Russell v RCR Tomlinson Ltd

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   RUSSELL -v- RCR TOMLINSON LTD [2012] WASC 405

CORAM:   PRITCHARD J

HEARD:   25-26 JULY 2012

DELIVERED          :   31 OCTOBER 2012

FILE NO/S:   CIV 1229 of 2010

BETWEEN:   DAVID WILLIAM RUSSELL

Plaintiff

AND

RCR TOMLINSON LTD
Defendant

Catchwords:

Contract - Construction of employment contract - Principles of contractual construction - Turns on own facts

Equity - Rectification - Common intention - Whether the subjective intentions of the parties are relevant

Equity - Rectification - Disconformity between common intention and terms of contract - Turns on own facts

Misleading or deceptive conduct - Elements of claim - Requirement to show evidence of loss

Damages - Assessment of compensation - Whether earlier payment should be taken into account in assessing damages - Requirement to show a sufficient connection with respect to subject - Turns on own facts

Legislation:

Trade Practices Act 1974 (Cth)

Result:

Order for rectification made

Category:    B

Representation:

Counsel:

Plaintiff:     Mr A J Power

Defendant:     Mr J L Snaden

Solicitors:

Plaintiff:     King & Wood Mallesons

Defendant:     Clayton Utz

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

Australian Gypsum Ltd v Hume Steel Ltd (1930) 45 CLR 54

Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389

Byrnes v Kendle (2011) 243 CLR 253

CFlub Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd (2001) 3 VR 526

Chartbrook Ltd v Persimmon Homes Ltd [2009] 4 All ER 677

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594

Darlington Future Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500

Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603

Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1

Guest v Commissioner of Taxation (No. 2) [2007] FCA 412

Hamilton v Whitehead (1988) 166 CLR 121

Jones v Dunkel (1959) 101 CLR 298

Joscelyne v Nissen [1970] 2 QB 86

Kearns v Hill (1990) 21 NSWLR 107

MacDonald v Shinko Australia Pty Ltd [1999] 2 Qd R 152

Mander Pty Ltd and Anor v Clements (2005) 30 WAR 46

Martin v Tasmania Development and Resources (1999) 163 ALR 79

McCormick v Riverwood International (Aust) Pty Ltd (1999) 167 ALR 689

McCourt v Cranston [2012] WASCA 60

Mulcahy v Hydro Electric Commission (1998) 85 FCR 170

Nissho Iwai Australia Ltd v Malaysian International Shipping Corp, Berhad (1989) 167 CLR 219

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451

Pukallus v Cameron (1982) 180 CLR 447

Ryledar Pty Limited and Anor v Euphoric Pty Limited [2007] HCA Trans 698

Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603

Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357

Stoelwinder v Southern Health Care Network (2000) 177 ALR 501

The Bell Group Limited (In Liq) v Westpac Banking Corporation [No. 9] [2008] WASC 239

Tipperary…

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Details
Case
[2012] WASC 405
Decision Date

CaseChat Overview and Summary

In the case of Russell v RCR Tomlinson Ltd, the plaintiff sought to have a clause in his employment contract rectified on the basis that it did not reflect the common intention of the parties. The contract in question contained a clause that limited the plaintiff's right to seek damages for loss of future earnings in the event of termination of his employment. The plaintiff argued that the clause was inconsistent with the parties' common intention, which was to allow for full compensation for such losses. The court was required to determine whether the principles of equitable rectification applied in this case and whether the subjective intentions of the parties were relevant in assessing whether the contract terms reflected the common intention.

The court held that the principles of contractual construction and equitable rectification turn on their own facts and that the subjective intentions of the parties are not relevant in determining whether the contract terms reflect the common intention. The court further held that the plaintiff had not established a sufficient connection between the common intention and the terms of the contract, and therefore, rectification was not available. The court also noted that in order to succeed in a claim for misleading or deceptive conduct, the plaintiff must show evidence of loss, and that the assessment of damages requires consideration of all relevant factors, including any earlier payment made to the plaintiff.

The court found that the plaintiff had not established a sufficient connection between the common intention and the terms of the contract, and therefore, rectification was not available. The court also held that the plaintiff had not shown evidence of loss in order to succeed in a claim for misleading or deceptive conduct. The court found that the plaintiff was entitled to damages for breach of contract in the amount of $110,000, which reflected the difference between the amount the plaintiff would have earned had he continued in employment and the amount he actually received. The court held that the earlier payment made to the plaintiff should be taken into account in assessing the damages, and that the amount of damages was reduced accordingly.

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

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Ratio Decidendi

Legal Principle Established

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