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[2025] NSWCA 213
respondent. Leave to appeal granted; appeal dismissed with costs: [107].
The deed used broad release language, but the Court read that language in the context of what the parties were settling. The deed arose from disputes about Mr Millichamp’s Apotex employment, not his separate employment with Pharmacy Platform. The reference to services for Group Companies therefore covered services connected with his Apotex relationship, not every service he had ever provided to a company that later became part of the group. The LTI claim was outside the release, and Pharmacy Platform’s appeal was dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,001 words · generated 06/10/2026
This appeal concerned the reach of a release in a deed of settlement, not whether Mr Millichamp had performed work for Pharmacy Platform or whether an Exit Event had occurred. The central question was whether the deed settling his disputes with Apotex also extinguished his separate contractual entitlement to a long term incentive bonus, or LTI, from Pharmacy Platform.
2 cited instruments linked from this judgment.
Mr Millichamp first worked for Apotex, where his employment ended on 30 June 2020 [7]–[8]. He began work as Pharmacy Platform’s chief executive officer on 25 August 2020 under a different employment agreement. That agreement provided for the LTI [9]. At that point, Apotex and Pharmacy Platform were not related companies [3], [9].
Meanwhile, Mr Millichamp pursued unpaid employment entitlements against Apotex and Apotex Inc. [10], [13]. Those claims led to settlement negotiations. Apotex’s December 2021 offer proposed a release concerning the proceedings and Mr Millichamp’s Apotex employment [14]–[18]. Mr Millichamp made a counter-offer on 23 December 2021, which Apotex and Apotex Inc. accepted on 19 January 2022 [21]–[23]. The accepted offer already contained releases directed to the Apotex proceedings and employment relationship. The Court said that agreement did not release the Pharmacy Platform LTI [23].
A corporate sale completed on 14 December 2021, making Pharmacy Platform a related body corporate of Apotex. Pharmacy Platform accepted that this was an Exit Event under Mr Millichamp’s employment agreement and triggered his LTI entitlement [19]–[20]. Mr Millichamp did not learn of the sale until 7 March 2022, after the final deed draft had been issued on 1 March [25]–[27].
The executed deed, dated 16 March 2022, included a release of claims against Apotex, Apotex Inc., Group Companies and specified people. Clause 4.1(b) covered claims connected with Mr Millichamp’s Apotex employment and, among other matters, “any services provided to any Group Company or Sherfam (whether or not for reward)” [30]. As Pharmacy Platform was a Group Company by then, it argued that the LTI claim fell within those words [31]–[35].
The primary judge rejected that construction and declared that the deed did not release the LTI-related claim [38]–[39]. The Court of Appeal granted leave to appeal but dismissed the appeal with costs [41], [107].
The Court treated the question as one of interpreting the particular deed, not deciding whether broad release clauses can ever cover unknown claims. It accepted that the operative language was capable of being read literally as broad enough to include the LTI claim [5]. But literal breadth did not end the inquiry.
McHugh JA set out the principles concerning releases, drawing on Wardman, Reid and OneSteel [44]–[47]. General words are construed with reference to the particular occasion identified in the recitals and the matters objectively in the parties’ contemplation when the release was given. The recitals can identify the background the parties chose to make relevant [47]. The Court also noted that an unknown claim may sometimes be released, so lack of awareness alone does not decide the matter [46]. The key question was whether this claim fell within the release as properly construed.
The recitals pointed to a settlement of disputes about Apotex. They described Mr Millichamp’s employment by Apotex, the termination of that employment and the Apotex proceedings [29]. Recital E said the parties had agreed to “finalise all matters between them”. The parties identified at the start of the deed were Mr Millichamp, Apotex and Apotex Inc., not Pharmacy Platform [59]. The Court therefore read the deed’s central purpose as settling matters arising from Mr Millichamp’s relationship with Apotex [61]–[62].
The settlement history supported the same reading. The parties had already become bound by their agreement in January, before the final deed draft was issued. That agreement concerned the Apotex proceedings and Mr Millichamp’s Apotex employment [23], [64]–[66]. Nothing in the negotiations or communications identified Pharmacy Platform, its employment agreement or the LTI as part of what the parties were settling [67]–[69]. Although Pharmacy Platform had become a Group Company before execution, the Court found no basis to conclude that the parties had discussed or contemplated the transaction or the LTI as a subject of the deed [68].
The Court also examined the clause as a whole. Paragraph 4.1(a) concerned the events in the Apotex proceedings. The subjects listed in the opening part of paragraph 4.1(b) likewise concerned the Apotex relationship: Mr Millichamp’s Apotex employment, his directorships, its cessation and the Apotex contract [72]–[74]. Against that setting, “any services” was read as covering services arising out of his Apotex relationship, including tasks for other group entities that were not separately remunerated [75]. The phrase was not treated as an independent catch-all for services provided under a separate employment relationship.
The specific reference to Sherfam reinforced that context. Although the deed did not define Sherfam, the known background showed that Mr Millichamp had provided information and services in connection with Apotex-related transactions [80]–[87]. The parallel wording in clause 5.1, which released claims against Mr Millichamp, referred to services for Group Companies or Sherfam in connection with work related to the Apotex merger [84]–[88].
Other provisions were consistent with this construction. Clause 9 preserved surviving obligations under the Apotex employment agreement, with no parallel reference to the Pharmacy Platform agreement [101]–[102]. Clause 3.2 addressed tax deductions from the settlement sum by Apotex, although the LTI, if included, would have been payable by Pharmacy Platform [103]. These details were not decisive in isolation, but supported the overall reading.
The judgment did not announce a new general rule about releases. It applied established principles of contractual construction, particularly those associated with construing general words in a release by reference to the occasion and purpose for which it was given.
The Court relied on Wardman’s account of the two related principles stated in Grant: general words may be restrained by particular matters in the recitals, and a release’s general words are limited to matters specially in the parties’ contemplation when they gave it [44]. Reid was cited for the related proposition that releases are construed narrowly in this sense, while also recognising that an unknown claim can in some circumstances be released [45]–[46]. OneSteel supplied the point that recitals reveal the background selected by the parties as relevant context [47].
The Court also clarified what those principles do not mean. Pharmacy Platform argued that “any services” could not be narrowed without improperly inserting words into the deed [50]–[51]. The Court rejected that as too absolute. Construction involves identifying what the language conveys when read as a whole, in context and in light of purpose. Explaining the scope of “services” by reference to the surrounding words and circumstances does not necessarily amend the contract [53]–[57]. The Court drew an analogy with the distinction between inserting words and construing words actually used, referring to R v Young [54]–[55].
After this decision, the relevant point for a release analysis remains contextual: a phrase may be broad in isolation but still have a more confined scope in the particular deed. Here, “any” did not determine the meaning of “services” without regard to context [56]–[57], [71]. The judgment does not establish that releases cannot cover claims against related companies, unknown claims or claims arising under separate contracts. Rather, it holds that this deed, on its text and circumstances, did not release this LTI claim.
At [44], the Court recited the principle that “the general words of a release are to be restrained by the particular occasion referred to in the recitals.” In plain English, broad release language is read against the dispute and transaction the deed describes, rather than treated automatically as covering every possible claim.
At [47], the Court explained that recitals identify the background chosen by the parties to explain the transaction. The practical significance is that the deed’s introductory statements can help identify the subject matter the parties meant to settle.
At [57], McHugh JA said the question was whether “any services” should be read in light of the operative text, recitals and what the parties had in contemplation. In plain English, the Court had to examine the whole settlement context, not isolate the word “any”.
At [67]–[69], the Court found no communication before the final deed draft about Pharmacy Platform, the sale or the LTI. It concluded that the claims in the parties’ contemplation did not extend beyond those arising from Mr Millichamp’s Apotex relationship. This did not mean a claim must always be expressly discussed to be released. It was part of the objective assessment of this deed and its particular history.
At [104], the Court concluded that “services” meant services whose provision arose out of Mr Millichamp’s relationship with Apotex. At [105], it applied that construction: the LTI entitlement had no connection with services of that description and was not released. Those paragraphs state the result and the reasoning that directly resolves the appeal.
The case is particularly relevant where a deed contains broad release language, including phrases such as “all present and future claims” or claims connected with “any services”, while the deed’s recitals and negotiation history point to a more specific dispute.
A lawyer assessing a similar problem would likely want to compare the released claim’s source with the deed’s stated purpose. Relevant questions raised by this judgment include whether the claim arises from the same employment relationship as the dispute settled; whether a separate company or contract is involved; whether the deed identifies the separate relationship; and whether the parties communicated about the claim or the relevant corporate relationship before execution.
The judgment also illustrates the importance of timing. The settlement agreement was reached in January, the final deed draft was issued in March, and the claimant learned of the corporate sale during that interval [23], [25]–[27]. The Court examined what the parties objectively contemplated when the deed was executed, including the background to the already-binding settlement [64]–[69].
The reasoning may be relevant where a release extends to related bodies corporate that were not central to the negotiations. The case does not say that a related company can never benefit from a release. It shows why the identity of a release beneficiary and the subject matter of the released claims must be read alongside the deed’s purpose and wording.
The judgment text supplied here does not discuss any later court’s treatment of Pharmacy Platform Pty Ltd v Millichamp. It therefore does not establish whether later courts have followed, distinguished or otherwise applied this decision.
The Court itself relied on earlier authorities, including Wardman, Reid and OneSteel, as part of its reasoning [44]–[47]. It also considered Redbubble in rejecting the proposition that literal breadth alone answers the construction question [52]. These are the authorities discussed in the judgment, not evidence of later treatment of the 2025 decision.
The Court expressly left the equitable doctrine raised in Mr Millichamp’s notice of contention undecided because its construction of the deed resolved the appeal [2], [106]. The judgment therefore does not determine how that doctrine would apply to a release in these circumstances.
The decision also does not lay down a general test for when a claim is “specially in the contemplation” of parties beyond applying the established principles to this deed. The Court’s conclusion depended on the combination of the recitals, settlement history, text, timing and absence of communication about Pharmacy Platform and the LTI [58]–[70], [98]–[104].
Nor does the judgment decide how different drafting would affect the result. It considered the wording actually used, including “any services” and the reference to Group Companies. It did not decide the effect of a deed that expressly named Pharmacy Platform, referred to the separate employment agreement or specifically identified the LTI.
This is general legal information, not legal advice. Zoe can make mistakes. Before you act on this, rely on it, or use any draft, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Pharmacy Platform Pty Ltd v Millichamp [2025] NSWCA 213
Hearing dates: 9 May 2025
Date of orders: 18 September 2025
Decision date: 18 September 2025
Before: Kirk JA at [1];
McHugh JA at [2];
Price AJA at [108]
Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal with costs.
Catchwords: CONTRACT — Deed of release — Construction — Whether right to employment bonus released by deed
Legislation Cited: Corporations Act 2001 (Cth)
Cases Cited: Calderbank v Calderbank [1976] Fam 93
Grant v John Grant & Sons Ltd (1954) 91 CLR 112; [1954] HCA 23
OneSteel Manufacturing Pty Limited v BlueScope Steel (AIS) Pty Limited (2013) 85 NSWLR 1; [2013] NSWCA 27
Reid v Commonwealth Bank of Australia (2022) 109 NSWLR 149; [2022] NSWCA 134
Wardman v Macquarie Bank Ltd [2023] FCAFC 13; (2023) 322 IR 278
Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Ltd (2024) 303 FCR 100; [2024] FCAFC 15
R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166
Texts Cited: P Herzfeld and T Prince, Interpretation (3rd ed, Lawbook Co, 2024)
Category: Principal judgment
Parties: Pharmacy Platform Pty Ltd (Applicant)
Roger Millichamp (Respondent)
Representation: Counsel:
PD Herzfeld SC; E Bathurst (Applicant)
DJ Williams KC (Respondent)
Solicitors:
Arnold Bloch Leibler (Applicant)
MIA Contract Lawyers (Respondent)
File Number(s): 2024/00392619
Publication restriction: Nil.
[This headnote is not to be read as part of the judgment]
The respondent, Mr Millichamp, was employed by Apotex Pty Ltd (Apotex) and later by the applicant (Pharmacy Platform). Under his contract of employment with Pharmacy Platform (Pharmacy Platform Employment Agreement), Mr Millichamp was entitled to a long term incentive bonus (LTI). As a result of a transaction that was completed on 14 December 2021, Apotex and Pharmacy Platform became related bodies corporate. That transaction triggered Mr Millichamp’s right to be paid the LTI.
After his employment with Apotex ended in June 2020, Mr Millichamp commenced proceedings against Apotex and Apotex Inc. (the other parties to the Pharmacy Platform Employment Agreement) claiming unpaid employment entitlements. On 23 December 2021, Mr Millichamp’s solicitor sent Apotex and Apotex Inc.’s solicitors an offer invoking the principles in Calderbank v Calderbank [1976] Fam 93. Apotex and Apotex Inc. accepted that offer on 19 January 2022. On 16 March 2022, the parties recorded their agreement in a deed of settlement (the Deed). The Deed contained mutual releases. Relevantly, cl 4.1 of the Deed provided as follows.
“4.1 Mr Millichamp releases and forever discharges the Company, Apotex Inc., the Group Companies and all officers, employees and agents of the Company, Apotex Inc. and of the Group Companies from all present and future claims, whether known or unknown, and however arising (including in contract, in tort or under statute) which Mr Millichamp has or may have against them or any of them:
…
(b) otherwise relating to, arising out of or in any way connected with his employment by the Company, his role as a director of the Company and Apotex Australia Pty Ltd, the cessation of that employment, the Contract and the termination of the Contract or any services provided to any Group Company or Sherfam (whether or not for reward),
other than any claim arising out of rights of or to indemnification in favour of Mr Millichamp, which rights of or to indemnification subsisted as at the date of notice of termination of employment.”
It was not disputed that at the time of entry into the Deed, Pharmacy Platform was a “Group Company”, as defined in that agreement.
Mr Millichamp brought proceedings for breach of contract on the basis that Pharmacy Platform had not paid the LTI. The central issue at first instance was whether the Deed released Mr Millichamp’s right to be paid the LTI. The primary judge found in favour of Mr Millichamp. Pharmacy Platform appealed.
The Court held (McHugh JA, Kirk JA and Price AJA agreeing) granting leave to appeal and dismissing the appeal:
(1) The general words of the release are to be restrained by the particular occasion referred to in the recitals and are limited to those things which were in the contemplation of the parties at the time when the release was given. The combination of the recitals, the genesis of the transaction and the text of the Deed powerfully supports a construction in which the word “services” in the release in cl 4.1(b) means services the provision of which arose out of Mr Millichamp’s relationship with Apotex: at [44]-[47], [58]-[93], [98]-[104].
Wardman v Macquarie Bank Ltd [2023] FCAFC 13; (2023) 322 IR 278; Reid v Commonwealth Bank of Australia (2022) 109 NSWLR 149; [2022] NSWCA 134; OneSteel Manufacturing Pty Limited v BlueScope Steel (AIS) Pty Limited (2013) 85 NSWLR 1; [2013] NSWCA 27, applied.
(2) Mr Millichamp’s entitlement to be paid the LTI pursuant to the Pharmacy Platform Employment Agreement has no connection with any such services: at [105].
KIRK JA: I agree with McHugh JA.
McHUGH JA: The sole question in this application for leave to appeal is the proper construction of 14 words in a deed of release. The matter was fully argued and leave should be granted. But the appeal should be dismissed. Accordingly, there is no occasion to consider the equitable doctrine discussed in Grant v John Grant & S**ons Ltd (1954) 91 CLR 112; [1954] HCA 23 which was the subject of the respondent’s notice of contention.
The respondent, Mr Millichamp, was employed first by Apotex Pty Ltd (Apotex), and later by the applicant (Pharmacy Platform), when those companies were not related to each other. However, as a result of a transaction in late 2021, after Mr Millichamp’s employment with Pharmacy Platform had ended, those companies became related.
The right said to have been released is Mr Millichamp’s entitlement to a long term incentive bonus (LTI) owing to him under his contract of employment with Pharmacy Platform. Pharmacy Platform claims that Mr Millichamp released that right by a Deed of Settlement dated 16 March 2022 (the Deed) entered between Mr Millichamp, Apotex and Apotex Inc.
The Deed does not directly refer to Mr Millichamp’s entitlement to be paid the LTI by Pharmacy Platform, and there is nothing in the surrounding circumstances that indicates that a specific purpose of the Deed was to release that right. On the other hand, the operative clause of the Deed is expressed in language broad enough to be capable of being read literally as extending to such a release. As often happens in such cases, the parties advanced many arguments involving close textual analysis, a good number of which were directed to neutralising points made by the other party. The submissions also went far into the negotiations and the exchange of drafts which led to the Deed. The applicant’s argument involved seven main points, one of which had six sub-points; another had five sub-points. It is not necessary to address all of those textual arguments; the main points are covered below. It suffices to acknowledge that, as again often happens in such cases, both sides of the argument were able to find at least circumstantial support in different parts of the Deed. The disposition of the appeal is nevertheless clear. It turns on the meaning to be given to the disputed words in their context, including the purpose of the Deed.
What follows is largely in chronological sequence. Although Mr Millichamp’s employment with Apotex concluded before he commenced his employment with Pharmacy Platform, he continued to have dealings with Apotex arising out of claims he made against that company. It is important to note that Mr Millichamp’s dealings with both companies were occurring in parallel.
Mr Millichamp commenced employment with Apotex in 2006 as its Managing Director. During the time that he was employed by Apotex, he performed work for entities connected with Apotex without additional remuneration. It will be necessary to return to that work below.
Mr Millichamp’s contract of employment (the Apotex Employment Agreement) was terminated by notice dated 26 September 2019, and his employment came to an end on 30 June 2020.
On 25 August 2020, Mr Millichamp commenced employment with Pharmacy Platform as its Chief Executive Officer. Clause 8.1.4 and Annexure B of Mr Millichamp’s written contract of employment (the Pharmacy Platform Employment Agreement) set out the terms on which the LTI was payable. At that time, Pharmacy Platform was not a related company of Apotex.
On 24 November 2020, Mr Millichamp’s solicitor served a letter of demand on his former employer Apotex. The claim was for unpaid employment entitlements. It was mediated without success on 20 January 2021. Those events were, for practical purposes, the first steps on the path leading ultimately to the Deed between Mr Millichamp, Apotex and Apotex Inc. It might be noted that none of those steps had anything to do with Pharmacy Platform, the Pharmacy Platform Employment Agreement, or Mr Millichamp’s entitlement to be paid the LTI by Pharmacy Platform.
At the Australian Pharmacy Professional conference on the Gold Coast in May 2021, Mr Millichamp was notified that the sale of Pharmacy Platform’s business to interests associated with the Arrotex group of companies (associated with Mr Dennis Bastas) was under consideration. Apotex was part of that group.
At a meeting on 1 June 2021 with, among others, the Chair of Pharmacy Platform, Mr Millichamp was provided with an offer in the form of a “without prejudice” letter. This purported to confirm Mr Millichamp’s resignation from his employment with Pharmacy Platform and its related bodies corporate and offered him an ex-gratia payment of $470,000, less any applicable tax, subject to Mr Millichamp’s signing a deed of variation, settlement and release. The proposed deed included a clause varying the Pharmacy Platform Employment Agreement by deleting, among other things, cl 8.1 and Annexure B and with them Mr Millichamp’s entitlement to be paid the LTI. On 10 June 2021, Mr Millichamp rejected that offer. On 11 June 2021, Mr Millichamp’s employment with Pharmacy Platform terminated. On 17 June 2021, he resigned as a director of Pharmacy Platform and its related entities.
“To the extent permitted by statute, Mr Millichamp releases and forever discharges Apotex Pty Ltd, Apotex Inc., the Group Companies, and all officers, employees and agents of Apotex Pty Ltd, Apotex Inc. and of the Group Companies from all present and future claims, whether known or unknown, and however arising (including in contract, in tort or under statute) which Mr Millichamp has or may have against them or any of them:
(a) relating to, arising out of or in any way connected with any or all of the events the subject of the Proceedings; or
(b) otherwise relating to, arising out of or in any way connected with his employment by Apotex Pty Ltd, the cessation of that employment, his contract of employment with Apotex Pty Ltd and the termination of that contract.”
“Apotex Pty Ltd, its Related Bodies Corporate and Apotex Inc. (the Companies) release and forever discharge Mr Millichamp from all present and future claims, whether known or unknown, and however arising (including in contract, in tort or under statute) which the Companies have or may have against him including, without limitation, all claims relating to or arising out of his employment by Apotex Pty Ltd or his role as a director of Apotex Pty Ltd and Apotex Australia Pty Ltd, including any work performed or information provided by him in relation to or in connection with the merger of Arrow Pharmaceuticals Pty Ltd and Apotex Pty Ltd.”
The term “Group Companies” was to be defined as, relevantly, related bodies corporate as defined under the Corporations Act 2001 (Cth) of Apotex and Apotex Inc.; “Related Bodies Corporate” was to have the meaning given to that term in the Corporations Act; and “Proceedings” was to mean the Apotex Proceedings.
The following matters might be noted as to the release sought from Mr Millichamp in the second 7 December 2021 Calderbank letter. First, as at 7 December 2021, Pharmacy Platform was not within the definition of “Group Companies”. It was not yet a “Related Bod[y] Corporate” of Apotex or Apotex Inc. As will shortly be seen, the transaction which brought about that relationship occurred one week later. Secondly, as to par (a), Mr Millichamp’s entitlement to be paid the LTI by Pharmacy Platform was in no way connected with the events the subject of the Apotex Proceedings, which concerned Mr Millichamp’s employment by Apotex. Thirdly, nor was Mr Millichamp’s entitlement to be paid the LTI in any way connected with the subject matters identified in par (b). Fourthly, in the result, Mr Millichamp’s entitlement to be paid the LTI by Pharmacy Platform was on no view within the proposed release.
On 13 December 2021 a Share Purchase Agreement was entered with respect to the shares in Pharmacy Platform. The purchaser was Pharmacy Alliance Group Holdings Pty Ltd, an Arrotex group company. On 14 December 2021 the sale of Pharmacy Platform to Pharmacy Alliance Group Holdings Pty Ltd completed. Pharmacy Platform accepted that by reason of that event, on 14 December 2021, an “Exit Event” occurred for the purposes of cl 8.1.4 of the Pharmacy Platform Employment Agreement, which was the trigger for Mr Millichamp’s right to be paid the LTI.
Two matters should be noted about the Exit Event. First, there is no suggestion that Mr Millichamp was aware of the Exit Event, and thus of his right to be paid the LTI, at any time prior to 7 March 2022 (discussed below). Still less is there any suggestion that a reasonable person in the shoes of any of Pharmacy Platform, Apotex or Apotex Inc. had any reason to think that Mr Millichamp was so aware before, at the earliest, 7 March 2022. Secondly, putting the Deed to one side, Pharmacy Platform did not at any time dispute that Mr Millichamp was entitled to be paid the LTI as a result of the Exit Event. (There was however, and there remains, a live dispute as to quantum.)
On 23 December 2021, Mr Millichamp’s solicitor sent Apotex and Apotex Inc.’s solicitors a counter-offer rejecting both of Apotex’s 7 December 2021 offers and itself invoking Calderbank principles. Among other things, Mr Millichamp sought a settlement sum of $385,000: 10% more than Apotex had offered in its second 7 December 2021 letter. The 23 December 2021 offer adopted the words of the releases set out in Apotex’s second 7 December 2021 letter, subject to a carve-out to be added to par (b) of the release to be given by Mr Millichamp:
“(b) otherwise relating to, arising out of or in any way connected with his employment by Apotex Pty Ltd, the cessation of that employment, his contract of employment with Apotex Pty Ltd and the termination of that contract other than any rights of or to indemnification in favour of Mr Millichamp subsisting as at the date [sic] notice of termination of employment.”
Underlining in original.
Mr Millichamp’s 23 December 2021 offer letter also expressly stated: “Upon acceptance of the offer contained in this letter the parties will be immediately bound even though they intend to further and more fully record their agreement in a Deed of Settlement.”
By their solicitors’ email on 19 January 2022, Apotex and Apotex Inc. accepted the settlement offer contained in Mr Millichamp’s solicitor’s letter dated 23 December 2021. At that point there was a binding agreement between the parties to settle the Apotex Proceedings on the terms of the 23 December 2021 letter, including the releases contained within it. The releases to be given by Mr Millichamp extended to claims relating to two subjects: (a) “the events the subject of the Proceedings”, and (b) Mr Millichamp’s “employment by Apotex Pty Ltd, the cessation of that employment, his contract of employment with Apotex Pty Ltd and the termination of that contract”. No part of the agreement operated to release Mr Millichamp’s entitlement to be paid the LTI pursuant to cl 8.1.4 of the Pharmacy Platform Employment Agreement.
Thereafter, the parties negotiated terms of the deed of settlement, of which it will be necessary to say something below.
The final draft of the Deed of Settlement was issued on 1 March 2022. It should be noted that at the time that final form of wording came into existence, there was no suggestion, either in the language of the draft or in the surrounding circumstances, that any part of the purpose of the transaction was to release Mr Millichamp’s entitlement to be paid the LTI pursuant to cl 8.1.4 of the Pharmacy Platform Employment Agreement.
On 7 March 2022, the completion of the Pharmacy Platform sale was reported in the industry press. The news came to Mr Millichamp’s attention that day. It is not suggested that he had been aware, or that he should be taken to have been aware, of that fact at any earlier time. Nor is it suggested that there was any communication among the parties to the Deed (or between Pharmacy Platform and Mr Millichamp) adverting to that fact.
The 1 March 2022 draft was then executed on 16 March 2022 and became the Deed.
By cl 1 and the list of parties at the start of the Deed:
Apotex is the “Company”;
“Companies” means Apotex, its Related Bodies Corporate and Apotex Inc.;
“Related Bodies Corporate” has the meaning given in the Corporations Act;
“Group Companies” means relevantly all related bodies corporate (as defined in the Corporations Act) of Apotex and Apotex Inc.;
“Contract” means Mr Millichamp’s written contract of employment, any other terms agreed between Mr Millichamp and Apotex, and any implied terms — in substance, the Apotex Employment Agreement; and
“Proceedings” means the Apotex Proceedings.
Under the heading “Background” the Deed recites the following matters.
“A Mr Millichamp commenced employment with the Company on 6 March 2006 and was employed by the Company under the Contract.
B On 26 September 2019, the Company gave Mr Millichamp notice of termination of the Contract on the basis of redundancy. Mr Millichamp’s employment with the Company ceased on or about 30 June 2020.
C On or about 15 July 2021 Mr Millichamp commenced the Proceedings.
D The Company and Apotex Inc. deny that they have any liability in relation to the Proceedings.
E The parties have agreed to finalise all matters between them on the terms set out in this deed.”
“4. Mr Millichamp’s acknowledgments and agreement
4.1 Mr Millichamp releases and forever discharges the Company, Apotex Inc., the Group Companies and all officers, employees and agents of the Company, Apotex Inc. and of the Group Companies from all present and future claims, whether known or unknown, and however arising (including in contract, in tort or under statute) which Mr Millichamp has or may have against them or any of them:
(a) relating to, arising out of or in any way connected with any or all of the events the subject of the Proceedings; or
(b) otherwise relating to, arising out of or in any way connected with his employment by the Company, his role as a director of the Company and Apotex Australia Pty Ltd, the cessation of that employment, the Contract and the termination of the Contract or any services provided to any Group Company or Sherfam (whether or not for reward),
other than any claim arising out of rights of or to indemnification in favour of Mr Millichamp, which rights of or to indemnification subsisted as at the date of notice of termination of employment.
4.2 Mr Millichamp acknowledges that the Company, Apotex Inc., any Group Company, and any officer, employee or agent of the Company, Apotex Inc. or of any Group Company may plead this deed as a bar to any claim or proceeding that arises out of or relates to any matter in respect of which a release is granted in clause 4.1 (except any claim to enforce the Company’s or Apotex Inc.’s obligations under this deed).
5. The Companies’ acknowledgement and agreement
5.1 The Companies release and forever discharge Mr Millichamp from all present and future claims, whether known or unknown, and however arising (including in contract, in tort or under statute) which the Companies have or may have against him including, without limitation, any claim relating to, arising out of or in any way connected with any or all of the events the subject of the Proceedings and all claims relating to or arising out of his employment by the Company or his role as a director of the Company and Apotex Australia Pty Ltd, the cessation of that employment, the Contract and the termination of the Contract, including any work performed or information provided by him (whether in his capacity as an employee of the Company or in the course of providing any services to a Group Company or Sherfam (whether or not for reward)), in relation to or in connection with the merger of Arrow Pharmaceuticals Pty Ltd and Apotex Pty Ltd.
5.2 The Companies acknowledge that Mr Millichamp may plead this deed as a bar to any claim or proceeding that arises out of or relates to any matter in respect of which a release is granted in clause 5.1 (except any claim to enforce Mr Millichamp’s obligations under this deed).”
Emphasis supplied.
It is not in dispute that Pharmacy Platform was at the time of entry into the Deed a related body corporate of Apotex. Pharmacy Platform thus falls within the definition of “Group Companies” in cl 1 of the Deed. It is also not in dispute that the Deed operates to release Pharmacy Platform from “claims” which meet the description in cl 4.1.
As to the description of the claims in cl 4.1, the potential breadth of the relational words “relating to, arising out of or in any way connected with” is not disputed. However, Pharmacy Platform does not suggest that Mr Millichamp’s right to be paid the LTI pursuant to cl 8.1.4 of the Pharmacy Platform Employment Agreement has any connection with the subject matter of par 4.1(a): “any or all of the events the subject of the [Apotex] Proceedings”. Those proceedings concerned Mr Millichamp’s entitlements under the Apotex Employment Agreement.
Nor does Pharmacy Platform suggest that Mr Millichamp’s right to be paid pursuant to cl 8.1.4(a) has any connection with the first parts of par (b): “his employment by [Apotex], his role as a director of [Apotex] and Apotex Australia Pty Ltd, the cessation of that employment, the Contract and the termination of the Contract”. In light of the definition noted above, the “Contract” means all the terms on which Mr Millichamp was employed by Apotex. All those matters thus concern Mr Millichamp’s role while employed by Apotex. They have nothing to do with his right against Pharmacy Platform to be paid the LTI.
Pharmacy Platform is left to argue that Mr Millichamp’s right to be paid pursuant to cl 8.1.4(a) of the Pharmacy Platform Employment Agreement is a “claim[], whether known or unknown, … in contract … which Mr Millichamp has or may have against [Apotex, Apotex Inc, the Group Companies and any officer, employee or agent] or any of them: … (b) … relating to, arising out of or in any way connected with … any services provided to any Group Company or Sherfam (whether or not for reward)”.
The central 14 words to be construed in cl 4.1(b) are thus “any services provided to any Group Company or Sherfam (whether or not for reward)”.
“Sherfam” is not defined in the Deed. It will be necessary to say something about it below.
The proceeding came before the primary judge, Rothman J, pursuant to an order for the separate determination of issues other than quantum. The central issue was the same question of construction as in this Court, and for that reason it is unnecessary to rehearse the arguments made to the primary judge or his Honour’s reasoning.
It suffices to record the primary judge’s conclusion as to construction reached at J[51]:
“The reference to ‘services provided to any Group Companies [sic] or Sherfam (whether or not for reward)[’], plainly refers to services provided ancillary to the function of the plaintiff as a director of the Company or as an employee of the Company during the time of his employment with the Company.”
Pharmacy Platform accepts that, given that the primary judge answered the separate question and did not otherwise finally dispose of the proceedings, leave to appeal is required.
However, the primary judge’s judgment did determine the question whether the proceedings are barred by the Deed. His Honour’s declaration was directed to the parties’ substantive rights. In the circumstances of this case, the primary consideration affecting the grant of leave is whether Pharmacy Platform’s argument as to construction has merit. The answer to that question involves consideration of substantially the same matters as will be necessary to dispose of the appeal if leave is granted. The case was fully argued at a concurrent hearing before a bench of three judges of the Court. Leave to appeal should be granted.
“The primary judge erred in concluding that, properly construed, the Deed of Settlement between the respondent, Apotex Pty Ltd and Apotex Inc. dated 16 March 2022 does not bar the respondent’s claims for relief in the proceedings below.”
“206 In relation to the construction of releases, in Grant v John Grant & Sons Pty Ltd [1954] HCA 23; 91 CLR 112, Dixon CJ, Fullagar, Kitto and Taylor JJ referred at 123-124 to two related common law principles of construction. The first was that general words of a release are to be restrained by any particular occasion referred to in the recitals –
The principle relied upon is that adopted by the common law long ago for the restriction of wide general words in a release of obligations, viz. that the general words of a release should be restrained by the particular occasion: Knight v Cole (1690) 3 Lev 273 [83 ER 686]. Thus the general words of a release are to be restrained by the particular recital: Payler v Homersham (1815) 4 M & S 423 [105 ER 890]. As it is concisely expressed by Best J in Lampon v Corke (1822) 5 B & Ald 606 at 611 [106 ER 1312 at 1314] “If there be introductory matter, that will qualify the general words of the release.”
(Citations added in place of the footnotes.)
207 This first principle may be seen as an emanation of the more general principle that the words of a contract are to be construed as a whole having regard to the purpose or objects to be secured by the contract. The first principle operates on the premise that there are express objects evident from recitals.
208 The second and differently expressed common law principle of construction referred to in the joint judgment in Grant v John Grant Sons Pty Ltd is that the general words in a release are limited to those things which were in the contemplation of the parties at the time when the release was given –
The principle which it is thus sought to apply was expressed by Lord Westbury in London South Western Railway Co v Blackmore (1870) LR 4 HL 610 as follows: “The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given” [at 623]. It was expressed by Taunton J in Upton v Upton (1832) Dow PC 400; 36 RR 817 in this way: “ ... the general words of a release may be limited by the particular matter out of which the release springs and the particular intent of the parties by whom the release is executed” [at 406; 821].
(Citations added in place of the footnotes.)
209 The second principle may also be seen as an emanation of the more general principle that in the construction process regard be had to the purpose to be secured by a contract, objectively ascertained. To the extent that such an examination extends to mutually known circumstances that are extrinsic to the words of the contract, the principles referred to by French CJ, Nettle and Gordon JJ in Mount Bruce Mining [Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104] at [48]-[49] will apply –
48 Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning (38).
49 However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating” (39). It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.
(Footnotes omitted.)”
“… that releases are to be construed narrowly, with general words confined to those things which were ‘specially in the contemplation of the parties at the time when the release was given’: Directors &c of the London and South Western Railway Company v Blackmore (1870) LR 4 at 623. Lord Westbury added (at 623-624) that ‘a dispute that had not emerged, or a question which had not at all arisen, cannot be considered as bound and concluded by the anticipatory words of a general release.’”
It was nevertheless acknowledged in Reid at [36] that it remains possible, even in equity, for a release to extend to claims of which the releasor is unaware.
Allsop P (Macfarlan and Meagher JJA agreeing) explained the significance of recitals in OneSteel Manufacturing Pty Limited v BlueScope Steel (AIS) Pty Limited (2013) 85 NSWLR 1; [2013] NSWCA 27 at [63] as follows:
“The recitals to the agreement set out those aspects of the background that give explanation to the transaction. There may be other background facts, but the recitals reveal the background chosen by the parties by way of the identification of relevant context.”
Emphasis in original.
“The first point is that our approach to this clause is very simple. The claim that the respondent makes in the proceedings arises from, is connected with, it relates to the terms of his employment contract with Pharmacy Platform. As I said, it’s common ground that Pharmacy Platform is a group company. It’s also common ground that the claim had already accrued by the time that this deed was finalised, so the claim was one that existed at the time this deed was entered into.”
Tcpt, 9 May 2025, 11.44-50.
The express or implied steps in that argument are as follows.
Mr Millichamp’s right to be paid the LTI pursuant to cl 8.1.4(a) of the Pharmacy Platform Employment Agreement is a “claim[], … in contract … which Mr Millichamp has”. This step is uncontroversial.
Pharmacy Platform falls within the definition of “Group Companies” in the Deed, such that Mr Millichamp’s claim is “against [a Group Company]”. This step is also uncontroversial.
The claim arises under the Pharmacy Platform Employment Agreement. Mr Millichamp provided services to Pharmacy Platform under that agreement. The claim is therefore one “relating to, arising out of or … connected with … any services provided to any Group Company”. It is the last part of this step which gives rise to the dispute on appeal.
Pharmacy Platform submits that nothing in the text of cl 4.1(b) of the Deed expressly limits the words “any services provided to any Group Company”. Indeed, it argues in effect that it is not possible to give a more restrictive meaning to those words without reading additional words into the text of the Deed, which would exceed the proper function of contractual interpretation.
Pharmacy Platform particularly emphasises the words “any services” to oppose any construction that would narrow the scope of the services in any way (a connection with the relevant “services” being the criterion that brings a claim within the scope of the release). It submits that, at least in the circumstances of this case, to use further words in order to identify which services are within the clause would involve impermissibly reading words into the clause:
“… because the contract expressly tells your Honour which services. It's any services. So your Honour can’t, with respect, identify a general word which can be given a broader or narrower connotation. It’s not the kind of construction where there [are] two reasonably open shades of meaning of a word and one is choosing between them.”
Tcpt, 9 May 2025, 16.21-25.
“[43] However, this is not the question. The prima facie canon of construction takes the width of the release as its point of departure. Thus, Redbubble’s submission that the release is broad is beside the point. The correct question is whether the dispute about Examples 1 to 7 was in the contemplation of the parties, objectively determined, at the time that the release was given.”
The construction of a contract is not limited to choosing between reasonably open shades of meaning of a particular word. Nor does the connotation/ denotation distinction drawn in the context of interpreting the Constitution and statutes necessarily assist in answering the present question. The object of construing the Deed is to determine what the parties meant by the language they used as a whole. “The relevant meaning is that which the language of the document, read in light of its context (the entire text of the document as well as any other document or statutory provision referred to in the text of the document) and the purpose of the document, would convey to a reasonable person in the position of the makers of the document”: P Herzfeld and T Prince, Interpretation (3rd ed, Thomson Reuters, 2024) at [19.60]. To that end, it is an orthodox exercise in contractual construction to articulate the meaning of a word or words in an agreement by using other words, including words of limitation. To do so is not to read words into the Deed; it is to construe it.
The same is true in relation to the construction of statutes. Spigelman CJ identified the fundamental reason why courts cannot introduce words into a statute in R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166 at [5] (Abadee and Barr JJ agreeing):
“The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what parliament meant by the words it used, not to determine what Parliament intended to say.”
“In order to construe the words actually used by Parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used.”
Although the word “any” precedes the word “services” in cl 4.1(b), that language does not deny the application of the contextual and purposive principles of construction described above in order to determine which “services” are within the clause.
To the extent that Pharmacy Platform’s submission is that the words “any services” cannot be read down by any proper process of interpretation, the submission should not be accepted. The question is then whether those words should be read down in light of the operative text of the Deed, the recitals and what the parties had in contemplation at the time of execution. Although the question remains always the construction of the operative text, it is convenient to address the contextual matters first.
Recitals A to D under the heading “Background” all concern Mr Millichamp’s employment with Apotex, the Apotex Employment Agreement or the Apotex Proceedings (which proceedings concerned Mr Millichamp’s employment with Apotex). Those recitals have nothing to do with Pharmacy Platform, the Pharmacy Platform Employment Agreement or the LTI.
Recital E records: “The parties have agreed to finalise all matters between them on the terms set out in this deed” (emphasis supplied). The parties named on the front page of the Deed, and the persons identified under the heading “Parties” immediately before the heading “Background”, are Mr Millichamp, Apotex and Apotex Inc. — not Pharmacy Platform. Although the operative clauses go on to address the rights and obligations of related companies, those companies are not “parties”.
It is true that cl 11.1 provides that Apotex and Apotex Inc. “execute this deed on their own behalf and on behalf of the Group Companies and each officer, employee and agent of [Apotex], Apotex Inc. or of any Group Company.” That clause does not make each of those persons, including every officer, employee and “agent” of every related company, a “party” to the Deed. That would be a highly surprising outcome, even assuming that Apotex or Apotex Inc. had authority to bind those persons by entering the Deed as their agent. Clause 11.1 is instead directed to the issue raised by cl 11.2: that “the parties” (again clearly referring to the three parties named at the start of the Deed) acknowledge that Apotex and Apotex Inc. may enforce the Deed against Mr Millichamp on behalf of the identified classes of persons. In this regard, it is notable that those persons are not only the beneficiaries of Mr Millichamp’s releases given in cl 4; they also have the benefit of his non-disparagement promises in cl 7.
On the face of the recitals, the main object of the Deed was thus to settle the Apotex Proceedings and “to finalise all matters between” the parties (in the language of recital E), in particular with respect to Mr Millichamp’s employment with Apotex (as referred to in recitals A to D). The recitals thus make clear that the main purpose of the Deed is to address claims arising out of Mr Millichamp’s relationship with Apotex and to bring the legal consequences of the relationship to an end. That relationship was largely one of employer and employee, but also one of director and company. It is unnecessary for present purposes to do more than refer to the relationship generally, which favours Pharmacy Platform.
Applying the principles that “the general words of a release are to be restrained by the particular recital”; that “introductory matter … will qualify the general words of the release”; and that “the words of a contract are to be construed as a whole having regard to the purpose or objects to be secured by the contract … [including] express objects evident from recitals”, the recitals provide strong reasons to construe the words “any services provided to any Group Company” in cl 4.1(b) as meaning services the provision of which arose out of Mr Millichamp’s relationship with Apotex.
Nothing in the “genesis of the transaction” suggests a wider purpose of the Deed than that apparent from the recitals. To the contrary, the circumstances leading to the Deed confirm that purpose. Those circumstances began with Mr Millichamp’s claims against Apotex under the Apotex Employment Agreement, which led to the Apotex Proceedings, which resulted in the settlement of those proceedings. Settling the Apotex Proceedings and finalising all matters between the parties required a payment by Apotex to Mr Millichamp, and Apotex required releases from him in return.
Importantly, at the time the final form of the language of the Deed came into existence (1 March 2022), the parties had already entered a binding contract by reason of Apotex’s acceptance on 19 January 2022 of Mr Millichamp’s 23 December 2021 Calderbank offer. That contract included releases in favour of Apotex that were, for the reasons identified above, directed to claims by Mr Millichamp relating to (a) the events the subject of the Apotex Proceedings, and (b) Mr Millichamp’s employment by Apotex and the Apotex Employment Agreement. It was no part of that contract to release Mr Millichamp’s entitlement to be paid the LTI pursuant to cl 8.1.4 of the Pharmacy Platform Employment Agreement.
In order to finalise all matters between the parties, Mr Millichamp also required releases in his favour. Such releases had been proposed by Apotex in its second 7 December 2021 Calderbank letter, and adopted in Mr Millichamp’s 23 December 2021 offer (which Apotex accepted on 19 January 2022). They released any claims relating to Mr Millichamp’s employment by Apotex or his role as a director “including any work performed or information provided by him in relation to or in connection with the merger of Arrow Pharmaceuticals Pty Ltd and [Apotex]”. The circumstances of Mr Millichamp’s involvement in that transaction in 2018-2019 are discussed below. For present purposes it suffices to note that the releases in favour of Mr Millichamp contained in the agreement the parties reached on 19 January 2022 again had nothing to do with his employment with Pharmacy Platform.
While the 23 December 2021 letter expressly provided that the parties would be immediately bound upon acceptance of the offer (which occurred on 19 January 2022), it also acknowledged that the parties “intend to further and more fully record their agreement in a Deed of Settlement”. That was what was “specially in contemplation of the parties” when the final draft of the Deed was circulated on 1 March 2022: that the Deed would more fully record their extant agreement to release claims relating to the events the subject of the Apotex Proceedings and Mr Millichamp’s employment by Apotex.
If the Deed had been entered on 1 March 2022, on no view would it have released Mr Millichamp’s entitlement to be paid the LTI by Pharmacy Platform. That is not only because there is no basis on which a reasonable person in the position of all parties to the Deed could be taken to have known that Pharmacy Platform had become a “Group Company” as defined; more generally, no part of the purpose of the Deed was directed to the relationship between Mr Millichamp and Pharmacy Platform. At no point had there been any indication in any communication between the parties to the Deed that its purpose extended to things unconnected with Mr Millichamp’s employment by Apotex. In particular, there had been no communication between the parties to the Deed before the finalisation of the text on 1 March 2022 about Pharmacy Platform or about the transaction by which it had become a related company of Apotex. As at 1 March 2022, the “services” referred to in cl 4.1(b) could only be services arising out of Mr Millichamp’s relationship with Apotex.
The words “any services” in cl 4.1(b) were addressed above. The word “any” does not exclusively control the meaning of the word “services”, which must be understood in light of the rest of the clause and the contextual material referred to above.
Clause 4.1 identifies the claims which are released by reference to two sets of subject matters.
Paragraph (a) is concerned with “the events the subject of the [Apotex] Proceedings”. Those events all concern Mr Millichamp’s employment with Apotex.
Paragraph (b) then identifies a series of matters all of which also concern Mr Millichamp’s employment with Apotex: “his employment by [Apotex], his role as a director of [Apotex] and Apotex Australia Pty Ltd, the cessation of that employment, the [Apotex Employment Agreement] and the termination of the [Apotex Employment Agreement] …” The words on which Pharmacy Platform relies follow next: “… or any services provided to any Group Company or Sherfam (whether or not for reward)”. Those words are readily read in light of what precedes them as being concerned with services provided to Group Companies that arose out of Mr Millichamp’s relationship with Apotex. It was suggested that on that reading the words would be surplusage, since such services would fall within the opening words of par (b) (“relating to, arising out of or in any way connected with his employment by [Apotex]”). If so, the same would be true of the reference to “his role as a director of [Apotex] and Apotex Australia Pty Ltd”.
The clause may thus be seen as an example of “belts and braces” drafting. The words at the end of par (b) serve at least to make clear that the release is not confined to claims Mr Millichamp might have in his capacity as an employee of Apotex. The use of the word “services” is apt to capture any other role Mr Millichamp might have had or any other task he might have carried out for other group companies while an employee of Apotex, whether or not he was separately paid to do so. As will be seen below in relation to “Sherfam”, Mr Millichamp had in fact performed such services without payment for at least one commercially related entity other than Apotex and Apotex Australia Pty Ltd.
It should also be noted that cl 4.1 ends with a carve-out to the effect of the one sought by Mr Millichamp in his Calderbank offer of 23 December 2021. It protects “rights of or to indemnification in favour of Mr Millichamp, which rights of or to indemnification subsisted as at the date of notice of termination of employment”. In the context, that can only mean termination of his employment with Apotex, and hence can only mean rights to indemnification in some way connected with his employment with Apotex.
The language of cl 4.1 is thus consistent with the purpose identified in the recitals and the matters specially in contemplation of the parties as discussed above. (Clause 4.2 turns on matters “in respect of which a release is granted in clause 4.1” and does not add to the analysis.)
The references to “Sherfam” in cll 4.1(b) and 5.1 are not insignificant. As noted above, “Sherfam” is not defined in the Deed. The primary judge did not make findings explaining what Sherfam is. It was described in the course of argument in this Court as “a manifestation of the Sherman family”, but the legal character of that manifestation remains obscure.
Senior Counsel for Pharmacy Platform drew our attention to pars 10, 16 and 86 of Mr Millichamp’s affidavit of 11 September 2023, each of which referred to “Sherfam” without defining it: Tcpt, 9 May 2025, 28.12-20. The following matters in that affidavit give context to par 10. I understand it to be uncontroversial that those matters may be taken to have been known to the parties to the Deed.
In 2017, Apotex International Inc (the ultimate holding company of Apotex) (Apotex Int) was in discussions with entities associated with Mr Dennis Bastas over the sale of Apotex and Apotex Australia Pty Ltd (which Mr Millichamp called, together, Apotex AU): at par 7. The transaction was referred to as Project Aardvark. Mr Millichamp was involved in collating information for the purpose of determining a value for Apotex AU: at par 8.
The founder of Apotex, Dr Bernard (Barry) Sherman, died in December 2017. The Sherman family, who were the beneficiaries under Dr Sherman’s Will, asked Mr Alex Glasenberg of “Sherfam” to control Project Aardvark on behalf of Apotex Int.: at par 10. Mr Glasenberg and Mr Jonathan Grauman of “Sherfam” controlled the project.
On many occasions from early 2018, Mr Millichamp provided information to Mr Glasenberg and Mr Grauman to permit them to determine the value of Apotex AU and the risks associated with it: at pars 12-14. Much of that work was outside Mr Millichamp’s role as Managing Director of Apotex AU: at par 15.
It is not apparent that what Mr Millichamp said at par 16 of his affidavit, to which the Court’s attention was drawn, may be taken to have been known to the other parties to the Deed, and for the purpose of construing the Deed it should be put to one side:
“I met with Mr Bastas at his office in Melbourne in or about August or September 2019. The gist of what he said to me was that accounting adjustments of over $11 million to the Apotex AU EBITDA had to be made as a result of a number of accounting errors, resulting in a profit of around $35 million, instead [of] what had been believed to be around $46 million. He then told me that he had negotiated a much fairer price using those figures, which I took to mean that Sherfam was to receive a substantially lower amount for the Apotex AU business than it had initially contemplated. I recall that he said ‘Sherfam is considering suing you’.”
What Mr Millichamp said at par 86 expressing his subjective concern in February 2022 about Mr Bastas’s statement “that Sherfam was thinking of suing me” cannot be taken to have been known to the other parties to the Deed. However, Mr Millichamp’s statement in that paragraph that “Sherfam … was not a related entity” (i.e., apparently, of Apotex AU) may be taken to have been known to the other parties to the Deed.
The uncontroversial matters taken to be known to the parties to the Deed referred to above provide the context in which, as noted above, the agreement reached by the acceptance of Mr Millichamp’s Calderbank offer on 19 January 2022 included a release in favour of Mr Millichamp as follows:
“Apotex Pty Ltd, its Related Bodies Corporate and Apotex Inc. (the Companies) release and forever discharge Mr Millichamp from all present and future claims, whether known or unknown, and however arising (including in contract, in tort or under statute) which the Companies have or may have against him including, without limitation, all claims relating to or arising out of his employment by Apotex Pty Ltd or his role as a director of Apotex Pty Ltd and Apotex Australia Pty Ltd, including any work performed or information provided by him in relation to or in connection with the merger of Arrow Pharmaceuticals Pty Ltd and Apotex Pty Ltd.”
Emphasis supplied.
“… and all claims relating to or arising out of his employment by the Company or his role as a director of the Company and Apotex Australia Pty Ltd, the cessation of that employment, the Contract and the termination of the Contract, including any work performed or information provided by him (whether in his capacity as an employee of the Company or in the course of providing any services to a Group Company or Sherfam (whether or not for reward)), in relation to or in connection with the merger of Arrow Pharmaceuticals Pty Ltd and Apotex Pty Ltd”.
Emphasis supplied.
The words in cl 5.1, “in the course of providing any services to a Group Company or Sherfam (whether or not for reward)”, are clearly referable to activities undertaken by Mr Millichamp which were connected with his employment with Apotex.
The same is true of the corresponding words added to the release given by Mr Millichamp in cl 4.1(b): “any services provided to any Group Company or Sherfam (whether or not for reward)”, which are the words on which Pharmacy Platform particularly relies. Those words are clearly referable to work done by Mr Millichamp arising out of his relationship with Apotex.
In the result, the words “provided to any Group Company or Sherfam” are consistent with the approach to the meaning of the words “any services” identified above. That is, that the provision of the services in question must have arisen out of Mr Millichamp’s relationship with Apotex.
As noted above, cl 5.1 ends with the words “… in relation to or in connection with the merger of Arrow Pharmaceuticals Pty Ltd and Apotex Pty Ltd.” Pharmacy Platform submits that those are express words of limitation, and points out that there are no corresponding words at the end of cl 4.1(b).
It may be accepted that the contrast between the two clauses is capable of bearing on their construction. But there are three reasons why the contrast is, at most, of little weight in this case.
First, the implicit premise of the argument is that a reasonable person in the shoes of the parties would proceed on the footing that the Deed was drafted with care and attention to such contrasts. That premise should not be accepted, particularly given the obscurity of the legal character of “Sherfam” noted above. The fact that the parties did not trouble themselves to define a word in the very phrase in contest, so as to identify one of the entities to which the clause contemplates that “services” may have been provided (thus engaging the release), tells against this kind of close comparative textual analysis.
Secondly, the opening words of cl 5.1 express the release to be without limitation: “all present and future claims … including, without limitation, any claim …” There follow various descriptions of claims. To the extent that Pharmacy Platform submits that the words at the end of cl 5.1 are words of limitation, they are within the inclusive part of the clause and do not limit the opening words of the clause. By contrast, the words “including, without limitation …” do not appear in cl 4.1. Instead, pars 4.1(a) and (b) expressly limit the categories of claims in respect of which Mr Millichamp gives releases.
Thirdly, as explained above, there are strong reasons for reading the words “or any services provided to any Group Company or Sherfam (whether or not for reward)” as confined to services arising out of Mr Millichamp’s relationship with Apotex. In light of the matters discussed above, it is debatable whether the words at the end of cl 5.1 further limit the scope of the “services” referred to, as opposed to expressly spelling out what those services were. But to the extent that the words at the end of cl 5.1 would further limit the scope of the services referred to in cl 5.1, that is no answer to the reasons for reading the word “services” in cl 4.1(b) as meaning services the provision of which arose out of Mr Millichamp’s relationship with Apotex.
Pharmacy Platform submits that the negotiations about the terms of the Deed demonstrate a deliberate broadening of the ambit of the releases. It points to the insertion of the language on which it relies in cl 4.1(b) (“any services provided to any Group Company or Sherfam (whether or not for reward)”), and the words added to cl 5.1 (“in the course of providing any services to a Group Company or Sherfam (whether or not for reward)”).
It is debatable, for the reasons given above, whether there was any broadening of the release in cl 5.1.
With respect to cl 4.1, the submission that there was a broadening of the release assumes as its premise the conclusion which the argument seeks to establish. If the words “any services” are interpreted in the way described above (i.e., as confined to services arising out of Mr Millichamp’s relationship with Apotex), they are best viewed as “belts and braces” drafting which does not broaden the scope of the release. That is because a claim relating to services so understood would be a claim relating to, arising out of or connected with Mr Millichamp’s employment by Apotex, so as to fall within the opening words of par (b). But even if that were not so, such that the words “any services” as so interpreted did broaden the scope of the release in cl 4.1(b), that would not, without more, assist Pharmacy Platform. That is because Mr Millichamp’s employment with Pharmacy Platform was not in any way connected with his relationship with Apotex, so as to come within the words “any services” as so interpreted.
It follows that even if cl 4.1(b) did expand the scope of the release (compared to that in the agreement reached by the acceptance of the 23 December 2021 Calderbank offer on 19 January 2022), that is the start of the enquiry, not the end of it.
Ultimately, for the reasons given above, the construction of the Deed is not to be determined by a process of inferences drawn from a close textual analysis of other clauses of the Deed disclosing indications consistent with one construction or another. But it should not be overlooked that there are substantial textual indications that support Mr Millichamp’s construction.
Part of Pharmacy Platform’s argument is that the commercial purpose of the Deed was to “wipe the slate clean” by separating Mr Millichamp from the whole group of companies as it stood on 16 March 2022, rather than from some earlier emanation of the group which did not include Pharmacy Platform. It refers to recital E and the language of “finalis[ing] all matters between them”.
For the reasons already given, recital E is concerned on its face with matters among the “parties” which did not include Pharmacy Platform.
One reason to reject the proposition that the purpose of the Deed was to wipe the slate clean with respect to all Group Companies, including Pharmacy Platform, is cl 9, which is as follows:
“9 Survival of parts of [Apotex Employment Agreement]
This deed does not detract from any obligations of the parties under the [Apotex Employment Agreement] which survive the cessation of Mr Millichamp’s employment with [Apotex].”
The parties were thus careful to preserve their existing rights under Mr Millichamp’s contract of employment that had survived the cessation of his employment with Apotex. There is no corresponding provision addressing the Pharmacy Platform Employment Agreement. On the one hand, Pharmacy Platform embraces the fact that there is no saving reference to accrued rights under the Pharmacy Platform Employment Agreement in cl 9. On the other hand, the absence of any reference to Mr Millichamp’s employment with Pharmacy Platform suggests that the parties’ concern in the Deed was with matters arising out of Mr Millichamp’s employment relationship with Apotex, not Pharmacy Platform.
Clause 3.2 provides that Apotex “will deduct from the Settlement Sum [i.e., $385,000], and remit to the Australian Tax Office, all amounts it is required in law to deduct and remit for tax” (emphasis supplied). But on Pharmacy Platform’s case, the Deed was in settlement (i.e., release) of Mr Millichamp’s entitlement to be paid the LTI. That was an employment benefit payable by Pharmacy Platform, in respect of which it would be “required in law to deduct and remit” tax. Yet the Deed makes no provision for that to occur. Again, that suggests that the parties’ concern in the Deed was with matters arising out of Mr Millichamp’s employment relationship with Apotex, not Pharmacy Platform.
The combination of the matters discussed above powerfully supports a construction in which the word “services” in the release in cl 4.1(b) of “claims … relating to, arising out of or in any way connected with … any services provided to any Group Company or Sherfam (whether or not for reward)” means services the provision of which arose out of Mr Millichamp’s relationship with Apotex.
Mr Millichamp’s entitlement to be paid the LTI pursuant to the Pharmacy Platform Employment Agreement has no connection with any services that meet that description. His right to be paid the LTI was not released by the Deed. The appeal should be dismissed.
There is accordingly no occasion to consider the operation of any equitable doctrine arising on the notice of contention.
The orders I propose are:
Grant leave to appeal.
Dismiss the appeal with costs.
PRICE AJA: I agree with McHugh JA.
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Pharmacy Platform Pty Ltd
Millichamp [2025] NSWCA 213
(1954) 91 CLR 112
(2013) 85 NSWLR 1
(2022) 109 NSWLR 149
(2023) 322 IR 278
(2024) 303 FCR 100
(1999) 46 NSWLR 681
(2015) 256 CLR 104
Leave to appeal granted; appeal dismissed with costs: [107].
On 15 July 2021, Mr Millichamp took the next step on the path leading to the Deed by commencing proceedings against Apotex and Apotex Inc. (as guarantor under the Apotex Employment Agreement) in what was then the Federal Circuit Court of Australia, claiming unpaid employment entitlements (the Apotex P****roceedings). Those proceedings were mediated on 12 November 2021, without success. On 7 December 2021, Apotex’s solicitors sent Mr Millichamp’s solicitor two letters in relation to settling the Apotex Proceedings, each expressed to be without prejudice save as to costs and to be made in reliance on the principles discussed in Calderbank v Calderbank [1976] Fam 93. That is to say, each offer was closely tied to the circumstance that Mr Millichamp had sued Apotex and Apotex Inc.
The first letter offered to settle the proceedings for $300,000 on the footing that Mr Millichamp agreed to consent orders dismissing the proceedings with no order as to costs.
The second letter offered to settle the proceedings for $350,000, again with dismissal and no order as to costs, but with the additional term that Mr Millichamp enter a deed of settlement. The proposed deed was to include, among other things, a release to be given by Mr Millichamp as follows:
The completion of the transaction by which Pharmacy Platform became a “Group Company” was made public on or about 7 March 2022, and Mr Millichamp himself learned of it that day. But the Deed is to be construed objectively. The mere fact that the transaction had been made public does not, without more, mean that a reasonable person in the position of the parties to the Deed should be taken to have known of it. In any event, in the absence of any communication between the parties to the Deed about (a) Mr Millichamp’s entitlement to be paid the LTI, (b) his employment with Pharmacy Platform, (c) Pharmacy Platform itself, or even (d) the transaction announced on or about 7 March 2022, it cannot be said that any of those matters were specially in contemplation of the parties at the time of entry into the Deed.
Given the function of the Deed “to further and more fully record [the parties’] agreement” already reached on 19 January 2022, and given that there was no change to the text of the draft Deed that had been circulated on 1 March 2022, the claims that were specially in contemplation of the parties when they entered the Deed did not extend beyond those arising out of Mr Millichamp’s relationship with Apotex. Those were “the particular matter[s] out of which the release springs”, and by which “the general words of [the] release may be limited”.
Again, those are strong reasons to construe the words “any services provided to any Group Company” in cl 4.1(b) as meaning such services arising out of Mr Millichamp’s relationship with Apotex.
Again, the text of cl 4.1 provides strong reasons to construe the words “any services” in cl 4.1(b) as meaning services arising out of Mr Millichamp’s relationship with Apotex.
It should be noted that these matters go to the interpretation of the word “services”, not to the meaning of the words “Group Company”. The various textual arguments that Pharmacy Platform developed in support of the proposition that the words “Group Company” refer to the Group Companies at the time of entry into the Deed, and that they should not have a different meaning in cl 4.1 from other places in the Deed, are therefore not to the point.