The BLM Agency Pty Ltd ACN 630 683 000 v The Blaze Agency Pty Ltd ACN 127 223 518

Category: Procedural rulings

Parties: The BLM Agency Pty Ltd (Plaintiff/First Cross Defendant)
The Blaze Agency Pty Ltd (Defendant/Cross Claimant)
Cameron Day (Second Cross Defendant)
Damien McGregor-Lowndes (Third Cross Defendant)

Representation: Counsel:
R Alkadamani (Plaintiff/Cross Defendants)
N Riordan/T Immidi (Defendant/Cross Claimant)
Solicitors:
BBW Lawyers Pty Ltd (Plaintiff/Cross Defendants)
Thomson Geer (Defendant/Cross Claimant)

File Number(s): 2023/00440674

Publication restriction: Nil

JUDGMENT

Introduction

1. By Notice of Motion filed 5 November 2025 the Defendant/Cross Claimant (Blaze) sought leave to amend its Amended Defence and its Cross Claim in the forms annexed to an affidavit of Jodi Anne Walkom sworn 5 November 2025 (Walkom affidavit).

2. The application for amendment was brought late. The hearing of these proceedings was set down for Monday, 17 November 2025 for 4 days and a further day of hearing on 28 November 2025.

3. The Plaintiff and Cross Defendants (together, the BLM Parties) sought an opportunity to respond to the evidence which had been filed in support of the amendment application and to consider the form and nature of the proposed claims. In these circumstances, the amendment application was set down for hearing on 11 November 2025 which was the first date I could then hear the application.

4. The proposed amendments broadly fell into two categories. The first related to a claim, already made in the Cross Claim and pleaded in the Amended Defence by way of set-off, for the failure to procure the payment of fees in the fourth quarter of 2023 (the Unpaid Fees Claim). There was no opposition to those amendments, and I made orders granting leave to file an Amended Cross Claim and a Further Amended Defence incorporating the amendments concerning the Unpaid Fees Claim.

5. The second category of amendment related to a claim for damages which rests on an alleged implied term (which I consider below) for the payment to Blaze of remuneration payable to each of Mr Cameron Day and Mr Damien McGregor-Lowndes (respectively the Second and Third Cross Defendants) after the termination of a Consultancy Agreement between the parties (the Continuing Commissions Claim).

6. I refused the grant of leave to amend the pleadings insofar as they related to the Continuing Commissions Claim. These are my reasons for that refusal.

7. It is convenient first to summarise the nature of the claims prior to the amendments sought to be made in the present application and then the Continuing Commissions Claim.

Claims in the proceedings

8. The Plaintiff, the BLM Agency Pty Limited (BLM) pleads that:

(a) Blaze repudiated by wrongfully purporting to terminate, or alternatively breached, a Consultancy Services Agreement entered into between Blaze and BLM dated 1 January 2019 in respect of BLM providing Blaze with sports agency services (the Consultancy Agreement); and (b) Blaze breached five separate agreements with third-party consultants by failing to pay fees allegedly owed to the consultants (and the right to recover those fees was allegedly assigned to BLM).

9. BLM seeks relief in the form of damages in the following five categories as I understand it:

(a) consultancy fees allegedly payable for November and December 2023 in the amount of $64,390; (b) a consultancy bonus allegedly payable for 2023 in the amount of $44,000; (c) a profit share allegedly payable for the fourth quarter of 2023 – either $20,240, $41,951 or $61,538 depending on the items included in the calculation; (d) BLM’s expenses in the amount of $15,892; and (e) third-party consultants’ fees and expenses in the amount of $19,873;

These amounts total between $164,396 and $205,694.

10. Blaze pleads by its Amended Defence that BLM itself repudiated the Consultancy Agreement or, alternatively, Blaze was entitled to terminate the Consultancy Agreement based on the alleged gross misconduct of Mr Day and denies that it is liable for the alleged loss and damage claimed by BLM.

11. By its Cross Claim filed 28 July 2025, Blaze made claims against BLM and Mr Day and Mr McGregor-Lowndes. These claims include the Unpaid Fees Claim. In summary, Blaze’s Cross Claim includes breach of contract claims as follows:

(a) BLM breached certain obligations under the Consultancy Agreement by failing to procure payment of fees in the amount of $83,804 that would be payable to Blaze during the fourth quarter of 2023 (QF 2023 fees); (b) in consequence of the alleged breaches by BLM, Mr Day and Mr McGregor-Lowndes breached side agreements they had personally entered into and parallel with the Consultancy Agreement to comply with certain of its terms; and (c) BLM is liable to pay Blaze $4,195 in respect of an overpayment of a profit share for 2023.

12. Mr Day is a director of BLM. Mr McGregor-Lowndes is a former director of BLM having retired in January 2024.

The Continuing Commissions Claim

13. The Continuing Commissions Claim is relatively complex and plainly introduces allegations of a different kind and subject matter to those in the existing pleadings. These allegations also relate to a different period of time, namely, a continuing (but otherwise undefined) period after the expiry of, or termination of the Consultancy Agreement.

14. The Continuing Commissions Claim rests fundamentally on an implied term of the Consultancy Agreement, which is pleaded in [8A] of the proposed Amended Cross Claim (ACC):

“8A. It was a term of the Agreement that if Day or McGregor-Lowndes were appointed the agent of a Player during the term of the Agreement, any proportions of a contracted Player’s remuneration that were payable to Day or McGregor-Lowndes (as the Player’s agent after the termination of the Agreement) would continue to be paid to Blaze, and 51% of those amounts would be payable to Blaze (Continuing Commissions Term).

Particulars

The Continuing Commissions Term was implied in fact.”

15. As can be seen, the particulars to [8A] provide that the Continuing Commissions Term was implied in fact. No other particulars were provided to support the implication.

16. The claim introduces clause 3.5 of the Consultancy Agreement as follows ([6A(b)] of ACC):

“6A(b) BLM shall comply with any and all applicable laws, regulations (including those applicable to agents of professional athletes), codes of practice and warrants to Blaze that by entering into the Agreement and performing the Services, BLM and/or [Day or McGregor-Lowndes] shall not be in breach of any contract or any other obligation and that each of [Day and McGregor-Lowndes] shall maintain in force an agent registration in accordance with applicable agent regulations in order to provide the Services (Regulatory Compliance Term).”

17. It is then alleged that by reason of clause 3.5 of the Consultancy Agreement, and also clause 4 of parallel agreements which were entered into between Blaze, Mr Day and Mr McGregor-Lowndes (Side Agreements) and their status as player agents, accredited by the Australian Rugby Player Accreditation Board, Mr Day and Mr McGregor-Lowndes were each required to comply with certain Australian Rugby Player Agent Accreditation Regulations, as applied from time to time ([12B] and [12C] of ACC). Two sets of such regulations were pleaded (in [12D] of ACC) and were in evidence before me; these can each conveniently be described (as they were in the proposed pleading) as the 2015 Regulations and the 2023 Regulations.

18. It is then alleged that the 2015 and the 2023 Regulations required, among other things, accredited player agents, prior to representing or advising a player, to enter into Standard Form Player Agent Agreements between themselves and the player ([12E] to [12G] of ACC). These Standard Form Player Agent Agreements were Schedules to each of the 2015 and the 2023 Regulations and also were in evidence before me. Again, it is convenient to refer to them, as they are in the proposed pleading, as the 2015 Standard Player Agent Agreement and the 2023 Standard Player Agent Agreement.

19. It is then alleged that the Standard Player Agent Agreements included a term requiring players to pay the agent an amount equal to a proportion of all monies they receive pursuant to their employment by rugby clubs, both during and after the expiry of the term of the agreement between the player and the agent ([12H] of ACC). Pursuant to clause 3.5 of the Consultancy Agreement, the proposed pleading alleges that Mr Day and Mr McGregor-Lowndes were required to comply with the 2015 and 2023 Regulations (Regulations Requirement).

20. It is then alleged that in breach of the Regulations Requirement, Mr Day and Mr McGregor-Lowndes engaged in the procurement, negotiation and/or administration of player contracts without having entered into a Standard Player Agent Agreement with each of those players ([12J] of ACC). I was told at the hearing of the application, that these breaches related to 23 individual rugby players. It was submitted, that Mr Day and Mr McGregor-Lowndes did not enter into written agency agreements at all with players. In these circumstances, it was alleged that Mr Day and Mr McGregor-Lowndes breached their respective Side Agreements and caused BLM to breach the Consultancy Agreement ([12K] and [12L] of ACC).

21. It is then alleged that had those breaches not occurred, Mr Day and Mr McGregor-Lowndes would have been entitled under the Standard Player Agent Agreements to payment of commissions during and after the expiry of the term of each of those agreements ([12N] of ACC). Pursuant to the implied term of the Consultancy Agreement, Blaze, it is alleged, would have been entitled to receive 51% of each of those commissions ([12O] of ACC). Although it is not entirely clear, it was submitted that the proposed pleading should be read such that the commissions which Blaze would be so entitled, are commissions to which each of Mr Day and Mr McGregor-Lowndes would have been entitled under the Standard Player Agent Agreements after the termination of the Consultancy Agreement. It also does not appear, in terms, that the pleading makes an allegation of breach of the implied term, but rather relies on its effect. In any event, it is plain that the alleged obligation is one to pay to Blaze remuneration earned after the termination of the Consultancy Agreement and after the expiry of the Consultancy Agreement in any case, and the entitlement of Blaze to receive a percentage of such remuneration, rests on the implied term in [8A] of ACC.

22. Finally, by reason of the alleged breaches by Mr Day, Mr McGregor-Lowndes and BLM of their respective agreements with Blaze, it is alleged that Blaze is entitled to damages equal to 51% of the commissions to which Mr Day and Mr McGregor-Lowndes were or would have been entitled in respect of the agency agreements entered into by Mr Day and Mr McGregor-Lowndes during the term of the Consultancy Agreement, after the termination of the Consultancy Agreement. Blaze quantified its claim in the amount of $168,704 and accruing, although the precise basis of that assessment is not entirely clear in the particulars subjoined to [12P] of ACC.

Applicable principles

23. The Court has a broad discretion pursuant to s 64 of the Civil Procedure Act 2005 (NSW) (CPA), subject to the overriding purpose referred to in s 56 of the CPA and the considerations set out in ss 57 and 58 to grant leave to amend a pleading at any stage of the proceedings.

24. Section 64(2) provides that, subject to s 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or depending on the proceedings.

25. Section 58(1) of the CPA requires the Court to seek to act in accordance with the dictates of justice in deciding whether to make any order or direction for the management of proceedings, including any order for the amendment of a document. In determining what are the dictates of justice in a particular case, s 58 requires the Court to have regard to the overriding purpose and permits the Court to have regard to a range of matters that include the degree of difficulty or complexity to which the issues in the proceedings give rise, the degree of expedition with which the parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, the degree to which any lack of expedition of approaching the proceedings have arisen from circumstances beyond the control of the respective parties, the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, and the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction.

26. The modern approach to amendment applications has been recently explained by Williams J in Ladmore v Ashton [2024] NSWSC 1298 at [9]:

“A just resolution of the proceedings is the paramount objective. Any amendment will usually occasion some waste of costs, and some delay. However, a just resolution of the proceedings does not require that a party be permitted to raise any arguable case, at any stage of the proceedings, subject to an order requiring it to pay the other parties’ costs thrown away by the amendment. An order for costs does not always ameliorate the prejudice that other parties suffer by reason of a late amendment, particularly if the amendment causes the hearing to be vacated at a time when the proceedings were otherwise ready for trial.”

27. This follows from the oft-cited authority of the High Court in A**on Risk Services Limited v Australia**n National University (2009) 239 CLR 175 (Aon) where Gummow, Hayne, Crennan, Keifel and Bell JJ stated:

“[111] An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. …

[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

[113] In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.”

28. In relation to the need for an explanation for any delay in making an application for amendment, Gummow, Hayne, Crennan, Keifel and Bell J stated at [103]:

“[103] The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.”

29. The principles concerning amendment under the CPA were also helpfully articulated in the judgment of Barrett JA (with whom Ward and Leeming JJA agreed) in Kelly v Mina [2014] NSWCA 9 at [47]:

“[47] Particularly in light of the opening words of s 64(2), it is not controversial that the provisions in Part 6 Division 1 of the Civil Procedure Act were binding on the primary judge and that, in accordance with s 58, his Honour was bound to seek to act in accordance with the dictates of justice and, in so doing, to have regard to s 56 concerning the 'overriding purpose' of the Act and rules of court in their application to civil proceedings; also that, in addressing the amendment application in the particular statutory context, his Honour was required to take into account a combination of factors identified by the High Court in Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and usefully summarised by Vickery J in Namberry Craft Pty Ltd v Watson [2011] VSC 136 (at [38]) as follows:

(a) Whether there will be substantial delay caused by the amendment;

(b) The extent of wasted costs that will be incurred;

(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;

(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;

(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.'

[48] As this Court has emphasised more than once, Part 6 Division 1 of the Civil Procedure Act made substantive and important changes to the law so that considerations of promptness and efficiency in the conduct of civil litigation are afforded a new and special importance which may sometimes provoke a sense of injustice in a party who has failed to proceed with despatch." (Citations omitted.)”

These passages were also adopted by Tobias AJA (with whom Beazley P and Emmett JA agreed) in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [16].

Consideration

30. I have considered all of the evidence which was adduced before me, including the Walkom affidavit, an affidavit of John Malcolm Douglas Fairgray (solicitor for the BLM Parties) affirmed 10 November 2025 (Fairgray affidavit) and portions of some affidavits which have either been filed for the purpose of the final hearing commencing on 17 November 2025, or for the purpose of earlier interlocutory disputation between the parties. As I have said, the parties also put before me the Consultancy Agreement, the 2015 and 2023 Regulations and the 2015 and 2023 Standard Player Agent Agreements.

31. The Continuing Commissions Claim is undeniably brought at a very late stage of the proceedings. The Notice of Motion was filed on 5 November 2025 and was brought to my attention at a hearing that morning, which was listed in order to resolve the balance of other interlocutory disputes between the parties, and to ensure that pre-trial directions for the imminent hearing of the matter had been complied with. These pre-trial directions had been made by consent on 24 October 2025. The hearing of the proceedings, as I have said, was scheduled to commence on 17 November 2025 for 4 days with another day of hearing in the following week.

32. An application for a substantial amendment of the kind now sought by Blaze, which enlarges the issues and subject matter of the dispute between the parties brought in such imminence of the commencement of the hearing, bears a heavy burden to demonstrate why leave should be granted: A**on at 182 [4] per French CJ.

33. It was common ground between the parties, and I have no hesitation in accepting, that if leave were granted to allow the Continuing Commissions Claim, the hearing date would need to be vacated. Indeed, as I will explain below, Blaze’s evidence (Walkom affidavit at [42]) was that if leave were granted, it was expected that instructions would be given to undertake further interlocutory steps in support of the Continuing Commissions Claim.

34. On the other hand, despite the pressure imposed on the parties by the preparation for and the argument of the amendment application, neither set of parties submitted that if leave was refused in respect of the Continuing Commissions Claim, the matter would not be ready for hearing when it was scheduled to commence.

35. Blaze submitted that leave ought to be granted because:

(a) accepting that the application was made at a late stage of the proceedings and a grant of leave would necessitate the current trial dates being vacated, the timing of its application was, it was submitted, not the result of unnecessary or unexplained delay; (b) if leave was not granted there was a substantial risk that Blaze will be deprived of an opportunity to have its new claims vindicated or otherwise determined, which it quantified at $168,704 for present purposes; (c) it was desirable that all issues between the parties be dealt with in a single hearing; and (d) that there was a serious question to be tried in respect of the Continuing Commissions Claim.

36. The BLM Parties resisted the grant of leave on a number of bases, including:

(a) granting leave would be futile because, in particular, the new proposed damages claim pivots on the Continuing Commissions Term in [8A] of the ACC, which would not satisfy the well-known test for implication of terms in fact; (b) the delay in the claim and the explanations for the bringing of the application at such a late stage of the proceedings, were not adequate; and (c) the BLM Parties would be prejudiced by the adjournment of the hearing, which would be necessitated by the granting of leave, and the prejudice could not adequately be cured by an order for costs. They submitted that the Court should have regard to the concerns of case management referred to in Aon and picked up in subsequent authorities.

37. As the matter was argued, the parties’ submissions tended to focus on two issues, namely, the issue of delay and the explanation for it, and the viability of the Continuing Commissions Claim, especially whether the Continuing Commissions Term would be implied in the Consultancy Agreement. It is convenient to turn first to the issue of delay, and the explanation for it.

Delay

38. To appreciate the circumstances in which the application for amendment is made, it is necessary to recount some, but not necessarily all, of the history of these very hard fought proceedings.

39. On 5 December 2023 BLM commenced the proceedings by filing its Statement of Claim for the relatively modest amounts of the kind referred to in [8] above. Blaze then filed and served its Defence on 13 February 2024.

40. Some six months later, on 27 August 2024, Blaze’s solicitors issued a letter in relation to the production of documents, asserting that it would bring an application for preliminary discovery in 14 days if the request was not complied with.

41. On 5 November 2024, Blaze filed a Notice of Motion seeking preliminary discovery from the BLM Parties and another entity, Entourage Management Pty Limited, a company associated with, as I understand it, Mr Day and Mr McGregor-Lowndes.

42. There was evidently some disputation concerning that application for preliminary discovery and the parties each filed affidavit evidence on the application.

43. In any event, on 10 April 2025 (some 14 months after Blaze had filed its Defence) orders were made by consent requiring each of the discovery respondents to produce among other things:

“2. Those documents constituting directions or requests by BLM, Entourage, Day and/or McGregor-Lowndes to Players or Clubs to pay fees for the provision of Services rendered in the period 1 October 2023 to 19 November 2023.

3. Those documents created in the period 1 January 2023 to 19 November 2023 recording or constituting:

(a) contracts concluded on behalf of Blaze through BLM and/or Entourage with Players; and/or

(b) records of fees payable to Blaze in respect of such contracts with Players.

…

5. Those documents recording or constituting demands or requests for payment which BLM, Entourage, Cameron Day and/or Damien McGregor-Lowndes issued to Players or Clubs in the period 20 October 2023 to date in respect of Services provided from 1 January 2023 to 19 November 2023.” (emphasis added)

44. “Services” were expressly defined in the Schedule to the orders to bear “the same meaning as the definition of that term in the Agreement*, and**, for or the avoidance of doubt, does not include the performance of any services* after 19 November 2023”. (emphasis added).

45. Plainly, the application for preliminary discovery was directed to the Unpaid Fees Claim which was ultimately brought by way of Cross Claim for fees during the last quarter of 2023. However, the categories were expressly confined by reason of the definition of Services which did not include the performance of services after 19 November 2023. But while the preliminary discovery was confined in that way, it nevertheless sought documents (in category 5) after the termination of the Consultancy Agreement. There was apparently no inhibition in seeking documents that came into existence after the date of the termination, or the expiry of the term of the Consultancy Agreement in any case.

46. The manner in which the preliminary discovery application was framed and resolved, suggests forensic choices were made as to the documents which were sought for the purpose of any Cross Claim that was to be brought. The categories, as framed, were not directed to capturing the existence of directions for the payment of, or arrangements for or the record of fees or commissions payable to Mr Day, Mr McGregor-Lowndes or Entourage for services after the date of the termination of the Consultancy Agreement. Indeed the “Services”, the subject of the orders, excluded the performance of any service after 19 November 2023. However, the evidence before me goes even further.

47. There appears to have been some disputation about the categories or the framing of the orders for preliminary discovery, although not all of that material was put before me. On the amendment application, the BLM Parties read portions of an affidavit of Mr Day dated 11 March 2025 which had been prepared in relation to the preliminary discovery application. In [9] of that affidavit, Mr Day stated:

“I confirm that pursuant to the Agreement, Blaze have no entitlement to a trail/ongoing commission past the date of termination of the Agreement as per clause 1.2 of the Restrictions.”

He repeated a similar assertion at [11]:

“I refer to page 12 of the Confidential Exhibit and confirm that pursuant to the Agreement, Blaze have no entitlement to a trail/ongoing commission past the date of termination of the Agreement as per clause 1.2 of the Restrictions.”

48. Putting aside the relevance of clause 1.2 of the Consultancy Agreement, it appears that the entitlement of Blaze to trail/ongoing commissions past the date of termination of the Consultancy Agreement was a topic that was expressly raised by the BLM Parties through Mr Day in his affidavit in relation to the preliminary discovery application. No evidence in reply was adduced by Blaze to suggest that the subject matter of these extracts from Mr Day’s affidavit were not trail or ongoing commissions which are the very subject of the Continuing Commissions Claim. And no submission was made to that effect. The explanations proffered by Blaze avoided this aspect of the procedural history of the matter.

49. It is also relevant in this context to observe that there was correspondence before me between the parties concerning the adequacy of compliance with the orders for preliminary discovery. However, quite understandably, no such umbrage appears to have been taken that the production did not relate to ongoing or trail commissions and ultimately, no argument was made that any inadequacy of production by the BLM Parties contributed to Blaze’s ability to properly investigate the Continuing Commissions Claim.

50. Returning to the chronology, on 5 June and 11 June 2025, Blaze served iterations of its proposed Cross Claim.

51. At a directions hearing on 11 June 2025 the Court made orders setting the proceedings down for a final hearing of four days commencing on 17 November 2025 subject to the availability of one of Blaze’s witnesses to attend the hearing. The orders made on that date included a timetable for the hearing of a motion for leave to file the Cross Claim (if this was in dispute) and also a timetable for filing of the Cross Claim if the BLM Parties gave their consent. On 20 June 2025, the Court made orders which resulted in a further day of the hearing on 28 November 2025 to accommodate Blaze’s witness.

52. By orders made on 24 July 2025, Blaze was given leave to file its Cross Claim and did so on 28 July 2025. This was some 18 months after it had filed its Defence, and after the proceedings had been set down for hearing. During the course of the hearing of this application, counsel for Blaze candidly accepted that when Blaze was granted leave to file the claim, it was primarily on the basis of his submission that there was substantial overlap between the Unpaid Fees Claim (in the Cross Claim) and the profit share payment claim (in BLM’s Statement of Claim). The Cross Defendants filed their Defences to the Cross Claim on 21 August 2025.

53. On 22 August, 2 September and 16 September 2025 Blaze had issued a number of subpoenas to various non-parties, including rugby clubs and entities around the country to produce documents to Court. The access to this material was the subject of disputation before me on another application with genuine claims of confidentiality in the information contained in the documents produced. In her affidavit, Ms Walkom said that the subpoenas were issued in light of issues which crystallised upon the Cross Defendants filing their Defences on 21 August 2025 (Walkom affidavit at [17]). What those issues were, however, was not identified.

54. Documents were produced in response to the subpoenas progressively during the course of September 2025 and access orders were made in respect of that production on 23 September 2025. Further documents from one club were produced on 17 October 2025.

55. On 24 October 2025 I made orders (over BLM’s opposition) permitting Blaze’s witnesses, each of whom is resident overseas, to give their evidence by audio visual link at the hearing to commence on 17 November 2025.

56. In these circumstances, despite the opportunity to explore the Continuing Commissions Claim in the period from February 2024, the ability and opportunity to seek preliminary discovery, and significantly the very issue of the entitlement of continuing or trailing commissions being raised by the BLM Parties in the context of the preliminary discovery application, Blaze explains the timing of the amendment application in the following way. They did so primarily by reference to the knowledge and understanding of Ms Sarah Abt, who I understand is a witness in these proceedings, and a Director, Finance employed by WMG Management Europe Ltd which is a part of the Wasserman group of companies of which Blaze now forms a part.

57. Blaze submits that the nature of the relationship between it and the BLM Parties was one based on trust. Ms Abt, they submit, was the BLM Parties’ primary contact at Blaze within its accounts team, and she had no awareness of the regulations and practices within the rugby union agency market in Australia. It is submitted that Blaze relied on Mr Day and Mr McGregor-Lowndes to inform them of those practices and the bases on which Blaze was entitled to receive fees. Blaze also, it is submitted, relied on Mr Day and Mr McGregor-Lowndes to be aware of and comply with applicable regulations in the Australian rugby union agency market. Ms Abt did not know the regulations applying to rugby union player agents and as such could not have known that the regulations required the use of the standard form contract and that the standard form contract entitles agents to be paid commissions after the expiry of the term of a player/agent contract while the player’s playing contract remains on foot.

58. Blaze submits that during the term of the Consultancy Agreement and until orders granting access to documents subpoenaed from rugby union clubs, it did not have copies of rugby player contracts signed on by Mr Day and Mr McGregor-Lowndes and did not have, and was not aware, that players had signed payment authorities which provided for the payment of commissions beyond the date on which the Consultancy Agreement was terminated. One such redacted authority was tendered in the evidence before me. Blaze, it was submitted, did not know the terms on which players were contracted to agents, and whether Blaze’s (or any agents) entitlement to payment was tied to or dependent on the provision of Services to players.

59. Blaze, it was submitted, became aware of those matters between 10 October 2025 to 28 October 2025 by reference to certain portions of the affidavit evidence which was filed by Mr McGregor-Lowndes and Mr Day in defence to the existing Cross Claim and the filing of an Amended Defence to the Cross Claim. On 22 October 2025 Blaze’s solicitors wrote to the solicitors for the BLM Parties requesting the production of player representation agreements the subject of the Unpaid Fees Claim. On 27 October 2025, solicitors for the BLM Parties responded that “no written “**player representation agreements” … were entered into during the Term of the Agreement between Blaze and the Players, or BLM (as the Blaze’s agent) and the Players, and this was the agreed practice of BLM and the Blaze (and the Players).”

60. Blaze’s solicitors were instructed to commence preparing the proposed ACC on or around 28 October 2025. As I have said, the application for amendment was filed on 5 November 2025.

61. Given the lateness of the application to amend, I did not find these explanations compelling.

62. First, the explanations proffered did not adequately address why exploration of the recovery of Continuing Commissions, being remuneration received by Mr Day and Mr McGregor-Lowndes after termination of the Consultancy Agreement, had not been the subject of earlier consideration by Blaze. It seems to me that the issue of delay should be approached by looking at the substance of the claim rather than by the particular integers or the specific bases by which Blaze now wishes to prosecute the Continuing Commission Claim.

63. The substance of the claim is that by reason of the implied Continuing Commissions Term, the Consultancy Agreement required the payment to Blaze of remuneration received by Mr Day and Mr McGregor-Lowndes as agents of the players after the Consultancy Agreement was terminated. Being a term implied in fact, this obligation was part of the bargain between the parties, necessary to give it business efficacy, and so obvious that it goes without saying. Even stripped of the formal requirements at law for the implication of terms, the concept of the recovery of a portion of players’ fees that would continue to be payable to Mr Day and Mr McGregor-Lowndes after the Consultancy Agreement came to an end, is not a particularly complicated one. The parties, including Blaze must be taken to have known that the term of any arrangements (such as they were) between the agents and players, or between players and their clubs through which commission may be generated might not necessarily be tied to or co-existent with the term of the Consultancy Agreement.

64. There does not appear to have been any impediment or lack of opportunity to explore the entitlement to, or the recovery of, remuneration received by Mr Day or Mr McGregor-Lowndes after the term of the Consultancy Agreement, in the context of these proceedings. There was ample time, quite apparently sufficient resources available to Blaze, and an application for preliminary discovery was in fact made and prosecuted in support of potential claims to be brought by way of a Cross Claim in the proceedings.

65. During that application in March 2025, the issue of the entitlement to ongoing (ie continuing) or trailing commissions under the Consultancy Agreement was raised in the evidence. No explanation was proffered by Blaze to address why this issue had not been explored or agitated after it was raised in Mr Day’s affidavit. The explanations proffered by Blaze made no reference to this matter. This is in circumstances where the affidavit in support of the amendment application had addressed the preliminary discovery orders and, as I understood it, had (as filed) suggested that inadequate compliance with the consent orders had impeded the proper investigation of the Continuing Commissions Claim.

66. As I have explained, the terms of the orders for preliminary discovery that were made on 10 April 2025 expressly excluded any services after the date of the termination of the Consultancy Agreement. Despite that confinement, the form of the orders demonstrate, that there was no inhibition in seeking documents (if they existed) in the period after the expiry of the Consultancy Agreement until the date of the orders.

67. As counsel for BLM submitted, if Blaze had wanted to investigate a position contrary to that asserted by Mr Day, it could have. Instead, it consented to the orders for preliminary discovery aware of Mr Day’s position that there was no entitlement to ongoing or trailing commissions under the Consultancy Agreement.

68. Secondly, even looking at the matter from the perspective of the particular components of the Continuing Commissions Claim, there were difficulties in accepting the explanation proffered by Blaze for the delay. As I have said, Blaze relied in several respects on the knowledge of Ms Abt who, it was submitted, was not aware of several integers of the Continuing Commissions Claim. In particular, it was submitted, based on information and belief, that Ms Abt had no awareness of regulations and practices within the rugby union agency market in Australia and so could not have known that the 2015 and 2023 Regulations required use of a standard form of contract and that such a contract entitled agents to be paid commissions even after the expiry of the term of a player agent contract.

69. One difficulty with this submission is seeking to attribute only Ms Abt’s knowledge to Blaze. Ms Abt is Director, Finance employed by Wasserman EMEA LLP (Wasserman) formerly CSM Sport and Entertainment LLP (CSM) which was an international talent and marketing services agency. I have heard and understand that she was responsible for the accounts and accounting matters at Blaze during the currency of the Consultancy Agreement and that she was the primary contact for the BLM Parties.

70. However, the evidence before me did not explain whether other officers of Blaze or CSM had any awareness of the matters relating to regulation or regulation practices within the rugby union agency market in Australia, or other matters of which Ms Abt was said not to be aware.

71. Without in any way being critical of Ms Abt or doubting in any way the accuracy of the instructions she has given, there is also evidence before me that the BLM Parties dealt with other officers of Blaze. There was evidence before me that other employees of Blaze and its related entities also dealt with the BLM Parties such as Mr Matthew Vandrau and Mr Nick Harvey with whom the BLM Parties negotiated the terms of the Consultancy Agreement and discussed operational matters and the implementation of services under the Consultancy Agreement (Fairgray affidavit at [31]). Mr Vandrau was a director of Blaze and had been since November 2016 the Group CEO of CSM Sport and Entertainment Holdings and its subsidiaries. It is also proposed that Mr Vandrau will give evidence in these proceedings from London.

72. It was also submitted by the BLM Parties that the fact that Mr Day and Mr McGregor-Lowndes had not entered into written player agent agreements, that being an aspect of the allegation of breach of clause 3.5 of the Consultancy Agreement, ought to have been apparent to Blaze at an earlier stage. Reliance was placed on an exchange of emails between Ms Abt and Mr Day on 16 March 2023 as follows:

“Quick question - do you and/or The Blaze sign Player Representation Agreements (separate to the fee authorities from the clubs)?

Here in the UK the players sign agreements with CSM giving exclusive rights to representation for a set period (2 years). Not sure if you have something similar.”

to which Mr Day responded:

“Very rarely S. The management agreements here don’t lock the players in (they have standard 3 month termination provisions) so we don’t bother. The Fee authorities are what lock in the fees for us”.

73. The exchange is not particularly clear and there is a danger of assessing a piece of evidence such as this outside its proper context. For present purposes, I do not find the email exchange particularly compelling.

74. The BLM Parties also submitted that the preliminary discovery process and orders confirmed the absence of any written player representation agreements. Based on the correspondence between the parties concerning the adequacy of compliance with orders for preliminary discovery (see for example, order 3), I think there is substance to that submission.

75. However, I think the approach of atomising the various elements of the Continuing Commission Claim; did Mr Day and Mr McGregor-Lowndes sign player agreements; should they have signed (if they could) the Standard Player Agent Agreements; what would have happened if they did; rather avoids the difficulty that none of these matters were the subject of consideration or assessment at an earlier time because the issue of recoupment of continuing commissions paid to Mr Day and Mr McGregor-Lowndes had not been given earlier and (if the claim was to be prosecuted in these proceedings), appropriate consideration, when there was ample time, opportunity and resources to do so.

76. Third, I do accept that Blaze’s solicitors and counsel have moved with expedition to prepare the proposed ACC and the accompanying material having received instructions on or around 28 October 2025. However, given the nature of the claim, I had difficulty in these circumstances in accepting why consideration was not given by Blaze at an earlier time to recovery of commissions payable after the termination of the Consultancy Agreement, especially where the issue of “ongoing/trail commissions past the date of termination of the [Consultancy] Agreement” appears to have been raised in the context of the preliminary discovery application in March 2025.

77. Fourth, the impression I am left with, is that despite the nature of the implied term and the issue having been raised in March 2025, no consideration appears to have been given to the possibility of claiming amounts for continuing commissions post-termination from the BLM Parties until a train of enquiry was commenced on receipt of the subpoenaed material (which appear to have been issued for the purposes of prosecuting the Unpaid Fees Claim) and the evidence of Mr Day and Mr McGregor-Lowndes in response to the Cross Claim. Each of those steps, and the reaction to them, occurred some 20 months after Blaze’s Defence was filed, after leave had been granted to file the Cross claim, and, after the matter had already been set down for hearing including on dates to suit the convenience of its witnesses. As I have mentioned, the evidence did not make it clear what the issues were that crystallised upon the filing of the Defences to the Cross Claim that caused the multiple subpoenas to be issued.

78. Fif**th, in terms of delay, while there had been some suggestion in the affidavit material, and in the correspondence between the parties before me, that the failure to make enquiries of the Continuing Commissions Claim had been contributed to by non-compliance by the BLM Parties with the preliminary discovery orders, it was made plain in oral submissions that no such contention was made. Nor was there a suggestion that the delay in bringing the application should be attributed to the conduct of the BLM Parties in the proceedings.

79. For these reasons I consider that there has been, during the course of the proceedings, ample time and opportunity for Blaze to have considered and formulated the Continuing Commissions Claim at an earlier stage and I do not consider that the very late bringing of the amendment application has been adequately explained. Coupled with the matters that I address below concerning the steps that would need to be taken if the amendment were allowed, the prejudice that would be occasioned by the amendment and the proportionality of costs, I was not prepared to grant leave in relation to the Continuing Commissions Claim in the exercise of my discretion.

Utility and strength of the claim

80. The arguments on utility and the strength of the Continuing Commissions Claim focused, on the most part, on the Continuing Commissions Term (which is set out at [14] above), and whether it was a term that would be implied in fact. The conditions necessary to ground the implication of a term were summarised by the majority in BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266 at 267 as follows:

81. [the implication] must be reasonable and equitable;

82. it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

83. it must be so obvious that ‘it goes without saying’;

84. it must be capable of clear expression; and

85. it must not contradict any express term of the contract.

See also Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 345 and 404.

81. For the purposes of an amendment application, if a pleading is so deficient that it is liable to be struck out, then that is a reason why leave to file it ought not be granted: Lamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Limited [2006] NSWSC 103 at [10]-[11] (Barrett J); Jia Yi Zhu v Gemi 184 Pty Limited [2024] NSWSC 1072 at [25] (Faulkner J). The degree of deficiency that might (alone) lead to this result is whether the added claim is of the character stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129: ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’.

82. There are obvious limitations on the Court in an application such as this which, by necessity, has been brought on at some haste, and requires expeditious determination. Plainly, the Court does not have at this juncture, all of the evidence the parties may wish to adduce on the question at a final hearing. Nor does it have the benefit of detailed submissions from parties on the basis of such evidence.

83. Having regard to the manner in which the application has been brought before me, I am not satisfied that the Continuing Commissions Claim is so obviously untenable that it could not possibly succeed or other like formulations.

84. However, I do not think that conclusion prevents me from considering the strength or weakness of the claim. The factors set out in s 58(2)(b) of the CPA are not closed, but rather s.58(2)(b)(vii) permits the Court to have regard to such other matters as the Court considers relevant in the circumstances of the case for the purpose of determining the dictates of justice. In A**on, the plurality stated at [111] that there is no entitlement to raise an arguable claim, subject to payment of costs by way of compensation; all relevant matters to the exercise of power to permit amendment should be weighed.

85. The strength (or weakness) of a proposed pleading may be a relevant factor in informing the exercise of the Court’s discretion in circumstances such as the present – why should the hearing be vacated?; and what is the assessment of the rights which the party seeking the amendment may not otherwise be able to litigate or vindicate if the amendment is not allowed?

86. As Williams J said in Ladmore v Ashton referred to above at [9]: “a just resolution of the proceedings does not require that a party be permitted to raise any arguable case, at any stage of the proceedings” (emphasis added). Counsel for the BLM Parties urged me to consider the strength of the implication of the Continuing Commissions Term which is central to, or a platform for, the Continuing Commissions Claim. Counsel for Blaze accepted that this was not an inappropriate course in the circumstances.

Weakness of the case for implication of the Continuing Commissions Term

87. Although I was not satisfied that implication of the Continuing Commissions Term in the Consultancy Agreement was unarguable in the sense that it could not possibly succeed, I did form the view on the hearing of the application that the case for implication was very weak. It did not assist that Blaze had not furnished any particulars for the purpose of [8A] of ACC other than that the term was implied in fact. This is not a matter which I think should assist Blaze in the assessment of the strength of its proposed claim.

88. The Continuing Commissions Term is, at the very least, in serious tension with a number of provisions in the Consultancy Agreement, especially those which regulate the flow of payments between the parties, and problematically, despite imposing personal obligations on Mr Day and Mr McGregor-Lowndes, is not picked up in the Side Agreements executed by each of them..

89. The Consultancy Agreement is styled as a formal written agreement of some 25 pages, including three schedules, and executed by directors of both Blaze and BLM in accordance with s 127 of the Corporations Act 2001 (Cth). It provides for a Commencement Date of 1 January 2019 and a Termination Date of 31 December 2023. “Term” was defined to mean “The period commencing on the Commencement Date and ending on the Termination Date subject to earlier termination or renewal as provided for in this Agreement”.

90. Under the Consultancy Agreement Blaze engaged BLM to perform “Services” which were defined in the Front Sheet to the Consultancy Agreement. The Services to be provided through Key Persons (being Mr Day and Mr McGregor-Lowndes) were set out in (a) to (e) in the “Services” as follows:

(a) sourcing Clubs in the Territory who are interested in employing Players; (b) sourcing Players who are interested in employment by clubs: (i) inside the Territory; or (ii) outside the Territory; (c) providing advice and assistance to Players and representing Players in any contractual negotiations and/or re-negotiations with any Club in the Territory in respect of the relevant Player’s employment as a professional Player; (d) providing advice and assistance in relation to the exploitation of a Player’s Commercial Rights (including procuring on the relevant Player’s behalf commercial opportunities relating thereto and subsequently representing the Player in any negotiations relating to the exploitation or use of the Player’s Commercial Rights); and (e) such other services as are agreed in writing between the parties on a case by case basis.

91. Blaze engaged BLM to provide these Services only “for the Term” under clause 2 which provided:

“The Company engages the Contractor to provide the Services with effect from the Commencement Date for the Term in accordance with the terms of this Agreement.”

92. The Consultancy Agreement appeared to provide for a Consultancy Fee payable to BLM for $150,000.00 (per year of the Term) (as per the definition in the Front Sheet and clauses 4.1 and 5), and also a Consultancy Bonus payable to BLM of $20,000.00, which subject to certain conditions, was payable at the end of each calendar year of the Term (as per the definition in the Front Sheet and clauses 4.3 and 4.4).

93. Importantly, the Consultancy Agreement also provided for a share or split of the profits of Blaze, which would include revenue generated by BLM in providing the Services. Profit Share was defined in the Front Sheet as follows:

“means the proportions of the Company Profit to be distributed as follows:

CSM/Chime (to either one or to both in aggregate): 51%

Contractor: 49%”

94. Company Profit is not expressly defined in the Consultancy Agreement, but it is reasonably clear that Blaze would earn revenue through the provision of BLM’s services from which its profits might then be distributed. It can readily be seen that the distribution contemplated in the Continuing Commissions Term must be derived from, or a reflection of, the definition of Profit Share.

95. The Front Sheet then provides for a ‘Profit Share Payment Period’ to mean “quarterly (on quarter dates to be mutually agreed)”. The Front Sheet also set out ‘Profit Share Payment Provisions’ as follows:

“The Company and the Contractor shall comply with the following provisions:

1.1 As soon as reasonably practicable (and in any event within thirty (30) days following the end of each Profit Share Payment Period, the Company shall conduct a reconciliation and calculate the Company Profit for the relevant Profit Share Payment Period in order for the correct Profit Share to be distributed. Where there is no Company Profit in any Profit Share Payment Period, any losses shall be carried over to subsequent Profit Share Payment Periods.

1.2 Subject to the mutual written agreement of CSM and the Contractor (which may be withheld to ensure that the Company retains sufficient working capital), the Contractor’s Profit Share for the relevant Profit Share Payment Period shall be distributed as soon as reasonably practicable following the end of each such period, provided that within thirty (30) days of completion of the Company’s financial year end accounts (on or around 1 January in each year) any overpayment of the Contractor’s Profit Share for that preceding year is repaid by the Contractor to the Company.

1.3 Termination or expiry of this Agreement (or any subsequent renewal or extension) shall be treated as the end of the then current Profit Share Payment Period for the purposes of the provisions above and calculating/distributing the Profit Share (whereupon any overpayment of the Contractor’s Profit Share shall be repaid).

1.4 Payment of the Contractor’s Profit Share to the Contractor shall be subject to the Company’s receipt of a valid invoice from the Contractor.”

(emphasis added)

96. “Chime” and “CSM” are defined to mean Chime Communications Limited and CSM Sport and Entertainment LLP, which both appear to be companies registered in the United Kingdom.

97. Clause 10 of the Consultancy Agreement addressed termination. It provided rights for immediate termination for each of Blaze and BLM, and in the case of Blaze, where a Key Person is guilty of gross misconduct (Clause 10.1(c)).

98. Clause 10.4 provided that termination shall not affect any right or remedy arising from any breach of the terms and conditions which took place prior to such termination. It provided:

“In addition, the Company shall not be liable to make any payment in respect of the Services other than in respect of Services performed by the Contractor [BLM] up to and including the date of termination.”

99. It was drawn to my attention that some clauses in the Consultancy Agreement were expressed to take effect after the termination or expiry of the Term. These included obligations of BLM not to compete with Blaze or “poach” players or clients for a period of one year after the Term (Clauses 2.1 and 3.1.1 in the Front Sheet). The parties’ mutual obligations in respect of confidential information also continued after termination (Clause 8.3). Clause 10.3 provided that the termination of the Consultancy Agreement did not affect those provisions having effect after termination.

100. Reliance was placed by the BLM Parties on the effect of clause 16.7 which provided:

“16.7 This Agreement sets out the entire Agreement of the parties and supersedes all prior Agreements and understandings relating to its subject matter. No additional terms or variation to these terms shall have effect unless agreed in writing by the Contractor and a director or other duly authorised representative of the Company.”

101. As I have mentioned, Mr Day and Mr McGregor-Lowndes executed agreements in parallel with the Consultancy Agreements. The Side Agreements were executed by Mr Day and Mr McGregor-Lowndes also on 1 January 2019, and included certain warranties and undertakings. Clause 4 of each of the Side Agreements provided as follows:

“I undertake and agree with the Company to comply with the terms of clause 3 (Obligations and Undertakings) (other than with respect to the indemnity under clause 3.8), clause 6 (Intellectual Property Rights), clause 7 (Ownership and Custody of Material), clause 8 (Confidential Information), clause 11 (Policies and Data Protection), clause 12 and Front Sheet (Restrictions) and clause 14 (Anti-Bribery & Sanctions Provision) and clause 29 (Party as a Trustee) of the Agreement as if they are direct undertakings and agreements between us.”

102. It seems to me that the nature of the Consultancy Agreement and its express terms, provide in combination, serious difficulties for the implication of the Continuing Commissions Term.

103. First, the implied term is cast in such a way as to make payable to Blaze a proportion of the remuneration payable to Mr Day and Mr McGregor-Lowndes after the termination of the Consultancy Agreement. In so doing, it would appear to impose an obligation on each of them to make payments to Blaze. This poses some difficulties for the argument in favour of implication. The Consultancy Agreement does not, by its terms, impose direct obligations on the Key Persons; rather it imposes obligations on BLM to procure performance of certain matters by the Key Persons (see for example, clauses 3.2, 3.4 and 7.1) and contains warranties by BLM that the Key Persons will perform certain matters or conduct themselves in a certain way (see for example, clause 3.5). This is more than a problem of form, it seems to me, because it is inconsistent with the fabric of the Consultancy Agreement which imposed mutual obligations on Blaze and BLM.

104. Further, it seems to me, to give rise to another difficulty which is that the Continuing Commissions Term finds no expression at all in the Side Agreements. The proposed ACC sought no implication of any kind in the Side Agreements. The Side Agreements were explicit in the obligations and undertakings which the Key Persons were to perform and adhere to. If the parties, and especially Blaze, intended to impose a continuing binding condition on Key Persons to disgorge a portion of their remuneration after the termination of the Consultancy Agreement, it would likely have been captured in the Side Agreement in some way, but there is no suggestion of this.

105. Counsel for Blaze submitted that the Continuing Commissions Term is merely a ‘quantification provision’ in the Cross Claim. That might be so in the manner in which the proposed claim proceeds, but that is no answer to the nature or character of the continuing obligations with the proposed implied term would create and impose on Mr Day and Mr McGregor-Lowndes. The undertakings which they gave in the Side Agreements are explicitly set out, and relate, for the most part, to performance of the Services during the term of the Consultancy Agreement, except where BLM had agreed to obligations after that time; for example, the obligations of confidentiality in clause 8.

106. Second, the Continuing Commissions Term is at odds with the mutual obligations imposed by the Consultancy Agreement for the payment and distribution of monies by and to the parties. Both the Consultancy Fee and the Consultancy Bonus are only payable during the Term. Blaze only engaged BLM to provide it with Services for the Term and by clause 10.4, it was not liable to make any payment in respect of Services other than Services performed up to and including the date of termination.

107. Moreover, under clause 1.3 of the definition of the Profit Share Payment Provisions, termination or expiry of the Consultancy Agreement “is treated as the end” for the purposes of those provisions and calculating or distributing the Profit Share. It seems clear that the parties intended that the Profit Share arrangement, including the 51% to 49% split, which appears to have been central to the bargain between the parties, to come to an end upon termination of the Consultancy Agreement. Yet the Continuing Conditions Term seeks to continue an arrangement for the very same percentage distribution (subject to the difficulties I address below) after termination of the Consultancy Agreement.

108. It was submitted that the Continuing Commissions Term was not inconsistent with these provisions because it addressed a different subject matter namely, post agreement remuneration, so that the detailed Profit Share Payment Provisions were not applicable to it. It was also pointed out that the Consultancy Agreement did not set out a mechanism for how revenue generated by the Services would be paid by BLM to Blaze. However, it does seem plain that it could only be through BLM’s provision of the Services that Blaze would earn the necessary revenue from which its profits might then be distributed.

109. It was also submitted that there will be revenue that will be payable by a rugby club to the player’s agent throughout the term of the contract between the club and player. But what has not been recognised in the Consultancy Agreement is that the term of the player’s contract will not always neatly coincide with the term of the Consultancy Agreement. In such circumstances, it was submitted, that it was always going to be the case that there may well be revenue associated with a contract that BLM and procured during the term of the Consultancy Agreement, and as I understand the argument, business efficacy required that such revenue (in the form of commissions received by Mr Day and Mr McGregor-Lowndes) be payable to Blaze. But the parties, it was submitted, did not turn their minds to how the revenue post-contract was to be distributed.

110. It seems to me that these submissions begged the question why the parties deliberately framed the Profit Share in such a way as to come to an end on termination of the Consultancy Agreement and framed each of the consultancy payments by reference to the Term of the agreement. It must have been plain to the parties that the terms of the arrangement between the agents and the players or between the players and their clubs through which commissions may be generated might not be tied to the terms of the Consultancy Agreement. However, the Services the subject of the Consultancy Agreement were, as I have described, to be provided only during the Term. The parties were abundantly clear that payments to BLM and the profit share would come to an end upon termination. And this was in circumstances where, as defined, Services not only involved sourcing clubs and players for the purpose of securing contracts between players and clubs through which a commission may be payable to the agent, they also included continuing services in the form of:

(a) providing advice and assistance to players in any contractual negotiations and renegotiations with any club; and (b) providing advice and assistance in relation to the exploitation of a Player’s Commercial Rights, including procuring commercial opportunities and subsequently representing the player in any negotiations relating to the exploitation of use of the Player’s Commercial Rights.

111. Third, there are other unexplained inconsistencies between the terms of the Consultancy Agreement and the Continuing Commissions Term. The Continuing Commissions Term required that amounts payable to Mr Day and Mr McGregor-Lowndes continue to be paid to Blaze, whereas the Consultancy Agreement requires distribution to CSM or Chime. No adequate explanation of this inconsistency was provided to me on the hearing of the amendment application.

112. The Continuing Commissions Term also requires amounts received by Mr Day or Mr McGregor-Lowndes to continue to be paid to Blaze, but does not provide any mechanism for the timing, or the calculation of the remuneration for distribution between the parties. Unlike the terms of the Profit Share distribution, as provided for in the Profit Share Payment Provisions (including the Profit Share Payment Period), the Continuing Commissions Term is silent on these matters.

113. Further, as submitted by the BLM Parties, the Profit Share contemplates the distribution of Company Profit, which although not defined, plainly incorporates some notion of expenses being accounted for in the generation of revenue or remuneration. Clause 5 of the Consultancy Agreement provided that the Consultancy Fee (which is not payable after the Term) was inclusive of all costs and expenses in relation to the Services unless these were authorised in advance in writing. No such accounting is contemplated in the Continuing Commissions Term which is cast in terms as requiring Mr Day and Mr McGregor-Lowndes to disgorge all of the remuneration payable to them as agents after termination of the Consultancy Agreement. In this way, the Continuing Commissions Term does not appear to take into account any exertions or expenses in the performance of services of Mr Day or Mr McGregor-Lowndes after the term of the Consultancy Agreement. Why they or any reasonable contracting party would agree to such terms, was not explained. This it seems to me, poses real difficulties for Blaze in establishing why the Continuing Commission Term was reasonable and equitable.

114. Fourth, the parties did expressly regulate some of their affairs after the expiry of the Consultancy Agreement. They did expressly impose obligations on BLM not to compete or poach, and for both parties to maintain express obligations of confidentiality after the termination of the Consultancy Agreement; and those obligations were, in turn, incorporated in the undertakings contained in the Side Agreements executed by Mr Day and Mr McGregor-Lowndes. These provisions are inconsistent with the notion that the parties did not turn their mind to post-contract affairs.

115. Fifth, BLM sought to invoke the ‘entire agreement’ provision in clause 16.7 of the Consultancy Agreement against the implication of the Continuing Commissions Term. However, provisions such as clause 16.7 do not prevent the implication of the term, whether the term is implied in law or implied because it is necessary to give business efficacy to the contract: Hart v Macdonald (1910) 10 CLR 417 at 421 (Griffith CJ) and 427 (O’Connor J); Kavia Holdings Pty Limited v Bevillesta Pty Limited [2006] NSWSC 633 at [36] (Palmer J). For the purposes of the application, I did not regard clause 16.7 as posing a difficulty for the implication of the Continuing Commissions Term.

116. In combination with the failure to provide meaningful particulars, these matters (other than the fifth matter I have referred to above), seem to me to constitute difficulties in the implication of the Continuing Commissions Term in respect of each of the conditions in BP (Westernport). The real difficulty I am left with is why the Continuing Commissions Term is necessary to give business efficacy to the contract. While I am not prepared to find that implication is entirely unarguable, I do consider that the argument for implication of the Continuing Commissions Term on the material put before me, is very weak.

117. There are other difficulties with the pleading which emerged in argument.

Other difficulties with the pleading

118. As I have observed earlier, the Continuing Commissions Claim proceeds on the basis of an alleged breach by the BLM Parties of clause 3.5 of the Consultancy Agreement and then, as a matter of causation and loss, alleges that if those breaches had not occurred, Mr Day and Mr McGregor-Lowndes would have entered into the 2015 or 2023 Standard Player Agent Agreements (see [12M] and [12N] of ACC). The proposed pleading does not seek to recover damages on the basis of remuneration that Mr Day or Mr McGregor-Lowndes have in fact, or may continue to receive on agency arrangements they may have entered into (written or otherwise), but on the basis of a counter-factual which is premised on entry into the Standard Player Agent Agreements. It is at this juncture that potential difficulties arise with the formulation of the pleading.

119. Upon examination, each version of the Standard Player Agent Agreement contains provisions which may have avoided the incorporation of a term requiring the player to pay to the agent a sum of money equal to all amounts under their Rugby Contract regardless of whether such income is received during the term of the Standard Player Agent Agreement (see clause 5.2(a) of the 2015 Standard Player Agent Agreement and clause 5.1(a) of the 2023 Standard Player Agent Agreement), as pleaded in [12H(a)] and [12H(b)] of ACC.

120. Each of the 2015 Regulations and 2023 Regulations provided that the terms of the Standard Player Agent Agreements may be amended where any such amendments are beneficial to the player (see clause 8.2 of the 2015 Regulations and clause 13.2 of the 2023 Regulations). It is, for example, not immediately apparent why it would not be beneficial for a player to exclude an obligation to pay the agent commissions after the expiration of the player agent agreement. The capacity for amendment not only introduces a complexity in the formulation of the claim for the purpose of causation (bearing in mind that the claim includes the player agent arrangements of 23 individual players) but it raises a real question as to whether terms of the kind would have been required to be entered into if breach of clause 3.5 of the Consultancy Agreement were to be established.

121. As counsel for BLM submitted, [12M] and [12N] of ACC must carry the implicit acceptance by the players of the pleaded term in circumstances where amendment for their benefit was permissible.

122. The position is even more stark in relation to the 2023 Standard Player Agent Agreement. The form of that agreement before me contained clause 5 which was headed ‘PLAYER OBLIGATIONS’. Under that heading the following words were contained:

“<THE CLAUSE BELOW IS TO BE DELETED IF NOT APPLICABLE> ”

Further, under the chapeau in clause 5.1, (the term in part pleaded in [12H(b)] of ACC) the following words appear:

“<ANY OF THE SUBCLAUSES BELOW ARE TO BE DELETED IF NOT APPLICABLE>”

123. It was not explained to me when clause 5 or clause 5.1(a) of the 2023 Standard Player Agent Agreement would be applicable. On its face, the 2023 version permits even more optionality and flexibility into the form of the player agent agreement. In such circumstances it is not clear how the form of clause 5 and clause 5.1(a) sat with the premise that the term would have been incorporated in any 2023 Standard Player Agent Agreement, but for the breach of clause 3.5 of the Consultancy Agreement.

124. The terms of clause 5 of the Standard Player Agent Agreements revealed another difficulty for Blaze. It is clear from these standard terms that agents could be remunerated in ways other than the payment of commission. These include percentage of money or income received by the player for speaking engagements, marketing and promotional arrangements and personal endorsement or sponsorship arrangements. Such potential arrangements for payment in the Standard Player Agent Agreements are, it seems to me, consistent with the kinds of Services which are contemplated in the Consultancy Agreement. Yet under the terms of the Continuing Commissions Term, any remuneration for such Services provided by Mr Day or Mr McGregor-Lowndes after the termination of the Consultancy Agreement will be captured by the obligation to disgorge such remuneration to Blaze. In circumstances where the Consultancy Agreement is otherwise at an end and BLM is not performing any further Services for Blaze, it is difficult to see that such an arrangement would be found to be reasonable and equitable or that its implication in the Consultancy Agreement is so obvious that it goes without saying.

125. The weakness of the case for the implication of the Continuing Commissions Term and the difficulties in the pleading to which I have referred, reinforced my conclusion that, in the exercise of my discretion, I should not allow the proposed amendments in relation to the Continuing Commissions Claim.

Steps to be taken if the amendment were to be allowed and Prejudice

126. It is clear that if leave were granted to allow the Continuing Commissions Claim, Blaze’s evidence was not complete. Ms Walkom explained that she expected to be instructed to issue notices to produce or subpoenas in respect of playing contracts, payment authorities and records of payment in respect of 23 players who are the subject of the damages claim (Walkom affidavit at [42]). It was not clear what time period would be captured by these compulsory processes, but as I understood it, the damages claim was continuing.

127. For their part, the BLM Parties explained that the subject matter of the Continuing Commissions Claim was new. Mr Fairgray explained in his affidavit that the BLM Parties wished to consider and obtain access to materials prior to and contemporaneous with the entry of the Consultancy Agreement including by way of an application for discovery and the issuing of subpoenas to rugby clubs, players and several employees of the Wasserman Group. They wished to conduct conferences with the players themselves, and noted that these are talented athletes, some of which will likely be overseas and whose willingness to provide evidence may be difficult. The BLM parties also wished to conduct interviews with Rugby Union Players’ Association officials and employees in respect of the new claim and to review the documents produced in compliance with the processes that were referred to by Ms Walkom. Mr Fairgray explained that it would also be necessary to review the evidence that had been produced by Blaze (which is itself substantial) in light of the new claim, including for inconsistencies, and to prepare evidence in the form of affidavits in response to the final evidence adduced by Blaze in support of the new claim.

128. I am not certain that all of the work referred to by Mr Fairgray would have been necessary to be conducted if the amendment were allowed. But I was satisfied that a great deal of further preparation would need to have been considered and conducted in order to meet the Continuing Commissions Claim. I am also satisfied that the preparatory steps would not be completed in a matter of days or weeks with the consequence that the allocation of a new hearing (presumably with a lengthier estimate than the present) would be some time off.

129. I gave consideration to the possibility of accommodating the Continuing Commissions Claim as part of the present proceeding, by either staggering the hearing of the existing claims and the Continuing Commissions Claim in some way, or ordering questions for separate determination. Understandably, neither party embraced these options. The delay in allocating any separate or further partitioned hearing was uncertain and could be significant, and there would inevitably be the need to recall witnesses who gave evidence in the earlier tranche.

130. In the course of his submissions, counsel for Blaze candidly explained to me that when Blaze was given leave to file its Cross Claim, it was primarily on the basis that there was a substantial overlap between the Unpaid Fees Claim and BLM’s claim for remaining profit share in its Statement of Claim. Plainly that overlap does not extend to the Continuing Commissions Claim and it seems to me, is another factor against now allowing a further amendment to the Cross Claim in the form of the Continuing Commissions Claim. It also had the consequence, as counsel for Blaze accepted, that it would not be practicable to split the hearing of the Cross Claim and BLM’s claims in its Statement of Claim.

131. The BLM Parties submitted that allowing the amendment with the necessary consequence of vacating the hearing dates would cause prejudice including:

(a) increased delay in finalising the proceedings; (b) the delay to other litigants whose matters have been affected by the setting down of the proceedings and the future scarce public resources that would need to be allocated if the hearing was vacated and adjourned; (c) the impact on BLM and Mr Day and Mr McGregor-Lowndes; and (d) the incurring of wasted costs.

I accept the burden of these submissions.

132. There was evidence before me that BLM is a small business and not well resourced. It was pointed out that matters such as undertaking the exercise of discovery would have had the result that Mr Day and Mr McGregor-Lowndes may not be able to perform their usual roles and responsibilities such that they may not be able to serve their present clients. The proceedings have been on foot since late 2023, the matter was, in June 2025, allocated hearing dates in November (taking into account the convenience of Blaze’s witnesses) and leave was subsequently given to file the Cross Claim on the basis that it overlapped with the subject matter of the Statement of Claim. The vacation of the hearing and the need to retool to address the new claim will inconvenience BLM and Mr Day and Mr McGregor-Lowndes and mean that the adjudication of BLM’s relatively modest claims will be deferred for an indefinite period.

133. Further, Blaze’s defence has since February 2024 contained an allegation that Mr Day was guilty of gross misconduct in respect of the obligations under the Consultancy Agreement and that is said to form a separate basis to terminate that Consultancy Agreement: That serious allegation of impropriety in the course of his performing professional services hangs over Mr Day until it can be determined.

134. As the High Court explained in Aon, there is no entitlement to raise an arguable claim, subject to payment of costs by way of compensation. I do not find in all of the circumstances of this case, that an order for costs will ameliorate prejudice caused by the late application for amendment especially where it is common ground that the amendment would cause a hearing, which is otherwise ready to proceed, to be vacated, and the costs of these proceedings, as discussed below, are already disproportionate to the subject matters of the claims. The allowance of the amendment would also be likely to result in inefficiencies arising from the vacation or adjournment of the trial which has been set down for hearing: Kelly v Mina at [46]-[47].

Proportionality of costs and the amounts claimed in the litigation

135. Another factor which I consider to be relevant in considering whether to allow the amendment application with the necessary consequence of vacating the hearing dates is the amounts which are at stake in these proceedings. The amounts claimed in the Amended Statement of Claim and the existing Cross Claim (as set out in [8]-[11] above) do not by a large margin threaten the limit of this Court’s monetary jurisdiction.

136. There have been many interlocutory disputes in this matter; this is the fourth I have had to determine in the last two weeks. I do not at all suggest that Blaze is responsible for all of this disputation. But the legal fees expended by the parties must be considerable. The affidavit evidence, given the amounts at stake and the documents exhibited to those affidavits, are voluminous. The Court Book presented to me for the final hearing is over 6000 pages. It contains 10 affidavits (for 6 witnesses including an expert witness) from the BLM Parties and 5 affidavits (for 3 witnesses) for Blaze.

137. The legal fees which must have already been expended in the proceedings by the parties would seem to me, to be already quite disproportionate to the amounts at stake.

138. Under s 60 of the CPA, the practice and procedure of the Court ought to be implemented with the object of resolving the issues between the parties in such a way that the costs of the parties is proportionate to the importance and complexity of the subject matter in dispute. It has been held for the purpose of s 60 of the CPA that the quantum or value of the claim is an element of the “importance of the subject matter of the complaint”: April Fine Paper Maca**o Commercial Offshore Limited v Moore Business Systems Australia Limited (2009) 75 NSWLR 619; [2009] NSWSC 867 at [8] (White J).

139. While the quantum of the Continuing Commissions Claim was not insubstantial (but subject to some of the difficulties in establishing that I have referred to earlier in these reasons), I considered that the costs which must have already been expended in the litigation to date in order to bring the matter to hearing, and the likely further costs that would necessarily be expended in the event that leave is granted, tended against the granting of leave.

Determination

140. Having regard to all of the circumstances I have referred to above, in my opinion, it would be contrary to the overriding purpose and the dictates of justice to allow Blaze to amend its proceedings to introduce, at this late stage, the Continuing Commissions Claim.

141. Blaze has had sufficient opportunity since February 2024 to bring such claims as it would elect to bring by way of Cross Claim, and I do not consider the explanation for the delay proffered to be adequate in the particular circumstances of this case. Blaze’s evidence on the Continuing Commissions Claim is plainly not yet complete and the BLM Parties would be entitled to take steps to defend the claim, including exploring a counter-factual involving 23 separate player arrangements, with the consequence that there is likely to be a significant delay before the proceedings would be able to be relisted for a hearing, and which undoubtedly would involve a lengthier estimate than the present. The costs which must have been expended by the parties in this litigation are likely to already be disproportionate to the claims which are the subject of dispute in the proceedings, and allowing the amendment would undoubtedly add to those costs. For these reasons I was not prepared to grant leave to amend the pleadings insofar as they related to the Continuing Commissions Claim.

142. The Continuing Commissions Claim also rests on the implication of a term. I consider the case for implication of that term not so obviously untenable that it could not possibly succeed, but for the reasons I have given, is very weak. There were other difficulties in the way in which Blaze wished to plead the Continuing Commissions Claim. These matters reinforced my view that I should not give leave to Blaze at this late stage to bring the Continuing Commissions Claim.

143. It was for these reasons, I did not grant Blaze leave to amend its Amended Defence or its Cross Claim to include the Continuing Commissions Claim.

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