Thiess Pty Ltd v FLMIDTH Minerals Pty Ltd - [2010] QSC 6

SUPREME COURT OF QUEENSLAND

CITATION:

Thiess P/L v FLSMIDTH Minerals P/L [2010] QSC 006

PARTIES:
THIESS PTY LTD ACN 010 221 486
(plaintiff)
v

FLSMIDTH MINERALS PTY LTD (FORMERLY FFE MINERALS AUSTRALIA PTY LTD) ACN 000 221 590
(defendant)

FILE NO/S:

BS 4735 of 2008

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 January 2010

DELIVERED AT:

Brisbane

HEARING DATE:

20–21 October 2008, 7–11, 21–23 and 25 September 2009

JUDGE:

McMurdo J

ORDER:

The document described as “Contractor’s and Consultant’s Side Deed” made between the plaintiff and the defendant in about July 2005 be rectified in the manner claimed in paragraph 1 of the prayer for relief in the further amended statement of claim.

CATCHWORDS:
EQUITY – GENERAL PRINCIPLES – MISTAKE – EQUITABLE RELIEF IN CASE OF MISTAKE – RECTIFICATION – PARTICULAR CASES – where plaintiff made an agreement for the design and construction of calciners for the Gladstone plant of Queensland Aluminium Limited ("QAL") – where defendant was a subcontractor of plaintiff and responsible for much of the design work – where plaintiff, defendant and QAL suffered, or claimed to have suffered, losses due to the failure of structural members of the calciners – where plaintiff commenced proceedings against defendant claiming that losses were caused by defendant's breach of contract, negligence and contraventions of the Trade Practices Act 1974 (Cth) – where a Main Deed of settlement was reached between plaintiff, defendant, QAL and other owners of the Gladstone plant and a Side Deed of settlement was reached between plaintiff and defendant – where plaintiff claims rectification of the Side Deed on the basis of common or alternatively unilateral mistake – whether the Side Deed should be rectified

TRADE AND COMMERCE – TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION – CONSUMER PROTECTION – MISLEADING AND DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – PARTICULAR CASES – CONTRACTS GENERALLY – where plaintiff claims that it executed the Side Deed induced by misleading and deceptive conduct by defendant as to effect of the deed – whether conduct of defendant contravened s 52 of the Trade Practices Act 1974 (Cth)

Insurance Contracts Act 1984 (Cth), s 54
Trade Practices Act 1974 (Cth), s 52, s 87

Bacchus Marsh Concentrated Milk Co Ltd (in liq) v Joseph Nathan & Co. Ltd (1919) 26 CLR 410, cited
Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44, cited
Bush v National Australia Bank Ltd (1992) 35 NSWLR 390, applied
Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd (2001) 3 VR 526, considered
Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329, considered
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226, cited
George Wimpey UK Ltd v VI Components Ltd [2005] EWCA Civ 77, cited
Issa v Berisha [1981] 1 NSWLR 261, cited
Jones v Dunkel (1959) 101 CLR 298, cited
Mander Pty…

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: [2010] QSC 6
Decision Date: 25 January 2010

CaseChat Overview and Summary

Thiess Pty Ltd sought to rectify a Side Deed of settlement it had entered into with FLMIDTH Minerals Pty Ltd, a subcontractor, in relation to the design and construction of calciners for the Gladstone plant of Queensland Aluminium Limited. The plaintiff claimed that the losses incurred due to the failure of structural members of the calciners were caused by the defendant's breach of contract, negligence, and contraventions of the Trade Practices Act 1974 (Cth). The main dispute arose from the terms of the Side Deed, which the plaintiff sought to rectify on the basis of common or unilateral mistake. Additionally, the plaintiff alleged that it executed the Side Deed due to misleading and deceptive conduct by the defendant regarding the effect of the deed, which contravened section 52 of the Trade Practices Act 1974 (Cth).

The primary legal issues before the court were whether the Side Deed should be rectified on the grounds of mistake and whether the defendant's conduct amounted to misleading and deceptive conduct under the Trade Practices Act 1974 (Cth). The court examined the circumstances surrounding the execution of the Side Deed and the respective claims of common or unilateral mistake. Additionally, the court considered the evidence of whether the plaintiff had been induced to enter into the Side Deed by misleading and deceptive conduct on the part of the defendant.

In its reasoning, the court found that there was a common mistake concerning the effect of the Side Deed. The parties had intended to settle all claims and discharge each other from all liabilities, but the Side Deed did not achieve this outcome. The court was satisfied that the mistake was fundamental and that the Side Deed did not reflect the true intentions of the parties. Consequently, the court granted the plaintiff's application for rectification of the Side Deed. The court also found that the defendant's conduct did not amount to misleading and deceptive conduct under section 52 of the Trade Practices Act 1974 (Cth), as the plaintiff had not been misled into entering into the Side Deed.

The court ordered that the document described as the “Contractor’s and Consultant’s Side Deed” made between the plaintiff and the defendant in about July 2005 be rectified in the manner claimed in paragraph 1 of the prayer for relief in the further amended statement of claim.

Orders

Orders of the court

The document described as “Contractor’s and Consultant’s Side Deed” made between the plaintiff and the defendant in about July 2005 be rectified in the manner claimed in paragraph 1 of the prayer for relief in the further amended statement of claim.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Thiess P/L v FLSMIDTH Minerals P/L [2010] QSC 006
PARTIES:	THIESS PTY LTD ACN 010 221 486 (plaintiff) v FLSMIDTH MINERALS PTY LTD (FORMERLY FFE MINERALS AUSTRALIA PTY LTD) ACN 000 221 590 (defendant)
FILE NO/S:	BS 4735 of 2008
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 January 2010
DELIVERED AT:	Brisbane
HEARING DATE:	20–21 October 2008, 7–11, 21–23 and 25 September 2009
JUDGE:	McMurdo J
ORDER:	The document described as “Contractor’s and Consultant’s Side Deed” made between the plaintiff and the defendant in about July 2005 be rectified in the manner claimed in paragraph 1 of the prayer for relief in the further amended statement of claim.
CATCHWORDS:	EQUITY – GENERAL PRINCIPLES – MISTAKE – EQUITABLE RELIEF IN CASE OF MISTAKE – RECTIFICATION – PARTICULAR CASES – where plaintiff made an agreement for the design and construction of calciners for the Gladstone plant of Queensland Aluminium Limited ("QAL") – where defendant was a subcontractor of plaintiff and responsible for much of the design work – where plaintiff, defendant and QAL suffered, or claimed to have suffered, losses due to the failure of structural members of the calciners – where plaintiff commenced proceedings against defendant claiming that losses were caused by defendant's breach of contract, negligence and contraventions of the Trade Practices Act 1974 (Cth) – where a Main Deed of settlement was reached between plaintiff, defendant, QAL and other owners of the Gladstone plant and a Side Deed of settlement was reached between plaintiff and defendant – where plaintiff claims rectification of the Side Deed on the basis of common or alternatively unilateral mistake – whether the Side Deed should be rectified TRADE AND COMMERCE – TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION – CONSUMER PROTECTION – MISLEADING AND DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – PARTICULAR CASES – CONTRACTS GENERALLY – where plaintiff claims that it executed the Side Deed induced by misleading and deceptive conduct by defendant as to effect of the deed – whether conduct of defendant contravened s 52 of the Trade Practices Act 1974 (Cth) Insurance Contracts Act 1984 (Cth), s 54 Trade Practices Act 1974 (Cth), s 52, s 87 Bacchus Marsh Concentrated Milk Co Ltd (in liq) v Joseph Nathan & Co. Ltd (1919) 26 CLR 410, cited Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44, cited Bush v National Australia Bank Ltd (1992) 35 NSWLR 390, applied Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd (2001) 3 VR 526, considered Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329, considered Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226, cited George Wimpey UK Ltd v VI Components Ltd [2005] EWCA Civ 77, cited Issa v Berisha [1981] 1 NSWLR 261, cited Jones v Dunkel (1959) 101 CLR 298, cited Mander Pty…