van Haandel v Byron Bay Beach Hotel Properties Pty Limited

Background

1. The plaintiff is the sole director and shareholder of Byron Bay Beach Hotel Pty Limited (a company unrelated to the defendant). That company entered into a lease of the property as lessee from Hizan Holdings Pty Limited on about 20 June 2007. The plaintiff is a guarantor of Byron Bay Beach Hotel Pty Ltd's obligations under that lease.
2. On about 21 June 2007 the fee simple in the property was transferred by Hizan Holdings Pty Limited to the defendant. Also on 21 June 2007, the plaintiff and the defendant entered into the Deed.
3. By clause 2 of the Deed the defendant (as Owner), in consideration of the Call Option Fee of $1.00, granted the plaintiff (as Grantee) or his nominee an option to purchase the Property on the terms set out in the Contract. The Property is defined to mean the whole of the land in Certificate of Title Folio Identifier 1/846142. However, the Contract is defined to mean a contract for sale in the form annexed to the Deed; this form provides for the sale of a 50% share of the said land for a prince of $26.1 million. Call Option is defined to mean "the option granted by the Owner to the Grantee to purchase a 50% share in the Property".
4. Clause 4 deals with the exercise of the Call Option. It provides that the Call Option may be exercised at any time during the Call Option Period, a period from 21 June 2011 to 21 September 2011.
5. By clause 5 of the Deed the plaintiff, in consideration of the Put Option Fee of $1.00, granted the defendant an option to require the plaintiff or its nominee to purchase the Property (as defined) on the terms set out in the Contract (as defined). Put Option is defined to mean "the option granted by the Grantee to the Owner to require the Grantee or the Nominee to purchase a 50% share in the Property".
6. Clause 6 deals with the exercise of the Put Option. It provides that the Put Option may be exercised during the Put Option Period, a period from 22 September 2011 to 21 October 2011.
7. Both clauses 4 and 6 provide for delivery of the executed Contract, and for delivery of the executed Co-Venture Deed. The form of the Co-Venture Deed is annexed to the Deed. The Co-Venture Deed contains the terms upon which the parties would co-own the Property and associated assets, and conduct business upon the Property.
8. Clause 7 of the Deed provides that the Contract comes into effect on exercise of either the Call Option or the Put Option, and shall be settled on the Settlement Date. Settlement Date is defined to mean the fifth anniversary date of the date of the Deed - that is, 21 June 2012.
9. Clause 8.1 provides that if either the Call Option or the Put Option is exercised the Grantee or the Nominee must pay to the Owner the Additional Payment on the Settlement Date. The Additional Payment is the sum of $1,100,000. By clause 8.2 it is agreed that the Additional Payment forms part of the purchase price under the Contract. Clause 8.3 provides that if neither the Call Option nor the Put Option is exercised the Grantee must pay the Additional Payment to the Owner on the fifth anniversary of the date of the Deed - that is, 21 June 2012.
10. Clause 9 provides: 9.1 The parties acknowledge and agree that they may not, at any time without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed): (a) Grant any new tenancy affecting the Property; (b) Grant any mortgage or charge over the Property other than in accordance with Clause 9.3; (c) Grant any easement or covenant over the Property; (d) Grant or create or allow any other interest or right to be created in respect of the Property; or (e) Sell, assign, transfer or otherwise deal with any interest in the Property. 9.2 Despite Clause 9.1(e), if the Owner wishes to sell, assign, transfer or otherwise deal with any interest in the Property, the Owner must comply with Clause 20. 9.3 Despite Clause 9.1, at settlement of the Contract, the Grantee shall be permitted to grant a mortgage or charge over the Property provided the sum secured against the Property does not exceed 65% of the market value of the Property at the time of the exercise of the Option, The Owner will do all things necessary including executing all necessary consents and documents to assist and enable the Grantee to grant such mortgage or charge. 9.4 The Owner warrants that, at settlement of the Contract, sufficient equity will be available in the Property to enable the Grantee to exercise its rights under Clause 9.3. The Owner will do all things necessary to comply with this warranty, including discharging or paying down any debt which the Owner, with the consent of the Grantee, has secured over the Property, to 65% of the market valuation of the Property at the time of the exercise of the Option. 9.5 The rights, restrictions, obligations and warranties under this clause shall not merge on exercise of the Put Option or the Call Option or completion of the Contract for Sale and shall continue following completion of the Contract for Sale, unless otherwise agreed in writing by the parties.
11. Clause 10 of the Deed provides that the options may only be exercised if, at the time of the exercise of the option, the Property is subject to the lease dated 20 June 2007 between Hizan Holdings Pty Limited and Byron Bay Beach Hotel Pty Limited ("the Lease"). Clause 10 further provides that, if the Lease is terminated due to non-payment of rent, the Deed automatically terminates on the date of termination of the Lease, and the Grantee must pay the Additional Payment to the Owner within 30 days after the date of termination of the Lease.
12. Clause 13 of the Deed provides for the lodgement by the plaintiff of a caveat on the title to the Property claiming an interest under the Call Option. It was common ground that clause 13 does not support the caveat the subject of the present application, which claims an interest pursuant to a right of first refusal.
13. Clause 20 provides: 20.1 Right of First Refusal If the Owner wishes to sell, assign, transfer, convey or otherwise dispose of its interest in the Property ("Dealing") it must serve a notice on the Grantee or the Nominee (as the case may be) ("Transfer Notice") which: (a) offers to sell and transfer its interest in the Property to the Grantee or Nominee (as the case may be); (b) states the price at which the Owner is willing to sell and transfer its interest in the Property, which has been calculated at the market value of the Owner's interest in the Property at the date of the Transfer Notice as determined by a valuer nominated by the President of the Australian Property Institute lnc (New South Wales Division), who must have at least 10 years experience in valuation of hotel properties in New South Wales and who acts as an independent expert and not as an arbitrator and who must be instructed to provide a written valuation that can be relied upon by the Owner and the Grantee or the Nominee (as the case may be). The Owner must include with the Transfer Notice a copy of the Valuer's written valuation; and (c) states that such offer is open for acceptance at any time within 30 days from the date on which the Transfer Notice is served. 20.2 Duration of right of first refusal The offer contained in the Transfer Notice may be accepted on the basis set out in Clause 20.3 at any time within the 30 day period from the date on which the Transfer Notice is served and may not be withdrawn. 20.3 Extent of acceptance The Grantee or Nominee (as the case may be) may accept the offer contained in the Transfer Notice by written notice to the Owner ("Acceptance Notice"). No partial acceptance of the offer is permitted. 20.4 Effect of acceptance If the Grantee or Nominee (as the case may be) accepts the offer contained in the Transfer Notice in accordance with the procedures set out in this clause 20: (a) the parties must enter into the Contract, with the necessary modifications to reflect the commercial terms set out in the Transfer Notice; and (b) the Contract (as contemplated by Clause 20.4(a)) will come into effect on the date that the Acceptance Notice is served. 20.5 Sale to third party If the offer contained in the Transfer Notice is not accepted, then the Owner may sell its interest in the Property to a third party on terms which are no more favourable than those contained in the Transfer Notice provided that: (a) the Owner satisfies the Grantee or the Nominee (as the case may be) that the third party transferee is respectable, solvent and capable of complying with the Owner's obligations under this Deed; and (b) the third party transferee has, before the Dealing is effected, agreed in writing with the Grantee or the Nominee (as the case may be) on terms acceptable to Grantee or the Nominee (as the case may be) (acting reasonably) to be bound by the terms of this Deed. 20.6 Indemnity The Owner indemnifies the Grantee and the Nominee against any liability, loss, cost, damage or expense arising from a breach of this Clause 20. 20.7 Additional Payment If the Owner sell its interest in the Property in accordance with this Clause 20, the Owner (and not the transferee) will be entitled to receive payment of the Additional Payment on the due date for payment of the Additional Payment under this Deed.
14. The Deed of Variation made on 28 May 2009 provided for the insertion of a new clause 21 regarding the payment of a Rent Credit Amount by the plaintiff to the defendant by 21 June 2012. The Deed of Variation also made certain related amendments, including a new clause 20.8 in the following terms: If the Owner sells its interest in the Property in accordance with this Clause 20, the Owner (and not the transferee) will be entitled to receive payment of all or that portion of the Rent Credit Amount as the case may be calculated up to and including the day of sale on the due date for payment of the Rent Credit Amount under Clause 21.
15. Also on 28 May 2009, a Variation of Lease was entered into which provided for the payment of certain rent credits, a longer Lease term, and new options for further terms.

Submissions

1. Ms Lane of counsel appeared for the plaintiff. She submitted that there is a presently subsisting right of first refusal in the plaintiff's favour pursuant to the provisions of the Deed properly construed. In support of that submission it was noted that the Deed deals with different subject matters - namely, the Put and Call Options, and the right of first refusal. The Put and Call Options involve a 50% share in the Property, whereas the right of first refusal involves an offer to sell the entirety of the defendant's interest in the property whatever that might be at the time the right of first refusal is activated. It was submitted that clauses 9 and 20 of the Deed, which contain the right of first refusal, are not expressed to depend on the subsistence of rights arising from the Put and Call Option. Ms Lane noted that clause 9.1, which speaks in terms of mutual obligations, contemplates that the plaintiff may have an interest in the Property which can be dealt with but does not expressly state that it applies only where the Put or Call Option is exercised. Reference was also made to clause 9.5, which speaks of the rights under the clause continuing following completion of the Contract. However, Ms Lane did not place much emphasis upon clause 9.5, instead characterising it as apt to merely regulate the position if either of the options is exercised.
2. Ms Lane submitted that clause 20 contained no express limitation on the period during which the right of first refusal subsists. It was submitted that the maximum duration of the right of first refusal is the life of the plaintiff. Ms Lane cited clause 20.5, which requires a third party purchaser to agree to be bound by the terms of the Deed, as the clearest indication that rights under the Deed are continuing. Ms Lane accepted that the operation of clause 20 was circumscribed in the event that either of the options was exercised, because the Co-Venture Deed which would be entered into in those circumstances included its own right of first refusal (in clause 19). In relation to clause 20.7, Ms Lane accepted that the clause contemplated payment of the Additional Payment "in the future", but emphasised that the provision did not require such.
3. Ms Lane further submitted that the right of first refusal was a valuable right affording protection to the interest of the plaintiff, who is the controlling mind of the lessee company under the Lease and a guarantor under the Lease. It was submitted that one of the clear commercial purposes of the Deed was to provide a basis for the plaintiff to have the opportunity to secure the continuing occupation of the Property otherwise than in reliance on the terms of the Lease itself.
4. Mr Parker SC and Mr Simpkins appeared for the defendant. They submitted that the plaintiff did not continue to have rights under clause 20 of the Deed in circumstances where neither the Call Option nor the Put Option was exercised. Emphasis was placed upon what was said to be the clear commercial object of the Deed, namely, the granting of the Call Option and the Put Option. It was noted that if either the Call Option or the Put Option was exercised the plaintiff was required to pay the defendant the Additional Payment on the Settlement Date (being 21 June 2012), and that if neither option was exercised the plaintiff was required to pay the defendant the Additional Payment on the fifth anniversary of the Deed (being 21 June 2012). It was hence submitted that the commercial substance of the Deed was that the plaintiff obtained a deferred right to purchase at a set price, and that, in consideration for that right, the plaintiff was required to pay the Additional Payment regardless of whether the Call Option or the Put Option was exercised. Mr Parker submitted that the plaintiff's construction, entailing a right of first refusal which subsists throughout the life of the plaintiff (even if the Lease is terminated), should be regarded as an unexpected and unlikely commercial result. He referred in this regard to Trustees Executors and Agency Co Limited v Peters (1960) 102 CLR 537 at 552-3 (Menzies J).
5. Mr Parker submitted that clause 20 has no application once the defendant no longer has obligations in relation to the Call Option and the Put Option. Accordingly, if neither of the options is exercised, clause 20 does not operate.
6. He submitted that the operation and purpose of the right of first refusal must be determined in the context in which it is found, and that clause 20 must be construed in a way that is consistent with the operation of the option provisions and the payment of the Additional Payment. It was put that, viewed in its context (including its position at the tail end of the Deed), the right of first refusal should be seen as subordinate to the rights granted by the Call Option and the Put Option.
7. It was contended that the construction favoured by the plaintiff would give rise to a number of anomalies, including that: 1. if the right of first refusal operated where neither option was exercised there would be no apparent utility in clause 20.5, which requires a third party purchaser to agree to be bound by the terms of the Deed; 2. under clause 20.4, upon the acceptance by the plaintiff of an offer contained in a Transfer Notice, the parties are required to enter into the Contract, yet the Contract as defined concerns only the sale of a 50% share in the property; and 3. clause 20.7 employs language which suggests that any right of first refusal will be exercised prior to the due date for payment of the Additional Payment under the Deed (being 21 June 2012), but not after.
8. It was further submitted that clause 9.5 of the Deed would not have been expressed in the way it was if it was intended that the rights and obligations under clause 9 would continue to operate even if neither option was exercised.
9. Mr Parker submitted that clause 20 of the Deed provides protection to the plaintiff for so long as the defendant has or may have obligations to perform in respect of the options. If either of the options is exercised, the parties enter into a Co-Venture Deed which itself contains rights of first refusal. However, if neither of the options is exercised, clause 20 should not be construed as giving rise to a stand alone right which subsists throughout the life of the plaintiff.

Consideration

1. The meaning of the terms of a commercial contract is to be determined objectively, by what a reasonable business person would have understood those terms to have meant. That determination requires consideration of the language used by the parties, the surrounding circumstances known to them, and the commercial purpose or objects to be secured by the contract (see Pacific Carriers Limited v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 at [22]; Electricity Generation Corporation v Woodside Energy Limited (2014) 251 CLR 640; [2014] HCA 7 at [35]). The subjective beliefs or understandings of the parties are not relevant to such questions of construction (see Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165; [2004] HCA 52 at [40]). In approaching the question of construction, regard must be had to the whole of the instrument since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious with another (see Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 at 109). Generally, the words of a contract should be construed in a way that gives all of them meaning, and does not render parts inoperative (see Dovuro v Wilkins (2000) 105 FCR 476; [2000] FCA 1902 at [152], citing Re Strand Music Hall Co Ltd; Ex parte European and American Finance (1865) 35 Beav 153 at 159; 55 ER 853 at 856).
2. The parties advanced differing descriptions of the commercial purpose or object of the Deed. While the Put and Call Options are undoubtedly of central concern (as reflected in the recitals to the Deed), there is force in Ms Lane's submission that the commercial purpose is primarily to be derived from the text of the Deed, which includes the right of first refusal as well as the options, and discloses no clearly dominant or overriding purpose.
3. Clause 9 restricts dealings with interests in the Property. By its opening words, clause 9.1 imposes mutual obligations upon the parties. Nonetheless, the clause operates prior to any exercise of options even if at that stage it effectively restricts only the defendant. Clause 9.5, which states that the rights and obligations under clause 9 shall not merge on exercise of either option, is consistent with that view. The defendant accepted that this was the case. If that is correct, it might be said that clause 9.1 is capable of operating even if neither option is exercised within the stipulated periods. In this regard I note that clause 9.1 employs the words "at any time". However, clause 9 must be read in the context of the Deed as a whole, and in particular the provisions of clause 20.
4. Clause 20.1, read with clause 9.2, applies where the defendant wishes to sell, assign, transfer or otherwise dispose of its interest in the Property. The defendant is then obliged to serve a Transfer Notice on the plaintiff (or nominee of the plaintiff) in accordance with clause 20.1(a)-(c). The defendant must offer to sell and transfer its interest in the Property to the plaintiff at a calculated market price.
5. If the offer is accepted, clause 20.4 operates. By clause 20.4(a), the parties must enter into the Contract, with the necessary modifications to reflect the commercial terms set out in the Transfer Notice. The form of Contract provides for the sale of a 50% share in the Property. However, it seems to me, contrary to the submission of the defendant, that if a Transfer Notice contained an offer to sell the entire Property for a certain price, the form of Contract would need to be modified to reflect those terms. They form part of the commercial terms set out in the Transfer Notice. By clause 20.4(b), the Contract so entered into would come into effect on the date the plaintiff gives written notice of the acceptance of the offer under clause 20.3.
6. If the offer is not accepted, and the defendant sells its interest in the Property to a third party, clauses 20.5, 20.7 and 20.8 apply.
7. The defendant contends that if the right of first refusal operated even where the options were not exercised there would be no utility in clause 20.5 because "the Owner's obligations under this Deed" would no longer exist so as to be available to be discharged by a third party purchaser. That is true unless "the Owner's obligations under this Deed" was read as referring to whatever obligations might remain (including under clause 20 itself).
8. The defendant's submission concerning clause 20.7 is of greater force. That clause clearly contemplates that any sale by the defendant of its interest in the Property in accordance with clause 20 will occur prior to the due date for payment of the Additional Payment under the Deed. That date is 21 June 2012, being either the Settlement Date (if an option is exercised) or the fifth anniversary of the date of the Deed (if neither option is exercised). The alternative construction advanced by the plaintiff - that this clause contemplates but does not require payment of the Additional Payment on the specified due date - unnecessarily constrains the operation and effect of this provision. This construction renders clause 20.7 ineffectual in circumstances where the due date for payment of the Additional Payment has already passed, without any clear textual indication that this was intended to occur.
9. Similarly, clause 20.8, which was added to the Deed in 2009, clearly contemplates that any sale by the defendant of its interest in the Property in accordance with clause 20 will occur prior to 21 June 2012, given that clause 21.1 provides that (subject to clause 21.2) the plaintiff agrees to pay the defendant the Rent Credit Amount on or before 21 June 2012.
10. These provisions are at odds with a construction of clauses 9 and 20 to the effect that the right of first refusal under clause 20.1 continues after 21 June 2012.
11. Clause 9.5 states that the rights and obligations under clause 9 do not merge on exercise of either option or on completion of the Contract, and that these rights and obligations continue following completion of the Contract. That is not inconsistent with a construction of the right of first refusal to the effect that it operates only in the five year period up to 21 June 2012. Clause 9.5 does not alter the content of the rights and obligations under clause 9; it merely declares that those rights and obligations are not brought to an end by the exercise of the options or the completion of the Contract.
12. Clause 10 is also relevant in this regard. Clause 10.1 operates to prevent the exercise of either option unless the Lease is in operation and has been fully performed in material respects. Clause 10.2 provides that if the Lease is terminated for non-payment of rent the Deed itself terminates on the date of such termination. It further provides that the plaintiff must pay the Additional Payment to the defendant within 30 days after such termination. It seems to be contemplated that any relevant termination must occur at least 30 days prior to the due date for payment of the Additional Payment under the Deed (21 June 2012), and not after. If the clause was read otherwise, it would suggest, awkwardly, that upon a termination of the Lease after that date, either a further Additional Payment would be payable, or no such payment would be payable because the Additional Payment would have already been paid. Clause 10 hence lends some support for the view that, aside from the operation of clause 9.5 in the event of exercise of an option, the rights and obligations under the Deed do not continue after 21 June 2012.
13. In my view, the above textual indications outweigh the lack of any express temporal limitation upon the subsistence of the right of first refusal. They support the conclusion that the right of first refusal no longer exists. I agree with the defendant's submission that in circumstances where neither option is exercised within the stipulated periods the plaintiff does not continue to have rights under clause 20 of the Deed. Such a construction of the right of first refusal accords with the language of the other provisions of the Deed, and provides a coherent operation to the Deed as a whole.
14. Clause 9.2 provides a liberty to the defendant despite the terms of clause 9.1(e), which would otherwise restrict its ability to sell its interest in the Property. That liberty is made subject to compliance with clause 20. When the provisions of clause 20 are engaged, the plaintiff is given the opportunity to acquire the defendant's interest in the Property. If that opportunity is taken, the options fall away. If that opportunity is not taken, and the defendant's interest is sold to a third party, the third party is required to show that it is capable of complying with the defendant's obligations under the Deed (such as under clause 9.4), and become bound by the terms of the Deed. In that way, the plaintiff's rights under the Deed, principally in relation to the Call Option, are protected.
15. The Call Option Period commences on the fourth anniversary of the date of the Deed (21 June 2011). It continues until 21 September 2011. The Put Option Period then proceeds from 22 September 2011 to 21 October 2011. If either of the options is exercised, the Contract comes into effect, to be settled on the Settlement Date (of 21 June 2012). Clause 9.5 operates so that the rights and obligations under clause 9 continue. The parties also enter into the Co-Venture Deed which sets out the terms and conditions on which they agree to co-own the Property and conduct business upon it. Clause 19 of the Co-Venture Deed contains its own rights of first refusal in the event that a co-venturer wishes to sell or otherwise dispose of its interests in the co-venture.
16. If neither option is exercised there is no longer any need for the right of first refusal to operate so as to protect the plaintiff's interests in respect of the options.
17. The plaintiff counters that the right of first refusal should be seen to serve the commercial purpose of providing the plaintiff with the opportunity to secure continuing occupation of the Property otherwise than in reliance on the terms of the Lease. However, the construction favoured by the plaintiff runs into the textual difficulties noted earlier and gives rise to the seemingly incongruous result that the plaintiff would retain his right of first refusal for as long as he lived, even if the Lease with which he is associated was terminated (including as a result of breach by the lessee). I note that at the time the Deed was made in June 2007, the Lease term expired on 19 June 2009, although there was an option for a further 8 year term. I do not think that reasonable businesspersons in the positions of the plaintiff and the defendant would have understood the terms of the Deed to operate in the manner suggested by the plaintiff.
18. For the above reasons I have concluded that the defendant's construction is the preferable one, and that the right of first refusal under clause 20 of the Deed no longer exists. The plaintiff does not have the interest in the property that is claimed in the caveat.
19. Accordingly, the plaintiff's Summons will be dismissed with costs.

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