Sekisui Rib Loc Australia Pty Ltd (ACN 008 040 800) v Rocla Pty Ltd (ACN 000 032 191)

The case involved Sekisui Rib Loc Australia Pty Ltd (SRLA) and Rocla Pty Ltd. The dispute concerned the interpretation of a sub-licence agreement, specifically whether Rocla was permitted to undertake "replacement" work in relation to conduits. SRLA contended that Rocla was prohibited from such work due to the absence of a comma in a relevant clause, which they argued was a typographical error and that the parties' subjective intention was to include the comma, thereby restricting Rocla's activities. The matter was heard by Sulan, David, and Peek JJ.

The primary legal issue before the court was the contractual interpretation of the Rocla Sub-licence, particularly the effect of the omission of a comma between the words "replacement" and "lining" in a specific clause. This omission was central to determining whether Rocla had the contractual right to engage in "replacement" work, as opposed to "lining" work, and whether this omission was a mistake that could be rectified or otherwise interpreted in favour of SRLA's construction. The court also considered whether the Rocla Sub-licence, as an annexure to a broader Business Sale Agreement (BSA), could be varied independently or if variations required adherence to the amendment provisions of the BSA.

The court reasoned that the Rocla Sub-licence, along with other subsidiary agreements, was annexed to the BSA and formed part of the overall "Agreement" as defined in the BSA. Clause 12 of the Supply Agreement, which was also annexed, stipulated that variations could only be made in writing, a principle that the court found implicitly extended to the Rocla Sub-licence given the structure of the overall transaction and the absence of a specific variation clause within the sub-licence itself. The court noted that the BSA defined "Agreement" to include its schedules and annexures, and that the transaction documents, including the executed forms of the scheduled agreements, were part of the entire agreement. Therefore, any variation to the Rocla Sub-licence would necessitate written agreement by the parties, as per clause 37 of the BSA. The court also considered the principles for implying a term into a contract, as established in *BP Refinery (Westernport) Pty Ltd v Shire of Hastings*, but found it unnecessary to imply a term given its interpretation of the express terms of the BSA and its annexures. The court found that the omission of the comma was not a matter that could be resolved by rectification in the context of the issues joined between the parties, and that the contractual documents, as executed, did not permit Rocla to undertake the "replacement" work in question.