They [Viva Energy], in effect, self-define the obligations which are in play and then say having limited them to not include here 29.12(b)(ii) the clause has no work to do in respect of 29.12(b)(ii). And so when we identify, as we do with that provision, a relevant obligation not being assigned, and complain about that the very complaint on their case gives the answer. We identify an obligation that ought be assigned and isn't and they say, well, because we're not assigning it we don't have to satisfy clause 36.1(f) in respect of it.
Unsurprisingly, that's unsound and plainly not intended by the parties or commercially explicable applying the types of approaches that one sees in Energy Development v Woodside.[200] Plainly the parties didn't intend Viva, or for that matter Eureka, under sub-clause (d) to be able to chop up associated rights and obligations, and one sees the error in the approach in interpretative terms when one recognises that what Viva does for that argument is to go straight to (f)(i).
If Your Honour sees (f)(i), it requires a full and effective assumption of the obligations to be assigned. They fasten first up on that and they say, well, we're not assigning 29.12(b)(ii), so it doesn't have to be assigned or fully and effectively assumed. The problem about that, which is insuperable, is that one doesn't start with (i). One starts with the prefatory words and as I've identified, they are a commission to assign all or any part. And assuming it's not all, one needs to identify the part. Once one has done that sub-clause (i) is referring. So the obligations to be assigned, referred to in (i) are the part that is in issue and within the scope of the empowering words of the opening lines of clause 36.1(f).
And it's plain that the word, "Part" has to be recognised and given effect, otherwise the agreement would have said, Viva may assign all or any of its obligations, but it doesn't say that. There has to be a part. And of course, it must be a sensible part and we have identified in writing and a few minutes ago, orally, what part it is which rationally and cohesively could be meant in the context of a sale. Namely, the obligations which are referrable to the subject land.
The words fully and effectively support and reinforce this, because they make all the clearer, as was necessarily the case in any event, that there needs to be a coherent and cohesive assumption and assignment. And so for those textual reasons, one sees readily why it is that contrary to Viva's position, there cannot, by means of this clause be an assignment of a selected basket of rights, orphaning necessarily interdependent and connected provisions, which results in the assignee and Viva enjoying a better position and correlatively Eureka's position being prejudiced, despite its lack of involvement, as compared to the previous contractual position under the carefully formulated alliance arrangements.