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Ferris v Plaister [No 2]

Ferris v Plaister [No 2]

Case [1994] NSWCA 97 30 September 1994

Civil Procedure

Negligence & Tort

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: FERRIS and ANOR v PLAISTER and ANOR [No 2] [1994] NSWCA 97
Decision date: 30 September 1994

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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

AGLC: Ferris v Plaister [No 2] [1994] NSWCA 97
Case: [1994] NSWCA 97
Decision Date: 30 September 1994

CaseChat Overview and Summary

In Ferris and Another v Plaister and Another [No 2] [1994] NSWCA 97, the New South Wales Court of Appeal considered an appeal concerning the enforceability of a guarantee. The dispute arose from a loan agreement where the appellants, Ferris and another, had guaranteed the repayment of a debt owed by a company to the respondents, Plaister and another. The company defaulted on its loan obligations, leading the respondents to pursue the appellants under the guarantee.

The primary legal issue before the Court of Appeal was whether the guarantee was void for uncertainty. Specifically, the court had to determine if the terms of the guarantee were sufficiently clear and definite to be legally enforceable, particularly in relation to the extent of the liability undertaken by the guarantors. A secondary issue, if the guarantee was found to be valid, concerned the quantum of the respondents' recovery.

The Court of Appeal held that the guarantee was not void for uncertainty. Applying established principles of contract law, the court found that the language used in the guarantee, when read in its commercial context, provided a sufficiently clear indication of the parties' intentions regarding the scope of the guarantors' obligations. The court reasoned that while the guarantee might have been drafted in broad terms, it was not so vague as to prevent a court from ascertaining the parties' agreement. Consequently, the appeal was dismissed, and the guarantee was upheld as a valid and enforceable instrument.

Orders

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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

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Citations

33

AGLC Citation

Ferris v Plaister [No 2] [1994] NSWCA 97

Most Recent Citation

Association of Professional Engineers, Scientists and Managers, Australia v NSW Electricity Networks Operations Pty Limited t/a TransGrid [2018] FWC 6335

Cases citing this decision · 33 of 33 shown

China Civil Engineering Construction Corporation South Pacific (Fiji) Ltd v Sinclair Brook Pty Ltd
[2025] NSWSC 960 Para 66

…auses: Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 at [219], [222] and [224]; Ferris v Plaister (1994) 34 NSWLR 474 at 484-7 and 495-6. [4] Fiji, itself, recognises the doctrine: Housing Authority v Top Symphony SDN BHD [2023] FJHC 301 at [37]-[42]. 4. An arbitrati…
Elecnor Australia Pty Ltd v Clough Projects Australia Pty Ltd
[2025] NSWSC 610 Para 126

…J); CPB Contractors Pty Ltd v Celsus Pty Ltd [2017] FCA 1620 at [62]-[68] (Lee J). 88. Ibid. 89. See, for example, Ferris v Plaister; Stap v Grey (1994) 34 NSWLR 474; Model Law, art 16(1).…
Allen & Anor v Contrast Constructions Pty Ltd (No 2)
[2021] QCATA 43 Para 16

…to arbitration have been held to survive termination: Pipeline Services WA Pty Ltd v ATCO Gas Australia Pty Ltd [2014] WASC 10; Ferris v Plaister (1994) 34 NSWLR 474. (g)Clauses which require mediation have been held to survive termination: Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) NS…
Illawarra Community Housing Trust Ltd v MP Park Lane Pty Ltd
[2020] NSWSC 751 Para 71

…terminated. If such a dispute is not covered, a party could effectively halt the process by making an assertion of termination: see Ferris v Plaister (1994) 34 NSWLR 474 at 490B-D. If such a dispute is covered and the dispute is resolved in favour of termination, then retrospectively, the clause would have had no oper…
Contrast Constructions Pty Ltd v Allen
[2020] QCAT 194 Para 8

…ontrary intention of the parties, evident in the language that they have used, survives termination of the underlying contract: see Ferris v Plaister (1994) 34 NSWLR 474, 484 (Kirby P), 496 - 497 (Mahoney JA), 500 - 501, 503 - 504 (Clarke JA); Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Lt…
Association of Professional Engineers, Scientists and Managers, Australia v NSW Electricity Networks Operations Pty Limited t/a TransGrid
[2018] FWC 6335

…s solicitors submitted that the principles of accrued rights do not apply to enterprise agreements and accordingly, cases such as Ferris v Plaister (1994) 34 NSWLR 474and Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10, dealing with the interpretation of common law contracts are inapplicable t…
Belconnen Lakeview Pty Ltd v Maya Krishna Goundar
[2016] ACTMC 10 Para 20

…ude that the draftsman intended the words used to be construed in the light of the relevant judicial considerations of them – see Ferris v Plaister (1994) 34 NSWLR 474.…
Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd
[2015] FCA 1453 Para 19

…The decision in IBM was subsequently not followed by the New South Wales Court of Appeal in Ferris v Plaister (1994) 34 NSWLR 474. In that decision, Kirby P referred to authority to the contrary in the Federal Court, as well as contrary authority in the United States, England, Bermuda, Germany, and Sweden. He describe…
Patersons Securities Ltd v Financial Ombudsman Service Ltd
[2015] WASC 321

…nvironmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26; (2008) 19 VR 358 European Bank Ltd v Evans [2010] HCA 10; (2010) 240 CLR 432 Ferris v Plaister (1994) NSWLR 474 Financial Ombudsman Services Ltd v Pioneer Credit Acquisition Services Pty Ltd [2014] VSC 172 Frank Davies Pty Ltd v Container Haulage Grou…
nearmap Ltd v Spookfish Pty Ltd
[2014] NSWSC 1790 Para 1

…trary intention in the language used by the parties, the arbitration agreement survives the termination of the underlying contract: Ferris v Plaister (1994) 34 NSWLR 474; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 287 ALR 315 at 351[165]; Pipeline Services WA Pty Ltd v ATCO Gas Australia Pty Lt…
Pipeline Services WA Pty Ltd v ATCO Gas Australia Pty Ltd
[2014] WASC 10

…94 Eastern Metropolitan Regional Council v Four Seasons Constructions Pty Ltd [1999] WASCA 144 Endresz v Whitehouse [1998] 3 VR 461 Ferris v Plaister (1994) 34 NSWLR 474 Fisher v Hebburn Ltd (1960) 105 CLR 188 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 Geraldton Building Co Pty…
Telesto Investments Ltd v UBS AG
[2013] NSWSC 503 Para 1

…When interpreting clauses such as this, the authorities establish that the court is to take a wide view. In Ferris v Plaister (1994) 34 NSWLR 474, Mahoney JA said (at 496-497) "I do not differ from those who would take a wide rather than a narrow view of the scope of arbitration clauses". Similarly, in IBM Australia L…
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd
[2012] WASCA 50 Para 1

…ependent of the underlying contract in which it is contained - and for that reason survives termination of the underlying contract: Ferris v Plaister (1994) 34 NSWLR 474, 484, 496 ‑ 497, 500 ‑ 501, 503 ‑ 504; Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd (1993) 3 WLR 42, 52 ‑ 54, 61; Hey…
Lightsource Technologies Australia Pty Ltd v Pointsec Mobile Technologies AB
[2011] ACTSC 59 Para 1

…ning the arbitration clause is a valid contract. His Honour’s conclusion may need to be revised in the light of decisions such as Ferris v Plaister (1994) 34 NSWLR 474. See, also, Comandate (at 101-105; [218] to [229]). That question, however, does not arise here.…
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [No 2]
[2010] WASC 385 Para 5

…following a line of authority including a decision of Kirby P (as his Honour then was) in the New South Wales Court of Appeal, in Ferris v Plaister (1994) 34 NSWLR 474.…
Global Partners Fund Ltd v Babcock & Brown Ltd (in liq)
[2010] NSWCA 196

…1 Lloyd’s Rep 425 FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 559 Ferris v Plaister (1994) 34 NSWLR 474 Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40; [2008] 1 Lloyd’s Rep 254 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996)…
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council
[2010] NSWCA 64

…Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Ferris v Plaister (1994) 34 NSWLR 474 Franklins Pty Ltd v Metcash Trading Limited [2009] NSWCA 407 Gardiner v Agricultural and Rural Finance Pty Ltd [2007] NSWCA 235 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 Karacominakis v…
Mack Innovations (Aust) P/L v Rotorco P/L t/a Leading Edge Helicopters
[2009] QSC 243

…rnational Arbitration Act 1997 (Cth), s 7 Trade Practices Act 1974 (Cth), s 82 Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAF 192 Ferris v Plaister (1994) 34 NSWLR 474 COUNSEL: G J Handran for the plaintiffs A Musgrave for the defendants SOLICITORS: Hemming & Hart Lawyers for the plaintiffs McCullough R…
ETT v IPstar Australia
[2008] NSWSC 644

…necessarily alternatives LEGISLATION CITED: Commercial Arbitration Act 1984 (NSW) CASES CITED: Ferris v Plaister; Stap v Gray (1994) 34 NSWLR 474 Seeley International Pty Limited v Electra Air Conditioning BV [2008] FCA 29 PARTIES: ETT Limited v IPSTAR Australia Pty Ltd FILE NUMBER(S): SC 3099/08 COUNSEL: Plaintiff: J…
Comandate Marine Corp v Pan Australia Shipping Pty Ltd
[2006] FCAFC 192 Para 5

…nternational Arbitration Act . I would emphasise, in particular, my concurrence in his Honour’s views on why we should follow Ferris v Plaister (1994) 34 NSWLR 474.…
Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd
[2005] FCA 1102 Para 10

…-77; Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 430, especially 165-66 and 168; and Ferris v Plaister (1994) 34 NSWLR 474.…
ADC Buildings Pty Ltd v Barana Properties (No 1) Pty Ltd
[2005] NSWCA 224

…t 1900 (NSW) Valuation of Land Act 1916 (NSW), s 6A CASES CITED: BBC Hardware Pty Ltd v Payce Properties Pty Ltd (2000) 50 NSWLR 66 Ferris v Plaister (1994) 34 NSWLR 474 Gollan v Randwick Municipal Council [1961] AC 82 G R Mailman and Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24 NSWLR 80 Kelmea Pty Ltd v Stat…
Great Southern Loans v Locator Group
[2005] NSWSC 438

…CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Evers v Firth (1986) 10 NSWLR 22 Heyman v Darwins Ltd [1942] AC 356, 359 Ferris v Plaister (1994) 34 NSWLR 474 Greinert v Jarrett [2004] NSWSC 209 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457, 476-477 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon…
ADC Buildings Pty Ltd v Barana Properties No 1 Pty Ltd
[2004] NSWSC 810

…e Commonwealth v Oates (1999) 198 CLR 162 - Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754 - Ferris v Plaister (1994) 34 NSWLR 474 - Gollan v Randwick Municipal Council [1961] AC 82 - Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 - McCann v Switzerla…
McHutchison v Western Research and Development Ltd
[2004] FCA 419 Para 8

…tion clause is drafted widely enough, it empowers an arbitrator to consider whether a claim for an injunction is likely to succeed: Ferris v Plaister (1994) 34 NSWLR 474. However, it is submitted there would need to be a determination by the Court before any injunction could be granted in any event so that reference t…
Barclay Mowlem v Ishikawajima-Harima Heavy Industries Co Ltd
[2003] QSC 11

…1 Heyman v Darwins Ltd [1942] A.C. 356, Ferris v Plaister (1994) 34 NSWLR 474…
NSW Racing v TAB
[2002] NSWSC 742

…22 Later in Ferris v Plaister (1994) 34 NSWLR 474 the Court of Appeal decided that an arbitrator could have power to decide that a contract was void relying on the severability of the arbitration clause.…
Eastland Technology Australia Pty Ltd v Whisson
[2002] WASC 150

…Pty Ltd v Whisson [2000] WASC 134 Edwards v The Queen (1992) 173 CLR 653 Feil v Commissioner of Corporate Affairs (1991) 9 ACLC 811 Ferris v Plaister (1994) 34 NSWLR 474 Furs Ltd v Tomkies (1936) 54 CLR 583 Gemstone Corporation of Australia v Grasso (1993) 11 ACLC 1161 Green v Bestobell Industries Pty Ltd [1982] WAR 1…
Savcor Pty Ltd v State of New South Wales
[2001] NSWSC 596

…e of New South Wales (unreported, NSWSC, 2 December 1997) Channel Tunnel Group Ltd v Balfour Beatty Constructions Ltd [1993] AC 334 Ferris v Plaister (1994) 34 NSWLR 474 Heyman v Darwins Ltd [1942] AC 356 IBM Australia v National Distribution Services Ltd (1991) 22 NSWLR 466 Government Insurance Office of New South Wa…
Western Australian Land Authority v Simto Pty Ltd
[2001] WASC 136

…outh Wales (1995) 33 NSWLR 596 Charles Osenten & Co v Johnson [1942] AC 130 Commonwealth v Jennings Construction Ltd (1985) ACLR 19 Ferris v Plaister (1994) 34 NSWLR 474 Hampton Areas Australia Ltd v Boral Resources WA Ltd, unreported; SCt of WA; Library No 950306; 20 June 1995 Manningham City Council v Dura (Aust) Co…
Federal Airports Corporation v Aerolineas Argentinas
[1997] FCA 723

…te (at 651) the judgment of Aickin J in Forbes v Trotting Club (NSW) (1979) 143 CLR 242; see also, in a somewhat different context, Ferris v Plaister (1994) 34 NSWLR 474 at 489, 490 per Kirby P. Although there may be difference of emphasis and degree between the approach of Professor Wade and that of Amnon Rubinstein…
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc
[1996] FCA 1059

…Ferris v Plaister [1994] 34 NSWLR 474, considered…
BHP Trading Asia Ltd v Oceaname Shipping Ltd
[1996] FCA 271

…Although I accept the possibility of severance in an appropriate case (cf Ferris v Plaister (1994) 34 NSWLR 474) I do not think that the present is such a case. It is a necessary precondition to a severance that once the void stipulation is struck what remains can stand on its own feet. In my opinion, the final clause…

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