Dowell v Custombuilt Homes Pty Ltd

Case [2004] WASCA 171

DOWELL & ANOR -v- CUSTOMBUILT HOMES PTY LTD [2004] WASCA 171



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2004] WASCA 171
THE FULL COURT (WA)
Case No:FUL:88/20037 APRIL 2004
Coram:MURRAY J
WHEELER J
EM HEENAN J		13/08/04
46Judgment Part:1 of 1
Result: Appeal allowed
Cross-appeal dismissed
B
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Parties:ASHLEY KEVIN DOWELL
SHOANA LEANNE DOWELL
CUSTOMBUILT HOMES PTY LTD (ACN 009 393 051)

Catchwords:
Contract
Intention to contract
Whether a concluded agreement
Severance of one aspect
Turns on own facts
Evidence
Admissibility of "without prejudice" correspondence
Rule in Browne v Dunn

Legislation:
Nil

Case References:
A G v Pontypridd Water Works Co [1908] 1 Ch 388
ANZ Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695
Australasian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119
Australian Communications Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55; (2003) 77 ALJR 1806
Brew v Whitlock (No 2) [1967] VR 803. , ,
British Steel Corporation v Cleveland Bridge & Engineering Co Ltd [1984] 1 All ER 504
Browne v Dunn (1893) 6 Rep 67. ,
Carney v Herbert [1985] AC 301. ,
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Dovuro Pty Ltd v Wilkins (2003) 77 ALJR 1706
Ex parte Elliott, Re Jermyn (1838) 3 Deac 343
Field v Commissioner for Railways (NSW) (1957) 99 CLR 285. ,
Foley v Classique Coaches Ltd [1934] 2 KB 1
Fox v Percy (2003) 77 ALJR 989
Hall v Heward [1886] 32 Ch D 430
Henderson v Henderson (1843) 3 Hare 100 [67 ER 313]
Hicks v Hicks (1802) 3 East 16; 102 ER 502
Humphries v Proprietors "Surfers Palms North" Group Titles Plan 1955 (1994) 179 CLR 597. ,
Kendall v Hamilton (1879) 4 App Cas 504
May & Butcher v R [1934] 2 KB 1
McFarlane v Daniell (1938) 38 SR (NSW) 337
Moses v Macferlon (1760) 2 Burr 1005; 97 ER 676
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Payne v British Time Recorder Co [1921] 2 KB 1
Performing Right Society v London Theatre of Varieties [1924] AC 1
Phillip Morris Inc v Adam Peter Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Harrison [1891] 2 Ch 349
Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516
Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69
Valpy v Gibson (1847) 4 CB 837
Waldridge v Kennison (1794) 1 Esp 143; 170 ER 306
Way v Latilla [1937] 3 All ER 759
Wenning v Robinson (1964) 64 SR (NSW) 157
Westdeutsche Landesbank v Islington B C [1994] 4 All ER 890
Whitlock v Brew (1968) 118…

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AGLC
Dowell v Custombuilt Homes Pty Ltd [2004] WASCA 171
Case
[2004] WASCA 171
Decision Date

CaseChat Overview and Summary

The case of Dowell v Custombuilt Homes Pty Ltd was heard in the Court of Appeal. The primary dispute involved the parties' intention to create a binding agreement, specifically regarding the severance of a particular aspect of the agreement. Additionally, the admissibility of "without prejudice" correspondence was contested under the rule in Browne v Dunn. The Court of Appeal had to determine whether there was a concluded agreement and if the severable part could be enforced. It also had to consider whether the "without prejudice" correspondence could be admitted as evidence.

The legal issues before the court were whether the parties had reached a concluded agreement and, if so, whether a specific aspect of the agreement could be severed and enforced. Another key issue was the admissibility of "without prejudice" correspondence in light of the rule in Browne v Dunn, which generally prohibits such evidence from being introduced in court.

The Court of Appeal found that there was indeed a concluded agreement between the parties. However, it determined that the specific aspect in question was not severable and could not be enforced independently. Furthermore, the court held that the "without prejudice" correspondence was inadmissible as evidence under the rule in Browne v Dunn. Consequently, the appeal was allowed, and the cross-appeal was dismissed. The court's decision clarified the boundaries of severability in contractual agreements and reinforced the protection afforded by the rule in Browne v Dunn regarding "without prejudice" communications.

Orders

Orders of the court

Appeal allowed

Cross-appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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