- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
Court of Appeal
Application for Leave s 118 DCA (Civil)
District Court at Brisbane
15 February 2002
30 January 2002
de Jersey CJ, Davies JA and Ambrose J
Joint reasons for judgment of de Jersey CJ and Davies JA; separate reasons of Ambrose J, concurring as to the orders made.
CONTRACTS–GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION – CUSTOM AND USAGE – INCORPORATION INTO CONTRACT – KNOWLEDGE OF BOTH PARTIES – appeal against decision of District Court judge – where building contract for installation of doors and windows – dispute over terms of sub-contract – whether the terms of a sub-contract had been correctly construed – construction and interpretation of the “scope of works” clause – whether subject doors were required to be framed or unframed – whether the respondent had to supply unframed glass doors pursuant to the sub-contract – whether trial judge proceeded on an erroneous factual basis that the sub-contract provided that the subject doors were to be framed.
INTERPRETATION – ADMISSIBILITY OF EXTRINSIC EVIDENCE IN RELATION TO INSTRUMENTS – WHEN EVIDENCE ADMISSIBLE TO SHOW MEANING OF TERMS – where ambiguity in contract – whether Court should resort to the use of extrinsic material to determine the true meaning of the contract and the intention of both parties
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS
Bank of New Zealand v Simpson  AC 182, applied.
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, applied
Turner v Bladin & Ors (1950-51) 82 CLR 463, cited.
JK Bond SC, with RC Schulte for the appellant
P A Keane QC, with P A Hastie for the respondent
Dibbs Barker Gosling for the appellant
Phillips Fox for the respondent.
 de JERSEY CJ & DAVIES JA: The applicant defendant seeks leave to appeal against a learned District Court Judge’s determination as to the proper construction of a sub-contract. The Judge ruled that the respondent plaintiff’s supply of hardware to unframed glass doors, as part of the Brisbane Cricket Ground Redevelopment Stage Four, entitled the respondent to an adjustment, in its favour, of the sum otherwise payable under the sub-contract.
 Leave to appeal is required because the declaration does not amount to a final judgment of the District Court. But in view of the amount of money likely involved, which is in excess of the Magistrates’ Court jurisdictional limit of $50,000, and the probable significance of the ruling to further negotiation between the parties, one would be inclined to grant leave unless the appeal were unmeritorious.
 In relation to the merits, we had the advantage of a comprehensive primary judgment, and substantial written submissions from the parties, together with oral elaboration.
 The essential planks of His Honour’s judgment were these: first, the sub-contract, by cl 6 “scope of works”, in specific terms required only that the respondent supply and install hardware to the aluminium framed doors, not mentioning the different, unframed glass doors which are in question; second, in incorporating specifications detailing what was required of the head contractor by the proprietor, the sub-contract did not designate the respondent as necessarily being the party responsible for the supply of all such items; third, the sub-contract envisaged that a separate hardware supplier was to be engaged for the project; and fourth, accordingly, the specific designation in cl 6 of the “scope of works”, of the respondent as the supplier of the hardware to the framed doors signified – notwithstanding the opening words of the “scope of works” document (“The extent of the sub-contract work shall include, but not be limited to the following:”) – that the supply in relation to the unframed glass doors was to be left to another or others.
 But for a complication to be mentioned shortly, that would be a satisfactory construction of the sub-contract. While it may not be obvious or unarguably clear, it would appropriately balance the various considerations. The complicating feature is that the parties, and at their instigation the Judge, erroneously proceeded on the basis that the sub-contract provided that the subject doors would be unframed. Properly construed, as will emerge, the sub-contract required them to be framed. Any mechanism which led to their being installed in unframed condition was not explained in evidence; neither was there consideration of any contractual ramifications in relation to payment for the supply of hardware to those doors.
 (There was some discussion, on the hearing of the application, of the distinction, in terms of structure, between framed and unframed doors. There is no need to pursue that, because the parties were in agreement that the subject doors were installed in unframed condition.)
 The case was decided on the basis that the description of “the works” in the second schedule to the sub-contract, which defined the respondent’s obligation, that is, “supply, fabricate and install aluminium framed and glazed windows and doors”, encompassed both framed and unframed doors. That is difficult to accept on a natural reading of those words. All glass doors are of course glazed. The words were plainly intended to encompass only framed glass doors. That is to be drawn from the specific reference to “framed”, and the lack of reference to unframed. (One would therefore think it arguable, subject to any other considerations, that the supply of unframed doors upon request could itself give rise to a claim for additional payment.)
 Mr Bond SC, who appeared for the applicant, took us to the “door schedule” which formed part of the sub-contract, which described the doors to be installed as glazed and aluminium framed, including the doors giving rise to the present claim – that is, the doors which were in fact, though, installed in unframed condition. That such doors were as installed unframed, was consistent with the drawings, but the priority of the documentation in the event of discrepancy in relation to contractual significance (cl 8 “project specification”) would rank the “door schedule” ahead of the drawings.
 What we have described as the natural reading of the description of “the works” in the second schedule – that is, as including only framed doors, sits comfortably, therefore, with the terms of the “door schedule”, which refers only to framed doors, and so far as other apparently conflicting material may have envisaged the supply of hardware to unframed doors (in particular, the drawings), there was as the Judge pointed out provision envisaging there being another hardware supplier or suppliers. This approach to the matter sits comfortably also with cl 6 of the “scope of works” document, which, significantly, refers to the respondent’s obligation to “supply and install all architectural door hardware as specified to aluminium framed doors” (our underlining).
 In summary to this point, all contractual provisions – bar the drawings – define the respondent’s obligation by reference to framed doors. As to the subject doors, though described in the drawings as unframed, the “door schedule” has them framed, and in terms of contractual significance, it ranks ahead of the drawings. In these circumstances, one would naturally ask whether in supplying hardware to unframed doors, the respondent should not have been entitled to additional payment. The learned Judge held it was (notwithstanding his different construction of the scope of “the works”). But his approach was, as we have said, based on the erroneous factual assumption that the subject doors were contractually required to be installed unframed.
 The question which was answered by His Honour was in the following terms:
“Upon the proper construction of the contract, was the supply and installation of hardware to the unframed glass doors to the corporate suites described in the Don Mathieson and Staff Glass Pty Ltd invoice number 377682 an obligation required to be performed by the plaintiff under the contract such that the performance of that obligation would not entitle the plaintiff to any adjustment of the contract sum under the contract?”
 His Honour answered the question “no” in respect of the supply, and “yes” in respect of the installation. It is that affirmative answer which the applicant seeks to challenge by way of appeal.
 The contractual approach set out above would involve the conclusion that the doors in question – in fact, and consistently with the drawings, unframed – should have been framed as required by the “door schedule”, with the consequence that the provision of hardware for those doors fell within the respondent’s primary obligation under the description of “the works”. Any process by which doors required to be framed came to be accepted as unframed was, as we have said, not explored below. As suggested during argument in this court, it may be that the requirement for framing of those doors, as described by the “door schedule”, should be regarded as having been waived by the applicant. If so, the question whether the doors were effectively to be regarded as “unframed”, for the purposes of the definition of “the works” and cl 6 of the “scope of works” document, meaning that there may have arisen an entitlement to additional payment, could not be answered – because it was not factually explored.
 Unfortunately, because the significance of the designation of the relevant doors in the “door schedule” as being framed, though as in fact as installed unframed, was not addressed before His Honour, the question should be regarded as having been answered on a basis which was factually unreliable.
 It is not a sufficient answer to the consequent problem to say that the parties were willing to conduct the case before the learned judge on a false basis, to which the parties wish the court to continue to hold. The correct position having been established, the court must, we consider, dispose of the case recognising that true position. Regrettably this will produce a result inconvenient for the parties, but it will now fall to them to seek an appropriate resolution, preferably by negotiation in view of the comparatively limited amount involved and the substantial amounts no doubt already expended upon costs.
 For these reasons, in our view, the question should not have been answered. We would grant leave to appeal, order that the answer to question no. 1 be set aside in so far as it concerns the matter of supply, and adjourn further consideration of the answer to that part of question to the District Court.
 In view of the way the case was to this point conducted, with both parties effectively contributing to what appears now to have been the false assumption upon which the court below proceeded, there should be no order as to the costs of the appeal.
 AMBROSE J: I have had the opportunity of considering the judgment of de Jersey CJ and Davies JA. I agree with the orders which they propose.
 In arriving at the same conclusion as their Honours I have taken a different approach which I will outline.
 The sub-contract in this case between the appellant and the respondent was made in June 1999.
 Under the sub-contract the appellant agreed to execute and complete “the Works” defined to mean “the whole of the Works referred to in the Second Schedule hereof to be executed in accordance with this Contract”.
 In the first schedule to the sub-contract “the works” were defined in the following terms –
“Supply, fabricate and install aluminium framed and glazed windows and doors”.
 One of the issues in the action pending in the District Court is the respondent’s claim for $77,539 for the supply and installation of hardware to “the unframed glass doors to the corporate suites.” It is the respondent’s contention that it was not obliged to perform this work at its own cost under the terms of its contract with the appellant.
 The works were again defined as those “described in the Second Schedule”.
 The letter of invitation to tender forwarded by the appellant to the respondent on 3 September 1998 sought a tender “for the complete ALUMINIUM WINDOWS, LOUVRES, DOORS works in accordance with the attached documentation”.
 Under cl 2.21 of the instructions to tender the documents to be read and construed as part of the sub-contract included the head contract general and special conditions.
 The scope of works dated 2 September 1998 provide that the extent of the sub-contract shall include but not be limited to the following –
5.Pre-assemble all frames prior to delivery to site.
6.Supply and install all architectural door hardware as specified to aluminium framed doors. The subcontractor will co-ordinate delivery and off-site manufacture times with the Builder and architectural hardware supplier for the balance of the project, to ensure that any special keying requirements are incorporated in works.
- Install all necessary flashing, trims and angles as is required to make the works fully weatherproof and finished to an aesthetically pleasing standard.”
Clause 16 of the scope of works provides –
“16.Supply of all channels, cast-in fixtures, bolts, etc. installed by others by forming an integral part of the structural glazing installation.”
Clause 21 of the scope of works provides –
“21.Allow for packing of frames to achieve levels.”
 In the project specification also dated 2 September 1998 cl 2.02 provides –
“2.02The works shall be constructed in accordance with this Specification, the annexure and drawings as listed herein and includes the supply of all labour, materials, equipment and the like necessary for the completion of the whole of the works.”
Clause 5.04 of the project specification provides –
“5.04No variation from the Contract Drawings and Specification will be accepted or claims for extras recognised unless the work in respect thereof has been carried out under a variation order issued and signed by the Project Manager.”
 Under the heading “discrepancies” cl 8.01 of the project specification provides –
“8.01In the event of any inconsistency of [sic “or”] contradiction between the documents comprising the Contract between the Project Manager and the Subcontractor then the following order of priority of interpretation shall prevail unless noted otherwise.
(a)General Conditions of The Watpac Standard Conditions of Subcontract including amendments, Special Conditions.
(b)Covering letter including (but not limited to) any letter accompanying the Form of Tender, the letter of acceptance and any notices to tenders.
(e)Standard Specifications, Standard Drawings and Schedule of Rates.
8.02Should any discrepancy arise between the General Specifications and Drawings then the interpretation as advised by the Project Manager shall be binding on the Contract.”
 Under cl 18 it is provided –
Before commencement of the subcontract works, acceptance of completed works by others will be required.
Once acceptance is made, the Subcontract [sic “sub-contractor”] accepts that merit of previous work as being suitable for commencement of his works and he is to work in accordance with the requirements of the specification.”
 The specification relating to windows (461) at subsection 999 cl 02 provides inter alia –
Glass doors and sidelights: Frameless glass door, sidelight assemblies to incorporate Dorma or equal approved, patch plate fixings, complete with floor recessed pivot hinge‑closers and push, pull, plate, handles and locks as per door schedule. “Frameless” glass sidelights or windows to Corporate Suites and part Function Rooms to have channel sills with Series 400 jambs and heads or as detailed.”
In subsection 100 relating to materials and workmanship cl 03 provides –
“03 ALUMINIUM DOOR FRAMES – WINDOWS
Description: Frames assembled from aluminium sections, including necessary accessories such as buffers, pile strips, strike plates, fixing ties or brackets and cavity flashing, with suitable provision for fixing specified hardware; prefinished with protective coatings, built in or fixed to prepared openings.”
Clause 04 then provides –
“04 ALUMINIUM DOORSETS – WINDOWS
Description: A proprietary doorset system comprising an aluminium framed glazed door or doors, hung to or otherwise supported by a fixed aluminium door frame, inclusive of the necessary hardware and accessories.”
 In the specification relating to hardware (410) subsection 101 cl 01 it is provided –
“01SECTION CONTENT – HARDWARE
Cross-reference: Refer to the GENERAL BUILDING REQUIREMENTS Section for general technical requirements.
Specified in this section: The supply and installation of selected hardware items specified either as proprietary items, in generic terms, or by reference to approved samples; including:
.Hinges, pivots, sliding tracks, and the like means of hanging doors.
Specified in other sections: Refer to:
In subsection 999 hardware schedules one finds –
“01PIVOTS – HARDWARE
Offset pivots:Provide “Dorma” offset pivots for aluminium framed doorsets.
02 UNFRAMED GLASS DOOR HARDWARE – HARDWARE
Generally: Unless otherwise specified, scheduled or shown provide “Dorma” hardware as follows –
Top Rail:Art No 359 full width with end stops complete with 355.4 insert
Bottom Rail:Art no 359 full width with end stops complete with 355.1 insert
Pulls: Art No 376 stainless steel door handles both sides complete with fixing assembly for glass thickness
Provide furniture as scheduled in the DOOR SCHEDULE.”
In cl 09 of that subsection in the hardware schedules it is provided inter alia –
Door controllerSurface Closers“Lockwood Arrow” 700 series.
Concealed Closers“Dorma” RTS 80 floor spring and transom point, or “Dorma” RTS 85 transom closer and floor point.”
 Subsection 360 of the specification relating to doors provides in cl 01 with respect to “door frames” –
“01STEEL DOOR FRAMES – DOORS
Description:Frames assembled from steel sections, including necessary accessories such as buffers, strike plates, spreaders, mortar guards, switch boxes, fixing ties or brackets, and cavity flashing, with suitable provision for fixing specified hardware; prefinished with protective coatings, built in or fixed to prepared coatings.”
 It is perfectly plain from the balance of cl 01 that the “door frames” there specified do not refer to any part of a door but rather to the metal frames around a doorway in which a door swings.
 Similarly with respect to sub-clause 01 under subsection 465 dealing with doorsets. Clause 01 provides inter alia –
“Doorset (definition): An assembly comprising a door (or doors) and its (there) [sic “their”] supporting frame, guides, tracks and the like, including the hardware and accessories necessary for satisfactory operation.”
 In subsection 999 the doorset schedule cl 02 specifies requirements for more than 20 “types” of wooden door.
 It is clear from reference to just one of those specified requirements that the term “door frame” again refers not to any frame that is part of a hinged or pivoted door but rather to a “Smoke seal and steel fire door frame (refer Door Jamb type)”. All specifications with respect to all of those door frames and door types specifically refer to the drawings.
 Reference to part of the door schedule specified demonstrates the various places where doors are to be hung, the door type and the “frame type”.
 There are two doors specified for each of the suites on level 3. One door type specified for each of 31 suites is described as “GL” which I would construe as referring to glass.
 The frame type for this is categorised “AL”. There is no evidence as to what this frame type indicates. It may refer to an aluminium door “frame.” Each frame type characterised as “AL” has “Furniture” of “cylinder inside” described as “BTS 80 HO.” According to the quantity surveyor, the top pivot on which the frameless glass door rotates is fitted into an “aluminium head” at ceiling level. To my mind, this suggests that the “frame” referred to in the door schedule is the “frame” surrounding the door rather than any frame which might be regarded as a component of the door itself. This was not a matter however canvassed with the quantity surveyor.
 A second door type in respect of each of the suites is categorised as Type 2. From the evidence of a quantity surveyor this type of door is wooden and its provision and installation forms no part of the sub-contract. The frame type indicated for the door type is “PF.” It may refer to “pre-finished” steel door frames within cl 01 under sub-section 360 to which I have referred.
 Reference to the floor plans for level 3, sheets A, B, C and D, indicate that each corporate suite has one external door leading from the suite to a balcony and one internal door leading from the suite to a corridor in the building giving access to it.
 The external doors of adjoining suites are swung from the end of a common dividing wall on each side of the end of which is a door jamb, which presumably is of aluminium to match other aluminium used in the glass wall – door assembly.
 It is clear from the drawings of “EXTERNAL AND INTERNAL WALL WINDOWS AND GLAZING DOORS” that the corporate suites were designed to have an external glass wall to permit viewing of the cricket oval by people within the suites into which was incorporated a glass door swung on top and bottom dormer pivots permitting access from the corporate suite to a balcony outside from which a view of the oval may also be obtained.
 In the glazing details contained in the drawings one finds plan details for the construction inter alia of external doors, each obviously considered only as a swinging door – a “FRAMELESS GLASS DOOR” – albeit that each door has what appears to be an aluminium rail top and bottom from which it is swung off a “DORMA PT20 PATCH PIVOT FITTINGS TOP & BTM” The drawings show that the surrounds of the swinging door required provision to be made for the pivots in the course of construction of the head and sill of the doorway. More importantly however, it requires aluminium to be used to surround the top and probably one side of the doorway aperture in which the “frameless” glass doors are to be swung from the pivots to be installed at the head of the door aperture and in the sill at the bottom of it.
 All these drawings bear date April 1998. They are incorporated in and made part of the contract which was signed in June 1998 – some months after the respondent, as sub-contractor, tendered for the provision and installation of “the works” it was obliged to fulfil under its sub-contract.
 In my view, in construing “the works” defined as “supply, fabricate and install aluminium framed and glazed windows and doors” one must keep in mind that the term “frame” and its derivatives used in the context of both doors and windows in the plans and specifications are obviously sometimes used to refer to frames which are integral with and part of the doors or windows to be installed, and sometimes to refer to the “head” or “jambs” inserted in the doorway – window apertures for the purpose of making an air tight, perhaps water tight and perhaps smoke proof doorway when the door is closed against them.
 Little direct evidence was given in this case as to what in the trade might be understood by the term “door frame” or “aluminium framed” or “steel framed” glass windows and doors in a building sub-contract of this kind.
 In the Glossary of Building Terms (4th ed) being a compendium of building terms and definitions used in Australia and New Zealand published by the National Committee on Rationalised Building, Standards Australia and Supplier’s Index Pty Ltd (January 1994). “Door frame” is defined as “The structural timber or metal frame which surrounds and supports the door leaf, preassembled or custom made on site. It consists of the two door jambs, the door head, and sometimes, a transom and/or sill”.
 “Door furniture” is defined to mean “Metal accessories for a door required for operation and security, including hinges, handles, locks, bolts, latches, escutcheons, push plates, etc”.
 “Door head” is defined to mean “The upper horizontal member of a door frame above the top of the door”.
 “Door jamb” is defined to mean “One of the two vertical side members of a door frame”.
 “Doorset” is defined to mean “A complete, prefabricated assembly consisting of a door, hung in its frame or lining, and including stops, architraves and door furniture”.
 “Door sill” is defined to mean “The horizontal member at the bottom of an external door frame, generally designed to keep out rain”.
 “Door stile” is defined to mean “One of the vertical outer members of a framed door leaf”.
 “Door stop” is defined to mean “That part of a door frame or door jamb lining which prevents the door from passing right through. In timber doorsets, the door stop is either machined from solid stock, or is provided by fillets which are planted or stuck to the door head and jambs”.
 “Framed door” is defined to mean “A door with a rigid frame of stiles and top, intermediate and bottom rails, and infill work of tongued and grooved boards or thin panels”.
 In R S Means Construction Glossary (U.S.A) “adjustable door frame” is defined as “A door frame with a jamb that can be adjusted to accommodate different wall thicknesses”.
 A “butted frame” is defined as “A door frame with a depth equal to or less than the thickness of the wall in which the frame is mounted”.
 On the other hand “casement door” is defined as “A door consisting of a wooden frame around glass panels, which make up a major portion of the area of the door”.
 A “combined frame” is defined as “A doorway with a fixed panel of glass on either or both sides of the door”. A “communicating frame” is defined as “A frame for two side-by-side, single-swing doors that open in opposite directions”.
 The term “door casing” is defined as “The finished visible frame into which a door fits”. Most importantly however, a “door frame” is defined as “The surrounding assembly into which a door fits. Consists of two uprights, jambs, and a head over the top”.
 “Door opening” is defined as “The size of a door frame opening measured between jambs and from the finished floor (or threshold) to the head”.
 “Door stop” is defined to mean “The strip on the door frame against which the door closes”.
 “Door trim” is defined as “The casing or molding around a door frame that covers the joint between the frame and the wall”.
 A “double-acting frame” is defined as “a door frame without stops, which allows a double-acting door to swing both ways”.
 It is clear that glazed windows and doors comprise windows and doors made of or containing glass.
 Evidence was called by the respondent from a quantity surveyor. He inspected “the hardware” that could be seen on the “unframed glass doors to the corporate suites”. He gave evidence concerning works asserted to be “variations” and in the course of this evidence referred to the schedule of doors. It would be unprofitable on this application to analyse the substance of his evidence. However, reference to it highlights the different senses in which the term “door frames” were used by him in the course of his evidence. His assumption that an “unframed” door meant a “frameless” door seems not to have been queried.
 He gave evidence that in the corporate suites were installed “a glass door without a frame around it so referred to as an unframed glass door”. He said that essentially such a door was “a plate of glass”. He then gave evidence that there was another door to the corporate suite which was a “wooden” entry door which was timber. He said that that timber door led to a passageway giving access to each of the corporate suites.
 He said that the “unframed glass door” led to a small balcony outside the corporate suite. He gave evidence as to how the glass door was held in place, in the course of which he commented that “the door does have some aluminium on it on the top and the bottom. They’re known as top and bottom rails”. He observed that the “top pivot” was fitted into an aluminium head above the door and also into the door. He talked of a locking device fitted into an aluminium housing on the door, opposite aluminium plates, apparently either side of the glass wall panel against which the closed door abuts.
 In the course of his evidence he said that “An aluminium frame door is a door that’s constructed out of aluminium, as opposed to other materials such as timber or metal”. He did not discuss what an aluminium door frame was or a door with an aluminium frame. He observed that “You could have a door without glass in it but these ones do so, what it is, it’s the members that make up the door which are the transoms and mullions. Transoms are the bits that go across, so you have a top rail and a bottom rail. And mullions are the bits that go up the side … so you form a rectangle out of aluminium and you would call that an aluminium door”. He said that the aluminium in such cases “forms the framework of the door. It’s the structural component of the door, essentially”. Dealing with the locking devices installed in the door he said that
“In order to do that they have a lock installed in them which is built into the body of the door, into the frame of the door, the jamb of the door, and it’s basically the locking mechanism for that door, to provide security for that door.”
Later he explained that “A double door is where there are two doors set in a frame”. Obviously he was using the term “frame” there to refer to the surrounds of a door which are not part of it. Later in explaining one of the fittings he observed –
“…the door has to be stopped from coming in. So they put a door stop on the frame of the door. So when you close the door it meets a barrier called a door stop or a buffer.”
 Explaining the method of installation of the frameless glass doors he observed “so what they had done is put the closer on the inside of the door but the problem they’ve got when they open the door is the closer is on the inside fitted to the frame and door but there’s no stop in the way to stop the door coming back in.” Dealing with the way a closing device operated on the doors in question he observed –
“So the top rail – the very top rail of the door is hollow because it’s aluminium…they built the closer into the top of that door and that’s fixed with a pivot into the frame to give it the hinge connection and then on the bottom it has a pivot in the bottom section to hold – to act as a hinge and that’s a concealed door closer.”
Later dealing with swinging a door on pivots he observed –
“So what appears to have been put on the door frame – if the door frame was approximately 1.8 m wide, which would be two doors 900 millimetres wide, there was a device fitted to the head of the frame or a piece of metal fitted to the head of the frame – not the full width, I think it was about 1200 millimetres, I didn’t take the exact measurement – which – which bridged both leaves of the door and it-it-it was proud at the frame, so it dropped down from the frame. Which meant when you closed the door it – it hit against this door stop, which means you couldn’t push the door through 180 degrees, you could only open it one way.”
Later he observed –
“Hinges are just the normal method of – of fixing a door to the frame and allowing it to move in one or two directions.”
Dealing with certain types of hinges he observed –
“They’re basically the device which fixed – is fixed to the door and the frame and it enables the movement of the door…”
Later dealing with sets of doors he observed –
“And the doors were set in the middle of the frame…so there was quite a gap between the edge of the door frame and where the door actually finished up…what a striker plate is… when you close the door that has a latch on it, or a lock-in most cases a latch – you don’t want it to hit the frame because it’ll just damage the frame, whether it’s a timber frame or an aluminium frame it’ll damage it, so when you get the lock it generally comes with a plate which fits over the opening into which the lock goes into.”
 The quantity surveyor later gave evidence indicating clearly enough that “buffers, pile strips, strike plates, fixing ties or brackets and cavity flashing” were all attachments “planted around the rim of the door frame, the perimeter of the frame”. Clearly the term “door frame” in those contexts was used to indicate something other than a part of the pivoting door.
 There was no evidence led as to trade usage of the term “framed” glass doors – except perhaps what may be inferred from the approach of the quantity surveyor called by the respondent, which was not really investigated on the construction point.
 In the absence of such evidence, reference to the glossaries of building terms to which I have referred indicate clearly enough that a “framed” glass door may sometimes refer to the framing or surrounds of a door regarded as a component of that very door while on other occasions it may refer to the surrounds of the doorway in which is swung a door with or without a component which may be described as its frame.
 In my view it was undesirable to attempt to construe this contract in disregard of extrinsic background evidence of the events which led to its execution and indeed the extrinsic evidence as to the way in which the contract was performed by the parties to it – both before and after the dispute arose concerning its meaning. In this respect I refer to Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 347-53 per Mason J and Turner v Bladin & Ors (1950-51) 82 CLR 463 at 470 per Williams, Fullager and Kitto JJ.
 It is unnecessary and indeed on the state of the material impossible to determine whether any ambiguity in the language of the contract might be characterised as either patent or latent. To the extent that the language used, the meaning of which is in dispute, was susceptible of more than one meaning, evidence is admissible to prove which particular meaning it had in this contract. Such evidence would not of course add to the words of the contract but would simply identify what the intent of the parties must have been having regard to the circumstances leading to the execution of the contract and perhaps having regard to the manner in which it was in fact performed. Background evidence of a contract is always admissible to demonstrate the facts known to each party at the time of its execution. Indeed “objective background” evidence will include evidence of the assumption of facts common to both parties to a contract – Codelfa (supra) at 149 CLR 354 (per Mason J). As it was observed in Bank of New Zealand v Simpson  AC 182 at 187 “Extrinsic evidence is always admissible, not to contradict or vary the contract, but to apply it to the facts which the parties had in their minds and were negotiating about”.
 Part of the relevant background material in this case will relate to the cost component of the supply of the doors and door frames and hardware in issue, compared with the cost component of the supply and installation of other works under the sub-contract.
 The sum in issue is $77,539 being the sum claimed for the provision and installation of door hardware to frameless doors, whereas the whole of the sub-contract consideration was $350,000. Comparison of market valuation of all materials supplied and work performed under the sub-contract (disregarding variations and extras) with the market valuation of the materials supplied and work performed which is in issue in this commercial building dispute will be relevant as background or contextual evidence.
 In Cheshire and Fifoot Law of Contract (5th Australian Ed) it is observed in para 408 which deals with ambiguity in contract:
“In sum, the argument of ambiguity should be understood as a mechanism for filtering out arguments which are extravagant, merely speculative, or obviously tangential. If the parties are in genuine dispute over scope or meaning of the written document, ipso facto there is ambiguity.”
 Subsequent to this observation there is a discussion of the admission of “objective background” evidence and it is observed in para 409 “Evidence that language used by the parties has an established meaning in the particular transactional context (for example in a trade, industry or business, or locality) is clearly also of objective background, and is therefore admissible”.
 It was observed in Codelfa that where operative mistake may arise from ambiguity, relief by way of rectification may be sought. No such relief has been sought in this action, however, and it is unnecessary to give consideration to this matter upon this application.
 I would grant leave to appeal and make the orders proposed by the Chief Justice and Davies JA.
- Published Case Name:
Hennessey Glass & Aluminium P/L v Watpac Australia P/L
- Shortened Case Name:
Hennessey Glass & Aluminium Pty Ltd v Watpac Australia Pty Ltd
 QCA 24
de Jersey CJ, Davies JA, Ambrose J
15 Feb 2002
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QDC 206||11 Sep 2001||Claim for money owing under a sub-contract; determination of separate questions in advance of trial: McGill DCJ.|
|Primary Judgment|| QDC 57||30 Mar 2007||Costs: McGill SC DCJ.|
|Appeal Determined (QCA)|| QCA 24||15 Feb 2002||Application for leave to appeal against District Court's determination as to the proper construction of a sub-contract  QDC 206; leave granted; question stated set aside; no order as to costs: de Jersey CJ, Davies JA, Ambrose J.|