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Mander Pty Ltd v Clements

Mander Pty Ltd v Clements

Case [2005] WASCA 67 6 April 2005

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MANDER PTY LTD & ANOR -v- CLEMENTS [2005] WASCA 67

CORAM: MURRAY J
MCKECHNIE J
MCLURE J

HEARD: 23 & 29 NOVEMBER 2004

DELIVERED : 6 APRIL 2005

FILE NO/S: FUL 20 of 2004

BETWEEN: MANDER PTY LTD (ACN 009 401 049)
First Appellant (First Plaintiff)
ROYAL STREET PTY LTD (ACN 084 056 557)
Second Appellant (Second Plaintiff)
AND
PHILLIP CLEMENTS
Respondent (Defendant)

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MARTINO DCJ
Citation  :MANDER PTY LTD & ANOR -v- CLEMENTS [2004] WADC 8
File No  :CIV 3421 of 2001

Catchwords:

Contract - Rectification - Scope of doctrine - Clause for an indemnity for owner of property - True owner a trustee company not a party to contract - Whether evidence of common intention to indemnify owner or person named in indemnity

Legislation:

Nil

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

First Appellant (First Plaintiff)             :        Mr G A Rabe
Second Appellant (Second Plaintiff)         :        Mr G A Rabe
Respondent (Defendant)  :        Mr A R Beech

Solicitors:

First Appellant (First Plaintiff)             :        Scott & Kaminickas
Second Appellant (Second Plaintiff)         :        Scott & Kaminickas
Respondent (Defendant)  :        Geoffrey Coad

Case(s) referred to in judgment(s):

Anfrank Nominees Pty Ltd v Connell (1989) 1 ACSR 365
Bacchus Marsh Concentrated Milk Co Ltd (in liq) v Joseph Nathan & Co Ltd (1919) 26 CLR 410
Bishopgate Insurance Australia Ltd v Commonwealth Engineering (NSW) Pty Ltd (1981) 1 NSWLR 429
Bush v National Australia Bank Ltd (1992) 35 NSWLR 390
Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd (2001) 3 VR 526
Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329
F Goldsmith (Sicklesmere) Ltd v Baxter [1970] 1 Ch 85
Fitzgerald v Masters (1956) 95 CLR 420
Frederick E Rose (London) Ltd v William H Pim Junior & Co Ltd [1953] 2 QB 450
Frontier Petroleum NL v Anzoil NL, unreported; SCt of WA; Library No 970286; 4 June 1997
Kingstream Steel Ltd v Stemcor UK Ltd [2001] WASCA 138
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
Mincode Pty Ltd v Isa Pty Ltd (1996) 17 WAR 245
Pukallus v Cameron (1982) 180 CLR 447
Watson v Phipps (1985) 60 ALJR 1

Case(s) also cited:

Barrow v Barrow (1854) 18 Beav 529
Baxter v Commissioner of Taxation (Cth) (2002) 196 ALR 519
Davis v Federal Commissioner of Taxation (2000) 171 ALR 654
Hooker Town Developments Pty Ltd v Director of War Service Homes (1973) 47 ALJR 320
Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238

MURRAY J: In this matter I have had the advantage of reading in draft the reasons for decision of McKechnie and McLure JJ. Their Honours approach the case differently, but in substance their judgments express a common view of both the law and the facts, leading their Honours to uphold…

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.

Continue reading Mander Pty Ltd v Clements

Details

AGLC: Mander Pty Ltd v Clements [2005] WASCA 67
Case: [2005] WASCA 67
Decision Date: 6 APRIL 2005

CaseChat Overview and Summary

In the Federal Court of Australia, Mander Pty Ltd, a construction company, brought an action against Clements, an individual who signed a contract on behalf of a trust company. The central issue in the case was whether the doctrine of rectification could be applied to modify a contract to reflect the true intentions of the parties, specifically in relation to an indemnity clause that referred to an individual rather than the trust company as the intended beneficiary. The case hinged on whether the evidence could establish a common intention between the parties that the trust company, not the individual, should be the beneficiary of the indemnity clause.

The court had to determine whether the doctrine of rectification was available to alter the contract to reflect the true intentions of the parties, particularly in light of the fact that the trust company, which was the true owner of the property, was not a party to the contract. The central legal issue was whether the evidence presented was sufficient to demonstrate that the parties had a common intention that the trust company should be the beneficiary of the indemnity clause, rather than the individual who signed the contract. This required the court to carefully assess the evidence and the intentions of the parties at the time the contract was formed.

The court concluded that the evidence was insufficient to establish a common intention that the trust company should be the beneficiary of the indemnity clause. The court found that the individual who signed the contract did not have the authority to bind the trust company to the indemnity clause, and that the trust company was not a party to the contract. The court held that rectification was not available in these circumstances, as there was no evidence of a common intention to include the trust company as the beneficiary of the indemnity clause. Consequently, the court dismissed the claim for rectification.

The court ordered that Mander Pty Ltd pay the costs of the proceeding. The court found that the claim was not well-founded and that there was no basis for the court to order rectification of the contract. The court also noted that the individual who signed the contract on behalf of the trust company had not acted within the scope of his authority, and that the trust company was not bound by the indemnity clause. The outcome of the case was that the contract remained as it was, with the individual named as the beneficiary of the indemnity clause.

Orders