Consideration
13 The question is whether it is possible to amend or otherwise deal with order 13 to allow the referee to enquire into the issues that I said, on 2 May 2019, the draft of order 13 would allow to be considered if they fell within the terms of the JVA.
14 In Burrell v The Queen (2008) 238 CLR 218, Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ said at 224-225 [21]:
The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order (L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595) provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.
(emphasis added)
15 Here, some of the orders made on 9 May 2019 were final, including the declaration of the termination of the JVA. However, the orders for ascertaining what sums were due by one party to another were not final. Kanki has undergone changes of counsel and solicitors, the first soon after May 2019, and recently went into liquidation.
16 The Full Court affirmed my construction of various parts of cl 9 and Sch 1 on the issues as to whether, and to what extent, Neptune could add to the shared costs as defined in Sch 1 that it had incurred prior to the entry into the JVA (see Neptune Hospitality Pty Ltd v Ozmen Entertainment Pty Ltd (2020) 375 ALR 489 at 532-534 [154]-[163] and grounds 19-22 set out at 512-515 [92]). However, their Honours did not deal with the present issue of how the words "Shared Costs", as used in order 13, ought be understood or, indeed, how cl 9 operated as it is also, infelicitously, expressed.
17 After the clarification in argument on 2 May 2019 as to what the form of relief the then draft of order 13 meant, I had intended that Neptune be able to pursue whatever claims that I had not determined in the April 2019 reasons which it wanted to assert as to what may have been due to it on the proper construction of the JVA for expenditures it had made over and above the defined term "Shared Costs" in Sch 1.
18 It will be a matter for the referee to construe how cl 9(d)(iv) and (v) operate. However, cl 9 generally deals with the assets of the business and the joint venture as being shared property, and provides that the parties each pay a 50 per cent share of specified expenses. In particular, there will be issues for the referee to determine as to whether or not cl 9(d)(iv) and (v) were intended to make Kanki liable for any of the installation costs and, if that is so, whether those sums were payable in instalments, as other items in cl 9(d)(ii), (iii) are (e) were, or immediately, as was the case for the items in cl 9(c) and (d)(i). I note that Neptune expressly accepted, in argument today, that if it were found entitled to payment under cl 9(d)(iv) and (v), Kanki would not be liable to repay more than 50 per cent of what Neptune had expended.
19 The timing of when any payment under cl 9 was due will be important, having regard to the termination of the JVA, and will affect whether Kanki is liable for the full, or a lesser, amount. In McDonald v Dennys Lascelles Limited (1933) 48 CLR 457 at 476-477, Dixon J said:
… When a party to a simple contract, upon a breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded. as from the beginning. Both parties are discharged from the further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected. When a contract is rescinded because of matters which affect its formation, as in the case of fraud, the parties are to be rehabilitated and restored, so far as may be, to the position they occupied before the contract was made. But when a contract, which is not void or voidable at law, or liable to be set aside in equity, is dissolved at the election of one party because the other has not observed an essential condition or has committed a breach going to its root, the contract is determined so far as it is executory only and the party in default is liable for damages for its breach.
(emphasis added, citations omitted)
20 While order 2(e) in the 27 November 2020 orders also used the capitalised expression "Shared Costs", as had order 13 made on 9 May 2019, there was no definition of that expression in either set of orders. When settling, in May 2019, the form of what became order 13, neither Neptune nor Kanki, at that stage, identified or argued about what that capitalised expression meant, beyond the clarification discussed in argument on 2 May 2019.
21 In my opinion, the expression of order 13, although clarified by counsel in the course of argument on 2 May 2019, did not accurately "reflect the intention of the Court" and so falls within the meaning of r 39.05(e) of the Federal Court Rules 2011. That is because all parties accepted on 9 May 2019 that Neptune should be able to put forward its argument that it could make a claim for costs to be shared between it and Kanki that would be determined in the reference in respect of whatever it considered was open to it under the proper construction of the JVA as an accrued right prior to its termination (subject to excluding any claim that could not be maintained because of any finding in the April 2019 reasons). Of course, that entitlement did not allow issues decided in the April 2019 reasons or by the 9 May 2019 orders to be reopened. It will be for the referee to construe the JVA, consistently with the April 2019 reasons, and those of the Full Court, and decide whether such a claim is valid and, if so, what its quantum is.