C and v Engineering Pty Ltd v Hamilton and Marino Builders Pty Ltd

The appeal concerned a dispute between C and V Engineering Pty Ltd (the appellant) and Hamilton and Marino Builders Pty Ltd (the respondent) regarding the interpretation of a building contract. The core of the disagreement lay in whether the contract was formed based on the appellant's initial offer or the respondent's subsequent counter-offer, and crucially, whether the contract mandated the supply of building materials and services at a price per unit or a fixed sum, particularly given the unknown quantity of units at the time of contracting. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine two primary legal issues. Firstly, it had to ascertain which of the parties' communications constituted the operative offer and acceptance, thereby establishing the terms of the contract. Secondly, and more significantly, the Court had to interpret the contract to determine whether it obliged the respondent to supply building materials and services on a per-unit basis, as the quantity was uncertain at the outset, or whether it stipulated a fixed sum for the entire undertaking.

In its reasoning, the Court considered the context of the commercial arrangement and applied the principle of businesslike construction. It found that the parties' conduct and the nature of the transaction, where the exact quantity of units was unknown at the time of entering into the agreement, strongly indicated that a per-unit pricing mechanism was intended, rather than a fixed sum. This interpretation was considered to be the most sensible and commercially viable approach given the circumstances. Consequently, the appeal was dismissed with costs.