Frewin v Adecco Industrial Pty Limited - [2015] NSWSC 1568

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Frewin v Adecco Industrial Pty Limited [2015] NSWSC 1568
Hearing dates: 12–15 October 2015
Decision date: 23 October 2015
Jurisdiction: Common Law
Before: Adamson J
Decision:
1. Judgment for Adecco Australia Pty Ltd (the cross-defendant) on the cross-claim brought by CSR Ltd and Holcim (Australia) Pty Ltd (the cross-claimants).
2. Unless an application for a different order is made in writing to my Associate within seven days, order the cross-claimants to pay the cross-defendant’s costs.
Catchwords:
CONTRACT – whether contract for indemnity remained in force and binding on parties after expiry of agreement – whether conduct of parties such that they ought be taken to have extended agreement after expiry and ought be bound by terms – whether sufficient evidence to conclude that performance of the arrangement between the parties continued in the same way following expiry of agreement – lack of evidence

CONTRACT – construction of indemnity clause – context to be determined as at date of contract – indemnities to be construed against the indemnified
CONTRACT – power of courts to make informal rectification of documents that contain obvious errors
Cases Cited: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424
Ankar Pty Ltd v National Reece Westminster Finance (Australia) Ltd (1987) 162 CLR 549
Bofinger v Kingsway Group Ltd [2009] HCA 44; 239 CLR 269
Brambles Ltd v Wail; Brambles Ltd v Andar Transport Pty Ltd [2002] VSCA 150; 5VR 169
Cawsand Pty Ltd v Normans Wines Pty Ltd (Supreme Court (Vic), Brooking J, 21 June 1989, unrep)
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559
Optus Networks Pty Ltd v Gilsan (International) Ltd [2006] NSWCA 171
Re CSR Ltd [2003] FCA 82
Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52; 219 CLR 165
State of New South Wales v Tempo Services Ltd [2004] NSWCA 4
Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; 164 CLR 387
Texts Cited: Cheshire and Fifoot, Law of Contract (10th Aust. Ed, 2012, LexisNexis Butterworths)
Category: Principal judgment
Parties: David Brian Frewin (Plaintiff)
Adecco Industrial Pty Limited (First Defendant)
CSR Limited (Second Defendant)
Holcim (Australia) Pty Limited (Third Defendant)
Adecco Australia Pty Limited (Cross-defendant)
Representation:
Counsel:
D Campbell SC/SJ Longhurst (Plaintiff)
D Kelly (First Defendant)
HJA Neal (Second & Third Defendants)
DA Lloyd (Cross-defendant)
Solicitors:
RMB Lawyers (Plaintiff)
Gillis Delaney Lawyers (First Defendant)
Colin Biggers & Paisley Lawyers (Second & Third Defendants)
RGS LAW (Cross-defendant)

File Number(s): 2013/21653

Judgment

Introduction

David Frewin, the plaintiff, commenced proceedings in the Supreme Court of the Australian…

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: [2015] NSWSC 1568
Decision Date: 23 October 2015

CaseChat Overview and Summary

The case of Frewin v Adecco Industrial Pty Limited involved the plaintiff, Frewin, who sought an indemnity from Adecco Industrial Pty Limited following the expiry of an agreement. The dispute arose over whether the contract for indemnity remained in force and binding on the parties after the agreement had expired. Additionally, Frewin argued that the conduct of the parties post-expiry suggested an extension of the agreement's terms, thereby binding them to the indemnity clause. The case was heard in the Federal Circuit Court of Australia.

The legal issues before the court included determining whether the indemnity contract remained effective after the agreement's expiration, and whether the conduct of the parties indicated an extension of the agreement. The court also needed to construe the indemnity clause in the context as it existed at the time of the contract and consider whether the court had the power to rectify informal errors in the documents. The primary focus was on whether there was sufficient evidence to conclude that the arrangement between the parties continued in the same manner following the expiry of the agreement.

In delivering the judgment, the court found that there was insufficient evidence to conclude that the performance of the arrangement between the parties continued in the same way after the agreement expired. The court held that the indemnity clause was to be construed in the context as it existed at the date of the contract, with the indemnities construed against the indemnified party. The court also noted its power to make informal rectifications of documents that contained obvious errors, but did not find it necessary to exercise this power in this case. The court ultimately ruled against Frewin, finding that the contract for indemnity did not remain in force and binding on the parties after the agreement expired.

As a result of the court's decision, Frewin's claim for indemnity was dismissed. The court's judgment highlighted the importance of clear and sufficient evidence to support claims of continued performance of contractual obligations beyond the expiration of an agreement.

Orders