JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RCR TOMLINSON LTD -v- RUSSELL [2017] WASCA 129
CORAM: BUSS P
MURPHY JA
BEECH JA
HEARD: 16 MAY 2017
DELIVERED : 11 JULY 2017
FILE NO/S: CACV 79 of 2016
BETWEEN: RCR TOMLINSON LTD
Appellant
AND
DAVID WILLIAM RUSSELL
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :TOTTLE J
Citation :RUSSELL -v- RCR TOMLINSON LTD [No 2] [2016] WASC 240
File No :CIV 1229 of 2010
Catchwords:
Equity - Rectification - Whether open to trial judge to find that common intention was established by clear and convincing proof - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr I Neil SC & Mr J L Snaden
Respondent: Mr A J Power
Solicitors:
Appellant: Clayton Utz
Respondent: King & Wood Mallesons
Case(s) referred to in judgment(s):
Anfrank Nominees Pty Ltd v Connell (1989) 1 ACSR 365
Australian Gypsum Ltd & Australian Plaster Co Ltd v Hume Steel Ltd (1930) 45 CLR 54
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603
Mander Ltd v Clements [2005] WASCA 67; (2005) 30 WAR 46
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
Pukallus v Cameron [1982] HCA 63; (1982) 180 CLR 447
RCR Tomlinson Ltd v Russell [2015] WASCA 154
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Russell v RCR Tomlinson Ltd [2012] WASC 405
Russell v RCR Tomlinson Ltd [No 2] [2016] WASC 240
Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603
Shepherd v The Queen (1990) 170 CLR 573
Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 91 ALJR 108
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164; (2014) 48 WAR 261
Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126; (2009) 38 WAR 488
Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21; (2015) 47 WAR 547
REASONS OF THE COURT:
Introduction
The appellant (RCR) appeals against the primary judge's decision[1] to rectify the provisions of an employment contract between RCR as employer and the respondent as employee regulating the circumstances in which a retirement benefit of the equivalent of one year's salary was payable by RCR to the respondent, Mr Russell.
[1] Russell v RCR Tomlinson Ltd [No 2] [2016] WASC 240 (primary reasons).
The grounds of appeal complain of errors in the fact‑finding process at trial. For the reasons that follow, we are not persuaded that RCR has demonstrated any error. Consequently, we would dismiss the appeal.
The contract
On 9 March…
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- Case
- [2017] WASCA 129
- Decision Date
CaseChat Overview and Summary
The court found that the trial judge was correct to find that the common intention of the parties was established by clear and convincing proof. The court held that the trial judge's assessment of the evidence was open to him and that he was entitled to reach the conclusion that he did. The court noted that the standard of proof required for rectification is high, and that the party seeking rectification must establish the parties' common intention to an effect different from the instrument by clear and convincing proof. The court held that the trial judge had correctly applied the principles of rectification and had not erred in his assessment of the evidence.
The court further held that the trial judge had correctly found that the common intention of the parties was established by clear and convincing proof. The court noted that the trial judge had considered all of the evidence before him and had come to a conclusion that was open to him. The court held that the trial judge's finding was not erroneous and that the appeal should be dismissed.
The final orders of the court were that the appeal be dismissed, and that the orders of the Supreme Court of New South Wales be affirmed.
Orders
Orders of the court
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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
As we have said, there is no challenge in this appeal to that statement of principles. Since the first appeal was decided, the High Court has decided Simic v New South Wales Land and Housing Corporation.[43] What is said in that case is consistent with the outline in RCR v Russell [2015].[44][43] Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 91 ALJR 108.[44] See Simicv New South Wales Land and Housing Corporation [41] ‑ [46]; [103] ‑ [104]. RCR's submissions fix upon the principle that a party seeking rectification must displace the presumption that an instrument reflects the true agreement of the parties to it by establishing the parties' common intention to an effect different from the instrument by clear and convincing proof. RCR relies on the outline of the authorities on this principle by Campbell JA in Franklins v Metcash:[45] [45] Franklins v Metcash [451] ‑ [457].It is elementary that rectification is granted only upon 'clear and convincing proof' or 'convincing proof': Ryledar v Euphoric (at 638 [161] ‑ [165]); Energy World Corporation Ltd v Maurice Hayes and Associates Pty Ltd [2007] FCAFC 34; (2007) 239 ALR 457 at [13]; Australian Hardboards Ltd v Hudson Investment Group Ltd [2006] NSWCA 146 at [73]; Fitzwood Pty Ltd v Unique Goal Pty Ltd (In Liq) [2002] FCAFC 285 at [172]; Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 at 336F, 345C; Johnson Matthey Ltd v AC Rochester Overseas Corp (1990) 23 NSWLR 190 at 195G ‑ 196A; Maks v Maks (1986) 6 NSWLR 34 at 36E; Pukallus v Cameron (1982) 180 CLR 447 at 452; Australian Gypsum Ltd v Hume Steel Ltd (1930) 45 CLR 54 at 64. What needs to be proved in accordance with that standard is not only that the written document does not correctly record the common intention of the parties, but what the common intention of the parties actually was: Slee v Warke (1949) 86 CLR 271 at 281 (per Rich J, Dixon J and Williams J); Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd (2001) 3 VR 526 at 531 [14]; Ryledar v Euphoric (at 632 [138], 655 [259]).A short phrase like 'clear and convincing proof' can fail to draw attention to why the cases have repeatedly stated expressly that it is an essential requirement for rectification. A reader uninformed by the history and policy of the law concerning rectification might well be puzzled by it, and enquire 'So when do you expect a court to act on dubious or unconvincing proof?'In Henkle v Royal Exchange Assurance Co (1749) 1 Ves Sen 317 at 319; 27 ER 1055 at 1056; [1558–1774] All ER Rep 450 at 451 ‑ 452, Lord Hardwicke LC said (though admittedly concerning a contract that the plaintiff alleged had been mistakenly written down not just once but twice) 'there ought to be the strongest proof possible'. In Fowler v Fowler (1859) 4 De G & J 250 at 264–265; 45 ER 97 at 103, Lord Chelmsford LC said:'The power which the court possesses of reforming written agreements where there has been an omission or insertion of stipulations contrary to the intention of the parties and under a mutual mistake is one which has been frequently and most usefully exercised. But it is also one which should be used with extreme care and caution. To substitute a new agreement for one which the parties have deliberately subscribed ought only be permitted upon evidence of a different intention of the clearest and most satisfactory description. Lord Thurlow's language is a very strong on this subject; he says, "the evidence which goes to prove that the words taken down in writing were contrary to the concurrent intention of all parties must be strong, irrefragable evidence;" Lady Shelburne v Lord Inchiquin [(1784) 1 Bro CC 338 at 341; 28 ER 1166 at 1168]. And this expression of Lord Thurlow is mentioned by Lord Eldon in the Marquis of Townshend v Stangroom [(1801) Ves 328 at 334; 31 ER 1079; [1775 ‑ 1802] All ER Rep 145 at 148 ‑ 9] without disapprobation. If, however, Lord Thurlow used the word "irrefragable" in its ordinary meaning, to describe evidence which cannot be refuted or overthrown, his language would require some qualification; but it is probable that he only meant that the mistake must be proved by something more than the highest degree of probability, and that it must be such as to leave no fair and reasonable doubt upon the mind that the deed does not embody the final intention of the parties.'This passage was quoted with apparent approval by A H Simpson CJ in Eq in Australia Hotel Co Ltd v Moore (1899) 20 LR (NSW) Eq 155 at 161 ‑ 162; 16 WN 132.In Mortimer v Shortall (1842) 2 Dr & War 363 at 371; 59 RR 730 at 736 (Ch (Ir)), Sir Edward Sugden LC said: 'I must be certain that there has been a mistake, and that the mistake is such as ought to be corrected. I do not mean to say, that the evidence must be all one way, or that there must not be any conflict: there must, however, be such a preponderance, as will satisfy my mind.'And (at 373; 737): 'the Court cannot act except upon the very clearest evidence.'In Australia Hotel Co Ltd v Moore (at 162), A H Simpson CJ in Eq also said: 'Where it is sought to upset a document, the Court is very chary of acting on the testimony of a single witness, especially where he comes to swear himself into a decree.'In Joscelyn v Nissen [1970] 2 QB 86 at 98 the English Court of Appeal referred to the level of proof required as 'convincing proof'.