Zhong v Guan

[2024] NSWCA 300

116 NSWLR 258

Zhong v Guan [2024] NSWCA 300 Court of Appeal Payne, Kirk JJA and Price AJA 25June, 18 December 2024 CONTRACTS — Construction — Principles — Whether any doctrine of “rectification by construction” — When courts can depart from particular words or punctuation employed .

A businessman loaned money to a company pursuant to a deed. The wife of the man standing behind the company was also a party to the deed, described as “Guarantor”. The loan was not repaid. The businessman commenced proceedings in which he contended unsuccessfully that, properly construed or as a matter of “rectification by construction”, the deed created a charge as security for the debt over a residential property that the wife owned. The businessman appealed.

Held (dismissing the appeal): (1) There is no doctrine of “rectification by construction” within the law of contract distinct from general principles of construction. The process of effectively reading in or ignoring words is part of the ordinary processes of contractual construction according to established common law principles. As such, the label “rectification by construction” should be avoided. ([1]; [23]–[26]; [53])

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq)(2019) 99 NSWLR 317;  [2019] NSWCA 11; James Adam Pty Ltd v Fobeza Pty Ltd(2020) 103 NSWLR 850;  [2020] NSWCA 311 considered.

(2) A court can construe a written contract in a manner that departs from the particular words or punctuation employed if: first, it is clear that the terms lead to absurd results or are inconsistent or manifest some obvious mistake as established by permissible evidence; and second, the position intended to be agreed by the parties is clear. The issue does not only arise in cases of absurdity. These matters may overlap. The greater the departure from the language employed then in general the more difficult it will be for the argument to be made out. ([1]; [27], [33]–[34], [38]; [53])

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq)(2019) 99 NSWLR 317;  [2019] NSWCA 11 considered. Key v Key(1853) 4 De GM & G 73;  43 ER 435; Fitzgerald v Masters(1956) 95 CLR 420;  [1956] HCA 53; HDI Global Specialty SE v Wonkana No 3 Pty Ltd(2020) 104 NSWLR 634;  [2020] NSWCA 296 applied.

CASES CITED

The following cases are cited in the judgments:

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd(1987) 162 CLR 549;  [1987] HCA 15 Australian Broadcasting Commission v Australasian Performing Right Association Ltd(1973) 129 CLR 99;  [1973] HCA 36 Chartbrook Ltd v Persimmon Homes Ltd[2009] AC 1101;  [2009] UKHL 38 Ermogenous v Greek Orthodox Community of SA Inc(2002) 209 CLR 95;  [2002] HCA 8 Fitzgerald v Masters(1956) 95 CLR 420;  [1956] HCA 53 HDI Global Specialty SE v Wonkana No 3 Pty Ltd(2020) 104 NSWLR 634;  [2020] NSWCA 296 J & P Marlow (No 2) Pty Ltd v Hayes(2023) 112 NSWLR 29;  [2023] NSWCA 117 James Adam Pty Ltd v Fobeza Pty Ltd(2020) 103 NSWLR 850;  [2020] NSWCA 311 Key v Key(1853) 4 De GM & G 73;  43 ER 435 Marley v Rawlings[2015] AC 129;  [2014] UKSC 2 Miwa Pty Ltd v Siantan Properties Pte Ltd(2011) 15 BPR 29,545;  [2011] NSWCA 297 National Australia Bank Ltd v Clowes(2013) 8 BFRA 600;  [2013] NSWCA 179 Realestate.com.au Pty Ltd v Hardingham(2022) 277 CLR 115;  [2022] HCA 39 Roberts v Investwell Pty Ltd (in liq)(2012) 88 ACSR 689;  [2012] NSWCA 134 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq)(2019) 99 NSWLR 317;  [2019] NSWCA 11 Taylor v Owners — Strata Plan No 11564(2014) 253 CLR 531;  [2014] HCA 9 Willis Australia Ltd v AMP Capital Investors Ltd(2023) 113 NSWLR 1;  [2023] NSWCA 158 Zhong v Shield Resources Pty Ltd[2023] NSWSC 1611

TEXTS CITED

The following texts are cited in the judgments:

Herzfeld P and T Prince, Interpretation (3rd ed, 2024, Lawbook Co) Heydon JD, Heydon on Contract (2019, Lawbook Co) Leeming M, “The limits of rectification” (2023) 17 Journal of Equity 122

APPEAL

This was an appeal from orders of a judge of the Common Law Division of the Supreme Court ([2023] NSWSC 1611 (Fagan J)) concerning the construction of a deed, in which one party submitted the court should undertake a process of “rectification by construction”.

MK Condon SC, for the appellant. SA Lawrance SC and M Jaireth, for the respondent. Judgment reserved 18 December 2024 PAYNE JA. 1 I agree with Kirk JA. KIRK JA. 2 The appellant, Mr Yuping Zhong, is a businessman residing in China. In September 2018 he became party to a poorly drafted deed (the Deed) providing for a loan of $2 million to Shield Resources Pty Ltd, a business run by Mr Feng Ye which traded in timber resources. The appellant in fact advanced some $1.15 million. That amount has not been repaid. The respondent is Mr Ye’s wife, Ms Ying Guan, who was also a party to the Deed. She was the second defendant at first instance. The appellant asserted that she was a guarantor of the loan and that properly construed (or alternatively as rectified) the Deed created a charge over a residential property that she (alone) owned in St Ives in Sydney as security for the debt (the Property). 3 The appellant brought proceedings in the Supreme Court against Shield Resources, Mr Ye and the respondent. The primary judge, Fagan J, gave judgment for the appellant against Shield Resources but dismissed the claims against the respondent and Mr Ye: Zhong v Shield Resources Pty Ltd [2023] NSWSC 1611 (J). The appellant has appealed from his Honour’s dismissal of the claim against the respondent, although the claim in rectification has not been pursued. 4 Two types of issue were raised by the parties on the appeal:

• (1)

  As a matter of construction did the Deed create a charge over the Property (amended notice of appeal grounds 1A–5)? The appellant put this in two ways, first as a matter of construction, then as a matter of “rectification by construction”. As explained below, there is no such separate doctrine — the issue is just one of construction.

• (2)

  If the Deed did create such a charge, was the respondent discharged from any obligation because the loan amount of $2 million provided for in the Deed was not advanced in full (amended notice of appeal grounds 4–5; notice of contention ground 2)?

5 The primary judge was correct to conclude that the Deed did not create a charge. It is not necessary to address the various arguments raised with respect to the second issue. In what follows I set out the background to the appeal, address the relevant legal principles, then consider the proper construction of the Deed.

Background

6 In August and September 2018 the appellant conducted business in the United States and in China, trading in agricultural and timber products: see J [19]. He had not up to that time conducted any business in Australia. In early August 2018 the appellant was introduced by Mr Dao Gao (by phone) to Mr Xiansi Qian. Mr Gao was a mutual acquaintance of the two. Mr Qian was the accountant of Shield Resources, based in Sydney. This and all other oral communications involving the appellant were in Mandarin, as he does not speak any English. 7 The appellant spoke with Mr Ye on 10 September 2018, in which words in Mandarin to the following effect were spoken (see J [20]):

“MR YE: My company is currently dealing with the South Australian government with respect to an exploitation agreement. If the deal is completed, my company would be able to exploit forest resources. The government requires a bond of $2 million from us, so we are currently looking for a lender, who would be willing to lend my company $2 million.

MR ZHONG: What is the interest-rate your company would like to offer?

MR YE: 12% annually.

MR ZHONG: The interest-rate is acceptable. I need a real property as security for the loan.

MR YE: I can ask my wife to provide a property under her name as security. The property is worth about 3 million.

MR ZHONG: I will also require the parties to sign a loan agreement.

MR YE: Sure. I can ask a lawyer to draft a loan agreement and provide it to you.

MR ZHONG: I am currently in America; you can send the loan agreement to [Mr Gao].

MR YE: Sure. I will ask my accountant, [Mr Qian] to send a draft loan agreement to [Mr Gao].”

8 In fact, Mr Ye did not ask a lawyer to prepare a loan agreement, but rather Mr Qian prepared a draft of the Deed using a “template agreement” he located online and which he amended: at J [21]. No lawyers were involved in preparing the Deed at any stage. The primary judge observed, aptly, that the Deed is defectively worded in significant and obvious respects and has features that are inconsistent with it having been settled by a person competent in the applicable law of New South Wales: at J [22]. 9 The Property was already subject to a mortgage in favour of the National Australia Bank. 10 The initial draft of the Deed — expressed in English — was sent to Mr Gao on 16 September 2018 for the appellant’s consideration. The primary judge found that Mr Gao provided at least an oral translation of the Deed to the appellant, and that a Mandarin written version prepared “informally” by Mr Qian was sent to the appellant prior to him executing it: at J [24]–[27]. The appellant was sent the final version of the Deed on 18 September 2018 signed by Mr Ye on behalf of Shield Resources as “Borrower” and by the respondent as “Guarantor”. The appellant executed it and sent it back the same day: at J [26]–[27]. 11 The relevant terms of the Deed, after identification of the parties, are as follows:

“INTRODUCTION

A. The Borrower has requested the Lender to lender to the Borrower the sum of AUD$2,000,000 for the purpose of a Business Investment (‘the Principal Sum’).

B. The Lender has agreed to advance to the Borrower the Principal Sum upon having the repayment of the Principal Sum with interest secured in the following manner.

IT IS AGREED

1. INTERPRETATION

1.1 In this Deed, unless otherwise indicated by the context: …

• (d)

  Principal Sum means the sum of AUD$2,000,000.00; and

• (e)

  Property means the unit owned by the Guarantor at 49 Waterhouse Ave, St Ives NSW 2075 (‘the property’).

…

2. LOAN AND REPAYMENT

In consideration of the Principal Sum on the date of this Deed advanced by the Lender to the Borrower, the receipt of which the Borrower acknowledges, the Borrower this day agrees that the Borrower is liable to repay both the Principal Sum (or so much of the Principal Sum is remains unpaid) on the 17 September 2019 (‘the Due Date’) and that such Loan under this Deed gives the Lender a caveatable interest in the Property and the Borrower will not oppose the Lender lodging a caveat over the property.

The minimum term of the Deed are at least twelve months (12 months). During the term, the Principle Sum will be entitled to convert into the further capital investment by the due date. Therefore, the Deed would be withdrawal on the consent of both parties.

…

3. INTEREST

The Borrower will pay to the Lender simple interest on the Principal Sum or on so much of the Principal Sum is for the time being remains unpaid and upon any judgment or order in which this all the preceding clause may become merged at the rate of twelve per cent (12%) per Annum calculated daily and payable monthly at months end during the term of this Deed until the Principal Sum is fully repaidand satisfied, the first of such interest payments computed from the date of this Deed to be made on the first day of the month after the date of the Deed.

…

6. BORROWER AND GUARANTOR’S REPRESENTATIONS AND WARRANTIES

The Borrower and Guarantor represents and warrants to the Lender that:

• (a)

  Charge: there is nothing to prevent the lodging of a second mortgage over the Property by the Lender if required, subject to the requirements of the First Mortgagee, and the Borrower consents to such a charge being lodged over the Property at his expense until such time as the loan is repaid under the terms of this Deed.

• (b)

  No breach: neither the execution nor the performance of this Deed will:

  • (i)

    conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding upon the Borrower or any of the Guarantor’s assets; or

  • (ii)

    cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise, as the case may be, to be exceeded;

• (c)

  No existing default: the Borrower and Guarantor are not in default or difficulty under any deed, agreement or other document or obligation to which they are a party or by which they are bound, or in respect of any financial commitment or obligation (including obligations under guarantees or other contingent liabilities), which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with his obligations under this Deed;

• (d)

  No default: no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default has occurred and, having occurred, is continuing to subsist;

• (e)

  No litigation: no litigation or administrative or other proceedings before, or of, any court or governmental authority or agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Guarantor’s assets which would or might have a material adverse effect upon the business, assets or financial condition of the Borrower;

…

7. UNDERTAKINGS AND AGREEMENTS

For as long as the Principal Sum remains outstanding under this Deed to the Lender, the Borrower undertakes with the Lender as follows:

• (a)

  Further assurances: to execute and do, at the expense of the Borrower, all assurances and other things as are reasonably required or requested at any time and from time to time by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Deed or to protect the Lender’s rights, powers and remedies under this Deed;

• (b)

  Compliance with requirements: to comply with the requirements of all applicable laws, rules, regulations, orders and decrees of any person, noncompliance with which would, or might, in the Lender’s opinion, have a material adverse effect on the Borrower’s ability to comply with his obligations under this Deed;

• (c)

  Event of default: to notify the Lender immediately of the occurrence of any event of default or event which, with the giving of notice or the lapse of time or both, would become an event of default of which the Borrower become aware which either would, or might in the Lender’sopinion, adversely affect the ability of the Borrower fully and promptly to perform his obligations under this Deed;

• (d)

  Disposal of assets: to ensure that no assets of, or under control of, the Borrower and Guarantor are transferred, or otherwise alienated, to any person otherwise than in the ordinary course of business for proper market value in money or money’s worth without the Lender’s prior written consent;

• (e)

  Further mortgage: to not further mortgage or encumber the Property beyond the first mortgage and the loan under this Deed without the Lender’s prior written agreement which may be withheld at the Lender’s reasonable discretion.

• (f)

  Litigation: to notify the Lender immediately of any litigation or administrative or other proceedings initiated or threatened against the Borrower or any of the Borrower and Guarantor’s assets; and

• (g)

  Change of circumstances: to notify the Lender immediately of any event or change in the Borrower and Guarantor’s circumstances, the effect of which either would or might render any representation or warranty made in this Deed untrue or incorrect in any respect.

…

13. GOVERNING LAW AND JURISDICTION

13.1. This Deed is governed by the laws of New South Wales.

…

14. FURTHER ASSURANCE

Each party will from time to time do all things (including executing documents) necessary or desirable to give full effect to this Deed.”

12 Despite the acknowledgment in cl 2 of the Deed that the full loan amount of $2 million had been received, in fact only $1,151,645.06 was transmitted by the appellant, with that occurring on 21 September 2018: at J [8]. Shield Resources has not repaid any part of that amount. 13 The appellant initiated proceedings in March 2020. He sought judgment against Shield Resources for repayment of the loaned amount along with interest at the agreed rate. The company was initially represented in the proceedings but did not appear at the hearing. The appellant succeeded in his claim against the company. It can be inferred that this is not likely to lead to the appellant being repaid in full, if at all. 14 The appellant claimed damages against Mr Ye for misleading and deceptive representations said to have been made in connection with the transaction. He did not succeed in this claim: see J [71]–[79]. He has not pursued it on appeal. 15 As regards the respondent, he asserted that the Deed granted him a charge over the Property as security for the loan, either as a matter of construction or because the Deed should be rectified to make that clear. He did not succeed in either respect. 16 As regards the rectification claim, the appellant submitted that the Deed should be rectified as follows (quoting J [53]):

• “(a)

  amending the phrase in clause 6(a) ‘the Borrower consents to such charge being lodged over the Property at his expense’ to ‘the Guarantor consents to such charge being lodged over the Property at his expense’;

• (b)

  adding to clause 6(a) the words: ‘and the Guarantor hereby charges the Property with the repayment of the Principal Sum, interest and all other amounts payable by the Borrower to the Lender under this Deed’; and

• (c)

  amending the phrase in the chapeau of clause 7 ‘the Borrower undertakes’ to ‘the Borrower and the Guarantor undertake’.”

17 The primary judge was satisfied that the appellant “intended he should receive under the deed security over the [Property] by way of charge” but was “not satisfied on the balance of probabilities that the [respondent] had any such intention”: at J [56]. The rectification claim thus failed. 18 As regards the construction argument, his Honour noted that cl 2 “contains no words of charge” by the respondent as the registered proprietor of the Property: at J [45]. He indicated that an issue would arise as to whether the reference in that clause to the appellant obtaining a caveatable interest in the Property was sufficient to create a charge over the Property, referring to various authorities on the point: at J [45]. But his Honour did not get to that question (and nor is it necessary for this court to do so). He observed:

“[46] … The difficulty for the plaintiff is that one never reaches the point of construction referred to in those authorities unless it is first determined that the opening paragraph of cl 2 should be construed as if the Guarantor, rather than the Borrower, agreed that the loan ‘gives the Lender a caveatable interest’ and undertakes not to ‘oppose the Lender lodging a caveat’.”

19 His Honour held that cl 2 could not be so construed:

“[49] The deed is so poorly drafted that it does not contain, in express terms, any promise at all by the second defendant. As between her and the plaintiff I find the document intractably equivocal as to any obligation that she may have intended to assume and that the plaintiff may have intended to receive from her. Because she is named as Guarantor, a reasonable person reading the deed could conclude that the second defendant intended to give a personal guarantee — but that the intended promise to that effect was inadvertently not written. Alternatively, the document could be read as indicating that she intended to agree that a caveatable interest was created by way of guarantee security and that a caveat could be lodged by the plaintiff — but that cl 2 inadvertently provided for the Borrower to make promises in that respect, rather than herself. The words of the contract combined with the surrounding circumstances, of which both the second defendant and the plaintiff had knowledge, provide no sufficient basis for choosing between those alternatives or for construing cl 2 according to either of them.”

20 The primary judge then considered the appellant’s argument of “rectification by construction”, to the effect that “the word ‘Borrower’ [in cl 2] is so obviously a mistake that the Court could correct it by interpretation”: at J [50]. His Honour, at J [50], quoted Leeming JA stating that “[t]wo conditions are necessary in order to correct the contractual language in this manner: (a) that the literal meaning of the contractual words is an absurdity and (b) that it is self-evident what the objective intention is to be taken to have been”: Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11 at [8]. The primary judge concluded:

“[51] Neither of the two essential conditions for rectification by construction is satisfied in this case. It is of little utility that the Borrower, not being the registered proprietor, should agree about the creation of a caveatable interest and the lodgement of a caveat but it is not absurd or inherently contradictory or manifestly inconsistent with some other part of the deed. Nor is it self-evident that, objectively, all parties and in particular the Guarantor must have agreed that she would be the party making those promises. Certainly, the second defendant was the only person who could have conferred any benefit upon the plaintiff by agreeing that a caveatable interest would be created and that she would permit a caveat to be lodged. However, whether she intended to agree depends upon whether there can be found in the deed sufficiently clear words that express or imply such an intention. In my view there are not. It is one thing to ‘rectify byconstruction’ a manifest absurdity, on the face of a contractual document, in an ancillary promise or machinery provision. It is quite another thing to import by this process an entire substantive obligation of a party, which otherwise is not found to be expressed or necessarily intended in the instrument as signed.”

21 The respondent made two distinct arguments below in further answer to the appellant’s claim, lest she lost on construction or rectification. The primary judge addressed both. First, she asserted that the promise to advance $2 million was an entire obligation and thus the advance of a lesser sum constituted a total failure of consideration. His Honour rejected the argument: at J [14]–[15]. Secondly, she argued that if the Deed created a charge over the Property then the principle in Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15 entitled her to be discharged from honouring the obligation because of a material change in the transaction between the lender and borrower, namely the fact that less than $2 million was advanced. That change was effected without reference to or consent from her as guarantor. His Honour held that “the burden lies upon the principal creditor to establish there has been no adverse impact” on the guarantor, and the appellant had not discharged that onus: at J [66]–[67]. 22 The appellant challenges the latter determination on the Ankar issue (grounds 4–5) and the respondent sought to raise the entire obligation issue by way of ground 2 in her notice of contention (ground 1 of that notice was not pressed). The issues are not without complexity. As noted, it is not necessary to address them.

Relevant principles of construction

23 In Seymour Whyte Leeming JA used a subheading “Rectification by construction” which his Honour distinguished from “Rectification in equity”: see at [6] and [12]. The term has also been used elsewhere: see the authorities gathered in James Adam Pty Ltd v Fobeza Pty Ltd (2020) 103 NSWLR 850; [2020] NSWCA 311 at [29] (Leeming JA). However, Leeming JA was not suggesting in Seymour Whyte that there was some doctrine of “rectification by construction” distinct from general principles of construction. So much was illustrated, for example, by his Honour’s quotation at [8] of his own earlier judgment in National Australia Bank Ltd v Clowes (2013) 8 BFRA 600; [2013] NSWCA 179 at [34]. He there said that “where the literal meaning of the contractual words is an absurdity, and it is self-evident what the objective intention is to be taken to have been” (emphasis in the original), then “ordinary processes of contractual construction displace an absurd literal meaning by a meaningful legal meaning” (emphasis added). 24 The “‘correction of mistakes by construction’ is not a separate branch of the law, a summary version of an action for rectification”: Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101; [2009] UKHL 38 at [23]; see also Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [40]. A similar point was emphasised in the Australian context by Bell P, with the agreement of Macfarlan JA, in James Adam:

“[2] I would personally eschew the terminology of ‘rectification by construction’. Whilst Leeming JA makes very plain the distinction between this concept and the equitable doctrine of rectification, the use of ‘rectification’ in both contexts is, in my opinion, apt to confuse. Rectification in equity is a mainstream doctrine and the principles associated with it are well understood in Australia and are set forth in leading texts. So also, decisions such as Fitzgerald v Masters (1956) 95CLR 420; [1956] HCA 53 are well understood as permitting a contract to be construed in very limited circumstances in a way that involves a recognition that the drafting of the contract has miscarried. The principles of contractual construction most closely associated in Australia with Fitzgerald v Masters do not, in my opinion, need to be elevated to the status of a ‘doctrine’ or fixed with a label which might be thought to undermine the importance of courts adhering to the language parties have chosen to employ in setting out the nature and scope of their contractual relations.”

25 Leeming JA himself has since commented extra-curially that “it would be clearer to avoid the label ‘rectification’. What is happening in these cases is merely an aspect of construing (which is to say, giving legal meaning to) a legal text”: “The limits of rectification” (2023) 17 Journal of Equity 122 at 127. 26 The process is not novel, nor does it inhabit a distinct enclave within the law of contract. The use of the label “rectification by construction” has the potential to mislead by suggesting to the contrary or distracting from the fact that what is involved is simply an exercise in construction. Statutory construction, too, may involve effectively reading in or ignoring words: see for example Taylor v Owners — Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [35]–[40] and [65]–[66]. Yet there could be no suggestion of a court rectifying a statute. In my view — alike with that of the now Chief Justice and Macfarlan JA in James Adam and the later-expressed view of Leeming JA — the label should be avoided. The issue is always and only one of construction according to established common law principles. 27 Justice Leeming’s statement in Seymour Whyte at [8] quoted by the primary judge (see above at [20]), too, must be understood in context. To begin with, the issue does not only arise in cases of absurdity. His Honour acknowledged as much by quoting, at [10], Dixon CJ and Fullagar J in Fitzgerald v Masters (1956) 95 CLR 420 at 426–427; [1956] HCA 53 referring to cases of absurdity or inconsistency. Meagher JA and Ball J noted in HDI Global Specialty SE v Wonkana No 3 Pty Ltd (2020) 104 NSWLR 634; [2020] NSWCA 296 at [51] that “earlier authorities referred only to the presence of a ‘palpable’ or ‘obvious’ mistake”; see also James Adam at [55]–[56]. 28 Further, what may be “corrected” is not only language but punctuation: note JD Heydon, Heydon on Contract (2019, Lawbook Co) at par 8.660, and generally at pars 8.640–8.680. 29 There may also be issues of degree involved in terms of the extent to which words are read in, ignored, or otherwise “corrected”: see analogously Taylor at [38]. The greater the departure from the language employed, the greater the degree of persuasion needed to establish that such a departure is warranted. 30 More generally, the notion of “correcting” contractual language involves the application of basic principles of contractual construction. The court does not make an order altering or correcting the language of the contract; it is simply construing what has been agreed. It is a purposive and contextual exercise. It reflects “trite law that an instrument must be construed as a whole”: Fitzgerald v Masters at 437.

31 The central principles with respect to commercial contracts were summarised recently in J & P Marlow (No 2) Pty Ltd v Hayes (2023) 112 NSWLR 29; [2023] NSWCA 117: “[89] Four members of the High Court summarised the core principles of construction of commercial contracts as follows in Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35]:

• (1)

  The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean.

• (2)

  That requires consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. That, in turn, is facilitated by an understanding of the genesis of the transaction, the background, the context and the market in which the parties are operating.

• (3)

  Unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption that the parties intended to produce a commercial result. The contract is to be construed so as to avoid it making commercial nonsense or working commercial inconvenience.

[90] Put simply, as Gageler, Nettle and Gordon JJ stated in Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 at [78], the ‘proper construction of [a contract] is to be determined objectively by reference to its text, context and purpose’ (footnote omitted). Inherent in recognition of the importance of context and purpose is that the construction adopted may depart from the literal or ordinary meaning of the words employed. Gibbs J, for example, indicated as much in Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109; [1973] HCA 36 (ABC v APRA):

‘if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, “even though the construction adopted is not the most obvious, or the most grammatically accurate” … Further, it will be permissible to depart from the ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument.’ (Citation omitted)”

32 Implicit in these principles is the notion that the court is seeking to identify the joint intentions of the parties, doing so by the objective standard of what a reasonable person in the position of the parties would understand that to be. The notion of intention here is used to describe “what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened”: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 at [25]; see also Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115; [2022] HCA 39 at [17], [43], [82]–[83]. 33 The presumptive best guide to the intention of the parties who have adopted a written contract is the words that they have employed in that document. The “primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied”: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109 (Gibbs J); [1973] HCA 36. However, if the terms of a contract lead to absurd results or are inconsistent or otherwise seem clearly contrary to the parties’ mutual purposes such as to be an obvious mistake, as established objectively by permissibleevidence, that fact suggests the objective common intention of the parties was not in fact as manifested by some particular words or punctuation employed: note Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Lawbook Co), pars 22.130–22.160. Thus “[w]ords may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency”: Fitzgerald v Masters at 426–427 (Dixon CJ and Fullagar J). 34 The principle is of long standing. Knight Bruce LJ, for example, said in Key v Key (1853) 4 De GM & G 73 at 84–85; 43 ER 435 at 439:

“there are many cases upon the construction of documents in which the spirit is strong enough to overcome the letter; cases in which it is impossible for a reasonable being, upon a careful perusal of an instrument, not to be satisfied from its contents that a literal, a strict, or an ordinary interpretation given to particular passages, would disappoint and defeat the intention with which the instrument, read as a whole, persuades and convinces him that it was framed. A man so convinced is authorized and bound to construe the writing accordingly.”

35 Arguments of absurdity or such like might readily be made but are not easily established. Courts “have no mandate to rewrite agreements, so as to depart from the language used by the parties, merely to give a provision an operation which, as it appears to the court, might make more commercial sense”: Miwa Pty Ltd v Siantan Properties Pte Ltd (2011) 15 BPR 29,545; [2011] NSWCA 297 at [18]; Willis Australia Ltd v AMP Capital Investors Ltd (2023) 113 NSWLR 1; [2023] NSWCA 158 at [53]. 36 Moreover, the step of effectively supplying, ignoring or otherwise departing from the words or punctuation employed may only be taken if what the parties did intend — as ascertained according to established principles — is otherwise clear. The court is identifying the parties’ common objective intentions; it is not making its own choices as to what their contractual relations should be. That does not mean that any departures from the text must only be capable of being expressed by one possible formulation of words or punctuation. That will often not be the case. For example, in Fitzgerald v Masters the High Court concluded that the word “inconsistent” in a contract should be read as either “consistent” or “not inconsistent”: at 427 and 438. What is required is that the agreed position is clear: see for example James Adam at [57]–[61]. 37 The argumentative steps of establishing an absurdity, inconsistency or other obvious mistake and of identifying the intended meaning are not entirely distinct. Whether or not there is such an obvious mistake (etc) may depend upon there being some other clear intention apparent which indicates that the literal meaning was not intended. As Meagher JA and Ball J said in HDI Global, the two criteria “are merely steps involved in reasoning to a conclusion” in the process of construction: at [53]. 38 In sum, it is possible to construe a written contract in a manner which departs from some particular words or punctuation employed. This is an exercise in objective, purposive, contextual construction, giving effect to the court’s assessment of what the parties have actually agreed consistently with basic principles of construction. It is not a matter of rectifying — rewriting — the contract to prevent one party’s unconscientious behaviour by correcting a mutual mistake in the parties’ expression of their actual agreement. This constructional step will only be taken if it is clear, first, that the terms lead to absurd results or are inconsistent or manifest some obvious mistake as established by permissible evidence and, second, if the position intended to beagreed is clear. These matters may overlap. The greater the departure from the language employed then in general the more difficult it will be for the argument to be made out.

The proper construction of the Deed

39 It is important clearly to identify the construction advocated for by the appellant: that the Deed created a charge over the Property owned by the respondent. That was the extent of the claimed liability of the respondent. Various ways of capturing the appropriate construction were identified in argument. One way of doing so was said to be as if the first paragraph of cl 2 of the Deed read as follows:

“In consideration of the Principal Sum on the date of this Deed advanced by the Lender to the Borrower, the receipt of which the Borrower acknowledges, the Borrower this day agrees that the Borrower is liable to repay both the Principal Sum (or so much of the Principal Sum as remains unpaid) on the 17 September 2019 (‘the Due Date’) and the Guarantor agrees that such Loan under this Deed gives the Lender a caveatable interest in the Property and the Borrower Guarantor will not oppose the Lender lodging a caveat over the property.”

40 The appellant did not assert either below or on appeal that the Deed also made the respondent personally liable as guarantor for the full liability, including principal and interest, of Shield Resources. Indeed, the appellant argued below that the absence of a personal guarantee clause itself supported the argument that the parties intended to pledge her Property as security: see J [48]. Thus the appellant’s case was that the Deed created a proprietary right, but not a general personal one, against the respondent. As senior counsel for the appellant accepted in argument in this court, his client “claim[ed] a guarantee only to the extent of the interest in the property”. 41 The appellant argued first that the Deed created such a charge simply based upon the words employed. The argument is unsustainable. The primary judge correctly observed at [45] that cl 2 contains no words of charge by the respondent, as owner of the Property, as opposed to purported promises by Shield Resources. 42 The appellant argued that cl 6(a) “supported” construing cl 2 as an agreement by the Guarantor to the creation of a caveatable interest in the Property. Clause 6(a) is an odd provision. Its chapeau says that the “Borrower and Guarantor represents and warrants to the Lender that …”. Then, after the sub-heading “Charge”, it says that:

“there is nothing to prevent the lodging of a second mortgage over the Property by the Lender if required, subject to the requirements of the First Mortgagee, and the Borrower consents to such a charge being lodged over the Property at his expense until such time as the loan is repaid under the terms of this Deed.”

43 The provision contains a representation and warranty that, first mortgage aside, nothing prevented the lodging of a second mortgage. The provision seems to equate the taking of that step with either the creation, or the further recognition or protection, of a charge. That step was not taken. And it is again said to be Shield Resources which consents to the charge being lodged. Clause 6(a) does not itself create a charge over the Property as security for the loan. Nor does it require that cl 2 be read as though the respondent was agreeing to the immediate creation of a charge. 44 The primary judge was thus correct to conclude it was a necessary step in the appellant’s claim to persuade the court that despite the absence of express words, the first paragraph of cl 2 should be read (or “corrected”) as if the respondent, rather than only Shield Resources, agreed that the loan gave the appellant a caveatable interest in the Property and she would not oppose him lodging a caveat over the Property: at J [46]. 45 The appellant’s main argument was that the Deed should be read as though “corrected” in that manner, as set out above at [39]. It was said that on its face the operation of the Deed was absurd. The argument might also have been put in terms of internal inconsistency. There is good reason to argue that something has gone awry in the (amateur) drafting of the Deed, noting the following:

• (1)

  The respondent is identified as “Guarantor” in the list of parties, suggesting that she was to play some role as such.

• (2)

  Recital B to the Deed refers to the Lender advancing the Principal Sum upon having that sum with interest being “secured in the following manner”, indicating that some security was intended to be provided.

• (3)

  The term “Property” is defined in cl 1.1(e) to mean the identified house owned by the respondent. That Property is then the subject of the promise about creation of a caveatable interest in cl 2, suggesting that the Property was meant to play some role as security for the loan. That could only occur with the agreement of the respondent. No other property is identified in the Deed as potential security.

• (4)

  Various representations and warranties are made by the respondent, together with Shield Resources, in cl 6. Apart from the warranty in par (a), already discussed, these include a warranty in par (c) that the Borrower and Guarantor were not “in default or difficulty” under any agreement or financial commitment (etc). There is also a warranty in par (e) that no litigation has “been initiated or threatened against the Borrower or any of the Guarantor’s assets which would or might have a material adverse effect upon the business, assets or financial condition of the Borrower”.

• (5)

  Clause 7 is drafted as an undertaking by Shield Resources to the appellant, but the clause again addresses the position of the respondent. Notably, par (e) involves the company undertaking “to not further mortgage or encumber the Property beyond the first mortgage and the loan under this Deed” without prior agreement of the appellant. The company was not in a position to encumber the Property; the respondent was. In any event, the provision indicates the appellant had an interest in the security value of the Property not being diminished.

46 Given these features of the Deed, a reasonable argument can be made that the parties did intend that the Property be provided as security for the loan in some way (subject to the first mortgage referred to in cl 6(a)). That being said, as the respondent argued, cl 6(a) muddies the waters. It is arguable that the Deed merely provided that a security interest could be created by the appellant subsequently lodging a second mortgage over the Property pursuant to cl 6(a), to which step the respondent agreed, but that no immediate charge was created by the Deed: note Roberts v Investwell Pty Ltd (in liq) (2012) 88 ACSR 689; [2012] NSWCA 134 at [29]–[30]. It is not necessary to resolve that point. 47 Nor, in the end, is it necessary to determine whether the series of oddities in the drafting amount to a sufficiently obvious mistake. As explained, that issue can itself overlap with the need clearly to identify what the objective intentionof the parties was. It is in that latter regard that the appellant’s case must fail, as the primary judge correctly held: at J [49] and [51]. 48 The core problem with the appellant’s case is that it does not establish a clear objectively ascertainable intention that the respondent be liable as guarantor by way of creation of a charge over the Property only, but not by way of providing a full personal guarantee for the liability of Shield Resources for principal and interest. As explained, the appellant asserted only the former construction and not the latter. The aspects of the Deed emphasised by the appellant as pointing towards the creation of a charge only are those just identified. Yet there are aspects of the Deed pointing towards the provision of a full personal guarantee, despite the absence of any express promise to that effect. As senior counsel for the respondent put it, such a construction would be achieved if cl 2 were read not as the appellant suggested but such that each reference to “the borrower were read as the borrower and the guarantor, then one would have a promise which was a joint and several promise to repay given by the borrower and guarantor”. 49 The following matters are consistent with or support that type of understanding:

• (1)

  It is consistent with describing the respondent as “Guarantor”. It is also consistent with the appellant being authorised under cl 6(a) to lodge a second mortgage over the Property, so as to give him a proprietary right as security for the obligations of Shield Resources and of the respondent as guarantor.

• (2)

  It is this understanding which is most consistent with the warranty in cl 6(c) that the respondent was not in default or difficulty in any identified respect. That warranty tends to imply that the financial position of the respondent generally — and not just as regards the Property — was relevant to the benefit that the appellant was obtaining by having the respondent as guarantor.

• (3)

  The same point is supported by the warranty in cl 6(e) about litigation relating to the respondent’s assets.

• (4)

  The point gains even clearer support from cl 7(d), (f) and (g). By par (d) the company undertook to ensure that “no assets of, or under control of, the Borrower and Guarantor are transferred, or otherwise alienated, to any person otherwise than in [certain identified circumstances]”. The provision suggests that the appellant had an interest in the asset position of the respondent generally, suggestive of her owing a personal guarantee. The same is true of par (f), which required the company to notify the appellant immediately of any litigation or other proceeding “initiated or threatened against the Borrower or any of the Borrower and Guarantor’s assets”. So, too, for the requirement in par (g) that the company notify the appellant immediately of “any event or change in the Borrower and Guarantor’s circumstances, the effect of which either would or might render any representation or warranty made in this Deed untrue or incorrect in any respect”.

50 It might be said that it is harsh for the appellant to fail to establish any liability in the respondent because of ambiguity as to the extent of that liability. Yet, as explained, when dealing with issues of construction it is not for the court to redraft the contract or to fill in gaps. The existence of the ambiguity means that it is simply not possible to identify objectively what thecommon intention of the parties was. This is not a matter of mere forensic choice made by the appellant as to how he put his case. Whether he had asserted just a charge or a full personal guarantee or both, the matters identified preclude the clear identification of any particular one of these options as being what the parties intended. As the primary judge put it, the Deed is “intractably equivocal as to any obligation that [the respondent] may have intended to assume and that the [appellant] may have intended to receive from her”: at J [49]. 51 The appellant has not made out his asserted construction. The Deed did not create a charge in his favour over the Property. The appeal must therefore be dismissed. There is no reason why costs should not follow the event. 52 The orders of the court should be as follows:

• (1)

  Appeal dismissed.

• (2)

  Appellant to pay the respondent’s costs.

PRICE AJA. 53 This appeal highlights the perils involved in not engaging a suitably qualified lawyer to advise on and to draft a contractual agreement. For the reasons comprehensively articulated by Kirk JA, I agree that the appeal should be dismissed.

Appeal dismissed

Solicitors for the appellant: Juris Cor Legal. Solicitors for the respondent: JC Legal Practice. ESC CHAN BARRISTER