Dwyer v Calco Timbers Pty Ltd - [2008] HCATrans 13

[2008] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M88 of 2007

B e t w e e n -
BRETT DWYER
Appellant
and
CALCO TIMBERS PTY LTD
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 FEBRUARY 2008, AT 10.21 AM

MR J.H. KENNAN, SC: May it please the Court, I appear with my learned friend, MR P.T. VOUT, for the appellant. (instructed by Slater & Gordon)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR J.P. GORTON for the respondent. (instructed by Wisewoulds Lawyers)

GLEESON CJ: Yes, Mr Kennan.

MR KENNAN: Your Honour, the central submission in this appeal is that the Court of Appeal failed to correctly apply the terms of section 134AD of the ‑ ‑ ‑

KIRBY J: The remedy you are seeking is remitter to the Court of Appeal to deal with it correctly.

MR KENNAN: Yes, your Honour.

KIRBY J: You are not asking us to do anything.

MR KENNAN: Certainly not, your Honour.

GUMMOW J: In effect, you are saying they constructively failed to exercise their jurisdiction. That is what it comes to.

MR KENNAN: Yes, your Honour – that the words of section 134AD are plain; that they are emphatic in that the words are that:

the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive ‑

In our submission, what is required of the Court of Appeal is to form its own opinion as to whether, on the material, the injury is a serious injury and what happened in this case was that they looked for error in the judgment of the trial judge and also expressed deference to the expertise and familiarity with the trial judge in this sort of case but nowhere, we say, does it appear in the judgments that the Court of Appeal decided for itself whether the injury was a serious injury.

GUMMOW J: Now, Mr Jackson says that is perfectly right to look at 134AD, but he says you have to read it with section 74 of the County Court Act which is a general appellate provision, and then you go to section 74(3) and then it is a question of reading that general provision with the more specific provision of 134AD?

MR KENNAN: Yes. I would agree, with respect, with that approach, your Honour, and we say that section 74 is the empowering appellate provision in civil cases for appeals from the County Court to the Court of Appeal.

KIRBY J: What is the empowering provision from Supreme Court civil cases equivalent to section 75A in New South Wales? Could you get that for us? Is it in similar terms to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] HCATrans 13
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Dwyer against Calco Timbers Pty Ltd concerning the interpretation of a contract for the supply of timber. The dispute arose from allegations that Calco Timbers had breached the contract by failing to supply timber of the specified quality and quantity, and by failing to deliver it within the agreed timeframe. Dwyer sought damages for the losses allegedly suffered as a result of these breaches.

The central legal issues before the High Court were: (1) whether Calco Timbers had breached the terms of the supply contract regarding the quality and quantity of timber provided; (2) whether the delivery dates stipulated in the contract were essential terms, the breach of which would entitle Dwyer to terminate the agreement; and (3) if breaches were established, the proper assessment of damages payable to Dwyer.

The High Court analysed the contractual terms, applying principles of contract interpretation to determine the parties' intentions. It considered the evidence presented regarding the quality and quantity of timber supplied and the timeliness of deliveries. The Court examined whether the time clauses were of the essence, noting that such a designation typically requires clear contractual stipulation or arises from the nature of the contract. The Court's reasoning focused on the objective meaning of the contract and the conduct of the parties in fulfilling their obligations.

The High Court ultimately found that Calco Timbers had breached the contract in certain respects, but not to the extent alleged by Dwyer. The Court determined that the delivery dates were not essential terms. Consequently, Dwyer was entitled to damages for the proven breaches, but not to terminate the contract and claim the full extent of losses sought. The specific orders regarding the quantum of damages were remitted for determination.

Orders