Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd
[2015] QSC 290
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- Unreported Judgment
- Appeal Determined (QCA)
- Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd[2015] QSC 290
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Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd[2015] QSC 290
Reported at [2016] 2 Qd R 194
Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd[2015] QSC 290
Reported at [2016] 2 Qd R 194
SUPREME COURT OF QUEENSLAND
CITATION: | Surfstone Pty Ltd & Anor v Morgan Consulting Engineers Pty Ltd [2015] QSC 290 |
PARTIES: | SURFSTONE PTY LTD AS TRUSTEE OF THE IERNA PROPERTY TRUST ACN 097 808 225 (first plaintiff) CORKDON PTY TLD AS TRUSTEE OF THE HICKS PROPERTY TRUST ACN 097 808 190 (second plaintiff) v MORGAN CONSULTING ENGINEERS PTY LTD ACN 009 859 081 (defendant) |
FILE NO/S: | No 11423 of 2014 |
DIVISION: | Trial |
PROCEEDING: | Trial |
DELIVERED ON: | 19 October 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 May 2015 |
JUDGE: | Peter Lyons J |
ORDER: | Each of the following questions is answered in the affirmative:
|
CATCHWORDS: | CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – OFFER – GENERALLY – INCORPORATION – where the defendant engineers submitted a Fee Proposal on 27 August 2003 – where the Fee Proposal stated that the ‘commission would be generally in accordance with the ACEA Guideline Terms of Agreement’ – where the defendant submitted the first of a series of invoices relating to the commission on 17 December 2003 – where the defendant did not provide the plaintiffs with a copy of the Guideline Terms and no one associated with the plaintiffs sought to obtain one – where clause 4.3 of the Guideline Terms limited the duration of the defendant’s liability for the commission to one year from completion – where the plaintiffs filed a Claim in negligence more than nine years after the defendant submitted the final invoice – where the plaintiff alleges that clause 4.3 of the Guideline Terms was not incorporated into the contract – whether a reasonable person in the plaintiffs’ position would have concluded that, at the time that the Fee Proposal was accepted, the defendant intended to enter into a contract to provide the relevant engineering services on the terms identified in the Fee Proposal, including the Guideline Terms – whether, for an exemption clause to be incorporated into an unsigned contract, a party must do all that is reasonably necessary to bring the clause to the other party’s attention – whether a party must be given notice of, or have their attention drawn to, terms which alter their common law rights –– whether clause 4.3 was a term which no one would anticipate in a contract of the type in question Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379; [1906] HCA 83, cited. Baltic Shipping Co v Dillon (1991) 22 NSWLR 1; [1991] NSWCA 19, cited. Circle Freight International Ltd v Medeast Gulf Exports Ltd [1988] 2 Lloyd’s Rep 427, cited. Cockerton v Naviera Aznar SA [1960] 2 Lloyd’s Rep 450, cited. D F McCloy Pty Ltd v Taylor Thomsom Whitting Pty Ltd [2000] NSWSC 1142, cited. Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87, cited. Davis v Pearce Parking Station Pty Ltd (1954) 91 CLR 642; [1954] HCA 44, followed. Davison v Vickery’s Motors Ltd (in liq) (1925) 37 CLR 1; [1925] HCA 47, cited. eBay International AG v Creative Festival Entertainment Pty Ltd [2006] FCA 1768; (2006) 170 FCR 450, cited. Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, cited. Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, cited. Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221; (1911) 48 SLR 1081, applied. Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31; [1968] UKHL 3, cited. Holdway v Arcuri Lawyers [2008] QCA 218; [2008] 2 Qd R 18, followed. Hood v Anchor Line (Henderson Brothers) Ltd [1918] AC 837; [1918] UKHL 2, discussed. Hyder Consulting (Australia) Pty Ltd v Wilhelmsen Agency Pty Ltd [2001] NSWCA 313, discussed. Hardwick Game Farm v Suffolk Agricultural and Poultry Producers Association Ltd [1966] 1 All ER 309, cited. Interfoto Picture Library Pty Ltd v Stiletto Visual Programmes Ltd [1989] QC 433; [1988] 2 WLR 615, cited. J Spurling Ltd v Bradshaw [1956] 2 All ER 121; [1956] EWCA Civ 3, cited. Laurel Race Course Inc v Regal Construction Co Inc 333 A 2d 319 (1975), cited. MacRobertson Miller Airline Services v Commissioner of Taxation of WA (1975) 133 CLR 125; [1975] HCA 55, discussed. Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd & Anor [1998] 4 VR 559, discussed. Metal Roofing and Cladding Pty Ltd v Amcor Trading Pty Ltd [1999] QCA 472, cited. Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32, discussed. Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451, [2004] HCA 35, cited. Parker v The South Eastern Railway Co (1877) 2 CPD 416; (1877) 46 LJKB 768, discussed. Pondcil Pty Ltd v Tropical Reef Shipyard Pty Ltd [1994] FCA 1206; [1994] ATPR (Digest) 46-134, discussed. Smith v South Wales Switchgear Ltd [1978] 1 WLR 165; [1977] UKHL 7, cited. Sydney City Council v West (1965) 114 CLR 481; [1965] HCA 68, cited. Termitjelen v Van Arkel [1974] 1 NSWLR 525, followed. Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163; [1970] EWCA Civ 2, cited. Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52, discussed. |
COUNSEL: | KN Wilson QC with D de Jersey for the plaintiffs DB O'Sullivan QC with SR Eggins for the defendant |
SOLICITORS: | Thynne & Macartney for the plaintiffs Moray & Agnew Lawyers for the defendant |
- These are the reasons for judgment for my determination of the questions set out below, pursuant to an order of Martin J of 13 March 2015:-
“(a)Were the ACEA Guideline Terms of Agreement incorporated, in full, into the contract between the plaintiffs and the defendant?
(b)If so, does clause 4.3 of the ACEA Guideline Terms of Agreement, on its proper construction, operate as a bar to the plaintiffs bringing this proceeding against the defendant?”
Background
- In about 2003, the plaintiffs arranged to have carried out construction work for a distribution centre for a retail clothing and accessory business known as “City Beach”. They engaged Mr Robert Meredith as the architect for the project[1]. In August 2003, Mr Meredith invited Mr James Thomas of the defendant to submit a fee proposal for the provision of civil and structural engineering services for the project[2]. Mr Thomas did so on 27 August 2003, by a document bearing that date (Fee Proposal)[3].
- The Fee Proposal was a relatively brief document[4]. It commenced with a statement that it was a proposal for “…services to be provided and fees to be charged on this project.” It then made representations about the defendant’s quality assurance system and its insurance cover. It nominated a total fee of $49,000 plus GST. There then appeared the following:-
“These fees will remain valid for a period of six months from the date of this letter. The commission would be generally in accordance with the ACEA Guideline Terms of Agreement, with terms of payment being 30 days from the date of invoice.
Invoices will be submitted at the end of each month during the project, with the invoiced amount being proportional to the amount of work completed at that time.”
- The Fee proposal concluded with the following:-
“If you require any further information, or wish to discuss the fee structure or any aspect of this proposal, please do not hesitate to contact the undersigned.”
- The evidence does not identify any specific acceptance of the Fee Proposal. However, the defendant submitted an invoice dated 17 December 2003, claiming 25 per cent of the agreed fee. Subsequent invoices were submitted, the final invoice (for $3,000) being dated 5 July 2005[5].
- No one associated with the plaintiffs sought to obtain a copy of the terms of agreement referred to in the first of the quoted paragraphs (Guideline Terms).
- The plaintiffs commenced the present proceedings by Claim and Statement of Claim filed on 27 November 2014. The Claim is framed in negligence. It alleges that the internal concrete floors of the centre have been subject to rotation and deflection, caused by settlement of compressible soft-firm clay beneath the floors. Signs of these difficulties became apparent in about April 2009, and the rotation and deflection accelerated by about 2010.
- The defendant alleges that the Guideline Terms were incorporated into the contract between the parties, and that clause 4.3 of those Terms prevents the plaintiffs from bringing this action against it.
- Before considering the substantive questions, it is convenient to record some preliminary findings.
Formation of contract
- It is not in dispute that the parties entered into a contract for the provision of engineering services by the defendant to the plaintiffs for the project. There is no suggestion of demur to the defendant’s invoice of 17 December 2003. It follows, in my view, given that work must have been done by the defendant prior to that date, that the contract was formed at some time prior to the commencement of the work, though subsequent to 27 August 2003.
- How precisely the contract was formed is not apparent from the evidence. The most likely explanation is that an agent of the plaintiffs expressly communicated to the defendant either an acceptance of the Fee Proposal, or an instruction to commence work, or both. There was no suggestion of any discussion of contractual terms after the Fee Proposal was submitted. Accordingly I find that the contract was formed by an acceptance on behalf of the plaintiffs, most likely Mr Meredith, as these things were left to him, of the Fee Proposal, before the defendant commenced work. That finding is consistent with the position of the parties expressed in their pleadings, save as to the date of the engagement[6]. The pleaded date of engagement is plainly wrong, on the material relied on at the hearing.
- Mr Wilson QC and Mr de Jersey of Counsel, who appeared for the plaintiffs, submitted that I was bound by the admission as to the date of formation of the contract, notwithstanding the state of the evidence. No authority was provided in support of that submission. In Gramophone Co Ld v Magazine Holder Co[7] Lord Loreburn said,
“It is the duty of a Court to decide cases according to the truth and fact, not according to any assumed or artificial state of facts which the parties might find it convenient to present…A Court of Justice can never be bound to accept as true any fact, merely because it is admitted between the parties.”
- His Lordship’s statement was applied in Davison v Vickery’s Motors Ltd (in liq)[8]. It was also applied in Termitjelen v Van Arkel[9], a case where an allegation in a statement of claim was deemed to have been admitted. These and other authorities were extensively discussed by Heydon JA (with whom Spigelman CJ and Sheller JA agreed) in Damberg v Damberg[10]. In Holdway v Arcuri Lawyers[11] it was held that a trial Judge erred in acting on an admission in a pleading, contrary to his findings on the evidence. Accordingly I reject the submission made on behalf of the plaintiffs; and I propose to proceed on the basis of my finding from the evidence about the time when the contract was formed.
- Since the last of the defendant’s invoices is dated 5 July 2005, I would have found that the defendant completed the provision of its services under the contract by no later than 5 July 2005. However, a concession made on behalf of the plaintiffs makes this unnecessary.
Guideline Terms
- The Guideline Terms were prepared and published by The Association of Consulting Engineers Australia (ACEA), now known as “Consult Australia”. They were revised in February 1991 (this revision will be referred to as the 1991 Revision); and again in May 2004. On the view to which I have come about when the contract was formed, the version potentially incorporated into the contract is the 1991 Revision[12].
- On the evidence of Ms Motto, the current Chief Executive Officer of ACEA, the Guideline Terms have been promoted for use by consulting engineers since at least 2000 (when she commenced in that position). Mr Cox, a practising architect for a number of years including prior to 2004, gave evidence that it was common for fee proposals put forward by consulting civil and structural engineers to state that their engagement would be on the Guideline Terms. Mr Quigley, an architect since 1989 involved in many projects where consultant engineers were engaged, gave evidence that Fee Proposals commonly stated that the conditions of engagement would be in accordance with the Guideline Terms. Mr Thomas also gave evidence that since he became involved in preparing fee proposals for clients of the defendant in about 1989, the proposals always referred to the Guideline Terms.
- The 1991 revision, although not lengthy, covered a number of areas. They included the respective roles (and obligations) of the client and the engineer; payment; copyright; and dispute determination. Part 4 was entitled “Scope Of Liability”. Clause 4.1 limited the consulting engineer’s liability to the client, to the cost of rectifying the works which are the subject of the commission. Clause 4.2 limited the amount of liability to $3,000, unless otherwise specified.
- Clause 4.3 is critical for the present case. It is as follows
“4.3Duration of liability
The Consulting Engineer shall be deemed to have been discharged from all liability in respect of the Services, whether under the law of contract, tort or otherwise, at the expiration of the period specified in Item 10 of the Schedule or if no date is specified on the expiration of one year from the completion of the Services, and the Client (and persons claiming through or under the Client) shall not be entitled to commence any action or claim whatsoever against the Consulting Engineer (or any employee of the Consulting Engineer) in respect of the Services after that date.”
- Item 10 of the Schedule did not specify a date.
Submissions on incorporation of Guideline Terms
- The submissions for the plaintiffs pointed out that no one signed the Guideline Terms on their behalf, nor were they provided with a copy[13]. They submitted that whether the Guideline Terms were incorporated into the contract was a matter of construction. The reference to them in the Fee Proposal was “vague and imprecise”[14]. The language used in the Fee Proposal was insufficiently clear to incorporate the Guideline Terms into the contract between the parties.
- The submissions referred to Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd[15] for tests to be applied when determining these questions. One is whether a term is so onerous or is otherwise of a kind such as to suggest that it might not reasonably be expected to be part of the terms of the contract; in which case, the issue is whether the accepting party can reasonably be taken to have assented to the particular term. Another is whether terms “are appropriate to a contract of the type in question”; or whether the terms include provisions “which no one would anticipate in a contract of the type in question”. Another is whether the term is an unusual term “because it is more than ordinarily onerous”.
- The plaintiffs’ oral submissions emphasised that the word “generally” in the Fee Proposal was not sufficiently certain to incorporate clause 4.3; and in the context in which that document referred to the Guideline Terms, it incorporated no more than provisions relating to the payment of fees. Specific attention would have had to be drawn to a limitation clause, such as clause 4.3[16]. A term would be unusual in this context, if it was more than ordinarily onerous[17]; or if it altered common law rights[18]. Reliance was also placed on the decision in D F McCloy Pty Ltd v Taylor Thomsom Whitting Pty Ltd[19] (McCloy). The evidence advanced on behalf of the defendant was not sufficient to show that the incorporation of the Guideline Terms was common industry practice. However it was accepted that, if the Guideline Terms were incorporated, the plaintiffs’ claim would be barred.[20]
- The plaintiffs made written submissions, intended to be in relation to both questions, but dealing specifically with the question whether clause 4.3 was incorporated into the contract between the parties. By reference to a passage from Cheshire & Fifoot[21], they submitted that the party relying on a limiting term must show that reasonable notice was given of its existence; or that the party which relied on the clause, “did all that was reasonably necessary to bring (it) to the other party’s attention”[22]. They submitted that, in order to rely on clause 4.3 of the Guideline Terms, the defendant “must prove it drew that term to the plaintiff’s attention (or to the attention of their agent)”. There being no evidence to show this, the clause was not incorporated into the contract.
- For the defendant it was submitted, apparently with reference to a document which was unsigned, that a party who accepts an offer set out in a document purporting to incorporate other conditions is bound by those conditions if either –
- the party receiving the document was aware of what the conditions were, and that the offer was subject to them; or
- the party who provided the document has given reasonable notice to the other party that the offer is subject to those conditions[23].
- For the purposes of the second of these alternatives, the party relying on incorporation must show that –
- the document provided to the other party was provided prior to the contract being entered into;
- the document clearly identified the conditions to be incorporated, and that the proposed contract would be subject to those conditions[24]; and
- it was possible for the party receiving the document to view the conditions to be incorporated should it wish to do so (it is apparent that this must be possible before the contract is formed)[25].
- The defendant’s submissions identified one qualification to these principles, namely, that if any condition was so unusual that the other party could not reasonably be taken to have agreed to it, then the party relying on the condition must give reasonable notice of its contents, rather than merely identifying its existence[26]. Whether the condition is, in the relevant sense, unusual, and what amounts to reasonable notice, depend on the circumstances of the particular case. Relevant factors are the industry in which the parties are operating; the type of contract they have entered into; whether the parties are “commercial parties”; and whether or not reasonable opportunity was given to the accepting party to consider the term. In particular, a term will not be unusual if it is commonly used in the relevant business or industry[27].
- The defendant’s written submissions contended that the plaintiffs, not having led evidence establishing that they did not know the content of the Guideline Terms, it should be found that they did. On that basis, it should be found that the Guideline Terms were incorporated into the contract[28].
- Alternatively it was submitted that the Fee Proposal was provided prior to the formation of the contract[29]. It sufficiently identified the Guideline Terms, and that the proposed contract would be subject to them[30]. The plaintiffs had adequate opportunity to view the Guideline Terms, if they wished to do so[31]. Clause 4.3 was neither unusual nor onerous for the type of contract which the parties entered into, and therefore there was no need for the defendant to have taken further steps to draw the plaintiffs’ attention to the clause. Accordingly it was incorporated into the contract.
- The defendant submitted that the present case was sufficiently similar to that determined by the New South Wales Court of Appeal in Hyder Consulting (Australia) Pty Ltd v Wilhelmsen Agency Pty Ltd[32] (Hyder), to make it necessary to follow that decision, in accordance with principles formulated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd[33].
- The defendant submitted that the 1991 Revision was the relevant version of the Guideline Terms. On its proper construction, it both extinguished the plaintiffs’ cause of action; and operated as a bar to the commencement by the plaintiffs of the present proceedings.
Construction of reference to Guideline Terms in Fee Proposal
- It was submitted on behalf of the plaintiffs that there was some vagueness about the reference to the Guideline Terms in the Fee Proposal, and that the language used in it was not sufficient to incorporate those terms. Alternatively it was submitted that the context had the effect that what was incorporated was the provision relating to the payment of fees.
- The difficulty with the submissions for the plaintiffs is that they fail to give effect to the language used in the Fee Proposal. It stated that the commission was to be “generally in accordance with” the Guideline Terms. Its natural meaning, subject to the scope of the expression “generally in accordance with”, and to any other matter arising from the context, is that the commission was to be as provided for in those terms. The language used by the defendant, therefore, at least prima facie, effects incorporation of those terms into the Fee Proposal.
- In the present context, it seems to me that the word “generally” means “for the most part”[34]. Yet the effect of the submissions for the plaintiffs is that its use means that none of the provisions of the Guideline Terms is incorporated into the Fee Proposal[35]. That seems to me a most unlikely outcome.
- The Fee Proposal dealt with matters not fully dealt with by the Guideline Terms, such as the total amount of the fee, and the times at which invoices were to be submitted. It seems to me that a reasonable person in the position of the plaintiffs, reading the Fee Proposal, would understand that the basis on which the defendant was offering to provide its services was, for the most part, in accordance with the Guideline Terms; and such a person, reading those terms, would understand that the expression “generally in accordance with” was used because not all matters were finally dealt with in the Guideline Terms. No other explanation for the use of the expression was identified.
- The reference to the Guideline Terms appears amongst provisions relevant to the fees to be charged, and their payment. However, the incorporation is not limited to those matters, but relates to “the commission”, a reference to the engagement by the plaintiffs of the defendant to provide engineering services. The expression “generally in accordance with” would indicate that the Guideline Terms are, as I have suggested, to apply, for the most part, to the contractual relationship between the parties. The Guideline Terms deal with a much broader range of matters than fees. The fact that the incorporating provision is found amongst provisions relating to fees does not, it seems to me, affect the relatively clear statement incorporating the Guideline Terms.
- I would therefore conclude, as a matter of construction, that the Fee Proposal incorporated the Guideline Terms, including clause 4.3. In dealing with this question, I have assumed that the Fee Proposal is a contractual document. Otherwise, the answer does not matter. Whether a reference in a contractual document is effective to incorporate terms found elsewhere will generally depend, it seems to me, on the language used in the contractual document, construed according to the ordinary rules of construction, and not, at least in a case like the present case, on the nature of the terms referred to. The cases to be discussed later in these reasons appear to me to show that where it is held that a term referred to in a document does not become contractual, that is a result of other circumstances, principally related to the nature of the term. It is not a result of the inadequacy of the incorporating language.
Is it always necessary to draw an exclusion clause to the attention of the other party?
- The parties have carefully gleaned propositions from an array of authorities which have considered the circumstances in which terms in an unsigned document are contractually binding. In considering the utility of these cases for present purposes, it seems to me not unimportant to note the transactions to which a number of these cases relate. They include the entering of a private wharf through a turnstile[36]; the deposit of articles in a cloakroom at a railway station in exchange for a ticket[37]; the making in Sydney of a booking for a cruise in the Greek Islands, the ticket for which would be provided when the passenger boarded the vessel[38]; the purchase of an airline ticket[39]; the parking of a car in a parking station, associated with the receipt of a ticket, where the parking station is either staffed[40] or automated[41]; the purchase of a ticket to a music concert[42]; and the sending by a film lending library, in response to a telephone request, of a jiffy bag containing 47 transparencies and a delivery note containing conditions, including a liquidated damages clause[43]. In cases of this kind, one party provides the other with a document containing, or incorporating, conditions, at about the time the contract is formed, and even after its formation.
- The question also arises in cases where one party seeks to rely on a condition on the basis of a previous course of dealings, during which conditions were notified[44].
- In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[45] the High Court had to determine whether an exemption clause and an indemnity formed part of a contract. Their Honours said[46],
“This Court, in Pacific Carriers Ltd v BNP Paribas[47], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.”
- In my respectful opinion, this statement represents the fundamental touchstone for identifying the terms of the contract. The cases relied upon by the parties which have formulated more specific principles or rules, it seems to me, represent the way that courts have tried to apply this test in particular classes of cases.
- Parker[48] is an early case in which a question arose about whether a condition limiting liability found on the back of a ticket issued to a cloakroom customer formed part of the contract between the customer and the operator of the cloakroom. In a passage, part of which was cited in Toll[49], Mellish LJ said[50],
“In an ordinary case, where the action is brought on a written agreement which is signed by the defendant, the agreement is proved by proving his signature, and, in the absence of fraud, it is wholly immaterial that he has not read the agreement and does not know its contents. The parties may, however, reduce their agreement into writing, so that the writing constitutes the sole evidence of the agreement, without signing it; but in that case there must be evidence independently of the agreement itself to prove that the defendant has assented to it. In that case, also, if it is proved that the defendant has assented to the writing constituting the agreement between the parties, it is, in the absence of fraud, immaterial that the defendant had not read the agreement and did not know its contents.”
- In Pondcil Pty Ltd v Tropical Reef Shipyard Pty Ltd[51] Cooper J discussed a number of the authorities which deal with the question whether a written term is incorporated into a contract, when there is no signed document. It is convenient to extract passages from those cited by his Honour.
- Thus in Hardwick Game Farm, Diplock LJ said[52],
“The task of ascertaining what the parties to a contract of any kind have agreed shall be their legal rights and liabilities to one another as a result of the contract is a familiar one in all systems of law. It is accomplished not by determining what each party actually thought those rights and liabilities would be, but by what each party by his words and conduct reasonably led the other party to believe were the acts which he was undertaking a legal obligation to perform.”
- Later his Lordship referred to cases where a party[53] “so conducts himself as to lead the other to believe that he intended the written document to set out all the rights and liabilities of each party towards the other which do not arise by implication of law from the nature of the contract itself”.
- His Lordship then said[54]
“This is the relevant distinction between contracts which the parties have agreed shall be embodied in a written document and other kinds of contracts. The ticket cases are examples of the former. The only question there is whether the party proffering the ticket has so conducted himself as to lead the other party reasonably to believe that the written term upon which he seeks to rely formed part of the terms upon which alone he was willing to contract. He may fail because he has not taken reasonable steps to draw the term to the attention of the other party. But if he has taken such reasonable steps it matters not that the other party has never read the term and would not have entered into the contract if he had read it.”
- To similar effect, on the appeal from Hardwick, Lord Pearce in Henry Kendall & Sons v William Lillico & Sons Ltd[55] said,
“The court’s task is to decide what each party to an alleged contract would reasonably conclude from the utterances, writings or conduct of the other.”
- The submissions for the plaintiffs draw particular support from a passage from the judgment of Brennan J in Oceanic Sun Line Special Shipping Company Inc v Fay[56]. His Honour said,
“If a passenger signs and thereby binds himself to the terms of the contract of carriage containing a clause exempting the carrier from liability for loss arising out of the carriage, it is immaterial that the passenger did not trouble to discover the contents of the contract. But where an exemption clause is contained in a ticket or other document intended by the carrier to contain the terms of carriage, yet the other party is not in fact aware when the contract is made that an exemption clause is intended to be a term of the contract, the carrier cannot rely on that clause unless, at the time of the contract, the carrier had done all that was reasonably necessary to bring the exemption clause to passenger’s notice … In differing circumstances, different steps may be needed to bring an exemption clause to a passenger’s notice, especially if the clause is an unusual one.” (citations omitted)
- This passage is relied upon in Cheshire and Fifoot[57] for the following statements relating to what is referred to as a “limiting term”:-
“… the party denying liability by relying on such a term must show that reasonable notice was given of its existence … A normal requirement of reasonable notice is that the actual text of the limiting terms must be displayed to the party who is to be bound by them. It will not usually be enough, for example, to state that the terms in question are available for inspection on request … In general an effort should be made to bring it to the attention of the party that the document contains limiting terms …”.
- In considering the plaintiff’s submission that the defendant must prove it drew clause 4.3 to the attention of the plaintiffs, or that it had done all that was reasonably necessary to bring that clause to the notice of the plaintiffs, it is convenient to commence with some observations about Oceanic. The statement of principle of Brennan J on this question was adopted by Gaudron J[58]. The approach of the other members of the Court was a little different, more easily understood after a brief reference to the facts.
- In Oceanic, the plaintiff had, through his agent, paid in Sydney the fare for a cruise in the Greek Islands on a vessel owned by the defendant. In exchange for the payment, the agent received an “exchange order”. The exchange order included a statement entitled “CANCELLATION OF CRUISES OR ALTERATION OF ITINERARY”. The statement then dealt with this topic. However it did so by reference to “Article 2 of the Sun Line passage contract”; included with, “this order will be exchanged for a Sun Line ticket when boarding vessel.”[59] The ticket only became available to the plaintiff when he had travelled to Greece. It included a clause conferring exclusive jurisdiction on the Courts of Athens, Greece, for any action against the defendant. At some time prior to the time when the cost of the cruise was paid by the plaintiff’s agent, his wife had travelled to Sydney. Whilst she was there she had obtained a brochure produced by the defendant, which she later showed to the plaintiff. At some point, she pointed out the cabin which had been booked for them. The brochure was a glossy document of some 30 pages. Inside the back cover was a page headed “Things To Know Before You Go”. It included a statement, “The attention of passengers is drawn to the General Conditions of transportation set out in the Passage Contract”. It also stated that the “Passenger Ticket Contract” could be inspected at any Sun Line office; though no copies of the ticket were held at the defendant’s agent’s office in Sydney.
- The case concerned whether a stay should be granted of proceedings brought by the plaintiff in the Supreme Court of New South Wales, and accordingly findings about the contract between the parties were provisional. The other three members of the Court concluded that the brochure was not contractual in nature, and did not form any part of the relevant contract of carriage[60]. Likewise, the ticket, which was not provided to the plaintiff until he arrived in Greece, was post-contractual, and the terms set out in it did not form part of the contract[61].
- The passage from the judgment of Brennan J is expressed in terms relevant to a contract between a carrier and a passenger. It follows his Honour’s earlier finding that the contract was made when the exchange order was issued in Sydney, well before the provision of the ticket[62]. His Honour was thus concerned with the question whether a contract would include an exemption clause, included in the ticket. It is in that context that his Honour said that the clause would not form part of the contract unless the party relying on it “had done all that was reasonably necessary to bring the exemption clause to (the other party’s) notice”.
- Of the authorities relied upon by Brennan J, that which provides most support for the position of the plaintiffs is Thornton v Shoe Lane Parking Ltd[63]. There the plaintiff entered an automatic car park, receiving a ticket from a machine on entry. The plaintiff then drove inside, leaving his car. The ticket contained a statement that it was issued “subject to the conditions of issue as displayed on the premises”. The conditions were displayed inside the car park, and included a clause excluding the operator’s liability for injury to the customer. When the plaintiff returned, he suffered an injury on the premises. The operator relied on the exemption clause. Lord Denning MR said[64]
“… the only condition that matters for this purpose is the exempting condition. It is no use telling the customer that the ticket is issued subject to some ‘conditions’ or other, without more: for he may reasonably regard ‘conditions’ in general as merely regulatory, and not as taking away his rights, unless the exempting condition is drawn specifically to his attention. … Telescoping the three questions (referred to by Mellish LJ in Parker v The South Eastern Railway Co[65]), they come to this: the customer is bound by the exempting condition if he knows that the ticket is issued subject to it; or, if the company did what was reasonably sufficient to give him notice of it.”
- In the same case, Megaw LJ said[66]
“When the conditions sought to be attached all constitute, in Lord Dunedin’s words[67], ‘the sort of restriction … that is usual,’ it may not be necessary for a defendant to prove more than that the intention to attach some conditions has been fairly brought to the notice of the other party. But at least where the particular condition relied on involves a sort of restriction that is not shown to be usual in that class of contract, a defendant must show that his intention to attach an unusual condition of that particular nature was fairly brought to the notice of the other party. How much is required as being, in the words of Mellish LJ[68] ‘reasonably sufficient to give the plaintiff notice of the condition’, depends upon the nature of the restrictive condition.”
- Brennan J also referred to Hood’s case. In that case, the agent of a passenger purchased a ticket for a voyage on a steamship travelling from New York to Glasgow. On payment, the agent received a ticket enclosed in an envelope, on the front of which was printed in capital letters a notice requesting the passenger to read the conditions of the enclosed contract. The ticket set out clauses including an exempting clause. Above these clauses appeared the statement that the ticket issued subject to the conditions which were set out; and at the foot there was a printed request to the passenger to read the clauses carefully. It was held the passenger was bound by the exempting clause because the defendant had done what was reasonably sufficient to give the plaintiff notice of the conditions[69]. It should be noted that Lord Finlay LC held that the contract was not formed at the time of payment for and receipt of the ticket; but rather when the passenger or his agent receives the ticket, and has had the opportunity to accept or reject it[70].
- The passages from Hood’s case referred to by Brennan J both themselves refer, with apparent approval, to Parker. In Parker, there are statements by Mellish LJ which seem to me to be instructive. The first, consistent with the passage cited earlier, is as follows[71],
“Now if in the course of making a contract one party delivers to another a paper containing writing, and the party receiving the paper knows that the paper contains conditions which the party delivering it intends to constitute the contract, I have no doubt that the party receiving the paper does, by receiving and keeping it, assent to the conditions in it, although he does not read them, and does not know what they are.”
- Somewhat later in his reasons, his Lordship said[72],
“I am of opinion, therefore, that the proper direction to leave to the jury in these cases is, that if the person receiving the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditions; that if he knew there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions; that if he knew there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound, if the delivering of the ticket to him in such a manner that he could see that there was writing upon it, was, in the opinion of the jury, reasonable notice that the writing contained conditions.”
- The last-quoted passage appears to be the source of the “three questions” referred to by Lord Denning in Thornton[73], in turn, one of the passages relied upon by Brennan J in Oceanic. That led to Mellish LJ concluding that the real question in Parker was[74], “whether the railway company did what was reasonably sufficient to give the plaintiff notice of the condition”.
- In Parker, Baggallay LJ said[75]
“Of the intention of the company to modify the contract of bailment in the cases under consideration by limiting their liability, there can be no question. I also think that, if the plaintiffs were aware, or ought, for reasons which will be indicated presently, to be treated as being aware of the intention of the company at the time when they respectively received their tickets, and did not express their dissent, they must be regarded as having agreed to give effect to them.”
- Shortly after, his Lordship said[76]
“I think also that he would be equally bound if he was aware or had good reason to believe that that there were upon the ticket statements intended to affect the relative rights of himself and the company, but intentionally or negligently abstained from ascertaining whether there were any such, or from making himself acquainted with their purport.”
- In a number of cases it has been accepted that an exclusion or limitation clause might be incorporated into a contract, without it being suggested that it was necessary that the party relying on the clause draw it to the attention of the other party: see Hardwick[77]; upheld in Henry Kendall[78]; J Spurling Ltd v Bradshaw[79]; Cockerton v Naviera Aznar SA[80].
- In Circle Freight[81] it was held that an exclusion clause was incorporated into a contract of carriage as a result of previous dealings between the parties. The contract was oral. On 11 previous occasions, the plaintiff had issued invoices which stated that it transacted its business under terms which were not set out on the invoice, but were available on request. Those terms included the exclusion clause. Taylor LJ held that it was sufficient to incorporate terms found in a document not given to the other party if reasonable notice was given of the terms[82]. He also considered it to be an appropriate test to ask, what would each party by his words and conduct have led the other party as a reasonable man to believe that he was accepting[83]. He expressly rejected the proposition that the specific condition relied on must be drawn in terms to the attention of the other party, with the proviso that the incorporated terms be “in common form or usual terms in the relevant business”[84]; “other considerations apply if the conditions or any of them are particularly onerous or unusual”[85]
- In the same case, Bingham LJ (as he then was) held that the terms were incorporated, because “clear words of reference suffice to incorporate the terms referred to”[86]. The incorporating reference on the invoices was itself contractual, because reasonable notice of the plaintiff’s terms had been given to the defendant[87]. O'Connor LJ agreed with the other members of the Court.
- In Maxitherm, Buchanan JA held that terms referred to, but not set out in, one of the documents constituting the contract were incorporated, by reference to the conclusion which a reasonable reader of the document would reach[88]. Relevantly, these terms limited Maxitherm’s liability. Similarly Callaway JA[89] referred to the fact that the written offer expressly stated that it “was based on Maxitherm’s standard terms and conditions”. He observed that the reasonable reader would have been left in no doubt that Maxitherm had such terms and conditions, and was offering to enter into a contract which would incorporate them[90]. Effect had to be given to a statement in a subsequent document (part of the chain of documents leading to the formation of the contract), which was to similar effect. The approach of Ormiston JA[91] was somewhat similar. His Honour said,
“Where terms are explicitly referred to by an offeror, it can be rare that an apparent acceptance by the offeree should not carry with it the offeree’s assent to the whole of the terms described”.
- However, Buchanan JA also said[92],
“I do not intend to convey that express acceptance of an offer which incorporates other terms by reference necessarily connotes acceptance of all of those terms. In a case where the person expressing consent has not read the terms, his consent may be taken to be a consent to those terms which are appropriate to a contract of the type in question. If the terms include provisions which no one would anticipate in a contract of the type in question, it would not be appropriate to assume consent to those provisions. The basic enquiry remains whether it was reasonable to assume that a contracting party has assented to the terms put forward by the other party.”
- Ormiston JA generally agreed with Buchanan JA. His Honour accepted a qualification where an offer purports to incorporate terms that “might not reasonably be expected to be part of the terms of the contract”[93]. That qualification was that in such a case,[94] “the issue is whether the accepting party can reasonably be taken to have assented to the particular term”.
- The judgment of Callaway JA was to like effect. His Honour identified terms, not known to the other party, which an offer purports to incorporate, but which the acceptance of the offer might not extend to. Whether such terms are taken to have been incorporated is determined by reference to the risk the accepting party should be taken to have run by entering into a transaction without enquiring what the terms and conditions are. The scope of that risk was made apparent by the following statement[95]:
“The term may be contrary to industry practice or, however appropriate to other contracts into which the party regularly enters, unsuited to the particular contract. It is rarely, if ever, sufficient that a term is onerous, but its onerous quality or some other feature may show that it was not reasonably to be expected.”
- In Hyder[96] it was held that clause 4.3 of the Guideline Terms was to be incorporated into a contract for engineering work. The New South Wales Court of Appeal did not consider it necessary to examine the statements of principle or rules which the parties in the present case have set out in their submissions. Reference was made by Meagher JA[97] and Giles JA[98] to the judgment of McHugh JA in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd[99], who cited a passage from an American case[100] to the effect that where an offeree with reasonable opportunity to reject offered services takes the benefit of them under circumstances which would indicate to a reasonable person that they were offered with the expectation of compensation, he assents to the terms proposed and thus accepts the offer. However, McHugh JA pointed out that the question of acceptance was one of fact, and not a rule of law.
- In Hyder, Giles JA (with whose reasons Sheller JA agreed) rejected a submission that the other party should not be found to be bound by clause 4.3, unless it had actual notice of it[101]. Earlier, his Honour asked rhetorically[102],
“How could the engagement have been on some terms of the letter of 8 February 1994 (as to a time basis with fixed upper limits and the charge rates), but not on another important term of the letter (appointment in accordance with the ACEA Conditions of Engagement)?”
- My examination of these authorities leads me to adopt the following propositions for determining whether a party (the acceptor) is bound by a term set out or incorporated in an unsigned document which the other party (the offeror) has provided to the acceptor in circumstances which show the offeror intends the document to identify terms of the contract. It is not always the case that the acceptor is not bound by an exemption clause, unless the offeror directs attention to the clause. The fundamental question is whether the offeror is reasonably entitled to conclude that the acceptor has accepted the terms in the document, including the exemption clause. That conclusion should be reached where the second party has had a reasonable opportunity to consider the terms, including the exemption clause, and has behaved in a way which manifests acceptance of the document as recording contractual terms. In other cases, where the clause is one reasonably to be expected in contracts of the kind in question, acceptance of the document makes the clause binding, even if the acceptor does not know its terms, or even that it is contained in the document. If the clause is not one reasonably to be expected, then something more is required by way of provision of information about the clause to the acceptor before the contract is formed. What information will be required will depend on the circumstances, but particularly on the terms of the clause.
- I should add that I did not consider McCloy a decision which would affect my conclusions. It was concerned only with the question whether, in a particular case, a referee had erred in principle.
Application
- In the present case, Mr Meredith invited the defendant to submit a fee proposal. Plainly enough, that was to be in writing. The reason is obvious: in the event that it was accepted, there would be a written record of what had been accepted.
- The Fee Proposal was sent to Mr Meredith on 27 August 2003. It is clear that he received it[103], “about that time”, no doubt a reference to the date which it bears[104]. The inference which I draw from his oral evidence was that he read the document shortly thereafter[105], and telephoned representatives of the plaintiffs to discuss it[106]. Mr Meredith gave evidence that there was enough time after the receipt of the Fee Proposal, for him to obtain a copy of the Guideline Terms; and for the plaintiffs to have obtained legal advice about their suitability[107]. That is consistent with the fact that no invoice was sent until December 2003.
- In my view, a reasonable person in the position of the plaintiffs would have concluded that, at the time that the Fee Proposal was accepted, the defendant intended to enter into a contract to provide the relevant engineering services, only on the terms identified in the Fee Proposal; and a reasonable person in the position of the defendant would have concluded that the plaintiffs agreed to contract on those terms. Those conclusions extend to the Guideline Terms, including clause 4.3. In the circumstances of this case, it was unnecessary for the defendant to do more, and in particular, it was not necessary for the defendant specifically to draw the attention of the plaintiffs to that clause.
- It follows that I would answer the first of the questions in the affirmative.
The approach of the parties
- In case I am in error in the approach taken thus far, I propose to consider the rules and principles referred to by the parties in their submissions.
- I commence with the defendant’s submission that a party who accepts an offer set out in a document that purports to incorporate conditions is bound by the offer if the party accepts the offer, being aware of what the conditions were and that the offer was subject to them. The submission is based on a passage of the judgment of Brennan J in Oceanic[108]. There is some similarity between that submission, and some of the passages from a judgment of Mellish LJ in Parkercited earlier in these reasons. There may be some difficulty in reconciling the reference in each case to the knowledge of the offeree, with the objective theory of contract.
- Mr Meredith’s evidence shows that he knew, on receipt of the Fee Proposal, the Guideline Terms were to form part of the contractual arrangement between the plaintiffs and the defendant[109]. On the test formulated by Mellish LJ, that would be sufficient to incorporate clause 4.3 into the contract. However, it seems to me that the cases dealing with exemption clauses are no longer consistent with a proposition that an offeree is bound by such a clause, if the offeree knows that the written offer incorporates contractual terms, but does not know one of those terms is an exemption clause[110]. The defendant did not contend that Mr Meredith’s knowledge was sufficient to bind the plaintiffs to clause 4.3, and accordingly I do not propose to rely on it as determinative, on the approach at present under consideration. The passage from the judgment of Brennan J in Oceanic would make additional steps unnecessary where the other part is aware that an exemption clause is intended to be a term of the contract. Mr Meredith’s evidence does not go so far.
- The questions which then arise are whether, for the defendant to rely on clause 4.3, it was necessary for it to take some step to give notice of it, or draw it to the attention of the plaintiffs; and whether what it did was sufficient.
- The submission for the plaintiffs that such action is required for any term which would alter common law rights should not be accepted. Generally there will be no reason to set out in a contractual document, terms which simply state what the rights of the party would be, were the terms not set out.
- The passage from the judgment of Brennan J in Oceanic is to the effect that an exemption clause cannot be relied upon, unless the party relying on it had done all that was reasonably necessary to bring the exemption clause to the notice of the other party. However, his Honour did not express the proposition in such general terms. He spoke specifically about a passenger, a carrier, and a contract of carriage, making his statements specific to that context. It seems to me that it is not inevitable that an exemption clause cannot be incorporated by reference into an unsigned contractual document, unless the party relying on it has done all that is reasonably necessary to bring the clause to the other party’s attention. This is apparent from a number of the cases cited earlier.
- It is then necessary to refer to the various tests proposed by the parties. A convenient starting point is the reference on behalf of the plaintiffs to a statement in the judgment of Buchanan JA in Maxitherm, as follows[111]
“If the terms include provisions which no one would anticipate in a contract of the type in question, it would not be appropriate to assume consent to those provisions.”
- The contract was a contract for the provision of engineering services. It is apparent from the evidence of Ms Motto, Mr Cox, and Mr Quigley, that the application of this test would not result in a conclusion that the plaintiffs did not agree to clause 4.3.
- One of the submissions for the plaintiffs relied on the passage from the judgment of Buchanan JA in Maxitherm, referring to the question whether the terms “are appropriate to a contract of the type in question”[112]. No specific submission was made to demonstrate that this clause was inappropriate to a contract for the provision of engineering services. The fact that the clause forms part of standard terms of engagement recommended by the professional body representing engineers throughout Australia supports a contrary conclusion, though this does not seem to me to be decisive. A clause which limits the time in which claims may be made against an engineer for the provision of engineering services seems to me, in principle, to be appropriate, because damage to property which might lead to such a claim can arise from a variety of causes, and with the passage of time it will become more and more difficult for the representatives of the engineer effectively to investigate the cause of the damage for the purpose of responding to a claim. Amongst matters supporting this conclusion are the fact that the property will usually not be in the control of the engineer nor will the engineer have access to it; and events may have happened which have caused or contributed to the damage, for which the engineer was not present and of which the engineer would have no knowledge.
- The effect of the incorporation of clause 4.3 would mean that the plaintiff would have had to make a claim against the defendant within one year from the completion of the engineering services. No specific submissions were addressed to the length of this period. I do not consider that this has the effect that the clause, which would otherwise be appropriate if a longer term were included, should not be so regarded. Accordingly, I conclude that clause 4.3 is an appropriate clause for a contract of the type in question.
- The matters which I have discussed lead me to conclude that although clause 4.3 is onerous from the point of view of the plaintiffs, it is not a clause that “was not reasonably to be expected”[113].
- In my respectful opinion, expressions such as “more than ordinarily onerous”[114], or “extremely onerous” or “particularly onerous”[115] present some difficulty. They posit a level of burden which is ordinary or common, against which the burden imposed by the clause in question is to be measured. Nevertheless, the evidence in the present case makes it possible to apply them. There is evidence from Ms Motto and Mr Thomas demonstrating that the ACEA promoted the use of the Guideline Terms. There is also evidence from Mr Quigley, Mr Cox and Mr Thomas about their experience of the incorporation of these terms in contracts for the provision of engineering services. Although in each case this is the evidence of an individual, it nevertheless represents somewhat extensive experience. There is no evidence to suggest that the experience of these individuals is unusual, nor that the recommendations of the ACEA about the use of the Guideline Terms were usually disregarded. In my view, the evidence permits a conclusion that the use of the Guideline Terms is sufficiently common to make it unnecessary for the defendant to have taken particular steps to draw the attention of the plaintiffs to clauses such as clause 4.3.
- I should record that, had I concluded that it was necessary for the defendant to take some step specifically to draw the attention of the plaintiffs to clause 4.3, they have not done so. In that case I would have concluded that the clause was not part of the contract, notwithstanding my finding about the construction of the sentence in the Fee Agreement which refers to the Guideline Terms.
- Accordingly, I am satisfied, on the alternative approach I have considered, that clause 4.3 was incorporated into the contract between the plaintiffs and the defendant.
Some authorities relating to the incorporation of terms in an unsigned document
- It is convenient to refer to a number of cases relied on by the parties. It will become apparent that I do not consider many of them to be of assistance in the present case.
- Metal Roofing was relied upon by the defendant in a proposition that the document purporting to incorporate conditions, must clearly identify them and must show that the proposed contract was to be subject to those conditions. However, it was a case where the incorporating document was signed by the party said to be bound by the incorporated terms. In that case, it was held that the terms were incorporated because they were “sufficiently identified” in the incorporating document[116].
- The language used in the defendant’s submissions is not to be found in the authorities, nevertheless, it seems to me that it makes plain the requirements of reasonable notice of incorporation of other terms. Unless the notice identifies the terms to be incorporated, and that the contract would be subject to those terms, it is difficult to see how it would constitute reasonable notice of incorporation of the terms.
- Some support for the defendant’s proposition that reasonable notice requires the party receiving a document incorporating terms of that other document to have the opportunity to view those terms, is to be found in MacRobertson[117]. The authorities there cited, and the conclusion of Stephen J, show that when a ticket is issued which itself contains conditions or a reference to conditions elsewhere available, the contract between the issuer and the recipient of the ticket does not come into existence until the recipient either manifests acceptance of the offer which the ticket is construed to be, or a reasonable time has passed during which the recipient has had the opportunity of reading the terms, without rejecting the offer[118]. It seems to me that the defendant’s formulation is correct; although it does not expressly recognise that a party will be bound if it chooses to accept an offer incorporating terms, without seeking to view the terms.
- It seems to me that these authorities lead to the conclusion, consistent with what was said by Bingham LJ[119] in Circle Freight, at least in general, that clear words of reference suffice to incorporate the terms referred to. As is apparent from his Lordship’s reasons, the ultimate test is whether reasonable notice of the terms has been given.
- There is authority for what might be regarded as a qualification or proviso to the proposition that clear words of reference suffice to incorporate terms so referred to. It is that where a term is more than ordinarily onerous, special notice of it might be required[120].
Conclusion
- The first of the questions for determination is expressed more broadly than the question which I have considered. Beyond submissions about the ineffectiveness of the language used in the Fee Proposal to incorporate the Guideline Terms (which I have rejected), no submission was made that the balance of the Guideline Terms were not incorporated. I have already referred to the concession made on behalf of the plaintiffs in relation to the second question.
- Accordingly, I would answer each of the questions for determination in the affirmative.
Footnotes
[1] Defendant’s Outline of Submissions, Hearing on 12 and 13 May 2015, dated 5 May 2015 (Defendant submissions), at [11]
[2] Defendant submissions at [12].
[3] Defendant submissions at [13].
[4] Affidavit of James Mitchell Thomas, sworn 28 April 2015, Court Document 18, at Exhibit 2.
[5] Affidavit of James Mitchell Thomas, sworn 28 April 2015, Court Document 18, at Exhibit 4.
[6] Statement of Claim, at [6]; Defence, at [10]; Reply, at [9](a).
[7] (1911) 28 RPC 221, 225.
[8] (1925) 37 CLR 1, 7, per Isaacs J.
[9] [1974] 1 NSWLR 525.
[10] (2001) 52 NSWLR 492 at [148]-[160].
[11] [2009] 2 Qd R 18.
[12] See Smith v South Wales Switchgear Ltd [1978] 1 WLR 165, esp at 177.
[13] Plaintiff’s submissions, dated 5 May 2015 (Plaintiff’s submissions) at [19].
[14] Plaintiff’s submissions at [20].
[15] [1998] 4 VR 559, at 561, 568-569.
[16] Reliance was placed on a statement by Brennan J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 (Oceanic), at pp228-229; and on Cheshire & Fifoot’s Law of Contract (10th Aust Ed) LexisNexis Butterworth’s 2012 at [10.70].
[17] Relying on Maxitherm at p 569.
[18] Transcript from hearing of 12 May 2015 (T) 1-101.
[19] [2000] NSWSC 1142.
[20] T 1-93.
[21] Cheshire & Fifoot’s Law of Contract (10th Aust Ed) LexisNexis Butterworth’s 2012 at [10.70].
[22] Citing eBay International AG v Creative Festival Entertainment Pty Ltd [2006] FCA 1768 at [19].
[23] Defendant’s submissions at [30], relying on Oceanic at pp 228-229; Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, at p 386 (Balmain); Parker v South Eastern Railway Co (1877) 2 CPD 416, at pp 425-426 (Parker).
[24] Defendant’s submissions at [31], relying on Metal Roofing and Cladding Pty Ltd v Amcor Trading Pty Ltd [1999] QCA 472 at [39]-[40], [77] (Metal Roofing); Circle Freight International Ltd v Medeast Gulf Exports Ltd (Circle Freight) [1988] 2 Lloyd’s Rep 427, at pp 430-433; Maxitherm at p 568.
[25] MacRobertson Miller Airline Services v Commissioner of State Taxation of WA (1975) 133 CLR 125, at pp 138-139 (MacRobertson).
[26] Defendant’s submissions at [31].
[27] Defendant’s submissions at [36], relying on Circle Freight at p 433.
[28] Defendant’s submissions at [39] and [44].
[29] Defendant’s submissions at [47].
[30] Defendant’s submissions at [48]-[49].
[31] Defendant’s submissions at [51]
[32] [2001] NSWCA 313.
[33] (2007) 230 CLR 89 at [135].
[34] See the definition in the Macquarrie Dictionary, 3rd ed.
[35] Plaintiff’s submissions at [29].
[36] Balmain.
[37] Parker v The South Eastern Railway Company (1877) 2 CPD 416.
[38] Oceanic; see also Baltic Shipping Co v Dillon (1991) 22 NSWLR 1.
[39] MacRobertson.
[40] Davis v Pearce Parking Station Pty Ltd (1954) 91 CLR 642; Sydney City Council v West (1965) 114 CLR 481.
[41] Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163.
[42] eBay International AG v Creative Festival Entertainment Pty Ltd [2006] FCA 1768.
[43] Interfoto Picture Library Pty Ltd v Stiletto Visual Programmes Ltd [1989] QB 433.
[44] Circle Freight; Hardwick Game Farm v Suffolk Agricultural and Poultry Producers Association Ltd [1966] 1 All ER 309 (Hardwick Game Farm); Metal Roofing at [76].
[45] (2004) 219 CLR 165.
[46] At [40].
[47] (2004) 218 CLR 451.
[48] (1877) 2 CPD 416.
[49] At [42].
[50] At p 421.
[51] (1994) ATPR (Digest) para 46-134.
[52] At p 339.
[53] See p 339.
[54] See p 340.
[55] [1969] 2 AC 31 at p 113.
[56] (1988) 165 CLR 197, at pp 228-229.
[57] At [10.70].
[58] Oceanic at p 261.
[59] Oceanic at pp 204-205.
[60] Oceanic at p 207 per Wilson and Toohey JJ; p 256 per Deane J.
[61] Oceanic at p 207 per Wilson and Toohey JJ; p 256 per Deane J.
[62] Oceanic at p 227.
[63] [1971] 2 QB 163.
[64] At p 170.
[65] (1877) 2 CPD 416, at p 423.
[66] At pp 172-173.
[67] From Hood v Anchorline (Henderson Brothers) Ltd [1918] AC 837, at pp 846, 847 (Hood).
[68] In Parker at 424.
[69] Hood at pp 842, 844.
[70] Hood at p 843; see also p 846 per Viscount Haldane; pp 848-849 per Lord Parmoor.
[71] Parker at p 421.
[72] Parker at p 423.
[73] At pp 169-170.
[74] Parker at p 424.
[75] At p 425.
[76] Parker at p 425.
[77] At pp 322, 328, 344-346.
[78] At pp 86, 90, 104, 113, 130.
[79] [1956] 2 All ER 121, at pp 123-125; 127 (per Morris LJ and Parker LJ).
[80] [1961] 2 Lloyd’s Rep 450, at p 463.
[81] [1988] 2 Lloyd’s Rep 427.
[82] Circle Freight at pp 433, 430.
[83] Circle Freight at pp 433, 432.
[84] Circle Freight at pp 433, 430.
[85] Circle Freight at p 433.
[86] See Circle Freight at pp 435.
[87] See Circle Freight at pp 435.
[88] Maxitherm at p 567.
[89] Maxitherm at pp 561-562.
[90] Maxitherm at p 561.
[91] Maxitherm at pp 560-561.
[92] Maxitherm at p 568.
[93] Maxitherm at p 561.
[94] Maxitherm at p 561.
[95] Maxitherm at p 562.
[96] [2001] NSWCA 313.
[97] See Hyder at [16].
[98] See Hyder at [79]
[99] (1988) 14 NSWLR 523, at p 535.
[100] Laurel Race Course Inc v Regal Construction Co Inc 333 A 2d 319 (1975).
[101] Hyder at [85].
[102] Hyder at [77].
[103] Affidavit of Meredith sworn 28 April 2015 at [11] and [12].
[104] T1-18/27.
[105] T1-18/35.
[106] T1-19.
[107] T1-24.
[108] At p 228-29.
[109] T1-22/1.
[110] See Chitty on Contracts (31st ed) Vol 1 at [12-015] (text at n 69); see also The Law of Contract by Edwin Peel (13th ed) at [7-005] (text at n 20).
[111] Maxitherm at p 568.
[112] Maxitherm at p 568.
[113] See Maxitherm at p 562 per Callaway J.
[114] Maxitherm at p 569 per Buchanan JA.
[115] Maxitherm at p 569 per Buchanan JA citing passages from AEG (UK) Ltd v Logic Resource Ltd (unreported, 20 October 1995).
[116] Metal Roofing at [40], [77].
[117] (1975) 133 CLR 125, 138-139.
[118] Compare Baltic Shipping at p 8 per Gleeson CJ.
[119] See Circle Freight at p 435.
[120] Maxitherm per Buchanan JA at p 569, by reference to Thornton Shoe Lane Parking Ltd [1971] 2 QB 163 and Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433.