NSW Crushing & Screening Pty Ltd v Dial a Dump Industries Pty Ltd

The Contractual Issue 9In my opinion NSWC is correct in asserting that the true legal relationship between the parties is that pleaded in [3] of its further amended statement of claim filed on 13 March 2014. 10At the outset, I need to remind myself of the relevant legal principles to apply in determining this question. Both counsel were in agreement on those principles. It is sufficient for me to set out an extract from the judgment of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ from [40] of their Honours' joint judgment in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; 219 CLR 165; 79 ALJR 129 at 179. Their Honours said at [40]: "This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction." 11Next, I should say why I reject DADI's contention that the contract is the limited one asserted by it. That turns on the email from Peter Male to Ian Malouf dated 3 November 2011 which says "we accept your offer". That email must be seen in its context. As I said in my opening remarks, both Peter Male and Ian Malouf had pressing commitments. Peter Male had a contract to fulfil with John Holland. He needed the equipment "in the next few days" (exhibit 1, page 17) and "as soon as we have a float available" (exhibit 1, page 19). For Ian Malouf, he had other business matters to deal with which were far bigger than this one. He was "in a hurry to get back to my project, which was worth $300 million at Eastern Creek. My focus was there throughout that whole period" (T 210.17). 12Both experienced businessmen were focused on getting the deal done. Some issues were in the forefront. They included rates and early commencement. The fact that such issues were to the forefront did not mean that the other issues became irrelevant or dropped out of the contractual picture altogether. From his first email of substance sent on Wednesday afternoon, 2 November 2011 (exhibit 1, page 17) Peter Male asked not only for DADI's "rates" but for its "terms and conditions or hire agreement". Ian Malouf's reply later that day provided answers to the rates and other specific matters and added that DADI would forward its "paper work shortly" (exhibit 1, page 18). Peter Male's acceptance of the offer the next morning was "[f]urther to our conversation yesterday and this email below". The "email below" was Ian Malouf's setting out of the rates and saying he would forward DADI's "paper work shortly". Peter Male added a request to "please arrange the paperwork you require to be completed" (exhibit 1, page 19). 13To this point, what would a reasonable person be led to believe by the words in which Peter Male and Ian Malouf expressed themselves to each other? 14The answer to that question, in my opinion, is that the agreement between them would include the "paper work". Both men obviously regarded it as incidental, but neither man regarded it as irrelevant. It is mentioned by both men in their emails. They clearly expected a hire contract such as this to contain terms and conditions of hire provided by the hirer and probably in writing. Although the focus for both men was getting the deal done and the equipment out, the terms and conditions of hire were always in the background for both of them. They were always part of the contractual equation, although an incidental component for them both at that stage. 15I do not accept Mr Philips's submission contained in his outline of defendant's closing submissions (which became MFI12) at [5] to [6] regarding the relevance of the principles in Masters v Cameron [1954] HCA 72; 91 CLR 353, as extended. For the reasons I have given, there was no objectively assessed mutual intention to be immediately bound when Peter Male said on behalf of NSWC that "we accept your offer to hire". The terms and conditions remained part of the contractual equation for both of them at that stage. The language of their emails says as much in my opinion. 16Nor is my conclusion affected by the fact that some money was sent by NSWC to DADI after the email from Peter Male specifying acceptance of the offer but before his conversation with Ian Malouf the following day. It was a step in the process of expedition, which was a priority for NSWC. The terms and conditions had been received only a few minutes earlier. The clear mutual intention remained that further terms and conditions would be part of the contract. 17The words "we accept your offer to hire" were not unqualified as argued by Mr Philips at [21(d)] of his written submissions. There were two references to the "paper work". One was express and the other was implied, by referring to Ian Malouf's email. Peter Male was not a commercial lawyer drafting a contract in his office, choosing words such as "qualification" or formulating provisos or avoiding words such as "accept". He was a businessman forging an agreement in the context of some urgency. But he was also experienced and prudent. In my opinion, it is clear from his email that the words "accept your offer to hire" do not represent a concluded agreement but are a step towards a final agreement, which is likely to include a written "hire agreement". He anticipated as much the day before, when he required it to be "acceptable". 18This is not a case where "there is nothing which has been identified as any matter of importance upon which the parties have not reached consensus in the exchange of emails on 2 and 3 November", as argued by Mr Philips at [21(f)] of his written submissions. Although the two men may have regarded the anticipated terms and conditions as less important than certain specific terms, they both clearly intended the contract to include further terms and conditions. This is not a case where the Court should turn the contractual key and snaplock the parties into an agreement just because they seemed to agree on certain primary issues. 19It is clear, in my opinion, that there was a mutual expectation of further terms and conditions because in response to Peter Male's request for Ian Malouf to send "the paper work you require to be completed", Ian Malouf arranged to be sent later that same afternoon the DADI "Terms and Conditions for Hire" (exhibit 1, page 22). In fact, they were sent not only to Peter Male but to Denis Male within the same hour. Both emails had a heading "Importance" and on both it was specified as "High". I add here that I take the sending of that "paper work" into account on the question of whether the contract was formed before then (Ian Clive Simpson v B.J. Metro Pty Limited [2007] NSWSC 1403 at [35 - 36]). 20I now turn to my reasons for accepting NSWC's submission that the contract between the parties is that pleaded in [3] of its further amended statement of claim. This in turn means that I have to resolve one of the few disputed factual issues in the proceedings, namely the "terms of the conversations between Mr Malouf and Peter Male on 2 and 4 November 2011", to quote that issue in the terms used by Mr Philips at [16] to [17] of his written submissions. 21I accept Peter Male's account of the telephone conversations on 4 November 2011 for these reasons. First, Ian Malouf could recall only part of the conversation, less than half of the period they spent talking. He had other things on his mind and said in the witness box that he regarded the deal as done. He had "no idea" of what else was discussed (T214). Secondly, and on the other hand, Peter Male sent an email that same morning, referring to the phone conversation. The email was "intended to reflect our general understanding in relation to the terms of the hire arrangements as referred to in the 'Terms and Conditions of Hire'". Peter Male's affidavit evidence is essentially consistent with that email. 22Thirdly, none of the matters set out by Mr Philips at [17] of his written submissions convinces me otherwise. I will briefly say why, by reference to his detailed and helpful submissions on this issue in that paragraph.

At subclause (a), he refers to the omission of several matters by Mr Male and the impact of that on his credibility. I do not regard any omissions as significant. The passages referred to by Mr Philips contained answers which were carefully qualified by Mr Male. In fact, he appeared to have quite an accurate recollection in respect of the question of the kind of stone.
As for subclause (b), concerning what Mr Malouf had in his account of the conversation which may have been omitted by Mr Male, Mr Male accepted in cross examination that those items were discussed. In fact, that was obvious because of Ian Malouf's email containing the rates the previous day.
As far as subclause (c), Mr Philips argued that Mr Male gave evidence which was evasive, less than candid and self-serving. I myself do not regard the evidence at the passages referred to by Mr Philips as meeting that description. They were, in my opinion, answers which were consistent with his own case, which included that the written proposed terms and conditions came at a later stage than the earlier exchanges.
At subclause (d), Mr Philips argued that Mr Male accepted that he could not recall the precise words of his conversation with Mr Malouf and that, overall, his recollection of events was not strong. That was no doubt an appropriate concession for Mr Male to make but Mr Malouf also acknowledged the shortcomings of his recall. The advantage for Mr Male - and one of the significant reasons for preferring Mr Male's account - was that he put his recollection into an email which was sent on his behalf shortly after the conversation.
Mr Philips, in subclause (e), referred to the circumstances in which Mr Male had his telephone conversation with Mr Malouf. He was driving to the airport and the email was sent on his behalf after he had discussions with Denis Male over the telephone. I accept here that it was clearly a very important issue for NSWC as to whether or not they would accept these written terms and conditions. It was, it seems to me, obvious from the evidence from both Messrs Male and Mr Malouf that it was a more important issue for the business of NSWC than for the business of DADI. In any event, the advantage of Mr Male's recollection is that it is no doubt drawn on a record which he made not long after the conversation.
In subclause (f), Mr Philips draws attention to the fact that Mr Male's affidavit probably relied heavily on the email. This may well be the case but insofar as I need to be satisfied on the balance of probabilities, it carries a good deal of weight that Mr Male recorded his recollection of the conversation very soon after it occurred.
In subclause (g), Mr Philips argued that some aspects of Mr Male's affidavit were inaccurate or confusing. That may be the case, but they were in minor respects in my opinion.
Finally, in subclause (h) Mr Philips argued that Mr Malouf was not shaken from his recollection, despite cross-examination. That is so but Mr Malouf's recollection has the inadequacy that I have pointed out initially when I came to this topic, and I prefer Mr Male's recollection, supported as it is by a relatively contemporary record. 23It is true that Peter Male's recollection is that the telephone conversation of 4 November 2011 ended with Ian Malouf saying "I understand that, look let's just get this deal done, let's get everyone happy, write down what you want on paper and send it to me" (exhibit A, paragraph 29). It is also true that in Denis Male's email to Ian Malouf on behalf of Peter Male on 4 November 2011, the words "our general understanding" are ambiguous, in that the word "our" may refer to NSWC as an entity or to Peter Male and to Ian Malouf personally as participants in the telephone conversation. 24The former is in fact supported by the words "we comment as follows". On the other hand, three features of the email of 4 November 2011 point to the conclusion that a verbal agreement was reached during the telephone conversation on the topics referred to in the email. The first is the occasional use of the expression "as discussed" or "as mentioned". It is not universal and, rather than its omission representing some items were discussed and others not, it reinforces the fact there was a discussion about various aspects of the DADI proposed terms and conditions and some resolutions of differences. 25The second is the proposal contained in the email that "it would seem appropriate that the proposed Hire Agreement should be amended to reflect these general understandings". That suggests that a verbal agreement had been reached and that, as a matter of prudence rather than necessity, the proposed terms and conditions should be amended to accord with the verbal agreement. 26The third is the proposal that "the comments above reflect accurately our earlier discussions today". That clearly suggests that the telephone discussion included verbal agreement on the topics mentioned. 27It is true that the third feature just mentioned is expressed as a proviso and that Peter Male, through Denis Male, seeks Ian Malouf's "confirmation in this regard...so that transport arrangements can be confirmed." But again, the email is written by a businessman, not a commercial lawyer. In my opinion, its intention, objectively assessed, is to record the verbal agreement reached which in turn provided a basis for NSWC proceeding with the hire. Seeking amendments to the DADI terms and conditions "to reflect these general understandings" and "confirmation" were matters of prudence for Peter Male and Denis Male, not a contractual necessity. The proviso was by way of recording the agreed basis on which NSWC was proceeding with the hire. It did not require acceptance because the agreement had been reached. Confirmation was a matter of prudence. It was on the basis of the verbal agreement that NSWC remitted further funds and took delivery of the equipment. Again, it must be emphasised that I am not construing a statute or a contract drafted by a commercial lawyer. I am ascertaining what was the intention of two or three businessmen by - to quote from [3] of Mr Philips's written submissions - "determining what is objectively conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened". 28I do not regard the 4 November 2011 email as superseding or supplanting the conversation earlier that morning, as argued by Mr Philips at [25] of his written submissions. It was, as I have found, a record of the agreements reached during the conversation. 29The point made by Mr Philips at [24] of his written submissions about the difference between the term pleaded in [9] of the further amended statement of claim and the email of 4 November 2011 has some initial appeal, but the two assertions are readily reconcilable. The rate proposed by DADI is payable, whether or not the eight hours per day was reached. In other words, NSWC pays for no fewer than eight hours per day. But the agreement reached was that that minimum was "[e]xcluding site shutdowns for RDO's (one per month), Xmas/New Year, break and wet weather" also any repairs "[o]utside routine maintenance" of the equipment "[w]ill be regarded as being 'off hire'." Although there is no mention of an "hours in excess of an average of eight hours per working day" (further amended statement of claim, paragraph 9), the dot point about "excess hours" amounts to the same things. There would be no point in waiting for the end of the hire period to calculate hours in excess of eight per day if NSWC was simply paying for each time the machine has worked for more than eight hours. It would be a simple calculation and there would be no need for further negotiation on Ian Malouf's 2 November 2011 email. The point about waiting until the end of the hire is so that hours when equipment was "off hire" could be deducted from any hours exceeding eight hours per day. The emails of 13 January 2012 amounted, in my opinion, to a variation of the earlier agreement.

The Estoppel Point 30NSWC has an alternative argument which is based on estoppel. It is based on the assumption that the DADI standard terms and conditions form part of the contract but without the amendments which I have found Ian Malouf agreed to and which were confirmed by the email from NSWC sent on 4 November 2011. Mr Gracie described the estoppel point as a "fallback position" (T359) which I could deal with "as a matter of completeness" if I wanted to. In Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; 164 CLR 387; 62 ALJR 110, Brennan J (as his Honour then was) drew a distinction (at 413) between equitable estoppel and estoppel in pais, by reference to the arguments advanced in that case. 31My understanding of Mr Gracie's case is that he is relying on estoppel in pais rather than equitable estoppel or "an equity created by estoppel", which Brennan J thought (at 416) was a more appropriate description. There seemed to be some lack of specificity at times about which form of estoppel was being addressed. Expressing my conclusion by reference to Brennan J's discussion (at 415) of the source of the legal obligation, in my opinion DADI should be compelled to adhere to the assumption that the contract between them was the one asserted by NSWC. My reasoning follows. 32First, I should observe that the exercise is somewhat artificial because I am to assume a different important circumstance from the one I have found. That is, I am to assume that the contract between NSWC and DADI comprised the DADI standard terms and conditions, unamended by the discussion and email of 4 November 2011. But I do not propose to assume that the telephone conversation on 4 November 2011 was other than I have found. 33My analysis of what happened is this. Peter Male and Ian Malouf reached agreement on the main features of the contract or features which were of primary concern to each. Both knew that there would have to be "paper work" and that was acknowledged between them. When it arrived, Peter Male and Denis Male examined it and Peter Male rang Ian Malouf and told him that NSWC "can't sign them. We'd go broke if we did so" (exhibit A, paragraph 29). He listed his concerns and Ian Malouf agreed with them. Ian Malouf had other pressing commitments and, wanting to "get this deal done" and "get everyone happy", he invited Peter Male to "write down what you want on paper and send it to me." Peter Male did exactly that and said he would remit the balance of funds "provided the comments above reflect accurately on our earlier discussions today". Peter Male pointed out that he needed to arrange transport and insurance so DADI's "confirmation in this regard would be appreciated". He invited Ian Malouf to "let me know if there is any aspect you wish to discuss". Ian Malouf knew the email needed attention because he circulated it within DADI, including to his in-house lawyer, for comment. 34The hire proceeded but there was a bump just before Christmas when DADI was chasing payment and NSWC said they were still working out the credit that should be given for downtime, wet weather and repairs. It was apparent that the DADI chief financial officer, Mr Marks, did not understand that, but what was allowed was a credit for Christmas closure and an acceptance by DADI for the time being of payment for hours which NSWC thought it owed. I do not need to resolve any discrepancies in the recollections about the phone call on 22 December 2011 between Peter Male and Mr Marks because it is common ground that NSWC would make a payment on that broad basis. 35The issue rose its head again on 4 January 2012 after the Christmas break. NSWC was wanting adjustments for the amounts due, calculated by reference to when the period covered by the payment should commence. Again, this was resisted and reference was made to "the agreement" in an email from Mr Marks of 6 January 2012. Mr Marks said DADI were "flexible" in allowing a credit for the Christmas closure. He sought the full payment, which NSWC were willing to make. NSWC's issue was the commencement and end of the period it would cover. Mr Marks said he would "contact you on my return" from leave and, significantly, asked for a "daily report on usage and wet weather so that we can discuss any issues as they arise. Mechanical rain etc". 36Denis Male sent a couple of emails articulating his understanding to make sure they were "on the same wave length". Then Ian Malouf sent an email to Denis Male saying it was "pretty clear we are not on the same page" and seeking immediate turn of the machines. Peter Male emailed on 10 January 2012, pointing out that "all of our actions with regard to hours and mechanical issues have entirely consistent with the basis of the hire arrangement agreed with you by email and phone" (exhibit 1, page 75). On 13 January 2012 there were successful attempts to come to a working arrangement. 37NSWC said they were "prepared to complete a written Hire Agreement incorporating these aspects and those included in our email dated 5 November 2011" (exhibit 1, page 83). (All agree that the reference to the email dated 5 November 2011 should read 4 November 2011.) Then there was the adjudication, where DADI relied on the original terms and conditions, and DADI was successful. 38By reference to Brennan J's "nature of estoppel in pais" description at 413, I am first satisfied that DADI induced NSWC to assume that the contract between them was the one the subject of the email 4 November 2011. Ian Malouf agreed to the proposals on the phone, then invited Peter Male to put them in writing. Ian Malouf knew they were important and more than "a whole lot of guff" (T216.03) because of whom he forwarded it to. 39Next, I am satisfied that Ian Malouf knew NSWC were acting on that assumption. Peter Male had said NSWC could not sign them as they were. Ian Malouf agreed to Peter Male's proposals over the phone and asked him to put them in writing. The writing left no doubt that NSWC were proceeding on the basis of that assumption. 40Next, it is also clear that NSWC were in fact acting in reliance on the assumption. 41Then DADI commenced the adjudication proceedings on a basis different from the assumption which it had induced NSWC to make, knowing that NSWC was acting on it. DADI also resists the claims made in these proceedings by reference to a different state of affairs from the assumed state. 42NSWC suffered detrimental outcomes of the various adjudications. 43For those reasons, in my opinion, DADI should be estopped from asserting in these proceedings any state of affairs as the foundation of the respective rights and liabilities between itself and NSWC other than the contract asserted by NSWC (as amended on 13 January 2012) in its further amended statement of claim.

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