26 The defendants submit that the plaintiff required "something substantially more than the maintenance of power supply" in relation to the upgrade. In any event, they contend, clause 3.6 must be read in conjunction with clause 13.1.3, under which the additional power point installation cost was one for which the plaintiff was liable, being a direct and necessary expense of the upgrade process.
Clause 15
27 The plaintiff then argues that shopfitting, required to make an outlet comply with the plaintiff's latest design requirements as a consequence of a particular upgrade, might also fall within the ambit of clause 15, in which case the obligation to install power points would devolve to the defendants[8]. Even the costs of the subject power points could be sheeted home to the defendants, under clause 15.2, if the necessary direction were given under clause 15.1[9] However, counsel for the plaintiff does not go so far as to contend that clause 15 is applicable to the upgrade under consideration.
28 Counsel for the plaintiff argues, generally, that the Tribunal failed to subject those pages of the Agreement which were before it to any "close or reasoned examination" and failed to apply relevant principle to the construction of those pages[10]. The plaintiff contends that such analysis discloses that the Agreement gives rise to what counsel for the plaintiff describes as concurrent obligations of a continuing nature. The plaintiff contends that the Tribunal erred by concluding that the obligations under the various clauses before it were mutually exclusive in their operation[11].
Conclusions
29 The construction of the term of an agreement is a question of law[12]. The meaning of a commercial agreement is to be determined objectively[13]. The words used are to be given the meaning which a reasonable person would attribute to them[14]. The Agreement is a commercial one and, accordingly, is to be construed, in context, in a commercially sensible way, rather than by the adoption of a strict and technical approach to its terms[15].
30 The Agreement does allocate responsibility for the preparation of the outlet to the defendants, under clause 3.1. It also obliges the defendants to install and maintain a dedicated power supply to any lottery terminal installed at the outlet from time to time, under the combined operation of clause 3.6 and the definition of "lottery terminal" in clause 1.1. In my view, a commercially sensible reading of clause 3.6 results in the conclusion that the parties agreed that the defendants should be responsible for the installation of any necessary power points to give access to the power supply for any terminals installed at the outlet from time to time. On the other hand, the Agreement obliges the plaintiff to bear the cost of the installation of any lottery terminal, under clause 3.5.
31 Nevertheless, notwithstanding the parties' continuing general obligations, the Agreement deals specifically with the allocation of costs in certain particular situations. So, the costs of any shopfitting which the defendants are directed to carry out, in order to comply with the plaintiff's latest design requirements, are to be met by the defendants under clause 15.2. (I note that the Agreement offers some protection to the defendants, by prohibiting such a direction more than once during the term of the Agreement, with the exception of any expenses relating to a "minor upgrade of ancillary facilities".)
32 Clause 13.1 then governs the particular circumstances of an "upgrade". It provides that the expense of such an exercise is to be borne by the plaintiff. It is the plaintiff's desire to upgrade its lottery terminal network and its advice of the proposed upgrade to the defendants which trigger the defendants' obligations to co-operate, under clause 13.1.1, as well as the plaintiff's own obligation to meet the expense of the upgrade, under clause 13.1.3.
33 I consider that the expense attached to the installation of the power points required for the substituted lottery machines is, as counsel for the defendants contends, a necessary and direct cost or expense of the upgrade. I reach this conclusion even though I consider that the cost of the installation of the power points would otherwise fall within the ambit of the defendants' general obligations under clause 3.6.
34 I do not think that this conclusion requires that the power points themselves be regarded as falling within the description, in clause 13.1, of "hardware, software or other equipment of a technically superior nature" to be substituted or added in the upgrade process. I note that I am not persuaded by the defendants' argument that the additional power points constitute "equipment of a technically superior nature" because more are required for the substituted machines or because that expression is to be interpreted as referring to power points as part of the "peripheral equipment" to be replaced.
35 There is no express qualification of the plaintiff's obligation to meet the expenses of the upgrade (by reference in clause 13.1 to any continuing obligations on the part of the defendants, under clauses 3.6 or 15.2 or otherwise). I consider that the applicable specific provisions of clause 13.1 override the general provisions of clause 3.6, which might otherwise apply, when the relevant clauses of the Agreement are construed in a commercially sensible way.
36 I conclude that the Tribunal did not err in determining that the plaintiff is liable for the cost of the installation of the power points required in relation to the upgrade.
37 The question should be answered in the affirmative and the appeal dismissed.