Delooze v Healey

[2007] WASCA 157

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DELOOZE -v- HEALEY [2007] WASCA 157

CORAM:   STEYTLER P

WHEELER JA
PULLIN JA

HEARD:   15 FEBRUARY 2007

DELIVERED          :   27 JULY 2007

FILE NO/S:   CACV 136 of 2005

BETWEEN:   TIM DELOOZE

Appellant

AND

LINDA HEALEY
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :MULLER DCJ

Citation  :DELOOZE -v- HEALEY [2005] WADC 186

File No  :CIV 1401 of 2003

Catchwords:

Contract - Interpretation - Implied term - Summary termination of contract - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr P A Kyle

Respondent:     Mr A C McIntosh

Solicitors:

Appellant:     Kyle & Co

Respondent:     Cameron Eastwood

Case(s) referred to in judgment(s):

Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66

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

Carr v JA Berriman Pty Ltd (1953) 89 CLR 327

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Delooze v Healey [2005] WADC 186

Easling v Mahoney Insurance Brokers (2001) 78 SASR 489

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623

Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17

Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359

Thomson v Orica Australia Pty Ltd (2002) 116 IR 186

1. STEYTLER P:  I have had the advantage of reading the judgment of Wheeler JA.  I agree with her.  I wish only to add a few comments of my own concerning ground 1, which challenges the trial Judge's finding of an implied term empowering the summary termination of the appellant's status as a student in the yoga teaching class taught by the respondent.  Like Wheeler JA, I have grappled with the difficulty that an implied term of the kind found (albeit, with respect, not precisely enunciated) by the trial Judge might be thought to contradict an express term of the contract entered into by the parties.

2. As Wheeler JA has pointed out, the parties entered into a contract that the respondent would teach, and the appellant would undertake, a yoga teaching course from February to October 2003.  The contract was partly oral and partly in writing.  The written portion consisted of a document entitled "The Yoga Company Certificate IV in Yoga Teaching".  It is apparent from the written part of the contract that, because of the nature of the course taught, it was important that there be a relationship of mutual respect between teacher and student.  The document recorded that "a mature and responsible attitude" was an "informal pre‑requisite" for eligibility for the course and that students had an overriding obligation to "respect the rights of others at all times".  The following paragraph, entitled "Dismissal Policy" is important:

   "Students are expected to observe the rights of others at all times.  The Yoga Company reserves the right to…