"prima facie the words used in the written agreement are to be understood in their ordinary or popular sense in the search for the presumed intent of the parties to the agreement. However, few words have a single inflexible ordinary meaning, so the context in which they are used, and the evidence of the background circumstances against which the agreement was made, which is always admissible as an aid to interpreting a contract, are of paramount significance in identifying the particular meaning to be adopted."
71 Similarly and again as ARL has submitted, examination of the context in which words are used may reveal that the parties have attributed their own peculiar meaning to words, in which case it is the duty of the court to give effect to that meaning. In many cases the contract will contain explicit definitions of terms (Lewison para 4.10, pp107 - 111; Re Sassoon (1933) 1 Ch 858; Re George & The Goldsmiths & General Burglary Insurance Association Limited (1899) 1 QB 595; The Karen Oltmann [1976] 2 Lloyds Reports 708 at 712).
72 The juxtaposition of the Partners Funding Deed and the Funding Deed is to be noted. Optus was a common party to both Deeds. Both Deeds related to a common activity, namely the advance of money by Optus. As ARL has submitted, the juxtaposition of these two Funding Deeds is a powerful indicator that Optus itself at all times differentiated between the ARL in its capacity as a Partner of the NRL Partnership and the ARL in its ordinary corporate capacity. Further and as ARL has also submitted, this differentiation is made explicit by the very description of the parties in the Partners Funding Deed (see also the Memorandum of Agreement referred to in 28 above.).
73 This point is, I accept, further reinforced by the internal juxtaposition in the Funding Deed and the Sponsorship Deed of the ARL with the ARL Clubs. The ARL Clubs do not constitute the sum total of Clubs in the NRL Competition which is the Competition owned and administered by the NRL Partnership. Rather, and as ARL has submitted, they are the Clubs that remained loyal to the ARL during the Super League war and prior to the reconciliation constituted by the Merger Agreement. I accept that it would be curious to find a contract to be entered into by the ARL in its capacity as a partner of the Partnership also to be entered into by some but not all of the clubs that participated in a competition owned and operated by the Partnership.
74 I further accept as of substance the submission that the Funding Deed, in many respects the predecessor of the Sponsorship Deed, as a result of the ARL's alleged failure to issue the requisite notice under clause 3, plainly enough does not entail a loan to or funding of the ARL in its capacity as a Partner of the NRL Partnership. Rather, upon examination its purpose, as submitted by ARL, is that disclosed in Recital C and it is, in particular, directed for the benefit of the ARL Clubs. This central purpose of the Funding Deed, which casts light on the sense in which Vision and the ARL intended the reference to the ARL in the Sponsorship Deed, is reinforced by clauses 2.3, 2.6 and 3.3.
75 The Sponsorship Deed incorporates by reference the Optus/ARL Funding Deed dated 15 May 1998 as amended by the Amending Deed dated 27 June 2000 (see clause 1 of the Sponsorship Deed). In turn, the Amending Deed to the Optus/ARL Funding Deed expressly refers to the Optus/Partners Funding Deed dated 15 May 1998 to which Vision and the ARL were parties (see clause 1.2 of the Amending Deed to Optus/ARL Funding Deed). Importantly, in defining Optus/Partners Funding Deed in clause 1.2 of the Amending Deed, the draftsmen were conscious of pointing out that the ARL entered into that Deed in its capacity as a partner.
76 A further submission of ARL which seems clearly to have special weight is that Clause 2.3(b) of the Funding Deed refers to a substitution of one set of Funding Agreements by another. The earlier set of Funding Agreements could only have been between the ARL in its non-partnership capacity because the Partnership did not exist at the time of those Agreements. This is, I accept, made plain from the definition of Existing Funding Agreements in the Funding Deed.
77 In this context, it is also important properly to characterize the Telstra Contract. In terms, it was an NRL Naming Rights Sponsor Agreement which Vision knew, through its being a party to the Partners Funding Deed (and clause 3.3(b) of that Deed in particular) and the NRL Support - Optus - Memorandum of Agreement, only the NRL Partnership could grant. Naming Rights sponsorship was not sponsorship that the ARL itself was capable of "accepting". Alternatively, to the extent it could, as a matter of partnership law, accept that sponsorship, it could only do so in a different capacity to that in which it was bound by clause 8.1 of the Sponsorship Deed, again, a matter well known to Vision.
78 It has to be said that the subject transactions represent a particularly unusual set of circumstances where the rights and obligations and importantly contractual promises of entities who happen to be partners are able to be differentiated. And this by reason of the fact that the suite of transaction documents from early days involved:
· obligations of one of those partners which were not partnership obligations and were clearly discernible not to be partnership obligations;
· obligations of the partnership which were clearly discernible as such.
79 In the result the central proposition for which ARL has contended is upheld. Upon its proper construction, clause 8.1 of the Sponsorship Deed in referring to the ARL was not intended to include and is not properly read as including the ARL in its capacity as a Partner of the NRLI Partnership. The proper approach is to construe the reference to the ARL in the Sponsorship Deed as having been intended to mean and as a reference to the ARL, other than in its capacity as a partner in the NRL Partnership.
Sponsorship Deed - Clause 6.1 (b)
80 In terms of the approach taken by Optus in relation to clause 6.1 (b) of the Sponsorship Deed, in my view that approach seeks to give this sub-clause an operation and reach well beyond that which on its proper construction it could reasonably bear. This is the clause providing that: