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CASE BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266

Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337

DTR Nominees Pty Ltd v Mona Homes Ltd (1978) 138 CLR 423 ● This principle of law is true in some cases - "no doubt there are cases in which a party, by insisting on an incorrect interpretation of a contract, evinces an intention that he will not perform the contract according to its terms[1]." ● However, it is possible that the erroneous party would be willing to perform the contract according to the actual interpretation once he is notified that he has misinterpreted the contract. In those cases, he will not repudiating. Gordon v MacGregor (1909) 8 CLR 316

Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41

Rakin v Scott Fell & Co (1904) CLR 164

State Rail Authority (NSW) v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170

SUMMARY To imply a term in fact, (1) it must be reasonable and equitable, (2) it must be necessary to give business efficacy to the contract, (3) it must be so obvious that it goes without saying, (4) it must be capable of clear expression, and (5) it must not contradict any express term of the contract. Notwithstanding the parol evidence rule, evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning.

● The Vendor [DTR] had a contract for sale of land with the Purchaser [Mona]. ● The Vendor was supposed to subdivide the land before the transaction took place. ● The Vendor interpreted the contract incorrectly, assuming that he can subdivide the land in two stages. ● The Purchaser wanted to rescind the contract because of the Vendor's way of differing from the contract. ● Both parties argued that the other repudiated the contract (the Purchaser arguing that the Vendor acted inconsistently and insisted on an erroneous view, the Vendor arguing that the termination of the Purchaser was wrongful and therefore he is deemed as repudiating). When a contract has been entered into by parol and afterwards reduced into writing, the parties to it are bound by the writing unless it is shown by evidence that the written document was not intended to embody the whole of the terms of the contract. Whether articles hired required to be new — Admissibility of extrinsic evidence Agreement to distribute manufacturer's products — Term implied by statute that he ‘use best efforts’ to promote products — Whether further term implied not to do anything inimical to market

No authority has been cited to warrant the contention that the rule has become obsolete that, where an ambiguity is patent, parol evidence is not admissible to solve it. ● Plaintiff (Heath) had several contracts with the Defendant (State Rail Authority relating to the placing of advertising materials on hoarding on land the property of the authority.

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RECENT APPLICATION Vanguard Financial Planners Pty Ltd v Ale [2018] NSWSC 314

Vanguard Financial Planners Pty Ltd v Ale [2018] NSWSC 314 Wyndham City Council v Terra Culture Pty Ltd [2018] VSC 81 Mehmet v Carter [2017] NSWSC 1067

Graham v Australian International Ltd [2004] VCAT 1041; (2004) 21 VAR 149 Government Employees Superannuation Board v Martin (1997) 19 WAR 224 (SC) Vanguard Financial Planners Pty Ltd v Ale [2018] NSWSC 314 Malek Fahd Islamic School Ltd v The Australian Federation of Islamic Councils Inc [2017] NSWSC 1712 C Herman v Doolette (1914) 17 WALR 4 (SC) Taleb v Director of Public Prosecutions (Vic) [2014] VSC 285; (2014) 242 A Crim R 204; [2016] ALMD 1162; [2016] ALMD

Determining whether an agreement is wholly in writing "The existence of writing which appears to represent a written contract between the parties is no more than an evidentiary foundation for a conclusion that the agreement is wholly in writing." "The mere production of a contractual document, however complete it may look, cannot as a matter of law exclude evidence of oral terms if the other party asserts that such terms were agreed."

White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266

● A Clause 6 to a specific contract specified that: "The authority may terminate this contract at any time upon giving the advertiser one calendar month’s notice in writing of its intention to do so, but such action shall not give rise to any claim for compensation whatsoever on the part of the advertiser." ● The Plaintiff objected to his clause because their previous agreement established that the contract would be for 5 years. Also, there a letter from the Defendant which specifies the principle terms restated this: "the contract has been drawn for a five (5) year period". ● The Defendant's representative claimed he had no authority to make changes to the contract. ● He also said that "the only time that the clause is ever invoked is for non-payment of rent or if somebody wants to advertise objectionable advertising content". ● The Plaintiff said that he would only proceed on that assurance, and the representative of the Defendant said that he does not need to be concerned because of the nature of their agreement. He assured him this won't apply to him. ● The parties entered the contract. ● Plaintiff later entered a contract with a cigarette company to display their advertisements on those hoardings. ● Soon after, the NSW government decided to disallow advertisement of cigarettes. ● Because of this decision, a dispute arose between the parties, and the Defendant terminated the agreement. Theatrical employment — Employment of artists as theatrical artists and producers — Whether implied promise to give opportunity to produce A written contract between two theatrical artists and a company which owned and controlled theatres in Australia provided that the company engaged the “sole professional services” of the artists “as required and directed” for a stated period. The contract did not specify the nature of the professional services. Held: (1) Extrinsic evidence was admissible to identify the services. (2) On the evidence so admitted the artists were employed under the contract in their capacities of theatrical artists and producers in relation to a certain revue and that, though the company was willing to continue to pay salaries in accordance with the contract, their exclusion by the company from all the work of producing the revue was a breach which went to the root of the contract and entitled the artists to refuse to continue to perform any other part of the contract and also to recover damages.

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1198

McCausland v Surfing Hardware International Holdings Pty Ltd [2013] NSWSC 902

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