Evans v The Heather Thiedeke Group Pty Ltd

The High Court of Australia heard an application for special leave to appeal in a dispute between The Heather Thiedeke Group (applicant) and Evans (respondent). The core of the disagreement concerned whether a specific matter discussed between the parties had become a contractual term of the respondent architect's retainer. The applicant contended that the retainer included a term requiring the units to be designed such that their construction cost would not exceed a figure allowing the applicant a profit of approximately 20 per cent if sold at an average price.

The legal issue before the Full Court was whether the trial judge had erred in finding that, despite discussions indicating a desire to keep the sale price per unit close to an average of $70,000, there was no contractual term obliging the respondent's design to facilitate profitable marketing at that price. The Full Court was tasked with drawing its own inferences of fact from the established facts, as guided by the principles set out in *Warren v Coombes*.

The court's reasoning, as presented by Mr. Fryberg QC, highlighted that the Full Court's duty was to determine the appeal based on its own assessment of the facts and law, particularly when it believed the trial judge's inferences were erroneous. The Full Court's approach involved considering the contract as partly oral and partly in writing, a characterisation that differed from the trial judge's finding that the contract was entirely in writing. This distinction was a crucial starting point for the appellate court's re-evaluation of the evidence and the contractual terms.