Sanmik Food Pvt Ltd v Alfa Laval Australia Pty Ltd

1. [1]

   ADAMSON JA: The appellants, Sanmik Food Pvt Ltd and Sanmik Natural Food Pty Ltd (together, the purchaser), appeal against orders made by Stevenson J (the primary judge) on 21 June 2024 dismissing their Amended Commercial List Statement filed 17 April 2024. The respondent to the appeal is Alfa Laval Australia Pty Ltd (the vendor).

2. [2]

   The appeal turns on the proper construction of a Settlement Deed, Commercial Terms and Supply Terms (together the Settlement Documents) which were entered into by the purchaser and the vendor on 22 March 2023 to resolve proceedings brought by the vendor against the purchaser in the Commercial List of the Equity Division in 2021 (the Initial Proceedings). The purchaser submitted that the primary judge erred in accepting the construction of the Settlement Documents for which the vendor contended.

The relevant facts

1. [3]

   The Settlement Documents were entered into in the following circumstances.

2. [4]

   On 12 April 2018, the vendor agreed to sell two ultra-high temperature plants for the production of coconut milk to the purchaser for the price of $2.7 million (the Initial Contract). Each plant comprised a steriliser, a homogeniser, a steritank and an aseptic filler. Also on 12 April 2018, the purchaser issued a purchase order to the vendor for two complete plants. The purchase order listed the same payment terms as those in the Initial Contract (see below).

3. [5]

   The first plant, which had a 4000L/hr capacity, was to be delivered to the purchaser’s warehouse in Sri Lanka, and the second, which had a 6000L/hr capacity, was to be delivered to the purchaser’s warehouse in the Philippines.

4. [6]

   The Initial Contract provided that the purchase price was to be paid in 14 instalments as follows.

5. [7]

   It was common ground that only two of these payments were made (totalling $387,600): the first was payment of the deposit of $270,000 on 7 May 2018, and the second was payment of $117,600 (relating to the delivery of the homogeniser and filler) on 2 August 2019.

6. [8]

   The Initial Contract was a cost, insurance and freight (CIF) contract, which provided for the plant (in its various components) to be delivered by the vendor to the purchaser in Sri Lanka (for the first plant) and the Philippines (for the second plant). The terms of the standard CIF contract (which would have had the effect of passing title in the plants to the purchaser when they were loaded onto the ship delivering them) were substantially amended by express terms of the Initial Contract, including as to the passing of title.

7. [9]

   The Initial Contract provided that title to each plant would pass from the vendor to the purchaser as follows:

8. [10]

   On about 11 June 2018, the Initial Contract was varied to increase the capacity of the first plant from 4000L/hr to 6000L/hr which resulted in the purchase price increasing from $2.7 million to $2.81 million. The purchaser issued a new purchase order to this effect.

9. [11]

   Between 12 September 2019 and 13 October 2019, the vendor shipped two components of the first plant, the homogeniser and the filler, to the purchaser’s warehouse in Sri Lanka. These were the only components of either plant which it shipped to the purchaser pursuant to the Initial Contract, although it had sourced all components for the two plants from third party suppliers ([10]).

10. [12]

    On 29 July 2021, the vendor commenced the Initial Proceedings against the purchaser by filing a Summons and Commercial List Statement, which alleged that the purchaser had breached the Initial Contract by failing to provide a bank guarantee and which sought specific performance.

11. [13]

    On 24 August 2022, the vendor purported to terminate the Initial Contract based on the purchaser’s alleged breaches and proposed to amend its Commercial List Statement to seek damages instead of specific performance.

12. [14]

    On 5 October 2022, the vendor filed an Amended Commercial List Statement in which it alleged that the purchaser had breached the Initial Contract not only by failing to provide a bank guarantee, but also by failing to provide a shipping address for the second plant; failing to make progress payments in respect of the second plant; and failing to pay storage costs. It claimed damages which included loss of profits and costs incurred in sourcing components for and producing the first and second plants, less payments made by the purchaser and monies received from the sale of some components.

13. [15]

    Mr Lawrance SC, who appeared for the vendor in this Court and in the Court below, confirmed that the vendor included in its claim for damages in the Initial Proceedings a claim for “wasted expenditure” (relying on The Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64; [1991] HCA 54) for the whole of the cost of the homogeniser and the filler which had been delivered to Sri Lanka as well as the cost of the components which it had sourced to be delivered to the Philippines.

14. [16]

    In its Commercial List Response, the purchaser denied that the vendor had validly terminated the Initial Contract.

15. [17]

    The hearing of the Initial Proceedings was set down to commence on 21 March 2023. Prior to that date, the parties’ solicitors had engaged in negotiations with a view to settling the Initial Proceedings on the basis of a new supply contract. Draft settlement deeds were sent on 20 February 2023, 24 February 2023, 9 March 2023, 19 March 2023 and 20 March 2023.

16. [18]

    In this Court, reliance was placed on these negotiations solely for the purpose of determining whether equity ought intervene to read down the release in cl 3.2(b) of the Settlement Deed (extracted below). It is therefore relevant to note the following aspects of the negotiations.

17. [19]

    On 2 December 2022, the vendor’s solicitor wrote to the purchaser’s solicitor and said, in part:

18. [20]

    On 20 February 2023, the vendor’s solicitor sent an email to the purchaser’s solicitor in which he referred to “recent discussions regarding restarting settlement negotiations” and to which he attached a draft deed. He qualified the provision of the draft, noting that while “the offer contained in the attached document has expired”, it may “provide a starting point for further discussions.” Of present relevance, the annexure to the draft deed, titled “Heads of Agreement”, included the following terms:

19. [21]

    On 24 February 2023, the vendor’s solicitor sent a further email to the purchaser’s solicitor to which he attached further draft documents, including a draft deed, draft commercial terms and draft supply terms. Clause 1.3 of the Heads of Agreement was not included in this draft. Clauses 3.5 and 3.6 remained in the annexure, which was now titled “Commercial Terms”. The draft supply terms also included the following Equipment Warranty (which is relevant to the notice of contention):

20. [22]

    The purchaser’s solicitor sent an email to the vendor’s solicitor on 9 March 2023, which attached further drafts of the deed and commercial terms. The version of the commercial terms annexed to this draft deed did not contain cl 3.5, although cl 3.6 remained but was renumbered as cl 4.4. This was how the clause appeared in the final form of the Commercial Terms (see below). Neither cl 1.3 nor cl 3.5 (extracted above) was in the Settlement Documents.

21. [23]

    On 22 March 2023, the second day of the hearing, the Settlement Deed (in its final form) was executed. The new Commercial Terms were annexure A to the Settlement Deed and the new Supply Terms were annexure B.

22. [24]

    As a consequence of the Settlement Deed, the Initial Proceedings were resolved and, on 23 March 2023, Black J made the following orders by consent:

23. [25]

    The clauses in the Settlement Documents which are relevant to the issue of construction that arises in this Court are as follows.

24. [26]

    The recitals to the Settlement Deed, which appear under the subheading “Introduction”, provide:

25. [27]

    In clause 1.2(b) of the Settlement Deed, under the subheading “Interpretation”, “Claim” is defined as follows:

26. [28]

    Clauses 2.1-2.4, entitled “Terms of Settlement” provide:

27. [29]

    Clause 3 is titled “Release”. Relevantly, cl 3.2 is in the following terms:

28. [30]

    Annexure A to the Settlement Deed is the Commercial Terms. In cl 1.1 of those terms, “Plant 1” and “Plant 2” are defined as follows:

29. [31]

    The “Sri Lanka Site” is defined in cl 1.1 as “the site located at 1D Nalapaha, Dibulapitiya Sri Lanka”, being the location of the purchaser’s warehouse in Sri Lanka.

30. [32]

    Clause 2 of the Commercial Terms is titled “Plant Specification” and sets out the specification of Plant 1 and Plant 2 as follows:

31. [33]

    Clause 3 of the Commercial Terms states the delivery time for Plant 1 and Plant 2:

32. [34]

    The price payable for Plant 1 and Plant 2 is set out in cl 4 of the Commercial Terms as:

33. [35]

    Neither party sought to rely on the price differential between the purchase price for the two plants in the Initial Contract or in the Commercial Terms in support of its construction of the Settlement Deed, it being accepted that, as the agreements which comprise the Settlement Documents were entered into to resolve the Initial Proceedings, it was a matter for the parties to structure the amount and allocation of the price, which might be influenced by factors other than the objective value of each plant, such as expenditure for costs in the Initial Proceedings.

34. [36]

    Annexure B to the Settlement Deed is the Supply Terms, which set out the specifications for the two plants to be provided, including their components, production capacity and composition. For example, the “Aseptic Homogenizer” component, which is to be supplied by Bertoli (a third party supplier), was listed as having a capacity of 6000L/hr.

35. [37]

    Under the heading “PRICES & COMMERCIAL CONDITIONS”, the Supply Terms lists the following pieces of equipment:

36. [38]

    Under the heading “Equipment Warranty” (which is relevant to the notice of contention), the Supply Terms provide:

37. [39]

    Finally, the “Reservation of Ownership / Insurance” provision of the Supply Terms provides:

38. [40]

    None of the Settlement Documents expressly provides for what was to be made of the homogeniser and filler already supplied to the purchaser under the Initial Contract in 2019, and whether these components were capable of being used in the performance of the vendor’s obligation under the Settlement Documents to provide two plants.

39. [41]

    On 9 February 2024, the purchaser commenced proceedings in the Commercial List by filing a Summons and Commercial List Statement, seeking declaratory relief in relation to the Settlement Documents, including that on their proper construction, the vendor is not entitled to use the homogeniser and filler which it had supplied to the purchaser pursuant to the Initial Contract to discharge its obligation to supply two plants under the Settlement Documents. It also sought an order that the vendor specifically perform the Settlement Documents.

40. [42]

    On 28 March 2024, the vendor filed a Cross-Summons and a Commercial List Cross-Claim Statement which included the following allegations (which remained in its amended statement filed on 3 May 2024):

41. [43]

    On 16 April 2024, Ball J made orders for the separate determination of all issues raised by specified paragraphs of the pleadings filed which, in effect, required the separate determination of the question whether the vendor was entitled in its performance of its obligation to supply plant under the Settlement Documents to rely on its earlier supply of a homogeniser and filler to the purchaser. The primary judge heard the separate question on 16 and 17 May 2024 and delivered judgment on 7 June 2024: Sanmik Food Pvt Ltd v Alfa Laval Australia Pty Ltd; Alfa Laval Australia Pty Ltd v Sanmik Food Pvt Ltd [2024] NSWSC 698. His Honour made orders giving effect to those reasons on 21 June 2024.

The primary judge’s reasons

1. [44]

   The primary judge preferred the vendor’s construction of the Settlement Documents, concluding that:

   1. (1)

      “the objective circumstances known to the parties when they entered the Settlement Documents, taken alone, suggest that the parties intended that the Homogenizer and Filler would stand as part of the supply by the Vendor under the ‘new’ arrangement” (at [163]);

   2. (2)

      “it was the Vendor’s subjective intention that…it did not have to deliver a further homogenizer and filler” to the purchaser under the Settlement Documents (at [165]);

   3. (3)

      “the effect of the releases was that the Vendor did not surrender title to the Homogenizer and Filler” (at [165]); and

   4. (4)

      “at the date of the Settlement Documents the Vendor remained the owner of the Homogenizer and Filler” (at [166]).

2. [45]

   It was common ground that the primary judge did not address cl 3.2(a) of the Settlement Deed in his reasons for judgment (despite coming to a conclusion about the effect of “the releases”) but that this Court ought address the clause as it was sufficiently raised by the purchaser in the Court below.

3. [46]

   The primary judge’s conclusion that the releases were “not themselves effective to release the Purchaser from the Vendor’s title in the Homogenizer and Filler” was based only on his consideration of cl 3.2(b) of the Settlement Deed.

4. [47]

   His Honour reasoned as follows (footnotes omitted):

5. [48]

   His Honour regarded the reference in cl 2.1(a) of the Settlement Deed to a “new supply” and the reference to “independent” as neutral and as not shedding any light on the parties’ intentions concerning the homogeniser and the filler ([119]-[120]).

6. [49]

   Although the primary judge accepted that the phrase “to be delivered” in the definitions of Plant 1 and Plant 2 in the Commercial Terms was “arguably consistent with the [p]urchaser’s case that no part of Plant 1 had yet been delivered” ([131]), his Honour considered that the definitions of Plant 1 and Plant 2 indicated no more than that each plant must meet the stated specification. On this basis, the primary judge did not regard cl 2.1(a) as “compelling a different conclusion” to the one to which his Honour had already come ([132]-[134]).

7. [50]

   In relation to the equipment warranty contained in the Supply Terms (see above), the primary judge concluded:

Grounds of appeal

1. [51]

   The purchaser appeals on the following grounds:

Applicable principles

1. [52]

   The broad question of construction in the Court below and in this Court was whether:

   1. (1)

      as the vendor contended and the primary judge found, the vendor was entitled to rely on its delivery of the homogeniser and the filler to the purchaser’s warehouse in Sri Lanka pursuant to the Initial Contract as amounting to performance of its promise under the Settlement Documents to deliver Plant 1 to Sri Lanka (of which the homogeniser and filler were component parts); or

   2. (2)

      as the purchaser contended, the Settlement Documents require the vendor to deliver another homogeniser and filler to the purchaser’s warehouse in Sri Lanka.

2. [53]

   The construction of the Settlement Documents for which the purchaser contended depends on the following independent propositions (the first of which was not considered by the primary judge, and the second and third of which were rejected). Those are that the homogeniser and the filler which the vendor had delivered to Sri Lanka could not be used to discharge the vendor’s obligation to deliver Plant 1 because:

   1. (1)

      the vendor’s title to these components was no longer enforceable by reason of cl 3.2(a) of the Settlement Deed (appeal ground 1(a)); or

   2. (2)

      clause 3.2(b) was effective to release the purchaser from any claim to title by the vendor with respect to the homogeniser and the filler (appeal ground 1(b)); or

   3. (3)

      on their proper construction, the Settlement Documents provide for a new supply of two plants, which is necessarily unrelated to the earlier supply (appeal ground 2).

3. [54]

   To answer this question, this Court is obliged to construe the Settlement Documents in such a way as to give effect to the parties’ objective intention, as expressed in the words selected by them for that purpose.

4. [55]

   Although some reference was made by the parties in their respective submissions to “common sense” and a “business-like” construction, I understood it to be, ultimately, common ground that this Court ought not presume to appreciate the applicable commercial considerations which motivated the parties to enter into the Initial Contract or the Settlement Documents since such considerations were not only not disclosed by the evidence but also any attempt to work them out would be speculative at best: for a discussion of the perils of judicial imposition of “commerciality” when construing an agreement, see Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd (2019) 101 NSWLR 679; [2019] NSWCA 185 at [58] (Bell P, Basten JA agreeing).

5. [56]

   It was also ultimately common ground that the Court ought not have regard to the pre-contractual communications between the parties other than to divine their subjective intention for the purposes of determining whether to read down the release in cl 3.2(b) on the basis of the equitable principle articulated in Grant v John Grant & Sons Proprietary Limited (1954) 91 CLR 112; [1954] HCA 23 (Grant) (see below) and that these documents were not to be used as part of the Codelfa matrix (after Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24) to construe the Settlement Documents at law.

6. [57]

   The releases in cl 3.2 of the Settlement Deed must be construed by reference to the following three principles expressed in Grant, the first two of which are principles of the common law and the third of which derives from equity:

   1. (1)

      “the general words of a release should be restrained by the particular occasion … the particular recital [and] ‘[i]f there be introductory matter, that will qualify the general words of the release’” (at 123, omitting citations and footnotes);

   2. (2)

      “[t]he general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given; [that is] 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” (at 123-124, omitting citations and footnotes); and

   3. (3)

      equity will intervene to restrain unconscientious reliance on the terms of a general release, by confining general words to the “particular occasion” in the contemplation of the parties at the time the release was entered into, and not construing the release as applying to something of which the parties were ignorant at the time of its execution (at 126).

7. [58]

   It appeared to be common ground in this Court that the correct approach to be taken, when considering the releases in cl 3.2 of the Settlement Deed, was, first, to construe the clause as a matter of law to determine whether it is broad enough to cover the vendor’s claim (as submitted by the purchaser), having regard to (1) and (2) of Grant above; and, if so, determine whether equity would read down the release in accordance with the approach in Grant.

8. [59]

   The primary judge did not follow this approach when constructing cl 3.2(b) (see the extract from [101]-[113] of his Honour’s reasons extracted above), preferring instead to address whether equity would intervene before the question of construction had been determined. It is a matter for this Court now to construe cl 3.2(a) and cl 3.2(b) in accordance with Grant.

9. [60]

   There is a degree of overlap between the legal principles of construction of releases and the basis for equitable intervention as is apparent from the following passage from Grant at 125:

10. [61]

    The authorities establish that where the parties to a release did not appreciate, at the time the release was agreed, that there was a claim of the nature ultimately pressed, equity may intervene to read down the release so as not to cover that claim: see, for example, Burness v Hill [2019] VSCA 94. The basis for the reading down is that the claim pressed goes beyond the “particular occasion” (which is why the parties were unaware of it at the time of the release).

11. [62]

    These principles were confirmed by this Court in Protheroe v Protheroe [2023] NSWCA 328 (Protheroe) at [36]-[40] and [54], although in that case the release was held, as a matter of construction, not to cover the specific claim. The release in that case was worded in slightly narrower terms than cl 3.2(b) in that it released the parties from “all Claims … in connection with or arising out of” the matters alleged in the proceedings, involving the National Australia Bank and borrowers, and the matters set out in the statement of agreed facts, which this Court considered limited the release to “matters happening as between the bank and the borrower parties” (at [55]). The question was whether there had been a release of a claim for proprietary estoppel, as between two of the borrowers, concerning one of the properties which was mortgaged in favour of the bank, in circumstances where there was no issue about the ownership of the property at the time the release was granted. This Court found, as a matter of construction, that there was no reason in the text of the deed of release between the bank and the borrowers, or the surrounding circumstances to read the release as “saying anything about any beneficial interests held or claimed” with respect to the properties or the mortgage to the bank ([55]).

Consideration

1. [63]

   In support of ground 1(a), Mr Sulan SC, who appeared with Mr Jameson for the purchaser, submitted that the effect of cl 3.2(a) of the Settlement Deed was that there ceased to be, from the date of its execution, any further obligations under the Initial Contract, from which it followed that the vendor no longer had any claim to title to the homogeniser and filler which it had delivered to the purchaser’s warehouse in Sri Lanka. He identified the relevant obligation (which arose from the Initial Contract) as the purchaser’s obligation “to hold [the homogeniser and filler] as bailee until the full purchase price was paid”, an obligation which flowed from the retention of title clause. Mr Sulan relied on the fact that the existence of a bailment was asserted by the vendor in its Further Amended Commercial List Cross-Claim Statement. Mr Sulan submitted that because the vendor’s title derived from the reservation of title clause in the Initial Contract, if its claim to title was disputed, it could not enforce the Initial Contract against the purchaser, because the effect of cl 3.2(a) was that the vendor lost the right to assert its entitlement to have the homogeniser and filler returned.

2. [64]

   Mr Sulan submitted that if cl 3.2(a) was not read as releasing the purchaser from the vendor’s claim of ownership to the homogeniser and filler supplied to Sri Lanka, a stalemate would arise, which tended against an alternate construction. The situation would be that:

   1. (1)

      the vendor would retain title to those components (the full purchase price under the Initial Contract not having been paid, or payable, since the contract was terminated); and

   2. (2)

      although the purchaser was in possession of those components, it could not sell them because it did not have title.

3. [65]

   If the purchaser’s construction of cl 3.2(a) was accepted, Mr Sulan submitted the purchaser could use or sell the homogeniser and filler which had been supplied under the Initial Contract because its possessory title could no longer be defeated by the vendor.

4. [66]

   Further, Mr Sulan submitted that his construction was consistent with the textual considerations (addressed in relation to ground 2) which led to the conclusion that the vendor was obliged to supply another homogeniser and filler to the purchaser in Sri Lanka and could not rely on the ones it had already supplied under the Initial Contract.

5. [67]

   He also submitted that the Grant equitable principle has no application in respect of cl 3.2(a) because it is a specific release, not a general one. Accordingly, Mr Sulan submitted the proper approach is to construe it at law only.

6. [68]

   Mr Lawrance submitted that cl 3.2(a) was only included in the Settlement Deed to make clear that the vendor’s termination of the Initial Contract was lawful and effective (this having been disputed by the purchaser in the Initial Proceedings, as referred to above) and that future obligations under the Initial Contract had been discharged.

7. [69]

   He also submitted that, at the time of entry into the Settlement Documents, there was no issue between the parties about title to or what use should be made of the homogeniser and filler already delivered, and that it would be erroneous to construe cl 3.2(a) as being intended to release a matter which was not the occasion for the instrument (to borrow the expression used in Grant). He relied on Protheroe at [54] as a reason not to construe cl 3.2(a) beyond the effect he sought to give it, submitting that the clause was limited by Recital H, which does not “refer to any dispute between the parties about the homogeniser and filler”. He accepted, however, that Recital H was broader than the relevant recital in Protheroe.

8. [70]

   Mr Lawrance further submitted that the stalemate postulated by Mr Sulan was not a true stalemate and that the position as to title ought be analysed by reference to three periods: first, up until the execution of the Settlement Deed, the vendor had title to the homogeniser and filler and the purchaser was in possession; second, between execution of the Settlement Deed and full payment for Plant 1, pursuant to the Settlement Documents, title would remain with the vendor because of the retention of title clause in the Supply Terms (extracted above); and, third, on full payment for Plant 1, title would pass to the purchaser.

9. [71]

   In response to Mr Sulan’s submission that the obligation of the purchaser which ceased by virtue of cl 3.2(a) was its obligations as bailee, Mr Lawrance submitted that because any bailment arose only at law and not pursuant to the Initial Contract, it could not amount to an obligation in respect of that contract and is therefore not covered by cl 3.2(a).

10. [72]

    I do not consider that cl 3.2(a) ought be read as narrowly as Mr Lawrance contended and prefer Mr Sulan’s construction of the provision. Mr Lawrance’s postulated resolution of the stalemate is circular since it presupposes that the components already delivered can be used in discharge of the vendor’s performance of the Settlement Documents.

11. [73]

    I accept Mr Sulan’s submission that the purchaser’s obligation which arises from the Initial Contract, as bailee of the homogeniser and filler until the purchase price was paid in full, is an obligation covered by cl 3.2(a) and one which plainly falls within “the occasion” for the Settlement Deed.

12. [74]

    The effects of cl 3.2(a) include the following. First, the purchaser no longer has any obligation under the Initial Contract to pay for the homogeniser and filler already delivered. Secondly, although the purchaser can never obtain good title to either of these components in the way contemplated by the Initial Contract (by paying the vendor in full), the vendor cannot enforce the rights of ownership of the homogeniser and filler conferred by the retention of title clause in the Initial Contract by requiring their return, seeking damages for conversion or enforcing the bailment. Thus, the purchaser has, by reason of its possession of these items, a better title to them than the vendor. In these circumstances, the vendor cannot use these components to perform its obligations under the Settlement Documents.

13. [75]

    Accordingly, I consider that ground 1(a) has been made out.

14. [76]

    Further, and in the alternative to ground 1(a), the purchaser submitted that the vendor’s claim to title to the homogeniser and filler which had earlier been delivered to Sri Lanka arose from, or was connected with, a “Settled Matter” and was thereby covered by the release in cl 3.2(b) of the Settlement Deed.

15. [77]

    Mr Sulan submitted that cl 3.2(b) covered the vendor’s claim of title to, or ownership of, the components already delivered because the supply of equipment for the first plant was included in the definition of “Settled Matters” (Recital H(d) of the Deed of Settlement). He relied on the undoubted width of the definition of “Settled Matters”, including that the word “claims” in the prefatory words (“claims and disputes…the subject of, or in any way related to…the supply of the [first plant]”) is a common noun, to be distinguished from “Claim”, as defined in cl 1.2(b) of the Settlement Deed. He submitted that the obvious and expressed intention of the parties was not to limit the meaning of “claims” to “litigation or a dispute that had developed” but to require the claim be related to the Settled Matters, and thus, that the release was broad enough to capture any claim to title by the vendor from the date of the Settlement Deed. Mr Sulan also relied on the vendor’s submissions in support of its damages claim in the Initial Proceedings as supporting this construction (by indicating the ambit of the parties’ dispute at that time).

16. [78]

    Although Mr Sulan accepted that, as at the date of the Settlement Deed, there was no specific, formulated dispute between the parties about that question, he submitted that the issue of ownership, in circumstances where the purchaser was in possession of components for which it was no longer liable to pay but to which the vendor had, at least until the Settlement Deed was executed, title under a (purportedly) terminated contract, was inevitably, and obviously, contentious.

17. [79]

    Mr Lawrance submitted that the vendor’s claim to title to the components did not fall within the “Settled Matters”. He identified two available meanings of the word “claim”: first, as a synonym for demand; and, second, as meaning a right or title (being a right of ownership) to something and submitted that only the first was apposite in Recital H and the definition of “Claim” in cl 3.2(b). He pointed to the context in which “claims” appears in Recital H – “the parties have agreed to settle all claims and disputes between them …” – and submitted that the expression “claims and disputes” is a compound expression like “loss and damage” or “pain and suffering” where the two nouns have a similar meaning and one does not expand the meaning of the other but rather takes its colour from the other. On this basis, Mr Lawrance submitted that the use of “claims” in this context and the use of the word “settle” support his contention that the word means demand, rather than a right or title.

18. [80]

    Mr Lawrance also submitted that the word “Claim” in cl 3.2(b) was similarly limited because “Claim” was defined in such a way (“claim, action or liability of any kind”) as to connote a dispute, albeit one which could be “prospective or contingent”, that being the common thread between those words: Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 at [30] (Spigelman CJ, McColl and Basten JJA agreeing). Further, he relied on the words “Claims and actions” in cl 3.2(b) as providing support for the first meaning, rather than the second.

19. [81]

    Mr Lawrance submitted that as there was no issue in the Initial Proceedings (including at the date of the Settlement Documents) about the status of the homogeniser and filler which had been delivered to Sri Lanka, since the vendor’s allegations of breach against the purchaser were confined to other matters (tr 23), there was no claim (in the sense of a demand) as to ownership because it was common ground that the vendor retained title to both of these components by reason of the retention of title clause in the Initial Contract. He relied on evidence filed by the purchaser in the Initial Proceedings as indicating its position as at the time of the Settlement Deed, including paragraph 104 of the affidavit of Pathmalal Withanage affirmed on 4 February 2022, which said:

20. [82]

    Mr Lawrance sought to explain this evidence as going to the fact that the purchaser had not benefitted from its possession of the homogeniser and filler, rather than as demonstrating an issue in the Initial Proceedings about them.

21. [83]

    Mr Lawrance submitted as there was no demand, either made or contemplated, by the purchaser to ownership of the homogeniser and filler prior to the execution of the Settlement Documents, the words in cl 3.2(b) did not cover the claim and that, accordingly, the release did not, as a matter of construction, apply.

22. [84]

    He further submitted that the vendor’s claim for damages for wasted expenditure in the Initial Proceedings, which related to the items which had been delivered as well as those which had been sourced, did not involve any acceptance that it had lost title to these components or that its title was in issue and relied on the absence of a claim in damages for conversion in support of the submission that there was no issue about title to these items prior to the execution of the Settlement Documents.

23. [85]

    The vendor’s claim in the Initial Proceedings for the whole cost of these components (but not for return of the components) as wasted expenditure indicates that this was a matter in issue between them, including because the vendor apparently regarded the components which it had delivered to Sri Lanka as of no use to it (otherwise it presumably would have sought to have them returned). Clause 3.2(b), when read with Recital H is significantly broader than the corresponding clause considered in Protheroe.

24. [86]

    It was common ground that the vendor retained title to these components until the execution of the Settlement Documents, by reason of the retention of title clause in the Initial Contract. However, there was a real issue between the parties, at the time of execution of the Settlement Documents, as to the effect of the purchaser’s possession of the components once the Initial Contract was agreed to have been validly terminated (thereby depriving the purchaser of the ability to ever obtain good title under that contract) and, thus, whether the vendor was entitled, or not, to use the components already supplied as part-performance of obligations which the Settlement Documents expressed as future obligations to deliver plant to the purchaser. This issue was, metaphorically, the elephant in the room in that it presented an obvious problem or difficult situation for which the parties failed to make express provision, not because it was not an issue, but perhaps because each wanted to retain the hope that their respective subjective intention would prevail in any litigated contest.

25. [87]

    There is considerable force in Mr Lawrance’s submission that the word “claim”, including as incorporated in the definition of “Claim” and in Recital H in the Settlement Deed, connotes some kind of dispute or contentious issue between the parties, rather than a claim of right in the abstract. However, I accept Mr Sulan’s submission that the vendor’s claim of title to the homogeniser and the filler in Sri Lanka falls within this category not only because it is a claim about a “Settled Matter”, being a claim about the supply of plant within Recital H(d), but because it was a matter which, albeit not expressly raised by the pleadings in the Initial Proceedings, was unresolved and about which the parties were plainly at cross-purposes.

26. [88]

    For these reasons, I consider that the release in cl 3.2(b) covers the vendor’s claim to ownership of the components of the plant it delivered to the purchaser in Sri Lanka and the associated dispute as to that matter.

27. [89]

    Protheroe and other similar cases concerning releases to which this Court was referred, such as Reid v Commonwealth Bank of Australia (2022) 109 NSWLR 149; [2022] NSWCA 134 and Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581, demonstrate that a release in the form of cl 3.2(b), which applies to “Claims” in connection with certain matters, is capable of attracting the principles in Grant because of its breadth.

28. [90]

    For the reasons given above, the claim sought to be released fell within the express contemplation of the parties (in Recital H(d)) because there was a real issue between the parties as to the vendor’s title to the components which had been delivered to the purchaser and were therefore in its possession.

29. [91]

    Taking into account the negotiations preceding execution of the Settlement Documents (as I am entitled to do for this purpose only), the inclusion of cll 1.3 and 3.5 in the draft settlement documents indicated that both parties appreciated that there was an issue about the status of the homogeniser and filler which had been supplied to the purchaser under the Initial Contract. The removal of these clauses from the Settlement Deed neither resolved nor removed the issue. Rather, the removal of cl 1.3 made it almost inevitable that the Settlement Documents would require judicial interpretation. To the extent to which Mr Lawrance sought to explain the removal of cl 3.1 by reference to the inclusion of the Equipment Warranty (which he submitted contemplates the “recycling” of items), I do not consider that this serves to make the status of the homogeniser and filler any less an issue between the parties.

30. [92]

    Mr Lawrance also relied on the primary judge’s unchallenged finding at [165](a) that it was the vendor’s intention that the homogeniser and the filler could be used to discharge its obligations under the Settlement Documents in support of a submission that only the subjective intention of the releasor, in this case, the vendor, was relevant to the intervention of equity in this context (relying on Reid v Commonwealth Bank of Australia at [81] (Leeming JA), referring to Burness v Hill at [81]). Even assuming this rather surprising submission to be correct, the vendor’s subjective intention (as found by the primary judge) constituted no more than a hope or aspiration that its preferred construction would prevail. The compelling inference from the pre-contractual negotiations is that the vendor’s attempt to insert cl 1.3 was rejected by the purchaser and the vendor preferred to conclude the agreement in a Delphic form rather than press the point.

31. [93]

    In these circumstances, there is no occasion for equity to intervene to restrain the purchaser’s reliance on cl 3.2(b) of the Settlement Deed.

32. [94]

    Mr Sulan submitted that, irrespective of whether cl 3.2(a) or cl 3.2(b) applied, and thus whether the vendor retained title to the components, cl 2.1(a) of the Settlement Deed required there to be a new supply of Plant 1 and Plant 2 and that the primary judge was in error in failing to so find (at [163]). He accepted however, that if he were only to succeed on this ground, the matter would have to be remitted for determination of the vendor’s claim in conversion. However as I have found that grounds 1(a) and 1(b) have been made out, that course will not be necessary.

33. [95]

    Mr Lawrance submitted that this construction was at odds with the equipment warranty in the Supply Terms which expressly contemplated that components which had been sourced for the Initial Contract could be used to fulfil the vendor’s obligations under the Settlement Documents. He submitted that the words “new supply” in cl 2.1(a) of the Settlement Deed meant a new supply contract rather than the physical supply of new components and thus, there was no impediment to the vendor supplying components either already sourced or already delivered.

34. [96]

    While I accept that the equipment warranty contemplated that the vendor could supply components which had been sourced (but not delivered) for the Initial Contract, I do not consider that this is sufficient to overcome the effect of the Settlement Documents, read as a whole, which, in my view, required the vendor to provide another homogeniser and filler to the purchaser in Sri Lanka. To use the circumstance that components already sourced could be provided to the purchaser (as provided by the equipment warranty) to reason that components already delivered could count as performance by the vendor of its obligations to supply plant pursuant to the Settlement Documents involves unwarranted speculation about commercial considerations which are, in the present case (for reasons given above), at best, opaque.

35. [97]

    I consider the following wording of the Settlement Deed indicates that there was to be a new supply of Plant 1 and Plant 2 to the purchaser in the future, which is independent of the supply under the Initial Contract rather than a supply which included components which had already been supplied:

    1. (1)

       recital I to the Settlement Deed refers to there being “a new supply contract” (emphasis added) on the Supply Terms; and

    2. (2)

       clause 2.1(a) of the Settlement Deed refers to “a new supply that is independent of the previous Contract” (emphasis added).

36. [98]

    Further, the Settlement Documents do not distinguish between Plant 1 (in respect of which components had already been supplied under the Initial Contract) and Plant 2 (in respect of which no components had been supplied under the Initial Contract), as is indicated by the following:

    1. (1)

       clause 2.2(b) of the Settlement Deed provides that, if the purchaser does not provide the requisite security within 60 days, the vendor will be relieved of the entirety of its obligations … including any obligation to supply Plant 1 and Plant 2” (emphasis added);

    2. (2)

       the definition of Plant 1 and Plant 2 in cl 1.1 of the Commercial Terms defines each plant in relevantly identical terms by reference to specifications and includes the words, “and to be delivered to the Sri Lanka Site” (in the case of Plant 1) and “to be delivered to the Philippines Site” (in the case of Plant 2)”; and

    3. (3)

       the list of equipment in the Supply Terms under the heading “PRICES & COMMERCIAL CONDITIONS” in the Supply Terms, includes a homogeniser, a tank (“one units” (sic)) and a filler (“one units” (sic)).

37. [99]

    Mr Lawrance accepted that there was “some infelicity” in the language of “to be delivered” because, in effect, the words were inconsistent with the construction for which he contended in that it would have been more accurate to define Plant 1 as those components which had already been delivered and the remainder of which was still to be delivered. But the objective intention of the parties (which, like legislative intention, is a construct) can only be assessed by the words used in the context of the Settlement Documents as a whole. I accept Mr Sulan’s submission that the lack of distinction drawn between Plant 1 and Plant 2 does not make much sense if the homogeniser and filler which were to comprise Plant 1 were already in Sri Lanka. The list of equipment in the Supply Terms is also against the vendor’s construction since there is no apparent reason to list the homogeniser and the filler if the earlier supply was intended to be counted as part performance of the obligation under the Settlement Documents to supply Plant 1 to Sri Lanka. This point is reinforced by the fact that the list of equipment for Plant 1 and Plant 2 is identical.

38. [100]

    I also consider the wording of cl 4.4 of the Commercial Terms (which provided that payments already made by the purchaser, the $387,600, are not to be taken into account or treated as part payment of the Price for Plant 1 or Plant 2) supports the purchaser’s construction. This term was arguably necessary in respect of monies already paid but not in respect of goods already supplied because, in the case of the latter, the express wording of the Settlement Documents referred to above was sufficient to evince an objective intention that there be a completely new supply.

39. [101]

    For these reasons, ground 2 has been made out.

40. [102]

    The vendor filed an amended notice of contention which alleged the following grounds:

41. [103]

    The vendor challenged the primary judge’s finding that the Equipment Warranty (set out above) did not concern the termination of the Initial Contract but rather made provision for the purchaser to have the benefit of any third-party warranties which had been given to the vendor in respect of goods sourced by the vendor. Mr Lawrance accepted that the use of the plural in the phrase “equipment under previous now terminated contracts” was, at least on its face, inconsistent with “terminated contracts” being a reference to the Initial Contract. However, he submitted that the use of the plural could be explained by the fact that there were two plants to be supplied to two separate locations. Further, he submitted that “terminated” was a reference to the singular Initial Contract, which the parties, by cl 3.2(a), had agreed was validly terminated.

42. [104]

    Mr Lawrance also sought to draw support from the use of the word “ordered” in the opening words of the Equipment Warranty (to refer to equipment that had been ordered by the purchaser) and the words “supplied … to the Seller” in the second sentence of the warranty. He submitted that, even in respect of the homogeniser and the filler which had been delivered to the purchaser, these components had been ordered by the purchaser but not yet supplied since the plant, as defined had not yet been supplied and title to these items had not yet passed. I am not persuaded by this submission, which, in my view, puts an unwarranted gloss on the words used by the parties.

43. [105]

    For the reasons given above, I consider that the primary judge’s construction of the Equipment Warranty was correct for the reasons his Honour gave (summarised above).

44. [106]

    This ground is responsive to the alleged error in the primary judge’s approach to cl 3.2(b) in which his Honour addressed the question of equitable intervention before construing the provision as a matter of law. The correct approach, following Grant, has been applied above. For the reasons set out above, I consider that the release in cl 3.2(b) is sufficiently broad to cover the claim alleged, which was part of the occasion for the instrument and that the provision ought not be read down by reference to equitable principle because it fell within the “particular occasion” and was known and appreciated by both parties to be an issue between them.

Proposed orders

1. [107]

   For the reasons given above, I propose the following orders:

   1. (1)

      Allow the appeal.

   2. (2)

      Order 1 made by Stevenson J on 21 June 2024 be set aside, and in lieu thereof, declare that:

   3. (3)

      Order the respondent to pay the appellants’ costs of the separate determination of the issues identified in the orders made by Ball J on 16 April 2024.

   4. (4)

      Remit the proceedings to the Commercial List of the Supreme Court of New South Wales.

   5. (5)

      Order the respondent to pay the appellants’ costs of the appeal.

2. [108]

   McHUGH JA: The parties chose to settle litigation about their Initial Contract for the supply of two plants, which contract they agreed had been terminated, by entering into a new contract for the supply of two plants. The parties failed to make express provision in the Settlement Documents for the fact that, prior to termination of the Initial Contract, the vendor (a) had delivered to the purchaser a homogeniser and filler that would meet the specification for the same components of the plant required to be supplied under the new contract, but (b) retained title to those components. That failure made it, as Adamson JA points out, almost inevitable that the Settlement Documents would require judicial interpretation.

3. [109]

   Having had the considerable benefit of reading Adamson JA’s reasons for judgment in draft, and gratefully adopting her Honour’s abbreviations, I can express my reasons for concluding that the appeal should be dismissed relatively shortly. Although I am in general agreement with Griffiths AJA, I would add the following.

4. [110]

   Neither party suggested that the fact that the homogeniser and filler were physically located in Sri Lanka had any bearing on the applicable principles; they proceeded on the footing that the general law of Australia applied.

Title to the homogeniser and filler at the time of the settlement

1. [111]

   It was common ground at first instance and on appeal that the vendor retained title to the homogeniser and filler immediately prior to entry into the Settlement Deed, and that there had been no dispute about the vendor’s ownership of the homogeniser and filler at the time. The primary judge made an unchallenged finding that the parties knew at the time that the homogeniser and filler were still owned by the vendor, and that they precisely met the specifications for the corresponding components to be supplied under the new contract: Sanmik Food Pvt Ltd v Alfa Laval Australia Pty Ltd [2024] NSWSC 698 at [42].

2. [112]

   The common ground that title had not passed at the time of the settlement is undoubtedly correct. Unless the Initial Contract operated to effect a transfer of title from the vendor to the purchaser, nothing else in the parties’ dealings prior to entry into the Settlement Deed could have had that effect. The Initial Contract contained the following retention of title clause:

3. [113]

   Because the full amount of the purchase price was never paid, the effect of this clause was that title did not pass under the Initial Contract prior to its termination.

4. [114]

   That it was uncontroversial that the vendor had not parted with title to the homogeniser and filler at the time of the settlement is central to each of the issues raised in the appeal.

Ground 1(a): clause 3.2(a)

1. [115]

   Ground 1(a) is to the effect that by reason of cl 3.2(a), the vendor “no longer had any claim to title to the Homogeniser and Filler”. As this ground was argued, it extended not only to the question whether the vendor retained title in the sense of property in the homogeniser and filler, but also to the question whether the vendor was entitled to assert against the purchaser any claim of right that had flowed from its title, including the right of a bailor to have goods re-delivered to it.

2. [116]

   “A bailment comes into existence upon a delivery of goods of one person, the bailor, into the possession of another person, the bailee, upon a promise, express or implied, that they will be re-delivered to the bailor or dealt with in a stipulated way”: Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 at 238; [1971] HCA 26 per Windeyer J.

3. [117]

   The homogeniser and filler were originally delivered to the purchaser in the following circumstances: (1) the vendor gave the purchaser the right of exclusive possession; (2) the purchaser took possession voluntarily; (3) either as a matter of the proper construction of the Initial Contract (including the retention of title clause) or by necessary implication, the purchaser assumed a responsibility to keep the homogeniser and filler safe pending payment of the full purchase price; and (4), by implication in all the circumstances, the purchaser undertook an obligation to re-deliver the homogeniser and filler to the vendor in the event that the purchaser failed to pay the full purchase price. It follows (and it does not appear to be in dispute) that upon delivery the purchaser held the homogeniser and filler as bailee.

4. [118]

   What the purchaser disputes is the legal character of the bailment, and how long it continued. The purchaser sought to subsume the bailment wholly within the Initial Contract, such that when the contract was terminated, so too was the bailment. Thus, Senior Counsel for the purchaser submitted at the hearing of the appeal: “The way it was pleaded … was that it was a bailment under the contract.” (Tcpt, 9 December 2024, p 45/32; emphasis supplied.) This was a reference to [14]-[21] of the vendor’s Further Amended Commercial List Cross-Claim Statement. It is true that the vendor alleged at [14] that it had delivered the homogeniser and filler to the purchaser “pursuant to” the Initial Contract. But the vendor also alleged that ownership of the homogeniser and filler had remained with the vendor, that the vendor had terminated the Initial Contract by letter dated 24 August 2022, and, at [21], that following the termination of the Initial Contract (and also following entry into the Settlement Documents), either the bailment remained in effect or a new bailment came into effect. That was, clearly enough, a pleading that the bailment existed independently of the Initial Contract. That allegation was well-founded.

5. [119]

   It is true that, prior to its termination, the Initial Contract had in some respects regulated the terms of the bailment. That explains, for example, the vendor’s allegation at [20] that “[b]y reason of” the matters earlier alleged, including the delivery pursuant to the Initial Contract, the purchaser was “to hold the Homogenizer and Filler as bailee for the [vendor] until the full purchase price under the Contract was paid.” But the bailment relation that came into existence upon delivery of the homogeniser and filler to the purchaser was itself conceptually and legally distinct from the Initial Contract, and the vendor’s allegation at [20] was not inconsistent with that proposition. From the outset, the bailment arose under the general law, as an incident of the separation of ownership and possession and the circumstances in which that occurred. The fact that the delivery of the homogeniser and filler into the purchaser’s possession occurred pursuant to the Initial Contract does not undermine the distinct legal character of the bailment; it was simply one of the circumstances which gave rise to the bailment.

6. [120]

   That was the position immediately prior to termination of the Initial Contract.

7. [121]

   By cl 3.2(a) of the Settlement Deed, “On and from the execution of this deed,” the vendor agreed that the Initial Contract “has been terminated and that the parties have no further obligations in respect of the Contract”. The parties had been litigating the vendor’s assertion that it had terminated the Initial Contract for the purchaser’s breach and/or repudiation. This clause resolved the existing dispute about the validity of the termination. For present purposes it does not matter whether the date of the agreed termination is taken to be the date of the vendor’s letter of termination (24 August 2022) or the date of the Settlement Deed (22 March 2023). The important point is that the clause should be read as recording the parties’ agreement about two matters. First, that the termination had already happened (“has been terminated”). Secondly, that the ordinary legal consequence of such a termination followed, namely, that the parties were discharged from further performance of the Initial Contract. Although the whole of cl 3 is headed “Release”, cl 3.2(a) thus operated very differently from the express release in cl 3.2(b).

8. [122]

   As to the first of the matters agreed in cl 3.2(a), once the Initial Contract was terminated, it no longer regulated the bailment. But the purchaser’s submission that the termination of the Initial Contract also necessarily determined the bailment should be rejected. As noted above, even prior to termination of the contract, the bailment relation between the vendor and purchaser was distinct from the contract. It would be a mistake to treat the purchaser’s obligations under the bailment here as though they were in effect mere implied terms of the Initial Contract which came to an end with the contract. Nor was the subsistence of any contract a necessary element of the bailment relation; the relationship of bailor and bailee of a chattel can arise and exist independently of contract: Hobbs at 239 per Windeyer J.

9. [123]

   Although the termination of the Initial Contract meant the parties were discharged from future performance of it, that did not undo what had already occurred in fact (whether pursuant to the contract or otherwise); nor did the termination undo the legal effect of what had occurred. In particular, the purchaser’s responsibility to re-deliver the homogeniser and filler to the vendor in the event that the purchaser failed to pay the full purchase price was not discharged by the termination of the Initial Contract. To the contrary, termination of that contract was likely to be a circumstance in which the purchaser would have failed to pay the full purchase price and therefore be obliged to re-deliver the goods.

10. [124]

    As to the second of the matters agreed in cl 3.2(a), the vendor’s agreement that “the parties ha[d] no further obligations in respect of the Contract” does not assist the purchaser. Clause 3.2(a) said nothing about the vendor’s ownership of the goods; nor about the distinct bailment relation between the parties. The vendor’s title to the homogeniser and filler existed independently of the Initial Contract. The vendor’s title was not (a) an obligation (b) of the purchaser (c) in respect of that contract. So too, for the reasons given above, the bailment, and the purchaser’s obligations under it, were distinct from the contract. The vendor’s right to have the homogeniser and filler re-delivered to it pursuant to the bailment was not an “obligation” of the purchaser in respect of the contract.

11. [125]

    The position upon termination of the Initial Contract was thus as follows: title to the homogeniser and filler remained with the vendor; the purchaser remained in physical possession of those goods; the parties had no further obligations to perform under the Initial Contract; but the purchaser continued to hold the homogeniser and filler as bailee. The vendor thus continued to enjoy its right as bailor to have the homogeniser and filler re-delivered to it.

12. [126]

    Ground 1(a) fails.

Ground 1(b): clause 3.2(b)

1. [127]

   The fact that at the time of the settlement there was no dispute between the parties either as to the vendor’s title to the homogeniser and filler, or as to the vendor’s right to have those goods re-delivered pursuant to the bailment, is important context for the construction of the release in cl 3.2(b). While it is true that cl 1.3 of the Heads of Agreement annexed to the draft deed of settlement had been deleted in the course of negotiations between the parties, that draft clause had been directed to a different subject matter: “The Parties agree that part of the plant for Plant 1 has already been delivered being 1 filler and 1 homogeniser.” The fact that the purchaser may have been unwilling to include in the Settlement Documents a provision acknowledging in terms that the new contract had already been performed in part is a long way from constituting a dispute, still less a dispute about the vendor’s title or right to have those goods re-delivered.

2. [128]

   Clause 3.2(b) is expressed as a release of “all Claims and actions arising from or in connection with the Settled Matters”. The clause thus invokes two defined terms: “Claim” and “Settled Matters”.

3. [129]

   “Claim” is defined inclusively as “any claim, action or liability of any kind (including one which is prospective or contingent and one the amount of which is not ascertained) and costs …” The vendor submitted that the word “claim” could mean either a claim in the sense of a demand, or a claim in the sense of a right. In the context of a deed of settlement the first of those two meanings is the more natural reading. As will be seen, that construction is strengthened once the definition is read in the context of the substantive clause, including the term “Settled Matters”.

4. [130]

   The term “Settled Matters” is effectively defined in recital H. This records that “the parties have agreed to settle all claims and disputes between them which were the subject of, or in any way related to: …” various subjects, which include at (c) the Initial Contract and at (d) “the supply of the First UHT Plant and the Second UHT Plant”. The “claims and disputes” about those subjects are then described as the “Settled Matters”. It is important to bear in mind that the Settled Matters were not the subjects listed in recital H; the Settled Matters were “all claims and disputes between [the parties]” which related to those subjects.

5. [131]

   Just as the adjective “all” is most naturally read as describing both “claims and disputes”, so too are the words “between them” most naturally read as qualifying both “claims and disputes”, as part of what should be understood as a composite phrase. That these were claims or disputes “between” the parties suggests that a “claim” means an asserted demand, rather than a right. The choice of the verb “settle” in recital H also suggests that “claim” means an asserted demand. So too does the use of the past tense (“which were the subject of, or in any way related to”). The Settled Matters should thus be read as confined to demands that had actually been asserted prior to the time of the settlement.

6. [132]

   To construe “claim” in the definition of “Settled Matters” as meaning a demand that had actually been asserted is consistent with the longstanding approach to construing releases at law. Thus, as Leeming JA (Bell CJ agreeing) said in Reid v Commonwealth Bank of Australia (2022) 109 NSWLR 149; [2022] NSWCA 134 at [33], at law:

7. [133]

   Defined terms must ultimately be interpreted in the context of the substantive provision in which they are used. Given the inclusive definition of “Claim” and the syntactically complex way in which the “Settled Matters” are defined, it is not straightforward to read the two defined terms into cl 3.2(b). Upon doing so, the substantive provision is to the effect that the vendor “releases and forever discharges [the purchaser] from all Claims [i.e., any claim (in the sense of a demand), action or liability] and actions arising from or in connection with the Settled Matters [i.e., arising from or in connection with any claims (in the sense of demands that had been asserted) and disputes between the parties which were the subject of, or in any way related to, the subjects listed in recital H]”. In light of recital G (which refers to the commencement of the proceedings in the Supreme Court of New South Wales) and recital H, cl 3.2(b) should be read as releasing only matters which had actually been in dispute prior to the settlement.

8. [134]

   The purchaser’s basic difficulty is that neither the vendor’s title to the homogeniser and filler, nor the vendor’s right to re-delivery of those goods pursuant to the bailment, meets the description of a claim (in the sense of a demand), action or liability arising from or in connection with the Settled Matters as defined. That is so for several reasons.

9. [135]

   First, as noted above, the Settled Matters were not the subjects listed in recital H (such as “the supply of the First UHT Plant and the Second UHT Plant”); the Settled Matters were the extant “claims and disputes between” the parties which related to those subjects. At the time of the settlement, there had been no claim (in the sense of a demand) or dispute between the parties about either the vendor’s title to the homogeniser or filler, or the vendor’s right to re-delivery of those goods under the bailment. Nor did the vendor’s title to the homogeniser and filler, or its right to have them re-delivered under the bailment, “arise from or in connection with” any such extant demand or dispute at the time of settlement. The vendor’s title, and its right to re-delivery, arose independently of any such claims or demands. If the vendor’s title to the homogeniser and filler is to be seen as “arising from or in connection with” the Settled Matters, so too must the vendor’s title to any other equipment it purchased for the purposes of the Initial Contract. That would be a surprising outcome.

10. [136]

    Secondly, what cl 3.2(b) releases are “Claims”. As defined, these are demands rather than rights. But the vendor’s title to its goods is not a mere demand against the purchaser; it is a right of property good against the whole world.

11. [137]

    Thirdly, even if, contrary to the above, the word “claim” should be read here as extending to a mere right as opposed to an asserted demand, and even if the vendor’s hitherto undisputed title to the homogeniser and filler is thus to be understood as a “claim”, it makes little sense to say the vendor “releases and forever discharges” the purchaser from the vendor’s title to those goods. If those words were to be construed as effecting a transfer of title from the vendor to the purchaser, this was strange language for that purpose, particularly when such a transfer was not otherwise contemplated by the parties. But it would be stranger still if the effect of cl 3.2(b) was that the vendor retained title to (i.e., ownership of) the homogeniser and filler, but surrendered its (also hitherto undisputed) right to re-delivery of those goods under the bailment.

12. [138]

    As a matter of construction of the Settlement Deed at law, there was no transfer of title to the homogeniser or filler, no “release” of the vendor’s claim to title to those goods, and no release of the vendor’s right as bailor to the return of the goods. Ground 1(b) fails.

13. [139]

    There is accordingly no occasion to consider the scope of any equitable doctrine.

Ground 2: did the vendor agree not to use the homogeniser and filler in performance of the new contract?

1. [140]

   Under the settlement the vendor assumed a new and distinct obligation to supply two plants. That obligation is rooted in clause 2.1(a) of the Settlement Deed, which is a promise to enter into the Commercial Terms and Supply Terms “for a new supply that is independent of the previous Contract in the form annexed to this deed”.

2. [141]

   The vendor was required to perform its obligation by supplying plants which met the specifications in the Supply Terms. In respect of the first plant, the obligation was not simply to deliver the homogeniser and filler; it was to supply a complete plant. That involved not only the delivery of component parts but the commissioning of the complete plant, of which the homogeniser and filler were important components. Subject to the terms of the parties’ agreement, the vendor was entitled to discharge its obligation to perform the new contract by using any equipment available to it. Since title to the homogeniser and filler remained with the vendor, and since the vendor had not released its right to re-delivery of the goods under the bailment, subject to the terms of the parties’ agreement, that equipment would include the homogeniser and filler already on site in Sri Lanka.

3. [142]

   The Settlement Documents must be construed against that background. It would be somewhat surprising if the vendor retained title to the homogeniser and filler, and had the right under the bailment to re-take possession of them, and those components perfectly matched the specifications required under the new contract, but the parties nevertheless agreed that the vendor was prohibited from using the homogeniser and filler to perform its contractual obligation to supply a plant. The parties could of course agree to that outcome if they so chose; but there was no express term to that effect. There were provisions in the Settlement Documents, identified by Adamson JA and Griffiths AJA, which would be consistent with either position. Viewed as a whole, they are insufficient to found the implication the purchaser requires. For the reasons given by Griffiths AJA, I am not persuaded that Ground 2 is made out.

4. [143]

   The appeal should be dismissed with costs.

5. [144]

   GRIFFITHS AJA: I have had the considerable advantage of reviewing Adamson JA’s reasons for judgment in draft. The issues of construction raised by the appeal are strongly contestable. Their resolution is not straightforward. For the following reasons, however, I respectfully disagree with the orders proposed by her Honour. I consider that the appeal should be dismissed, with costs.

6. [145]

   There is no need for me to repeat the terms of the relevant documentation, describe the relevant events or summarise the legal principles and the parties’ submissions. With one exception, the material matters are comprehensively set out by Adamson JA (I will also gratefully adopt her Honour’s abbreviations).

7. [146]

   In my view, that exception relates to the significance as an aid to construction (once it is apparent that the relevant clauses in the Settlement Documents do not have a plain meaning) of the Customs Invoice dated 17 July 2019. This Customs declaration was made by the vendor and copied to the purchaser. It describes the proposed entry into Sri Lanka of the filler and the homogenizer, being the two items at the heart of the dispute. I consider it significant that the nominated total value of the two items was the substantial sum of AUD$588,000 (comprised of amounts of $428,500 and $159,500 for the filler and homogenizer respectively). Thus the declared total value was approximately $200,000 more than the money paid by the purchaser under the terms of the Initial Contract (being $387,600).

8. [147]

   The substantial value of the two items, as declared to Sri Lankan Customs, was known to both parties. Indeed, it is one of the seven matters which the purchaser identified below in a document dated 17 May 2024 and headed “Critical surrounding circumstances known to both parties”. Moreover, in closing address below, the purchaser’s then senior counsel acknowledged that both parties knew of the declared value of $588,000; and, in oral address on the appeal, the purchaser’s replacement senior counsel described the homogenizer, filler and tank as “the three main components of the plant”.

9. [148]

   The invoice forms part of the surrounding circumstances relevant to the issues of construction once it becomes clear that the contractual provisions do not have a plain meaning. In particular, I consider that it lends support to a construction which favours the view that the releases did not apply to the vendor’s undisputed title to the two items.

10. [149]

    Objectively viewed, it is unlikely that the parties intended that the two items would simply become “White Elephants” and not be employed as part of the equipment to be supplied under the new Supply Contract. That is all the more so in circumstances where the declared value of the items was not only considerable; they were also brand new (having apparently been stored by the purchaser in its warehouse from the time of their delivery until some time after the Settlement Documents were executed). Moreover, and notably:

11. [150]

    These surrounding circumstances all point to the likelihood, objectively viewed, of the parties agreeing in the Settlement Documents to the two items being utilised in the new supply contract rather than effectively being rendered redundant and “replaced” by two new identical customised items of equipment.

12. [151]

    The objective logic of these matters leans against a construction of the documentation which would result in the vendor having to transport and ship two identical items for the purposes of the new supply contract, leaving the other two items idle unless the vendor was able to sell them for spare parts (presumably at a discount and possibly having to have them refabricated or redesigned given that they were customised) or incur what might reasonably be expected to be significant transport costs in shipping them elsewhere.

13. [152]

    I consider that these particular surrounding circumstances, which were known to both parties, are relevant aids to the construction of the Settlement Documents, having regard to what was said by French CJ, Nettle and Gordon JJ in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46]-[49] (footnotes omitted):

14. [153]

    As is evident from Adamson JA’s detailed analysis, the relevant provisions of the Settlement Documents are not unambiguous or susceptible of only one meaning. If they were, there would be no warrant to have recourse to any relevant surrounding circumstances.

15. [154]

    And, as stated by P Herzfeld and T Prince in Interpretation (3rd ed, 2024, Lawbook Co) at [19.70]:

16. [155]

    It is also well recognised that there are important limits to the notion that a court must give a contractual provision “a commercial and business-like operation”. For example, in Jireh International Pty Ltd t/as Gloria Jean's Coffee v Western Exports Services Inc [2011] NSWCA 137 at [55], Macfarlan JA (with whom Young JA and Tobias AJA agreed) said:

17. [156]

    I respectfully agree with Adamson JA that the evidence concerning the parties’ negotiations preceding the execution of the Settlement Documents, including the unexplained deletion of cll 1.3 and 3.5 from the earlier drafts, is not relevant to the task of construction at law. Nor for that purpose should the Court seek to determine the parties’ individual subjective motives in negotiating and ultimately agreeing the terms of the Settlement Documents.

18. [157]

    I turn now to explain more fully why I would reject both grounds of the notice of appeal filed 10 September 2024.

Appeal ground 1

1. [158]

   The first limb of ground 1 relates to the construction of the release in cl 3.2(a) of the Settlement Deed (the terms of which are set out by Adamson JA at [29] above). The purchaser contends that the primary judge erred at J[101]-[113] in finding that the releases in cl 3 generally did not release the vendor’s claim to title of the filler and homogenizer. It contends that cl 3.2(a) should be construed such that, upon entry into the Settlement Deed, the parties agreed that neither of them had any further obligations under the Initial Contract. Accordingly, it contends the vendor no longer had any claim to title of the filler and homogenizer.

2. [159]

   As Adamson JA has pointed out, the primary judge did not address cl 3.2(a). This is understandable, having regard to the way in which the purchaser conducted its case below. Its commercial list statement filed 17 April 2024 contained multiple references to various clauses in the Settlement Deed, including cl 3.2. The terms of cl 3.2(a) were summarised in [8(h)] of that document.

3. [160]

   Reference was also made to cll 3.2(a), (b) and (d) of the Settlement Deed in the purchaser’s outline of written submissions below. It submitted that the releases captured any former rights or obligations concerning retention of title provisions in the Initial Contract.

4. [161]

   In closing oral address, senior counsel for the purchaser referred to the releases in cl 3.2 generally. However, the focus of the exchanges with the primary judge was on cl 3.2(b). The primary judge observed that cl 3.2(a) was “wide enough to release [the purchaser] from any obligation in relation to the homogenizer and the filler”. Senior counsel for the purchaser agreed with the primary judge’s proposition that “on one view they are releasing you in this clause, taken alone, from any obligation to return [the homogenizer and filler]”.

5. [162]

   When the primary judge added that, looking at the subclauses in cl 3.2, his preliminary impression was that the purchaser “would say well the parties have agreed to let the chips lie where they fall”, senior counsel for the purchaser agreed. Nothing further was said about cl 3.2(a) in the purchaser’s closing address.

6. [163]

   It is scarcely surprising, therefore, that in his reasons for judgment the primary judge did not address this subclause and merely noted at J[65] and [97] that the focus of both parties’ submissions was on cl 3.2(b). Senior counsel for the purchaser on the appeal fairly and appropriately acknowledged that no criticism should be levelled at the primary judge on this matter because cl 3.2(a) did not feature “heavily in closing or at all, perhaps”.

7. [164]

   I turn now to address cl 3.2(a) and whether it should be construed as releasing any claim by the vendor concerning its ownership of the relevant components of Plant 1.

8. [165]

   When the Settlement Documents were executed, the parties were in dispute as to whether the Initial Contract had been validly terminated. This dispute was reflected in the terms of the vendor’s further amended commercial list statement below (at [52]) and the purchaser’s denial in its response that there had been a valid termination (at [19A] of its further amended commercial list response).

9. [166]

   I accept the vendor’s submission that the release in cl 3.2(a) should be read against that background. The reference in that subclause to the purchaser agreeing that the Initial Contract “has been terminated” constituted an agreement between the parties on the contested issue of whether or not the Initial Contract had been validly terminated. The following words in the subclause (ie, “and that the parties have no further obligations in respect of the Contract…”) should be viewed as an acknowledgment of the conventional consequences of such a termination, being that the parties are discharged from future obligations of performance arising under the Initial Contract.

10. [167]

    I do not accept the purchaser’s contention that the subclause operated to release the purchaser’s obligation to hold the items as bailee until the full purchase price was paid, which obligation was said to arise from the terms of the Initial Contract. It was further said that this was supported by [20] of the vendor’s further amended commercial list cross-claim statement. There, the vendor pleaded that, by reason of the matters pleaded earlier at [14] and [15], the purchaser was to hold the homogenizer and filler “as bailee” for the vendor until the full purchase price was paid under the Initial Contract. Paragraphs [14] and [15] were addressed to ownership of the homogenizer and filler. The vendor pleaded that it had delivered the homogenizer and filler pursuant to the Initial Contract and that it was a term of that contract that ownership would only pass to the purchaser upon receipt of the full purchase price.

11. [168]

    I do not accept the purchaser’s submission that these pleadings confirm that the bailment was an obligation sourced in the Initial Contract (and not in law) and therefore was covered by the release in cl 3.2(a). Rather, I consider that the relevant pleadings in the further amended commercial list cross-claim statement claimed that there was a bailment as a matter of law because, although the purchaser was in possession of the two components, no title had passed from the vendor. The bailment did not arise under the Initial Contract; rather, it arose because ownership of the two components was never transferred to the purchaser.

12. [169]

    Clause 3.2(a) also needs to be read against the background of the recitals (which are set out at [26] above). Relevantly, Recital H states that the parties “have agreed to settle all claims and disputes between them which were the subject of, or in any way related to” a list of six matters, which include the Proceedings (par (a)); the Initial Contract (par (c)); and the supply of the First UHT Plant (par (d)).

13. [170]

    I consider that the primary judge was correct to accept the vendor’s submission that the expression “claims and disputes between them” should be read distributively. This construction means that the release does not capture ownership of the homogenizer and filler. That is because there was simply no dispute “between” the parties about that ownership, nor was there any relevant “claim” in the sense of a demand concerning their ownership – the items were unquestionably owned by the vendor as at the date of the execution of the Settlement Documents.

14. [171]

    I do not consider that there is any “circularity” in this construction. The criticism that this construction is based on a presupposition that the two items already delivered can be used to discharge the vendor’s obligations under the new supply contract could be applied equally to the purchaser’s competing construction, which is based on the opposite presupposition.

15. [172]

    As noted above, the purchaser conceded that the vendor retained title to the two items when the Settlement Documents were executed (presumably by reference to the retention of title clause in the Initial Contract). The Settlement Documents included a fresh retention of title clause, but that is a different matter. It provided that ownership of the equipment/module to be delivered “shall pass to the Purchaser only upon receipt of the full purchase price by the Seller”. This clause would apply to the two already delivered items, not unlike the retention of title clause in the Initial Contract prior to execution of the Settlement Documents.

16. [173]

    For these reasons, I consider that ground 1(a) should be rejected.

17. [174]

    The proper construction of the release in this subclause is raised by ground 1(b) of the notice of appeal. The terms of cl 3.2(b) are set out by Adamson JA at [29] above.

18. [175]

    This issue turns on whether the definition of “Settled Matters” is sufficiently broad to include the vendor’s title to, or ownership of, the two relevant items. Adamson JA has summarised the parties’ respective submissions on the issue at [77]-[86] above.

19. [176]

    In my view, the word “claim” (which is incorporated in both the definition of “Claim” in cl 1.2(b) and in the chapeau to Recital H of the Settlement Deed) refers to a dispute or contest between the parties and not to an undisputed claim of right, such as that applying to the vendor’s undisputed ownership of the two components. This interpretation is supported by the juxtaposition of the word “claim” with “any action or liability” in the definition of “Claim” and also its juxtaposition with “disputes between them” in relation to the Settled Matters as described in the chapeau to Recital H. As at the date of execution of the Settlement Documents, there was simply no claim or dispute (in the sense of a controversy or contest) between the vendor and the purchaser regarding ownership of the two components.

20. [177]

    Nor do I accept the purchaser’s separate contention that the vendor’s ownership is a claim about a “Settled Matter” because there is a claim about “the supply of the First UHT Plant” within par (d) of Recital H or a claim relating to “payment for the supply of the First UHT Plant” within par (e). In my view, the reference in both those paragraphs to the “supply of the First UHT Plant” is a reference to the entirety of that supply, and not merely the supply (or delivery) of the two component parts.

21. [178]

    Furthermore, I cannot accept that the question of ownership constitutes a claim or dispute which was the subject of, or in any way related to, the Initial Contract, in circumstances where it was common ground that there was no such claim or dispute about that subject. Thus the question was not left “unresolved”, nor were the parties at “cross purposes”. Rather, at all relevant times, they were ad idem on the question of ownership of the two items.

22. [179]

    Having regard to what I consider to be the proper construction at law of the releases in cll 3.2(a) and (b), there is no need to address the possible application of equitable principles as set out in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23.

23. [180]

    For these reasons, I would reject ground 1(b) of the appeal.

Appeal ground 2

1. [181]

   This ground challenges the primary judge’s findings at J[120], [132] and [133], which, respectively, were to the following effect:

2. [182]

   As Adamson JA has noted at [94], if the purchaser succeeded only on ground 2 and failed on ground 1, the matter would need to be remitted for determination of the vendor’s claim in conversion.

3. [183]

   The primary judge explained at J[120] why he did not accept the purchaser’s contention that, by stating in cl 2.1(a) of the Settlement Deed that the parties agreed to enter into the Commercial Terms and the Supply Terms for a “new supply” that was to be “independent” of the Initial Contract, this necessarily precluded using the already delivered items which were the subject of the Old Supply. His Honour described those matters as “neutral” because the sale agreement was a “new” sale agreement and a “new” supply, and there was also a sale which was independent of the Initial Contract. I respectfully agree.

4. [184]

   In oral address on the appeal, senior counsel for the purchaser asked rhetorically: “how can something be independent of the previous contract if the supply had occurred under the previous contract”. With respect, senior counsel’s question is misdirected. The Initial Contract contemplated the supply of an entire plant, but this never occurred because only two of the components were delivered (or supplied). Accordingly, there was no “supply” under the Initial Contract and title never passed to the purchaser even though it had taken physical possession of two components of the plant.

5. [185]

   As to the significance of the phrase “to be delivered” in cl 1.1 of the Commercial Terms, with reference to Plant 1 being delivered to the Sri Lanka site and Plant 2 being delivered to the Philippines site, I respectfully agree with the primary judge’s reasoning at J[132] that these phrases appear to be directed to the question of where the components of Plant 1 and Plant 2 were “to be delivered”, rather than focusing on whether all the constituent parts of Plant 1 or Plant 2 had then been delivered. As McHugh JA said in an exchange with the purchaser’s senior counsel on the appeal, the phrase “to be delivered” is “simply identifying that there’s one going to Sri Lanka and one going to the Philippines, but the timing is governed by what’s in the clause … in 3.1 and 3.2 as to when they’re to be delivered”.

6. [186]

   On the appeal, the vendor’s counsel properly acknowledged (as did the purchaser’s senior counsel) that there was “some infelicity in the language used”, but the primary judge’s construction is supported by the uncontested fact that, while two significant components of Plant 1 had already been delivered to the Sri Lanka Site, the entire Plant was still to be delivered to that Site. The definitions of Plant 1 and Plant 2 in cl 1.1 of the Commercial Terms (see at [38] above) plainly refer to the entirety of the plant. Although the Settlement Deed refers to the “First UHT Plant and Second UHT Plant” respectively, those expressions are not defined in that document. It may be inferred that the related definitions in the Commercial Terms applied.

7. [187]

   For all these reasons, I reject ground 2. In these circumstances, it is not necessary to address the correctness of the primary judge’s finding that the Equipment Warranty did not relate to the termination of the Initial Contract, but rather applied to give the purchaser the benefit of any third-party warranties as a result of the vendor sourcing goods from those third parties.

Conclusion

1. [188]

   For all these reasons, I propose that the appeal be dismissed, with costs.