FEDERAL COURT OF AUSTRALIA
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833
APPEAL – nature of and approach to appeal in Federal Court – appeal to Full Court of Federal Court of Australia is by way of rehearing not appeal stricto sensu – task of appellate court is correction of error in trial judge – need for demonstration of error – advantages of trial judge
APPEAL – limitations on raising of fresh points upon appeal and to departure from approach adopted at first instance
CONTRACT – formation – alleged lack of consensus and of intention to create legal relations – no formal or final record of actual consensus – findings of trial judge as to consensus on basis of conversations, drafts, letters – no error demonstrated
CONTRACT – pre contractual communications – parol evidence rule and “entire agreement” clauses – effect of on leading evidence to show existence of equitable estoppel
MORTGAGE – equitable mortgage – mortgage over shares existed – effect – error in judge’s decision
Federal Court of Australia Act 1976 s 27
Trade Practices Act 1974
Crown Lands Act 1931 (NT)
Pastoral Lands Act 1992 (NT)
Duralla Pty Ltd v Plant (1984) 2 FCR 342 not followed in part
Petreski v Cargill (1987) 18 FCR 68 referred to
Minister for Immigration and Ethnic Affairs v Hamsher(1992) 35 FCR 359 considered
Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 referred to
Hornet Aviation Pty Ltd v Ansett Australia (1995) 16 ACSR 445 referred to
White v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 511 referred to
Foyster v ANZ Banking Group Ltd [2000] FCA 1254 referred to
Sidhu v Holmes [2000] FCA 1653 referred to
H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 referred to
News Limited v ARL (1996) 64 FCR 410 referred to
Montgomery v FCT (1998) 152 ALR 241 referred to
Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556 referred to
ACT Schools Authority v El Sheik (2000) ATR 81-557; [2000] FCA 931 referred to
Hanleyv AFMEP & KIU (2000) 100 FCR 530 referred to
Heslehurst v Government of New Zealand (2001) 109 FCR 226 referred to
Williams v The Minister [2000] NSWCA 255 referred to
Stirling Harbour Services Pty Ltd & Anor v Bunbury Port Authority [2000] FCA 1381 referred to
Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267 referred to
CDJ v VAJ (1998) 197 CLR 172 referred to
Coal & Allied Operations P/L v Australian Industrial Relations Commission (2000) 74 ALJR 1348 referred to
Allesch v Maunz (2000) 173 ALR 648 referred to
Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 followed
Warren v Coombes (1979) 142 CLR 531 referred to
Cabal v United Mexican States [2001] FCA 427 followed
The Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Company Inc (1994) 181 CLR 404 referred to
PMT Partners P/L (In Liq) v Australian National Parks and Wildlife Services (1995) 184 CLR 301 referred to
Knight v FP Special Assets (1992) 174 CLR 178 referred to
FAI General Insurance v Southern Cross Exploration NL (1988) 165 CLR 268 referred to
David Grant & Co v Westpac (1995) 184 CLR 265 referred to
Emanuelev ASC (1997) 188 CLR 114 referred to
Oshlack v Richmond River Council (1998) 193 CLR 72 referred to
Patrick Stevedores v MUA (1998) 195 CLR 1 referred to
Abebe v Commonwealth (1999) 197 CLR 510 referred to
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 referred to
Commonwealth v SCI Operations (1998) 192 CLR 285 referred to
Eastman v R (2000) 203 CLR 1 referred to
Australian Memory Pty Ltd v Brien (2000) 200 CLR 270 referred to
Crampton v R (2000) 176 ALR 369 referred to
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 referred to
Moneywood v Salamon Nominees (2001) 202 CLR 351 referred to
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 180 ALR 655 referred to
Khoo Sit Hoh v Lim Than Tong [1912] AC 323 referred to
Paterson v Paterson (1953) 89 CLR 212 referred to
Powell v Streatham Manor Nursing Home [1935] AC 243 referred to
Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227 referred to
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 153 referred to
Fenton Nominees Pty Ltd v Valuer General (1981) 47 LGRA 71 referred to
Biogen Inc v Medeva Pty Ltd [1997] RPC 1 referred to
Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 referred to
Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 referred to
Edwards v Noble (1971) 125 CLR 296 referred to
Abalos v Australian Postal Commission (1988) 171 CLR 167 referred to
Devries v Australian National Railways Commission (1993) 177 CLR 472 referred to
S W Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 referred to
Turbo Tek Enterprises Inc v Sperling Enterprises Pty Ltd (1989) 23 FCR 331 referred to
Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553 referred to
Allsop Inc v Bintang Ltd (1989) 15 IPR 686 referred to
Dart Industries v Decor Corporation Pty Ltd (1989) 15 IPR 403 referred to
Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90 referred to
In re Wolanski’s Registered Design (1953) 88 CLR 278 referred to
Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 363 referred to
Commissioner of Taxation v Chubb Australia (1995) 56 FCR 557 referred to
Australian Broadcasting Commission v XIVth Commonwealth Games (1988) 18 NSWLR 540 referred to
GR Securities v Baulkham Hills Private Hospital (1986) 40 NSWLR 631 referred to
Howard Smith and Company Limited v Varawa (1907) 5 CLR 68 referred to
Seppelt and Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 referred to
Geebung Investments v Varga Investments (1995) 7 BPR 14 referred to
Pirt Biotechnologies v Pirtferm Pty Limited [2001] WASCA 96 referred to
Suttor v Gundowda(1950) 81 CLR 418 referred to
Coulton v Holcombe (1986) 162 CLR 1 applied
University of Wollongong v Metwally [No 2] (1985) 60 ALR 68 referred to
O’Brien v Komesaroff (1982) 150 CLR 310 referred to
Water Board v Moustakas (1988) 180 CLR 491 referred to
Connecticut Fire Insurance v Kavanagh [1892] AC 473 referred to
Liftronic Pty Ltd v Unver (2001) 179 ALR 321 referred to
Kweifio-Okai v RMIT University [1999] FCA 1686 referred to
Davison v Vickery’s Motors Ltd (In Liquidation) (1925) 37 CLR 1 referred to
JB Chandler Investment Co Ltd (In voluntary liquidation) v Comm of Taxation (1993) 47 FCR 588 referred to
Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 referred to
Gordon v McGregor (1909) 8 CLR 316 referred to
Major v Bretherton (1928) 41 CLR 62 referred to
Nemeth v Bayswater Road Pty Ltd [1988] 2 Qd R 406 referred to
State Rail Authority of NSW v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170 considered
NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68referred to
Secured Income Real Estate (Australia) v St Martins Investments Pty Ltd (1979) 144 CLR 596 referred to
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 referred to
Bahr v Nicolay (No 2) (1988) 164 CLR 604 referred to
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 referred to
Saad v TWT Limited [1998] NSWSC 282 referred to
Norwest Beef Industries Limited v Peninsular & Oriental Steam Navigation Co (1987) 8 NSWLR 568 referred to
Bell v Queensland Design Pty Limited [1994] QSC 9 referred to
MacDonald v Shinko Australia Pty Limited [1999] 2 Qd R 152 referred to
Agseed Pty Limited v Broad [1991] SASC 2880 referred to
Bruce v AWB Limited [2000] FCA 594 referred to
Major v Bretherton (1928) 41 CLR 62 referred to
Hoyt’s Proprietary Ltd v Spencer (1919) 27 CLR 133 referred to
B Seppelt and Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 referred to
Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 referred to
Twynam Pastoral Company Pty Ltd v Anburn Pty Ltd (1989) 6 BPR 13 referred to
Harold v Plenty [1901] 2 Ch 314 referred to
UTC Ltd v NZI Securities (1991) 4 WAR 349 referred to
Wise v Lansdell [1921] 1 Ch 420 referred to
Eccles v Bryant [1948] Ch 93 referred to
Allen v Carbone (1975) 132 CLR 528 referred to
Summit Properties v Comserv (No 784) Pty Ltd (1981) 2 BPR 9173 referred to
Sindel v Georgiou (1984) 154 CLR 661 referred to
Baulkham Hills Hospital v G R Securities (1996) 40 NSWLR 622 referred to
Meates v A-G [1983] NZLR 308 referred to
Integrated Computer Services Pty Ltd v Digital Equipment Corp Pty Ltd (1988) 5 BPR [97,326] referred to
Vroon BV v Fosters Brewing Group [1994] 2 VR 32 referred to
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 referred to
Pagnan SpA v Feed Products [1987] 2 Lloyd’s Rep 601 referred to
Pobjie Agencies v Vinidex Tubemakers [2000] NSWCA 105 referred to
Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61 referred to
Toyota Motor Corporation Australia Ltd v Ken Morgan [1994] 2 VR 106 referred to
Electrical Enterprises Retail Pty Ltd v Rodgers (1989) 5 NSWLR 473 referred to
Manzi v Smith (1975) 132 CLR 671 referred to
Film Bars v Pacific Film Laboratories (1979) 1 BPR 9251 referred to
State Bank of New South Wales v Commonwealth Savings Bank (1985) 60 ALR 73 referred to
Byrne v Australian Airlines Limited (1985) 185 CLR 410 referred to
First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd’s Law Rep 194 referred to
Macdonald v Longbottom (1859) 1 E&E 977; 120 ER 1177 referred to
Prenn v Simmonds [1971] 1 WLR 1381 referred to
Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989 referred to
Utica City National Bank v Gunn (1918) 118 NE 607; 222 NY 204 referred to
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 referred to
Grant v John Grant & Sons (1954) 91 CLR 112 referred to
Dent v Moore (1919) 26 CLR 316 referred to
Hart v Macdonald (1910) 10 CLR 417 referred to
Australian Co-Operative Foods Ltd v Norco (1999) 46 NSWLR 267 referred to
Johnson Matthey v AC Rochester Overseas (1990) 23 NSWLR 190 referred to
Bentham v ANZ (unreported, Supreme Court of NSW, 26 June 1991) referred to
Skywest Aviation Pty Ltd v Commonwealth (1995) 126 FLR 61 referred to
Public Trustee for the ACT v Megic (1995) 59 FCR 165 referred to
New Holland Mining v Weaver Oil and Gas Corp Aust Ltd (unreported, Supreme Court of WA, 12 March 1998) referred to
Seabridge Australia Pty Ltd v JLW (1991) 29 FCR 415 referred to
Cafdawn Pty Limited v Waltons Stores Ltd (unreported, Federal Court of Australia, 28 March 1991) referred to
Byers v Dorotea (1986) 69 ALR 715 referred to
Grundt v Great Boulder Pty Gold Mines Limited (1937) 59 CLR 641 referred to
Bank Negara Indonesia v Philip Hoalim [1973] 2 MLJ 3 referred to
Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 referred to
Whittet v State Bank of NSW (1991) 24 NSWLR 146 referred to
Liangis Investments Pty Ltd v Daplyn Pty Limited (1994) 117 FLR 28 referred to
Grace v Peter Harrison Designs & Signs Pty Ltd [1998] QSC 27 referred to
Riches v Hogben [1995] 2 Qd R 292 referred to
Giumelli v Giumelli (1999) 196 CLR 101 referred to
Nelson v Nelson (1995) 184 CLR 538 referred to
Fitzgerald v Leonhardt (1997) 143 ALR 569 referred to
Yango Pastoral Co Pty Ltd v First Chicago Australia (1978) 139 CLR 410 referred to
Roach v Bickle (1915) 20 CLR 663 referred to
Massart v Blight (1951) 82 CLR 423 referred to
Brown v Heffer (1967) 116 CLR 344 referred to
Coote A Treatise on the Law of Mortgages (7th Ed) vol 1
White and Tudor’s Leading Cases in Equity (9th Ed) vol 2
Story’s Equity Jurisprudence (6th Ed) Vol 2 [1020]
Fisher and Lightwood’s Law of Mortgages (Aust Ed)
Chitty on Contracts 26th Edition [854]
Derham“Estoppel by Convention” (1997) 71 ALJ 860
Finn “Equitable Estoppel”, Essays in Equity (1985)
Lang Leases and Tenancies in NSW (1976)
Branir Pty Ltd and Others v Owston Nominees and Another
N1120 and N1121 of 2000
DRUMMOND, MANSFIELD & ALLSOP JJ
20 DECEMBER 2001
SYDNEY
| IN THE FEDERAL COURT OF AUSTRALIA |
|
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
| BETWEEN: | BRANIR PTY LTD (ACN 061 718 876) FIRST APPELLANT and FIRST CROSS RESPONDENT
TOVEHEAD PTY LIMITED (ACN 003 745 140) SECOND APPELLANT and SECOND CROSS RESPONDENT
ABURIZAL BAKRIE THIRD APPELLANT and THIRD CROSS RESPONDENT
|
| AND: | OWSTON NOMINEES NO2 PTY LIMITED (ACN 001 769 099) FIRST RESPONDENT and FIRST CROSS APPELLANT
WARREN PERRY ANDERSON SECOND RESPONDENT and SECOND CROSS APPELLANT
|
| DATE OF ORDER: | |
| PLACE: |
In respect of the appeal (N 1121 of 2000):
1. that subject to order 2 below the appeal be dismissed;
2. that declaration 3(b) made by the primary judge to the effect that “the first respondent is to be debt free on the issue of the Shares” be varied by adding thereafter the words: “subject to such obligations or debts, if any, as arise or may arise from any undertaking by the first appellant, Branir Pty Limited then known as Votraint No 788 Pty Limited, in the letter of 22 December 1993 which was signed by Mr Nalin Rathod on behalf of the first appellant, and a copy of which was annexure D to the affidavit of Mr Arthur Dew sworn 27 September 1997.”; and
3. that the appellants pay the respondents’ costs.
In respect of the cross appeal (appeal N 1120 of 2000):
1. that the appeal be allowed;
2. that declaration 1(a) made by the primary judge be varied to substitute for the words “for the life of the second applicant” the words “in perpetuity”; and
3. that the respondents pay the appellants’ costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | N 1120 of 2000 and N 1121 of 2000 |
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
| BETWEEN: | BRANIR PTY LTD (ACN 061 718 876) FIRST APPELLANT and FIRST CROSS RESPONDENT
TOVEHEAD PTY LIMITED (ACN 003 745 140) SECOND APPELLANT and SECOND CROSS RESPONDENT
ABURIZAL BAKRIE THIRD APPELLANT and THIRD CROSS RESPONDENT
|
| AND: | OWSTON NOMINEES NO2 PTY LIMITED (ACN 001 769 099) FIRST RESPONDENT and FIRST CROSS APPELLANT
WARREN PERRY ANDERSON SECOND RESPONDENT and SECOND CROSS APPELLANT
|
| JUDGE: | DRUMMOND, MANSFIELD and ALLSOP JJ |
| DATE: | 20 DECEMBER 2001 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
DRUMMOND J:
1 I agree with Allsop J’s reasons and with the order he proposes in relation to the appeal and the cross-appeal.
| I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. |
Associate:
Dated: 20 December 2001
IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | N 1120 of 2000 and N 1121 of 2000 |
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
| BETWEEN: | BRANIR PTY LTD (ACN 061 718 876) FIRST APPELLANT and FIRST CROSS RESPONDENT
TOVEHEAD PTY LIMITED (ACN 003 745 140) SECOND APPELLANT and SECOND CROSS RESPONDENT
ABURIZAL BAKRIE THIRD APPELLANT and THIRD CROSS RESPONDENT
|
| AND: | OWSTON NOMINEES NO2 PTY LIMITED (ACN 001 769 099) FIRST RESPONDENT and FIRST CROSS APPELLANT
WARREN PERRY ANDERSON SECOND RESPONDENT and SECOND CROSS APPELLANT
|
| JUDGE: | DRUMMOND, MANSFIELD and ALLSOP JJ |
| DATE: | 20 DECEMBER 2001 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
MANSFIELD J:
2 I have had the benefit of reading the judgment about to be delivered by Allsop J. I agree with his Honour’s reasons and the orders he proposes.
| I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. |
Associate:
Dated: 20 December 2001
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | N 1120 of 2000 and N 1121 of 2000 |
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
| BETWEEN: | BRANIR PTY LTD (ACN 061 718 876) FIRST APPELLANT and FIRST CROSS RESPONDENT
TOVEHEAD PTY LIMITED (ACN 003 745 140) SECOND APPELLANT and SECOND CROSS RESPONDENT
ABURIZAL BAKRIE THIRD APPELLANT and THIRD CROSS RESPONDENT
|
| AND: | OWSTON NOMINEES NO2 PTY LIMITED (ACN 001 769 099) FIRST RESPONDENT and FIRST CROSS APPELLANT
WARREN PERRY ANDERSON SECOND RESPONDENT and SECOND CROSS APPELLANT
|
| JUDGE: | DRUMMOND, MANSFIELD and ALLSOP JJ |
| DATE: | 20 DECEMBER 2001 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
ALLSOP J :
Introduction [ 4 ] – [ 10 ]
The Approach on Appeal [ 11 ] – [ 39 ]
The Issues Below [ 40 ] – [ 79 ]
The Sanctuary Agreement [ 45 ] – [ 58 ]
The Share Agreement [ 59 ] – [ 72 ]
The Conduct of the Hearing [ 73 ] – [ 79 ]
The Facts [ 80 ] – [ 216 ]
The Narrative up to 23 December 1993 [ 80 ] – [ 187 ]
The Finalisation of the Share Letter on 23 December [ 188 ] – [ 194 ]
The Finalisation of the Sanctuary Letter on 23 December [ 195 ] – [ 198 ]
Settlement and the Beliefs of Mr Dew and Mr Anderson
at Settlement [ 199 ] – [ 204 ]
The Questions of Consensus and Intention to be Bound [ 205 ] – [ 212 ]
Events after 23 December 1993 [ 213 ] – [ 216 ]
The Findings of the Primary Judge [ 217 ] – [ 249 ]
The Share Agreement [ 217 ] – [ 226 ]
The Sanctuary Agreement [ 227 ] – [ 239 ]
Estoppel and Misleading or Deceptive Conduct [ 240 ] – [ 249 ]
Orders Made by the Primary Judge [ 250 ]
The Appeal [ 251 ] – [ 464 ]
Fundamental Background to the Appeal - Pressure on
Anderson, Settlement Complexity and General Preparatory Remarks [ 252 ] – [ 259 ]
The Shareholding Agreement [ 260 ] – [ 358 ]
No consideration [ 262 ] – [ 269 ]
The Form of the Acceptance of Offer [ 270 ] – [ 274 ]
The Methodology of the Primary Judge [ 275 ] – [ 276 ]
The Parole Evidence Rule [ 277 ] – [ 297 ]
Alleged Illegitimate Use of Subjective Intention [ 298 ] – [ 300 ]
Alleged Lack of Intention to Enter Legal Relations [ 301 ] – [ 309 ]
Alleged Lack of Consensus [ 310 ] – [ 332 ]
Alleged Uncertainty of the Share Agreement [ 333 ] – [ 337 ]
The Effect of the Deposit of the Share Scrip [ 338 ] – [ 345 ]
Alleged Failure of the Applicants to do Equity [ 346 ] – [ 347 ]
The Indonesian Deposit Rate, Uncertainty and the
Application to Reopen Rejected by the Primary Judge [ 348 ] – [ 358 ]
The Sanctuary Agreement [ 359 ] – [ 405 ]
Alleged Lack of Consensus and of
Intention to Create Legal Relations [ 361 ] – [ 405 ]
Postscript on Consensus and Intention to Create Legal Relations and
Appellate Approach [ 406 ] – [ 412 ]
The Settlement Deed and the Sanctuary Agreement [ 413 ] – [ 450 ]
The Settlement Deed and the Share Agreement [ 451 ] – [ 452 ]
Estoppel [ 453 ] – [ 458 ]
Misleading or Deceptive Conduct [ 461 ] – [ 464 ]
The Cross Appeal and The Effect of the Crown Land Legislation on
the Sanctuary Agreement [ 465 ] – [ 501 ]
Proposed Orders [ 502 ] – [ 503 ]
Introduction
4 This matter involves two appeals from a Judge of the Court concerning two aspects of a body of commercial dealings between the relevant parties. Each of those aspects involves the examination as to whether the primary judge was correct in finding an enforceable contract between the parties. The main appeal, N 1121 of 2000, is brought by Branir Pty Limited, Tovehead Pty Limited and Mr Aburizal Bakrie. I will refer to this as the appeal and these parties as the appellants. In appeal N 1120 of 2000, the respondents to N 1121 of 2000, Owston Nominees No 2 Pty Limited and Mr Warren Anderson, appeal against one aspect of the orders of the primary judge. I will refer to this as the cross appeal and to these parties either by name or as the applicants when referring to the proceedings below.
5 Briefly by way of introduction, and perhaps over simply, in the years leading up to 1993 Mr Warren Anderson, an Australian businessman and Mr Aburizal Bakrie, an Indonesian businessman, through their respective entities, had taken interests in a large cattle station in the north of Australia called “Tipperary”. Its title was held in part under pastoral leases under Northern Territory legislation. Until it becomes relevant I will ignore the leasehold nature of the interests held by the parties. The property supplied live cattle to a business in Indonesia which ran a commercial feedlot in which Messrs Anderson and Bakrie, along with others, were interested. Unrelated to the commercial operation of the cattle station there had been created on Tipperary an exotic wildlife sanctuary for the preservation and study of endangered species. I will refer to it as the Sanctuary. The Sanctuary appears to have been an undertaking reflecting, and giving expression to, Mr Anderson’s personal interest in such activities. Its development began prior to Mr Bakrie and entities associated with him taking a commercial interest in Tipperary. From time to time I will refer to the ‘Sanctuary’ and the ‘Sanctuary land’. Until it becomes relevant to my discussion in [463] and following paragraphs of the form of the order made by the primary judge no particular significance should be attached to the choice of either of these two expressions.
6 By early 1993, Mr Anderson and his commercial interests were under intense pressure from a major lender, the Bank of New York (to which I will refer as BNY, indiscriminately as to corporate entities reflecting the bank’s manifestation). At the end of 1993 steps were taken which enabled Mr Anderson and his interests to repay BNY. Those steps involved the re-arrangement of the interests of Mr Anderson and Mr Bakrie and of entities with which they were associated. On 23 December 1993 a number of documents were executed and exchanged at a long and complex settlement. The effectuation of the settlement on that day saw BNY paid out and the threat of receiver sales of, amongst other things, Tipperary, recede.
7 The case before the primary judge, and the appeal, involved two matters as between Mr Anderson and Mr Bakrie and their interests which were not satisfactorily reduced to detailed written expression in formal deeds or agreements or documents the form of which was otherwise clearly agreed on or before 23 December 1993, as most other aspects of the re-arrangement were.
8 These two matters were whether relevant parties had agreed, in a manner intended to have legal effect, first, that there would be issued to Mr Anderson’s family trust company, Owston Nominees No 2 Pty Limited (Owston), a little over 40% of the shares in the first appellant (Branir Pty Limited, at that time known as Votraint No 788 Pty Limited and to which I will refer either as Votraint or Branir) which, after the main settlement, was to own, directly or indirectly, half Tipperary and half the feedlot; and, secondly, that Owston would be entitled to, in effect, a sub-lease of the land upon which the Sanctuary was situated and surrounding areas up to, in total, 20,000 acres within Tipperary, free of any interest of Mr Bakrie or his entities.
9 The primary judge found, in relation to both aspects, in favour of Mr Anderson’s interests.
10 The hearing before his Honour was a long one. Mr Anderson gave evidence. Mr Bakrie gave evidence. The subordinates and confidants of each gave evidence. His Honour made findings of credit, in strong terms. It will be necessary to return to these findings in a little detail later, but it suffices, for present purposes, to appreciate that his Honour rejected much of the evidence given by Mr Bakrie and his subordinates and confidants and accepted the evidence of Mr Anderson and his subordinates and confidants, especially, relevantly, Mr Dew.
The Approach on Appeal
11 Except in limited respects, no attempt was made by the appellants to challenge the findings made by the primary judge based on his view of the witnesses. Rather, the approach of the appellants was to accept those findings (with the limited exceptions) and, in the light of them, and on the version of events deposed to by Mr Anderson and Mr Dew, to seek to persuade the Court on appeal that findings should be made which would lead to the appeal being allowed.
12 There was debate during the appeal as to whether the appellants were adopting an impermissible approach in the way they were approaching the primary judge’s fact finding and the role of the Court on appeal. In light of that debate, I express my views on the approach which I see as appropriate.
13 Appeals to this Court are governed by Division 2 of Part III of the Federal Court of Australia Act 1976. It was held in Duralla Pty Ltd v Plant (1984) 2 FCR 342 that appeals to this Court are in the nature of appeals stricto sensu, and not by way of rehearing. (I acknowledge the absence of precision of the expression “by way of rehearing”. However, for the purposes of discussion in these reasons, and in particular, in contradistinction to the type of hearing referred to in Duralla, it is, I think, uncontroversial to use the phrase.) Duralla has been followed or applied on many occasions: see, for example, Petreski v Cargill (1987) 18 FCR 68 at 77 to 78; Minister for Immigration and Ethnic Affairs v Hamsher(1992) 35 FCR 359 at 369; Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 at 129; Hornet Aviation Pty Ltd v Ansett Australia (1995) 16 ACSR 445 at 450; White v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 511 at [19]; Foyster v ANZ Banking Group Ltd [2000] FCA 1254 at [16]; Sidhu v Holmes [2000] FCA 1653 at [5]; and H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at [6].
14 Most of these decisions dealt with the question of the proper extent of s 27 of the Federal Court Act and the admission of further evidence on appeal. However, Hamsher, supra, in dealing with Duralla, did so in the context of a discussion of the proper approach to an appeal in this Court. Beaumont J and Lee J said at 369, after setting out s 27:
However, the hearing of an appeal in this Court is neither a trial de novo nor a trial of the case afresh on the record (Duralla Pty Ltd v Plant (1984) 2 FCR 342) and the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The Court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (supra) (at 552-553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v Noble (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319).)
15 The approach to appeals in this Court set out in Hamsher has been followed on a number of occasions in the Court: eg News Limited v ARL (1996) 64 FCR 410 at 423 – 24; Montgomery v FCT (1998) 152 ALR 241 at 256; Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556 at 569; ACT Schools Authority v El Sheik (2000) ATR 81-557; [2000] FCA 931 at [31]; Hanleyv AFMEP & KIU (2000) 100 FCR 530 at 534 – 35; H v Minister for Immigration and Multicultural Affairs, supra, at [11]; Sidhu v Holmes, supra, at [8] and Heslehurst v Government of New Zealand (2001) 109 FCR 226 at [26]. It has been applied by the Court of Appeal of New South Wales in Williams v The Minister [2000] NSWCA 255.
16 The correctness of Duralla, that the appeal to this Court is one stricto sensu, has recently been questioned by Burchett J and Hely J (with whom Carr J agreed on this question) in Stirling Harbour Services Pty Ltd & Anor v Bunbury Port Authority [2000] FCA 1381 at [75]-[79] (and [115]). Their Honours noted that since Duralla there had been two decisions of the High Court upon the basis of which an attack on the reasoning in Duralla could be mounted, they being Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267 in which powers conferred on an appellate tribunal to “make such orders as it thinks fit” (compare s 28, especially para 28(1)(b) of the Federal Court Act) and to “take further evidence for the purposes of an appeal under this section” (compare s 27 of the Federal Court Act) were held by Deane J, Gaudron J and McHugh J at p 272 to be “strong indications that the appeal… was by way of rehearing”; and CDJ v VAJ (1998) 197 CLR 172 in which McHugh J, Gummow J and Callinan J at p 199 described s 27 of the Federal Court Act and s 93A(2) of the Family Law Act 1975 as “similar” and at pp 201-2 described an appeal to the Full Court of the Family Court as an appeal by way of rehearing. To these references there can now be added the views of Gleeson CJ, Gaudron J and Hayne J in Coal & Allied Operations P/L v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at [17], describing an appeal to the Full Bench of the Industrial Relations Commission as by way of rehearing “[b]ecause… the Commission has power under s 45(6) of the Act to receive further evidence on appeal.”; and the views of Gaudron J, McHugh J, Gummow J and Hayne J in Allesch v Maunz (2000) 173 ALR 648 at [20] to [24] dealing with appeals to the Full Court of the Family Court.
17 In Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [75] Gleeson CJ and Gummow J said that an appeal to the Full Court of this Court from a single judge was by way of rehearing. They noted that it was agreed before them that the relevant principles as to reviewing a primary judge’s findings of fact were as stated in Warren v Coombes (1979) 142 CLR 531. Kirby J noted that both sides in the appeal agreed that the past authority of the Federal Court concerning the nature of an appeal (referring, I take it, to Duralla and cases following it)was erroneous. Kirby J did not demur to that. This agreement of counsel reflected the views of Gleeson CJ and Gummow J. Hayne J (at [176]) agreed with the reasons of Gleeson CJ and Gummow J for allowing the appeal. Callinan J did not deal with the point.
18 In Cabal v United Mexican States [2001] FCA 427 at [222] the Full Court of this Court, in a judgment of the Court referring to Jia in the High Court, said that appeals in this Court were by way of rehearing. This was directly contrary to Duralla. I take it as a decision rejecting Duralla .
19 Burchett J and Hely J in Stirling Harbour Services, supra, in this context, also referred to the expression of view in the High Court that provisions conferring judicial power upon courts should be construed liberally eschewing limitations and implications not found in the words of the statute: CDJ v VAJ, supra at 201, The Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Company Inc (1994) 181 CLR 404 at 421 and PMT Partners P/L (In Liq) v Australian National Parks and Wildlife Services (1995) 184 CLR 301 at 313 and 316. To these references can be added Knight v FP Special Assets (1992) 174 CLR 178 at 205; FAI General Insurance v Southern Cross Exploration NL (1988) 165 CLR 268 at 290; David Grant & Co v Westpac (1995) 184 CLR 265 at 275-76; Emanuelev ASC (1997) 188 CLR 114 at 136-37; Oshlack v Richmond River Council (1998) 193 CLR 72 at 81; Patrick Stevedores v MUA (1998) 195 CLR 1 at 56-7; Abebe v Commonwealth (1999) 197 CLR 510 at 586-87; Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 201; Commonwealth v SCI Operations (1998) 192 CLR 285 at 301; Eastman v R (2000) 203 CLR 1 at [81]; and Australian Memory Pty Ltd v Brien (2000) 200 CLR 270 at [17]. This body of authority tends strongly against the more limited conception of appeal as laid down in Duralla.
20 The question whether the appeal to this Court is one stricto sensu, in accordance with Duralla, or is by way of rehearing, was not put forward by the parties as an issue necessary to answer. The matter was not approached by the parties before us on the basis that the correct approach to the appeal required us to decide the correctness of Duralla or on the basis of the incorrectness of the proposition that the approach of Beaumont J and Lee J in Hamsher, supra, in the requirement for the demonstration of error is one which is appropriate for appeals both in the strict sense and by way of rehearing. (I note that the New South Wales Court of Appeal, conducting an appeal by way of rehearing in Williams v The Minister, supra, applied Hamsher.) However, in the light of Cabal it is appropriate for me to express my view that the weight of High Court authority dealing with provisions governing appeals in other courts similar to ss 27 and 28 of the Federal Court Act and dealing with the requirement to read provisions conferring judicial power liberally and in particular, most recently, the views of at least three (if not four) of the members of the High Court in Jia dealing with appeals in this Court lead to the conclusion that appeals to this Court are by way of rehearing. Cabal is correct and Duralla should not be followed on this point. I approach the matter on the basis that the appeal is one by way of rehearing.
21 However, this conclusion does not alter the need to show error on appeal. In Hamsher Beaumont J and Lee J identified the need for the demonstration of error in the trial judge’s findings or conclusions and they expressed the view that the statements in Warren v Coombes (1979) 142 CLR 531 (dealing with an appeal by way of rehearing) that an appellate court must not shrink from giving effect to its own conclusion were premised on a conclusion that the decision of the trial judge was wrong and should be corrected.
22 In any event, it is plain from what the High Court has said in CDJ v VAJ supra at [111], in Allesch v Maunz, supra at [22], in Coal & Allied Operations v AIRC, supra at [14] and in Crampton v R (2000) 176 ALR 369 at [147] (citing Attorney General v Sillem(1864) 10 HLC 704 at 724 per Lord Westbury LC and Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 109 per Dixon J) that the task of a court on an appeal by way of rehearing is the correction of error.
23 In Cabal, supra at [223] and [224] the Court said:
[223] The principles which govern the review by a Full Court of primary judge’s findings of fact are as stated in Warren v Coombes (1979) 142 CLR 531. See also Abalos v Australian Postal Commission (1988) 171 CLR 167; Devries v Australian National Railways Commission (1933) 177 CLR 472; and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588. In general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge. However once having reached its own conclusion it will not shrink from giving effect to it.
[224] Notwithstanding the fact that the learned primary judge’s review was conducted on the papers, and without any opportunity to consider the demeanour of the witnesses, the weight to be accorded to the evidence of the experts was primarily a matter for his Honour to determine. This Court can consider whether he fell into appealable error in that regard but it will not approach that evidence as though this were a rehearing de novo in which his Honour’s views count for nought. If, after giving full weight to his Honour’s views, we are persuaded that the conclusions which he reached were erroneous we must set aside his finding of fact. We cannot however simply substitute for his Honour’s findings of fact those findings which we would have made had we been the judges on review who determined this matter at first instance.
24 What is error in any given case depends, of course, not only on the evidence, but also on the nature of the findings or conclusions made by the primary judge. The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment or when the findings or conclusions in question can be seen as made with the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment, in particular in a long and complex hearing: see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 at 619 [90] per Kirby J; Moneywood v Salamon Nominees (2001) 202 CLR 351 at 390 [127] and [128] per Kirby J; Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 180 ALR 655 at [203] and [205] per Branson J and Katz J; and also Khoo Sit Hoh v Lim Than Tong [1912] AC 323, 325; Paterson v Paterson (1953) 89 CLR 212, 221; Powell v Streatham Manor Nursing Home [1935] AC 243; and Warren v Coombes, supra at 538.
25 This is not to elevate ordinary factual findings to the protected position of those based on credit, but it is to make clear, first, the advantages of the trial judge and, secondly, the need for demonstration of error. The inability to identify error may arise in part from the unwillingness of the appeal court to be persuaded that it is in as good a position as the trial judge to deal with the issues, because of the kinds of considerations referred to in [24] above. Or, it may be that the nature of the issue is one such that (though not a discretion) there cannot be said to be truly one correct answer. In such cases the availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient: see Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227 at 229-30. In circumstances where, by the nature of the fact or conclusion, only one view is (at least legally) possible (for example, the proper construction of a statute or a clause in a document, where, although, as often said, minds might differ about such matters of construction, there can be but one correct meaning: see generally Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 151-56) the preference of the appeal court for one view would carry with it the conclusion of error. However, other findings and conclusions may be far more easily open to legitimate differences of opinion eg valuation questions, see Fenton Nominees Pty Ltd v Valuer-General (1981) 47 LGRA 71, 73-76.
26 Where parties do not finally record their bargain in a formal document but, perforce of circumstance, leave the state of their communings as a mixture of conversations (between different people), letters and drafts, the findings and conclusions of the trial judge as to what was agreed (in the sense of consensus) and whether or not such agreement was intended to be legally binding may well be ones reached with all the advantages referred to by, amongst others, Kirby J in SRA v Earthline, supra, and perhaps with the advantage of seeing and assessing the witnesses. Such findings and conclusions are the very kind of assessments to which the words of Lord Hoffmann in Biogen Inc v Medeva Pty Ltd [1997] RPC 1 at 45 (cited with approval by Heydon JA in Williams, supra)are especially apposite:
The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la [vérité] est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.
27 However, as was made clear in Cabal, this Court is bound to deal with the appeal as directed by Warren v Coombes, supra.
28 The views of Barwick CJ in cases such as Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, 506, Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192, 199 and Edwards v Noble (1971) 125 CLR 296, 304 which were rejected by the majority in Warren v Coombes, supra, and the views of that majority in Warren v Coombes all contain the need for the demonstration of error. The need for demonstration of error and how that fits into the appropriate approach to dealing with the appeal is reflected in what Menzies J and Walsh J said in Edwards v Noble, supra, where their Honours expressed views to a degree contrary to those of Barwick CJ. The views of Menzies J and Walsh J are set out in Warren v Coombes at 545-47. They were views approved of in Warren v Coombes. From Warren v Coombes, the passages of Menzies J and Walsh J in Edwards v Noble, from the other authority cited by the majority in Warren v Coombes and from more recent decisions of the High Court flow a number of relevant propositions. First, the appeal court must make up its own mind on the facts. Secondly, that task can only be done in the light of, and taking into account and weighing, the judgment appealed from. In this process, the advantages of the trial judge may reside in the credibility of witnesses, in which case departure is only justified in circumstances described in Abalos v Australian Postal Commission (1988) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472 and SRA v Earthline, supra. The advantages of the trial judge may be more subtle and imprecise, yet real, not giving rise to a protection of the nature accorded credibility findings, but, nevertheless, being highly relevant to the assessment of the weight to be accorded the views of the trial judge. Thirdly, while the appeal court has a duty to make up its own mind, it does not deal with the case as if trying it at first instance. Rather, in its examination of the material, it accords proper weight to the trial judge’s views. Fourthly, in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.
29 The degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge. Sometimes, where matters of impression and judgment are concerned, giving “full weight” or “particular weight” to the views of the trial judge might be seen to shade into a degree of tolerance of divergence of views: compare S W Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466, 478 and 491; Turbo Tek Enterprises Inc v Sperling Enterprises Pty Ltd (1989) 23 FCR 331; Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553; Allsop Inc v Bintang Ltd (1989) 15 IPR 686; Dart Industries v Decor Corporation Pty Ltd (1989) 15 IPR 403, 412; and Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90 at [27]. In such cases the personal impression or conception of the trial judge may be one not fully able to be expressed or reasoned: see for example In re Wolanski’s Registered Design (1953) 88 CLR 278, 281 and Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 363, 391. However, as Hill J said in Commissioner of Taxation v Chubb Australia (1995) 56 FCR 557, 573 “giving full weight” to the view appealed from should not be taken too far. The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.
30 From these principles of how the appeal court should undertake its task, the following can be said about the approach of those conducting an appeal. The proper approach is not to ask the court to survey all the evidence, directed by the otherwise unassailable findings on credit, and to ask it to arrive at its own conclusions, without “essaying the necessary task of positively demonstrating that the trial judge was wrong”: Williams v The Minister, supra at [61] per Heydon JA. It is not appropriate to treat the appeal as though it were a new trial on the evidence and constrained merely by the unassailable factual findings. Error must be demonstrated. See also Biogen Inc v Medeva Pty Ltd, supra at 45 and Williams, supra at [136] and [137] citing Zuvela, supra and Biogen, supra. The views and conclusions of the trial judge ultimately have to be shown to be wrong. They should not be laid to one side and a simple re-argument of the case take place.
31 It will be necessary to return to such considerations as these when examining the submissions of the appellants and their attacks on his Honour’s findings and conclusion.
32 I see no contradiction in what I have said with the views of, and approach exhibited by, Gleeson CJ (with whom Hope and Mahoney JJA agreed) in Australian Broadcasting Commission v XIVth Commonwealth Games (1988) 18 NSWLR 540 at 541-47 (a case where the primary facts were not in dispute), McHugh JA (as his Honour then was and with whom Kirby P, as his Honour then was, and Glass JA agreed) in GR Securities v Baulkham Hills Private Hospital (1986) 40 NSWLR 631 (a case concerning the effect of an exchange of letters), Griffiths CJ and Isaacs J in Howard Smith and Company Limited v Varawa (1907) 5 CLR 68 at 73 –81 and 84-88, Glass JA and Mahoney JA in B Seppelt and Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147, 9148 and 9151-53, Gleeson CJ, Kirby P and Powell JA in Geebung Investments v Varga Investments (1995) 7 BPR 14, 551, the Full Court of Western Australia in Pirt Biotechnologies v Pirtferm Pty Limited [2001] WASCA 96 at [16] and [17] or the High Court in Warren v Coombes, supra, to all of which cases the appellants referred in their submissions.
33 Related to, but distinct from, the above, are the principles governing the departure by parties from the approach which they adopted to the controversy at the hearing. It is necessary to examine these principles because the respondents complain that many of the matters argued by the appellants were being raised for the first time on appeal.
34 The limitations upon what parties can put forward in an appeal court are set out in Suttor v Gundowda(1950) 81 CLR 418 at 438, Coulton v Holcombe (1986) 162 CLR 1 at 7-8, University of Wollongong v Metwally [No 2] (1985) 60 ALR 68 at 71, O’Brien v Komesaroff (1982) 150 CLR 310 at 319, Water Board v Moustakas (1988) 180 CLR 491 at 497, Connecticut Fire Insurance v Kavanagh [1892] AC 473 at 480, Crampton v R, supra [12] – [19], [111] and [147] and Liftronic Pty Ltd v Unver (2001) 179 ALR 321 at [44].
35 In Kweifio-Okai v RMIT University [1999] FCA 1686, Dowsett J at [62], in dealing with a fresh issue, there sought to be raised on appeal by the appellant, noted that the issue was complex and involved significant factual questions which were not addressed in evidence, at least by the respondent, so that it was difficult to see why the Full Court should then entertain it. Dowsett J referred to the proper approach by an appellate court in such circumstances as being that set out in the judgment of Starke J in Davison v Vickery’s Motors Ltd (In Liquidation) (1925) 37 CLR 1 at 35, where his Honour said:
No one, I suppose, disputes the authority of an appellate Court to consider questions raised, for the first time, before it, but such questions “ought to be most jealously scrutinized. The conduct of a cause at the trial is governed by, and the questions asked of the witnesses are directed to, the points then suggested. And it is obvious that no care is exercised in the elucidation of facts not material to them.”: Owners of Ship Tasmania v Smith (1890) 15 App Cas 223, 225. It is less difficult to induce a Court of Appeal to consider a question of law raised for the first time upon the construction of a document or upon undisputed facts, than a new question of fact. But a party cannot be allowed to take his chance of a finding in his favour upon the fact of an agreement, and then, on appeal, for the first time dispute the authority of the person who negotiated that agreement. Such a party is and ought to be bound by the course of the trial … .
36 The roles of the trial and the appeal need to be kept distinct. The appeal is not a reworking of the trial taking account of such impediments as are thrown up by the judge’s findings which alter the landscape. As was said in Coulton v Holcombe, supra at 7:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
37 It is beyond question that if a new matter is raised and evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken: Coulton v Holcombe supra at 7-8.
38 However, to say as much does not exhaust the description of the considerations for an appellate court when faced with a party raising a fresh point. First, the finality of litigation and the importance of parties being bound to the cases they make at trial should never be overlooked: Gleeson CJ and Hayne J in Crampton, supra at [15] and [157], respectively and University of Wollongong v Metwally, supra; see too JB Chandler Investment Company Limited (in voluntary liquidation) v Commissioner of Taxation (1993) 47 FCR 588 per Gummow J at 593G. Secondly, the difficulty of the party against whom the new point is raised reaching back in time to assess, necessarily hypothetically, how the conduct of the trial would, or may, have been different should not be underestimated. Such judgments or assessments can require re-agitation or reconsideration of decisions taken before and at trial (which may be privileged) and which can be very difficult to assess and articulate after the event. The entitlement of a party to the benefit of the opportunity of informed and reasonably contemporaneous assessment of relevant evidence, or inquiry, should be respected. Thirdly, the potential unfairness on counsel conducting an appeal who will be expected to assist the court in respect of the prejudice, or lack of it, to his or her client in the face of such matters being raised should not lightly be brushed aside. Even when counsel cannot positively say that something in particular would have been done differently, that does not mean that the court will be satisfied of a lack of prejudice. The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point. These considerations should not be seen as not requiring counsel frankly and candidly to say that the trial would not have been conducted differently if he or she is of that view. Fourthly, and in conclusion, before any new point be allowed, the court should be able to be satisfied that the raising of it could work no injustice on the other party and is otherwise in the interests of justice. The extent of the consideration of “the interests of justice” was discussed by Branson J and Katz J in H v Minister for Immigration and Multicultural Affairs, supra, at [8]. For my part, I would reserve comment upon the matters there discussed in this context concerning the relevance of the growing pressure on the time of courts. Considerations of the kind there discussed by their Honours have not formed part of my reasons, expressed later, for refusing to entertain certain issues on appeal. Nothing I have said is intended to be in any way contrary to, or inconsistent with, what was said by R D Nicholson J in Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47 or with the cases there discussed, that being an authority specifically relied on by the appellants in argument.
39 Whether or not a point was raised at the hearing should not be decided narrowly or technically. The pleadings and the particulars will ordinarily mark the boundaries of the dispute. Due regard also should be had to the direction of the conduct of the hearing within or outside these marked boundaries: Water Board v Moustakas, supra at 497-98.
The Issues Below
40 With this background, it is appropriate to examine what was pleaded by the parties.
41 The first applicant was Owston. Mr Anderson was the second applicant.
42 The first and second respondents were Branir and Tovehead Pty Limited (Tovehead), respectively. Their precise participation in events will be identified in due course. Mr Bakrie, who controlled both Branir and Tovehead, was the third respondent.
43 The applicants’ claims were, relevantly for the hearing before the primary judge, embodied in the Second Further Amended Application and the Second Further Amended Statement of Claim dated 22 January 1999 (the 2nd FASC).
44 The case is conveniently divisible between the claims concerning the alleged agreement concerning the land upon which the Sanctuary was situated and the surrounding land, which I will refer to as the Sanctuary Agreement, and the claims concerning the alleged agreement concerning the issue of shares in Branir, to which I will refer as the Share Agreement (it is also referred to in the evidence as the Shareholding Agreement).
The Sanctuary Agreement
45 The various claims pleaded about the Sanctuary Agreement have a certain complexity, though in a sense, and to a degree, such complexity was brought about only by variations in the legal framework for the claims.
46 The pleading commenced with a matter going back to 1990. In November 1989, Owston, which owned prior to this point the whole of Tipperary, sold half of it to Tovehead. It was alleged that on or about 1 February 1990 Tovehead represented to and agreed with Owston that:
… Owston was to have the use and possession of such parts of Tipperary (not exceeding 20,000 acres) as it might from time to time select for its own purposes, including the construction of a private zoo for the duration of the lease of Tipperary.
47 This allegation was particularised by reference to a document entitled a “Joint Statement of Understanding” executed by Owston and Tovehead on or about 1 February 1990. I will refer to this, as the primary judge did in his reasons, as the JSU. It was claimed (see para 10 of the 2nd FASC) that in reliance on the representations and agreement embodied in the JSU Owston continued to operate and develop the Sanctuary. It was in that context that the claims arising in late 1993 were made.
48 The applicants then pleaded (para 11) that on or about 23 December 1993 Owston and Branir executed a deed whereby Branir would buy from Owston assets which included Owston’s then half interest in Tipperary; but (see para 13) that “in late 1993” Branir and Tovehead (which since November 1989 had owned the other half of Tipperary) represented to and agreed with Owston that:
(a) Tovehead and Branir would allow to Owston the right to exclusive use of the Sanctuary and the further area referred to in the Statement of Understanding [ie the JSU] on the same terms as the underlying perpetual pastoral leases, with complete rights of access, at a nominal rent.
Particulars
The representation and agreement was oral and was made in conversations between
(i) Anderson on behalf of Owston and Bakrie and Nalin Rathod (“Rathod”) on behalf of Tovehead and Branir and
(ii) Dew on behalf of Owston and Graham on behalf of Tovehead and Branir,
in each case in around September 1993.
(b) Further and in the alternative, without prejudice to Owston’s right under the Statement of Understanding to select further parts of Tipperary to increase over time the area occupied by the Sanctuary up to 20,000 acres in total, on or within a reasonable time after 23 December 1993, Bakrie, Tovehead and Branir would execute a Deed granting to Owston the right, during the term of the perpetual leases of Tipperary, to exclusive use and benefit absolutely of all those parts of Tipperary then used by Owston for the Sanctuary, together with certain other rights, including the rights of ingress and egress to the Sanctuary.
Particulars
The representation and agreement was partly oral and partly in writing. To the extent that it was oral, it was made (i) in conversations between Rathod and Bakrie on behalf of Tovehead and Branir and Anderson on behalf of Owston in Jakarta on or about 13 December 1993 and/or (ii) between Dew on behalf of Owston and Graham on behalf of Tovehead and Branir on or about 22 December 1993. To the extent that it was in writing it was made in the form of an unexecuted Deed between Bakrie, Anderson, Tovehead and Owston substantially in the form of the Deeds which are Exhibit WPA 36 to the affidavit of Warren Perry Anderson sworn 12 September 1997 and Exhibit GGG to the affidavit of Arthur George Dew sworn 27 September 1997.
(c) Further and in the alternative, that after the execution and completion of the Final Sale Agreement:
(i) Branir and Tovehead would take all steps necessary to grant to Owston in perpetuity and for its exclusive use and benefit absolutely a lease in registerable form at nil rental of all that piece and parcel of land on Tipperary as were then used by Owston for the Sanctuary together with free and uninterrupted rights of carriageway including ingress to and egress from the said land in common with other users of Tipperary, together with such rights to use light, power and water from Tipperary as were enjoyed by Owston as at 23 December 1993;
(ii) Upon Owston selecting further parts of Tipperary for its exclusive use and possession as provided in the Statement of Understanding Branir and Tovehead would take all steps necessary to extend the lease referred to in sub-paragraph (c)(i) above so as to include the areas so selected; and
(iii) Pending the taking of the steps referred to in sub-paragraph (c)(i) and (ii) above, the arrangements for the operation and development of the Sanctuary embodied in the Statement of Understanding would be recognised and respected by them.
Particulars
The representation and agreement was made in:
(a) a telephone conversation between Graham on behalf of Tovehead and Branir and Dew on behalf of Owston on 23 December 1993;
(b) a letter from Graham on behalf of Tovehead and Branir to Anderson on behalf of Owston dated 22 December 1993 and delivered to Dew on behalf of Anderson and Owston on 23 December 1993;
(c) a conversation between Graham on behalf of Tovehead and Branir and Dew on behalf of Owston on 23 December 1993.
49 As can be seen from the particulars to the various parts of para 13 the basis of these claims was the communication between the Anderson and Bakrie interests in late 1993.
50 In paragraphs 13A to 15 the claim was put on the basis of an estoppel:
13A Further and in the alternative, on and about 23 December 1993, Tovehead and Branir engaged in conduct calculated to induce Owston to believe that Tovehead and Branir then considered themselves bound to honour the representations and agreements referred to in paragraphs 9 and 13 (the “Sanctuary Representations”).
Particulars
The conduct consisted of the execution of a letter dated 22 December 1993 from Graham on behalf of Tovehead and Branir to Anderson on behalf of Owston and the delivery of that letter to Dew on behalf of Anderson and Owston on 23 December 1993, in the context of:
(a) a previous draft of that letter providing that the arrangements for the sanctuary under the Statement of Understanding would continue pending finalisation of lease documents to give effect to a perpetual lease for Owston over the sanctuary area, having been prepared and sent to Graham by Dew on behalf of Anderson and Owston in late December 1993;
(b) the absence of any notice from Tovehead or Branir to Owston that the substance of the aforesaid draft letter was unacceptable to them;
(c) a telephone conversation between Dew and Graham on or about 22 December 1993 in which it was represented and agreed by Graham on behalf of Tovehead and Branir that, pending finalisation of lease documents to give effect to a perpetual lease for Owston over the sanctuary area, the arrangements for the sanctuary under the Statement of Understanding would continue indefinitely; and
(d) the absence of any notice from Tovehead or Branir to Owston or at any time prior to 23 December 1993 that they did not consider themselves bound to honour and give effect to the Sanctuary Representations.
14. On and after 23 December 1993, in reliance on the Sanctuary Representations and the conduct referred to in paragraph 13A, Owston:
(i) entered into the 1993 Sale Agreement and the Deed of Settlement; and
(ii) continued to operate and develop the Sanctuary and expended money on infrastructure for and improvements of the Sanctuary.
Particulars
The particulars to paragraph 10 are repeated with the exception of those set out in paragraph (c ).
Estoppel
14A. Knowing of the reliance by Owston on the Sanctuary Representations and the conduct referred to in paragraph 13A, Branir and Tovehead acquiesced in and encouraged the conduct of Owston referred to in paragraph 14.
Particulars
Branir and Tovehead;
(a) Stood by while Owston engaged in such conduct, without doing anything to lead Owston to understand that Branir and Tovehead did not consider themselves bound to honour the Sanctuary Representations;
(b) In the period around June 1994 and November 1994, assisted Owston, by the provision of staff and equipment, to extend the area of the Sanctuary by a further 250 hectares.
15. In the premises, Tovehead and Branir are estopped from asserting that Owston does not possess the rights which are specified in the Sanctuary Representations.
51 Finally, in paras 16-23, the claim was put on the basis of misleading or deceptive conduct under s 995 of the Corporations Law and s 52 of the Trade Practices Act 1974, in conjunction with s 265 of the Corporations Law and s 51A of the Trade Practices Act. The representations contained in para 13A (see above) were said to be as to future matters, and to be ones for the making of which Branir and Tovehead had no reasonable grounds and they were also said to be false because Tovehead and Branir were said not to have considered themselves bound to honour them. (See paras 19 and 20.)
52 In respect of these claims dealing with the alleged Sanctuary Agreement the appellants (respondents at first instance) pleaded the following. First, the execution in 1990 of the JSU was admitted, but any right of selection of land pursuant to it was denied; further, it was said that if any such right existed, it was limited to land which was at the time of selection not fenced or cleared or ploughed or fertilised or seeded. The acting in reliance on the JSU was denied (para 10). As to the agreement pleaded in para 11 of the 2nd FASC the appellants in para 11 of the defence admitted the execution of the deed of 23 December 1993, but denied that “in entering” the sale agreement on 23 December 1993 (referred to in para 11) Branir had knowledge of the representation and agreement in the JSU. The respondents denied the allegations in paragraphs 13 to 23.
53 Various positive allegations were put forward in the defence. Some of them were, on a proper reading of the defence, directed both to the claims about the Sanctuary Agreement and about the Share Agreement. However, the primary judge dealt with most of them only in connexion with the Sanctuary claim. These matters were as follows. First, in paragraphs 42 to 44 of the defence, in answer to any claim for discretionary relief, the respondents pleaded clause 7.3 of the deed of 23 December 1993 whereby each of Owston and Anderson had covenanted that:
… they would take no action, including, without limitation, the commencement of legal proceedings which would:
(a) adversely affect any of the assets which were transferred by the said deed;
(b) adversely affect any of the rights of each of Branir, Tovehead or Bakrie; or
(c) adversely affect any of the assets of each of Branir, Tovehead and Bakrie.
54 Secondly, any claim by Owston and Anderson to enforce any alleged agreement arising out of dealings between the parties in 1993 was defeated by an entire agreement clause in clause 12 of the Deed: paragraphs 66 to 69 of the defence.
55 Thirdly, the limitation provisions of the Trade Practices Act and the Fair Trading Act 1987 (NSW)were pleaded: para 45 of the defence. His Honour did not deal with this. It did not form part of the appeal.
56 The positive matters raised only in relation to the claims about the Sanctuary Agreement were as follows. First, a general Statute of Frauds point was pleaded insofar as the “applicants [sought] to enforce any agreement relating to an interest in land which [was] not in writing, or any interest in land which [was] not in writing”. Any such claim was said to be unenforceable (para 46). This matter was included in the notice of appeal, but was abandoned prior to the hearing in this Court. Secondly, the Crown Lands Act 1931 of the Northern Territory was pleaded in quite specific ways in answer to any claim that the applicants had enforceable rights in respect of the Sanctuary. (See paras 47 to 62). Thirdly, any claim under the JSU was sought to be answered by reliance on clause 5.2(b) of the Deed executed on 23 December 1993 in which all Owston’s rights in the Sanctuary vested in Branir. (See paras 63 to 65 of the defence.)
57 Some of the issues dealing with the Sanctuary Agreement thrown up by the 2nd FASC and the defence thereto were also contained in a cross claim filed by the respondents. First, a declaration was sought that the JSU was of no force and effect, by reason of the matters pleaded concerning the Crown Lands Act. Secondly, and in the alternative to the Crown Lands Act pleading, it was said that the JSU was a licence terminable on reasonable notice once either Owston or Tovehead ceased to be a lessee of Tipperary or was terminated once either ceased to a lessee. Owston, of course, ceased to be a lessee after it transferred its half interest to Branir on 23 December 1993.
58 Thus the issues on the pleadings concerning the Sanctuary Agreement, relevantly, were:
a) a denial of the agreement and representations;
b) a denial of the estoppel and misleading conduct;
c) a Statute of Frauds point;
d) issues arising under the Crown Lands Act; and
e) clauses 5.2(b), 7.3 and 12 of the Deed of 23 December 1993.
The Share Agreement
59 The contractual aspects of the so-called Share Agreement were pleaded in paras 24-27 of the 2nd FASC.
60 Paragraph 24 pleaded the agreement in the following form:
24. In late 1993 and prior to making of the 1993 Sale Agreement, it was agreed between Branir, Bakrie and Owston (the “Branir Shareholding Agreement”) that, at the option of Owston, such option to be exercised within 3 months of 23 December 1993 (the “option period”) Bakrie would procure Branir to issue and Branir would issue to Owston and register Owston as the holder of such number of shares in Branir as would result in Owston becoming holder of 40.815% of Bramir’s issued share capital (the “shares”), and;
(i) in consideration for Bakrie procuring the issue of the Shares and Branir issuing the shares, Owston would owe to Bakrie the sum of $8 million (the “Loan”);
(ii) the Loan would bear interest at the Indonesian market deposit rate from time to time;
(iii) the Loan would be able to be required by Bakrie to be repaid (and interest on the Loan would be payable) by Owston from, and only from, such dividends as may be declared and paid on the Shares from time to time;
(iv) Owston would irrevocably direct Branir to pay all dividends declared and paid on the Shares from time to time to Bakrie until such time as the Loan, together with accrued interest thereon, was repaid in full;
(v) until such time as the Loan, together with all accrued interest thereon, was repaid in full, Bakrie was to hold the certificate evidencing the Shares as security for the eventual repayment of the Loan;
(vi) Owston would pay all stamp duty accruing as a result of the issue of the Shares as aforesaid; and
(vii) Branir was to be debt free on settlement and until the expiration of the option period and, in the event that Owston had exercised its option as aforesaid, after the expiration of the option period, Branir would not incur any debt other than in the ordinary course of business of operating its assets.
Particulars
The agreement was partly oral and partly in writing. Particulars of the conversations and writing relied upon are set out in paragraphs 59-116 inclusive of the affidavit of Arthur George Dew (“Dew”) sworn in these proceedings on 27 September 1997 and in the documents referred to therein and in paragraphs 50-60 of the affidavit of Warren Perry Anderson sworn in these proceedings on 12 September 1997.
61 Paragraphs 25, 26 and 27 pleaded the following:
25. On or about 23 December 1993, Branir executed a letter addressed to Owston (the “Side Letter”) which purported to set out the terms of the Branir Shareholding Agreement.
26. On or about 23 March 1994, Owston informed Branir that it was taking up its rights to the Shares pursuant to the Branir Shareholding Agreement.
27. Branir and Bakrie have since 23 March 1994 failed and refused to issue or transfer to Owston the Shares.
62 The word “purported” in paragraph 25 masks one of the fundamental issues litigated below: whether the letter of 23 December accurately recorded any, and if so what, consensus to that point.
63 A claim for rectification of the “Side Letter” referred to in paragraph 25 of the 2nd FASC was pleaded in paragraphs 28 and 29. This was rejected by his Honour and was not the subject of a cross appeal.
64 Also, misleading or deceptive conduct and estoppel were pleaded in paragraphs 30 to 41 of the 2nd FASC. These matters were pleaded as follows:
30. On or about 23 December 1993, it was represented to Owston by Branir and Bakrie that the terms of the Side Letter would be construed and applied by Branir and Bakrie in a manner consistent with the terms of the Branir Shareholding Agreement and that that was the then present intention of both Branir and Bakrie (the “Side Letter Representation”).
Particulars
The representation was express and oral and was made by Charles Graham (“Graham”) on behalf of Branir and Bakrie to Dew on behalf of Owston on or about 23 December 1993.
31. The Side Letter Representation was made by Branir and Bakrie in connection with a dealing in securities, the allotment or issue of securities, and the carrying on of negotiations, the making of arrangements or the doing of acts preparatory to and related to such dealing, issue or allotment, within the meaning of s 995 of the Corporations Law.
32. The Side Letter Representation was made by Branir in trade or in commerce.
33. The Side Letter Representation was made by Branir and Bakrie with respect to a future matter within the meaning of s 765 of the Corporations Law and/or s 51A of the Trade Practices Act and/or s 41 of the Fair Trading Act.
34. Branir and Bakrie did not have reasonable grounds for the making of the Side Letter Representation.
35. Further and in the alternative, the Side Letter Representation was false when it was made in that Branir and Bakrie did not then intend that the terms of the Side Letter would be construed and applied by them in a manner consistent with the terms of the Branir Shareholding Agreement.
Particulars
The applicants say that this inference arises from:
(a) the conduct of Graham on behalf of Branir and Bakrie in:
(i) failing and refusing to provide, or procure the provision, to Owston, on or prior to 23 December 1993 or within a reasonable time thereafter, of a document fully and accurately setting out and recording the terms of Branir Shareholding Agreement;
(ii) falsely representing that shares in Branir had been issued to Owston by Branir in the letter to Anderson dated 29 July 1994 which is Exhibit WPA 42 to the affidavit of Warren Perry Anderson sworn 12 September 1997; and
(b) the conduct of Branir and Bakrie in failing and refusing to honour the Branir Shareholding Agreement after 23 December 1993 as referred to in paragraph 27 above.
36. In the premises, Branir and Bakrie have engaged in misleading or deceptive conduct in contravention of s 995 of the Corporations Law and or s 52 of the Trade Practices Act and/or s 42 of the Fair Trading Act.
37. On or about 23 December 1993, in reliance on the Side Letter Representation, Owston entered into the 1993 Sale Agreement and the Deed of Settlement.
38. By reason of the conduct of Branir and Bakrie as aforesaid, Owston has suffered and will suffer loss and damage.
Particulars
The loss and damage suffered by Owston comprises:
(a) the failure and refusal of Branir and Bakrie to issue or transfer to Owston the Shares; and
(b) the entering into by Owston of the agreements referred to in paragraph 37 above.
Estoppel
39. In the premises of paragraphs 24 and 37 Branir and Bakrie are estopped from construing or applying the terms of the Side Letter in a manner which is inconsistent with the terms of the Branir Shareholding Agreement.
40. In breach of the term of the Branir Shareholding Agreement set out in paragraph 24(vii) and contrary to the Side Letter Representation Branir was not debt free on settlement but was capitalised with a subordinated shareholder loan in the sum of $20,532,000.
41. By reason of the conduct referred to in paragraph 40 Owston has suffered loss and damage.
65 The “Branir Shareholding Agreement” was simply denied: para 24 of the defence. The 23 December 1993 letter was admitted as a fact, as was the receipt of the letter dated 23 March 1994. Paragraphs 25 and 26 were otherwise denied. All paragraphs up to 41 were denied.
66 Various positive allegations were made in the defence concerning the Share Agreement. First, paragraph 40 of the defence said that Owston was not ready willing and able to perform the said agreement. The particulars of that allegation were as follows:
(a) Owston is not ready or willing and has not offered to pay the whole or any part of the AUD 8 million plus interest calculated on a daily basis at the current Indonesian market deposit rate from time to time to Branir for the shares.
(b) Owston has not offered reasonably suitable security arrangements for any debt it may owe to Branir pursuant to the said agreement.
(c) Owston has not offered to irrevocably direct Branir to apply all dividends to be paid to Owston in respect of any shares issued to Owston in partial satisfaction of its obligation to pay the sum referred to in sub-paragraph (a) above. [Emphasis added.]
67 By way of interpolation, it is relevant to note for a ground of appeal concerning the primary judge’s refusal to allow the appellants to reopen on one matter that the appellants pleaded what is emphasised in [66] above. See also the emphasised passage in [69] below. I will return to this in due course.
68 Secondly, in paragraph 41, without descending to any particularity, the respondents said that the Court would in its discretion refuse to order specific performance of the Share Agreement.
69 The cross claim also contained allegations related to the question of shares in Branir. There, in paragraphs 14 to 16 and in the claims in paragraphs 4 to 6, it was put that the letter of 23 December 1993 in its termswas an offer, which was accepted by the letter of 23 March 1994 and, subject to the issue of the shares, a claim for $8 million plus interest (at the Indonesian market rate from time to time for such deposits) was made, for the price of the shares. These paragraphs were in the following terms:
14. Further, by a letter dated 23 December 1993 Branir offered certain shares in Branir on the terms and conditions contained therein.
Particulars
Letter of Branir signed by CT Graham and dated 23 December 1993.
15. By letter dated 23 March 1994 Owston accepted the offer made by Branir referred to in the preceding paragraph.
Particulars
Letter of Owston signed by WP Anderson and dated 23 March 1994.
16. A dispute between Branir and Owston as to whether any agreement constituted by the letters pleaded in paragraphs 14 and 15 exists and as to its meaning and effect.
And the cross-claimants claim:
…
4. A declaration that on the true construction of any agreement between the first cross-claimant and the first cross-respondent which may be constituted by the first cross-claimant’s letter of 23 December 1993 and the letter in response thereto from the first cross-respondent it is the obligation of the first cross-claimant to issue a share certificate or certificates for such number of shares as will result in the first cross-respondent becoming the holder of 40.815 per cent of the first cross claimant’s issued share capital and it is the obligation of the first cross-respondent to pay upon demand the sum of $8 million together with interest as from 23 March 1994 at the rates referred to below and that pending payment of the said sum the share certificates relating to the said 40.815 per cent of the issued capital of the first cross-claimant are to be held by the third respondent as he may direct as security for the payment to the first cross-claimant of the said sum of $8 million together with interest.
5. A declaration that the rate of interest payable by the first cross-respondent to the first cross-claimant pursuant to the agreement referred to in declaration 1 is the Indonesian market interest rate for deposits from time to time of rupiah in amounts equivalent from time to time to $AU8 million.
6. Order that upon the first cross-claimant undertaking to the Court to issue the share certificates referred to in declaration 4 above, the first cross-respondent pay to the first cross-claimant the sum of $8 million together with interest as from 23 March 1994 at the rate or rates referred to in declaration 5 above. [Emphasis added.]
70 The defence and cross claim denied the Share Agreement and put forward a different contract – one embodied in the terms of the letter of offer of 23 December 1993. The appellants’ case was that no agreement existed on 23 December 1993, and certainly not one as embodied in the Share Agreement as alleged.
71 So, in relation to the Share Agreement, the pleadings, relevantly, threw up the following issues:
a) Was there, or was there not, some agreement in or by December 1993 about issuing shares which was partly written and partly oral? The applicants said, yes and the appellants, no. Given the particulars this was a factual question likely to be determined by reference to acceptance of witnesses. The answer to it would validate or falsify the cross claim based on the two letters, since elements of the Share Agreement as alleged in the 2nd FASC were inconsistent with the contents of the letter of 23 December 1993;
b) the ready, willing and able defence: see [66] above; and
c) the unparticularised discretionary defences.
72 As I said earlier, clauses 7.3 and 12 of the Deed of 23 December 1993 were dealt with by the primary judge only in relation to the Sanctuary claim, but they appear on the pleading also to relate to the Share Agreement.
The Conduct of the Hearing
73 To a limited degree it is necessary to say something, in addition to the pleadings, as to how the hearing was conducted. The parties did not provide the Court on appeal with the whole transcript of proceedings before the primary judge. Each side provided the pages thought to be relevant and sufficient for the task on appeal. However, from the material provided and the terms of the judgment the following seems clear. First, credit was central. Many of the conversations said to underpin and embody the pleaded agreements were denied by the appellants and their witnesses. The applicants (respondents to the appeal) said that by 23 December 1993 conversations had occurred and acts had been done demonstrating an unequivocal consensus and intention to be bound, in essence, to two agreements which were not (as known to the parties) fully reflected in the inadequate documentation signed and initialled on 23 December 1993 which concerned those two matters. The appellants (respondents below) did not just deny that words spoken, or letters written, amounted to a contract (in the manner of a debate in a vendor/purchaser suit commenced by way of summons), rather the whole body of conversations and events was put in issue. The appellants’ case was that there was no agreement about either the shareholding or the Sanctuary and that conversations and events said to have occurred by the applicants did not take place. The appellants said that there was no consensus as to any agreement and no intention to be bound, save and except that there was a letter of offer of Votraint/Branir which, if accepted (and if lawful), required $8m to be paid by Owston to Votraint for 40.815% of shares in Votraint, which company had a significant debt owed to another company arising out of the funding of the purchase by Votraint of Owston’s half interest in Tipperary.
74 The primary judge resolved the credit issues. Closely related to the question of credit the primary judge also made findings about the behaviour of Mr Charles Graham, one of Mr Bakrie’s senior advisers and confidants.
75 The conflict of evidence was largely between, on the one hand, Mr Anderson and his principal adviser Mr Arthur Dew, and, on the other hand, Mr Bakrie, Mr Bakrie’s principal Indonesian adviser, Mr Nalin Rathod and Mr Bakrie’s principal Australian adviser, Mr Graham. Other witnesses were of importance, but the central conflict of events concerning the existence or not of agreements concerned the evidence of these men.
76 His Honour made a number of findings in connection with the witnesses. He found that Mr Anderson and Mr Graham had a poisonous relationship (J[44]). On the basis of this antipathy he found that Mr Graham actively tried to destroy Mr Anderson’s close personal and business relationship with Mr Bakrie. Mr Graham pursued conduct which did not necessarily accord with Mr Bakrie’s understanding or interests (J[45]). Mr Graham often did not deal in good faith with Mr Dew (J[46]). He found that Mr Rathod in relation to central evidence about conversations between him, Mr Anderson and Mr Bakrie in December 1993 in Jakarta was evasive, prevaricating and untruthful (J[79]). His Honour characterised Mr Graham’s evidence about the important events in December 1993 as untruthful (J[80]). His Honour found the cross-examination of Mr Rathod, Mr Graham and Mr Bakrie regarding the conversations of December 1993 devastating to their credibility, showing their evasiveness, vagueness and obfuscation and in Mr Graham’s case preparedness to deliberately lie (J[80]). His Honour rejected Mr Graham’s evidence virtually entirely, especially where it conflicted with that of Mr Anderson and Mr Dew (J[80]). He found that Mr Graham had lied to Mr Dew in November and December 1993 about a deed being drafted in Jakarta, the significance of which will become clear in due course, but it suffices for present purposes to note his Honour’s finding that it was part of Mr Graham’s deliberate delaying of events in order to frustrate any smooth completion (J[84]).
77 The particular importance of findings of this character will be dealt with in due course, but the above selection of findings on, and in relation to, credit makes it plain that if the appellants are to succeed in the appeal they must either attack the credit findings as improperly made (which they do not) or have the Court deal with the case on the basis of the acceptability and accuracy, generally speaking, of the evidence of Mr Anderson and Mr Dew in conjunction with any relevant findings of his Honour not attacked. That was the approach urged upon us by Mr Campbell QC who appeared, with Mr Kunç, for the appellants. However, consistently with what I have said earlier, there is still a need to demonstrate error.
78 In the light of the submissions of the appellants and the width of the attack by the appellants on the conclusions of the primary judge from the redoubt to which they had been driven by the primary judge’s findings on the witnesses, and having considered the terms of the various attacks made on the primary judge’s reasons, I have decided to approach the appeal by setting out in detail, from the judgment and from the evidence of Mr Anderson and Mr Dew, what the facts appear to me to be. This is in accordance with the approach to the appeal urged upon us by the appellants. Then, from that vantage point, I assess the primary judge’s conclusions and any conclusions contained within my review of the facts by reference to the attacks made on them in the submissions of the appellants. This approach may be seen as the adoption of an approach inconsistent with the need on the part of the appellants to demonstrate error. To a degree it may be. However, on balance I think the approach which I have adopted is one method of ascertaining whether error exists.
79 From the undertaking of this task of ascertaining the facts, not just from the reasons of his Honour but also from the evidence left relevant by his findings, and after dealing with the arguments of the appellants, it is plain to me that in large measure not only was the primary judge not shown to be in error, but also he was correct in his approach and conclusions.
The Facts
The Narrative up to 23 December 1993
80 From 1985 Owston acquired various contiguous parcels of land, being pastoral leases and freehold land which collectively became known as Tipperary. The aggregate area was approximately 10,000 square kilometres (J[1]).
81 Between 1985 and 1989 Owston spent in the order of $50m developing the property (J[2]). This development included the construction, stocking and operation of the Sanctuary (J[3] to J[6]).
82 In about March 1989 Mr Anderson spoke to a Mr Japto Soerjosoemarno (who was referred to by the parties and by the primary judge as Japto, which name I will use), an Indonesian businessman to whom Mr Anderson had been introduced by an acquaintance in connection with selling an interest in Tipperary (J[8]).
83 From this introduction there arose the idea of a jointly owned feedlot in Indonesia to take cattle from Tipperary (J[8]).
84 In mid 1989 Mr Bakrie was introduced to Mr Anderson as someone who was interested in investing in Tipperary with Japto. Mr Bakrie visited Tipperary. This was the beginning of a close business and personal relationship between Mr Anderson and Mr Bakrie.
85 During the visit in mid 1989 Mr Anderson showed Mr Bakrie the Sanctuary and had a conversation concerning the possibility of Mr Bakrie purchasing a half interest in Tipperary with Japto. While Mr Anderson was showing Mr Bakrie the Sanctuary they had the following conversation (Ichal was a term by which Mr Anderson referred to Mr Bakrie) (J[53]):
WA: If I do a deal with you Ichal, this is not part of it. The licences for the Sanctuary have been issued to me personally and it is my personal responsibility.
AB: That’s no problem Warren. We could take it off as your own. How big is the area?
WA: Over time I will need at least 20,000 acres.
AB: What if I want to build a house here for myself? If you’ve got 20,000 acres can I have 20,000 acres to build a house for myself as a personal asset?
WA: Fine.
86 The primary judge made the following further findings about this conversation (J[54]):
In cross-examination Anderson stated that he and Bakrie had had this conversation as they drove away from Tipperary, inspecting the Sanctuary, along the road which leads to the main highway. Anderson recalled that as they drove, he said words to the effect: “I will have 20,000 acres this way” pointing to the left of the road. He then pointed to the right side of the road and said “You can have 20,000 acres that way.” They then came to a point in the road where there was a cattle grid and Anderson said words to the effect: “This is about as far as we will go and then we will go west as far as [necessary to] take in … 8,000 hectares or 20,000 acres”.
87 This conversation was the genesis of the Sanctuary Agreement. The primary judge explained his use of this evidence as follows (J[57]):
This evidence has very little material value in determining whether a binding agreement existed in respect of the Sanctuary some four and a half years later. It is significant, however, in three respects. Firstly, it reveals that from the very commencement of Bakrie’s involvement in Tipperary in 1989, there was an understanding between himself and Anderson that 20,000 acres would be used by each for his own purposes and that Anderson’s 20,000 acres would include and abut the Sanctuary. Secondly, it illustrates that there was, at this early stage, at least some delineation of the boundaries of the prospective 20,000 acres, to which Bakrie agreed or at least did not object. … Thirdly, the admitted part of these conversations between Bakrie and Anderson illustrated, as happened several times in this case, that the applicants’ evidence, initially treated derisorily by the respondents, ultimately turned out to be to a large extent undisputed, and in my view did much to lend credibility to the applicants’ claims.
88 In August 1989 Mr Anderson, Japto and Mr Bakrie executed a document entitled “Co-operation Agreement”. It is to be noted that clause 1 of the document was a provision expressly stating that no legal relationship arose until execution of further formal legal documentation. No other document relevant to the case contained such a clause.
89 On 16 September 1989 a “Co-Ownership Agreement” and a “Venture Agreement” were executed by Tovehead and Owston. The Co-Ownership Agreement contained a clause the final form of which had been the subject of some consideration and discussion. This clause, clause 4, was entitled “Licence Agreement”. It dealt with the use of the Sanctuary in a manner which foreshadowed the Sanctuary Agreement. It provided as follows:
4.1 Owston shall be entitled to use such part of the property as it selects, not exceeding 20,000 acres for its own purposes, including construction of a private residence and zoo.
4.2 Tovehead shall be entitled to use such other part of the property as it selects, not exceeding 20,000 acres for its own purposes, including construction of a private residence.
4.3 Neither party can use any of the currently developed land or commercial plantation.
4.4. Neither party can carry out any other business other than the business carried out for the joint benefit of both the parties.
4.5 The allocated land shall not be utilised for any other commercial use other than personal residence and recreation including zoo.
90 November 1989 saw the drafting and execution of the following further legal documents:
a) a sale and purchase agreement between Owston as vendor and Tovehead as purchaser under which Tovehead bought a 50% interest in Tipperary for US $80m;
b) a further “Co-ownership Agreement” between Tovehead and Owston which contained what was described as a “Licence Agreement” in substantially the same terms clause 4.1 to 4.5 referred to in [89] above;
c) a Venture Agreement (Australian Operations) between Owston and Tovehead setting up the joint venture;
d) a Feedlot Joint Venture Agreement between P.T. Bakrie Nusantara Corp, Japto and Owston. Under this agreement the company to be formed to run the feedlot (which was referred to and to which I will refer either as PTT or Tippindo) was expressed to be owned 36% and 15% by the Indonesian interests of Mr Bakrie and Japto, respectively and 49% by Owston;
e) a Feedlot Joint Venture Subsidiary Agreement between the same parties which provided that the Bakrie entity had agreed to hold 1% for the benefit of Owston and to deal with it only at the direction of Owston;
f) a Loan Agreement between a Bakrie company to which I will refer as Cross Hatch and Owston, whereby Owston lent US$24m to Cross Hatch, the parent of Tovehead, to lend to Tovehead so that Tovehead could complete the purchase of the 50% interest in Tipperary;
g) an Acknowledgment of the Loan Advance between Cross Hatch and Owson by which the loan sum was varied to US$23,450,000.00;
h) an Acknowledgment of Loan Advance and Guarantee between Cross Hatch, Owston and Tovehead;
i) a Loan Repayment Agreement between Tovehead and Owston providing for all cash generated (as defined) from the joint venture activities to be paid to Tovehead’s lender;
j) a Statement of Joint Understanding between Tovehead and Owston which also dealt with the question of the disposal of cash generated by the joint venture activities.
91 Meanwhile on 14 November 1989 Blake Dawson Waldron (BDW) was retained by the Bakrie interests. The primary judge said the following (J[61] and J[62]):
[61] On about 14 November 1989, BDW was retained to advise the Bakrie group of companies on the proposed purchase of the half interest in Tipperary. AdrianAhern, a solicitor with BDW, reviewed the proposed documentation and drafted a detailed critique. As part of that critique, he commented on clause 4 of the Co-Ownership Agreement and pointed out the following possible breaches of the Crown Lands legislation:
(a) that the clause relating to the zoo might constitute a sub-lease made without ministerial consent; and
(b) that a change of land use from pastoral activities or grazing to that of a zoo might be a change for which there had been no ministerial consent.
[62] Under Northern Territory legislation ministerial consent was then and is still needed for changes to pastoral leases. Ahern therefore suggested that the clause be removed and placed in a separate document. This and other evidence supports the conclusion that the parties’ representatives agreed on the clause being removed on or about 16 January 1990 while Somerville was apparently on holidays and the matter was being dealt with by another solicitor in his office. Somerville’s evidence that the clause had been removed at the suggestion of BBD [Bank Bumi Daya] or its solicitors, Baker & Mackenzie, does not appear to be correct.
92 In February 1990 another body of documents was executed dealing with the purchase by Tovehead of the interest in Tipperary as follows:
(a) another “Co-Ownership Deed” between Tovehead and Owston which had the “licence” in cl 4 removed;
(b) the JSU between Tovehead and Owston containing what was cl 4 in the November “Co-Ownership Agreement”;
(c) a Put Option Variation Agreement between Tovehead and Owston varying the terms of the put option;
(d) a Loan Agreement between Cross Hatch and Owston rescinding and replacing the Loan Agreement of November 1989;
(e) a Loan Repayment Agreement between Tovehead and Owston which replaced the November 1989 Loan Repayment Agreement;
(f) two letters of undertaking by Owston and Tovehead and Owston to Tovehead’s lender, Bank Bumi Daya of Indonesia (to which I will refer as BBD);
(g) a $1,750,000 Loan Agreement between Mr Bakrie, Tovehead and Owston dealing with a settlement shortfall of $1.75m, to be paid within 6 months. This agreement had the following clause handwritten:
5. Amendment to Bank Documents
5.1 Bakrie shall use his best endeavours to cause Bank Bumi Daya (“the bank”) to agree in writing to the following:-
5.1.1 to limit its rights under the undertaking from Owston to the bank, to receive half of the interest under the loan referred to in the undertaking and
5.1.2 to exercise any of its rights under the option contained in the co-ownership agreement between Tovehead and Owston dated January 1990, only after 15th May 1997,
5.2 If the bank shall not agree in writing to the matters referred to in 5.1 Bakrie shall indemnify Owston in respect of any monies payable by Owston which would not have then been payable if the bank had so agreed …
The rights of the lender (BBD) against Owston were those contained in letters of undertaking executed by Tovehead and Owston collateral to the loan agreement between Tovehead and BBD for US$70,350,000.00 referred to in (f) above; and
(h) a deed between Tovehead, Owston and Mr and Mrs Anderson, warranting matters arising from Owston being a trustee.
93 The primary judge dealt with the creation of the JSU as follows (J[63]):
There was copious evidence on the production of this document, adduced primarily by the respondents, who sought at length to establish that the removal of the licence clause from the Co-ownership Agreement and its embodiment in a separate document framed as set out in the JSUconstituted a “demotion” in its legal stature. The respondents devoted much of their written submissions relating to the Sanctuary to establishing the precise nature of this document and the rights it conferred on Owston. They said that it was merely an exchange of negative covenants between two co-owners, which established that each party would not interfere with the other’s use of certain parts of the land. It was not, on their argument, an agreement for a lease or even a licence, as a licence would have been unnecessary and a legal absurdity as between two co-owners of the land said to be subject to it. In some contradistinction with their cross claim, the respondents also contended that in any event the JSU necessarily came to an end when Tovehead and Owston ceased to be co-owners in 1993, and Owston’s interest devolved to Branir which was not bound by it. Having regard to the applicants’ argument that it was agreed in late 1993 that the terms of the JSU would govern the parties’ relationship with respect to the Sanctuary pending a formal lease document, it will be seen that whichever of the competing arguments were accepted, the precise legal nature of the JSU at the time of its execution is not a question that needs to be determined, although it is valuable in identifying the intent of the parties.
94 The primary judge dealt with events after the February 1990 settlement and up to 1992 as follows (J[16], J[17] and J[18]):
[16] After settlement, Tipperary continued to be operated by Owston for the benefit of the joint venture and the station manager, Frank Gardner, reported to Anderson. The development of the feedlot in Indonesia began in, and was completed by the end of, 1991 but for some reason it was not until the end of 1992 that Tovehead took over the running of the Tipperary properties. Owston continued to operate the Sanctuary under the day to day management of Kevin Langham who had been appointed by Anderson in late 1989.
[17] During 1990 Anderson acquired the pastoral leases for a group of properties about 450 kilometres south east of Tipperary through a company called Moonhill Pty Limited (Moonhill). Although Anderson was the sole shareholder of Moonhill, the properties were acquired for the joint venture through loans of $7.5 million each by Owston and Tovehead to Moonhill of the working capital of $US15 million provided, whereby Tovehead acquired at least a beneficial interest in the properties which was, or the parties seem to have treated as, a 50% interest.
[18] In 1992 Owston entered an agreement with Cross Hatch, Tovehead and Nusantara to forgive the loan of $US24 million from Owston to Cross Hatch which formed part of Tovehead’s financing for the purchase of 50% of Tipperary. The consideration for this agreement was to be the payment to Owston through Tippindo of $US3 million in 12 monthly instalments of $US250,000 although it appears that the $US3 million was never fully paid. I shall return to this quite extraordinary arrangement later.
95 The forgiveness in 1992 of a large part of the USD24m was in a document styled an agreement, not a deed. This fact became important in 1993 when the receiver to Owston appointed by BNY indicated an intention to pursue this loan (that is pursue Cross Hatch a company owned by Bakrie interests as to 70%) on the basis that its release lacked consideration.
96 From early 1993 Mr Anderson was in dispute with the BNY in respect of a claimed sum of about USD40m. The primary judge dealt with this and related matters as follows (J[19], J[20] and J[21]):
[19] In early 1993 Anderson became involved in a dispute with the Bank of New York (BNY) which was seeking payment of $US40 million pursuant to a guarantee given by Owston, Anderson and his wife for a loan arising out of a different commercial venture altogether. Through its Australian subsidiary Bank of New York Australia Ltd (BNYA), BNY was threatening to enforce its mortgages and charges over various assets owned by Anderson and Owston, including Owston’s remaining 50% share of Tipperary and its share in Tippindo. Such a happening would have spelt financial disaster for Anderson and a potentially significant loss to Bakrie. This possibility led to Bakrie becoming involved in the discussions with BNY, in consequence of which the Anderson and Bakrie interests had discussions with a view to Owston obtaining funding from or with the help of Bakrie to resolve its dispute with BNY.
[20] By around September 1993 the negotiations had culminated in a proposed transaction under which the Bakrie interests, through the intermediation of Macquarie Bank, were to acquire Owston’s half interest in Tipperary and its shareholding in Tippindo for $A20 million (the Macquarie Bank deal). The mechanics of the Macquarie Bank deal involved the joint venture assets, Tipperary and the feedlot, being transferred to Tippindo in which a Bakrie nominee company would acquire a 49% interest. Owston was to retain an effective 20% interest in these assets through an issue of 40.815% of the shares in the Bakrie nominee company. The intended result of that proposal is summarised in the schematic labelled “September 1993 Deal” in Exhibit A11, appended to this judgment (3).
[21] These negotiations were being conducted for the Anderson interests principally by Anderson himself and an adviser, Arthur Dew, who was a non-practising barrister. The Bakrie interests were represented by Bakrie himself, Nalin Rathod, an Indonesian national based in Jakarta who was the Chief Financial Officer for Bakrie’s group of companies, and Charles Graham, an Australian company manager who had worked for Bakrie on a project in Indonesia in the late 1980s and whom Bakrie engaged to manage his Australian business dealings and operations from the time of the 1990 deal. Blake Dawson Waldron (BDW), a firm of solicitors, was also engaged by Bakrie to represent his interests and acted from approximately 14 November 1989 through to the present litigation. At the relevant time in 1993, Chris Greiner, a partner, and Justin Richmond, a junior solicitor, had carriage of the matter in BDW.
97 Mr Anderson’s evidence was that during the early part of 1993, and until a point in the negotiation of the Macquarie deal referred to by the primary judge in J[20] quoted above, he thought that Mr Bakrie was to provide him with a commercial loan, initially of $40m and later of $20m. It began to become apparent to Mr Dew in negotiations in about September 1993, in particular in connection with the drafting of the documentation, that the Bakrie interests intended there to be a sale of the property owned by the Anderson interests. On or about 5 September 1993, Mr Dew drafted a deed attempting to embody the arrangement as he saw it.
98 After Mr Bakrie’s lawyers had examined this draft, Mr Graham spoke to Mr Dew and Mr Dew spoke to Mr Anderson. The primary judge summed the matter up as follows (J[186]):
Dew forwarded his draft deed to Graham who submitted it to Greiner. On 6 September 1993 Greiner sent Dew his comments on the draft deed. The crucial observation by Greiner was that the transaction would not only involve a transfer of Owston’s interest in Tipperary to Tippindo but also a transfer of Owston’s interest in Tippindo to a Bakrie nominee company, thus depriving Owston of any interest in the joint venture assets. In a fax to Anderson, Dew passed on Greiner’s comments with the additional comment from Graham that “any deal for Warren to come back into it is a private deal between Ichal [Bakrie] and Warren”. Anderson claimed that it was only at this point that he realised that what was proposed was in fact a sale rather than a loan from Bakrie. Anderson stated in his affidavit that:
“That’s not right Arthur you know that.”
To which Dew replied:
“Well that’s what the draft agreement says. I will go back to Charlie and Greiner and try and straighten it out.”
99 With this occurrence of an apparently important change in the proposed structure (at least as seen by Mr Anderson) in early September, Mr Anderson travelled to Jakarta to see Mr Bakrie and Mr Rathod. Mr Anderson’s evidence was that he had been informed by Mr Dew that the Bakrie interests would purchase Owston’s interest in Tipperary and in the feedlot for $20m with him being given a 40% shareholding in the Bakrie nominee company which would acquire those interests, for $8m, to be paid for out of dividends of the company issuing the shares.
100 At this point it is appropriate to refer to findings made by the primary judge about the roles of Mr Anderson and Mr Bakrie and their relationship. His Honour said (at J[34]):
On the other hand, Anderson and Bakrie were indisputably the principal figures on the respective sides of this litigation. Anderson made all relevant decisions on behalf of his interests, whether they be for Owston or for a member of his family. Bakrie was similarly in control of his affairs. Although each delegated responsibility to advisers to deal with minutiae, it was clear that the central agreements were made between Anderson and Bakrie and that they expected and believed that the results of their negotiations would be implemented and be binding upon their interests. Judging from the evidence and the formal documents which passed between the parties, I believe that there was also an understanding between Anderson and Bakrie as to the moral obligations each owed to the other which transcended their formal business arrangements. These arrangements included the repayment of a debt to BBD where, unbeknowns to the bank, an agreement existed that part of the income stream from the joint venture (which on the face of the agreements was to be entirely directed to BBD) was to be diverted to Owston. The agreements set out in the Sanctuary and Share letters also fall into this category.
101 Three matters should be noted about this paragraph. First, the finding in the second sentence was the subject of direct challenge by the appellants. I will deal with this later. Secondly, the appellants seek to gain comfort from the use of the phrase “moral obligations” in connection with the Sanctuary letter and the Share letter. However, in the context of the balance of his reasons, the primary judge was plainly not making a finding that the Sanctuary and Share letters were binding in moral obligation only. Thirdly, on the assumption of the lack of success in the attack on the second sentence, the paragraph reveals the clear ability and intention of these two men, Mr Anderson and Mr Bakrie to resolve all commercial essentials by direct dealing. That is what they sought to do, and apparently did, in September and again in December 1993.
102 Mr Anderson’s evidence was that he travelled to Jakarta in September and saw Mr Rathod, Mr Bakrie being unavailable. (Though, it should be noted that Mr Dew’s evidence was that Mr Anderson spoke to him at the time and said that he had spoken to Mr Bakrie.) Mr Anderson said that he complained about the change from a loan to a purchase. The evidence of Mr Anderson and Mr Dew was that while Mr Anderson was in Jakarta they spoke and the following was said:
(about the change from a loan to a purchase):
Anderson:“I have spoken to Bakrie and he said he needs to show it as a purchase because he is unable to borrow the $20 million unless the Bakrie companies buy Tipperary or, at least, it appears that they buy it. Bakrie’s told me he morally still regards the transaction as a loan but because its got to be written up as a sale, he’s agreed that we can write it up that I’ll have a percentage of the new company and we can agree on the percentage later.”
(about the shareholding arrangement)
Anderson:“Regarding the issue of the percentage shareholding, it’s going to be 40%. Morally, they still regard it as a loan but for legal documentation purposes, I can buy-back 20% of the station or 40% of the new company for the same price as Bakrie paid for it on paper. Bakrie will fund me and I will pay him back from dividends of the company or from other sources if I wish.”
(about the Sanctuary)
Anderson:“I have spoken to Bakrie and Rathod. They agree that I will have the rights to exclusive use of the Sanctuary and we have agreed to extend the area. The term will be the same as the perpetual leases and I will have complete rights of access. It will be a purely nominal rent. Ichal’s rights for his house block are to continue and be the same. Can you get the agreement done with Charlie?”
Dew: “I will speak to Graham.”
103 Mr Dew then immediately spoke with Mr Graham a number of times about both the arrangements including the shareholding and the Sanctuary. The following was said:
Dew: “Warren is in Jakarta and has seen Nalin. He has phoned me and tells me they have agreed that Warren will have 20% of the Station or 40% of the new company and that Bakrie will lend him the money for this now and it is to be paid back out of dividends or earlier if Warren wants to.”
Graham: “I will check and let you know.”
104 Mr Graham reverted to Mr Dew and said:
Graham: “I understand from Nalin Rathod that the agreement you refer to has been reached. You should discuss this with Chris Greiner and work out a way of implementing the arrangement.”
Dew: “I will do that.”
105 Mr Graham and Mr Dew had conversations about the Sanctuary also at this time as follows:
Dew: “I understand that, as the deal is to be structured as a purchase and not a loan, Warren has spoken to Bakrie about the Sanctuary. I understand that Warren has agreed with Bakrie that the current arrangements are to stay in place and he will have a continuing license to operate the Sanctuary. Warren tells me he is to have the exclusive use of the Sanctuary and Bakrie is to have his house block. The period will be the same as the perpetual leases and there will need to be provision for continuing rights of access. Warren will pay all costs for operating the sanctuary and the surrounding land. Can you speak to Bakrie because we need to get an agreement documented.”
Graham: “I will speak to Bakrie”
….
Graham: “I have spoken to Bakrie and he agrees that Warren can continue to operate the sanctuary.”
Dew: “Can you get a draft agreement done?”
Graham:“I will speak to Greiner.”
106 This last conversation of Mr Dew and Mr Graham, though denied by Mr Graham, was corroborated by Mr Langham (a station manager) who said Mr Graham had said to him in late 1993:
“There is an agreement between Anderson and Bakrie that Anderson can build on one side of the road on 20,000 acres and that Bakrie has the same amount of land on the other side of the road. That arrangement is to continue.”
107 Mr Dew then spoke to the partner at BDW handling the matter, Mr Greiner and possibly his more junior assistant, Mr Richmond. The conversations were as follows:
Dew: “I have spoken with Anderson and Graham. Anderson advises me that he has agreed with Bakrie to the purchase arrangement provided that Anderson will have the right to buy back 20% of the station or 40% of the new company for $8 million which Bakrie will lend him and that it can be paid back out of dividends or earlier if Warren wishes.”
Greiner/Richmond: “I will get instructions.”
…
Graham/Greiner/Richmond
“It will not be feasible for Anderson to have an interest in 20% of the property but we can agree to him having 40% of the new company which will hold the 50% interest in the station which is the same thing. Bakrie will lend the $8 million to him for his 40% and it can be paid back out of dividends or earlier if he wishes.”
108 On 11 September 1993, in Jakarta, Mr Rathod handed a signed handwritten document to Mr Anderson. It summarised the sale and shareholding arrangements. It was in the following form:
1. Owston to transfer its 50% holding in Tipperary Station to PT Tipperary Indonesia.
2. Tovehead to transfer its 50% holding in Tipperary Station to PT Tipperary Indonesia.
3. Owston to transfer its share holding of 49% in PT Tipperary Indonesia to a nominated Bakrie company for A$20 million.
4. Bakrie will give 40.815% in the nominated Bakrie company to WPA which will own 49% of PT Tipperary Indonesia. This will effectively give WPA 20% share holding in PT Tipperary Indonesia. For this WPA will pay A$8 million to Bakrie. The A$8 million is to be paid from Dividends of PT Tipperary Indonesia.
Dear Warren
Above is the structure approved by Mr Aburizal Bakrie
Rathod
11/9/93
109 As can be seen, this note contemplated 100% of Tipperary being transferred to Tippindo (Owston’s half share and Tovehead’s half share) and Owston’s 49% ownership of Tippindo would be transferred to another company of which “WPA” would be granted a 40.815% interest. The “effective 20% shareholding in [Tippindo]” would give “WPA” a 20% economic interest in the feedlot and Tipperary itself.
110 The transfer of the two half interests in Tipperary had obvious stamp duty consequences. After Mr Dew received the Rathod note from Mr Anderson he spoke to Mr Greiner and had the following conversation:
Dew: “We had better check to see if Bakrie is going to make the transfer of Tovehead’s half share to Tippindo as this will affect the arrangements.”
Greiner: “We cannot proceed that way because it will cost too much stamp duty. Also, FIRB [Foreign Investment Review Board] approval may not be possible and there is also the question of the Northern Territory Government consent. It’s all too hard. We’ll leave the Tovehead half of Tipperary in Tovehead and use another Australian company to buy the Owston share.”
Dew: “That’s fine. But if you leave it in Tovehead, you will need to advise Bakrie and get his approval.”
111 By about 15 September a deed which had been bound by BDW was executed by various parties which contained, as clauses 1 to 4, the following (noting that “Bakrie” referred to an entity of Mr Bakrie, and Mr Bakrie was defined as “ARB”):
1. Subject to and in accordance with the Macquarie Agreement Bakrie will pay to Macquarie A$20M in order to settle the Macquarie Bakrie Transaction.
2. The payment by Bakrie pursuant to clause 1 of this Deed shall be accepted by Owston, the directors, the Shareholders and the Beneficiaries as the total consideration for the transfer of Tipperary and the Stock and Plant to PTT and each of the directors, Shareholders and the Beneficiaries confirms and acknowledges to PTT and Bakrie respectively that each of them consents to such transfer and that Owston will at the time of such transfer be fully authorised and entitled to effect such transfer.
3. Immediately upon the later of settlement of the Macquarie Bakrie Transaction and the withdrawal of the Receiver by BNYA from the assets of Owston each of the Directors, the shareholders and the Beneficiaries covenant that they will subject to PTT obtaining all necessary consents and authorities, cause Owston to, and Owston agrees that it will, subject to such consents and authorities, transfer to PTT all of Owston’s interest in Tipperary and the Stock and Plant in consideration of the payment by Bakrie to Macquarie pursuant to clause 1 of this Deed.
4. (a) Immediately upon the later of settlement of the Macquarie Bakrie Transaction and the withdrawal of the Receiver by BNYA from the assets of Owston each of the Directors, the Shareholders and the Beneficiaries covenant that they will cause Owston to, and Owston agrees that it will, transfer the PTT Shares to a company nominated by Bakrie (the “Nominee Company”) and each of the Directors, Shareholders and the Beneficiaries confirms and acknowledges to Bakrie that each of them consents to such transfer and that Owston will at the time of such transfer be fully authorised and entitled to effect such transfer.
(b) ARB agrees with Warren Perry Anderson (“Anderson”) that he will procure that the Nominee Company issues to Anderson or as Anderson may direct forty point eight one five per centum (40.815%) of its issued share capital (the Anderson Shares”).
(c) In consideration of the agreement by ARB mentioned in paragraph (b) of this clause 4, Anderson agrees with ARB that:
(i) Anderson will pay to ARB the sum of A$8m together with interest on that amount from the date of issue of the Anderson Shares until payment, calculated on a daily basis at the current Indonesian market deposit rate from time to time (together called the “Issue Price”) by applying the dividends paid in respect of the Anderson Shares for that purpose and Anderson shall not be obliged to pay the Issue Price other than by so applying such dividends;
(ii) Anderson will procure that the holder of the Anderson Shares will:
(A) irrevocably direct the Nominee Company to pay all dividends to be paid in respect of the Anderson Shares directly to ARB or as he may direct in writing in partial satisfaction of the obligation to pay the Issue Price until such time as the whole of the Issue Price has been paid; and
(B) deposit the share certificates in respect of the Anderson Shares with ARB as security for the payment of the whole of the Issue Price so that ARB shall not be obliged to release any of such share certificates until such time as the whole of the Issue Price has been paid.
112 As can be seen from clause 4, BDW was able promptly to draft provisions dealing with the then consensus regarding the share issue.
113 By some time in October the 1993 Macquarie deal had fallen over.
114 Before moving on, it is important to appreciate what, to this point, had been agreed between the parties, but not settled by exchange of formal documentation. First, though not incorporated into any of the Macquarie documentation, Mr Bakrie and Mr Anderson had agreed upon the exclusive use of the land on which the Sanctuary operated and a surrounding area totalling 20,000 acres in early conversations and documentation in 1989, in the February 1990 JSU and in conversations in September 1993 between Mr Anderson and Mr Rathod and/or Mr Bakrie, Mr Dew and Mr Graham. The discussions and consensus in September 1993 though expressed in terms of “Anderson” or “I” (see [102] to [110] above) dealt with exclusivity of possession, the term to be perpetual, nominal rent and access.
115 The lack of incorporation of the Sanctuary matter into the Macquarie documentation was partly explained by Mr Dew who said that from September to December 1993 he had various discussions with Greiner about the Sanctuary as follows:
Dew: “We want to get an agreement regarding the continuing operation of the sanctuary by Anderson setting out all the details. I have discussed with Graham. Can you prepare it?
Greiner: “I know Bakrie has some agreement with Anderson about the sanctuary but I have not got the time to chase up instructions. You go and talk to Graham and when he gives me instructions, I’ll draft something.”…
116 It should be noted that in the structure of proposed ownership of the various assets Tippindo was to be the transferee of Owston’s share in Tipperary, but after appreciation of the stamp duty consequences not Tovehead’s share. This being the case, for Anderson to obtain a 20% economic interest in Tipperary, Tippindo had to acquire the other half of Tipperary in some fashion other than a transfer of Tovehead’s half share in the land. Rather than Tovehead transfer the land (at ad valorem stamp duty rates), by clause 15 of the Macquarie deed, which was signed by the various parties (see [111] above), another Bakrie company called Timeswitch would cause to be transferred to Tippindo all of its shares in Cross Hatch, which wholly owned Tovehead, which owned the other half of Tipperary. However, it was wrongly assumed that Timeswitch had 100% of Cross Hatch. In fact, Japto at this point owned 30% of Cross Hatch and Timeswitch only had 70%. When this was realised by 15 September 1993, alterations were proposed to clause 15 so as to provide for Timeswitch to endeavour to procure the transfer of the balance of the shares in Cross Hatch to Tippindo.
117 As part of this contemplated deed certain elements of the legal arrangement intended to give the 20% economic interest to Mr Anderson’s interests were clear (see clause 4(b) and (c) in [111] above):
a) Mr Bakrie agreed to procure the nominee company (holding 49% of Tippindo which owned the feedlot and, by Owston’s half interest transferred to it and by its intended taking up of 100% ownership of Cross Hatch and so, indirectly, ownership of Tovehead, the whole of Tipperary) to issue 40.815 of its shares to Mr Anderson or his nominee.
b) In consideration of that promise by Mr Bakrie, Mr Anderson promised:
i) to pay Mr Bakrie $8m (with interest at the Indonesian deposit market rate) repayable only out of dividends on those shares;
ii) to procure the holder of the shares to so direct the dividends; and
iii) to deposit the share scrip with Mr Bakrie until the repayment of the $8 m plus interest.
118 These elements are conformable with the Share Agreement as pleaded in sub-paras 24(i), (ii), (iii), (iv) and (v) of the 2nd FASC ([60] above). The only matter of substance pleaded in para 24 not dealt with by the September Macquarie deed was the debt free status of the nominee company and the precise identity of Mr Anderson’s nominee, Owston.
119 The parties, with the assistance of their advisers, had had no difficulty in reducing into an acceptable and formal document the elements of the shareholding arrangement agreed to at that point by Mr Anderson, Mr Rathod and Mr Bakrie and as modified by Mr Greiner and Mr Dew: that is, to give Mr Anderson or his nominee a 20% economic interest in Tipperary and the feedlot for $8m to be lent by, and repaid to, Mr Bakrie, repaid out of dividend stream only.
120 Before leaving the Macquarie deal one matter said to be of significance by the appellants should be noted. The documentation had provision for the beneficiaries of the trust of which Owston was trustee to be parties. The Macquarie deed also had provision for warranties that, inter alios, the beneficiaries had received independent legal advice about entry. Mr Dew explained in his evidence that this was because there were court actions on foot brought by the beneficiaries. The appellants prayed this in aid of the proposition that Mr Anderson did not speak for Owston (a matter contrary to a finding of the primary judge which was challenged, see [101] above and [307] below) and that one could conclude that there was no consensus or intention to be bound concerning these necessary parties just because Mr Anderson said or did something. These matters are discussed more fully below, but it suffices to say here that one can easily understand such law suits having been taken in order to stifle or affect BNY and its interests. I do not think they necessarily disclose or display an inability or unwillingness of Mr Anderson to speak for Owston.
121 After the Macquarie deal fell over, the parties continued working in order to put together a deal to see BNY paid out. The primary judge dealt with these steps into early November 1993 as follows (J[193] and [194]):
[193]On 22 October 1993 BDW produced a further draft of the deed, modified to reflect the fact that Macquarie Bank was no longer involved. This deed did not contain the term that had previously been clause 4, relating to the issue to Anderson of shares in the Bakrie nominee company. The applicants submitted that the reason for the removal of clause 4 related to an understanding of Graham’s that Anderson would accept the Moonhill properties free of Tovehead’s interest in lieu of any holding in the nominee company which was to hold the joint venture assets. This result was apparently never Anderson’s intention. Nevertheless, clause 4 was removed from the draft deed and was not reinserted in any subsequent draft.
[194]A further change in the structure of the deal occurred at about this time. The drafts of the deed now being prepared by BDW provided for the transfer of all Owston’s interests in the joint venture assets to a nominee company which would hold the Owston interests directly, rather than the transfer of the Owston interests to Tippindo and the transfer of Owston’s interest in Tippindo to a nominee company. It was also proposed that any interest that Anderson was to be granted in the nominee company should be dealt with in a separate agreement. A further draft deed was prepared by BDW on 4 November 1993.
122 It is necessary to take up events again in early November which develop and explain what the primary judge found in those paragraphs.
123 In early November 1993, Mr Dew and Mr Graham spoke about the change to the mechanism or structure concerning the interposed nominee company. They had the following conversation:
Graham: “I have spoken to Bakrie and he has told me what he wants from Anderson. Owston is to transfer all its interests in Tipperary, Moonhill and the Coconut Farm properties and Owston’s half share in Tippindo to a new nominee company. The Moonhill debt to Owston is to be released. Bakrie will lend Owston the $8 million for 40% of the shares in the nominee company. Bakrie will hold the shares as security until the debt is paid.”
Dew: “The nominee company will need to be clean and have no debts.”
Graham “It will have its share of Tippindo’s debt.”
Dew: “This is OK. Can you send me a fax on it.”
124 There could be no doubt from this conversation that Owston (by this time the identity of Mr Anderson’s nominee being clear) was to be issued with 40% of the shares in the nominee company the price for which, $8m, was to be lent by Mr Bakrie to Owston and repaid to Mr Bakrie and that the shares were to be held by Mr Bakrie as security. Also, importantly, the company was to be debt free, though “with its share of Tippindo’s debt”.
125 This last phrase was understood by the parties in a way described by Mr Graham in his evidence. The nominee company was to have 49% of the capital of Tippindo. Tippindo had a large debt to BBD (as did Tovehead). Mr Graham explained that this phrase was not intended to reflect any legal obligation on the nominee company to pay Tippindo’s lenders but a “moral” or “accounting” one arising out of its proportional ownership of the debtor, Tippindo.
126 So, by early November, with Owston now clearly identified as the nominee of Mr Anderson (at least in this conversation), all elements of the Share Agreement pleaded in para 24 of the 2nd FASC (that is including the debt free status and the identity of the party, Owston) appear to have been agreed on or, at least, addressed by the parties and their commercial advisers.
127 At about this time, on about 12 November 1993 Mr Dew spoke to Mr Graham about the Sanctuary:
Graham: “I understand Anderson might want to resign as the beneficiary of the sanctuary. If he does, Ichal would take over the position.”
Dew: “I don’t know send me a fax.”
128 As can be seen below Mr Anderson scotched this suggestion upon first hearing of it.
129 Further correspondence now occurred. This correspondence is important because Mr Campbell QC sought to identify from it a clear and fundamental change in the negotiations. This was an important plank in the appellants’ submissions that the ebb and flow of negotiations, which, it was said, could be seen in the months and weeks leading up to 23 December, had not ceased on 23 December.
130 While the phrase “its share of Tippindo’s debt” was understood to have the meaning referred to above, at about this time (in early to mid November) Mr Bakrie did in fact attempt to move into the discussions the question of the debt of Tippindo and Tovehead to BBD. To this extent there was an element of negotiations introduced by Mr Bakrie in this regard. The primary judge said the following about this (J[195]):
On about 12 November 1993, Bakrie instructed Graham to insist on the inclusion in the agreement with Anderson that the shares in the nominee company would not be issued to Owston until the debts of Tovehead and Tippindo to BBD were repaid. These debts totalled in excess of $130 million and Graham appreciated that a deal whereby Anderson would not receive his shares until they had been repaid was not likely to be accepted; indeed Graham considered it “a pretty hopeless sort of request”.
131 The correspondence to which I have just referred ([129] above) commenced with letters sent by Mr Graham to Mr Dew on 12 November 1993. The two letters were sent on Toveheadletterhead. Their contents were as follows:
(First letter)
This is to confirm our telephone conversation of this morning.
I have been able to get hold of Aburizal Bakrie and have obtained from him the arrangements he wished to have on settlement with BNYA and Owston on payment by Bakrie to Owston of A$20 million. The following is subject to the satisfaction of the Bakrie Group to the final arrangements with BNYA.
That Owston will transfer to Votraint 788 Pty.. Ltd.. (a company wholly owned by P.T. Bakrie Investindo) all the shares of Moonhill Pty.. Ltd.. and further that any debt owned by Moonhill to Owston is released; the property known as Coconut Farm; Owston’s half share in the Tipperary Group of Stations property and all the shares owned by Owston in P.T. Tipperary Indonesia.
Aburizal Bakrie is fully aware of the promise made to Warren that Bakrie will allocate to Warren 40% of shares in a Bakrie nominated company which in turn will own 50% of P. T. Tippindo Indonesia. However such shares will be held as collateral to Bank Bumi Daya until the debt is fully paid This promise will be given effect at the conclusion of the above transfer.
The above is my understanding of my telephone conversation with Aburizal Bakrie. I am faxing a copy of this letter to him to ensure that my understanding of our conversation is correct. Further you will understand that this letter has no legal effect until we have received legal advice and the Deed between Owston and related parties with Bakrie has been concluded.
(Second letter)
Confirming my advice of this morning regarding the position of the Zoo in Tipperary.
Aburizal Bakrie in a recent telephone conversation I had with him agreed that he would be happy to take over the position as Beneficiary of the Zoo (correctly as it is known as Tipperary Sanctuary) in the event that Warren is to resign from this position. It is my understanding that Warren wishes this to happen.
There are some procedures to go through to give effect and I am seeking information on the formalities needed.
When you are able to confirm that Warren is happy with the proposed arrangement please let me know.
132 A careful reading of the first letter would reveal that Owston was transferring its real property, including its half share in Tipperary and its 49% interest in Tippindo, to a company not previously mentioned, Votraint, for $20m; and that the “Bakrie nominated company” which would own half of Tippindo would issue 40% of its shares to Anderson. If that company were not Votraint, as the letter seemed to indicate, all the 40% ownership in the “Bakrie nominated company” would give Mr Anderson would be a 20% economic interest in the feedlot, and not Tipperary, while Votraint, “a company wholly owned by P.T. Bakrie Investindo”, and, on this hypothesis, a company in which Anderson had no interest, would take all Owston’s real property interests. Such a reading would also reveal that the shares in the “Bakrie nominated company” were to be held by Mr Bakrie as collateral until all BBD debt (of Tippindo and Tovehead or, at least, Tippindo) was repaid.
133 Not only did these matters not go unnoticed by Mr Dew, but also they were discussed between Mr Anderson and Mr Dew as follows:
Anderson: “What’s this about me giving the Sanctuary to Aburizal Bakrie. That’s rubbish. As for the other letter, at least it’s better than Nalin Rathod’s letter provided the nominee company is Australian, but what does Charlie Graham mean that the shares have to be held pending the Bank Bumi Daya debt? The Bank Bumi Daya debt is Tovehead’s, not mine. You’d better clarify that with Charlie.”
…
Dew: “The letter is not clear and needs redrafting to cover the new nominee company owning Tippindo as well as the Tipperary part and stock. The way it is shown does not work as Tippindo will be in Votraint. The other two main areas of difficulty appear to be that it does not set out that the company must be debt free nor is it clear that the shares must be given to you after the $8 million is to be repaid. All these things must be made clear.”
Anderson: “That is the basis of the understanding I have with Rathod and Bakrie. Can you talk to Charlie about it?”
Dew: “Yes I will.”
134 Mr Dew then spoke with Mr Graham about the contents of these letters:
Dew: “Your fax is not very clear and appears to confuse the old idea of putting all Owston’s interests in Tippindo with the idea of the new nominee company. As you are now putting the Owston Tipperary Station assets together with Owston’s 50% of Tippindo into Votraint, Anderson will get 40% of Votraint and there will not be a nominee company just owning 50% of Tippindo. As the Tippindo shares owned by Owston go to Votraint, Tippindo will remain as it stands. Bakrie will hold Anderson’s shares in Votraint until the $8 million is paid and Tippindo’s debts will not be affected. Also Votraint must be debt free.”
Graham: “Yes, that’s right. I have not set it out correctly. Everything is to go into Votraint. I will speak to Bakrie and clarify it.”
135 Mr Graham’s contribution to this last conversation might indicate that this confusion about nominee companies was accidental. However, as will be seen, in later correspondence early in December he repeated this proposed structure. Further, it would appear that this confusion may well have been deliberately caused by him. In dealing with Mr Graham’s bad faith (to which I will come in more detail later) the primary judge said this (J[228]):
Fourthly, there was also evidence that Graham was prepared to deal in bad faith with the applicants. In his fax to Bakrie of 2 December 1993, he stated:
Although my letter to Dew specifically states that the new Nominee company will own 50% of PT Tipperary Indonesia [Tippindo], I suspect that Warren expects that the Nominee company will own 50% of Tippindo plus 50% of the Tipperary Group of cattleStations [sic].
136 In any event, in the conversation concerning the 12 November correspondence Mr Graham agreed, or did not cavil with the propositions, in relation to the share arrangement, that everything was to go into Votraint, that the 40% issue was in or from Votraint, that the 40% share scrip would be held by Mr Bakrie on deposit until the $8m (and not the indebtedness of Tippindo or Tovehead to BBD) was paid and that Votraint was to be debt free. The discussion was in terms of “Anderson” receiving the shares; but this can be set against the background of the Macquarie deed referring to “Anderson or as Anderson may direct” and of the conversation a few days earlier in November between the same men in which it was clear that Owston was to take the shares of the nominee company ([111] and [123] above).
137 Later in November, Mr Greiner sent a new draft of the intended arrangements to Mr Dew. Mr Dew could perhaps have been forgiven at this time for expecting that this document would have within it at least a reworked version of clause 4 of the Macquarie documentation (see para [111] above) redrafted in the light of the conversations of November, shorn of the confusion raised by Mr Graham in his letter of 12 November 1993 and apparently satisfactorily dealt with in conversation with him. He might also have expected something to do with the Sanctuary land, although the conversations with Greiner of the kind referred to in para [115] above may have dampened such expectations.
138 On 24 November Mr Dew spoke to Mr Greiner after receiving the new draft deed which did not contain the equivalent of clause 4 in the Macquarie deed. (Nor did it contain anything to do with the Sanctuary land.) The conversation was as follows:
Dew: “There is no provision like the old clause 4 regarding the arrangement for Anderson to get his 40%.”
Greiner: “You should speak to Graham. He is getting a separate deed done in Jakarta regarding this.”
139 We now meet the next instance of Mr Graham’s conduct designed to prevent documentation of the parties’ apparent consensus. It is plain that Mr Graham had told Mr Greiner that the provision dealing with the shareholding arrangement (clause 4 in the Macquarie deed) was now to be placed as a separate deed being drafted in Jakarta. At no stage did this occur and at no stage was it intended to occur. Mr Graham, as shall be seen below, not only told Mr Greiner this, but also Mr Dew. It was false. The primary judge found these statements to be deliberate lies by Mr Graham (J[229]). There is no suggestion anywhere in the evidence or the findings that this, or this kind of conduct, was done with the knowledge or authority of Mr Bakrie. Indeed, the primary judge approached the matter on the basis that it was without instructions (J[45]).
140 On 30 November 1993, notwithstanding their poisonous relationship, Mr Anderson had a meeting with Mr Graham at the Regent Hotel in Sydney. The conversation was deposed to by Mr Anderson in the following terms:
WA “Will the nominee company have any debt when I get my shares?”
CG “I don’t think so, but I will check with Jakarta.”
WA “You had better. The nominee company must be debt free. Also Charlie, the Sanctuary must continue as it is and have security of tenure in accordance with the original agreement.”
CG “That is right, I will also confirm this with Nalin.”
WA “Coconut Farm is not included in this deal. I have promised it to Kevin Langham as a bonus for his hard work on the Sanctuary since 1989.”
141 Thus, once again there appears little doubt between the parties about the elements of the arrangement, when they speak.
142 Meanwhile, Mr Graham pressed his personal views on Mr Bakrie and Mr Rathod that the proposed share arrangement was unwise. In a facsimile to them of 2 December 1993 he said:
Dear Ichal
I have drafted a form of the private agreement between you and Warren which can only be concluded at some time after the settlement of the Bakrie/BNYA deal.
Before sending you the document itself, I must make very clear the danger to you entering into this agreement.
If you feel obligated to honour a promise by making the gift of shares to Warren then the only safe way to do this would be have the agreement drawn up properly in Australia, to formally disclose the contents to Owston and to the Beneficiaries and to seek Court Approval.
Kind Regards
Charles
143 The facsimile contained a document entitled “Share Allocation Agreement” drafted by Mr Graham in Sydney. The terms of that agreement, which was to be between Mr Bakrie and Mr Anderson personally, were as follows:
This Agreement dated of 1994 is between Aburizal Bakrie (ARB) and Warren Perry Anderson (WPA).
WHEREAS
The Bakrie Group has entered into and has completed a transaction with Owston Nominees No2 Pty., Ltd Receiver Appointed (Owston) and BNY Australia Limited (BNYA) known as the Bakrie/BNYA transaction, whereby the Bakrie Group has purchased the whole of Owston’s interests in the Tipperary Group of Station Properties in the Northern Territory of Australia and all the shares held by Owston in P.T. Tipperary Indonesia (PTT) a company incorporated in Indonesia whose address is Level Four, Setia Budi Atrium, Jin H.R. Rasuna Said, Jakarta, Indonesia.
NOW THIS AGREEMENT WITNESSES
Clause 1.
ARB hereby agrees with WPA that upon full and final settlement of the Bakrie/BNYA transaction a Nominee company will be formed by ARB which will hold fifty percent (50%) of the shareholding in PTT. The Nominee company on formation will be free of debt.
Clause 2.
ARB agrees with WPA that upon the formation of the Nominee company that he will procure that the Nominee company issues to WPA fourty point eight one five (40.815) percent of the issued share capital (the Anderson shares).
Clause 3.
In consideration of the agreement by ARB mentioned in Clause 2., WPA agrees with ARB that:
(i) WPA will deposit the share certificates in respect to the Anderson shares with ARB until all debts owing to PTT and Tovehead Pty. Ltd., (a company incorporated in Australia) are fully satisfied.
(ii) WPA will irrevocably direct the Nominee company to pay to ARB any and all dividends payable until the issue price of A$8 million together with interest at the then applying Indonesian deposit rate and until all debts by PTT and Tovehead as mentioned in this Clause 1 (i) are satisfied.
(iii) WPA will receive similar considerations as other shareholders in business operations of the Nominee company.
(iv) WPA agrees that prior to this agreement having any effect that all obligations WPA or Owston may have with Kevin Langham and any other employee(s) in companies or operations associated with the Bakrie/BNYA transaction have been fully satisfied. Any stamp duty or charges of any nature arising from the satisfaction of these obligations are to thaccount [sic] of WPA.
144 As can be seen from its terms, this draft agreement once again possibly only gave Mr Anderson a 20% economic interest in the feedlot by the newly formed nominee company which was to own 50% of Tippindo. It is not clear from the document how that 40.815% interest in the nominee would link up with ownership of Tipperary. Also, the deposit of the shares with Bakrie and the direction of dividends to him was once again until all debts owed by Tippindo and Tovehead to BBD were repaid. But the nominee company was to be debt free on formation and the shares were to be issued immediately upon settlement with BNY. Also, once again, the Indonesian deposit rate is used.
145 The primary judge found that this draft was faxed by Mr Graham to Mr Dew (J[197]). This may not be accurate as the next communication in writing from Mr Graham to Mr Dew appears to be Mr Graham’s letter of 3 December.
146 By about 3 December Mr Dew also seems to have received another draft deed from Mr Greiner, which had no equivalent to clause 4 of the Macquarie deed. Mr Dew spoke to Mr Greiner again about this, who told him that Mr Graham was handling this with Jakarta and to speak to him.
147 Mr Dew then spoke to Graham and had the following conversation:
Dew: “I have received a draft deed from Blakes but it does not include the old clause 4 provision for Anderson to get his 40%. Greiner tells me you are getting a separate deed done in Jakarta regarding this aspect. Is this the case?”
Graham: “We prefer not to include the arrangements regarding Warren’s right to take up 40% in the overall deed and would like to have a separate agreement regarding that.”
Dew: “Why do you want to proceed in this way.”
Graham: “We think that as it is really an agreement between Mr Bakrie and Mr Anderson we would prefer that it be drawn up in Jakarta.”
Dew: “The arrangements should be the same as set out in the previous agreements and Nalin’s memo to Warren. The details as set out in your fax of 12 November do not agree with those earlier arrangements.”
Graham: “I will send you a fax on it today.”
148 Thereafter, Mr Graham sent a letter by facsimile to Mr Dew dated 3 December 1993. This letter was largely a recapitulation of the letter of 12 November 1993 (see [131] above) with the same confusion (deliberate or accidental) of the nominee companies. It was in the following form:
This is to confirm our telephone conversation of this morning.
I have been able to get hold of Aburizal Bakrie and have obtained from him the arrangements he wished to have on settlement with BNYA and Owston on payment by Bakrie to Owston of A$20 million. The following is subject to the satisfaction of the Bakrie Group to the final arrangements with BNYA.
That Owston will transfer to Votraint 788 Pty.. Ltd.. (a company wholly owned by P. T. Bakrie Investindo) all the shares of Moonhill Pty. Ltd., and further that any debt owned by Moonhill to Owston is released; the property known as Coconut Farm; Owston’s half share in the Tipperary Group of Stations property and all the shares owned by Owston in P.T.Tipperary Indonesia.
Aburizal Bakrie is fully aware of the promise made to Warren that Bakrie will allocate to Warren 40% of shares in a Bakrie nominated company which in turn will own 50% of P.T.Tippindo Indonesia. However such shares will be held as collateral to Bank Bumi Daya until the debt is fully paid. This promise will be given effect at the conclusion of the above transfer.
The above is my understanding of my telephone conversation with Aburizal Bakrie. I am faxing a copy of this letter to him to ensure that my understanding of our conversation is correct. Further you will understand that this letter has no legal effect until we have received legal advice and the Deed between Owston and related parties with Bakrie has been concluded.
149 Mr Dew sent this letter on to Mr Anderson under cover of a handwritten note which read as follows:
Dear Warren
Here is Charles fax re the 20%. I need to go back to him with a note to clarify that the debts are not included and that the share allocation is to be paid for out of dividends. Can you confirm how you see the deal working.
Regards
Arthur
150 Mr Anderson then spoke to Mr Dew and said:
“The nominee company that is to hold my 20% of Tipperary and the feed lot is to be debt free and the $8 million I have to pay Aburizal Bakrie for my equity is to come out of dividends.”
151 It would appear from this that Mr Anderson was not reading the letter as restricting his 20% economic interest to the feedlot.
152 After Mr Dew received this facsimile from Mr Graham (and either before or after he spoke to Mr Anderson about it) he had the following conversation with Mr Graham about the first letter of 3 December which reflected that he had (again) picked up the confusion about the nominee companies:
Dew: “The provisions of your letter of 3 December, regarding the 40% do not agree with the earlier arrangements. We need to get the agreement so we can make sure that it is correct.”
Graham: “I understand that agreement is being drafted in Jakarta and will be sent down as soon as possible.”
Dew: “Can you confirm that Aburizal agrees that Warren is to repay him for the purchase of the shares out of the earnings of the nominee company. Also it is essential that the nominee company will be free of debt other than its share of the debt of PT Tipperary Indonesia.”
Graham: “As far as I know this is OK but I will check and let you know.”
Dew: “Can you send me a fax on it.”
Graham: “Yes.”
153 Thereafter, a second letter of 3 December was sent by Mr Graham to Mr Dew. This second letter of 3 December was in the following terms:
This is to confirm my letter of the 12th November and our telephone conversation of today.
It is my understanding that the proposed arrangement between Aburizal and Warren will be similar to the terms contained in my advice of the 12th. Further that the payment of shares to be allocated will be paid for out of earnings of the Nominee company to be formed.
It is further to my understanding the nominee company will itself be free of debt on the formation but that the nominee company will share the debt of P.T.Tipperary Indonesia only.
154 This letter was sent by Mr Dew to Mr Anderson. Mr Dew recalls speaking to Mr Anderson about it as follows:
Dew: “You need to clarify the situation with Bakrie. I suggest you chase up the separate deed from him as I don’t think it matters if it’s a separate deed.”
Anderson: “I will talk to Ichal.”.
155 A number of matters should be noted at this point. First, it appears that it was recognised by 3 December (and probably before that) that the shares to be issued would cost $8m. Secondly, Mr Anderson believed that the structure of the proposal was that he would get a 20% economic interest in Tipperary and in the feedlot (through a 40% interest in a company owning 50% of a company which, effectively, owned each). Thirdly, Mr Anderson required that the nominee company be debt free, and Mr Graham had understood this and said that he thought it to be so. Fourthly, Mr Anderson believed the $8m which he (or a nominee of him) had to pay for the shares would be lent by, and be repayable to, Mr Bakrie. Fifthly, Mr Anderson required, Mr Dew understood and Mr Graham and Mr Bakrie appeared to agree, that repayment of that $8m was to come out of dividends, and only out of dividends. Sixthly, it appeared understood (at least between Mr Graham, Mr Dew and Mr Anderson) that the BBD debt was not included, the erstwhile expressed requirement for the dividends on the shares to be paid to Bakrie until all BBD was repaid, evident in the first letter of 3 December, (as it had been evident in the first letter of 12 November) had, once again, been withdrawn in conversation and by the last paragraph of the second letter of 3 December. Seventhly, notwithstanding the above, a literal interpretation of the first of the letters of 12 November and 3 December could support the conclusion that Mr Anderson was only in fact getting a 20% interest in the feedlot (through a 40% interest in the nominee company to be formed which would own 50% of Tippindo which owned the feedlot), the half interest in Tipperary being transferred to Votraint which could be seen to be quite separate from the nominee company in which Mr Anderson would be issued 40% of the capital. If this were so (and leaving aside the Sanctuary arrangement) there had been a major structural change from the Macquarie deal and a major structural change from the Rathod note (in which Owston was to have a 40.815% interest in a nominee company which had 49% of Tippindo which in turn was to directly and indirectly own 100% of Tipperary and 100% of the feedlot). However, in the light of the clearest of conversations between Mr Dew and Mr Anderson and Mr Dew and Mr Graham about the errors in the letter of 12 November, any proposition that there was such a change is in the teeth of that evidence. Further, as was noted above, the confusion was probably planted deliberately in bad faith by Mr Graham (J[228] and J[230]). Eighthly, as has already been noted, the phrase in the last sentence of the second letter of 3 December “the nominee company will share the debt of PT Tipperary Indonesia only” was explained by Mr Graham in his evidence as not a legal liability, but referable to a “moral” or accounting sense, as the holding company. This is reflected in his Honour’s findings (J[200]).
156 In November and early December Mr Dew spoke to Mr Graham several times, requesting a draft agreement regarding the Sanctuary. These conversations were to the following effect:
Dew: “If we cannot get a formal agreement, can we get a heads of agreement letter or letter of agreement. Something simple in letter form would suffice.”
Graham: “Bakrie has said it’s OK but I will have to speak to Greiner and get something done.”
157 This conversation reflects a clear desire or recognition of the parties to have a document at the coming settlement. The appellants say that what was intended at all times was a comprehensive formal document. They put that to the primary judge. What is clear is that the parties did, when it was seen as possible, discuss documentation in a way consistent with it being full and complete. However, when it became apparent that time and circumstances would not permit that (for reasons known only to Mr Graham) they discussed getting some documentation. It is clear that this change exhibited a desire to have a document or some documents at the settlement to work out or manifest the coming into existence of legal relations. The narrative as it develops reveals this.
158 After 3 December Dew says he had several conversations with Mr Graham, Mr Greiner and Mr Richmond to the following effect:
Dew: “Where is the draft agreement regarding Anderson’s shares in the nominee company?”
Graham/Greiner/Richmond
“We have not received a copy from Jakarta.”.
159 This inability to extract a document about the Share arrangement and about the Sanctuary appears to be what prompts Mr Anderson to go to Jakarta between 12 and 14 December. Just before Mr Anderson goes to Jakarta between 12 and 14 December, Mr Dew has a conversation with him as follows:
Dew: “Can you get Nalin to sign something on the sanctuary while you are there? I can’t get Graham to give me anything.”
Anderson:“Can you talk to Gianotti and see if he can help get something prepared.”
160 Mr Anderson went to Jakarta and saw Mr Bakrie and Mr Rathod between 12 and 14 December. Mr Anderson’s evidence about the meetings is important. The context of his going appears to be plain: While there was apparent consensus in discussion on all important commercial integers in a way satisfactory to Mr Anderson and Mr Dew, from time to time documents such as the letters of 12 November and 3 December emanated from the other side which were wrong. Further, there were no draft deeds yet available for consideration. There had been previously a satisfactory draft provision (clause 4 in the Macquarie deed) concerning the shareholding, but it had been removed on the expressed pretext of a separate document (said variously to be a deed and an agreement) to be drawn in Jakarta. There had, as yet, been no satisfactory deed or document presented regarding the Sanctuary land, to re-embody or reflect the consensus hitherto discussed and previously reflected in the JSU. Mr Anderson went to Jakarta to sort these things out, once and for all.
161 The first meeting which he had was with Mr Rathod. Mr Anderson said that at this meeting they discussed a draft document being a draft deed which he took with him and which had been drafted by his solicitor in Perth, Mr Gianotti. This draft deed dealt with the subject matter of the Sanctuary. The draft was set out as being between Mr Anderson, Mr Bakrie, Owston, Tovehead and Votraint. The draft contained the following in typescript:
WHEREAS:
A. By Statement of Understanding dated 31 January 1990 Tovehead and Owston covenanted that each of Tovehead and Owston shall select any parts of “Tipperary Station” situate in the Northern Territory and described as all that land comprised in Volumes 201 Folios 43, 44, 45, 47 and Volume 198 folio 32 (“Tipperary”) for its own exclusive use as a private zoo including a private residence and recreation but excluding any other commercial use.
NOW THIS DEED WITNESSES THAT:
1. Each of ARB, Tovehead and Votraint jointly and severally covenant and agree that Owston shall use, for a term of for its own exclusive use and benefit absolutely those parts of Tipperary presently used by Owston as a private zoo, residence and recreation purposes which rights will include free and uninterrupted rights of carriageway, ingress and egress to and from Tipperary in common with other users of Tipperary and the rights to use, light, power and water presently enjoyed by Owston as at the date of this Deed.
2. Each of ARB, Tovehead and Votraint jointly and severally covenant and agree that in the event that Tovehead or Votraint or both shall sell its or their interests in or to Tipperary, they will obtain from any purchaser of Tipperary a deed of covenant from the purchaser acknowledging and accepting the terms of this Deed.
[Emphasis added.]
162 By reference to the typed document there was an exchange between Mr Anderson and Mr Rathod as follows:
Anderson: “This is what I want you to agree to. A lease in perpetuity, the same as the property.”
Rathod: “That is alright. I will contact Charlie Graham and ask him to finalise it.”
163 After this meeting with Mr Rathod, Mr Anderson met with Mr Bakrie. It is necessary to set out the whole conversation. I interpose relevant comments about each section of conversation. Some of these comments concern the submissions of the parties, to which I will come in due course; but it is convenient to raise these matters at this point.
Anderson: “Ichal, Bank of New York are getting stroppy about this. It’s been going on since May when you promised to pay $40 million to clear these debts. You were talking to BBD in respect of this in an overall finance restructuring proposal. Now I have a proposal which says that it isn’t a loan but that you are purchasing my half of Tipperary and the feed lot for $20 million. I came up to see you but saw Nalin in September. Nalin gave me this note (showing him the note) which is the only proposal that you said that you could do at the time. Now Ichal you know that it was to be a loan, but now it’s a purchase of my 50%. What’s going on?”
Bakrie: “Warren, I’ve got to borrow the money and this is the only way I can raise it. I have received a letter of demand from Bank of New York for the $24 million loan which you agreed to forgive. They now say that the agreement is invalid. This is temporary until we get over the problem and get Bank of New York out of our hair.”
Mr Bakrie’s statement that he had to borrow money and buying the half interest being the only way to do it was said by the appellants to show that the debt in Votraint, at least to $20m, must follow and that the parties could not have agreed for Votraint to be free of that debt. I disagree. The statement is consistent with a lender being willing to lend for a purchase of an asset and not an on-loan. It does not dictate a conclusion of a necessary indebtedness of Votraint or the securing of a lender’s rights over Votraint’s assets. Further, as seen below, in the same conversation, Mr Bakrie agreed that the 40% must be debt free.
Anderson: “Just clarify this $8 million.”
Bakrie: “Don’t worry about that. I will lend the money and you can pay me back out of dividends.”
Anderson: “Alright, but Charlie sent Arthur Dew a letter on 3 December setting out the terms of the settlement saying the shares will be held by Bank Bumi Daya until the debt is fully repaid. In the letter I got from Nalin on 11 September and which you agreed to, it says nothing about the Bank Bumi Daya debt. Why the hell would I take on Tovehead’s debt from the original purchase? That’s your debt, not mine. It’s nothing to do with me. Listen, I won’t accept any of Tovehead’s debts to BBD, or any other debts for that matter, as being the responsibility of the new company. The 40% which I take up must be debt free.”
Bakrie: “Yes, that is alright.”
Anderson: “Well get a hold of Charlie and tell him.”
Bakrie: “Okay, I will.”
In this part of the conversation the source of the $8m as Mr Bakrie and the source of its repayment out of dividends were clarified. Then Mr Bakrie gave way immediately on the question of Tovehead’s (and implicitly Tippindo’s) debt to BBD encumbering the nominee company and its shares; and he agreed that the 40% would be debt free.
Anderson: “I am not happy about this not being a loan, but I’ve got no choice. As long as we understand that if I come up with the $20 million in the near future to repay the loan then I can go back to the 50% and we revert back to our original joint venture.”
Bakrie: “Yes, that is right, but at the moment you have to trust me with your equity. I have no other way of raising the $20 million than this way.”
Anderson: “Well it’s all very bloody well for me to trust you with my equity but I need documentation about my taking up the 40%”
Bakrie: “Okay I will instruct Charlie Graham to give you the necessary documents before settlement.” [Emphasis added.]
The requirement for documentation is emphasised by the appellants in their submissions; but what Mr Anderson was saying was that the parties were bound or to be bound and he wanted a document to show that, not that the parties were not to be bound until a comprehensive document was created.
Anderson: “Now, in regards to the Sanctuary, we have an agreement from our original deal that each of us have 20,000 acres. My 20,000 acres was for the Sanctuary and yours was to build a house on and have as a personal asset. To follow up on that agreement I have discussed a lease with Nalin. As part of that lease I will have right of access and a right to two of the small houses in the staff area with power and water for my staff. Is that okay by you?”
Bakrie: “Yes that is alright. I will instruct Nalin to follow up with your lawyers and finalise the lease. What term do you want?”
Anderson: “The same as the perpetual lease on the land.”
Bakrie: “Okay. Will the Government agree to the lease?”
Anderson: “Yes, they will.”
Bakrie: “Okay then let us proceed.”
Anderson:“When do you think settlement will occur?”
Bakrie: “I will be in a position to settle by Christmas.”
Clear agreement was reached about an agreement for a perpetual lease (or equivalent) over 20,000 acres, with access. Again, of course, documentation was anticipated, but certainly agreement was there as to essentials.
164 While in Jakarta, Mr Anderson telephoned Mr Dew and the following conversation took place:
Anderson: “Nalin has confirmed to me that the 40% deal is OK and that PT Tipperary will still have its debt to BBD and that I will have the right to buy back 40% for $8 million. Bakrie will lend the money for the 40% initially and I will pay it back out of dividends or earlier if I wish. There is no problem at this end.”
Dew: “I will call Graham.”
165 While Mr Anderson was in Jakarta, Mr Dew had conversations with Mr Graham as follows:
Dew: “Anderson is in Jakarta to see Bakrie and finalise all the details. He says Bakrie has confirmed that Votraint will be debt free except that PT Tipperary will have its debt. Also Bakrie will hold the shares himself as security for the funds he is providing and we are only securing the $8 million. Can you get the agreement done? He says Bakrie has not done the agreement and wants you to get it done.”
Graham: “I will talk to Bakrie.”
….
Dew: “If you can’t get the draft agreement from Indonesia, can’t you do it here and send it up to them?”
Graham: “I am waiting on it. They want to draft it in Indonesia. I will give it to you when we get it.”
166 On 14 December Mr Rathod faxed a copy of a draft deed regarding the Sanctuary to Mr Graham and Mr Greiner in Sydney. It was based on the document that Mr Anderson had taken to Jakarta. The covering letter stated:
Please find enclosed two drafts of the agreements as per our discussion which need to be cleared by you and fax back to me the final version so that I can get them signed by ARB and fax back to you to be handed over to Mr Anderson.
167 The primary judge made important findings about Mr Rathod in relation to this facsimile: see especially J[78] and J[79]. One of the matters touched upon by his Honour at J[78(b)] in connection with this facsimile was that Mr Rathod accepted that:
[I]n saying “cleared by you” he meant that he wanted Graham and Greiner to reassure him that the document was in proper legal form to achieve his and Bakrie’s intent, not that it should be redrafted or for Graham and Greiner to put in their own ideas.
168 The draft dealing with the Sanctuary land, which was based on the document that Mr Anderson had taken to Jakarta, was, relevantly, in the following terms:
WHEREAS
A. By Statement of Understanding dated 31 January 1990 Tovehead and Owston covenanted that each of Tovehead and Owston shall select any parts of “Tipperary Station” situate in the Northern Territory and described as all that land comprised in volumes 201 Folios 43, 44, 45 and 47. Volume 198 folio 32 and Volumes 214 Folios 1, 3 and 5 (Tipperary”) for its own exclusive use as a private zoo including a private residence and recreation but excluding any other commercial use.
NOW THIS DEED WITNESSES THAT:
1. Each of ARB, Tovehead and Votraint jointly and severally covenant, agree and grant during the term of the perpetual leases specified in each of the certificates of title comprising Tipperary that Owston shall have exclusive use and the benefit absolutely to all those parts of Tipperary presently used by Owston as a private zoo, residence and recreation purposes and hereby grants to Owston a free and uninterrupted right of carriageway including ingress and egress to and from Tipperary in common with other users of Tipperary and the rights to use, light, power and water presently enjoyed by Owston as at the date of this Deed (“the rights”).
2. Each of ARB, Tovehead and Votraint jointly and severally covenant and agree that in the event that Tovehead or Votraint or both shall sell its or their interests in or to Tipperary, they will obtain from any purchaser of Tipperary a deed of covenant from that purchaser acknowledging and accepting the terms of this Deed and granting to Owston the rights herein specified.
[Emphasis added.]
169 This draft created after these meetings and sent by Mr Rathod to Mr Graham and Mr Greiner and the draft deed taken by Mr Anderson to the meeting ([168] and [161] above) both described the land covered by the Sanctuary deed as that “presently used”. (See the parts emphasised.) This was dealt with by his Honour as follows (J[82]):
They [the applicants] also submitted that the words “presently used” were a drafting anomaly which was to be fixed before the document was signed. Bakrie’s evidence that he had had a discussion with Anderson about 20,000 acres and did not have an objection to a lease over that amount of land being granted to Anderson, and the fact that the cover page Gianotti sent to Anderson attached to the draft deed which Anderson discussed with Bakrie in Jakarta, referred to it as a deed “for 20,000”, led to the clear inference that the words in the draft deed did not yet accord entirely with the parties’ intentions. I will return in due course to the precise nature and status of the agreement resulting from Anderson’s meetings, which is at the heart of this aspect of the case, but this finding does not preclude a conclusion that an agreement on certain terms was reached.
170 The conversations between Mr Anderson and Mr Bakrie in Jakarta in December ([163] above) in the context of the conversations and documentation of 1989, 1990 and September 1993 clearly support the finding here by the primary judge that the draft recorded a consensus varied by replacing “(the) parts of Tipperary presently used by Owston” with the 20,000 acres in the way that had been hitherto understood.
171 The other draft referred to in the facsimile referred to in [166] above was a document which was a draft deed in which Mr Bakrie and Tovehead were to covenant that they would procure release by BBD of Owston and Anderson of any obligation they owed to BBD. At settlement Anderson and Owston were provided with a letter containing an obligation by Votraint to approach BBD to attempt to bring about the release and Votraint agreed to indemnify Owston for any liability of it to BBD. (See generally [199] below.)
172 Meanwhile pressure was building for a settlement. Dates had been set for 6 and 15 December. BNY made clear that 23 December was the final adjourned date for the settlement. The matter had proceeded in such a way as to make that finality likely.
173 In mid December, probably after Mr Anderson returned from Jakarta, Mr Dew was sent a draft deed dealing with the Sanctuary land. It was sent by Mr Anderson or Mr Gianotti from Mr Anderson’s Sydney fax machine. The draft was between Mr Bakrie, Mr Anderson, Tovehead, Votraint and Owston. It was identical to that sent by Mr Rathod to Mr Graham and Mr Greiner (para [168] above).
174 After Mr Anderson returned from Jakarta, Mr Dew recalled that he spoke with him about the Sanctuary land as follows:
Dew: “Did you get the sanctuary agreement signed?”
Anderson: “Nalin said it was OK with him but he wanted to get Charlie’s view on it from a legal point of view in Australia before signing it.”
175 Mr Dew then spoke to Mr Graham on the subject matter of the Sanctuary land as follows:
Dew: “Can you get the sanctuary agreement done? We need it for settlement.”
Graham: “We are still waiting on finalising it.”
176 Thus, there can be no doubt that there was agreement or consensus on all elements of the Sanctuary Agreement. Formality remained. Mr Dew was still asking for full documentation, not surprisingly since agreement had apparently been reached in Jakarta by reference to draft formal documentation.
177 Mr Dew then spoke with Mr Graham, not having received any deed regarding the Sanctuary. The conversation was as follows:
Dew: “We are running out of time for the sanctuary agreement. Warren has agreed with Bakrie that the current arrangements regarding the sanctuary are to stay in place and that he will have a continuing license to operate the sanctuary. If we can’t get the agreement done in time, Warren has requested me to obtain a letter confirming this. I understand the license will not be limited in time and that Warren will pay all costs in operating the sanctuary and the surrounding land.”
Graham: “I understand this will be satisfactory.”
Dew: “I will send you a draft.”
178 This exhibits a growing realisation that time might not in fact permit formal documentation; nevertheless there was the desire for at least some documentation.
179 Mr Dew then sent a handwritten draft to Mr Graham under cover of a handwritten note. The covering note and the draft were as follows:
[note]
Fax to Charles Graham
Dear Charlie
Herewith suggested sample letter which should cover the situation.
Please let me know your thoughts on this - I am on [telephone number] today and [telephone number] tomorrow.
[draft]
Letter from Votraint No 788 P/L and Tovehead P/L
To Mr W P Anderson
And Owston Nominees No2 P/L
Dear Sirs,
I confirm that the arrangement in place regarding the Tipperary Wildlife Sanctuary under the joint venture agreements between Tovehead and Owston will continue in place after the purchase of Owston’s interests in Tipperary Station by Votraint pending any other arrangement signed between Aburizal Bakrie and Warren Anderson.
Yours faithfully
180 On 22 December Mr Dew spoke with Mr Graham:
Dew: “We need to obtain the letter on settlement confirming that the existing arrangement regarding the sanctuary can continue.”
Graham:“I have discussed the matter with Bakrie and Rathod and they are agreeable.”
181 Shortly thereafter Mr Dew and Mr Graham had another discussion in which Mr Graham read out the text of a Sanctuary letter prepared by him, Mr Graham. The text, which is set out at J[87], was in the following form (for ease of comprehension of the next paragraph I have numbered the paragraphs):
1. We still have a little unfinished business in the matter of the future of the Sanctuary to be settled.
2. Please be assured that we are anxious to ensure that the operation is allowed to continue in its present form.
3. For the time being and until you and I reach agreement on the future structure and management of the Sanctuary, I have instructed our people in Tipperary that the current arrangements must be continued.
4. This situation can continue until agreement is reached or the 30th June 1994, whichever is the earliest.
5. Incidentally I am advised that the station has been required to pay certain accounts on behalf of the Sanctuary amounting to $57066.38
182 It is important to understand Mr Dew’s evidence about this conversation. The primary judge dealt with it as follows (J[88]):
Dew's evidence was that he spoke to Graham by telephone on 22 December 1993 and that Graham read the text of the letter to him. The conversation, according to Dew, was as follows:
(a) Graham read the first paragraph and Dew asked him what he meant by “a little unfinished business”. Graham replied:
“Well this is the finalisation of the lease documents, but we can't get them finalised because of time restraints [sic]. This is referring to the fact that we have to get the lease documents done.”
(b) Graham then read the second paragraph and Dew asked what he meant by "allowed to continue in its present form" and the conversation continued:
Graham: “Well the arrangements that are included in the joint venture documents - there's a statement of understanding - that whatever is in that document can continue until we have the new lease document.”
Dew: “Well if that's what it means I'll agree to that arrangement. So, the status quo will remain under the existing documents until the new lease is entered into?”
Graham: “Yes, that's okay.”
(c) With regard to the third paragraph, Dew's evidence was that he said:
“Well, I think that's a bit long. You need to perhaps just say that you instruct your people that the current arrangements are to be continued.”
and that Graham agreed.
(d) Graham then read the fourth paragraph and he and Dew had "quite a lengthy argument" about it in which Dew recalled words to the following effect being spoken:
Dew: “This is totally unacceptable, we can't put a time limit on this because, firstly, you don't know how long it's going to take to get the lease documents done and if there is a time limit there'll be a hiatus, so it's got to be unlimited in time and it's got to come out and there's no way we'll agree to it.”
Graham: “Well, I'd like to put a time limit so there's some cut off point, so that the parties will work towards [getting] this done, but within a time - so we know we've got a cut off point when we're going to get the lease done.”
Dew: “No, look, it's not acceptable. It's between Bakrie and Anderson; we cannot agree to a time limit.”
Graham: “Okay, I'll agree to take it out.”
(e) It was also agreed that the last paragraph was inappropriate and should be removed.
183 By this conversation, the binding and perpetual nature of the present relationship as reflected in the JSU was expressly recognised, and was to be unlimited in time, other than through its replacement by formal legal documentation. Plainly that was seen in its essentials as reflecting what Messrs Anderson, Rathod and Bakrie had agreed in Jakarta. It can be seen as a shorthand confirmation of that consensus which had been reached between principals. It should not be seen as a renegotiation of that which the principals had agreed.
184 Meanwhile, by about 20 or 21 December, Mr Dew, not having received the foreshadowed share documentation, supposedly being drafted in Jakarta, had a conversation with Mr Graham as follows:
Dew: “If we cannot get the comprehensive agreement regarding the 40% from Jakarta in time for the settlement we will have to obtain from you an interim letter setting out the terms of the agreement. The letter should set out the agreed terms as we have discussed that were previously included in the original deed. That would be sufficient for settlement and we can get the deal done later.”
Graham: “I agree that you need to have something on settlement. I would prefer that you have the complete document but I am not able to get it out of Jakarta. I will speak to Chris Greiner and get him to draft a letter.”
185 The statement by Mr Graham about not being able to get the agreement out of Jakarta was a lie. It was not even being attended to in Jakarta. However, both parties were making clear to each other the need for a document on settlement: to reflect the agreement which had been reached. As with Mr Anderson’s conversations with Mr Bakrie in Jakarta, earlier in the month, what was being said was that some documentation was needed to reflect the agreement reached (even if, by now, full and complete documentation could not, in the time, be produced), not that the parties were not to be bound until a comprehensive document was created.
186 Shortly after speaking with Mr Graham, Mr Dew spoke with Mr Greiner as follows:
Dew: “I’ve spoken to Graham. He agrees that if we cannot get the comprehensive agreement regarding the 40% by settlement, then we will have to get an interim letter from you setting out the agreed terms. A short letter setting out a summary of the agreed terms similar to those set out in the original clause 4 should suffice for settlement.”
Greiner: “I’ll speak to Graham and, if he agrees, I’ll draft one for you.”
[later]
Dew: “Have you got the draft letter yet?”
Greiner: “Graham says it’s OK now so I’ll get you one.”
187 It appears that Mr Dew finally received a draft of a letter concerning the Share Agreement late on 22 December or the morning of 23 December. The finalisation of questions concerning the Sanctuary letter and the Share letter took place on 23 December. At this point clarity requires that they be dealt with separately. The course of events is to be found in Mr Dew’s evidence.
The Finalisation of the Share Letter on 23 December
188 By the morning of 23 December Mr Dew had received a draft and had made many notes on it.
189 The primary judge dealt with the draft and Mr Dew’s handwritten notes on it as follows (J[207]):
Dew amended the draft in handwriting in a number of ways, especially by:
· deleting the reference to the alternative option of transferring a direct interest in the assets
· providing the $A8 million plus interest to be paid not to Votraint, but to “Bakrie”, adding a note in the margin which says: “Could be anor Bakrie nominee. Depends who is providing the money. Check??”
· adding a provision for “Votraint to be debt free on settlement and must not incur debts other than in normal course of business afterwards”
· deleting a provision which read “Votraint further agrees that it will use every reasonable endeavour to procure that Votraint and Owston enter into a legally binding agreement as quickly as practicable to [put] into effect the matters set out in this letter.”
190 In at least one conversation with Mr Richmond, Mr Dew went through his notes. During this conversation the following exchange between Mr Dew and Mr Richmond occurred:
Dew: “I am not particularly happy with the draft letter. I would like to expand the letter and set out more detail and I would also like to make it clear that the funds are being provided by Mr Bakrie and that Warren will have the obligation to repay him not the company. The funds should be provided by Bakrie as was previously set out in clause 4 of the draft deed and the memo from Nalin Rathod of 11 September 1993. Owston is to give security by depositing the share scrip with Bakrie. Votraint must be debt free and must not incur debts other than in the ordinary course of business. We will also have to take out the part about the parties entering into a legally binding agreement later as this must be a binding agreement.”
Richmond: “I think it is fairly clear that Bakrie is providing the money and he will hold the shares as security. However, I will talk to Chris Greiner and see whether we can make some amendments to satisfy you. However, we will not have time to go into much detail before the settlement.”
Dew: “We would like to include all these items in the letter. I would like to see the amended letter before the settlement is completed if possible.”
Richmond: “We will see what we can do. I will discuss this with Chris Greiner and get instructions.”
191 The appellants said before the primary judge and before this Court that this was evidence of continuing negotiations. It plainly was not. The letter did not embody what had been agreed. Mr Richmond was not a negotiator. He was a drafter and, perhaps, a conveyor of instructions. Its inadequate form and its lateness, which are explicable in the light of the conduct of Mr Graham found by the primary judge and to which I have adverted and to which I will revert, called for some discussion.
192 Mr Dew was not provided with an amended letter until after the BNY settlement. Later that day Mr Richmond gave the Share letter signed by Mr Graham to Mr Dew. The full terms of the Share letter dated 23 December 1993 under Votraint letterhead signed by Mr Graham were as follows:
23 December 1993
The Directors
Owston Nominees No 2 Pty Limited
Level 2, 44 Hunter Street
Sydney NSW 2000
Dear Sirs
Issue of Shares
Transfer of Interest in Assets
Votraint No. 788 Pty Limited (“Votraint”) confirms its offer to issue to Owston Nominees No. 2 Pty Limited (“Owston”) such number of shares as will result in Owston becoming the holder of forty point eight one five per centum (40.815%) of its issued share capital immediately after such issue.
This offer is made on the following terms:
1. Owston will pay to Votraint the sum of $AUS8.000,000 together with interest on that amount (as reduced from time to time) (such sum and interest being collectively called “Debt”) in respect of the period between the date on which a legally binding agreement is entered into and the date on which the whole of the Debt is paid to Votraint such interest to be calculated on a daily basis at the current Indonesian market deposit rate from time to time.
2. Any dividend received by Owston in respect of the relevant shares before the Debt is paid to Votraint shall be paid by Owston to Votraint in reduction of the Debt.
3. Owston will irrevocably direct Votraint to apply all dividends to be paid in respect of the relevant shares in partial satisfaction of Owston’s obligations to repay the Debt.
4. Owston will provide suitable security arrangements to Votraint including handing over possession of the relevant share certificate as Mr. A. Bakrie shall direct.
5. Owston will pay all stamp duty.
6. If Owston accepts this offer, Votraint agrees that Votraint will not incur any additional debts other than in the ordinary course of the business of operating its assets.
This offer remains open for acceptance for a period for 3 months from the date of this letter. If acceptance does not take place within that period this offer will automatically lapse.
Yours faithfully
C T Graham
Director
193 The letter did not reflect the clear agreement regarding the $8m being provided by, and owed to, Mr Bakrie; nor did it reflect the clear agreement that Votraint be debt free. In the conversations following its receipt (see below) the question of the lack of reference to Votraint being debt free was not taken up. Discussion was directed to the money coming from Mr Bakrie (probably because of a recognition by Mr Dew of the possible illegality of Votraint lending money to someone to subscribe for shares in itself); but, in the circumstances, and under the time pressure which clearly existed, there cannot be said to be any suggestion of a deletion of something which had previously been clearly agreed.
194 After receiving this signed copy of the (inadequate) letter, Mr Dew spoke with Mr Graham and Mr Anderson and took steps as set out in the following extract from Mr Dew’s evidence. It should be especially noted that the signed copy was resigned in Mr Dew’s presence before being handed to him:
Dew: “I am not particularly happy with the letter as it is still not clear that the funds are being provided by Bakrie and that Warren will have the obligation to repay him, not the company.”
Richmond: “You had better discuss it with Mr Graham.”
Dew: “Also, this letter is only a photocopy. I want the original signed letter.”
Richmond: “We don’t have it here. Mr Graham may have it.”
…
I then had a conversation with Graham which included words to the following effect:
Dew: “This letter really isn’t adequate as it does not make clear that Mr Bakrie is providing the money.”
Graham: “I think we all the know that the money is coming from Mr Bakrie and that Warren will have to pay him back. We can’t do anything about the letter at this stage. In any event the comprehensive agreement is being drafted in Jakarta and we can make it clear in that document.”
Dew: “Can you please chase up the agreement and get it down to us as soon as possible. Also, the letter Justin has given me is only a photocopy. Justin says he does not have the signed original. Do you have it?”
Graham: “I don’t have it here but I will re-sign a copy of the one you have. Will that suffice?”
Dew: “Yes that will be okay.”
…
Graham then re-signed a photocopy and gave it to me. I then took the letter to Anderson, showed it to him and we had a conversation which included words to the following effect:
Dew: “It is not in a very satisfactory form but Charlie assures me they will honour it. Will you accept it?”
Anderson: “Ichal and I are partners and have a close understanding. I am sure we can trust them. It’s okay.”
…
I then returned to Graham and we had a conversation which included words to the following effect:
Dew: “Warren says he and Ichal are partners and have a close relationship and he trusts him so he will accept it.”
I then gave the copy for filing in the records of Owston …
The Finalisation of the Sanctuary Letter on 23 December
195 The Sanctuary letter, an earlier version of which Mr Graham had discussed over the phone with Mr Dew on the previous day (see para [181] and [182] above) was provided on 23 December. It was in the following terms under the letterhead of Votraint:
22 December 1993
TO: Warren Anderson
Dear Warren
TIPPERARY SANCTUARY
We still have a little unfinished business in the matter of the future of the Sanctuary to be settled.
Please be assured that we are anxious to ensure that the operation is allowed to continue in its present form.
I have instructed our people in Tipperary that the current arrangement must be continued.
Kind regards.
196 Mr Dew and Mr Graham then had a conversation as Mr Graham initialled it, as set out in part of Mr Dew’s evidence:
Graham: “I’m not signing this. I’m just initialling it.”
Dew: “Why?”
Graham: “I don’t like what Bakrie is doing. I would like to get Anderson out of Tipperary altogether. If it were left to me I would not let him have the shares or the sanctuary. However, Bakrie has agreed to it so I will go along with it.”
Dew: “I don’t care if you initial it or sign it as long as the initials or signature are yours and you tell me you will honour it.”
Graham then initialled the sanctuary letter and gave it to me. … I then took the letter to Anderson, showed it to him and we had a conversation to the same effect as that set out in [see the conversation between Mr Anderson and Mr Dew [194] above].
197 It should be noted, in illumination of how the case was conducted, that Mr Graham denied the conversation just referred to. He said that he said to Mr Dew that he was initialling it because he had no instructions. This was part of the appellants’ case at trial that negotiations about the Sanctuary were continuing, there being no agreement. Mr Graham’s evidence was rejected.
198 That the parties were insistent on the bringing into existence, and formally initialling in the presence of each other, such a brief letter reveals that its creation and initialling were of significance. Ceremony (albeit unpretentious) was expressly called for by the experienced businessmen who knew each other. The letter and its initialling and delivery were being used to mark the point of the bringing into existence of binding legal relations. From its content it is clear that the letter itself did not embody an agreement or consensus. It is clear from all that had passed that it marked, and was intended to mark, the binding of the parties to what had hitherto been agreed.
Settlement and the Beliefs of Mr Dew and Mr Anderson at Settlement
199 It is worth noting that there were, in effect, two settlements on 23 December 1993. The first in the morning dealt comprehensively with BNY, the principal document executed and exchanged being a Deed of Settlement between BNY, Owston, Mr Anderson and others dealing, amongst other things, with outstanding claims of BNY against various Anderson interests. As part of this settlement or later in the day (it does not matter which) the agreed and uncontroversial documentation between the Anderson interests and the Bakrie interests was executed and exchanged, being a deed between Owston, Anderson, Bakrie, Votraint, Tovehead and others providing for the sale for $A20 million by Owston to Votraint of its half interest in Tipperary plus plant and stock, of its shares in Tippindo and the Moonhill assets (which comprised the Moonhill land, and stock, moveable improvements, plant and equipment); a letter dated 22 December 1993 from Votraint to Owston indemnifying Owston against any claims by BBD arising from earlier undertakings by Owston to BBD (see [171] above); and a share transfer agreement between Owston and Votraint providing for the transfer of Owston’s shares in Tippindo. In the afternoon the two letters (the Share letter and the Sanctuary letter) were dealt with as earlier described.
200 It is also convenient to note at this point that the letter of Votraint dated 22 December 1993 indemnifying Owston against claims by BBD against Owston under its earlier letters of undertaking must, at least, qualify the primary judge’s finding that it was agreed that Votraint would be debt free. So much is conceded by the respondents to the appeal. The appellants place greater reliance than that on these circumstances. I return to this at [321] below.
201 Two further matters which it is convenient to mention at this point are Mr Anderson’s and Mr Dew’s beliefs at the time of settlement. These are relevant to any alternative estoppel or Trade Practices Act or Corporations Law cases should there be no contract. In his affidavit Mr Anderson described his belief as follows:
At the time of the settlement, I believed … that it was agreed between us that:
a) Owston would be granted rights in perpetuity over an area of 20,000 acres of the Tipperary Group of Properties selected by it for the Sanctuary; and
b) Owston was to have transferred to it shares comprising 40.815% of Votraint No 788 Pty Limited for $8 million, with that money to be provided by Bakrie and to be repaid only out of dividends.
…
If I had thought at that time that the Bakrie interest would refuse to recognise such rights with regard to the Sanctuary or that they would refuse to issue Owston shares in Votraint as agreed, I would not have entered into the agreements which I did at settlement and would not have permitted my family and Owston to have done so either.
202 This evidence must be set in the light of his evidence about settlement in cross-examination. The primary judge dealt with this as follows (J[154]):
One question that arises, however, is why Anderson agreed to settle when both he and Dew acknowledged that they were aware that the letter which was provided in respect of the Sanctuary did not adequately set out the terms which they claimed had been agreed. Anderson’s explanation was given in cross-examination:
Mr Rayment: …Mr Anderson would you please explain to his Honour how it happened that you settled the transaction on 23 December without insisting upon being provided with a signed copy of these documents?
Anderson: I found with Nalin Rathod and Bakrie would agree to something and when they sent it to Charlie Graham for some reason or other - and I know Charlie Graham never liked me and he always tried to veto any agreement I had between myself, Bakrie, or Nalin Rathod. And Arthur Dew - it wasn't for the want of trying - Arthur Dew chased Charlie Graham about these agreements right up until the settlement date and you will see that in Mr Dew's correspondence to Mr Graham that he wanted these agreements signed. And Mr Graham ducked and dived everywhere, and that's the explanation.
His Honour: But was not the purpose of this gigantic settlement which took all day partly to secure your position in the rearrangement? Was that not the purpose of doing it?
Anderson: Yes but you must understand your Honour that Charlie Graham refused to do anything and kept on delaying it and I was under pressure from the Bank of New York to settle. I had no choice to settle. If I hadn't settled in that way they would have cleaned me out and I kept asking Arthur Dew have you got these agreements and he said I can't get Charlie to do them and I said well look if you have got anything for me. He said I can get a letter from him in the interim and that is what happened.
His Honour: You felt yourself under pressure did you?
Anderson: I was under pressure. The Bank of New York was bashing the doors down in my houses and taking paintings off the wall and they –
His Honour: You are speaking literally, you mean this is what they actually did? –
Anderson: They did yes, they actually did this your Honour… I had no choice, I was in a corner and I was in a corner because of the original promises that Aburizal Bakrie had made to me back in May and he had made to the Bank of New York in May that the money would be funded from the total payout of Bank of New York through a restructuring of the finance with BBD and it put me in a position where I couldn’t move.”
203 Mr Dew gave evidence of his understanding and state of mind as follows:
… I was prepared to accept and rely on the letter because of Anderson’s then close personal relationship with Bakrie, the then closely aligned position of the Anderson interests and the Bakrie interests and the assurances by Graham.
…
It was never made known to me by Rathod, Graham, Greiner, Richmond or any other person on behalf of the Bakrie interests at that time that Bakrie intended to use Tipperary Station to secure a facility or to repay the facility from the sale of the property nor that they were negotiating with Aman Group. If I had known, I would not have accepted the Votraint letter or the further assurances referred to above regarding Anderson’s rights to acquire 40% of the shares in a debt free company.
[Emphasis added.]
204 I deal with the question of reliance and estoppel and this evidence of Messrs Anderson and Dew at [244] to [249] below.
The Questions of Consensus and Intention to be Bound
205 It is plain from the above narrative of the facts (a) that by 23 December there was a tolerably clearly expressed consensus about both the shareholding and the Sanctuary land; (b) that such consensus was of a character which lacked any real commercial complexity for solicitors, advisers and commercial persons who had the experience and acumen which Messrs Anderson, Bakrie, Rathod, Dew, Graham, Greiner and Gianotti appear to have had by their work and positions; and (c) that such consensus was not documented in a manner which one would have expected of such commercial persons, solicitors and advisers. Indeed, such documentation that was raised for the purposes of settlement, in this regard, did not reflect the consensus which had already been reached. At the trial this was explained by the appellants as reflective of the facts that there was no consensus and that negotiation was continuing up until the time when the letter of offer about the shares was finalised. This, they said, was an offer after negotiation, not an inadequate attempt to embody an agreement. As to the Sanctuary land, they said, no agreement had been reached. His Honour rejected this explanation for the failure of the lawyers and advisers to produce documentation of the kind and quality one would expect. The primary judge found the explanation for these things in Mr Graham’s dishonesty and dishonest conduct.
206 I have dealt earlier with aspects of Mr Graham’s conduct and evidence. The primary judge found that Mr Graham had been deliberately delaying the finalisation of any agreement in order to frustrate Anderson (J[84]). The primary judge found that when the understanding reached by Mr Bakrie and Mr Anderson fell into Mr Graham’s hands it ran into deliberate efforts to prevent it becoming legally binding (J[150]). His Honour found that Mr Graham was deliberately dilatory and evasive in the lead up to settlement, that he deliberately sought to delay finding the long held agreement between Mr Anderson and Mr Bakrie about the Sanctuary (J[151]). The primary judge characterised Mr Graham’s conduct as malicious and deliberate (J[180]), nefarious and dishonest (J[230]), and exhibiting bad faith in deliberately drawing the Share and Sanctuary letters to be vague (J[222]). As discussed earlier, the statements that the share letter was being dealt with in Jakarta were lies. Mr Graham misled Mr Bakrie’s own solicitor, Mr Greiner, Mr Dew and Mr Anderson with these lies (J[229]). He was actively trying, dishonestly, to deceive the applicants (J[230]).
207 The inadequacy of documentation on 23 December is explained by Mr Graham’s conduct, not the lack of any antecedent consensus or the existence of continuing negotiation.
208 It was important for both parties to finalise matters on 23 December. BNY was highly unlikely to wait any longer. If BNY were not paid out, plainly that was a disaster for the Anderson interests. But it would also have been a grave commercial event for the Bakrie interests. Tipperary would have to have been sold or partitioned. The receiver of Owston and BNY had already indicated a desire to pursue Cross Hatch for the balance of the USD24m “released” by agreement and without consideration. The receiver of Owston was already seeking to appoint BNY’s nominees to the board of Tippindo (which, of course, conducted the Indonesian feed lot). There was potentially grave commercial disadvantage to the Bakrie interests in the BNY settlement not proceeding.
209 If the BNY settlement proceeded, Owston had to transfer its interests in Tipperary and Tippindo to Votraint as contemplated. It was thus essential to the Anderson interests to have the Bakrie interests bound on 23 December to any arrangement collateral to or connected with that transfer of property to Votraint. That was not a private hope or fond wish of Mr Anderson. It was a self evident commercial and legal truth; one that in blunt and forceful terms Mr Anderson had rammed home to Mr Bakrie in Jakarta in December:
“Well, its all very bloody well for me to trust you with my equity but I need documentation about my taking up the 40%”.
210 If one accepts the evidence of Mr Anderson and Mr Dew and one realises the dangerous commercial consequences to both parties of failure to agree, one sees the reality that Mr Anderson, apart from drawing on his personal relationship with Mr Bakrie, had available to him circumstances to allow Mr Dew and he to require the production of a document to mark out the creation and extent of his rights (even if only in summary form).
211 Once one accepts (as the primary judge has) the evidence of Mr Anderson and Mr Dew and once one decides (as the primary judge has) that Mr Graham was acting surreptitiously, dishonestly and without the knowledge of Mr Bakrie, one is presented with two commercial aspects of a wider transaction, all elements of which two aspects have been clearly agreed in discussion between the parties in the period September to mid December or November to mid December, and which two commercial aspects were not satisfactorily documented because of the deliberately dishonest conduct of Mr Graham.
212 One then has to assess the legal results of that verbally expressed consensus and inadequate and incomplete documentation. What is plain is that the parties intended to reach legal finality as far as that was possible by 23 December. Documentation was wanted to provide the evidence or reflection of the commercial agreement (except for the private agenda of Mr Graham). Documentation, to the extent time permitted, was to be the crystallisation or final manifestation of consensus which had been reached and was to be binding should the BNY settlement proceed. The inadequacy of the documentation (for the reasons identified) did not destroy either the consensus or the intention to crystallise that consensus into a binding arrangement at that time; rather, it simply meant that one could not have recourse to the paper in question to find the whole of the binding agreement. Neither letter, on the evidence and the findings, was intended to embody the full agreement of the parties. The Share letter did embody some aspects of the consensus. The Sanctuary letter was almost devoid of content. Nevertheless, the Share letter (in copy form) was re-signed in the presence of Mr Dew and given to him. The Sanctuary letter was solemnly initialled and given to Mr Dew. There was in fact a “settlement”. On 24 December 1993 Mr Graham sent Mr Rathod a “Report on Settlement” (see [299] below). The parties viewed what occurred as a “settlement”, despite the partial inadequacy of the documentation. The parties’ dogged determination to have a document and on 23 December to have an almost ceremonial delivery of signed or initialled letters reflected the clarity of the mutual and objectively manifested intent to enter legal relations on 23 December. The content of those legal relations could be seen in the consensus of the commercial men to that point, and, to the extent the contents of the letters themselves reflected consensus, in those letters.
Events after 23 December 1993
213 On 23 March 1994 Owston sent Votraint an acceptance of the 23 December “offer”. The letter was in the following terms:
RE: ISSUE OF SHARES – TRANSFER OF INTEREST IN ASSETS
The Company is pleased to accept the offer contained in your letter of 23 December 1993.
As you would appreciate the Company as a shareholder would like to be kept advised of the affairs of Votraint from time to time and look forward to the issue of the appropriate share certificate. In particular we would appreciate copies of the accounts and details of any significant events.
214 From July 1994, Owston expended funds on the creation and building of Stage IV of the Sanctuary.
215 From late July 1994, Mr Graham and Mr Anderson began to have acrimonious communications. It is unnecessary to set out their terms. It is sufficient to note that at J[102] to [104] the primary judge concluded that Mr Graham’s communications apparently contesting Mr Anderson’s activity in coming on to the Sanctuary was the undertaking of a “sniping war” and not a genuine disputing of Mr Anderson’s rights.
216 In 1995, following a proposal by Tovehead and Branir to lease part of Tipperary to Aman Resorts for use as a holiday resort, Anderson placed caveats on Tipperary, resulting in proceedings in the Supreme Court of the Northern Territory where the caveats were removed. Soon after, the applicants commenced the current proceedings in this Court, initially seeking interlocutory injunctions to restrain the respondents, Tovehead and Branir, from going ahead with a lease to Aman Resorts.
The Findings of the Primary Judge – The Share Agreement
217 The primary judge dealt with the Share letter at J[205] and following paragraphs. He saw it as a document intended, to the extent it was accurate, to be a binding legal document, recording an agreement to issue shares needing formal acceptance and that upon its acceptance enforceable legal relations would arise: see J[212] especially.
218 His Honour then, at J[213] to J[234], dealt with the inadequacy of the letter and concluded that it represented an attempt to record in writing an anterior concluded agreement as to the issue to Owston of 40.815% of the shares in Branir, but that attempt accurately to embody the antecedent agreement failed because of the conduct of Mr Graham. His Honour thus concluded (J[234]):
In my view, the applicants have successfully demonstrated that the written document, which prima facie appears to be the written embodiment of their agreement, does not in fact truly record it. Thus, the actual terms of the contract fall to be determined in light of all the evidence.
219 His Honour also found that the applicants received the Share letter on the understanding that its terms were informed by the discussion which had antecedently taken place (J[221]). This finding was specifically challenged as displaying legal error. I will return to this later.
220 The primary judge then proceeded (J[235] to J[268]) to draw together the arguments and evidence about the Share Agreement. The method which his Honour used was to concentrate upon the three terms of the arrangement the subject of apparent real dispute before him: (a) that $8m was payable out of dividends; (b) that Branir must be debt free on issue of shares to Owston; and (c) the $8m was payable to (having been lent by) Mr Bakrie and not Branir. This course was taken because, as his Honour found (J[236]) “[d]espite a significant degree of hyperbole on the matter, the substantial dispute centred on three only of these terms.” This technique or method was the subject of specific challenge. I will return to this later.
221 As to issue (a) referred to in [220] above (that the $8m was payable out of dividends) the primary judge reviewed the evidence and found that to have been clearly agreed. His Honour said (J[249]):
It is my view that there was an agreement between the parties that the $A8 million was to be payable only from dividends. It could, but could not be required to, be paid earlier or in any other way. Not only do the facts reveal this term as being the agreement between the parties, the Share letter itself, while not unambiguously stating it, certainly does not contradict the proposition despite its drafts and accompanying conversations showing that the applicants were asserting it. Given the circumstances surrounding its production and the factual matrix against which it falls to be construed, the Share letter should be so understood.
222 The primary judge continued (J[250]):
The true understanding between the parties was in any event made clear in Graham’s draft agreement of 2 December 1993 which provided for the nominee company to issue the shares to Owston immediately upon formation. Further, the share scrip was to be lodged with Bakrie as security for the $A8 million, which certainly could not have happened had the shares not been issued.
223 As to issue (b) referred to in [220] above (that Branir be debt free) once again his Honour reviewed the evidence and came to the following conclusion (J[259]):
In light of the events and communications leading up to the drafting of the Share letter, and Graham’s subsequent admissions, I accept the applicants’ contention that there was a clear understanding that Branir was to be in substance debt free on the issue of the shares to the applicants, presumably so as not to interfere with or impede Owston’s repayment of the $A8 million.
224 As to issue (c) referred to in [220] above (that the $8m was payable to (having been lent by) Mr Bakrie and not Branir) his Honour reviewed the evidence and came to the following conclusion (J[266]):
The evidence supports the conclusion that there was an understanding between the parties throughout the period leading up to settlement that the money would be provided by Bakrie and that the dividends on the shares would be used to repay Bakrie. I accept, on the balance of probabilities, that there was an awareness that to provide for the repayment of money to Branir might have constituted a breach of the Corporations Law, which in my view makes it extremely unlikely to have been the intention or agreement of the parties. I am therefore constrained to find that, although the required amendment was not made to the Share letter, the true agreement between the parties in place by 23 December 1993 was that the $A8 million was to be provided by Bakrie and was to be repaid to Bakrie or his nominee.
225 The primary judge also dealt with the question of security for the $8m debt. It was plain from the facts, which I have recited earlier, that the deposit of shares with Mr Bakrie was always contemplated. However, in address at the trial (but apparently not in evidence) the appellants sought to make a case for a requirement of additional security. His Honour dealt with this as follows (J[267]):
The Share letter was prepared and submitted by the respondents and they must stand or fall by any looseness or incompleteness of its terms and the arrangements put in place for its enforcement. In their final submissions though not in or by evidence, they sought to establish some requirement that, in addition to the share scrip, the applicants supply as security for the $A8 million “such other realisable property as would give the appropriate level of comfort in Branir”. No such interpretation of the Share letter was sought in the cross claim, there was no cross examination or even examination in chief on the matter, and in any event I believe that the contention is unsustainable. So was the companion argument, also raised nowhere but in the respondents’ final submissions, that the deposit of the share scrip constituted some type of equitable mortgage which meant that Owston could only vote its shares as the company directed. As Bakrie well knew that following the December 1993 settlement the applicants had little to offer by way of external or additional security for the debt, and that he himself would be continually or significantly influencing the cash flow into Branir which was to fund the repayment of Owston’s debt, security supplemental to the lodgment of the share scrip effectively had no meaning. It is clear enough that this term of the Share letter was simply allowed to wither. Moreover, a number of pieces of evidence, including the deed drafted by BDW (Greiner) in September 1993, the subsequent document of Rathod given to Anderson in Jakarta and approved by Bakrie, and the exchanges of paper and words between Dew and Bakrie’s representatives on the day of settlement, make clear that the lodgment of the share scrip had been accepted as the only security. As is obvious, it also evidences an intention that the share scrip actually issue.
226 Having dealt with the matter agitated before him, the primary judge concluded that as from 23 December 1993 there was a binding and enforceable agreement which he called the Branir Shareholding Agreement as pleaded in paragraph 24 of the FASC and that the share letter represented a failed attempt to embody that in writing. Subject to the debt free qualification to which I have referred to above, in my view his Honour’s findings were in accordance with the available facts and evidence.
The Findings of the Primary Judge -The Sanctuary Agreement
227 The primary judge first dealt with various threshold arguments – the effect of the Crown Lands legislation, the Statute of Frauds and the effect of clauses 7 and 12 of the settlement deed. The second of these matters was not pursued on appeal. I will deal with the first and third of these matters later when examining the submissions on appeal.
228 The contentions of the parties about the Sanctuary were crisply summarised by the primary judge as follows (J[144] to J[146]):
[144]According to the applicants, the provisions of the December 1993 agreements which defined and preserved Owston’s rights in relation to the Sanctuary were evidenced by the discussions between Bakrie and Anderson in Jakarta on about 14 December 1993, by the fax sent from Rathod to Graham on that day attaching the draft deed for clearance and finalisation, and by the Sanctuary letter handed over to Anderson by Graham on 23 December 1993, construed in light of the conversation between Graham and Dew on the previous day regarding its terms.
[145]The respondents argued that no agreement was reached and that after the meeting between Bakrie and Anderson, negotiations continued up to settlement, at which point a letter was provided to the applicants which, on an interim basis, provided for the continued operation of the Sanctuary in its then present form pending further negotiations. According to the respondents, Anderson was well aware that the JSU would come to an end when Owston ceased to be a co-owner and that he therefore needed an agreement in place regarding the future of Sanctuary. They contended that this agreement was not reached by settlement and that the letter was given pending further negotiations.
[146]The applicants agreed that the Sanctuary letter was an interim measure, but not to permit further negotiations. In their submission, there was an agreement and the letter provided for the maintenance of the status quo – i.e. the continuation of the JSU beyond what otherwise might have been its inevitable demise – while the final arrangements were made to effect that agreement, namely the provision of a sub-lease or other relevant interest, subject to ministerial consent.
229 The primary judge first directed himself to the intention to contract. He dealt with the Jarkarta discussions in mid-December and found (J[147]):
Although the conversations between Anderson and Bakrie/Rathod in Jakarta on 14 December 1993 were based on and revolved around the draft deed Anderson had with him, Bakrie did not of course sign the draft. Moreover, it was conceded by the applicants that the draft deed did not itself adequately reflect the agreement reached in that it provided for a lease over the area “presently used” by the Sanctuary. Further, as Bakrie delegated the task of finalising the agreement to Rathod, it is clear that a formal and final agreement had yet to be produced. There is nevertheless no doubt that Bakrie, as the principal on the respondents’ side, intended that legal relations would come into being, based on the agreement reached verbally between himself and Anderson. Nor do I doubt that there was an intention on Rathod’s part that formal legal relations would be entered into providing for, presumably, a sub-lease or some other arrangement so that 20,000 acres would be delineated for Anderson to expand the Sanctuary and build a residence.
230 He continued (J[148] and J[149]):
[148]As for Graham, it is clear enough that the Sanctuary letter, construed in the light of his conversation with Dew the day before which I have accepted took place more or less as Dew related, was intended by him to create legal relations of some kind. Further evidence of Graham’s belief is that the day after settlement, he sent Rathod a fax, entitled "Report on Settlement", which stated in part:
We won a few but lost a few…
The Sanctuary…we lost.
[149]In other words, Graham was reporting that he had failed in his efforts to avoid giving any binding commitment on the Sanctuary as he had been forced to acknowledge the agreement that had been embodied in the JSU, evidenced in the draft deed, and initialled in the Sanctuary letter. Graham clearly believed that he had entered into a binding agreement that gave Anderson what he wanted in this regard. I reject Rathod’s weak explanation that he understood that Graham had been forced to give a commitment to a longer lease than had been hoped for.
231 These last two quoted passages from J[148] and J[149] reveal a use by his Honour of later conduct and (it is said by the appellants, impermissibly) of the understanding of Graham. I will deal with this later in dealing with this attack on his Honour’s reasons.
232 The primary judge then directed himself to whether there was “an enforceable agreement”. He noted that the “one fact that permeated any discussions about the Sanctuary from the very beginning of the events covered by these proceedings is that there was an agreement between Bakrie and Anderson that Anderson would have 20,000 acres for the Sanctuary.” Having commented again on Mr Graham’s behaviour and its possible effect on the otherwise clear agreement (reached in Jakarta in December by reference to written terms) between Mr Anderson and Mr Bakrie concerning the Sanctuary, his Honour concluded (J[155]):
Both the facts and commonsense gainsay the respondents’ assertion that the Sanctuary letter was merely an interim arrangement to allow the Sanctuary to be operated in its then present form pending further negotiations. It is not a criticism to say that the Bakrie interests knew nothing about and were not interested in protecting and breeding endangered wildlife. Their interests were solely financial and the Sanctuary was not a profit-making undertaking. Despite the potentially disastrous consequences for Anderson if he did not settle, it is simply inconceivable that he would have passed over, and that Bakrie and his team could have believed they were acquiring, the immensely valuable asset of full control of these vast holdings and assets, without securing the Sanctuary in the separate hands of its founder, protector and financier. I find that the parties agreed on 23 December 1993 that the Sanctuary was not to be included in the sale of the second half of Tipperary and that Owston was to continue to hold and operate it. All that remained was the finalisation of the terms and the gaining of any necessary consents from the Northern Territory Government.
233 The primary judge then directed himself to “the content of the agreement”. He commenced by saying (J[156]):
In my view, for the reasons given, there was an agreement that subject to any necessary ministerial consent being obtained, Branir and Tovehead would sub-let or otherwise procure a grant of 20,000 acres to the applicants to enable the expansion of the Sanctuary and the building of a residence. The conditions of use of this expanded area in terms of access and services were to be in accordance with the conditions of use of the Sanctuary under the JSU prior to 23 December 1993.
234 The primary judge then noted that there were matters not dealt with by the JSU. The first such issue was the method by which the 20,000 acres were to be selected. After considering the evidence his Honour found (J[159]):
In my view, the agreement between the parties requires that the area be selected in one exercise and, apart from those areas not currently contiguous, that the land selected adjoin the current Sanctuary area made up by Stages I, II, III and IV. A single application will no doubt then be made for any necessary ministerial consent to a sub-lease or other grant of the entire Sanctuary area.
235 The next matter of detail was access. His Honour said (J[160]):
In my view there must have been and were terms granting Owston free and uninterrupted access to and from the Sanctuary areas and access to basic services such as water and electricity. These terms are largely derived from and in accordance with the parties’ practice in relation to the Sanctuary prior to this dispute arising. The fact that the Sanctuary is located in a unique environment in a remote part of the Northern Territory means that it must rely upon some of the already developed amenities of Tipperary in order to operate.
236 His Honour rejected (J[160]) a claim of the applicants that these services should be supplied at no cost. No cross appeal was filed in concerning that finding.
237 The primary judge also rejected (at J[161]) a claim by the applicants for the use of two houses on the Tipperary homestead by the Sanctuary staff. No cross appeal was filed concerning that finding.
238 The primary judge then directed himself to the term of the sub-lease. His Honour’s findings in this respect were the subject of complaint by Owston and Mr Anderson in the cross appeal. The primary judge after discussing the evidence said (J[165] and J[166]):
[165]I do not think that a term can reasonably be implied into the agreement that any sub-lease be in perpetuity merely because the head lease is in perpetuity. On the other hand, there was evidence that this was the term, and the only term, discussed or assumed. If a perpetual grant is to be declared for a sub-lease, further argument and perhaps evidence is necessary. In evidence Anderson expressed confidence that ministerial consent will not prove a problem but the Minister may choose a grant other than a sub-lease. For reasons to do with the conditions for conducting the Sanctuary and introducing the wildlife to it, on which there was virtually no evidence at all, it seems that the Sanctuary itself is not saleable or even transferable by gift. On the other hand, the cattle stations and other developments are able to be transferred at any time subject to ministerial consent. As there may from time to time be a clash between the conduct and disposal or dispersal of the two enterprises, and the operation of the Sanctuary cannot apparently be in the hands of anyone other than Anderson, it seems to me that tying the terms of one to the other may be harmful to either or both of [the] proprietors.
[166]It is preferable that this problem be resolved by negotiation. If agreement is not possible, I will hear further argument on the question.
239 No further reasons were given and the relevant part of the order made was to the effect that the agreement was for a lease or other substantial exclusive grant for the life of Mr Anderson. A cross appeal was filed in relation to this. I will deal with this when I come to the cross appeal.
The Findings of the Primary Judge – Estoppel and Misleading or Deceptive Conduct Concerning the Sanctuary
240 I have earlier referred [201] to [203] above to evidence concerning the beliefs of Mr Anderson and Mr Dew. The pleading is set out at [50] above.
241 The primary judge first dealt with the representations (J[169] and J[172]):
[169]The representations which are said to have given rise to the expectation of the applicants that they would be granted a lease or other exclusive right over the 20,000 acres were the consent to this effect which Bakrie and Rathod conveyed to Anderson in Jakarta on 14 December 1993, Graham’s statement to Dew in late December 1993 that a formal lease could not be executed in time for settlement and his agreement that a letter to the same effect be substituted, and Graham’s explanations to Dew on 22 December 1993 of the meaning of the Sanctuary letter drafted by Graham and his subsequent agreement to amend it. I have already examined these factual questions and expressed the conclusion that the conversations did take place substantially in the terms claimed by the applicants. It is my view that these representations, made in the lead up to settlement, would have induced a belief in the applicants that they were to be granted a lease or other exclusive substantial interest over the 20,000 acres.
…
[172]... In my view, the conversations between Anderson and Bakrie/Rathod in Jakarta on 13–14 December 1993 and the conversation on 22 December between Dew and Graham, which I have accepted occurred, are sufficient, in conjunction with the documents, to establish the representations asserted.
242 The primary judge dealt with reliance as follows (J[173]):
Further, as set out earlier in my findings on part performance, there is clear evidence that the applicants did rely on the representations that had been made in continuing to expend money on the Sanctuary, particularly in the development of Stage IV, and that Graham’s letter of 17 August 1994 was not sufficient in the circumstances to discharge the respondents’ responsibility to alert the applicants to their stated misunderstanding of their legal rights. Graham’s letter had a mischievous not a legal intent.
243 The primary judge concluded (J[174]):
In view of my findings on the contract, it is not strictly necessary to make findings on this claim in estoppel. For completion, however, I indicate that I would find that the respondents are estopped from denying the applicants’ right to be granted a sub-lease or other exclusive right over the 20,000 acres being discussed subject to any necessary ministerial approval.
244 During the appeal the Court raised with Mr West QC, who, with Mr Steele, appeared for the applicants below and for the respondents on the appeal whether, if the only reliance could be said to be going ahead with the construction of Stage IV of the Sanctuary in 1994, the minimum equity (if the estoppel be in equity) would not be a charge for that expenditure. He, frankly, agreed (on that hypothesis) but said that that was not the only reliance. He said Mr Anderson entered the other agreements to sell, true in circumstances where he perhaps had little ultimate choice; but if he had been told that there was no Sanctuary Agreement he had room to act. The following was put by Mr West in argument on appeal:
[A]s to the question of reliance or change of position and whether it would be unjust to allow resiling, Mr Anderson, we say, did enter into the transaction in reliance upon the promises. The concept [that] he had no choice, in our respectful submission, because of the colourfully expressed evidence that if he didn’t they would clean him out does not counteract or remove his entitlement to rely upon the position as it was represented to him, for these reasons.
We don’t know what the outcome would have been had Mr Anderson said, I’m not going to go ahead with this. We don’t know for certain, because it was never pursued with him. But we can say this, your Honour, and we would submit that the following is a likely scenario, given what the court has found about the way in which these men dealt with each other and in the light of the fact that Graham, in particular, was running his own subterranean agenda unknown to his bosses.
By that, I mean Bakrie, and we put this on the basis that Bakrie had a lot to lose if this deal didn’t go ahead. Firstly, he would have had the property sold up from under him. He was only a half owner, as it turned in common, and the property would have been sold as a whole and he’d be paid either the balance or there would have been a partition application in the Northern Territory. That’s the last thing he would have wanted. One can imagine the problems for Bakrie even closer to the bone, was the fact that he may well have been pursued for the 24 million, which had been forgiven by Anderson.
DRUMMOND J: By an agreement without consideration.
MR WEST: Yes, exactly. About which the receiver was already curious. Now what would have happened, we pose rhetorically and answer, if Anderson had said, I’m not going to go ahead? The first thing that would have happened is, we would respectfully submit, Graham would have had to have gotten on the phone to Jakarta and told his boss that the thing had fallen over, and one can imagine what then would happen.
His Honour has found that the discussions about the agreement that Anderson was to have and would come into effect on 23 December, about the Sanctuary and the shares, was discussed in Jakarta on 14 December. We know from his Honour’s finding and that Bakrie was prepared to grant 20,000 acres, a lease, sublease in perpetuity over 20,000 acres and he was prepared for Anderson to have the effects of his solemn promise to give him 40.815 per cent of Branir which would hold the 20 per cent economic interest in the assets.
What would that man have said if his lieutenant in Sydney had got him on the phone and said: Well guess what, we’re into a lot of fun now, the Bank of New York’s going to go to town, sell the property up under you. Could it really be suggested seriously that Bakrie wouldn’t have said: What are you doing, Charlie. You know as well as I do I’ve agreed to give this to Anderson. What would have happened in our respectful submission is that the Bank of New York would have been prevailed upon to stand the matter down until such time as the parties could properly document the agreement which they were promised to make. That’s what would have happened, Bakrie would have caved in.
245 I then raised with Mr West whether this way of putting it was encompassed by the pleading. He said that it was and that it was up to someone to cross-examine Mr Anderson about his affidavit evidence referred to in para [201] above, which did not occur.
246 In reply, I asked Mr Campbell whether the Court could assume that the way that Mr West described the estoppel was open to him (that is Mr West). Mr Campbell was of the view that it was. That exchange was as follows:
ALLSOP J: I asked Mr West about change of position and he gave, if I may so respectfully, a lucid account of the way he put it. Do you have any difficulty with the way he put it other than obviously contesting it. But can we assume that the feel [sic field] of debate is one of substance about that matter?
MR CAMPBELL: Yes
247 On this basis, there would appear to be on the factual finding of his Honour about what was said, a real foundation for an estoppel to the same effect as the pleaded contract. I will deal with this further in dealing with the appellants’ submissions.
248 As to misleading or deceptive conduct his Honour said as follows (J[176]):
Based on my previous findings and those to come, I am satisfied that the respondents made representations that subject to ministerial consent Owston would be granted a sub-lease or other exclusive right over the 20,000 acres to expand the Sanctuary and a 40% holding in Branir at a cost of $A8 million lent by Bakrie and repayable from company dividends. Graham’s evidence made clear his intention on behalf of the respondents that these commitments would not be honoured and they have not been honoured in fact. Consequently, in my view, misleading and deceptive conduct has occurred. If it were necessary to determine this issue, it would be my view that the applicants have sufficiently made out the other elements required by section 995 of the Corporations Law and would be entitled to relief under section 1325.
249 The primary judge did not deal with estoppel or the Trade Practices Act in so far as those matters were pleaded in respect of the Share Agreement in paras [30] to [41] of the 2nd FASC. No cross appeal was brought in respect of this.
The Orders Made by the Primary Judge
250 The Orders made by the primary judge were as follows:
THE COURT:
1. declares that there was as at 23 December 1993, and still subsists, a binding agreement between the parties that:
(a) subject to Ministerial consent being obtained, and for the purposes of expanding and operating the Sanctuary and building a residence and other necessary buildings thereon, a lease or other substantial exclusive grant without rental or fee be granted by the first and second respondents to the first applicant for the life of the second applicant over the area of Tipperary Station known as the Tipperary Wildlife Sanctuary, plus an additional area adjacent to the Sanctuary so that its total area is 20,000 acres;
(b) no part of the Sanctuary so expanded is to include any part of the existing Tipperary Station homestead area or mango plantation but is to cover, as closely as a professional survey will permit, the land adjacent to the present Sanctuary (known as Stages I, II, III and IV) up to approximately the northern boundary of the paddock known as “Campbells” and west of the road as far as necessary to encompass (together with the existing Sanctuary area) 20,000 acres of the paddocks known as Turkey Flat, Little Gardener, Jumbo, Electric Fence and Boords;
(c) the first applicant have free and uninterrupted access to the expanded Sanctuary area for itself and others authorised by it; and
(d) the first applicant have access to water, electricity and other necessary services from Tipperary Station at cost.
2. orders the first and second respondents;
(a) to take necessary steps to obtain Ministerial consent for the lease or other exclusive grant referred to in 1(a);
(b) upon consent being granted, to give effect to the consent and the declarations in 1(a) and (b) by preparing and submitting appropriate documentation in registrable form and, upon completion, by registering the first applicant’s interest; and
(c) to provide the first applicant with the access and services referred to in 1(c) and (d).
3. declares that there was, as at 23 December 1993, and still subsists, a binding agreement between the parties that;
(a) the third respondent will procure the first respondent to issue, and the first respondent will issue to the first applicant, and register the first applicant as the holder of, such number of shares in the first respondent as will result in the first applicant becoming the holder of 40.815% of the first respondent’s issued share capital (the Shares);
(b) the first respondent is to be debt free on the issue of the Shares;
(c) the first respondent will not thereafter incur any debt other than in the ordinary course of business of operating its assets;
(d) in consideration of the third respondent procuring the issue of the Shares and the first respondent issuing the Shares, the first applicant will owe the third respondent the sum of $8 million;
(e) the $8 million debt will bear interest from the date of issue of the Shares at the Indonesian market deposit rate for the greater Australian dollars and the equivalent number of rupiah from time to time averaged quarterly;
(f) the $8 million plus interest so calculated will be, and will be required by the third respondent to be, repaid by the first applicant from, and only from, such dividends as may be declared and paid on the Shares from time to time;
(g) the first applicant will irrevocably direct the first respondent to pay all dividends so declared and paid to the third respondent until such time as the $8 million plus interest is repaid;
(h) until such time as the $8 million plus interest is repaid, the third respondent will hold the certificate evidencing the Shares as security for the repayment;
(i) the first applicant will pay all stamp duty attachable to the issue of the Shares;
4. orders the third respondent to procure the issue of and register the Shares as declared in 3(a).
5. orders the respondents to pay the applicant’s costs on a party and party basis (except in respect of costs previously ordered in the proceedings).
6. refuses the respondents’ application of 23 August 2000 for a reconsideration of the finding that the agreement referred to in 3 is valid, and a declaration that it is void for uncertainty, on the ground that there is no “Indonesian market deposit rate” of interest for Australian dollars and for an amendment of the defence to that effect.
7. reserves liberty to apply in respect of any consent arrangements to substitute for the existing interlocutory injunction; that liberty to apply can be exercised on 3 days notice by telephone, and the consent arrangements can be arranged by fax.
8. orders that a stay be granted in relation to the execution and registration of the lease, should Ministerial consent be obtained.
The Appeal
251 No ground of appeal was raised by the appellants as to the formulation of the orders, other than the matters of substance to which I refer below.
Fundamental Background to the Appeal – Pressure on Anderson, the Complexity of the Settlement and General Preparatory Remarks
252 Before coming to the individual grounds of appeal, the appellants submitted that the events of late 1993 and the characterisation of what then occurred in terms of legal analysis should be viewed from the perspective of the “fundamental fact” that Mr Anderson was in a “financial corner” and under immense pressure from his major creditor, BNY, to settle. This, it was said, explains or gives primary context to the matters unresolved at the time of the settlement with BNY: the aspect of the matters between the Anderson interests and the Bakrie interests which form the subject matter of these proceedings. So pressured was Anderson, it was submitted, that he was prepared to proceed with settlement with “loose ends” still not finalised and that he was prepared to accept whatever he could get in relation to those matters, however incomplete in negotiation and documentation.
253 There can be no doubt, and the primary judge so found, that by late 1993 Anderson’s financial position was “perilous” (J[43]), that he was “in serious trouble with BNY and had to settle that dispute” (J[150]). It is also clear from his Honour’s findings that the settlement date of 23 December was a “final deadline” and that Anderson viewed himself as under “immense pressure from the bank” (J[203]) and saw his family as being hounded by bank representatives. BNY had already appointed a receiver to certain property and begun selling. The effect of the settlement not proceeding on Mr Anderson and his interests can be gauged by the pithy evidence given by him and referred to at [202] above. However, as I have earlier said ([208] above) it was also the fact that the uncompromising attitude of BNY directly threatened the Bakrie interests. As his Honour found, the threatened action by the receiver would have accounted to a potentially significant loss to Bakrie (J[19]).
254 There is no doubt that the parties recognised that 23 December was a true deadline and that failure to satisfy BNY on that day would spell financial disaster for the Anderson interests and pose a significant financial risk to the Bakrie interests. However, I do not conclude from that that it was a governing or determining circumstance denying the validity of any conclusion that the Anderson and Bakrie entities had reached consensus and intended to enter legal relations, though lacking finalised documentation. It was in the interests of both Mr Anderson and Mr Bakrie to see off BNY at settlement. It was a matter of importance to each to bring about a settlement with BNY.
255 The pressure on Mr Anderson was a factor which the primary judge recognised (J[19], J[43], J[150], J[183], J[203] and J[218]) but, correctly in my view, his Honour did not view it as of overwhelming importance. To posit this factor as overwhelming, or as the prism through which the balance of the case should be viewed, is to ignore important findings of the primary judge. His Honour did not find that Mr Bakrie attempted to use Mr Anderson’s straightened circumstances to lock him out of an agreement. Consensus was reached on all matters by mid-December. The explanation for the failure of the parties (assisted by skilled advisers) satisfactorily to document the Sanctuary and Share transactions is not Mr Anderson’s weakened negotiating position; that would presuppose continuing negotiations. Rather it was the conduct of Mr Graham. If there is a fundamental fact which dominates the events of November and December 1993 and explains the difficulties caused by the incomplete documents it is Mr Graham’s conduct. Once that is appreciated many of the submissions of the appellants amount to no more than a re-arguing of the case put at first instance with little or no focus on the attempted revelation of error on the part of the primary judge. This will become obvious in dealing with the appellants’ submissions. What follows is an example.
256 A matter relied upon by the appellants, in particular in support of the proposition that there was no intention to create legal relations, except by documentary participation in the final settlement, was the complexity and detail of the final proposed settlement. That the logistics and details of a once and for all removal of BNY were great is true, and hardly surprising. Numerous parties, covenants, warranties and other details were provided for. Further, it is plain that without a successful removal of BNY Mr Anderson and his interests could not realistically be viewed as being capable of delivering anything of value to the Bakrie interests. These factors, no doubt, in the ordinary course would be relevant, indeed powerful, factors underpinning an argument that the parties intended to embody such consensus as they had in formal documents at the appointed settlement day; and the failure to present and execute such documents might be compelling. However, these matters are not determinative and they are to be seen in the whole context of the events up to and including 23 December, which context was examined in detail by the primary judge and which context included the conduct of Mr Graham.
257 Given Mr Graham’s deliberate (and successful) attempts to prevent ordinary documentation of the consensus that had been reached it is of little importance to emphasise that, for example as at 29 November 1993 when BNY’s solicitors were arranging settlement, the parties anticipated that all interests and concerns would be dealt with comprehensively at the day for settlement. Of course they anticipated that. They (the Anderson and the Bakrie interests) wanted to be bound at settlement and by mutually satisfactory comprehensive documentation. It does not follow from the fact that Mr Graham’s conduct interfered with the drawing up of such documents that the mutual importance of the recognised need to be bound on 23 December was destroyed.
258 Further, that Mr Anderson could give nothing to Mr Bakrie without BNY being satisfied and removed at settlement does not of itself gainsay the possibility that the Bakrie and Anderson interests had agreed by the time of settlement that they would be bound contractually to each other according to any consensus which they had reached concerning their affairs and that that contractual binding would take effect upon the removal of BNY. All the mutual promises touching the various properties and shares were premissed, necessarily, on a successful settlement with BNY.
259 I will now deal with the matter substantially in the order in which the appellants approached the appeal.
The Shareholding Agreement
260 The first group of matters raised by the appellants went to grounds 15, 16, 17, 18, 20 and 21 of the notice of appeal. Those grounds were as follows:
15. His Honour erred in finding that by the Share letter (as defined in jgt §25) or otherwise the parties intended to create enforceable legal relations to issue to the First Respondent of 40.815% of the shares in the First Appellant.
16. His Honour erred in finding that there was a concluded agreement anterior to the Share letter as to the issue to the First Respondent of 40.815% of the shares in the First Appellant.
17. His Honour erred in finding the Share letter was an attempt by the parties to record in writing an anterior concluded agreement as to the issue to the First Respondent of 40.815% of the shares in the First Appellant.
18. His Honour erred in finding that the parties had entered into the Branir Shareholding Agreement (as referred to in Jgt §235) in the terms as declared in Order 3 made on 11 September 2000 or at all.
…
20. The Branir Shareholding Agreement is void for uncertainty.
21. His Honour erred in ordering specific performance of the Branir Shareholding Agreement.
261 These grounds were approached in submissions by reference to aspects of their subject matter, as follows: no consideration, the form of the acceptance of offer, error in methodology of the primary judge, the parol evidence rule, the alleged illegitimate use of subjective intention, an alleged demonstrable lack of intention to be legally bound, an alleged demonstrable lack of consensus, the alleged uncertainty of the agreement, the effect of the deposit of the share scrip and the alleged failure of the applicants to do equity. I will deal with each in turn.
No consideration
262 The first point made was that the Share Agreement and the Sanctuary Agreement each lacked consideration from Owston.
263 The most fundamental difficulty for the appellants in this contention is the undeniable proposition that it was not pleaded by the appellants in their defence, nor was it an issue addressed at trial, either in submissions or by his Honour. The appellants argue that it was a matter to be pleaded by the applicants (and not by them in their defence) and with issue being joined on the allegation of an agreement, the issue was before the Court for disposition and can be raised now on appeal. I disagree. Precisely whose pleading was technically deficient is not the point. No one took the point at the trial. If parties want to have a matter agitated and decided by the primary judge they have to raise it. This was a case described by Mr West QC, who was at the hearing, as one in which no quarter was asked for, or given. Lack of consideration to support either agreement was not raised and so not dealt with by the primary judge.
264 As to the Share Agreement, if the point had been taken, I am not satisfied that the applicants could not have directed their case, whether by a pleading of rectification or estoppel or by leading other evidence about the intended structure and interconnections of the consensual arrangements. One only has to remind oneself of the narrative to realise that the point, if agitated, may have led to a different course of the trial. The Macquarie deed had the subject matter of the Share Agreement covered in short compass in clause 4. It was in a deed which, of course, would have removed any vestige of any such argument. It was removed from the deed on the (dishonest) pretext that it was to be covered by another document (variously said to be a deed or an agreement) to be drawn in Jakarta. In the light of those bare facts it would plainly have been open to the respondents to argue such matters to found an estoppel if it were to be said that the arrangement agreed upon failed for this technical reason.
265 Further, there were plainly mutual promises between Mr Bakrie and Mr Anderson in the arrangement. This is reflected in clause 4(c) of the Macquarie deed. (See [111] above.) How Owston may have benefited from those mutual promises as the nominee of Mr Anderson was not explored. It could have been if the point had been agitated before the primary judge.
266 The irony of the point being raised now can be seen in the debate which took place about the importance of phrases used which described the share arrangement as a “gift” (J[247]). Mr Bakrie and Mr Rathod attempted in their evidence to move away from the meaning conveyed by the word. They were cross-examined to the opposite effect. The appellants cannot now use this debate and the primary judge’s views to turn the issue on its head by raising a matter not pleaded. It is true that his Honour, in the context of, amongst other things, describing the self-funding nature of the shares, described them as a gift. However, as the evidence fell out, this expression was rejected by the appellants’ witnesses. This way of viewing the shareholding arrangement for the purposes of a new argument isolates it from its place in the events leading up to 23 December as they unfolded in the litigation conducted in the context of such issues as were raised. His Honour found (J[223]) that “everyone knew that, at least from the applicants’ point of view, the share letter was critical. It involved the transfer of assets worth millions of dollars and was integral to the settlement proceeding.” Mr Graham, himself a participant in discussion, agreed in cross-examination that the 40% share issue was “part of the deal”. Thus, a further argument was available: that viewed as part of, and not separate from, the wider framework of contractual matters concerning the parties in late 1993, the agreement, if it otherwise be correctly so characterised, was supported by what otherwise passed between Branir, Owston, Mr Anderson and Mr Bakrie: the transfer of one-half of Tipperary, the payment of $20 million and the mutual entry into the transactions on 23 December, and the mutual promises therein contained. This may not be correct if one looks at the structure and terms of clause 4 of the Macquarie deed and at the sale deed executed on 23 December. In any event, it illustrates the issues which could well have been ventilated had the “no consideration” point been taken. It is far too late now.
267 As to the Sanctuary letter, I am of the same view. The point was not agitated. The interference to documentation was brought about by Mr Graham’s conduct. The arrangement as set out in the JSU contained mutual arrangements between Mr Bakrie and Mr Anderson. Matters to similar effect were agreed as the foundation of the indefinite binding relationship, until further formal documentation, if any. The formulation of possible estoppel arguments and questions of interlocking or collateral consideration could plainly have been ventilated if this had been an issue before the primary judge. Rectification of clause 3 (dealing with consideration) of the Deed of Sale executed and exchanged on 23 December may have been available.
268 The case below was conducted on the basis that the Share Agreement and Sanctuary Agreement were an “integral part” of the complex of transaction entered on 23 December. It was acknowledged by Mr Graham in his evidence (J[213]).
269 I would not allow this point to be argued on appeal in relation either to the Share Agreement or the Sanctuary Agreement, nor should an amendment be allowed for the reasons I have given. It would simply require a new hearing of the merits. It would be grossly unfair to the respondents to the appeal.
The Form of the Acceptance of Offer
270 A second legal reason said to vitiate the judgment and the applicant’s case arose from the form of the letter of acceptance of 23 March 1994. The letter of acceptance, it was said, purported only to accept the letter of 23 December 1993, that is, that letter in its terms, not any option under a separately agreed consensus pleaded as the Branir Shareholding Agreement. Thus it was said that if there were a substantive agreement entered on or before 23 December 1993 it was never formally accepted as, even on Owston’s own case, it had to be. Or put another way, any agreement reached in December was discharged and replaced with a new agreement.
271 There was a debate before us as to whether the reliance upon the acceptance letter of 23 March 1994 was the raising of a new matter. Plainly the appellants pleaded it in the cross-claim. (See [69] above.) They asserted that the 23 March 1994 letter was the acceptance of the contract which they asserted and sought to enforce. This assertion was part of the case plainly and squarely put by the appellants at the trial that there was no agreement about the shares as at 23 December 1993. Rather, it was said, a process of negotiation was concluded with an offer in the terms (accurately set out) of the letter of 23 December. However, what was not pleaded, by way of confession and avoidance, was that the subsequent correspondence (the letter of 23 March 1994) showed that even if a contractual obligation had been created in December, the parties mutually abandoned it, reopened the transaction, continued negotiation and concluded another bargain. Mr Campbell put it that the letter discharged any earlier agreement. He referred to Isaacs J in Howard Smith & Co v Varawa (1907) 5 CLR 68 at 84. What was undoubtedly put below (reflected in the written submissions handed up) was that this conduct (that is the drafting and sending of the letters of 23 December 1993 and 23 March 1994) along with all other conduct (including, as this was, later conduct) could be used to assist coming to the conclusion that there was no intention to contract or consensus in the manner pleaded by the applicants as at 23 December. That case was rejected by the primary judge. What was clearly not raised and not dealt with by his Honour was the effect of the letter in the form it took, assuming, against the appellants, that there was an agreement of the nature pleaded. It is not, in my view, just another way of putting the “no agreement” argument.
272 The appellants said that if the issue be seen as new it can now be the subject of an amendment in a stable set of facts as found by his Honour. The respondents rejected this, objected to the matter being raised now and said that the case would, in all likelihood, have been conducted differently had this been raised below. They said that greater emphasis may have been placed by them in evidence, including attempts at cross-examination, in relation to the rectification claim (which failed). They said (amongst other things):
In other words, if the case had been put below on the basis it is now sought to be put on appeal, Owston’s alternative case for rectification of the Share letter would have taken on an entirely different significance and would have led to a potentially quite different focus in the cross examination of Branir’s witnesses. It follows that Owston would be prejudiced if the matter was now permitted to be raised on appeal.
273 The appellants said that this submission was not open in the light of the failure to object to the amendment of the cross-claim. I reject this. This amendment did not plead this matter as put now by the appellants. The appellants also said:
The Respondents’ case for rectification of the letter of 23 December 1993 had been on since the Further Amended Statement of Claim of 7 November 1997 (ABI/128) and they conducted their case in accordance with it. The Court is entitled to test an assertion that a case would have been conducted differently. In the present case the Respondent’s assertion should not withstand scrutiny, particularly where they say a forensic decision was made on the strength, inter alia, of Mr Graham’s cross-examination, to focus on the Branir Shareholding Agreement to focus on that aspect of their case over the rectification case. They proffer no reason why they would not have made the same decision if, in particular, the discharge submission had been expressly put below.
274 I reject this approach. As I said at [38] above, how a hearing may have been conducted differently can be difficult to identify. Here responsible senior counsel, who conducted the hearing, has identified a possibly different approach in the light of what is a new matter. It is not to be brushed aside in the way sought to be done by the appellants. The matter is not one where I am confident for my part that no prejudice would be caused whether for the specific reasons identified in the submissions of the respondents or by the inability to put other matters because of the passage of time or by the inherent difficulty of hypothetically creating a “parallel universe”. For example, if the point had been run, further cross-examination may have taken place on documentation later brought into existence in 1994 by Mr Graham which plainly recognised in its terms an obligation in Branir to recognise Owston’s shareholding interest. Cross-examination may have been directed to the constitution of the agreement which he appeared to recognise. This issue, that the letter of 23 March 1994 worked a discharge of any agreement otherwise found to have been reached on or about 23 December 1993, should not be allowed to be raised on appeal and no amendment should be allowed to raise it.
The Methodology of the Primary Judge
275 The next criticism of his Honour was that he erred in his approach in dealing with the elements seriatim in J[236] to J[268]. I have earlier dealt with this at [217] to [221] above. It is said that he examined the questions integer by integer, finding consensus on individual points and, when he found all individual integers had been agreed, he concluded that there was a contract.
276 I do not agree that this adequately describes what his Honour did. In a complex case in which he was required to analyse a significant body of conduct and communication all the important integers of the contract had to be addressed. His Honour obviously thought clarity best called for separate analysis of important contractual integers. The important integers were, as far as the parties put them before him by way of debate, dealt with. His Honour at J[212] also dealt with the agreement as a whole. He determined the actual terms of the contract “in the light of all the evidence” (J[236]). I see no error of principle in the approach of the primary judge.
The Parol Evidence Rule
277 The submissions in relation to the share letter and acceptance were stark. It was said that whatever the position may be as to whether the letter of 23 December 1993 reflected the consensus of the parties, because the terms of the acceptance of 23 March 1994 are such as to provide an apparently self contained offer and acceptance, there can be no investigation of matters dealt with in the communications between the parties. This was so, it was said, even if all the evidence amounting to the communications was admitted without objection as relevant to questions of estoppel and the Trade Practices Act and even though no limitation was sought or made at the hearing upon the use of that evidence. The rule, it was said, is one of substantive law (not limited to admissibility of evidence) prohibiting the court from going beyond the offer and acceptance letters if, on their face, they record an apparent complete agreement. Reference was made to Gordon v McGregor (1909) 8 CLR 316, 322-324; Major v Bretherton (1928) 41 CLR 62, 67-68; Nemeth v Bayswater Road Pty Ltd [1988] 2 Qd R 406, 414; State Rail Authority of NSW v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170, 191-92; NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68, 76-7; Secured Income Real Estate (Australia) v St Martin’s Investments Pty Ltd (1979) 144 CLR 596, 606; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 347, 352; Bahr v Nicolay (No 2) (1988) 164 CLR 604, 617; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326, 362.
278 The argument was developed by the appellants to the effect that the parol evidence rule applied for three reasons: first, because of the express acceptance of the share letter of 23 December 1994, by the letter of 23 March 1994; secondly, because of the terms of the Deed of Sale, in particular the entire agreement clause; and, thirdly, because the whole course of negotiation did not disclose an agreement partly written and partly oral.
279 The third reason falls away if his Honour was correct, as I think he was, in finding an agreement which was, and was intended to be, partly written and partly oral. I have set out my view of the facts earlier. I will deal in due course with the appellants’ submissions on the alleged lack of consensus.
280 The first reason, insofar as it is different from the novation or discharge point which should not be allowed to be raised, amounts to the proposition that where one has letters of offer and acceptance complete and self-contained on their face or a document apparently a complete contract a party cannot in law propound a case that in fact those letters were not intended to be the agreement, but that the agreement was intended to be found in other conduct. That view was rejected by McHugh JA (as his Honour then was) in State Rail Authority v Heath Outdoor, supra. where his Honour said at pp 191-92:
…Under that rule parol evidence is not admissible to contradict or vary the terms of a written agreement. But it is a rule whose scope and rationale is often misunderstood. It has no operation until it is first determined that the terms of the agreement are wholly contained in writing. The tendering of oral evidence to prove a contractual term, therefore, cannot be excluded until it is determined that any terms in writing recorded the whole of the parties’ agreement: Corbin on Contracts (1960) vol 3 at 385; Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSW LR 309 at 337.
When a person alleges that an agreement was partly oral and partly written, it is not always easy to determine whether the writing is the exclusive repository of the bargain. Williston claims that, when a document appears on its face to be a complete record of the parties’ contract, it is conclusively presumed to be the contract: Williston on Contracts (1960) vol 3 at 358-3598. Support for Williston’s approach is to be found in the judgment of Street CJ in L G Thorne & Co Pty Ltd v Thomas Borthwich & Sons (A/asia) Ltd (1956) 56 SR (NSW) 81 at 88; 73 WN (NSW) 9 at 14. But in my opinion the correct rule is that the existence of writing which appears to represent a written contract between the parties is no more than an evidentiary foundation for a conclusion that their agreement is wholly in writing: Gillespie Brothers & Co v Cheney, Eggar & Co [1896] 2 QB 59 at 62; Turner v Forwood [1951] 1 All ER 746 at 749, J Evans & Son (Portsmouth) Ltd v Andrea Merzario Ltd at 1083; 935. In my opinion the English Law Commission correctly stated the law when it said:
“… the mere production of a contractual document, however complete it may look, cannot as a matter of law exclude evidence of oral terms if the other party asserts that such terms were agreed. If that assertion is proved, evidence of the oral terms cannot be excluded because the court will, by definition, have found that the contractual terms are partly to be found in what was agreed orally as well as the document in question. No parol evidence rule could apply. On the other hand, if that assertion is not proved, there can be no place for a parol evidence rule because the court will have found that all the terms of the contract were set out in the document in question and, by implication, will thereby have excluded evidence of terms being found elsewhere.”
281 The views of McHugh JA referred to above have received wide support: Saad v TWT Limited [1998] NSWSC 282 per Handley JA (with whom Priestley and Powell JJA agreed); Norwest Beef Industries Limited v Peninsular & Oriental Steam Navigation Co (1987) 8 NSWLR 568 at 570 per Hope JA (with whom Samuels JA agreed); Yau v Cheung [1999] NSWCA 56 at [38] and [39] per Powell JA (with whom Mason P and Giles JA agreed); Bell v Queensland Design Pty Limited [1994] QSC 9 per Macrossan CJ and McPherson JA; MacDonald v Shinko Australia Pty Limited [1999] 2 Qd R 152, 155 per McPherson JA (with whom Moynihan J agreed); Agseed Pty Limited v Broad [1991] SASC 2880 per Olsson J; and, in this Court, see Bruce v AWB Limited [2000] FCA 594 at [8] per Sundberg J.
282 The proposition contended for by the appellants is not borne out by the other authorities cited by them in support of it. In Gordon v MacGregor (1909) 8 CLR 316 the plaintiff and the defendant had undertaken negotiations; and then a written contract was signed in the following circumstances. The plaintiff took the document to the defendant and said: - “Are you prepared to sign the agreement and get on with the work?” The defendant said, “Yes”. The plaintiff said, “Where can we sign it?”. The defendant said, “In the station-master’s room.” The parties went there, where the defendant read over the agreement, filled in the date and signed it. It was witnessed by the station-master. Isaacs J did place weight on what the document looked like and that it used words appropriate to an absolute contract (see p 322). While he, in those circumstances, referred to an “almost irresistible presumption” that the document embodied the contract (see p 322), he also referred, in the circumstances before him, to the lack of any evidence to “displace that presumption.” The principle which he applied was the existence of a prima facie presumption that a document apparently intended to be the contract is such. However, he recognised that such a presumption could be rebutted by evidence, not seeking to add to the contract or to vary it, but seeking to show the parties’ intention that the document was not intended to be the record or embodiment or the complete record of embodiment of their agreement. At p 323 Isaacs J quoted the following from the judgment of Bramwell B in Wake v Harrop 6 H&N 768 at 774:
It should be borne in mind that a written contract, not under seal, is not the contract itself, but only evidence – the record of the contract. When the parties have recorded their contract, the rule is that they cannot alter or vary it by parol evidence. They put on paper what is to bind them, and so make the written document conclusive evidence between them. But is always open to the parties to show whether or not the written document is the binding record of the contact. [Emphasis added.]
283 In Major v Bretherton (1928) 41 CLR 62 at 67-8 Isaacs J discussed the presumption referred to by him in Gordon v MacGregor, supra and said:
The presumption is strong that a written contract is the conclusive record of the agreement of the parties with respect to its subject matter, and consequently that it is the exclusive evidence of that agreement. The more formal, precise and detailed the written contract, the stronger is the presumption and the more difficult to overcome by oral testimony. I regard it as a highly dangerous course for a Court to take, to sanction the virtual variation of written contracts, and even contracts under seal, by controverted oral evidence, unless supported by circumstances of the clearest and most convincing character.
284 See also Isaacs J in Hoyt’s Proprietary Ltd v Spencer (1919) 27 CLR 133, 143-4.
285 For my part, on the evidence and the findings of the primary judge the matters of the character described in the last sentence of the passage quoted from Major v Bretherton, supra, ([283] above)were present here.
286 In NSW Cancer Council v Sarfaty, supra, at pp 76-7 Gleeson CJ and Handley JA said:
The parol evidence rule operates as an exclusionary principle only when the writing in question contains the entire agreement of the parties: Corbin on Contracts, St Paul, Minn, West Publishing Co, vol 3, §573 at 357ff; Greig and Davis, The Law of Contract (1987) at 443. As Corbin observes, (§582 at 451) in determining the anterior question of the completeness of the writing as an expression of the agreement between the parties, “evidence extrinsic to the writing itself is admissible”: see also Norwest Beef Industries Ltd v Peninsular and Oriental Steam Navigation Co (1987) 8 NSWLR 568. Where it applies, the parol evidence rule is used to protect the completeness and integrity of the writing. It would be paradoxical if the rule could be used to produce the consequences that a court cannot receive evidence of the oral expression of a common intention that the writing in question should contain the whole of the contract between the parties. In the present case the appellant, arguing that the evidence is inadmissible, seeks to use the parol evidence rule, not to maintain the completeness and comprehensiveness of the express written agreement, but to deny it. That is an inversion of the purpose of the rule.
287 On the facts as I have set them out, to use the parol evidence rule in the manner urged by the appellants would be to invert the purpose of the rule by impermissibly and prematurely applying it to the anterior question of whether the writing was intended to embody the agreement. Here the primary judge found that the letter of 23 December did not, and was not intended to, completely embody the agreement. In my view he was correct.
288 In Nemeth v Bayswater Road Pty Ltd, supra, McPherson J (as his Honour then was) discussed the possible differences in the cases as to how one deals with writing apparently complete (alluded to by McHugh JA in Heath Outdoor, supra). McPherson J said the following, at p 414:
For my part I cannot see that the rule can rest on anything more than a presumption as to the intention of the parties. In Gordon v MacGregor, Isaacs J. spoke of it as a prima facie presumption (8 CLR at 323). No doubt the force of the presumption will vary according to a variety of circumstances, including the nature, form and content of the written instrument concerned, making it naturally more difficult to displace when the instrument is one which, in appearance and detail, itself suggests that the parties intended it to be the exclusive record of their contractual rights and obligations. The real matter of difficulty, and the source of much of the controversy, arises in attempting to define the circumstances that may be considered in determining whether or not the presumption is rebutted. It can scarcely be doubted that a mere unilateral assertion in the proceedings that the written instrument does not embody all contractual terms is not sufficient to displace the presumption to which the parol evidence rule would otherwise give rise. In the passage from Gillespie Brothers & Co v Cheney Eggar & Co. [1898] 2 QB 59, at 62, Lord Russell was not, I think, intending to suggest or imply the contrary. So understood, what his Lordship said is in accordance with a number of later authorities on the subject.
289 The principles upon which evidence will or will not be admitted to aid in the construction and interpretation of instruments (Codelfa, supra at 347, 352, Secured Income, supra at 606 and Bahr v Nicolay, supra at 617, being the cases referred to by the appellants) do not affect this question as to the admissibility and utility of evidence in order to decide whether a document was intended to embody the contract or the whole of the contract and, if not, what was the contract.
290 The appellants also referred to what Clarke JA said in Trawl Industries v Effem Foods, supra at 361. In that case, there was a written contract. The issue was its proper construction. Clarke JA found that a pre-contractual conversation could not be resorted to in order to place a meaning on a contractual expression which the word was not capable of bearing. This was not a case about what was intended to be the contract and how it was made. I see nothing in Trawl Industries to contradict what McHugh JA said State Rail Authority v Heath Outdoor.
291 The appellants used Trawl Industries as the foundation for an attack on the last sentence of J[221] where his Honour said, speaking of the letter of 23 December 1993:
[221] Contrary to the respondents’ submissions, there was virtually no evidence challenging Dew’s account. Greiner was vague and general about the matter. Graham prevaricated and Richmond was not called. Dew was generally a reliable, truthful and straightforward witness. I believe that his account should generally be accepted. As to lack of opportunity to change the letter, I accept that there was considerable pressure at the time which would have effectively prevented any amendments. I also accept that the applicants received the letter on the understanding that its terms were informed by the discussions which had taken place.
292 His Honour there was dealing with one aspect of his findings as to the nature and terms of the agreement as he found it. He was not engaged in the process of interpreting an admittedly contractual document by reference to oral communication reflecting the subjective intention of the parties.
293 For my part, I think it unwise to express the principle in terms of presumptions. McHugh JA did not do so in State Rail Authority v Heath Outdoor. In a sense, a document apparently contractual on its face may lead to the need for some cogent or persuasive evidence to enable a conclusion to be drawn that it was not intended by the parties to embody their bargain. (Or, it may be simply and easily explained.) However, to introduce the notion of presumptions, in my respectful view, risks a mechanical approach to the analysis. The better expression of the principle is reflected in the words of McHugh JA, as consistently applied by the New South Wales Court of Appeal and supported otherwise by courts of appeal in Queensland and South Australia, that the existence of an apparently complete contract is no more than an evidentiary foundation for a conclusion that the agreement is wholly in writing.
294 What the primary judge found, for all the reasons adverted to by him, was that the agreement made by 23 December 1993 was not reflected in the share letter of 23 December 1993 and that that agreement was intended to give rise to binding legal relations upon formal acceptance which occurred by the letter of 23 March 1994, however infelicitous the terms of the acceptance might seem.
295 During submissions in reply in the hearing before the primary judge, the applicant said the following:
In form, the letter of 23 March 1994 responds to the letter of 23 December 1993. The letter of 23 December was not, in the applicants’ submission, a complete or accurate statement of the agreement of the parties on the “share deal”. Imperfect as it was, however (and had been acknowledged to be by Graham on 23 December 1993), it was in fact the only extant written document which even purported to set out the agreement. It therefore provided a convenient means for Owston to indicate its acceptance of the “share deal”, but the fact that the letter of acceptance therefore referred to it does not mean that Owston was thereby accepting it in all its acknowledged imperfection; merely that it was signifying its acceptance of the share deal as it in fact had been agreed between the parties.
296 This is in effect what the primary judge found. He found an agreement in words, documents and conduct different from the terms of the “offer” of 23 December on its face. He found that what was done in the letter of March 1994 was the taking up of the agreement reached in December 1993: as it was pleaded, the exercise of the option found in the Share Agreement. That approach was not foreclosed by the terms of the letters when that approach is founded on a case that the letter of 23 December 1993 was not intended to be the reflection of the agreement reached or the option in fact given. That approach is permissible. To the extent that it has its factual curiosity, in large part that is explained by the deceitful conduct of Mr Graham in deliberately setting out to sabotage the documentation of what had been agreed.
297 The second reason for applying the parole evidence rule is said to be the entire agreement clause in the Deed of 23 December. I will examine this question as part of ground 19 which concerned the effect of the formal documentation executed on 23 December 1993.
Alleged Illegitimate Use of Subjective Intention
298 Criticism is made of his Honour in respect of his approach (used in relation to the Share Agreement and the Sanctuary Agreement) to deciding whether the parties had an intention to contract. This complaint was part of a wider proposition that the evidence disclosed no intention to be legally bound. However, as one identified source of perceived error, I will deal with it separately. To the extent that that proposition reflects the orthodoxy of the objective theory of contract, it is both unexceptional and correct. Reference was made to B Seppelt and Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 at 9151; Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309; Twynam Pastoral Company Pty Ltd v Anburn Pty Ltd (1989) 6 BPR 13, 448; and Pirt Technologies Pty Ltd v Pirtform Ltd [2001] WASCA 96.
299 To the extent that his Honour was said to have taken into account the subjective intentions of Mr Bakrie or Mr Anderson or Mr Graham he was said to have fallen into error. No particulars were given of this error in submissions. Presumably this complaint is directed to the following:
(a) At J[148] and J[231] his Honour referred to a document created by Mr Graham entitled “Report on Settlement” written by Mr Graham to Mr Rathod and dated 24 December 1993 which stated amongst other things:
“We won a few but lost a few…
The Sanctuary and BBD we lost…
We lost the 40% share gift… “
At J[149] his Honour said:
In other words, Graham was reporting that he had failed in his efforts to avoid giving any binding commitment on the Sanctuary as he had been forced to acknowledge the agreement that had been embodied in the JSU, evidenced in the draft deed, and initialled in the Sanctuary letter. Graham clearly believed that he had entered into a binding agreement that gave Anderson what he wanted in this regard. I reject Rathod’s weak explanation that he understood that Graham had been forced to give a commitment to a longer lease than had been hoped for.
See also J[231] and J[232]
(b) There was the response of Mr Rathod to Mr Graham’s report on settlement referred to by his Honour at J[231] in which Mr Rathod stated:
Thanks for your above fax and I must say we have done well. Winning or losing is an integral part of business and specially in this case we have won all, sanctuary and BBD are not [to] be taken as lost but part of a fair business deal. Also 40% of VOTRAINT (now BRANIR) is not a gift but a reciprocal appreciation by Pak Ical and it is at a price and hence no gift.
I know Charlie, we will talk for days and write for ages, but you will not consider above flexibility’s from Pak Ical is not fair for our selves but I must say that what Pak Ical did was absolutely business like and it is total business acumen that got us out of a debt of US $24 mill plus interest. I think we must give points to Warren also for this, don’t you think so?
(c) Another example was the letter of 11 February 1994 written by Mr Graham to Mr Bakrie, the first paragraph of which read:
1. In the final Deed we left out any reference out any reference to the promise to give Warren 40% of Votraint (now Branir). On the day of settlement Warren demanded from me a letter which set out the promise, that is, the issued shares to be held by you until $8 million has been repaid either in cash or by way of dividends. The letter was set out as an offer to Warren and carried a paragraph that if the offer was not accepted in three months from 24th December 1993 then the offer will lapse. You know that I am strongly against giving Warren anything. Warren has not yet accepted the offer and I am hoping that he does not by the 24th March when the offer will lapse.
(d) There was also a memorandum from Mr Graham to Mr Gardner dated 15 February 1994 where the former said:
1. Owston Nominees is entitled to a 40% share in Branir Pty., Ltd., and thus is a beneficial owner of 20% of Tipperary Station Joint Venture Partnership. As a minority shareholder of Branir Owston Nominees has the right to attend Annual General Meetings of Branir and to receive and approve, if thought fit, the annual Accounts of Branir. Owston may not have access to or make decision affecting the day to day management decision of Branir Pty., Ltd. or Tipperary Station.
….
3. In regard to the Sanctuary, Mr Anderson remains the Beneficiary of the Sanctuary. Branir have for the time being agreed that although the land occupied by the Sanctuary is part of the Tipperary Pastoral Lease owned by the Joint Venture Partnership, that the Sanctuary my [sic] continue to occupythe land and continue to enjoy the privileges enjoyed by the Sanctuary as applied before Branir purchased its half share of the Joint Venture.
(e) There is also a memorandum from Mr Graham to Mr Bert Gianotti (Mr Anderson’s solicitor) dated 3 August 1994 in which he said:
…
In respect to the share certificates of Branir, you will be aware that the certificates must be held by Aburizal Bakrie until the shares are paid for.
300 These are not impermissible uses of subjective intention or irrelevant matters. All these people participated in a negotiation. These statements are evidence which could assist an inference to be drawn about what happened in that negotiation. In assessing whether consensus existed, and, if it did, whether it was intended to be binding and, if so, at what point, the primary judge needed to understand what was said, how it was said and in what human context it was said. Necessarily a judge is left with the evidence of witnesses about these matters. The contemporaneous views of people as to what happened can assist in understanding what objectively is likely to have previously occurred. In a case of agreement by word and conduct, how things were said, the human and business context in which they were said and the assessment of the nature and quality of the human communication is central to a judgment about consensus and intention to contract. The objective theory of contract does not mean that one only looks at the transcript to see what was said. One looks to witnesses and any other evidence to assist in understanding how it was said, with what manifest intention and in what context. For such a task the expressions of view of the participants are evidentiary matters which can be taken into account in assessing what in fact happened and thus in assessing that ultimately objective question. That, it seems to me, is exactly what his Honour did. I see no error.
Alleged Lack of Intention to Enter Legal Relations
301 At this point the appellants seek to have the Court review the evidence and come to a conclusion different from his Honour. That review is what I have sought to do earlier in these reasons. I reached conclusions consistent with those reached by the primary judge. I will now, in the light of that earlier factual evaluation, deal with the matters which the appellants submitted reveal that his Honour erred in finding an agreement binding as at 23 December 1993 as contended for by the applicants.
302 The first matter which it was said militated against the existence of contractual intention appeared to be the assertion that there was pleaded an agreement binding before the BNY settlement. This would be, it was said, an agreement to deal with assets binding before the parties’ free capacity to deal with them was assured: by the seeing off of BNY. I disagree. Plainly BNY had to be excised. Plainly if BNY was not excised the properties would be sold and there would be little left (of property controlled by Anderson interests) for Mr Anderson and/or Mr Bakrie and their colleagues to negotiate over. That does not deny those parties the ability to discuss and agree upon matters in a way which was to be binding and to take effect as from settlement on 23 December 1993, as his Honour found at J[268]:
In my view, the differences between the agreement alleged and the Share letter raised by the respondents are largely pedantic, discovered in an effort to justify their position. To a large extent, and certainly on the major issues, the respondents do not seriously take issue with the evidence, except in some minor ways. In the main, they did not advocate their witnesses’ evidence, in particular Graham’s and parts of Bakrie’s, as more believable than the applicants, when it might have been expected that a party who was presenting the truth would argue more than simply that the other side had not sufficiently proved its case. Despite some inconsistencies and anomalies, which are hardly surprising given that these events occurred up to 10 years ago, the evidence, including many contemporaneous documents, reveals quite clearly that there was an agreement between the parties which embodied the terms set out in the Branir Shareholding Agreement. I hold that the agreement was binding and enforceable in those terms as from 23 December 1993, and that the Share letter represented a failed attempt to embody that agreement in writing.
303 The second matter or group of matters pointed to which was said to militate against the existence of contractual intention was the presence of various factors normally associated with the lack of contractual intention until execution and exchange of formal documentation: the contemplation of lawyer drafted documents, the size of the transaction, the presence and availability of lawyers, the potential complexity of the legal structures, the presence of a trust and beneficiaries, the presence of complex arrangements among Owston, Tovehead and BBD. All these matters were factors but not overwhelming. As I have said earlier, the explanation for the failure to document the consensus can be found in the dishonest conduct of Mr Graham. Once that is recognised as the reason for the failure to consummate the usual procedures which one would (and the parties did in November and early December) expect, it is then simple to discard the failure to consummate those procedures as an indication either of lack of consensus or lack of intention to be bound. The parties had a consensus; they did intend to be bound on 23 December by a document as best they could get. As it turned out, the document was inadequate, recognised as such by the parties and can be seen (as his Honour found) as not reflecting the intended embodiment of the contract. Nevertheless, it played an important role in crystallising a point of focus for the creation of the contractual intent. It is plain that even more important than obtaining an accurate and complete embodiment of the consensus was a desire to have a binding arrangement at the settlement date. The desire for an accurate document was but a reflection of the latter. There was consensus. There was an inadequate letter partially reflecting it. That letter was discussed and the elements of the consensus were affirmed. His Honour found this to be intended to be legally enforceable.
304 All these matters suggested by the appellants are and were no doubt relevant to any assessment of the intention. None of the suggested complexities and difficulties is a matter which it can be demonstrated that his Honour ignored. Each takes its place in the overall evolution of the evidence which his Honour considered. No error in these respects was disclosed. These arguments really reflected a re-argument of the case without attempted demonstration of error.
305 Thirdly, it was said that the proposals concerning the shares were not likely to result in any significant benefit to Owston or Anderson in the short or medium term. Even if this were the case, which is highly doubtful given the views expressed by Mr Anderson in 1992 as to the expected returns on the feedlot (see J[35] to J[42]) and the contents of a summary of the prospects of the joint venture which was sent to Mr Anderson in May 1993 which showed significant net assets and expected significant cash flow, it is not a factor which reveals any error in either his Honour’s approach or conclusions. No one was cross-examined about this factor as one reducing the necessity or importance to the Anderson interests of reaching an agreement. It can be put to one side.
306 Fourthly, the appellants pointed to the position of Owston and Mr Anderson’s relationship to it to reveal the need for formality and something beyond the say-so of Anderson. Owston was a trustee in which others, besides Mr Anderson, had an interest. There was some evidence that Anderson ceased to be a director of Owston for some months prior to January 1994. It was submitted that “while he (Anderson) may have been an agent of Owston, he did not have power in the legal sense to impose his will.” Owston had a receiver and manager appointed in June 1993 and 17 September 1993 and 7 December 1993. The receiver did not cease to act until 23 December 1993. The documentation for the Macquarie deal and the December documentation had provision for multifarious parties, including the beneficiaries of the trust. Thus, it was said, formality was both anticipated and essential.
307 There are a number of answers to this. First, there was no pleading that Anderson lacked authority to bind Owston. The matter was not raised and was not the subject of contest. At J[181] his Honour observed that Anderson was not a director at 23 December but that “no one treated this situation as relevant.” In that light it is simply not open to the appellants to challenge his Honour’s finding at J[34] that Anderson made all relevant decisions on behalf of his interests, whether they be for Owston or for a member of his family. Mr Anderson plainly behaved in that way and no point was taken below to the contrary. Mr Anderson was not cross-examined either on his lack of authority or on the existence of any possible conflict of interest and duty or duty and duty arising between him and Owston or from him apparently acting for Owston. It is too late to raise this matter now.
308 Further, to the extent that Owston’s decision making was encumbered by the presence of a receiver, this was undoubted. But Mr Anderson and others were communicating about the situation to obtain after the (assumed) successful release and departure of BNY and its agents. The presence of a receiver in Owston is irrelevant to Mr Anderson’s capacity to bind it to relations to arise upon the departure of the receiver.
309 No error was shown in his Honour’s conclusion that there was an intention to be bound from 23 December to the agreement pleaded.
Alleged Lack of Consensus
310 The basic proposition contended for by the appellants was that, notwithstanding the credit findings and the necessity to assess the facts through the evidence of Mr Anderson and Mr Dew, it can be demonstrated that agreement (in the sense of consensus) was not reached by 23 December, other than in terms of the Share letter.
311 The first and most important element of this was that the negotiations reveal various quite different ‘share transactions’ discussed at different times. This too was essentially a re-argument of the case at first instance without any focussed attempt to show error. My review of the facts has led me to the conclusion that clearly there was consensus.
312 Differences were pointed to in the first draft of a Macquarie deed drafted by Dew in early September 1993. This showed, it was said, that Mr Anderson was to get a 25% interest in the Tipperary and Moonhill properties. A letter of Mr Greiner of 6 September 1993 was identified as Anderson having no on-going economic interest in the properties or the feedlot. These matters at this stage hardly matter. Mr Anderson went to Jakarta in September where the commercial essentials, though with a somewhat different corporate framework, were agreed.
313 The Macquarie deed ([111] above) was said to be different for a number of reasons. First, that Mr Anderson obtained the 40% personally, not Owston. This is only true to a degree. The deed provided for Mr Anderson or “as Anderson may direct”. There was no reason why Owston could not be that nominee. Anyway, by early December 1993 there was no doubt that Owston would take the issue of shares.
314 The error in the assumption as to Timeswitch’s ownership of Cross Hatch is pointed to. (See [116] above.) This, it seems to me, simply makes clear what was intended by way of the 20% economic interest in Tipperary. The error of the parties at the time is of no consequence.
315 The fact that the Macquarie deed gave the Anderson interests their 20% economic interest through an Indonesian corporate vehicle (as opposed to Votraint, an Australian company) was pointed to. This is a matter of detail. It was not taken up as an issue at the trial. It is of no consequence.
316 It is certainly true, as the factual description earlier makes clear, that there were changes from September to December in the corporate vehicles employed. One reason for this was the stamp duty implications of the September structure. Also, it is true that if Tippindo was to obtain Tipperary directly or indirectly and the economic interest was to be in it then that economic interest would bear the Tippindo debt to BBD. Neither of these matters undermines in any way the essential commercial integers agreed by mid December and their distinct consistency with what was agreed in September.
317 The appellants sought to identify differences of detail contained in individual steps in the process of communication from September as revealing a continuing state of negotiation up to the crystallisation of an offer in terms of the letter of 23 December. In particular, they point to the alleged change in the letters of 12 November and 3 December which could be read as giving Mr Anderson’s interests only a 20% interest in the feedlot. However, as I have discussed in the factual review earlier set out (see [80] to [216] above) it was clear that agreement was reached by mid December on elements of the Share Agreement as pleaded and that the apparent change contained in the letters of 12 November and 3 December (to the effect that the Anderson interests would only get a 20% interest in the feedlot) was (at best) a mistake. There was in truth no change of the kind suggested by the appellants.
318 Some emphasis was put on the fact that many drafts had no provision for the Anderson interests to take any interest in Votraint. This is so; but it was because Mr Graham (dishonestly) represented that this aspect of the arrangement was being dealt with in Jakarta.
319 Emphasis was laid on the documentation such as the letters of 12 November and 3 December, charging the shares with the whole BBD debt. An appreciation of the facts as I have set them out makes plain that this was tried in negotiation, rejected and accepted as rejected. It did, for a short period, reflect negotiation; but it died a quiet death in mid December.
320 Significance was attached to some of the evidence dealing with Mr Anderson (as opposed to Owston) being the recipient of the Branir issue of shares. At all times from the Macquarie deed, and in conformity with what one would expect, the take up of the shares was to be by Mr Anderson or his nominee. Later it became apparent that Owston was that nominee. This matter does not reveal any real change.
321 Two matters were identified as destructive of the proposition that there was agreement that Branir would be debt free. The first was that because of the existence of other documentation executed on 23 December, being the letter dated 22 December 1993 from Votraint to Owston indemnifying Owston against claims by BBD arising from the undertakings by Owston to BBD, referred to in [171] and [199] above, it was plain that some obligation or debt would exist in Votraint at settlement. Plainly the agreement for Votraint to be debt free could not contradict that obligation whether conditional or crystallised. The respondents to the appeal conceded as much. To that extent the declarations and orders of the primary judge require amendment. The respondents do not dispute that. However, the appellants sought to press the point further. They said it is destructive of any finding about Branir being debt free, whether or not so qualified. Used in this way, the respondents said that the matter was new and was not pressed below as a reason for lack of consensus. No particular prejudice was pointed to by the respondents. Rather they said that:
…If it had been put to the trial judge then he would no doubt have assessed its significance in light of all the other evidence, including the fact that the alleged inconsistency was not put to any witness. This Court cannot be in as good a position to make that assessment as the trial judge would have been, so that Owston is prejudiced if the matter is permitted to be put in this way on Appeal.
322 I am inclined to the view that this aspect should be viewed as part of the matrix of facts agitated before his Honour and that it is legitimate for, and open to, the appellants to point to the matter on the question of consensus. I do not think, however, that it avails them any advantage, other than that referred to above, which is conceded by the respondents. While the primary judge referred at J[253] to J[256] to conversations in November and early December, it cannot be forgotten that Mr Bakrie agreed to the issuing company being debt free in mid December, see [163] above. That must be qualified by the existence of the assumed obligation by the letter of 22 December, but the force and effect of the consensus on that matter is not destroyed by the necessary qualification to it.
323 I have earlier expressed the view (see [193] above), that the lack of discussion on 23 December about the failure to include in the Share letter the debt free agreement did not amount, in the circumstances, to an abandonment of that aspect of the agreement.
324 As to the agreed qualification, that arising from the undertaking by way of indemnity by Votraint as stated in that letter, there was some debate in the submissions about the proper construction of the letter and, in particular, what the monetary effect of it would be, or is. It is unnecessary to resolve such questions, which may or may not reflect real issues between the parties. It is enough to say that the declarations and orders should be modified to make the debt free status of Branir, subject to such obligations and debts, if any, as arise or may arise from the undertaking contained in the letter of 22 December.
325 The second matter identified as destructive of the proposition that there was an agreement that Branir would be debt free was the expressed desire by Mr Bakrie for the transaction to take the form of a purchase, rather than a loan, to enable him to fund the arrangement. It was said that displayed an intention that Votraint would bear at least a debt of $20m to fund the purchases from Owston. I disagree. As is clear from the factual commentary at [163] above the conversation of Mr Bakrie with Mr Anderson in mid-December in Jakarta was in its context not inconsistent with Votraint being debt free. (See [163] and [322] above.)
326 It was said that the need to deal with the position of Owston’s obligations to BBD and their assumption (so far as possible) by Votraint and the communications dealing with that matter reflected a lack of agreement upon fundamental matters in December. However, that was sorted out by delivery of the letter of 22 December, see above. None of these aspects undercut the fundamental consensus reached by mid-December on the elements of the Share Agreement and the intention of the parties to bind themselves upon the removal of BNY by or at the point of concluding documentation, to the extent that it was able to be produced (a matter which, with the approach of 23 December, became more problematic).
327 Some emphasis was laid on the non-contractual status of conversations between Mr Dew and the junior solicitor Mr Richmond and Mr Dew and Mr Graham in the final days leading up to and including 23 December. What is clear from the factual review earlier is that these conversations were not contractual negotiations, but discussions about the (less than adequate) documentation of what had been agreed. That there was confusion and error and ultimately documentary inadequacy is explained by the conduct of Mr Graham. The appellants attempted in their submissions to brush aside these findings. It was said that these findings were irrelevant to whether a contract was entered prior to the handing over of the Share letter or in terms of the Share letter. Also, infusing the submissions was the view that Mr Graham, by attempting to prevent accurate documentary consummation of any consensus, thereby succeeded in preventing objective contractually binding consensus. I disagree. The consensus had been formed and forged by mid-December. The intention was to become bound upon the removal of BNY. The parties anticipated and wanted a document or documents to reflect their consensus. As settlement approached it became apparent that adequate documentation of a complete and lawyerly kind would not be ready. (Other than Mr Graham, the participants did not understand why this was the case.) In place of such complete documentation letters were to be drafted to act, in the case of the Share arrangement, as a reflection of the agreed essentials of the arrangement. That was because some documentation was seen as important to record and crystallise the consensus previously forged. The presentation of inadequate documentation called for conversation to discuss its inadequacy. This was not negotiation. It did not reflect a breakdown or dissolution of consensus or of an intention to be bound. What it did do was objectively demonstrate the inadequacy of the document, and further reinforce its important role in marking out, as a partial documentary record, the point of contractual conception of the agreement previously forged and partly reflected in the document.
328 To say that Mr Graham’s conduct was irrelevant impermissibly ignores its central part in explaining and understanding the primary judge’s conclusions. It is the inability to attack that central group of findings about Mr Graham’s dishonest role which, largely, disables the appellants from showing error in the conclusions about consensus and intention to contract.
329 The kinds of considerations to which the appellants point would, in the usual course, lead one to think that the parties had not reached the point of contractual formation. The inadequate, indeed sloppy, documentation in such a big matter, with lawyers attending to it and with adequate documentation desired, may well have been sufficient, in the ordinary course, to display a still non-contractual stage of the bargaining process. But Mr Graham’s conduct explains that inadequacy and sloppiness as administrative, and not going to consensus or intention to be bound.
330 What the appellants really had to do was openly and avowedly embrace his dishonest conduct and say that he was successful in destroying the mutual and objectively displayed intent to be bound on 23 December in part by the document (in so far as it was accurate) and in part by the anterior forged agreement. They cannot do so, if the evidence of Mr Dew and Mr Anderson is a proper foundation for his Honour’s findings, which it is. Mr Graham successfully sabotaged clear documentation. He did not, as he could not, destroy the forged agreement and the expressed desire to become bound on 23 December by reference, in so far as it was accurate, to some document. He could not, and did not, force Mr Dew to accept the document as he drafted it. That is not to say that the document, partially accurate, did not act as a marker point for the binding of the parties to an agreed arrangement.
331 Also, attack was made on the conclusion that the Share letter was intended to be legally binding by the proposition that it was inconsistent with an earlier agreement intended to be binding. This misconstrues what his Honour found. The intention to be bound to the agreement, forged earlier, was plainly intended to be a binding relationship from 23 December and the removal of BNY. It crystallised at the point of the delivery of the (inadequate) letter.
332 Attack is also made on the conclusion of a binding agreement as at 23 December in the light of acceptance being required by the terms of the letter. In particular, reference was made to the last sentence of J[212] and the phrase “to be binding” there contained. It was stated that this reflected the inherent tension between the claims of the applicants and the form of the letter of 23 December. The phrase “to be binding”, it was said, showed a recognition in the primary judge of the futurity of any binding legal relations which was inconsistent with a finding of a binding agreement as at 23 December. Further, it was said, that futurity, marked by acceptance, meant that the only binding obligation which was created is seen in the terms of the acceptance – which terms accepted the terms of the letter of offer of 23 December. This analysis ignores the entitlement of the parties to bind themselves to an agreement that one of them, at its option, to be made known within 3 months, would have issued to it shares on the terms agreed. The agreement (an option agreement if one prefers to express it that way – as the pleader did, see para 24 of the 2nd FASC “at the option of Owston, such option…”) as of 23 December was binding. Upon exercise of the option performance of, or compliance with, the option would become binding. His Honour’s use of the phrase “to be binding” is to be understood in this way.
The Alleged Uncertainty of the Share Agreement
333 The appellants did not plead uncertainty of the Share Agreement. An application was made by them to raise this matter in one particular way after the conclusion of the evidence. Uncertainty was said to be present by the use of the phrase “current Indonesian market deposit rate from time to time”. His Honour rejected it. That rejection is the subject of a separate ground of appeal and I will deal with it later. For the reasons which I later give that aspect of the appeal should be dismissed.
334 Another aspect of the alleged uncertainty of the Share Agreement was said to be the arrangements concerning security for the repayment of the $8m to Mr Bakrie. This matter was also pointed to as one of the reasons why, as a matter of discretion, the agreement, if found to exist, should not be enforced.
335 The primary judge dealt with security at J[267] which I have set out at [225] above.
336 The respondents say that the way the matter is now being raised is a new issue. I do not think it is entirely new. It was dealt with by his Honour at J[267]. At least as a defence to enforcement it was pleaded in para 40(b) of the defence. It was not pleaded as a matter going to uncertainty. It should have been if it was to be relied on in that regard. I reject the proposition put by the appellants that it need not have been pleaded for that purpose. I note that the cross claim, in para 4 of the claims, only claimed the deposit of share scrip as security for the agreement there pleaded. Indeed, as can be seen from J[267] the argument raised in final address, but not pleaded, was that there was a requirement for additional security, not that the terms of the letter about security rendered the Share Agreement void for uncertainty. The primary judge dealt with the matter as raised. He concluded that the term, if it be one, for further security was allowed to wither. Another way of putting the matter was that the only security ever agreed on was that reflected in clause 4(c)(ii)(B) of the Macquarie deed ([111] above) that the share scrip be deposited with Mr Bakrie as security for the $8m plus interest. This was reiterated in December in conversation between Mr Dew and Mr Graham ([152] above). His Honour pointed out in J[267] that a body of evidence showed that the lodgement of the share scrip had been accepted as the only security. It was never suggested to any witness that there was a need for further security. That conclusion of the primary judge was correct.
337 If the question of uncertainty of the Share Agreement by reason of the terms of the letter had been pleaded it is possible that evidence could have been led about that. I would not allow it to be raised now.
The Effect of the Deposit of the Share Scrip
338 There was debate before his Honour in final address concerning the question as to whether the deposit of share scrip amounted to an equitable mortgage. His Honour found this “unsustainable” (J[267]). He made a declaration in the following terms (in order 3(h)):
until such time as the $8 million plus interest is repaid, the third respondent will hold the certificate evidencing the Shares as security for the repayment.
339 As I have said above that declaration accords with what the parties had discussed and written about security up to 23 December 1993.
340 The appellants submit that the legal conclusion from that order is, in any event, an equitable mortgage over the shares with the consequence that Owston will only be able to vote those shares in accordance with the wishes of Mr Bakrie, the equitable mortgagee. They relied on Wise v Landsell [1921] 1 Ch 420 and Fisher and Lightwood’s Law of Mortgages (Aust. Ed) p 198.
341 The respondents rely upon his Honour’s rejection of this argument in J[267], as referred to above. No substantive submissions were put by the respondents in support of these views of the primary judge.
342 At one level this is a debate about dicta of his Honour, unrelated to any order. No declaration was sought about the content of this aspect of the Share Agreement pleaded in para 24(v) of the 2nd FASC: that until repayment “(Mr) Bakrie was to hold the certificate evidencing the Shares as security…” Appeals are made from orders, not reasons. However, at another level, the effect of what his Honour said at J[267] does or may give content to declaration 3(h) which will, or may, bind the appellants hereafter, to the effect that the security contemplated by the declaration did not encompass any restriction on voting by Owston and was not an equitable mortgage.
343 For this reason I think it appropriate that the consequences of order 3(h) in the light of the evidence be set out.
344 There was no communication identified which dealt with any particular term or condition which was to govern the deposit of the share scrip. It was to be held by Mr Bakrie until full repayment of the $8m, plus interest; that is, by way of security for such repayment. In those circumstances equity will recognise an agreement to enter a mortgage and will view that as done which ought to be done and recognise an equitable mortgage: Coote A Treatise on the Law of Mortgages (7th Ed) vol 1 pp 51 and 64 to 77; White and Tudor’s Leading Cases in Equity (9th Ed) vol 2 pp 77-102; Story’s Equity Jurisprudence (6th Ed) Vol 2 [1020]; and Fisher and Lightwood’s Law of Mortgages (Aust Ed) pp 92 to 101 and 197 to 200. The principle is not restricted to deposit of title deeds per se. It extends to the deposit of share certificates: Harold v Plenty [1901] 2 Ch 314; UTC Ltd v NZI Securities (1991) 4 WAR 349, 351.
345 There being an equitable mortgage of the shares, Mr Bakrie, as mortgagee, would have the usual rights and obligations incidental to that relationship and position which would generally include the power to direct how the registered holder voted: Wise v Lansdell [1921] 1 Ch 420; Fisher and Lightwood op cit at 198. The primary judge was wrong to state the contrary.
Alleged Failure of the Applicants To Do Equity
346 The appellants also said that the primary judge should not have ordered enforcement of the Share Agreement because of the failure by the applicants to offer irrevocably to direct Branir to pay all dividends to Mr Bakrie in reduction of the loan. This was pleaded in paragraph 40(c) of the defence. It was said that the primary judge did not deal with this. This last contention was correct. His Honour did not deal with the point. There was good reason for that as appears in the respondents’ written submissions:
His Honour made no express finding on that allegation because it was not pressed.
At the conclusion of the time set aside for oral submissions in April 1999, his Honour left any issues on relief to be dealt with after he had made his factual findings (T1448.2);
When the matter came back before his Honour on 19 June 2000, no submission was made by the Appellants that his Honour should not order specific performance of the Branir Shareholding Agreement as he had found it. On the contrary, the Appellants proposed a form of orders which included an order for specific performance of the agreement, including an order that “upon issue of the shares, the first applicant [Owston] … (ii) must issue an immediate, an irrevocable direction to the first respondent [Branir] to pay all dividends issued in respect of the shares, to the third respondent [Bakrie], until such time as the debt owed by the first applicant to the third respondent in respect of the shares is repaid in full”.
In any event, the evidence was clear that Owston was willing to perform the Branir Shareholding Agreement as pleaded. It had not at the date of the hearing given any direction to Branir because the occasion for it to do so had not yet arisen; the shares had not been issued. Mr Anderson made it clear in his cross-examination, however, that he and Owston stood ready to perform the agreement (T 460-463).
347 Nothing was put orally by Mr Campbell QC in support of the appellants’ submissions in this regard. The point has no merit for the reasons put by the respondents.
The Indonesian Market Deposit Rate, Uncertainty and The Application to Reopen
Rejected by the Primary Judge
348 Grounds 22 and 23 of the Notice of Appeal are in the following form:
22 His Honour erred in refusing the Appellants’ application of 23 August 2000.
23 His Honour erred in failing to give reasons for his refusal of the Appellants’ application of 23 August 2000.
349 After the primary judge handed down his reasons and distributed draft orders for the consideration of the parties, the appellants sought to raise the question as to whether the “Indonesian market deposit rate for the greater of Australian dollars and the equivalent number of rupiah from time to time averaged quarterly” was uncertain and so raise the question as to whether the whole Share Agreement was void for uncertainty. It was also said by the applicants to raise (or re-agitate) the question as to whether the Share Agreement was intended to be legally binding.
350 Of course as referred to in [67] above the appellants themselves had pleaded this very interest rate in their defence and cross claim.
351 The consequences of the matter being raised at this time plainly required a re-agitation of the existence, certainty and enforceability of the Share Agreement, by this point found by his Honour to exist.
352 The matter came before the primary judge on 23 August 2000. No notice of motion was moved on, but it was recognised that it was an application to reopen and in effect amend by pleading uncertainty. Three affidavits were read by way of expert evidence – two of a Ross McLeod, a Fellow at the Australian National University and editor of the Bulletin of Indonesian Economic Studies, and one of Mr Andrew Hagger of Price Waterhouse Coopers.
353 His Honour reserved at the end of this argument. Before adjourning he said this:
Yes, all right. I shall reserve my decision on this matter. I will give it very soon because I realise what happens when you don’t. So it will probably be some day next week. We’ll let you know. I just want to put down a few matters in writing to deal with the arguments so that the parties rights on appeal are well protected.
354 On 11 September 2000 the primary judge pronounced orders which included order 6 which was in the following terms:
[The Court] Refuses the respondents’ application of 23 August 2000 for a reconsideration of the finding that the agreement referred to in 3 is valid, and a declaration that it is void for uncertainty, on the ground that there is no “Indonesian market deposit rate” of interest for Australian dollars, and for an amendment of the defence to that effect.
355 No separate reasons for judgment were published in relation to order 6.
356 It was conceded by the appellants before us that the discretion to refuse the application was one which could not be characterised as necessarily inappropriate or wrongful. Rather the complaint was on the lack of separate reasons.
357 The transcribed debate between Mr Campbell QC (who by this time appeared for the appellants) and the primary judge covers a number of pages. Mr Campbell accepted this was a reopening after a long hearing on something never pleaded or dealt with. His Honour in debate referred to the finality of litigation, especially long, hard-fought litigation. Discussion occurred whether the interest provision was severable. The primary judge referred to the obvious question of the likelihood of the Indonesian business interests knowing what they were doing. (Both these kinds of matters clearly raised questions of evidence.) The primary judge referred to the need for evidence in relation to questions of contractual intention. His Honour referred to Mr Graham as having died and the need to recall witnesses, to which possibility Mr Campbell responded “not necessarily”. The primary judge clearly contemplated in discussion the need for recalling witnesses. He referred to the need for at least exploration of the issues of relevant conversations.
358 Mr West was barely called upon in relation to re-opening and amendment. The refusal of such a late application in relation to such a fundamental matter was plainly open and plainly open to be made on a summary basis. In debate with counsel the primary judge canvassed the kinds of considerations which common sense would dictate were reasons for refusal of the application. A fair reading of the transcript indicates the views of his Honour. Reading the transcript I would not have thought the parties could have been in any doubt as to why his Honour did what he did. The application was a very late application to amend and reopen. The course taken by his Honour was not inappropriate. No substantive injustice was caused. In those circumstances, even if some formal reasons should have been given, which arguably the circumstances did not call for, no order under s 28 of the Federal Court Act is called for.
The Sanctuary Agreement
359 The first group of the grounds of appeal argued were grounds 6,7,8,10,11 and 14 which were in the following terms:
6. His Honour erred in holding that the parties intended to enter into legal relations in relation to the Sanctuary.
7. His Honour erred in holding that the Sanctuary letter (as defined in jgt §25) was anything other than an interim arrangement to allow the Sanctuary to be operated in its present form pending further negotiations.
8. His Honour erred in finding that the parties had entered into an enforceable agreement in relation to the Sanctuary in the terms as declared in Order 1 made on 11 September 2000 or at all.
10. His Honour erred in finding that the parties had entered into an enforceable agreement in relation to the Sanctuary in circumstances where the term of the agreement remained to be negotiated.
11. The agreement in relation to the Sanctuary as declared by his Honour is void for uncertainty.
14. His Honour erred in ordering specific performance of the agreement in relation to the Sanctuary in the terms as declared in Order 1 made on 11 September 2000.
360 I will deal with these matters under the headings in the submissions.
Alleged Lack of Consensus and of Intention to Create Legal Relations
361 The submissions of the appellants were largely a re-argument of the facts from the evidentiary perspective of the reliability of the evidence of Mr Dew and Mr Graham. My review of the facts undertaken earlier reveals, it seems to me, the existence of a clear consensus on 23 December 1993 of the matters found by the primary judge (with one exception to which I will come).
362 Against that background, I think the respondents’ submissions have great force in emphasising the relevant findings of the primary judge when they point to the following:
(a) The Sanctuary was in many ways unique. It was not an indulgence or a hobby, but a long term project to save endangered species: see J[3].
(b) The Sanctuary was a substantial undertaking representing a capital investment in excess of $3 million (J[3]) and with a running cost of more than $250,000 per annum (J[5]).
(c) The Sanctuary was not an undertaking which could be readily relocated. The Sanctuary was a quarantine facility. The animals were subject to lifetime surveillance by the quarantine authorities and moving them was a costly and difficult exercise (J[6]). In this regard, Mr Langham, whom his Honour accepted as a “manifestly truthful witness”(J[68]) gave evidence that the transportation of the animals “is a difficult exercise, as they are inherently very susceptible to stress and will die if they are not handled with the utmost care”.
(d) His Honour found that it had always been the understanding between the parties that 20,000 acres of Tipperary would be for the Sanctuary. As his Honour said at J[57] and J[131]:
(J[57]) …from the very commencement of Bakrie’s involvement in Tipperary in 1989, there was an understanding between himself and Anderson that 20,000 acres would be used by each for his own purposes and that Anderson’s 20,000 acres would include and abut the Sanctuary.
(J[131]) The one fact which permeated any discussions about the Sanctuary from the very beginning of the events covered by these proceedings is that there was an agreement between Bakrie and Anderson that Anderson would have 20,000 acres for the Sanctuary.
(e) His Honour found that the preservation of the Sanctuary as an asset under Mr Anderson’s control as part of the arrangements being entered into on 23 December 1993 was a very important matter to the Anderson interests. See J[155]. It is plain from the judgment and the evidence of the communications between the parties that this importance was understood by Mr Bakrie and those advising him.
(f) His Honour held that Mr Anderson and Mr Bakrie reached an agreement in Jakarta in December 1993 which was intended by both parties to give rise to legally binding obligations: J[147], J[148] and J[153].
363 The appellants focussed in their submissions on the three matters identified by the primary judge at J[144]: the Jakarta discussions in December ([163] above), the facsimile from Mr Rathod to Mr Graham and Mr Greiner after the Jakarta discussions in December ([168] above) and the Sanctuary letter in the context of the discussions which surrounded it ([181] to [183] and [195] to [198] above).
364 The respondents, I think with some justification, objected to this differential analysis by the appellants and pointed out, correctly, that his Honour considered all of the evidence as a whole. However, turning to the appellants’ submissions, they pointed to detailed differences between the draft deed agreed in Jakarta and the term of the JSU of February 1990. None of these matters takes the appellants anywhere. The elements of the consensus in the draft deed as amended by the surrounding conversations were plain. They mirrored exactly what Mr Bakrie and Mr Anderson had always understood their arrangement to be, with the exception that Owston now represented Mr Anderson’s interests, as the party to take the sub-lease.
365 The appellants next pointed out that as a real property conveyancing issue, the usual presumption is that no binding contract will be enforced until a formal document is executed and counterparts exchanged. Reference was made to the well known cases of Eccles v Bryant [1948] Ch 93; Allen v Carbone (1975) 132 CLR 528, 532-3; Seppelt & Sons Ltd v Commissioner for Main Roads, supra, Summit Properties v Comserv (No 784) Pty Ltd (1981) 2 BPR 9173, 9175-76; Sindel v Georgiou (1984) 154 CLR 661, 667-8; and Baulkham Hills Hospital v G R Securities (1996) 40 NSWLR 622 (McLelland J), and 631 (Court of Appeal), esp 634. However, the usual case does not have a factotum surreptitiously and dishonestly seeking to prevent documentation. His Honour found a consensus and an intention to be bound on 23 December. The lack of formal documentation is explained (as his Honour explained it) by the conduct of Mr Graham. Again, this submission is an attempt to re-argue the matter without seeking to identify error.
366 The submission was put that the discussions in Jakarta did not establish an immediately enforceable agreement. So much can be accepted. But that does not mean that taken together with everything in December, against the background of the history of the parties, that there was not a binding consensus intended as and from 23 December.
367 The respondents pointed out in their submissions that the submissions of the appellants on the formation of the Sanctuary contract:
… proceed in part on the same false assumption as is made in their submissions on the share agreement; that it is necessary to find an agreement for the grant of a sub-lease over the Sanctuary area which was intended to take effect as a legally binding contract in advance of the settlement on 23 December 1993. This was not Owston’s case. As with the share agreement, Owston’s primary case was that there was on 23 December 1993 an agreement between the parties for the grant to Owston of a perpetual sub-lease which was an integral part of the transactions being entered into on that day and intended to be legally binding from that date.
368 The appellants submissions did at times seem to require an event or point of time to be identifiable as the place or time of crystallisation or conception of the contract – to be able to identify the conforming acceptance of the unwithdrawn offer. In particular, there is said to be the necessity for it to be found that binding legal relations came into effect before settlement with BNY. In my view, such submissions misconceive the applicants’ case, the primary judge’s findings and, to an extent, the law of contract.
369 As I have earlier said in relation to the Share Agreement and as the above extract of the respondents’ submissions makes clear, the contract operated and was intended to operate from a specific point in time: 23 December. There was in fact a clear point of crystallisation of contractual intent. The contract arose from the prior conduct and communications of the parties, in particular around mid December. Mr Campbell QC called this a “springing contract” and something not known to the law. On the contrary, a number of authorities discuss the need not to constrict one’s thinking in the formation of contract to mechanical notions of offer and acceptance. Contracts often, and perhaps generally do, arise in that way. They can also arise when business people speak and act and order their affairs in a way without necessarily stopping for the formalities of dotting “i”s and crossing “t”s or where they think they have done so. Here, the “i”s were not dotted and the “t”s were not crossed because of Mr Graham’s conduct. Sometimes this failure occurs because, having discussed the commercial essentials and having put in place necessary structural matters, the parties go about their commercial business on the clear basis of some manifested mutual assent, without ensuring the exhaustive completeness of documentation. In such circumstances, even in the absence of clear offer and acceptance, and even without being able (as one can here) to identify precisely when a contract arose, if it can be stated with confidence that by a certain point the parties mutually assented to a sufficiently clear regime which must, in the circumstances, have been intended to be binding, the court will recognise the existence of a contract. Sometimes this is said to be a process of inference or implication. For my part, I would see it as the inferring of a real intention expressed through, or to be found in, a body of conduct, including, sometimes, communications, even if it be the case that the parties did not consciously advert to, or discuss, some aspect of the relationship and say: ‘and we hereby agree to be bound’ in this or that respect. The essential question in such cases is whether the parties’ conduct, including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract. The authority for the above can be found in, at least, the following: Meates v A-G [1983] NZLR 308, 377 per Cooke J (as his Lordship then was); Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR [97,326] at 11,117-118 per McHugh JA (Hope and Mahoney JJA concurring); Vroon BV v Fosters Brewing Group [1994] 2 VR 32, 81-3 per Ormiston J (as his Honour then was); Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523,555 per McHugh JA (with whom Samuels JA concurred); Pagnan SpA v Feed Products [1987] 2 Lloyd’s Rep 601, 611 per Bingham J (as his Lordship then was) affirmed on appeal at p 615; Pobjie Agencies v Vinidex Tubemakers [2000] NSWCA 105 [22-24] per Mason P (with whom Meagher and Handley JJA concurred); Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61 at [74] to [80] per Heydon JA; though see Toyota Motor Corporation Australia Ltd v Ken Morgan [1994] 2 VR 106, 178 per Tadgell J (as his Honour then was); and in this context see also Electrical Enterprises Retail Pty Ltd v Rodgers (1989) 5 NSWLR 473, 489 per Kearney J and Manzi v Smith (1975) 132 CLR 671, 674.
370 Some authorities, eg Toyota Motor Corporation, supra, citing Williston on Contracts, Vol 1 par 4:3 p 258, refer to the possibility of this class of contract, lacking manifested offer and acceptance, as rare. For my part, I think the use of such language of prediction of frequency tends to create an unwarranted presumptive barrier to the application of the approach referred to above.
371 An example of the approach of the appellants in this regard is to say that the fact that Mr Bakrie in mid December intended that legal relations “would come into being” is inadequate. The intention must exist, it was said, at the time the contract is formed. It must be, it was said, an intention to enter legal relations then and there. This is wrong. The intention to enter legal relations subsisted. They were to arise upon settlement on 23 December. The futurity of the intention on 14 December does not gainsay the existence of the intention on 23 December it having arisen, at least in part, from these discussions in mid-December; nor does it gainsay the attachment of that intention to the consensus then clearly forged.
372 Here, it is unnecessary, and indeed distracting, to ask when before 23 December a contract arose or to ask whether a contract was concluded by this conversation or that conversation. The task before the primary judge was to assess whether as at 23 December, when BNY was removed from the mutual affairs of the Anderson and Bakrie interests, the parties had sufficiently agreed terms of a relationship concerning the Sanctuary (and the Share arrangement) and whether they intended that arrangement to be legally binding. His Honour answered yes to both questions. In my view he was correct.
373 I do not propose to address every matter of detail raised by the appellants in their attempt to show that there was divergence of detail from time to time in what was written and spoken about the Sanctuary Agreement. From my review of the facts earlier set out there was sufficiently clear consensus on essentials and on intention to be bound. The one matter in respect of which I disagree with his Honour is the limitation of the interest of Owston under the Sanctuary Agreement to the life of Mr Anderson. I will return to that in due course.
374 It should be noted that the appellants, at one point, call in aid the conduct of Mr Graham. They say in their written submissions:
[53.8] The finding that Graham was deliberately stalling the preparation of a legal agreement concerning the zoo, and lied about Rathod arranging the drawing up of an agreement about the sanctuary in Jakarta (J § 83-84) supports the contention that there was no concluded agreement arrived at in Jakarta on 14 December.
[56] The findings to the effect that Graham was deliberately dilatory and evasive in the lead up to the settlement regarding finalising an agreement for the sanctuary (J § 151) tends against there being an intention to enter legal relations.
375 As I have said earlier, such a proposition misconceives the level at which Mr Graham’s conduct had an effect. His conduct explains why the expected documentation was not created. It did not, as it could not, affect the objectively expressed intent of the parties as to consensus, and, in the circumstances in which they found themselves, to be bound as and from 23 December 1993.
376 The appellants complain about the use by the primary judge of the facsimile from Mr Rathod to Mr Graham and Mr Greiner of the deed concerning the Sanctuary discussed in Jakarta (see [166] to [168] above). It was said that this was a private communication and so was not a step in contract formation: Film Bars v Pacific Film Laboratories (1979) 1 BPR 9251, 9255, per McLelland J. Such a principle of the irrelevance of internal communications for one purpose (assessing the objectively manifested intention) does not affect the ability of the primary judge to use, as he did, the fact and content of the communication as supportive of his conclusion as to what in fact had happened in Jakarta: agreement was reached on the contents of the document, with the exception of the phrase “presently used” (see [163] to [170] above). He used this aspect of the parties’ conduct to assist in unravelling contested issues as to the content of conversations in Jakarta in mid-December. His Honour was perfectly entitled to do so.
377 The appellants submitted that the Sanctuary letter (see [195] above) did not amount to a contract, “even when construed in the light of the conversations of the previous day, or when added to any previous communications.” This highlights, I think, the misconceived nature of their criticism of the primary judge’s reasons. Of course such a skimpy general letter was not itself a contract. It barely contained any aspect of consensus. It seems pointless to identify the respects in which it lacked the usual indicia of a conveyancing document one would expect in such a transaction. But as the document marking out (inadequately for the reasons alluded to) the crystallising point of legal relations, taken together with the communications, conduct and background circumstances earlier related, it takes its place as a contractual document.
378 While the Sanctuary letter was “interim” in one sense, it clearly marked out the binding nature of the agreed status quo until full documentation could be drawn. Its “interim” nature did not destroy the effect of consensus and intention to be bound in the light of Graham’s conduct which led to the need for it to be interim.
379 The appellants seek to derive assistance as to what were the actual intentions of Mr Graham: to create a precarious terminable licence. That was rejected by the primary judge; and rightly so, in my view. The parties’ intentions are to be taken from their communications which I have earlier set out. There was a clear arrangement to be bound indefinitely until further detailed documentation, in the context of what had been agreed in Jakarta.
380 It was put by the appellants that all that was agreed was a continuation of the present arrangements, such continuation being terminable on reasonable notice: see the cases referred to by Lockhart J in State Bank of New South Wales v Commonwealth Savings Bank (1985) 60 ALR 73 at 102. I disagree. First, there was, it seems to me, clear agreement by 23 December of all the matters (with one exception) found by his Honour. The agreement for the perpetuation of the then present position indefinitely, in the context in which it was discussed and written about, did not contradict the agreement forged in Jakarta earlier in December, which itself was built on an understanding between the parties going back to the February 1990 documentation and 1989 conversations and documentation. In fact, it reflected that earlier agreement forged in Jakarta. Secondly, if one is to look upon it as a licence, there is every reason not to imply a term of revocation on reasonable notice. Not the least consideration in this respect is the fact that the parties themselves identified a time for termination – when there was replacement by a mutually satisfactory further written agreement. Further, the nature of the investment and the activity tells against such a terminability, so long as a sanctuary or zoo was being conducted, (though such matters may perhaps have gone to the length of notice).
381 The appellants specifically challenged the finding in J[155] (see [232] above) that the parties agreed that the Sanctuary was not to be included in the sale of Tipperary as contrary to the deeds and conveyances on that day. I agree with the respondents’ submissions in this regard that this submission seeks to put an absurdly literal construction on his Honour’s words; it is clear that the primary judge was not suggesting that the underlying lease was not to be sold, only that Owston was to be granted a sub-lease in return. Similarly, I reject the challenge to the finding in J[155] that Mr Anderson did not intend to relinquish the Sanctuary. Notwithstanding the evidence referred to in [202] above, the finding was plainly open.
382 The appellants point to a variety of matters militating against a conclusion of legal relations being intended: the existence of the Crown Lands regime, Mr Anderson’s alleged limited ability to act for Owston (which I have earlier dealt with), the interdependence of complex transactions on 23 December with a number of potentially interested parties, for example beneficiaries of the Anderson family trust, the interest of the mortgagee BBD (which would, to the extent it covered land the subject of any licence, have taken priority over any sub-lease) and Owston as a trustee. None of these is determinative. There is no reason to think that his Honour failed to regard any of them. None discloses error on his part. As put, they represent a re-argument of the case at first instance without any focus on any perceived error of the primary judge.
383 It was said that little attention was given to the identity of the party to take the interest in the Sanctuary and to the question of ensuring the land was used as a sanctuary. As to the identity of the sub-lessee, it is plain that the parties equated Mr Anderson with his nominees (J[34]). Certainly by mid December Owston appears to be the nominee. The fact that the licences were in Mr Anderson’s name and many conversations refer to Mr Anderson does not warrant any conclusion that there was no consensus or intention to be bound.
384 The size and importance of the land (20,000 acres being 8.09% of Tipperary and in a prime location) and its complex statutory title were said to militate against contractual intent. Again, in the ordinary course this would probably be so. But Mr Graham’s conduct explains the lack of accurate attention to detail in writing by 23 December.
385 The mortgaging of the land to BNY and the fact that proceeds of the use of the land were to flow to BBD were also identified as matters militating against contractual intent and consensus. The release of BNY was an elementary pre-condition to the operative effect of any consensus. At no time was the position of BBD discussed at the trial as relevant, except in relation to the duration of the holding of the shares by Mr Bakrie (see [133], [134], [152] and [163] above).
386 The appellants have identified a number of places in which the parties sought to make clear that a document was intended. I have dealt with this elsewhere. It is plain that they did so intend, but it does not follow that they intended an inadequate document to operate to alter the forged consensus or not to act as the marker for the crystallisation of contractual intention.
387 The appellants rely on aspects of later conduct to deny the existence of a contract. The first is the letter of Mr Graham of 17 August 1994. No reliance should be placed on the self serving conduct of Mr Graham whose dishonest conduct was the prime reason for the documentary confusion of the previous year and who, at this time, was seeking to undertake a “sniping war” with Mr Anderson. Secondly, changes to the costing for hay, animal feed, fuel and other equipment was referred to by Mr Langham in his affidavit. The change was from free use to a “cost recovery basis”. This is not contrary to the existence of an agreement, rather it is consistent with contractual terms of the kind identified and declared by the primary judge. (See order 1(d).) Thirdly, the terms of the caveats placed on the title on behalf of the respondents were said not to reveal the contract pleaded, but rather to place reliance on letters dated 22 and 23 December 1993. Any such inadequacy is of minor respect and does not assist in divining any lack of contractual intent.
388 The appellants pointed to changes in the Sanctuary transaction over time as indicative of a lack of contractual intent. Significant emphasis was placed on Mr Dew’s conversations with Mr Graham before 23 December and his draft letter to Mr Graham after that discussion. (See [177] to [182] above.) The continuation of “present arrangements” until other arrangements are made formally was said to be inconsistent with the notion of a perpetual lease. But these discussions and acts have to be placed in their context. Mr Bakrie had already agreed to exclusive use of 20,000 acres in mid-December in terms of the draft deed. That was in the context of these essential matters having been known and understood between Mr Anderson and Mr Bakrie for over three years. Mr Dew was trying, under great pressure, to deal with the absence of an adequate deed and contradictory and clearly wrong documents being put up by Mr Graham. The perpetuation of the present regime (which involved exclusive possession) on an indefinite basis, where there was agreement that Owston could continue the possession and expand up to 20,000 acres, is not indicative of a lack of intention to be bound or a lack of consensus, rather the reverse.
389 The calling in aid of the inadequacy of the Sanctuary letter in setting out the agreed arrangement is of little use in the face of the findings against Mr Graham.
390 The findings concerning the terms of the agreement at J[156] (see [233] above) are challenged. It was said that there was no factual basis for the finding concerning the 20,000 acres. It was said that the only mention in the evidence of 20,000 acres was that it was discussed in Jakarta in mid December; and it was said that it was not mentioned in any document said to be contractual and that other references to 20,000 acres are insufficient to support the finding. I disagree. From the review of the facts earlier undertaken it is clear that the consensus between Mr Bakrie and Mr Anderson was always (that is from 1989) for Mr Anderson to be entitled to 20,000 acres. Further, as the respondents pointed out in their submissions the appellants’ submissions ignored the following in the evidence:
(a) Mr Bakrie’s admission in cross-examination that he had no objection to Mr Anderson having a lease for 20,000 acres of the property for his Sanctuary, that he told Anderson and Rathod that and left the details to Rathod (J[75]);
(b) Mr Rathod’s admission in cross-examination that he had a discussion in December 1993 with Mr Anderson in which he said that he wanted a lease over up to 20,000 acres (T1077.11) and that he understood that Anderson and Bakrie had come to an agreement about giving Anderson a lease over the 20,000 acres. (J[77]); and
(c) Mr Langham’s evidence (accepted by his Honour) that Mr Graham had told him late 1993 that there was an agreement between Anderson and Bakrie that Anderson could build on one side of the road “on 20,000 acres”. (J[68], see [106] above.)
391 Detailed submissions were made as to why the Sanctuary Agreement was void for uncertainty or “too uncertain to be legally enforceable”. The matters raised under this submission were also said to militate against the conclusion that legal relations were intended.
392 The respondents claimed that the allegation of uncertainty of the Sanctuary agreement was new and should not be entertained on appeal. Their submissions were to the following effect:
Because these matters were not put in issue below, there was no exploration in the evidence of whether or not the alleged uncertainties in fact exist so as to give rise to real issues, or of the factual matrix in which those expressions would fall to be construed. For instance, there was only incidental evidence of the history of the Sanctuary’s usage of water and electricity or of its likely future usage. Nor was Owston afforded the opportunity to seek to address the matters raised by pleading and proving implied terms covering the matters allegedly left uncertain by the agreement as pleaded. Owston would clearly be prejudiced if Branir were now permitted to raise these issues for the first time on appeal.
393 The appellants responded to this by saying that “no additional admissible evidence can be realistically identified.” They said that they were entitled to amend in a stable body of facts, given the exhaustive nature of the exploration of the relations between the parties. They branded the respondents complaints of prejudice as “unreal”. I disagree. If a party wishes to say that a pleaded agreement in relation to land is void for uncertainty, it should plead it and provide the necessary particulars to enable the propounder of the agreement to marshall evidence (if possible) in support of the proposition that such pleaded and particularised matters were not of such a character, between the parties, as to lead to any uncertainty, or insufficient uncertainty, to nullify the commercial bargain. It is simply not good enough to run a case on one basis, rake over the facts at great cost in trial time, lose and then, on appeal, roam over the factual debris of the case and say, “uncertainty”. It seems to me to deprive the respondents of all the advantage of contemporaneous consideration of the case. I am quite unconvinced that there would be no procedural and substantive unfairness to the respondents in this approach. I do not think that their complaints are “unreal”. Nevertheless, I will deal with the matters raised, in part because it was said that they go to the formation of contractual intent.
394 It was said that there was a lack of precision in the agreement as to the nature of the grant such that the primary judge could not find that Branir and Tovehead would “sublet or otherwise procure a grant”. To the contrary, the evidence is plain that a sub-lease or arrangement giving perpetual exclusive possession, mirroring the head-lease was the agreement. There was no uncertainty in this respect.
395 It was then said that there was no consensus as to the price. But there was no suggestion in the evidence of any price or rent. The orders made (order 1(a)) reflects this: “without rental or fee”.
396 A range of subsidiary matters were identified as creating uncertainty: the lack of agreement on necessary covenants eg on rates and taxes, periodical outgoings, the responsibility for statutory covenants, the insurance of improvements, responsibility for maintenance and for the health and responsibility for the animals. These kinds of matters and how the parties viewed them went largely unexplored, unsurprisingly as they were not issues pleaded going to uncertainty. They strike me as the kinds of matters referred to by Lang Leases and Tenancies in NSW (1976) at [104] as subsidiary terms, which the court can settle by implication. They do not, it seems to me, bespeak a lack of intention to be bound. They should not be allowed to be used now to found an uncertainty pleading.
397 The appellants also focussed upon the matters dealt with by the primary judge when he dealt with the content of the agreement, J[156] to J[161] and see [233] to [237] above. It was said that there had to be definition of the procedure for choosing the 20,000 acres beyond the matters considered by his Honour. The following rhetorical questions were asked: What was to happen if both chose the same land? Who was to pay for surveying and the conveyancing and other fees? These were not terms or elements essential to the bargain. They were not taken up at the trial.
398 Complaint was made by the appellants about his Honour’s approach at J[158] and J[159] in using the 1989 discussions as the informing background to his concluding findings in J[159] and set out in [234] above. It was said that he had elevated these conversations into contractual status when, earlier at J[57] he had indicated (see [87] above) that they were of “very little material value in deciding whether a binding agreement existed… some four and a half years later.” This criticism is misconceived. His Honour did not convert these conversations into contractual status. He otherwise found a contract in contemporaneous words and conduct in 1993, one that included a term about the expansion to 20,000 acres. He then found that the parties had for many years understood, with reasonable precision, where the 20,000 acres were. This enabled him to have confidence in finding an agreement on identifiable essentials and to frame an order. So understood, the matters referred to at J[157] to J[159] amply support the form of the order made. The events and documentation after the conversations in 1989 leading up to the February 1990 documentation did not in any way disentitle the primary judge from concluding that the contract formed in late 1993 was to be set in the context of the objectively manifested and long held understanding as to what would constitute the expanded Sanctuary.
399 It is unnecessary to deal with the question raised by the appellants’ submissions whether the JSU was itself void for uncertainty (a matter also not pleaded) or whether it gave rise to legal relations. However, like the conversation in 1989, this document takes its place in the context of understanding to what in 1993 the parties agreed as to the 20,000 acres. It assists in understanding that when the parties forged a consensus in December 1993 about the essential terms of the arrangement (Owston to obtain exclusive possession, on an indefinite basis, the Sanctuary to be enlarged to 20,000 acres contiguous to and including the existing Sanctuary area, but not on already developed land) that consensus was reflected, and given context by, the long held (though not necessarily contractual) mutually expressed understanding between Mr Anderson and Mr Bakrie.
400 There was said to be uncertainty in connection with access and terms for access. Again this was not pleaded by way of uncertainty. However, to the extent that the submission was that there was inadequate material for his Honour to imply the term concerning access which he did (order 1(c)), I disagree. How the parties had acted in relation to access hitherto, the reasonableness of any access and the necessity for access given the otherwise land-locked nature of the Sanctuary all provide ample foundation for the implication in accordance with Byrne v Australian Airlines Limited (1995) 185 CLR 410, 422-3.
401 The use of services (found by his Honour to be required to be paid for at cost) was said to undermine the certainty of the contract. Reference was made to his Honour’s conclusion at J[161] that “the applicants’ free use of potentially costly services was never seriously addressed or contemplated by the respondents … It will therefore be necessary to initiate an appropriate system for charging Owston for the Sanctuary’s use of those services”. It was said that this amounted to saying that the agreement was uncertain on this point. This illustrates the vice of raising uncertainty now, by using words used by the primary judge in a context not governed by the new issue. Anyway, his Honour was referring to free use – not use with an implied term to pay the cost.
402 The order made for services at cost was open as an implication in all the circumstances. It did not have to be the subject of express discussion. The implication made by his Honour can be seen as referrable to the imputed intention of the parties in circumstances where Owston was to have the use of the Sanctuary, but to do so required costly services to be provided. It was and is perfectly sensible and reasonable that they be paid for. Nothing in the evidence would have supported an intended profit margin to the owner of Tipperary.
403 In further support of the uncertainty the appellants raise future possible practical problems: (a) What if the Sanctuary calls for services beyond the capacity of Tipperary to supply? (b) What if, together, the calls for services by Tipperary and the Sanctuary exceed supply? Who in that event gets fully satisfied or is it to be pro rata shared? (c) What is the context of “other necessary services” in order 1(d)? Are the children of Sanctuary employees to be accommodated in the schoolroom at Tipperary? How is the ‘cost’ of the use of the airstrip to be worked out? These submissions highlight the vice of not having pleaded uncertainty. None of this was dealt with. The assessment of the importance (or lack thereof) of such matters could have been assisted by the pleading and particularisation of uncertainty in answer to the terms pleaded in para 13 of the 2nd FASC. Error is not to be found by the imagination of difficulties by counsel on appeal where the parties and the trial judge have not directed themselves to the question. It is impossible to know whether these are possibly real or only fanciful difficulties because the facts concerning Tipperary have not been investigated for these purposes. However, as the respondents pointed out, there was evidence that rain is plentiful in this area (60 inches per year) and that there is a water pipeline from a nearby river. Also, his Honour had had a view of the area and so had an opportunity to assess the nature and extent of the Sanctuary’s requirements. Further, as submitted by the respondents, common experience may indicate that the Sanctuary would need little electricity. But all these matters could have been dealt with beyond the point of speculation had the issue been pleaded.
404 The question of the duration of Owston’s contractual or other rights does give rise to some difficulty. The primary judge’s limitation on the interest of Owston for the lifetime of Mr Anderson lacks any support in the evidence. The appellants and respondents are in agreement on that. It was not discussed. Nor could it satisfactorily arise as an implication. It would have been contrary to all relevant discussion. The running of the sub-lease for as long as the head lease (in perpetuity) was the subject of discussion and agreement in Jakarta: see J[73]-J[79], J[80] and J[169] and see [163] above. Mr Dew and Mr Graham discussed the Sanctuary in a way consistent with this: see [182] above. His Honour recognised that this was the only term discussed (J[165]).
405 Thus, there was, it seems to me, no basis to limit Owston’s interest to a interest for the life of Mr Anderson. His Honour gave few reasons for it. However, there is, from the facts, enough material to lead to the clear conclusion that Owston was to have a perpetual lease. A suggestion was made during argument that the perpetual lease should be limited by the purpose of conducting the Sanctuary. All conversations took place against a background that a wildlife sanctuary or zoo was to be conducted on the land. The respondents did not seek to resist such suggested limitation when it was raised in discussion before us. I will examine whether such limitation is warranted when I deal with the cross appeal below.
Postscript on Consensus and Intention to Create Legal Intentions and Appellate Approach
406 Before leaving these issues of consensus and intention to be bound, I should make some further comments on the way the appellants sought to challenge the primary judge’s conclusions on these matters. Time and again the appellants pointed to differences in detail, often minute, between particular letters, drafts and conversations. This was so in circumstances where the commercial essentials of consensus were forged in direct, frank and blunt discussions between the dominating personalities of the two sides, Mr Anderson and Mr Bakrie. These men spoke for themselves, their entities and those associated with them. That is how the case was conducted. That is how the primary judge (correctly) approached the matter. One can well imagine the reaction of Mr Anderson or Mr Barkrie to a punctilious observer if the latter said to either: “True it is that you and Ichal/Warren have agreed between yourselves (or so you both think) the essentials of this arrangement, but there is no consensus because what you two have discussed does not agree with this or that draft in this or that way; also you have not dealt with every detail about access and services and how these are going to work. Also, (as to Mr Anderson) have you spoken to your wife and children and the directors of Owston about all this?” Either would have said (as Mr Anderson did on a number of occasions to Mr Dew, though not in answer to such questions): “Ichal/Warren and I have an agreement and it is this…[and he would have set out what they had agreed between themselves]”.
407 Common sense tells one that these two men were capable of identifying, and did identify, for themselves the commercially important matters for agreement, in order to forge a contractual consensus and that they were capable of forging, and did forge, that consensus.
408 The law of contract is built on honest commercial common sense. As Steyn LJ (as his Lordship then was) said in First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd’s Law Rep 194 at 196, (cited with approval by Handley JA in Saad v TWT Limited, supra):
The theme that runs through our law of contract is that the reasonable expectations of honest men must be protected. It is not a rule or a principle of law. It is the objective which has been and still is the principal moulding force of our law of contract. It affords no licence to a Judge to depart from binding precedent. On the other hand if the prima facie solution to a problem runs counter to the reasonable expectations of honest men, this criterion sometimes requires a rigorous re-examination of the problem to ascertain whether the law does indeed compel demonstrable unfairness.
409 The only expectations which Mr Anderson and Mr Dew or someone in their position could reasonably have had on the evening of 23 December 1993, in the light of what had been said and done up to that point, were that, though not comprehensively recorded, they had agreements concerning the shares and the Sanctuary to the effect (with the qualifications that I have identified) of those ordered by his Honour.
410 Further, virtually all the primary judge’s conclusions about the existence of consensus and the intention to create legal relations rested in part on his views not only of what was said, but also how it was said and the context in which it was said. His task was made even more difficult in that he was faced, at the recitation of evidence on crucial events, with contradictory testimony, some of which was unreliable, some of which was untruthful. He saw these witnesses. He formed views as to the inter-relationship of discussions and documents. Findings such as those in J[155]: “Despite the potentially disastrous consequences for Anderson if he did not settle, it is simply inconceivable that he would have passed over, and that Bakrie and his team could have believed they were acquiring the immensely valuable asset of [sic: and] full control of these vast holdings and assets, without securing the Sanctuary in the separate hands of its founder, protector and financier…” cannot be divorced from the tasks of assessing the witnesses in terms of deciding the effect of all the relevant communications, properly assessed as to context.
411 To a like, indeed greater, degree is the finding at J[147] which was central to the primary judge’s view about intention to contract in relation to the Sanctuary. Having been required to choose between versions of what happened in Jakarta on 12 to 14 December (see in particular J[80] and [163] and [76] above) the primary judge concluded: “There is nevertheless no doubt that Bakrie, as the principal witness on the respondents’ side, intended [by which I take his Honour to be concluding what was manifested in his words and behaviour at that time] that legal relations would come into being, based on the agreement reached verbally between himself and Anderson.” One does not attack such a finding by saying that the appeal court can decide this for itself by excluding a consideration of Bakrie’s evidence and by examining Anderson’s affidavit. That may reflect a recognition in counsel arguing the appeal of the hopelessness of an “Abalos attack” on the rejection of Mr Bakrie’s evidence; but it does not do justice to the finding of, or adequately recognise the degree of advantage of, or indeed the process used by, the primary judge in coming to that conclusion. It is not just a matter of the primary judge rejecting the evidence of Mr Bakrie. He saw him. He saw Mr Anderson. He came to the view on all the evidence that what was said, in the context in which and how it was said, revealed a clear intention to be bound.
412 I will not exhaustively go through all the primary judge’s findings about consensus and intention to contract, but the same considerations permeate any weighing up of the conclusions of the primary judge. As it happens, as shown earlier, I am in substantial agreement with the primary judge in respect of his conclusions. However, given the kinds of matters to which I have just referred, even if I had come to different views about aspects of consensus and intention to contract I would have been most reluctant to conclude that there was error given what I see as the substantial, if not overwhelming, advantages of the primary judge in the assessment of the essentials of consensus and intention to contract.
The Settlement Deed – In So Far As It Affects the Sanctuary Agreement
413 On 23 December 1993 Owston, Mr Anderson, Mr Bakrie, Votraint, Tovehead, Cross Hatch, Mrs Anderson and the family of Mr Anderson executed a deed of settlement. It contained the following:
WHEREAS
…
B. The Directors are the sole directors of Owston.
C. The Shareholders are the sole shareholders of Owston.
D. The Beneficiaries are the sole beneficiaries of the Trust.
E. Owston as trustee of the Trust is joint owner as tenant in common in equal shares of the land described in the Fourth Schedule and the improvements thereon (“Tipperary”) and all stock, moveable improvements, plant and equipment situated thereon (respectively “Stock” and, as to the last three items, “Plant”).
…
I. Owston, the Directors, the shareholders and the Beneficiaries have proposed a re-organisation of the assets of Owston to realise the full value of the assets of the Trust.
J. As part of that re-organisation Owston, the Shareholders, the Directors, the Beneficiaries and Moonhill have agreed that:
(a) Owston should sell to Votraint and Votraint has agreed to purchase all of the right, title and interest of Owston in and to Tipperary, the Plant and the Stock, and the shares in the issued capital of PTT held by Owston (the “PTT shares”) (collectively the “Northern Assets”); and
(b) Moonhill should sell to Votraint and Votraint has agreed to purchase the land described in the Sixth Schedule (the “Moonhill Land”) and all stock, moveable improvements, plant and equipment situated thereon (collectively referred to as the “Moonhill Moveables”) (the Moonhill Land and the Moonhill Moveables being together referred to as the “Moonhill Assets”) on terms and conditions set out in this Deed.
K. The Directors, the Shareholders and the Beneficiaries have requested that ARB, Cross Hatch, Votraint and Tovehead enter into a deed of settlement (the “Deed of Settlement”) with BNYA, Owston, Anderson, the Owston Group (as defined in the Deed of Settlement), ASA, Regal Investments Pty Limited and Errol George Chant.
NOW THIS DEED WITNESSES
…
2. Conditions Precedent
It is a condition precedent to Settlement that each of the conditions precedent set out in clause 2.1 of the Deed of Settlement is satisfied (the “Conditions Precedent”).
3. Sale and Purchase
3.1 Owston agrees to sell and Votraint agrees to buy Tipperary, the Plant, the Stock and the PTT Shares and Moonhill agrees to sell and Votraint agrees to buy the Moonhill Assets for the total consideration of $20,000,000.
3.2 The consideration of $20,000,000 mentioned in clause 3.1 is apportioned as follows:
(a) $4,410,000 in respect of the transfer of Tipperary;
(b) $3,550,000 in respect of the transfer of the Plant;
(c) $8,0404,000 in respect of the transfer of the Stock and all stock on the Moonhill Land as at the date of this Deed;
(d) $1,364,329 in respect of the transfer of the PTT shares;
(e) $2,635,671 in respect of the transfer of the Moonhill Assets.
3.3 The payment procured by Votraint pursuant to the Letter of Credit in accordance with clause 5.2(a) is accepted by Owston, the Directors, the Shareholders and the Beneficiaries as the total consideration for the transfer to Votraint of each of the Northern Assets and each of the Directors, the Shareholders and the Beneficiaries confirms and acknowledges to Votraint that each of them consents to such transfer and that Owston will at the time of such transfer be full authorised and entitled to effect such transfer.
…
5. Settlement
5.1 Settlement of this Deed will take place immediately upon satisfaction of each of the Conditions Precedent.
5.2 On Settlement:
(a) Votraint acknowledges BNYA is entitled to demand A$20 million pursuant to the Letter of Credit;
(b) the whole of the right, title and interest of Owston in each of Tipperary, the Plant, the Stock and the PTT shares and the whole of the right, title and interest of Moonhill in the Moonhill Assets will automatically vest in Votraint without need for any party to take any further action whatsoever;
(c) Votraint shall be at liberty to deal with the documents received by it pursuant to clause 4.1 as it sees fit;
(d) the documents received by Votraint pursuant to clause 4.1 shall be of full force and effect.
6. Warranties and Acknowledgments
6.1 Each of Owston, the Directors, the Shareholders and the Beneficiaries warrant that the Beneficiaries are the sole beneficiaries of the Trust.
6.2 Each of Owston and the Directors warrants to Votraint that on Settlement each of the Northern Assets will be entirely free from any security, encumbrance or third party interest whatsoever.
6.3 Each of Owston, the Directors, the Shareholders and the Beneficiaries acknowledges that it, he or she (as the case may be) has received independent legal advice as to its, his or her rights under, and as affected by, this Deed and shall, upon execution of this Deed, deliver to Votraint a certificate addressed to ARB, Votraint, Cross Hatch and Tovehead from such legal adviser (in the form set out in the Fifth Schedule) certifying that such independent legal advice has been given.
6.4 Each of Owston, the Directors, the Shareholders and the Beneficiaries acknowledges that ARB, Votraint, Cross Hatch and Tovehead are entering into this Deed and the Deed of Settlement in reliance upon the acknowledgment in clause 6.3 and each certificate referred to in that clause and each of the warranties contained in clauses 6.1 and 6.2.
6.5 Each of Moonhill and Anderson warrants to Votraint that on Settlement the Moonhill Assets will be entirely free from any security, encumbrance or third party interest whatsoever.
6.6 Each of Moonhill, Owston, the Directors, the Shareholders and the Beneficiaries acknowledge that approximately 600 cattle are agisted on Moonhill Land by Marubenie Australia Limited or a related entity (the “Marubenie Cattle”).
…
7.3 Each of Owston, the Directors, the Shareholders, the Beneficiaries and Moonhill covenants that they will take no action, including without limitation the commencement of legal proceedings, which would:
(a) adversely affect any of the assets being transferred pursuant to this Deed;
(b) adversely affect any of the rights of each of Tovehead, Votraint, Cross Hatch or ARB conferred by this Deed; or
(c) adversely affect any of the assets of each of Tovehead, Votraint, Cross Hatch or ARB conferred by this Deed.
7.4 Each of Owston, the Directors, the Shareholders and the Beneficiaries absolutely and unconditionally releases and discharges each of ARB, Cross Hatch, Tovehead and Votraint (each a “Releasee”) from any and all obligations of the Releasee to each of them as from Settlement. In this clause “obligations” means any liability obligation or undertaking to perform any act or refrain from any act or to pay any sum of money whether arising either in writing or orally. Each of Owston, the Directors, the Shareholders and the Beneficiaries specifically acknowledges that this clause does not in any way adversely affect the rights of Cross Hatch and Tovehead under the Agreement to Forgive Loan but rather, shall have effect, without limiting the generality of this clause, by way of confirmation of the Agreement to Forgive Loan.
…
12. Entire Agreement
This Deed is the entire agreement of the parties in respect of its subject matter. The only enforceable obligations and liabilities of the parties in relation to the subject matter are those that arise out of the provisions contained in this Deed. All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by this Deed.
…
15. Amendment
This deed may only be amended or supplemented by another deed executed by the parties to this Deed.
414 The only provisions of the deed pleaded by the appellants were clauses 5.2(b), 7.3 and 12: see paras 42 to 44 and 63 to 69 of the defence and [53] and [54] above. However, it is agreed that clauses 7.1 and 15 were dealt with by his Honour. As pleaded in paras 42 to 44 of the defence, clause 7.3 was set up, it seems to me, in answer both to the Sanctuary claim and the Share claim. However, his Honour appears only to have dealt with the matter in relation to the Sanctuary claim: J[140] to J[143]. The same can be said of the matters pleaded in para 66 to 69 of the defence. See generally J[135] to J [139].
415 On appeal the appellants sought to rely also on clauses 3.1, 3.3, 5.2(c), 6.2, 6.3, and 7.4. The respondents object to these as new matters which, in the sense I have earlier discussed, they said prejudiced them if they were allowed to be raised on appeal.
416 I will deal with the question of prejudice in due course although, given the views which I am about to express on construction of the deed, the question of prejudice perhaps falls away.
417 The surrounding evidence makes abundantly plain that the parties’ expressed mutual understanding was that both the arrangements concerning the issue of the shares and concerning the Sanctuary were not to be included in the formal documentation to be exchanged on 23 December. As to the Sanctuary it was plain from early December from Mr Greiner’s rebuffs to Mr Dew (see [115] above) and from Mr Dew’s conversations with Mr Graham (see [177] to [182] above) that the formal documentation to be executed and exchanged on 23 December would not deal with the arrangements concerning the Sanctuary. That matter was not intended to be the subject matter of the documentation. Likewise the Share Agreement – Mr Graham ensured that the draft prepared by BDW did not contain an equivalent to clause 4 of the Macquarie deed which dealt with the 40% issue (see [111 above). This was done on the (dishonest) pretext communicated by Mr Graham to Mr Dew that this subject matter was to be dealt with by a document being drafted in Jakarta. This evidence is plainly admissible in the construction of the deed. This was evidence of mutually manifested agreement or understanding of the subject matter of the deed, just as were the pre-contractual discussions of parties about what wool one of them had (on his own farm and also wool brought in from other farms) in the context of understanding what the phrase “your wool” in a written contract referred to: Macdonald v Longbottom (1859) 1 E&E 977; 120 ER 1177, which was approved by Mason J in Codelfa, supra at 349-50, and referred to by Handley JA in Saad v TWT Limited, supra. This was not evidence of the subjective intention of the parties as to the meaning of words in the deed later executed or to vary or modify the deed. It was evidence (a) of “what the circumstances were with reference to which the words [in the deed] were used, and the object, appearing from those circumstances, which the person using them had in view” – Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381, 1383-4; (b) of what the Court is entitled to know about “the purpose of the contract” and “the genesis of the transaction, the background, the context … in which the parties are operating” – Lord Wilberforce in Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989, 995-96; (c) of “the ‘genesis’ and ‘aim’ of the transaction” – Mason J in Codelfa, supra at 348 and Cardozo J in Utica City National Bank v Gunn (1918) 118 NE 607; 222 NY 204, at 118 NE 608; and (d) of things “which would have affected the way in which the language of the document would have been understood by a reasonable man” in the position of the parties – Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912-13.
418 With that commercial background and aim and purpose of the deed in mind one then construes each of the relevant clauses. They are to be read, unless clearly (and explicably) referring to either the Sanctuary arrangement or the Share arrangement (which none does), as directed to the intended subject matter of the deed – being what is recited, but not the two excluded subject matters to which I have just referred.
419 The appellants made reference to, and sought comfort in, Grant v John Grant & Sons (1954) 91 CLR 112 at 123 and 131. I do not think it assists them – to the contrary. The judgment of Dixon CJ, Fullagar, Kitto and Taylor JJ illustrates how general words in a contract (there a release) are or can be limited to the matters in contemplation of the parties at the time. Their Honours referred (at 124) to the words of Taunton J in Upton v Upton (1832) Dow P.C. 400, 406; 36 R.R. 817, 821
“… the general words of a release may be limited by the particular matter out of which the release springs and the particular intent of the parties by whom the release is executed.” [Emphasis added.]
420 This approach reflects the canons of construction referred to above of construing a document in accordance with its intended subject matter and excising from that subject matter what can be seen from the background circumstances as not intended to be dealt with.
421 With these considerations in mind I turn to the clauses relied upon by the appellants.
422 The first argument centred on clause 3: the clause setting out the consideration. It was said that to the extent that the Share Agreement was sought to be supported by reference to the totality of the mutual promises between the Bakrie interests and the Anderson interests clause 3 was contrary to this. The $20m, it was said, was the total consideration for the assets identified in sub-clauses 3.2(a) to (e) and it was not consideration for the issue of shares. Some support for that can be taken from the comparative form of clauses 1 to 4 of the Macquarie deed (see [111] above) where the $20m was not expressed as consideration for the share issue. However, I have already said that the appellants should not now be allowed to raise an argument that the Share Agreement fails for want of consideration; so this point, even if correct, does not assist the appellants.
423 Also, to the extent that it was put by the respondents that the Share Agreement had underlying consideration as a contract collateral to the sale agreement referred to in clauses 3.1 and 3.2, the appellants said that such argument was contrary to the terms of clause 3.3 and so any such argument fell foul of the rule that a collateral contract cannot be inconsistent with the main contract: Hoyts Proprietary Ltd v Spencer (1919) 27 CLR 133. There are two answers to that argument. First, the irrelevance of it, given my views as to the lack of entitlement in the appellants on appeal to run a no consideration argument. Secondly, such a collateral contract is not contrary to clause 3.3 . Clause 3.3 makes plain that the payment by Votraint under the letter of credit to BNY is the total consideration for the transfer of the property referred to earlier in clause 3. That does not disentitle someone from saying, not inconsistently: if you will buy X property for Y dollars from me I will enter another arrangement with you. It is the entry into the other (the first) contract which is the consideration for the second contract. It does not contradict the proposition that the $20m in the first contract is the consideration only for the property sold under the first contract.
424 It was said that clause 3.3 leaves no room for side-deals that have the transfer of the assets as all or part of the consideration. His Honour found that the agreement regarding the future of the Sanctuary was an integral part of the transactions entered on 23 December. A clause which was to be used to contradict or make unsustainable such a conclusion should have been pleaded. I am unconvinced that the trial would not have been conducted differently, especially bearing in mind the conduct of Mr Graham. I would not allow clause 3.3 to be now argued.
425 In any event, as a matter of construction and otherwise for the reasons expressed above, I do not read clause 3.3 as intended in any way to touch or affect the Sanctuary Agreement.
426 Clause 3.1 also founded a submission of the appellants. Clause 3.1, it was said, does not admit of any proprietary right remaining outstanding in Owston; and since, it was said, Owston’s claim concerning the Sanctuary was that it has such a proprietary right, such claim should fail. This misconceives the claim and his Honour’s orders. The sale to Votraint of all Owston’s interest took place. That is the subject matter of clause 3.1. A contemporaneous enforceable agreement (though in a sense conceptually at the instant after the sale), subject to the Minister’s consent, was entered by Tovehead and Votraint which was not the subject of clause 3.1 or the deed at all. As I have said, as a matter of construction the deed was not intended to deal with either the Sanctuary arrangement or the Share arrangement. Thus, as a matter of construction clause 3.1 does not prevent the operation of the Sanctuary Agreement.
427 This clause was also said to be a new issue. However as I understand the respondents’ submissions no prejudice is identified. In any event reliance on it fails for the reasons I have given.
428 Clause 5.2(b) is a vesting clause dealing with Owston’s interest in the land. It was said that this clause was inconsistent with any right of Owston in Tipperary remaining outstanding. In one sense so it is. However I do not think it impairs the operation of the Sanctuary Agreement. First, any real property interest in Owston which might be the consequence of the Sanctuary Agreement did not “remain”, it arose out of a new enforceable contract; and, secondly, as a matter of construction, plainly this clause is directed to the content and the effect of the sale effected by the deed, and not another arrangement expressly understood as foreign to the matters effected by the deed.
429 The submissions about clause 5.2(b) also assumed that the relevant contract upon which the applicants relied in relation to the Sanctuary came into effect prior to 23 December and so, it was said, the effect of clause 5.2(b) was to destroy the interest (and so somehow the contract from which the interest sprang). Apart from assuming that enforceable contractual rights are destroyed by such a clause vesting property, which is not at all clear, this proposition once again sets up (quite unnecessarily) the need for the Sanctuary Agreement to be in force and effect prior to 23 December. For reasons I have already given, this is not so.
430 Complaint is made by the respondents of the use of clause 5.2(b) as a new issue. It was conceded that paras 63 to 65 of the defence pleaded 5.2(b) as a reason for the destruction of any effect of the JSU, but that it had no place in the hearing otherwise. I will deal with the alleged novelty of such prejudice involved in clause 5.2(b) when I deal with the prejudice said to arise from the appellants arguing clauses 5.2(c) and 7.4.
431 The appellants also relied on clause 5.2(c). This was not pleaded. The answer to it is, I think, again, one of construction. In the circumstances, it could not have been intended by the parties that it would override or limit or affect rights and entitlements contained in other agreements deliberately and expressly not brought under or within this deed. I will deal with the claimed prejudice from its novelty in conjunction with clauses 5.2(b) and 7.4, below.
432 Clause 6.2 was raised by the appellants. It too was not pleaded. No prejudice is raised. As a matter of construction, plainly the warranty was not directed to an arrangement of which the parties were cognisant and which was not intended to be affected by this deed.
433 Clause 6.3 recites independent legal advice and the covenant in clause 7.1 was said, in that context, to prevent these proceedings from continuing. His Honour dealt with this argument at J[142] and J[143] where he dealt also with clause 7.3. He appears to me to have dealt with these arguments as a matter of construction. In the light of all that had passed between the parties, it was not only open to his Honour to conclude, but he was, in my view, correct in concluding that the covenants in clauses 7.1 and 7.3 were not to be construed as related to the enforcement of rights in two cognate, though separate, arrangements both deliberately and expressly not sought to be there documented.
434 The appellants also relied on the mutual releases in clause 7.4. This was not pleaded. Again, in my view the simple answer is that as a matter of construction the wide words of the release are to be read down to conform with the parties’ rights under contemporaneous agreements deliberately and expressly set apart from the deed.
435 In relation to clauses 5.2(b) and 5.2(c) and 7.4 the respondents complain of prejudice by the late raising before us of these matters. The submission of the respondents in respect of each was as follows:
If these matters had been pleaded or put below, then it would have been open to Owston to seek to amend its pleadings to plead rectification of the relevant clauses of the Deed so as to reflect the common intention of the parties that the agreements were all to have legal effect as part of one overall settlement or that there existed a conventional estoppel in that regard. Given what his Honour has found to be the facts of the matter (ie. that the agreements were an ‘integral part’ of the transactions at settlement), it could not be said that such a further claim by Owston would have been bound to fail.
436 The appellants pointed out that it was not put by the respondents that they would have pleaded rectification, only that it was open. In fairness to the appellants, it should be noted that the respondents, as applicants, did not plead rectification in relation to clauses 7.1 and 7.3 which were argued and, in respect of clause 7.3, pleaded.
437 Also, the appellants claim that clause 5.2(b) was pleaded in paras 63 to 65 of the defence in terms wide enough to encompass the argument now put. I disagree. It was limited to deal with the JSU.
438 Whilst I think the pleading of these matters in clauses 5.2(b), 5.2(c) and 7.4 may not have led to a fresh rectification issue, in circumstances where the argument and pleading of clauses 7.1, 7.3, and 12 did not, it is possible that the addition of these other provisions may have brought about a different course. I repeat my views earlier expressed that the right of parties to contemporaneous consideration of issues at or before the hearing should be respected. In these circumstances, I am not persuaded that there could be no prejudice. Therefore, I am of the view that the appellants should not be allowed to raise these matters on appeal. This is an alternative basis for the rejection of these arguments, because I would otherwise reject them for the reasons which I have given.
439 The appellants also submitted that the primary judge erred in construing the deed so as to deny clause 12 the effect of proscribing the present action or of interfering with the mutual rights and obligations under the Sanctuary Agreement. (See J[142] to J[143].) The appellants relied on a number of cases to support their argument that clause 12 prevented any enforcement of the Sanctuary Agreement. Reliance was placed on Dent v Moore (1919) 26 CLR 316, 323; Hart v Macdonald (1910) 10 CLR 417; Australian Co-Operative Foods Ltd v Norco (1999) 46 NSWLR 267; and Johnson Matthey v AC Rochester Overseas (1990) 23 NSWLR 190, 195-196.
440 Whilst “entire agreement” clauses have sometimes received separate treatment as a genus, leading to an approach, as evidenced by the appellants’ submissions here, that there is a rule of law related individually to them, it seems to me that they only reflect the epitome of the operation of the parole evidence rule. The parties have merely expressly avowed that the totality of the contract, about the relevant subject matter, is to be found within the four corners of the document. Chitty on Contracts 26th Edition [854] deals with entire agreement clauses under the heading of the parol evidence rule. See also MacDonald v Shinko Australia Ltd, supra at 155 per McPherson JA; Hart v McDonald, supra at 430; Dent v Moore, supra at 323; and Hope v RCA Photophone of Australia Pty Ltd, supra at 357-358, 362-63, 365-66, 368. However, it may be, though it is unnecessary to decide, that specific and express entire agreement clauses have a particular role to play in the intersection of the operation of contract and conventional estoppel: see Derham“Estoppel by Convention” (1997) 71 ALJ 860 at 868-70.
441 The first task, therefore, is to construe the deed in the light of all that has passed between the parties. As I have said earlier, in the light of the express understanding conveyed in conversation, documents and conduct that the subject matter of the Sanctuary Agreement (hypothesised on the completion of and efficacy of the deed) and of the Share Agreement would not be dealt with in this deed, but in other contracts, it seems plain to me that the proper construction of clause 12 is that it simply does not touch the two arrangements (the Sanctuary Agreement and the Share Agreement). In essence, that was the approach of his Honour at J[143]. To the extent that a different approach can be divined in that paragraph, his Honour’s conclusion can be supported by the approach which I have described.
442 Clause 15 does not extend as a matter of construction to affect the Sanctuary Agreement.
443 That the issue of these clauses, in particular clause 12, can be answered by their irrelevance as a matter of construction, strictly obviates the need to deal with an important question of principle. The appellants also called in aid the provisions of the deed just discussed, in particular clause 12, to defeat the estoppel claim. I will deal later with the question of estoppel generally. However, this particular issue arises in this way. If, in the deed, the relevant provisions, especially clause 12, on their proper construction (and contrary to my views), applied to the arrangements concerning the Sanctuary, thereby preventing evidence being led of the arrangement or preventing the arrangement contradicting the deed by the setting up of a competing contract, could the evidence nevertheless be led in furtherance of proving that there were otherwise facts and circumstances which would found an estoppel whereby the appellants were estopped from denying the existence and enforceability of the Sanctuary Agreement?
444 A number of authorities and writers deny the capacity of estoppel to outflank, in that fashion, the contractual rules. See especially McLelland J in Johnson Matthey v AC Rochester Overseas, supra at 196, and in Bentham v ANZ (unreported, Supreme Court of NSW, 26 June 1991); Australian Co-Operative Foods v Norco Co-Operative, supra at 279 per Bryson J; Skywest Aviation Pty Ltd v Commonwealth (1995) 126 FLR 61, 102-106 per Miles CJ and Public Trustee for the ACT v Megic (1995) 59 FCR 165 at [36] per Miles CJ and New Holland Mining v Weaver Oil and Gas Corporation Australia Ltd (unreported, Supreme Court of WA, 12 March 1998 per Wheeler J). Kirby P, in SRA v Heath Outdoor, supra at 172 and 177, expressly reserved his opinion on the matter, though expressed doubts about allowing estoppel to thus undermine contract. Beaumont J in Seabridge Australia Pty Ltd v JLW (1991) 29 FCR 415, 421 recognised reasons of both principle and policy why courts should not permit the stability of commercial relationships and dealings to be threatened by reliance on oral statements. See also Beaumont J in Cafdawn Pty Limited v Waltons Stores Ltd (unreported, Federal Court of Australia, 28 March 1991). (However, Beaumont J does not appear to have been referred in either case to the judgment of McHugh JA in SRA v Heath Outdoors, supra, as to which see below.) See also Pincus J in Byers v Dorotea (1986) 69 ALR 715, 723-25 who, perhaps contrary to his own inclination, applied what he saw as the settled law in Queensland to like effect; and Finn “Equitable Estoppel”, Essays in Equity (1985) at 94.
445 To the contrary are the views of McHugh JA in SRA v Heath Outdoor, supra at 193 where, in dealing with equitable estoppel, his Honour forcefully rejected this limitation upon doctrines based on unconsionability. McHugh JA derived support, not only from the logical application of the purpose of preventing unconsionability inherent within, and at the root of, equitable estoppel (and indeed common law estoppel in pais: Grundt v Great Boulder Pty Gold Mines Limited (1937) 59 CLR 641 , 676-77), but also from the Privy Council in Bank Negara Indonesia v Philip Hoalim [1973] 2 MLJ 3, 5. Sheppard J (with whom Hill J agreed) in Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535, 541 doubted the generality of the rule expressed by McLelland J in Johnson Matthey, supra as followed by Miles CJ in Seabridge Australia Pty Ltd v JLW supra at 421. The views of McHugh JA were followed by Rolfe J in Whittet v State Bank of NSW (1991) 24 NSWLR 146, 151-52, and somewhat tentatively (if I may respectfully put it that way) by Higgins J in Liangis Investments Pty Ltd v Daplyn Pty Limited (1994) 117 FLR 28 at [41] to [53]. Thomas J in Grace v Peter Harrison Designs & Signs Pty Ltd [1998] QSC 27 did not decide the issue but said that he was inclined to favour the views of McHugh JA.
446 Though not specifically directed to equitable estoppel arising out of pre-contractual communications, McPherson JA in MacDonald v Shinko Australia Pty Ltd, supra at 154-6 in dealing with the equitable remedy of rectification arising from pre-contractual communications saw little merit in the argument that the parol evidence rule or an entire agreement clause impeded that remedy in the face of material calling it in aid to remedy a mistake. If that be correct, as I think that it plainly is, it is difficult to see why another remedy of equity based on unconscionability and equally arising out of pre-contractual communications should be defeated by a common law rule about the construction of documents.
447 However, in the light of my views about the proper scope of these clauses as a matter of construction, in particular clause 12, it is unnecessary to decide this question. Further, given the important issues raised by the point involving the relationship between contract and estoppel, the competing public policy as well as juridical considerations, the question of the unified or fragmented nature of estoppel and whether different analyses apply to different categories of estoppel and the relationship, if any, between the development of estoppel and cognate statutory provisions, such as s 52 of the Trade Practices Act and like State legislation, it is inappropriate to decide the issue in circumstances where it is unnecessary to do so. However, in my view, there appears, if I may say so respectfully, to be great force in the views of McHugh JA in his rejection of the exclusion of a role for estoppel (at least in equity) where the detriment founding the estoppel is, in effect, the entry into an agreement which in turn negates, by its terms, the representation or conduct which was sufficiently clear to found an estoppel and reliance upon which led to the agreement being entered.
448 However, even applying the views of McLelland J in Johnson Matthey it should be recalled that McLelland J said the following:
The effect of any particular clause will of course depend on its own terms and context, but in general it may be said that except in the case of fraud, and subject to any statutory provision, an “entire contract” clause will bind the parties in accordance with its terms, properly construed. Such a clause itself gives rise to an estoppel by convention which excludes any antecedent estoppel which might otherwise have had effect. [Emphasis added]
449 The conduct of Mr Graham was, as I have earlier set out, described variously by his Honour, but it was plainly characterised by him as fraudulent and dishonest. That conduct permeated the events of December. One of the relevant representations was by him to Mr Dew (see J[172]). Further, his dishonest misleading of Mr Dew was the reason for the otherwise inexplicable delay in documenting the consensus forged by mid December. In those circumstances, accepting as correct the principles formulated by McLelland J in Johnson v Matthey, the provisions of the deed, especially clause 12, even if as a matter of construction they were relevant, would not preclude an estoppel running if otherwise an estoppel arises.
450 I deal with estoppel, otherwise, below.
The Settlement Deed and the Share Agreement
451 My views on the proper construction, and the extent of operation, of the clauses in the settlement deed which I have expressed above apply as much to the Share Agreement as to the Sanctuary Agreement. For these reasons clauses 3, 7.3 and 7.4 have no affect in limiting the applicants (respondents here) in propounding the Share Agreement.
452 Also, for the reasons expressed earlier I would not allow the appellants to raise clauses 3.3 and 7.4.
Estoppel
453 Ground 12 of the Notice of Appeal is in the following terms:
His Honour erred in finding that the Appellants were estopped from denying the Respondent’s rights whether as found by his Honour or otherwise in relation to the Sanctuary.
454 The first criticism made by the appellants was that since the primary judge found a contract to exist, it was legally impermissible for him also to find an estoppel. Reference was made to what McPherson J (as his Honour then was) said in Riches v Hogben [1995] 2 Qd R 292 at 301, quoted with approval by Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli (1999) 196 CLR 101 at 121, to the effect that if there is an enforceable promise the law of contract enforces it, not the law of estoppel. So much can be readily accepted; but what the primary judge did at J[167] to J[174] was to do precisely what McPherson J did in Riches v Hogben, supra at 300 that is, deal with the estoppel on the footing that he may in some respect be wrong about the contract question. No error exists in such an approach.
455 Looking at the matter in that way, the appellants then proceeded to criticise his Honour’s reasons. First, they said the representation referred to in J [169] did not amount to a representation that Anderson would definitely be granted an interest (of any kind) in 20,000 acres. Attention was focussed on the Jakarta conversations in mid-December as being negotiations. I will not repeat what I said earlier in the factual analysis, but, in my view, in words and conduct Mr Bakrie, Mr Rathod and Mr Graham clearly represented to Mr Anderson and Mr Dew that they had agreed to and would abide by an arrangement whereby Owston would be entitled to exclusive possession of an area covering the Sanctuary and surrounding areas up to 20,000 acres, with rights of access and to necessary services. That representation was made and a reasonable expectation in accordance with it arose in and from the dealings between the parties in relation to the Sanctuary up to 23 December.
456 The primary judge was correct in his view that the conduct had the above effect. The representation was not imprecise. The conduct of December taken together amounted to the above clear representation.
457 The appellants sought to limit the reliance upon any representation to monetary expenditure of somewhat over $100,000 expended in the development of Stage IV of the Sanctuary in 1994. (See J[97], J[98] and J[104].) However, the pleading of reliance in para 14 of the 2nd FASC included the fact that “Owston entered into the 1993 Sale Agreement and the Deed of Settlement.” Mr West QC elaborated upon that as set out in [244] above. The appellants did not contest the availability of this approach, only its acceptability in terms of the evidence. Notwithstanding the doubts which I expressed at the hearing (see [245] above), on reflection, the position adopted by Mr Campbell QC ([246] above) was not only frank, but also perfectly appropriate. Looking at the evidence referred to in [202] above and at the otherwise unchallenged evidence of Mr Anderson referred to in [201] above, I think there was a clearly available foundation for the detriment to be analysed from the perspective put by Mr West QC. In that light, and bearing in mind the need in equity to identify the minimum equity to relieve the injustice of the departure from the represented or assumed matter: see Giumelli v Giumelli, supra at [10] and [31], and bearing in mind the role of the assessment of the extent of injustice caused by departure from the represented or assumed matter at common law: see Grundt’s case, supra, at 676 – 77, the primary judge was entitled, in my view, to conclude as he did in J[174] as to the extent of the estoppel. The detriment in the departure by Tovehead and Branir from the assumption they caused Owston to adopt or accept for their legal relations is the loss forever of the opportunity to act (through Mr Anderson) in the way described by Mr West. In those circumstances (if there be no contract) nothing less than the making good of the representation and the fulfilling of the assumption or expectation will avert the injustice which would otherwise be caused by the departure.
458 A specific attack was made on the finding of the primary judge at J[171] as to what Mr Anderson relied on for his belief. His Honour heard all the evidence and made this finding. The appellants, in effect, repeat the submissions about the evidence in this respect which were rejected by the trial judge as an unrealistic interpretation of Mr Anderson’s oral evidence. I agree with his Honour for the reasons given by him at J[171].
Misleading or Deceptive Conduct
459 Ground 13 of the Notice of Appeal is in the following terms:
His Honour erred in finding that the Appellants had contravened s 995 of the Corporations Law in relation to the Sanctuary.
460 The primary judge found in J[176] there to be a representation of the nature I described earlier, [455] above. His Honour found that Mr Graham had a clear intention that this would not be honoured (so far as he was able to prevent it). That was the substance of the finding of misleading or deceptive conduct.
461 Two criticisms were made by the appellants. First, it was said that at the time of settlement Mr Graham “was completely open about his personal attitude to Owston having any ongoing rights in the Sanctuary, but that he regarded his personal views as having been overridden by Bakrie”. This submission is contrary to the finding of the primary judge at J[176] based on his views of Mr Graham’s evidence. That attack therefore must fail.
462 Secondly, it was said that Mr Graham was not the mind of the two corporations; that Mr Bakrie was the decision maker. That Mr Bakrie was the central decision maker cannot be gainsaid. However, Mr Graham was deputed to deal with Mr Dew and this part of the transaction. In that role he represented the corporations and he participated in discussions which fostered the representation which was contrary to his intentions – which may not have been those of the central decision maker of the corporations, but were his intentions as an agent with significant influence and position in Mr Bakrie’s organisation. The agent contributed to an unqualified representation as to what would happen and as to what the representee was entitled to, when he, as a senior officer in the organisation, of which the representors formed part, had an intention that as far as he could bring it about the representation would not be fulfilled. In the light of what Mr Graham said to Mr Dew at the signing of the Sanctuary letter (see [196] above), especially, “However, Bakrie has agreed to it so I will go along with it”, the finding by the primary judge of Mr Graham’s intentions clearly support the finding of a misrepresentation. Also, in the light of the representations being as to future matters, the operation of s 51A of the Trade Practices Act and s 265 of the Corporations Law assist in that conclusion. Section 84 of the Trade Practices Act makes Mr Graham’s conduct the conduct of the relevant companies for the purposes of the Trade Practices Act, there being no suggestion that Mr Graham was not an agent of Tovehead and Votraint. Alternatively, the deputing to him of the role of dealing with Mr Dew in relation to the effectuation of the consensus and arranging for settlement authorised him to make statements about this subject matter.
463 The primary judge only dealt with s 995 of the Corporations Law. No issue was taken on appeal that s 52 of the Trade Practices Act was not also available.
464 The appropriate remedy under s 1325 of the Corporations Law or s 87 of the Trade Practice Act would be the making good of the representation for the same reasons (see [453] to [458] above) that that is the appropriate remedy to prevent injustice under the estoppel claim.
The Cross Appeal and the Effect of the Crown Lands Legislation on the Sanctuary Agreement
465 For reasons which will become apparent it is necessary to deal with the cross appeal and the Crown Lands legislation together.
466 The agreement which his Honour found was set out in order 1 of the declarations and orders referred to at [250] above.
467 It should be noted that it was agreed that all the land which was affected by the Sanctuary Agreement was held subject to pastoral leasehold.
468 The complaints made in the cross appeal were, first, that the words “for the life of the second applicant” should not have been included in order 1. The only variation sought to the terms of the declarations and orders made by the primary judge was the excision of those words from order 1 and the insertion of the words “in perpetuity” in their place. Secondly, there was a complaint in the grounds of the cross appeal that the primary judge should have made the orders which he did, not only on the basis of contract, but also on the basis of the estoppel he found and of relief under s 1325 of the Corporations Law and s 87 of the Trade Practices Act consequent on misleading or deceptive conduct in contravention of s 995 of the Corporations Law and s 52 of the Trade Practices Act.
469 The agreement as declared by the primary judge in order 1 and contended for by Owston and Mr Anderson in the cross appeal was one which included the following:
“subject to the Ministerial consent being obtained, and for the purpose of expanding and operating the Sanctuary… and building a residence and other necessary buildings thereon, a lease or other substantial exclusive grant… be granted… over the area of Tipperary Station known as the Tipperary Wildlife Sanctuary, plus an additional area adjacent to the Sanctuary so that its total area is 20,000 acres;” [Emphasis added.]
470 The agreement in its terms, as declared, about which no complaint was made in the cross appeal and about which no complaint was made in submissions, contained words of purpose or user of the land as a sanctuary. During addresses, the Court put to Mr West that there might appropriately be included in the declaration, in place of the phrase directed to the life of Mr Anderson, a limitation of the lease to be granted that it would terminate on the land ceasing to be used as a wildlife zoo or sanctuary. Mr West did not wish to say anything to resist such a contention. The suggestion, in one sense, only gave more precise practical effect to the purpose included in the declaration in order 1. This inclusion of purpose, as can be seen from what follows, is a matter not without importance.
471 The agreement as declared in order 1 should be contrasted with what was, relevantly, claimed in the Second Further Amended Application. Orders 1 and 2 claimed were in the following form:
1. A declaration inter partes that in the events which have happened Owston has the following rights:
(a) the right to exclusive use and possession of such parts of Tipperary as are currently used by it for the Sanctuary;
(b) the right to select further parts of Tipperary for its exclusive use and possession, provided that it may not select land which is, at the date of selection, developed land or commercial plantation or which would, taken together with the land referred to in (a) and land previously selected by it, exceed 20,000 acres in total area;
(c) all such rights over the land referred to in (a) and land selected by it pursuant to (b) (the “Greater Sanctuary Area”) as it would have if it were the lessee thereof in the terms of the underlying lease of the relevant part of Tipperary;
(d) free and uninterrupted rights of carriageway, ingress and egress to and from the Greater Sanctuary Area in common with other users of Tipperary;
(e) the right to use light, power and water from Tipperary; and
(f) the right to use and occupation of two small staff houses on Tipperary.
2. An order that Tovehead and Branir take all steps necessary to grant to Owston in perpetuity and for its exclusive use and benefit absolutely a lease in registerable form at nil rental of all that piece and parcel of land on Tipperary as are currently used by Owston for the Sanctuary together with free and uninterrupted rights of carriageway including ingress to and egress from the said land in common with other users of Tipperary and together with such rights to use light, power and water from Tipperary as were enjoyed by Owston as at 23 December 1993.
472 It can be seen that the orders sought related to the land which was used as a sanctuary, and surrounding land, up to 20,000 acres. The orders did not contain within them a purpose or requirement for use of the land as a sanctuary. Order 1(a) is perhaps ambiguous in the last three words, “for the Sanctuary”. I read them, in the light of order 1(b), as only directing one to or describing the land used, not as a qualification of the purpose of the use or possession.
473 It is important to examine the pleading because, once again, the respondents to the appeal complained that the appellants were impermissibly raising new issues for the first time on appeal.
474 The defence to the 2nd FASC pleaded various provisions of the Crown Lands legislation:
(a) Various provisions of the preceding Crown Lands Act 1931 (NT) were pleaded in answer to claims of the JSU amounting to a lease or licence. (See paras 48 to 55 of the defence.) Given the way the matter was dealt with by the primary judge and by the appellants on the appeal it is unnecessary to deal with the effects, if any, of the legislative regime prior to 1992 in the Crown Lands Act on the JSU.
(b) Paragraph 38(1)(d) of the Pastoral Lands Act 1992 (NT)was pleaded and it was said in effect that since 26 June 1992 (when the Pastoral Lands Act came into effect) the operation of the Sanctuary had been undertaken in breach of a condition of the relevant leases in that the use had not been for a pastoral purposes. (See paras 56 and 57 of the defence.)
(c) It was said that the relief claimed was in effect the grant of a sub-lease and that ss 67 and 68 of the Pastoral Lands Act did not permit the grant of a sub-lease without consent and only permitted consent by the Minister if it were a condition of the sub-lease that the land would only be used for pastoral purposes or for the purposes of the Northern Territory or for a prescribed purpose. (See paras 58 to 60 of the defence.)
(d) It was then pleaded that the operation of the Sanctuary by Owston:
(i) is not a pastoral purpose,
(ii) is not a purpose of the Northern Territory, and
(iii) is not a prescribed purpose under the relevant regulation
(See para 61 of the defence.)
(e) Para 62 of the defence then pleaded:
By reason of the facts and matters pleaded in paragraphs 58 to 61 above the Court could not, or in the alternative, would not in its discretion, make any order for the respondents to grant or to take steps to procure the granting to the Applicants of any interest in Tipperary which in name or substance constituted the sub-lease of any part of Tipperary.
475 In answer to these pleadings of the Pastoral Lands Act the reply pleaded the following:
9. The applicants admit paragraph 56.
10. The applicants do not admit paragraph 57.
11. The applicants admit paragraph 58 and say that they also seek, in the alternative, the relief set out in paragraphs 4, 5 and 6 of the second further amended application.
12. In answer to paragraph 59, the applicants do not admit that the paragraph fully or accurately sets out the terms of s.67(1) of the Act and say that, by virtue of that subsection, the restrictions set out therein take effect solely as conditions under the relevant leases and not as prohibitions of law.
13. In answer to paragraph 60, the applicants admit that the paragraph sets out the terms of s.68(5) of the Act.
14. The applicants do not admit paragraph 61.
15. The applicants deny paragraph 62 and say that:
15.1 subsection 68(5) of the Act does not apply to the parting with possession of land the subject of a pastoral lease other than by sub-letting of the land and so does not effect the relief sought in 4, 5 and 6 of the second further amended application;
15.2 the Act provides in Part 7 for the use of land the subject of a pastoral lease for non-pastoral purposes by application to the Pastoral Land Board;
15.3 it is an implied term of the representations and agreements pleaded in paragraphs 9 and 13 of the second further amended statement of claim that Tovehead and Branir would use their reasonable endeavours to procure all consents necessary to give force and effect to the interests on the part of Owston therein referred to.
476 A number of matters should be noted about the pleading of the provisions of the Pastoral Lands Act. First, the defence was dated 22 January 1999. At that time, arguably, para 61 was correct that the existing regulations, in particular regulation 31, did not include activity of the kind conducted on the Sanctuary as a “prescribed purpose” for the purposes of subs 68(5). However, on 12 May 1999 the regulation 31 was amended to the effect that keeping and breeding animals other than stock became a prescribed purpose. So, at the time of the orders the Minister could grant consent under subs 68(5).
477 Secondly, the inability to satisfy the matters set out in para 61 of the defence was pleaded in the present tense. It was plainly intended to speak not only at the time of filing of the defence but also thenceforth, including, most importantly, at the time of hearing and determination. It was not a pleading directed to the time of entry into the contract pleaded. It was not a pleading that the transaction or contract as pleaded or claimed was expressly or impliedly prohibited or otherwise in some respect illegal or tainted with illegality.
478 Thirdly, the only ground pleaded which expressed a reason why the contract propounded was affected by the Pastoral Lands Act was para 62. There it was pleaded that the Court could not, or would not in its discretion, order the appellant to take steps to procure the granting of a sub-lease, because the Minister did not have the power to grant it because of the present lack of existence of a state of affairs to permit the Minister so to consent. By the time of the orders that present position did entitle the Minister to grant a sub-lease.
479 Fourthly, there was no pleading that Owston’s use of the land was unlawful. Indeed during the hearing the then senior counsel for the appellants expressly disavowed any such claim. Paragraphs 56 and 57 only pleaded that Owston and Tovehead had been in breach of a condition of the pastoral leases by conducting the Sanctuary.
480 Fifthly, there was no pleading by the respondents that the case as pleaded by the applicants involved a contract which was expressly or impliedly prohibited by the Pastoral Lands Act. Given the form of the claimed rights, as being directed to the land in question, without any qualification of purpose, it is perhaps understandable why there was no pleading that the contract pleaded was expressly prohibited by the Pastoral Lands Act. It may also explain, though less clearly, why there was no pleading that the contract pleaded was impliedly prohibited by the Pastoral Lands Act. However, the form of the claimed rights does not explain why there was no pleading that the agreement pleaded and the rights claimed, though not expressly or impliedly prohibited by statute, were void as against public policy by reason of being associated with, or made in furtherance of, a purpose of frustrating the operation of the statute: see generally Nelson v Nelson (1995) 184 CLR 538; Fitzgerald v Leonhardt (1997) 143 ALR 569, 574-80; and Yango Pastoral Co Pty Ltd v First Chicago Australia (1978) 139 CLR 410. The absence, indeed disavowal, of a claim that Owston’s occupation was illegal, in the context of the pleading, and in the absence of a challenge either that the contract was expressly or impliedly prohibited or that the contract was void as too closely associated with, or was in furtherance of, an unlawful purpose, meant that statutory illegality and the effect of public policy were not issues agitated before the primary judge.
481 At this point it is appropriate to refer to the terms of the Pastoral Lands Act pleaded in the defence and reply: para 38(1)(d) and ss 67 and 68 were in the following terms:
38. Conditions of Pastoral Leases
(1) Without limiting the power of the Minister to impose such other conditions as he or she thinks fit on the granting of a pastoral lease, a pastoral lease is subject to the following conditions and reservations:
…
(d) that, subject to section 88, the lessee will use the land only for pastoral purposes;
(b) section 67
67. Consent to transfer, &c., of lease, &c.
(1) Except as provided by this Act, a pastoral lessee shall not, without the consent of the Minister -
(a) transfer his or her pastoral lease;
(b) sub-let the land or part of the land the subject of the pastoral lease; or
(c) otherwise part with possession of the land or part of the land,
and compliance with this subsection is a condition of the lease.
(2) Except as provided by this Act, a sublessee of pastoral land shall not, without the consent of the Minister -
(a) transfer his or her sublease;
(b) further sub-let the subleased land; or
(c) otherwise part with possession of the land or part of the land.
Penalty for an offence against this subsection: $5,000.
(c) section 68
68 Application for consent to transfer, &c., of leases, &c.
(1) An application for consent to transfer a pastoral lease or a sublease of land the subject of a pastoral lease, or to sub-let the land the subject of a pastoral lease, shall be made in writing by the lessee to the Minister.
(2) On receiving an application under subsection (1) the Minister may refer it to the Board for consideration and recommendation and the Board shall report to the Minister within 30 days after the application is referred to it.
(3) The Minister shall, after considering the recommendations of the Board, but subject to subsections (4) and (5) and section 35(6), by notice in writing to the lessee or sublessee (or as the case may be), consent or refuse to consent to the transfer of the pastoral lease or sublease or the sub-letting of the land.
(4) The Minister shall not consent to the transfer of a pastoral lease until all instalments of the purchase price for the grant of the lease, and all rent and other moneys due and payable to the Territory under the lease, have been paid.
(5) The Minister shall not consent to a subletting of land or a part of the land the subject of a pastoral lease unless it is a condition of the agreement to sub-let that the land will be used only for pastoral purposes, for the purposes of the Territory or for a prescribed purpose.
482 Regulation 31 as it stood prior to its amendment in May 1999 was in the following terms:
31. Prescribed purposes under section 68(5) of the Act
The prescribed purposes under section 68(5) of the Act are as follows:
(a) supplying or conveying to, through or across the land an electricity service;
(b) supplying or conveying to, through or across the land gas, liquid fuels or water or other liquids in such a form as to be capable of conveying energy; and
(c) establishing and operating a commercial tourist enterprise.
483 To those three purposes in Regulation 31 was added by instrument No 17 of 1999 a fourth prescribed purpose as follows:
(d) keeping and breeding animals (other than stock).
484 The primary judge dealt with the Crown Lands legislation at J[109] to J[125]. At J [109] to J[112] he dealt with the pre – 1992 legislative regime under the Crown Lands Act. He then dealt with the Pastoral Lands Act. At J[114], J[115] and J[116] his Honour set out the appellants’ arguments. In examining them it is necessary to bear in mind what was pleaded and what was not pleaded.
485 At J[114] the primary judge said:
The respondents said that the clear intent of the [Pastoral Lands Act or PLA] was to prohibit a change in land ownership or use without the prior consent of the Minister and that section 68(5) proscribes the granting of that consent unless it is a condition of the agreement to sub-let the land that the land only be used for pastoral purposes, for the purposes of the Northern Territory or for a purpose prescribed under regulation 31 (the details of which are not here relevant). The respondents submitted that the use of part of Tipperary as a Sanctuary is outside the PLA’s definition of these purposes. They therefore contended that any sub-lease of the Sanctuary would be in contravention of the section from the time it was purportedly made and that the Court lacked power to compel specific performance of an agreement containing a condition to submit the matter for ministerial consent. If this argument is correct, it would presumably no less apply to the transfer to Branir of the second half interest in Tipperary – as it did to Tovehead’s purchase of the first half – than to any problem concerning the Sanctuary and I have been able to find no reference in the evidence to ministerial consent having been granted for Branir to take its half interest. However, as Branir is said to have become the registered proprietor of its half share on 14 December 1994, it seems that ministerial consent must have been granted.
486 The primary judge saw regulation 31 as irrelevant at this point. He later referred to the change to that regulation which made the Sanctuary a purpose for which consent could be given under subs 68(5). Regulation 31 was at this point irrelevant because his Honour was dealing with a submission that the sub-lease, that is the grant of a sub-lease as pleaded in paragraph 58 of the defence, was in contravention of subs 68(5) “from the time it was purportedly made and that the Court lacked power to compel specific performance of an agreement containing a condition to submit the matter for Ministerial consent.” He then went to Roach v Bickle (1915) 20 CLR 663 to illustrate the consequences of the argument. Stopping here for the moment, J[114] does not reflect an argument that an agreement subject to the consent of the Minister to grant a sub-lease was expressly or impliedly prohibited or so closely associated with an illegality as to be contrary to public policy, rather it was an argument that a sub-lease or a grant of a sub-lease of the land was sought to be effected by what happened in December 1993 and that the Pastoral Lands Act made ineffective the creation of such a sub-lease without consent. That this is what was being put by the appellants and that this is what the primary judge was dealing with is made clear by what he said in J[116]:
The respondents’ submission was that, applying these principles, the purported grant of a sub-lease to Owston without ministerial consent is ineffective and invalid and the use of the Sanctuary for a non-pastoral purpose renders the obtaining of that consent impossible.
487 The appellants sought to draw from extracts of the written submissions put to the primary judge that illegality was argued if not pleaded. I reject this. The extent of matters put to the primary judge which the appellants said raised illegality concerned the lack of an entitlement to operate the Sanctuary before and after 1992 and the ineffectiveness of the grant of any sub-lease and the lack of present entitlement to consent. They did not extend to the matters referred to in [479] and [480] above. The appellants also submitted that the terms of the reply, in particular para 12 thereof ([475] above) sufficiently widened the issues on the pleading to allow the appellants now to argue the kind of matter referred to in [479] and [480] above. Plainly it did not. I reject this submission. The last six words of para 12 “and not as prohibitions of law” do not raise illegality. They are used as words of emphasis and contrast. They do not somehow create an issue absent from the defence.
488 The argument that what occurred on 23 December was the grant of a sub-lease was pleaded in para 58 of the defence. The argument that such a grant of sub-lease was ineffective and invalid could be seen as pleaded in reading paras 58 and 59 together.
489 The first answer of the applicants to this argument was to emphasise that subs 67(1) dealt with conditions of the pastoral lease. They relied on Massart v Blight (1951) 82 CLR 423 for the proposition that the grant was not nugatory, but rather exposed to forfeiture. The primary judge dealt with this at J[117] and in the first two sentences of J[118].
490 The primary judge then, at J[118] and J[119], dealt with the other argument of the applicants that there was no grant of a sub-lease at that time, but an agreement to sub-lease subject to an express or implied term to obtain consent before its grant. This way of viewing the legal consequences of agreement in December 1993 also defeated the argument of the appellants that what had happened was the grant of a sub-lease which was ineffective.
491 The primary judge then dealt with the matters pleaded in paras 58 to 62 of the defence: the impediment on the Court ordering the appellants to grant or to take steps to procure the granting of an interest in Tipperary by way of sub-lease because the use “is” not a use capable of attracting consent. At this point, the issue now being central, the primary judge noted the change to regulation 31. He thus concluded in J[121], in effect, that the pleaded bar in para 62 of the defence failed. He then said:
… In the absence of an obvious bar to consent being obtained, there in my opinion is no reason that the Court could not order the specific performance of an agreement on condition that an application be submitted to the Minister for any and all necessary consents and subject to that consent being given.
492 Thus, the primary judge dealt with the matters pleaded which raised the Pastoral Lands Act. His Honour did not mention cases such as Yango Pastoral, supra, Nelson v Nelson, supra and Fitzgerald v Leonardt, supra, because illegality was not an issue before him. In that context the primary judge made a declaration in the form of order 1.
493 On appeal, a number of matters were argued. First, it was said that the primary judge could not declare the agreement to grant a sub-lease subject to consent, because it was a consent which could not have been granted at the time of contract formation. Secondly, and related to the first point, the agreement was one which was at all times impliedly prohibited by the statute. Thirdly, the agreement was void for public policy as being so closely associated with, or in furtherance of, an illegality.
494 None of these matters was pleaded. Each draws inspiration and support from the terms of the declaration in order 1. The terms of the declaration included within them a contractual purpose of using the land as a sanctuary. That had not been claimed by Owston. It had claimed an agreement for certain land then used by it for the Sanctuary and further land up to 20,000 acres. Plainly the Minister could consent to a bare sub-lease. There was no impediment in subs 68(5) to that. The lease merely required a condition to use the land for certain purposes (though such purposes did not include conducting a sanctuary). All parties knew that the purpose of wanting the lease (at least for the foreseeable future) was for the conduct of the Sanctuary. The appellants, of course, recognised that and pleaded subs 68(5) of the Pastoral Lands Act and the present use as a sanctuary in order to found the defence in para 62. That defence was defeated by the change to regulation 31.
495 As indicated earlier, there was no pleading of illegality of use or that the contract as entered was void as against public policy or that the contract was expressly or impliedly prohibited by the Pastoral Lands Act. If there had been, there may have been closer attention by the parties and the primary judge to the question whether or not the agreement as declared should have any inclusion of a limitation by way of purpose or use. It is certainly arguable that an examination of the relevant conversations and documents from 1989 does not support an importation of a limitation of the sub-lease for a purpose of sanctuary. The early (1989 and 1990) discussions made clear that each of Mr Bakrie and Mr Anderson was to have 20,000 acres privately. (See [85] above.) The use of the land as a sanctuary by Mr Anderson was an anticipated and permitted use. It was arguably not a required use, nor was it expressed as the only possible use of the land. The 1989 Co-Ownership Agreement and the JSU said “Owston … to use … for its own purposes, including construction of a private residence and zoo.” (See [89] above.) Sometimes the language of the parties referred to the Sanctuary by way of identification of the land, not by way of restriction on anticipated purposes. See for example Mr Anderson’s discussion with Mr Dew when calling him from Jakarta in September 1993, (see [102] above) and Mr Dew and Mr Graham’s conversation around that time ([103], [104] and [105] above). It is plain that the basal element of the intended arrangement and consensus was that each would get 20,000 acres for himself (or his interests). (See what Mr Graham said to Mr Langham in late 1993 ([106] above). The draft deeds of December 1993 and the conversations about them arguably make clear that the 20,000 acres was to be perpetual and not only for use of the land as a sanctuary. The draft deeds ([161] and [168] above) referred, by way of identification of theland, to “those parts of Tipperary presently used by Owston as a private zoo, residence and recreation purposes”. This was amended by oral agreement to 20,000 acres of the existing sanctuary land and contiguous land. The oral agreement was clear: a perpetual lease. Perhaps the conversation between Mr Anderson and Mr Bakrie in December 1993 ([163] above) comes closest to a foundation for such a limitation of use to a sanctuary:
Anderson: “Now, in regards to the Sanctuary, we have an agreement from our original deal that each of us have 20,000 acres. My 20,000 acres was for the Sanctuary and yours was to build a house on and have as a personal asset….”
Bakrie “Yes, that is alright … what term do you want?”
Anderson “The same as the perpetual lease on the land.”
Bakrie “Okay”
496 It was certainly envisaged that the Sanctuary was the foreseeable purpose of the 20,000 acres but, arguably, there was no basis to conclude that there was a bargain which would restrict the use of the 20,000 acres to a sanctuary. For my part, on the evidence, I would not impose such a limitation of purpose. However, by the way the case was pleaded and conducted this did not have to be decided. By the way the case was pleaded and conducted his Honour made the declaration he did. The possible importance of the importation of a limitation of purpose or use to an argument based on statutory illegality was not before the primary judge. It was not pleaded that the contract could not be one subject to the consent of the Minister because at the time of entry (December 1993) consent could not be given because of subs 68(5). That section would not have prevented consent being given to a sub-lease of land simpliciter, as claimed. It might well have prevented consent to a sub-lease of land which required as the only permitted purpose something outside regulation 31. The only operation of subs 68(5) pleaded was as a foundation of a bar to relief set out in paras 59 to 62 of the defence which, as I have said, fell with the change to regulation 31. The appellants could have pleaded illegality and in particular pleaded that the contract in the 2nd FASC was either impliedly prohibited or was void for public policy as associated with or in furtherance of a present or contemplated illegality. They did not. If they had done so, the importance of the relationship between s 67, subs 68(5) and regulation 31 in its form as at December 1993 would have become apparent. It would have then become important for the parties and the primary judge to direct their attention to the nature of the agreement in that regard. Issues such as the following would have arisen, none of which did arise: Was the agreement to be expressed as the primary judge did in order 1 or was it an agreement for the sub-lease of an area by reference to where the Sanctuary was? Depending, in part, on the answer to that: was the contract impliedly prohibited by the Pastoral Lands Act, or, if not, or was it a contract sufficiently associated with illegality to be void and unenforceable? In particular, if the contract was associated with illegality, were there present the kinds of matters referred to by McHugh J in Nelson v Nelson, supra at 604-605 and 612-13 or by McHugh and Gummow JJ in Fitzgerald v Leonhardt, supra at 578-80? For instance, were the parties ignorant or mistaken as to matters concerned with the illegality? What factors might, in the circumstances of the Northern Territory, bear upon the question of the proportionality or disproportionality of rendering the agreement void?
497 These matters should not now be allowed to be canvassed. They clearly raise evidentiary matters. His Honour dealt with the relevant matters raised on the pleadings and in the context of the disavowal and lack of pleading of illegality as I have discussed. The ability to put forward arguments that there could be at the time of entry into the agreement no consent given under subs 68(5) or that the contract was impliedly prohibited as against public policy flows, at least in part, from the term of a declaration of the primary judge which was made in the absence of any such arguments. If these matters had been pleaded the primary judge would have had thrown up for evidence, debate and his consideration issues directing him to the use and purpose of use of the land, the parties’ beliefs, the knowledge of the Northern Territory government about Owston’s activities, many other matters concerned with the proportionality of the Court refusing to enforce a contract and the relevance of these things to the terms of any declaration. It is too late to raise these matters now. It is too late to raise matters which cause these kinds of issues to become relevant now, for the first time. By taking this course no offence is done to the law of the Northern Territory. The use of the land as a Sanctuary is now a prescribed purpose for subs 68(5). If any step is desired to be taken by the authorities in respect of past occupation, that can be done.
498 His Honour was correct, in the light of the matters pleaded, to apply Brown v Heffer (1967) 116 CLR 344. It was said in argument before us that Brown v Heffer could not apply where consent could never have been given to the sub-lease because of subs 68(5). However, once again, the force of that argument comes from the suppressed premise within it that the contract in terms or effect was for a purpose contrary to the Pastoral Lands Act or associated with such a purpose. The matter was not pleaded in that way. Again, if it had been, conformably with the evidence which I have identified, his Honour may have found an agreement to sub-lease an area of land identified by a particular current activity only and not for this one purpose. It was plainly open to him to do so. That contract could have obtained consent, it not being a contract which carried within its terms the use of the land for non-pastoral purposes. Its enforceability however would have to be judged by its closeness to any identified illegal purpose. One returns necessarily to the illegality issue that I have mentioned and that was not pleaded.
499 All the submissions of the appellants on the Pastoral Lands Act, in the context which I have set out, otherwise seek to raise, or cause to be raised, issues not pleaded. I would not permit this.
500 His Honour dealt with the issues pleaded. His only error in this regard was to limit the declaration to the life of Mr Anderson. There was no evidential basis for this. It was not reasonable for the purpose of Byrne v Australian Airlines Ltd, supra, in the light of the evidence. The words “in perpetuity” should be inserted as claimed in the cross appeal.
501 The cross appeal also complains about the failure by his Honour to ground his conclusion in estoppel, the Corporations Law and the Trade Practices Act. As argued, I would see these as alternatives to the contract and only pressed if the Court were otherwise minded to uphold the appeal on the contract. I have earlier expressed my views that his Honour’s declarations and orders can be supported not only by the contract pleaded but by his findings on estoppel and misleading or deceptive conduct. It is unnecessary to add anything further.
Proposed Orders
502 In respect of the appeal (N 1121 of 2000) the orders which I would make are:
1. that subject to order 2 below the appeal be dismissed;
2. that declaration 3(b) made by the primary judge to the effect that “the first respondent is to be debt free on the issue of the Shares” be varied by adding thereafter the words: “subject to such obligations or debts, if any, as arise or may arise from any undertaking by the first appellant, Branir Pty Limited then known as Votraint No 788 Pty Limited, in the letter of 22 December 1993 which was signed by Mr Nalin Rathod on behalf of the first appellant, and a copy of which was annexure D to the affidavit of Mr Arthur Dew sworn 27 September 1997.”; and
3. that the appellants pay the respondents’ costs.
503 In respect of the cross appeal (appeal N 1120 of 2000) the orders which I would make are:
1. that the appeal be allowed;
2. that declaration 1(a) made by the primary judge be varied to substitute for the words “for the life of the second applicant” the words “in perpetuity”; and
3. that the respondents pay the appellants’ costs.
| I certify that the preceding five hundred and one (501) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. |
Associate:
Dated: 20 December 2001
| Counsel for the Appellants: | Mr J C Campbell QC with Mr F Kunc |
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| Solicitor for the Appellants: | Blake Dawson Waldron |
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| Counsel for the Respondents: | Mr J N West QC with Mr M Steele |
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| Solicitor for the Respondents: | McGirr James Hall and Associates |
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| Date of Hearing: | 14, 15, 16, 17 and 18 May 2001 |
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| Date of Judgment: | 20 December 2001 |
