Polo Enterprises Australia Pty Ltd ABN 30117622 v Pinctada Hotels and Resorts Pty Ltd

1. [1]

   These proceedings relate to a joint venture agreement formed in 2010 (“the JVA”) between Polo Enterprises Australia Pty Ltd (“Polo Enterprises”) and Pinctada Hotels and Resorts Pty Ltd (“Pinctada”) for the years 2010, 2011, 2012 and 2013. The facts and history of the matter are relayed in the judgment of Bergin CJ in Eq delivered on 10 December 2012 ([2012] NSWSC 1518) (“the judgment”).

2. [2]

   Polo Enterprises makes a number of claims against Pinctada (and a company and individuals connected with Pinctada) arising out of Beach Polo Competitions on Cable Beach, Broome, Western Australia organised by the joint venture for 2010 and 2011, and those which were organised by Pinctada in 2013, 2014 and which are yet to be held in 2015, 2016 and 2017. The claims can be categorised as:

3. [3]

   The defendants dispute all three claims on various bases but the claims set out in 2(a) are resisted, inter alia, on the ground that Bergin CJ in Eq has determined the issue of breach of contract adversely to Polo Enterprises and that it is not open to Polo Enterprises to seek any damages in that regard there being an issue estoppel.

4. [4]

   I need to set out a little more of the history and make reference to the judgment:

   1. (1)

      the hearing before Bergin CJ Eq was actually the determination of a separate issue framed in orders made by Pembroke J:

   2. (2)

      the plaintiff was ordered to file a Statement of Claim by 30 October 2012. It did file a Statement of Claim on 1 November 2012

5. [5]

   Orders 1 and 2 sought in the Summons were amended and those together with order 3 are found in the Amended Summons filed on or about 15 November 2012:

6. [6]

   In the judgment found at pp 69- 96 one finds as the conclusion of her Honour:

7. [7]

   The JVA contains the following relevant clauses:

8. [8]

   At [34] of the judgment there is reference to the fact that on 21 April 2012 Polo Enterprises wrote to Pinctada offering Pinctada the right of first refusal to conduct the 2013 Event “pursuant to clause 1.3 of the [JVA]”. At [35] there is reference to Pinctada’s indication that it did not see the clause as having any continued operation in the circumstances which had transpired and implicitly declining the opportunity to participate.

9. [9]

   Both Polo Enterprises and Gazmedia applied for approval to hold the 2013 Event and Gazmedia was successful.

10. [10]

    Her Honour did not accept Pinctada’s contention that because there was no 2012 Event the 2013 Event was not caught by the JVA but did not accept Polo Enterprise’s contention that clause 1.6 of the JVA gave to Polo Enterprises the exclusive right to conduct the 2013 Event: see [53]. Her Honour said:

11. [11]

    After her Honour had given judgment on the separate issue, the defendants’ solicitors wrote to the plaintiff’s solicitors asserting that the plaintiff’s claim for damages as a result of the alleged breach of the JVA was based on claimed express and implied terms, and that no damages could be claimed in the light of dismissal of paragraphs 1 and 2 of the Amended Summons leaving only the claim for relief for misleading and deceptive conduct, asserted in the Statement of Claim but not claimed in the Amended Summons: see letter 8 February 2013 from Jarman McKenna to Gilbert + Tobin (part of Exh A). The solicitors for the plaintiff responded by letter of 19 February 2013 asserting:

12. [12]

    Jarman McKenna responded by, inter alia, threatening to have the Statement of Claim struck out: see 21 February 2013. By letter of 31 May 2013 Jarman McKenna sought particulars to which the plaintiff’s solicitors responded. A defence to the Statement of Claim was filed late and it did not raise the point concerning the effect of Bergin CJ’s judgment.

13. [13]

    In May 2015 the matter came before Hallen J there being, I was informed, a Notice of Motion from the plaintiff seeking to join as third defendant Ms Marilynne Pamela Paspaley. His Honour, at the request of the defendants, directed that the plaintiff notify the defendants which, if any, of its claims in the Amended Summons it was not pursuing. On 5 June the defendants, through counsel, were informed that the plaintiff was not pressing relief in paragraphs 1 and 2 of the Amended Summons. The following week the defendants, by Mr d’Arville’s submissions made clear that Pinctada did not accept that Polo Enterprises could seek any relief for breach of the JVA.

14. [14]

    Mr Higgs accepted that Pinctada is entitled to run the defence that the plaintiff is precluded from maintaining the claim, notwithstanding that the point, although raised in correspondence, was not pleaded until now but he contended that Polo Enterprises is not precluded from running the claim because of the following matters:

    1. (1)

       he contended that her Honour was dealing only with injunctive relief with a hearing date given only a short time after the commencement of proceedings. He asserted that her Honour was not given all the material which might bear on the construction of the contract as a ‘matrix of facts’

    2. (2)

       he contended that damages were not determined by her Honour and that since the only claim in the Amended Summons related to the 2013 Event the fact that her Honour did not refer to damages in her judgment is significant

    3. (3)

       he claimed that her Honour was concerned only with the 2013 Event and not the later Events

    4. (4)

       at a later point in submissions he contended that her Honour was dealing only with the failure of the defendant to agree to join in the JVA and not the failure of Pinctada to give notice under clause 1.4 of the JVA to Polo Enterprises to join with it in a joint venture. Mr d’Arville accepted that her Honour did not expressly refer to clause 7 of the JVA but he submitted that if Polo Enterprises was in effect asserting that a reason why relief should have been granted to it was that Pinctada had not issued a notice then that was a matter caught by Anshun estoppel, and that in any event the conclusion of the Court on the separate question was that Pinctada could not be restrained; which encompassed all matters connected therewith

15. [15]

    In relation to (4), at T31.47- T32.2 Mr Higgs, having become aware that the plaintiff’s submissions before Bergin CJ in Eq had dealt with the failure of Pinctada to give notice, abandoned this point. Having regard to paragraphs 18(b), 40 and 41 of the plaintiff’s written submissions to her Honour and the response to them by the defendants’ counsel (see paras 20 and 27), I think he was right to accept that he could not maintain an assertion that the separate question was not dealing with the notice required by clause 1.4 of the JVA as well as the effect of clause 1.3 of the JVA.

16. [16]

    It is true that paragraph 3 sought damages for breach of the JVA and that paragraph 3 was not struck out. This may as well have been because the Amended Summons had itself not been amended to take into account that the Statement of Claim pleaded a case not only based on breach of contract but also on the basis of breach of Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)), ie the allegedly misleading and deceptive conduct. Had attention been given to the point the Amended Summons would have had to be dismissed unless Polo Enterprises thereupon amended the submissions to include damages on the basis of the alleged misleading and deceptive conduct.

17. [17]

    I do not regard the failure of the judgment to deal with order 3, particularly when that was not part of what was referred to her Honour as part of the separate question, and probably should have been, as having any significance.

18. [18]

    What was sought in the Amended Summons was a permanent injunction not an interim injunction. The plaintiff sought and obtained expedition and was required to put on whatever evidence it wished in support of the issues raised in the separate questions. I do not accept that the plaintiff could rely on a failure by it to adduce relevant evidence to undermine the finality of the determination made by her Honour on the separate question.

19. [19]

    The nature of issue estoppel was dealt with comprehensively in Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) [1939] HCA 23; (1939) 62 CLR 464 but it was recently reiterated in Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68 per Emmett JA with whom Meagher JA and Bergin CJ in Eq concurred at [74]:

20. [20]

    Her Honour also clearly regarded the inability to rely on the clause as one which affected not only the 2013 Event but future Events till 2015 (the maximum period for which the JVA could be extended) as well: see [57]- [60] of the judgment.

21. [21]

    I am unable to accept that any of the matters which Polo Enterprises contend were not ventilated before her Honour were not part of what her Honour was required to consider. Her Honour having determined those matters adversely to Polo Enterprises by the determination of the separate question it follows that the same issue cannot be reventilated before me.

22. [22]

    In my view it must follow that if Pinctada was not in breach of the JVA by applying for and obtaining the 2013 Event, and the later Events, there can be no damages obtained for the claimed breaches.

Conclusion

1. [23]

   It follows that Polo Enterprises ought not be permitted to seek relief in respect of breach of clause 1.6 of the JVA since that issue has already been determined adversely to it and that there is no scope for a claim in damages for breach of the JVA by reason of non-compliance with clauses 1.3 to 1.6 of the JVA.