Montebello v Woolworths (SA) P/L

[2006] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Appeal Against a Master's Decision)

MONTEBELLO & ANOR v WOOLWORTHS (SA) P/L

Judgment of His Honour Judge Herriman

14 February 2006

PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - RULES OF COURT

Application for immediate relief under DCR 25.02 - granted.

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS - DURATION OF CONTRACT

Declaration made as to unlawful termination of contract.

MONTEBELLO & ANOR v WOOLWORTHS (SA) P/L
[2006] SADC 9

1. This is an appeal from a decision of a Master of this Court wherein, upon the respondents’ application made pursuant to DCR 25.02, he made declarations that the appellant had unlawfully and wrongfully terminated a cartage contract with the respondents and that the respondents had lawfully accepted the appellant’s repudiation and termination of that contract.

2. The appellant contends, inter alia, that the Master erred in finding that the matter was one appropriate for determination under DCR 25.02 and, in any event, in making the declarations he did.

3. This appeal was run in tandem with an appeal by the same appellant against a similar declaration of that Master in Action No. 435 of 2004, wherein the respondent was named Basetone Pty Ltd. 

4. In each case, the contracts under review were, to all intents and purposes, identical but whereas in the Basetone matter the respondent did not accept the appellant’s purported termination of the subject contract, here the respondents did.

5. In each case, however, the appeal focussed upon the appropriateness of the Master proceeding to make a determination under DCR 25.02 and whether the appellant had lawfully terminated the cartage contract in question.

6. I will not attempt in these reasons to canvass the issues raised on the appeal in any detail because the original hearings were heard together before the Master and they proceeded together before me.

7. For the purposes of this matter, I need only say that I have determined to receive the affidavits of Gerard Damien Rohl and Richard John Flitcroft tendered in this matter on the same bases as they were received in the Basetone action, that I have considered the affidavits of John Joseph Peter Montebello filed on 26 October 2004 and of Michael Cartwright filed on 19 November 2004, and that I have considered the arguments and submissions put by counsel.

8. The question of assignment of the subject contract did not arise for consideration here and it is not disputed that the respondents accepted the appellant’s termination.

9. As to the DCR 25.02 issue, I find, for the reasons expressed in the Basetone matter, that the appellant has not shown that the relevant contract was ambiguous or susceptible of more than one meaning so as to invite an enquiry into its factual matrix; further, if I am wrong in that, I find that the appellant has had more than ample time within which to identify some fact or adduce some evidence which would support its contentions that the proper interpretation of the contract requires the reception by the court of detailed evidence as to the circumstances of its formation, and that the application of DCR 25.02 is not appropriate.

10. As to the time the appellant has had, I note here that the respondents made their position as to termination clear, in writing, to the appellant in April 2003, that their proceedings were commenced in August 2004, that defences were filed in August and November of that year and that, in September 2004, the appellant refused their request for particulars of the facts it relied upon in asserting there was an implied term in the contract.  Otherwise, the DCR 25.02 application was filed in October 2004 and followed a similar path as did the Basetone application to the point of determination by the Master.

11. As in the Basetone matter, the appellant has not here identified any fact or put forward any evidence at all as to this and, in circumstances where it is purporting merely to explore whether such material exists, it should not be granted the indulgence of any further time.

12. As I am proceeding by way of rehearing, I will then apply DCR 25.02.  I am, then, for the same reasons expressed in Basetone, satisfied the respondents should have the declaratory relief they seek, albeit in the terms expressed by the Master, and I now make declarations in those terms.

13. The appeal is dismissed.