funds advanced" within the agreed timeframe.
11. That construction of clause 11 accords with an objective reading of the contract as a whole. The absence of any general provision in the contract for the payment of interest to the plaintiff is not remarkable. The parties contemplated that the plaintiff would be repaid "the funds advanced" no later than 31 August 2010, together with any residual interest that had accrued in the Ticketek trust account and a share of such, if any, profits as had been earned.

The Plaintiff's Entitlement to Judgment against the Guarantors

1. Given that the amount repaid to the plaintiff fell short of "the funds advanced" , on the proper construction of the contract the plaintiff had an entitlement against Trinity to be repaid the balance, enforceable in debt or under the law of restitution (indebitatus assumpsit) , upon Trinity's default in repayment of the outstanding balance of "the funds advanced" at the end of 31 August 2010. In substance, on 1 September 2010 the plaintiff became entitled to return of the funds lent by it to Trinity and not repaid, but "retained" (albeit lost), by Trinity.
2. This finding having been made, the Guarantors accept that their guarantee obliges them to make good Trinity's default.
3. Any entitlement the plaintiff has in these proceedings to interest is an entitlement to an award of pre-judgment interest (in the nature of damages for being kept out of its money) under the Civil Procedure Act 2005 NSW, section 100.
4. I will leave the amount of any award of pre-judgment interest to be calculated by the parties after the publication of this judgment.

The Disputed Repayment

1. For an interest calculation of that character to be made, what remains for my decision relates to the parties' competing contentions about the disputed sum of $256,362.40.
2. The evidence bearing on this question is slight.
3. It is agreed between the parties that the plaintiff made a total of six payments to Trinity, between 29 April 2010 and 30 June 2010 or thereabouts, totalling $5,235,000.
4. The parties have conducted the hearing of the separate questions on the basis that that total sum represents the funds advanced to Trinity by the plaintiff and is subject to the operation of clause 11 of the contract, properly construed.
5. The plaintiff's evidence is that a total of 10 payments were received by it or on its account, from Trinity or on Trinity's account, between 10 May 2010 and 22 July 2010 or thereabouts, including a GST refund of unspecified date received from the Australian Tax Office.
6. The third of those receipts is the disputed sum of $256,362.40, received on or about 28 May 2010.
7. The affidavit of the plaintiff's principal, who verified the company's receipts and expenditure, deposed to that sum as having been "received from Trinity being a reimbursement for the Emirates Flights paid personally by me".
8. Bank records evidencing the receipt show slight variations, with which no party has taken a point. Significantly, however, Trinity's bank statement records, against the date 28 May 2010, an entry recorded as "withdrawal-internet online banking… payment Emirates reimburse", and a matching entry in the plaintiff's records, against the date 31 May 2010, reads "Trinity sports & … Trinity Emirates".
9. The 10 payments received by or on the account of the plaintiff (including the disputed $256,362.40) total $1,962,077.80.
10. The nine payments other than the disputed $256,362.40 total $1,705,715.40.
11. That is the entirety of the evidence on the question of the proper characterisation of the disputed sum.
12. The plaintiff's evidence was not tested by cross examination of its principal or otherwise challenged by evidence.
13. Reading the evidence as a whole, I have no reason to reject the evidence of the plaintiff's principal about the character of the disputed sum. Trinity's bank statement entry dated 28 May 2010 expressly describes the payment in terms ("Emirates reimburse") consistent with the affidavit evidence relied upon by the plaintiff.
14. In the absence of any countervailing evidence, the terms of that affidavit overcome any doubts that might otherwise have arisen by reference to onus of proof.
15. Accordingly, I find that of $5,235,000 funds advanced, the plaintiff received repayments totalling only $1,705,715.40 or thereabouts, leaving an outstanding balance of $3,529,248.45 or thereabouts.

CONCLUSION

1. From the findings that have been made during the course of this judgment, and subject to allowing the parties an opportunity to address minor arithmetical discrepancies, the answers to the separate questions stated for determination are (in narrative terms) as follows: 1. Upon the proper construction of the contract, either as pleaded in paragraphs 33 and 34 of the further amended statement of claim and as referred to therein as "the 29 April 2010 deed" or as pleaded in paragraphs 36 and 37 of the further amended statement of claim and as referred to therein as "the 13 May 2010 deed" (collectively "the 2010 deeds"), Trinity Sports and Events Management Pty Ltd ("Trinity") agreed to bear an obligation to repay the plaintiff at least the same amount as advanced or provided by the plaintiff to Trinity pursuant to the 2010 deeds, but with credit to the extent of any net moneys generated by ticket sales. 2. The contractual provisions set out in clause 26 of the 2010 deeds caused (and now cause) the fifth, sixth and seventh defendants to bear personal liability for any failure by Trinity to pay to the plaintiff at least the same amount as advanced or provided by the plaintiff to Trinity pursuant to the 2010 deeds. 3. The plaintiff advanced a total amount of $5,235,000 to Trinity pursuant to the 2010 deeds. 4. The plaintiff received repayments totalling $1,705,715.55 pursuant to the 2010 deeds (being an amount to be applied as a credit against the obligations of Trinity and the fifth, sixth and seventh defendants under the 2010 deeds). 5. The plaintiff is entitled to judgment against each of the fifth, sixth and seventh defendants for an amount equivalent to the difference between the amount advanced ($5,235,000) and the amount of repayments received ($1,705,715.55); namely, a sum of $3,529,284.45 exclusive of interest. 6. the plaintiff is entitled to an award of pre-judgement interest, pursuant to the rates applicable by reason of section 100 of the Civil Procedure Act 2005 NSW and Practice Note SC Gen 16, for the period from 31 August 2010 up to and including entry of judgment.
2. Consequentially, subject to any necessary formal correction of the arithmetic and the addition of pre-judgment interest, judgment should be entered in favour of the plaintiff against the fifth, sixth and seventh defendants in the amount of $3,529,284.45 (together with interest) plus costs.
3. I will allow the parties an opportunity to have me give directions in so much of the principal proceedings as remain to be determined between the plaintiff and parties other than the Guarantors (the fifth, sixth and seventh defendants), in default of which I will direct that the principal proceedings be listed for directions before the Registrar in the near future.

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: 16 April 2015