JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ECCLES -v- KOOLAN IRON ORE PTY LTD [No 3] [2013] WASC 418
CORAM: LE MIERE J
HEARD: 30 APRIL, 1-3 MAY 2013
DELIVERED : 22 NOVEMBER 2013
FILE NO/S: CIV 2868 of 2009
BETWEEN: REBECCA AMY ECCLES
LEE MARCUS STERGIOU
PlaintiffsAND
KOOLAN IRON ORE PTY LTD
First DefendantMT GIBSON IRON LTD
Second Defendant
Catchwords:
Contract law - Offer and acceptance - Battle of the forms - Agreement not inferred from conduct
Equity - Estoppel - Promissory estoppel - No reliance on pleaded assumption
Practice and procedure - Evidence - Unexplained failure to call witness
Damages - Loss of opportunity - Agreement to negotiate - No failure to give real and commercial opportunity to revise contract for renewal
Legislation:
Nil
Result:
Plaintiffs' claim dismissed
Category: B
Representation:
Counsel:
Plaintiffs: Mr M J McPhee
First Defendant : Mr P D C Robinson
Second Defendant : Mr P D C Robinson
Solicitors:
Plaintiffs: M J McPhee Barrister & Solicitors
First Defendant : Williams & Hughes
Second Defendant : Williams & Hughes
Case(s) referred to in judgment(s):
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600
Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61
Brogden v Metropolitan Railway Co (1877) 2 AC 666
Butler Machine Tool Co Ltd v Ex‑cell‑o Corporation (England) Ltd [1979] 1 WLR 401
Chaplin v Hicks [1911] 2 KB 786
Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1
Commonwealth v Verwayen (1990) 170 CLR 394
Con Kallergis Pty Ltd v Calshonie Pty Ltd (1998) 14 BCL 201
Courtney & Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd [1975] 1 WLR 297
Earle v Castlemaine District Hospital [1974] VR 722
Hillas & Co Ltd v Arcos Ltd [1932] All ER Rep 494
Jones v Dunkel (1959) 101 CLR 298
Kirketos v Livschitz [2009] NSWCA 96
Kuhl v Zurich Financial Services Ltd [2011] HCA 11, 243 CLR 361
Laidlaw v Hillier Hewitt Elsley Pty Ltd [2009] NSWCA 44
Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd (1998) 4 VR 559
Payne v Parker [1976] 1 NSWLR 191
Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd [No 1] (1993) 178 CLR 379
Ronchi v Portland Smelter Services Ltd [2005] VSCA 83
Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332
Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [2010] WASCA 222; (2010) 41 WAR 318
United Group Rail Services Ltd v Rail Corporation (NSW) (2009) 74 NSWLR 618
LE MIERE J: The plaintiffs, Ms Eccles and Mr Stergiou, in 2007 carried on a health and fitness business in partnership under the name 'Cross Fit Health Centre'. Ms Eccles was responsible for the day to day running of the business. In late 2007 the plaintiffs agreed with the first defendant, Koolan Iron…
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- Case
- [2013] WASC 418
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the application of the 'battle of the forms' doctrine, the requirement for special steps to draw attention to onerous terms, and the implications of post-contractual conduct on the formation and interpretation of the contract. The court had to determine whether the rate reversion and revision for renewal clauses were part of the contract and whether the plaintiff had sufficiently drawn the defendant's attention to these terms. Additionally, the court examined the effect of the parties' conduct on the agreement and the implications for the enforcement of the contract terms.
The court held that the 'battle of the forms' doctrine applied, meaning that the terms of the contract were those of the final document exchanged between the parties. The court rejected the argument that special steps were required to draw attention to onerous terms, finding that the focus should be on whether a party can be reasonably taken to have assented to the terms, rather than on whether the terms were reasonable. The court also found that the plaintiff had not sufficiently demonstrated that the defendant had accepted the onerous terms. Post-contractual conduct was considered, but it was held that it did not necessarily imply acceptance of the terms in question.
The court concluded that the rate reversion and revision for renewal clauses were not part of the contract. The plaintiff's claim for breach of these terms was therefore dismissed. The court also found that the plaintiff had not established that the defendant had failed to give a real and commercial opportunity to revise the contract for renewal. The final orders included the dismissal of the plaintiff's claims and the determination that the defendant was not liable for breach of contract or for any other claims made by the plaintiff.
Orders
Orders of the court
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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
A common answer to the question of conflicting conditions put forward by the parties is the 'last shot' doctrine. Where conflicting communications are exchanged, each is a counteroffer, so that if a contract results at all, for example from acceptance by conduct, it must be on the terms of the final document in the series leading to the conclusion of the contract. The battle is won by the person who fires the last shot. In some cases the battle is won by the person who gets in the first blow. In Butler Machine Tool Co Ltd v Ex‑cell‑o Corporation (England) Ltd [1979] 1 WLR 401 Lord Denning explained:If [the seller] offers to sell at a named price on the terms and conditions stated on the back: and the buyer orders the goods purporting to accept the offer ‑ on an order form with his own different terms and conditions on the back ‑ then, if the difference is so material that it would affect the price, the buyer ought not to be allowed to take advantage of the difference unless he draws it specifically to the attention of the seller (405).However, it is not possible to lay down a general rule that will apply in all cases where there is a battle of the forms. It always depends on an assessment of what the parties must objectively be taken to have intended. The defendants submitted that the rate reversion provision and the revision for renewal clause did not form part of the contract between the plaintiffs and Koolan because the provisions are more than ordinarily onerous and the plaintiffs did not take steps to draw them to Koolan's attention. In support of that proposition the defendants relied upon statements by Buchanan JA in Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd (1998) 4 VR 559, 569 where Buchanan JA said that 'the inclusion of an unusual term, at least in an unsigned document, may require its proponent to take special steps to bring it to the attention of the other party, for otherwise it may not be reasonable to assume consent to the term'. His Honour went on to say that whether special steps are required, and what those steps must be, will depend upon the circumstances of each case and concluded the point by saying:However, I do not consider that the mere fact that a provision is onerous entitles a court applying the common law to reject it as a term unless special steps have been taken to draw attention to it. The relevant question is whether a contracting party can be reasonably taken to have assented to a particular term, not whether a contracting party should be subject to an unreasonable term. Post‑contractual conduct is admissible on the question of whether a contract was formed: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 [25] (Heydon JA); Kirketos v Livschitz [2009] NSWCA 96, [109] (McColl JA, Macfarlan JA concurring). However, for conduct to amount to implied acceptance of an offer it must be of such a character as necessarily to lead to the inference on the part of one party that the agreement had been accepted on the part of the other and was to be acted upon by them: Brambles Holdings [162] (Ipp AJA, Mason P agreeing); Kirketos [117] (McColl JA, Macfarlan JA concurring).