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Russell v RCR Tomlinson Ltd

Russell v RCR Tomlinson Ltd

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Case Copied 31 October 2012 77 min read

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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…

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: [2012] WASC 405
Decision Date: 31 OCTOBER 2012

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