John Stanley Beagle(Appellant) v Australian Capital Territory and Southern New South Wales Rugby Union Ltd

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Murrell CJ,Burns,Collier JJ
• Judgment Date: 21 July 2017
• Docket Number: File Number: ACTCA 53 of 2016
• Date: 21 July 2017

[2017] ACTCA 29

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Murrell CJ, Burns and Collier JJ

File Number: ACTCA 53 of 2016

John Stanley Beagle

(Appellant)

and

Australian Capital Territory and Southern New South Wales Rugby Union Limited

(Respondent)

Representation:

Counsel

Dr D Hassall (Appellant)

Mr R Arthur (Respondent)

Cases Cited:

Amaca Pty Ltd v Booth [2011] HCA 53 ; 246 CLR 36

Andrew Shelton & Co Pty Ltd v Alpha Healthcare Ltd [2002] VSC 248 ; 5 VR 577

Baltic Shipping Company v Dillon (1993) 176 CLR 344

Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158 ; 21 WAR 79

Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221

Castlepines (IBM) Pty Ltd v Residential Housing Corporation Ltd [2002] NSWSC 232

Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2008] NSWSC 801

Chappel v Hart [1998] HCA 55 ; 195 CLR 232

Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55 ; 1 WLR 1752

David Leahy (Aust) Pty Ltd v Macpherson's Ltd [1991] 2 VR 367

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353

Equuscorp Pty Ltd v Haxton [2012] HCA 7 ; 246 CLR 498

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; 230 CLR 89

Horton v. Jones (No. 1) (1934) 34 SR (NSW) 359

Kendirjian v Ayoub [2008] NSWCA 194

Legal Practitioner ‘M’ v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312 ; 302 FLR 254

LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52

Lumbers v W Cook Builders Pty Ltd (in liquidation) [2008] HCA 27 ; 232 CLR 635

Mazzitelli v The Queen [2002] NSWCCA 436 ; 135 A Crim R 132

Moneywood Pty Ltd v Salamon Nominees Pty Ltd [2001] HCA 2 ; 202 CLR 351

Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221

RailPro Services Pty Ltd v Flavel [2015] FCA 504 ; 242 FCR 424

Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68 ; 208 CLR 516

Ryan v Vizovitis [2017] ACTCA 3

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3 ; 73 ALJR 306

Superyacht Technologies Pty Ltd v Mackeddie Marine Pty Ltd [2012] QSC 401

Vasco Investment Managers Ltd v Morgan Stanley Australia Ltd [2014] VSC 455 ; 108 IPR 52

White v Munro [1876] 13 SLR 651

Williams v Nicoski [2003] WASC 131

Legislation Cited:

Common Law Procedure Act 1852 (UK)

Court Procedures Rules 2006 (ACT)

Human Rights Act 2004 (ACT) ss 8, 21, sch 1

Texts Cited:

Dal Pont, G E, Law of Agency (LexisNexis Butterworths, 3 ^rd ed, 2014)

Edelman, James and Elise Bant, Unjust Enrichment (Hart Publishing, 2 ^nd ed, 2016)

Havelock, Rohan, “A Taxonomic Approach to Quantum Meruit” (2016) 132 Law Quarterly Review 470

Lawbook, The Laws of Australia (at 12 July 2017) 29 Restitution, “1 Restitution”, 7 Contract: General Principles, “9 Remedies”

Palmer, George E. The Law of Restitution (Little, Brown, 1978) vol 2

Watts, Peter, Bowstead and Reynolds on Agency (Sweet & Maxwell, 20 ^th ed, 2014)

APPEAL — PRACTICE AND PROCEDURE — RESTITUTION — General principles — quantum meruit — where appellant identified potential sponsor for sports team — whether unjust enrichment of the respondent — whether primary judge applied the wrong causation test — whether primary judge erred in finding the appellant had not made a material contribution to sponsorship agreement — whether primary judge erred in making various factual findings

Decision:

Appeal dismissed.

THE COURT:

1 This is an appeal from a decision of a Judge of the Supreme Court in which his Honour dismissed the appellant's claim against the respondent, which was framed as a quantum meruit claim.

2 The respondent company is a professional football organisation which fields a team known as ‘the Brumbies’ in the international Super XV rugby competition. In proceedings at first instance, the appellant claimed that he assisted the respondent by brokering a sponsorship deal for the Brumbies between the respondent and the Aquis group of companies (‘Aquis’), and that he was entitled to a commission of 10–35% of the value of that deal. The sponsorship deal involved a sum in excess of $8.4 million.

3 Most facts are not in dispute. His Honour sets out a detailed account of the background in the primary judgment. It is appropriate to summarise the background as well as the decision of his Honour before we turn to the appeal in this Court.

Background facts

4 The appellant described himself as a gaming industry consultant who, following a career in the public service and operating a coin shop in Tasmania, moved to Canberra in 1991. He stated that between 1985 and 2001 he worked as a full-time consultant, writer, speaker and representative of the casino and allied industries throughout Australia and overseas. Other than in respect of his activities as a gaming industry consultant, the appellant has been substantially retired since 2001.

5 We have already noted that the respondent fields the Brumbies rugby union team. Between February 2014 and December 2014 the chief executive officer of the respondent was Mr Douglas Edwards. Mr Edwards was succeeded in that role by Mr Michael Jones. Mr Simon Chester held the position of general manager of commercial operations for the respondent from October 2013, and in that capacity was responsible for sponsorships for the Brumbies under the direction of the chief executive officer.

6 At material times Aquis was wholly or majority owned by Mr Tony Fung, and included Aquis Entertainment Ltd, Aquis Canberra Pty Ltd, Casino Canberra and Aquis Developments Pty Ltd. Other than Mr Tony Fung, relevant persons associated with Aquis at material times were:

• (a) Mr Justin Fung, the son of Mr Tony Fung, who was involved in the management of Aquis' businesses in Australia.

• (b) Ms Jessica Mellor, the Executive Director of Aquis Entertainment Ltd, Aquis Developments Pty Ltd, Aquis Canberra Pty Ltd and Casino Canberra Ltd.

• (c) Mr Ben Ready of RG Communications, who was Aquis' public relations adviser in respect of all Australian businesses up until December 2014. Following that time he remained responsible for activities of Aquis in Australia outside the Australian Capital Territory.

• (d) Mr Warren Apps, who was a director of a communications and public relations business known as ‘Coordinate’. After 4 December 2014 Mr Apps' business was engaged to coordinate media and public relations activities in relation to Aquis' purchase of the Canberra Casino.

7 At some time prior to June 2014, Mr Beagle became aware that Aquis was negotiating to purchase the Reef Casino in Cairns from its then owner. Mr Beagle formed the view that, in that event, it was likely that Aquis would also purchase the Canberra Casino.

8 Mr Beagle prepared a two page document, dated 9 June 2014, entitled ‘CONFIDENTIAL FOR ACT GOVERNMENT ONLY, A TRANSFORMATIONAL PROPOSAL FOR CANBERRA, A CONCEPT SUGGESTED BY JOHN BEAGLE, RESIDENT’ (‘Transformational Proposal’). At [13] in the primary judgment his Honour observed that, in the Transformational Proposal, Mr Beagle suggested that Aquis might be able to provide Canberra with a ‘world-class’ viable casino in a convention and exhibition complex. Mr Beagle made suggestions in the Transformational Proposal of ways in which then-impediments to the operation of poker machines in the Australian Capital Territory could be overcome, and the need for a partnership between the ACT government, Aquis, the ‘ACT Club Movement’, and the ACT community. A copy of the proposal was sent to Mr Gary Rake, an ACT government official.

9 On 13 June 2014, Mr Beagle telephoned Mr Ready, telling Mr Ready that he had a deep knowledge of Canberra Casino and that he had an interest in assisting the Fung family. On 23 and 24 June 2014, Mr Beagle again spoke with Mr Ready, who informed Mr Beagle that the person in Aquis primarily dealing with Canberra matters was Ms Mellor.

10 At around the same time, Mr Chester became aware that the University of Canberra did not intend to continue its sponsorship of the Brumbies beyond the 2014 rugby season. It was imperative that the respondent find a new major sponsor for the team. Mr Chester prepared a powerpoint presentation entitled ‘The Brumbies Rugby — 2015 Major Sponsor Presentation’, and circulated approximately 300 copies of that presentation to various organisations in order to gauge interest in potential sponsorship.

11 In November 2014, Mr Chester attended a function arranged by the Canberra Business Chamber, and at that stage became aware that Aquis was a potential purchaser of the Canberra Casino. In the same month, Mr Beagle contacted Mr Pathak, a Melbourne partner of law firm Gilbert + Tobin. At that time, Gilbert + Tobin was acting for Aquis in relation to the acquisition of the Canberra Casino. Mr Beagle contacted Mr Pathak on the basis that he (Mr Beagle) had been associated with the casino industry for a long time and Aquis personnel might wish to talk with him. Mr Pathak mentioned this contact to Ms Mellor, and suggested that Ms Mellor might like to talk with Mr Beagle.

12 Ms Mellor contacted Mr Beagle. The essence of their conversation was that Mr Beagle was a retired gambling consultant in Canberra who would like to meet with Ms Mellor concerning the acquisition of the Canberra Casino, and that Ms Mellor was open to meeting with Mr Beagle if the acquisition occurred.

13 Ms Mellor emailed Mr Beagle on 1 December 2014 indicating that she and Mr Justin Fung would be in Canberra and would be interested in a meeting. A meeting was arranged for 15 December...