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Igloo Homes Pty Ltd v Sammut Constructions Pty Ltd

Igloo Homes Pty Ltd v Sammut Constructions Pty Ltd

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Case Copied 29 November 2005 80 min read

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Reported Decision:
(2006) Aust Contract Reports 90-227

Court of Appeal

CITATION:
Igloo Homes Pty Ltd v Sammut Constructions Pty Ltd [2005] NSWCA 280

HEARING DATE(S):
17/08/05

JUDGMENT DATE:

29 November 2005

JUDGMENT OF:
Santow JA at 1; Ipp JA at 2; Basten JA at 172

DECISION:
Appeal dismissed with costs.

CATCHWORDS:
CONTRACT - intention of the parties - for the intention of an agent to be attributed to the principal, the agent must be acting with authority - rectification - whether by mutual mistake the parties' common intention has been incorrectly recorded in the written contract - the intention of the parties that is relevant is that existing at the moment the written contract was entered into - convincing proof, not mere suspicion, that the parties had a common intention at that time must be established. - APPEAL - overturning a trial judge's finding of fact which was based upon his or her assessment of the credibility of a witness - principle set out in Devries v Australian National Railways Commission (1993) 177 CLR 472 applies. ND

LEGISLATION CITED:
A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Real Property Act 1900 (NSW), s 74P

CASES CITED:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Anglo-Scottish Beet Sugar Corporation Ltd v Spalding Urban District Council [1937] 3 All ER 335
Armstrong v Strain [1952] 1 KB 323
A Roberts & Co Ltd v Leicestershire Council [1961] Ch 555
Arthur Yates & Company Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37
Australian Gypsum Ltd & Australian Plaster Company Ltd v Hume Steel Ltd (1930) 45 CLR 54
Blackburn Low & Company v Vigors (1887) 12 App Cas 531
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v Thornton (1892) 18 VLR 192
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Day v Perisher Blue Pty Ltd [2005] NSWCA 110
Devries v Australian National Railways Commission (1993) 177 CLR 472
Eighth SRJ Pty Ltd v Merity (unreported, BC 9701110, 25 March 1997)
Fowler v Fowler (1859) 4 De G & J 250
Fox v Percy [2003] 214 CLR 118
Franich v Swannell (1993) 10 WAR 459
Hume v Walton [2005] NSWCA 148
Johns v Australian Securities Commission (1992) 35 FCR 146
Johnston v Arnaboldi (1990) 1 Qd R 138
Joscelyne v Nissen [1970] 2 QB 86
Kenny v Sholl (1905) 7 WALR 197
Mifsud v Campbell (1991) 21 NSWLR 728
Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679
Riverlate Properties Ltd v Paul [1975] Ch 133
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588

PARTIES:
Igloo Homes Pty Ltd (Appellant)
Sammut Constructions Pty Ltd (Respondent)

FILE NUMBER(S):
CA 41150/04

COUNSEL:
A S Martin SC/S A Wells (Appellant)
D Davies SC (Respondent)

SOLICITORS:
Salmon & Co (Appellant)
Watkins Tapsell (Respondent)

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
ED…

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: [2005] NSWCA 280
Decision Date: 29 November 2005

CaseChat Overview and Summary

Igloo Homes Pty Ltd (Igloo) and Sammut Constructions Pty Ltd (Sammut) were the parties involved in a dispute that came before the New South Wales Court of Appeal. The core of the disagreement concerned the interpretation and potential rectification of a written contract between the parties.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether the intention of an agent could be attributed to a principal in the context of contract formation, and secondly, whether the written contract accurately reflected the parties' common intention at the time of its execution, such that rectification was warranted due to a mutual mistake.

The Court applied the principle that for an agent's intention to be attributed to a principal, the agent must have been acting with the principal's authority. Regarding rectification, the Court reiterated that the relevant intention is that which existed at the moment the written contract was entered into. It held that convincing proof, rather than mere suspicion, of a common intention at that specific time must be established. Furthermore, the Court affirmed the principle from *Devries v Australian National Railways Commission* (1993) 177 CLR 472, which governs the approach an appellate court should take when overturning a trial judge's finding of fact based on an assessment of witness credibility.

The appeal was dismissed, and the parties were ordered to bear the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Igloo Homes Pty Ltd v Sammut Constructions Pty Ltd [2005] NSWCA 280
HEARING DATE(S):	17/08/05
JUDGMENT DATE:	29 November 2005
JUDGMENT OF:	Santow JA at 1; Ipp JA at 2; Basten JA at 172
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	CONTRACT - intention of the parties - for the intention of an agent to be attributed to the principal, the agent must be acting with authority - rectification - whether by mutual mistake the parties' common intention has been incorrectly recorded in the written contract - the intention of the parties that is relevant is that existing at the moment the written contract was entered into - convincing proof, not mere suspicion, that the parties had a common intention at that time must be established. - APPEAL - overturning a trial judge's finding of fact which was based upon his or her assessment of the credibility of a witness - principle set out in Devries v Australian National Railways Commission (1993) 177 CLR 472 applies. ND
LEGISLATION CITED:	A New Tax System (Goods and Services Tax) Act 1999 (Cth) Real Property Act 1900 (NSW), s 74P
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Anglo-Scottish Beet Sugar Corporation Ltd v Spalding Urban District Council [1937] 3 All ER 335 Armstrong v Strain [1952] 1 KB 323 A Roberts & Co Ltd v Leicestershire Council [1961] Ch 555 Arthur Yates & Company Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37 Australian Gypsum Ltd & Australian Plaster Company Ltd v Hume Steel Ltd (1930) 45 CLR 54 Blackburn Low & Company v Vigors (1887) 12 App Cas 531 Briginshaw v Briginshaw (1938) 60 CLR 336 Chamberlain v Thornton (1892) 18 VLR 192 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Day v Perisher Blue Pty Ltd [2005] NSWCA 110 Devries v Australian National Railways Commission (1993) 177 CLR 472 Eighth SRJ Pty Ltd v Merity (unreported, BC 9701110, 25 March 1997) Fowler v Fowler (1859) 4 De G & J 250 Fox v Percy [2003] 214 CLR 118 Franich v Swannell (1993) 10 WAR 459 Hume v Walton [2005] NSWCA 148 Johns v Australian Securities Commission (1992) 35 FCR 146 Johnston v Arnaboldi (1990) 1 Qd R 138 Joscelyne v Nissen [1970] 2 QB 86 Kenny v Sholl (1905) 7 WALR 197 Mifsud v Campbell (1991) 21 NSWLR 728 Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679 Riverlate Properties Ltd v Paul [1975] Ch 133 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588
PARTIES:	Igloo Homes Pty Ltd (Appellant) Sammut Constructions Pty Ltd (Respondent)
FILE NUMBER(S):	CA 41150/04
COUNSEL:	A S Martin SC/S A Wells (Appellant) D Davies SC (Respondent)
SOLICITORS:	Salmon & Co (Appellant) Watkins Tapsell (Respondent)

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED…