CONTRACT - Construction - Scope of release clauses - Whether wide general words of release confined to apply only to specific subject matter - Properly construed relevant clauses only released and indemnified respondent from claims arising from short-term contract made after termination of principal contract - Respondent unable to rely on release in claim against it for breach of principal contract.

Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112 applied; Wardman v Macquarie Bank Ltd [2023] FCAFC 13 considered.

1. RW & ME Smith Pty Ltd (the applicant), is a company owned by Robert Smith, a truck driver, and his wife. The applicant delivered concrete for the respondent, Boral Resources (Vic) Pty Ltd ('Boral'), under a cartage agreement ('the Agreement'). On 9 July 2015, Mr Smith and another employee of the applicant helped employees of Boral replace a broken drive chain on an elevator at Boral's concrete plant. The broken chain was preventing Boral from loading concrete onto trucks. After the successful repair, and the plant resuming operations, Boral summarily terminated the Agreement because of what it alleged was the applicant's serious misconduct when assisting with the repair. Despite the summary termination, and with Boral's consent, the applicant continued to provide cartage services to Boral until October 2015 when it finally ceased doing so.
2. In August 2020 the applicant commenced proceedings in the County Court alleging that Boral unlawfully terminated the Agreement in breach of its terms. In the alternative, the applicant contended that if the applicant breached the Agreement, the conduct giving rise to the breach was done at Boral's direction. Accordingly, Boral was estopped or otherwise prevented by ss 20 or 21 of the Australian Consumer Law[1] ('ACL') from relying upon its own conduct in order to terminate the Agreement.
3. Apart from denying the applicant's claims, in its defence Boral alleged, alternatively, that even if it unlawfully terminated the Agreement or contravened the ACL, the applicant's claim was barred by the operation of a release and indemnity contained within a deed of termination dated 13 October 2015 ('Second Deed').[2] In reply, the applicant alleged that it would be unconscionable for Boral to rely upon that deed.
4. On 30 May 2022, a County Court judge dismissed the applicant's claim.[3] The judge found that the applicant had not proved that the summary termination was wrongful. But even if the termination was wrongful, the judge found that Boral would have terminated the contract on three months' notice in any event, and the applicant would have suffered the same financial consequences. The judge also found that the applicant had released Boral from any liability and was precluded from an award of damages by the operation of cls 3.1 and 3.2 of the Second Deed. The applicant now seeks leave to appeal that decision on nine grounds.[4]
5. For the reasons that follow, leave to appeal will be granted, the appeal allowed, the orders made by the County Court will be set aside and in their place judgment will be entered for the applicant for damages in a sum to be assessed upon the matter being remitted to the County Court.

1. Where necessary, the full terms of the grounds will be set out later in these reasons. For now, they may be stated in summary form.
2. Ground 1 alleges that the judge erred in finding that the repair works performed by the applicant fell within the ambit of the applicant's contract with Boral to perform 'Cartage Works' (as defined). Ground 2 challenges a factual finding by the judge that the repair works performed by the applicant were unsafe. Grounds 3 and 4 allege that the judge erred in finding that the applicant breached its contract with Boral.
3. Grounds 5 and 6 allege that even if there was a breach of contract, it did not entitle Boral to terminate the Agreement. Grounds 7 and 8 challenge the judge's finding that the Second Deed released Boral from the claims the subject of the proceeding and that Boral's reliance on the Second Deed was not unconscionable. Ground 9 challenges the judge's conclusion that in any event, Boral would have terminated the contract on three months' notice.
4. Boral also filed a notice of contention which alleged that the judge's decision ought to be affirmed on the basis that the applicant breached implied terms of the Agreement that the applicant would comply with statutory work, health and safety obligations and with all of Boral's work/occupational health and safety policies and procedures. This notice of contention was subsequently withdrawn.
5. Drawing those grounds together, the issues on appeal may be distilled as follows:
   • (1) Were the repair works 'Cartage Works' (ground 1)?
   • (2) Did the applicant breach the contract so as to enliven Boral's right of summary termination (grounds 2, 3 and 4)?
   • (3) Even if the applicant breached the contract, was Boral precluded from terminating for some other reason (grounds 5 and 6)?
   • (4) Upon the proper construction of the Second Deed, did the applicant release Boral from a claim for wrongful termination of the Agreement (ground 7)?
   • (5) Was Boral precluded from relying on the Second Deed due to unconscionability (ground 8)?
   • (6) Would Boral have terminated the Agreement on three months' notice had it not been able to terminate summarily such that the applicant suffered no loss or damage (ground 9)?

1. Boral is a large supplier of concrete and other building materials. In 1988, Boral became the owner of a concrete plant in Swan Hill ('Swan Hill Plant'). Prior to 1988, the Swan Hill Plant had been owned by a company called Readymix.
2. The applicant is a company, incorporated on 8 July 2003, which is owned and operated by Robert Smith, and his wife. Mr Smith had contracted with Readymix to supply concrete to the Swan Hill region from about 1970. Mr Smith continued working at the Swan Hill Plant once Boral took over ownership. From 1999, Mr Smith was the exclusive contractor to deliver concrete to all of Boral's customers in the Swan Hill region.
3. From 2001 to 2011, Mr Smith was subcontracted to act as the full-time plant operations manager at the Swan Hill Plant. From 2011, he returned to providing concrete cartage services for Boral.

1. On 1 August 2014, the applicant and Boral entered into the Agreement which was titled a 'Concrete Cartage Agreement'. It had a term of 5 years from commencement (ending 30 September 2019), with the potential for two extensions of 2 years and 1 year respectively.
2. Clause 1 of the General Terms and Conditions which formed part of the Agreement provided that:

1. Cartage Works

1.1 The Contractor must perform the Cartage Works:

(a) in accordance with the terms of this Agreement;

(c) with due care and skill and in a courteous, co-operative and professional manner;

(d) safely, and in accordance with Boral's safety requirements as notified by Boral from time to time;

(e) in accordance with day to day operational directions given by Boral;

(f) in accordance with any direction, policy, procedure or specification (including but not limited to Boral's standard operating procedures) notified by Boral from time to time;

1. 'Cartage Works' was defined in cl 28 to mean 'deliveries of Goods and associated tasks performed by the Contractor for Boral in accordance with this Agreement'. 'Applicable Laws' was defined to mean 'all applicable laws, regulations, industrial awards, and agreements including all applicable safety, health and environmental regulations'. 'Goods' was defined to mean 'concrete to be delivered ... in accordance with this Agreement'.
2. Clause 22 was headed 'Termination' and provided that:

22.2 Boral may, by written notice to the Contractor, immediately terminate this Agreement or any Cartage Works being undertaken by the Contractor if the Contractor commits a material or wilful breach of any of the terms of this Agreement, including:

(a) refusal or failure to perform any Cartage Works;

...

(f) breach of any Applicable Laws, including Chain of Responsibility Laws.

...

22.4 Either party may, at its absolute discretion, terminate this Agreement at any time upon 3 months' written notice to the other party.

22.5 Upon termination by Boral under this clause 23 [sic], except to the extent otherwise required by Applicable Laws, the Contractor's only right to compensation will be for Cartage Works performed up to the time of termination and at the Cartage Rates specified in this Agreement, and the Contractor will not be entitled to any other form of compensation from Boral respect of such termination.

1. Under cl 13.1 of the Agreement, Boral owned the agitators which were attached to the applicant's trucks. An agitator is the revolving barrel in which the concrete is carried. It was necessary to have Boral's consent and agreement to transfer ownership of the applicant's trucks with the attached agitators to a third party.

1. On 9 July 2015, Tate Pickering (one of the applicant's employees) called Mr Smith at about 6:30 am and notified him that there was an issue at the Swan Hill Plant. The issue was that a chain had broken on the head drum of the load out area during batching of the first load of concrete resulting in an elevator ceasing to work. The problem was with a piece of Boral's machinery, not with any part of a truck due to receive concrete.
2. Mr Smith arrived at the Swan Hill Plant. At the request of the acting site manager, Neil Congram, Mr Smith investigated the problem and observed that the chain of the elevator was detached. Doing so required Mr Smith to climb up onto a metal platform above the elevator. Prior to Mr Smith removing the guard on the elevator to investigate, Mr Congram had electrically isolated the plant by switching off power at the main fuse box and removing the safety lanyard.
3. Mr Congram telephoned Boral's production manager, Malcolm Ball, who told him that Boral's usual maintenance contractor was on leave. Mr Congram telephoned two local engineering firms to try, unsuccessfully, to source a replacement chain. Mr Congram then said to Mr Smith that they would have to fix it themselves and asked Mr Smith to assist him. Upon the authorisation of Boral's production manager, Mr Pickering collected a new chain from a local business and this was paid for by Boral. Mr Smith, at Mr Congram's request, then installed the chain on the elevator.
4. During the removal and repair process, Brendan Wilson, an employee of the applicant, took a photograph of the work occurring ('the Photograph').
5. The Photograph depicts three men in high visibility clothing. Two of them are standing upon an elevated metal platform while the third stands below them on the back of a concrete truck. The platform has two horizontal guard rails along the edge of the platform, one at about knee height and the other at about waist height. One of the men on the platform, Mr Smith, is lying down with his back facing the camera holding the inside of the upper rail with one hand and reaching down with his other arm between the lower rail and the platform floor. His shoulders and head are outside of the rail but the rest of his body is inside the rail. Behind him stands Mr Congram looking over Mr Smith holding a 'hard hat' in his hand. Mr Pickering, while standing on the back of the truck, is reaching up to toward the men on the platform.
6. Explaining the photograph, Mr Smith gave evidence that when he was removing the nuts on the elevator guard he asked for a spanner, which Mr Pickering passed to him. Mr Smith described how Mr Pickering stood on the back of his truck in order to be able to pass a spanner to the men working on the platform. Mr Congram was holding Mr Smith's hard hat as otherwise it would fall off Mr Smith's head, not being secured by a strap under his chin.
7. In his evidence, Mr Smith stated that from time to time he or his employees were asked by Boral to assist in conducting repairs or completing other tasks at the Swan Hill plant, which they did.

1. On 15 July 2015, Mr Ball, who had by now become aware of the Photograph, contacted Kirsten Gandert, who was then Boral's Health Safety Environment Advisor for the Western and Southern region. On 16 July 2015, Ms Gandert attended the Swan Hill Plant and spoke to Mr Smith, Mr Pickering and Mr Congram.
2. Ms Gandert prepared an incident investigation report and determined that the work was undertaken in an 'unsafe manner' and determined that the potential risk to Boral was extreme.
3. On 21 July 2015, Mr Smith was informed by Mr Ball and Phil McIntyre (the Swan Hill Plant's acting operations manager) that his position was terminated. In his evidence in chief, Mr Smith said that he recounted to Mr Ball and Mr McIntyre what had occurred when he had attended the plant on 9 July. He said at that point the conversation was interrupted by another Boral employee who wanted Mr Smith to deliver a load to a customer because no other driver were available. Mr Smith was then asked to complete the delivery which he did.
4. After completing the delivery, Mr Smith returned to the meeting. According to Mr Smith, when he returned Mr McIntyre said 'your contract is terminated'. Mr McIntyre said that 'we'll go ahead with the sale of your trucks, we can advertise it internally'. Mr Smith asked if he could return the next day to collect his belongings, and was told that he could. In response to Mr Smith's question about whether he could return to see if his truck was all right, he was told 'no, you can't drive and Mr Pickering can't drive' and that he was allowed back in the plant 'to do what you need to do'. Mr Smith explained that, at that point he had two other drivers and a third on standby and that 'those three went on through till the contract and the sale of trucks was completed'.
5. The next day, 22 July, Mr Smith was given a letter ('the first letter') which stated:

We refer to the meeting held with you on 21st of July 2015 and confirm the decision relayed to you that your Concrete Cartage Agreement has been terminated for reasons of level of conduct (serious misconduct) in relation to the nature of incidents that took place on 9th of July 2015 and your failure to adhere to the standard operating procedures.

Boral has considered your conduct and your responses in relation to these incidents. In our view, we are satisfied that your conduct amounts to serious misconduct in that your driver Tate Pickering and yourself:

• Engaged in wilful behaviour that is inconsistent with the terms of your contract
• Caused a serious and imminent risk to the health or safety of a person

Further, Boral considers that your conduct is in breach of:

(a) Terms of your Concrete Cartage Agreement with Boral, and

(b) Boral's policies and procedures relation to occupational health & safety

In the circumstances your conduct has given us no alternative but to terminate your Concrete Cartage Agreement with Boral. Boral will accept the on sale of below mentioned vehicles to an approved party through interview process and approval issued on compliance under the terms of contract. Both parties will be notified via correspondence to advise acceptance. Boral will then permit the sale upon return of a statutory declaration stating that "No Good Will" is involved in the sale ...

A Deed [of] termination will be required to end the Concrete Cartage Agreement ... As agreed this termination is effective on the day of 21st of August 2015.

1. Also on 22 July 2015, Mr Smith was given another letter ('the second letter') regarding the pending sale of the applicant's trucks. The second letter stated:

Boral will conduct an interview with potential contractor and issue approval based on compliance under the term of contract. Both parties will be notified via correspondence to advise expectance. Boral will then permit the sale upon return of statutory declaration stating that "No Good Will" is involved in the sale of the aforementioned vehicles. Deed of Termination will be required to end the Concrete Cartage Agreement ... this will be issued pending an effective start date for on sale.

1. As appears from the first letter, Boral informed Mr Smith that the effective date for the termination of the Agreement was, 'as agreed', 21 August 2015. As is apparent from the second letter, the effective date of the termination was dependent upon arrangements concerning the on-sale of the applicant's trucks. Boral told the applicant that it would also require a Deed of Termination which was to be issued when the sale of the trucks was imminent. With Boral's consent, the applicant continued to provide concrete cartage services to Boral between 22 July and 21 August, although it was subject to the limitation that neither Mr Smith nor Mr Pickering were permitted to drive the concrete trucks.
2. On 21 August 2015, Mr Smith executed a deed of termination ('the First Deed') on behalf of the applicant. The First Deed, made with Boral, was in identical terms to the Second Deed which is discussed below at [35].
3. Because the purchaser of the applicant's trucks had not arranged finance by 21 August 2015 to complete the purchase, the applicant continued to provide services to Boral after that date. By 13 October 2015, the purchaser was in a position to pay for the applicant's trucks and the applicant then ceased providing its services. On that day, the Second Deed was executed by the applicant and Boral.

1. The Second Deed, titled 'Deed of Termination', was executed as a deed by Mr Smith on behalf of the applicant and Paul Hillyer as authorised officer for and on behalf of Boral. The Second Deed contains the following relevant terms:

Background

The Contractor has, as a [sic] independent contractor, provided various transport services to Boral upon certain terms and conditions accepted and performed by the parties over a period of time (Contract).

The parties gave [sic, 'have'] mutually agreed to terminate the contract upon the terms and conditions set out in this deed.

Terms and Conditions

1. Contract Termination

1.1 To enable the Contractor to sell the vehicle within the Boral fleet.

2. Final Payment

2.1 Boral will pay the Contractor the amount due to the Contractor for services provided by the Contractor to Boral for the period from the last payment date to the Termination Date (Final Payment Amount).

2.2 The parties agree that payment by Boral to the Contractor of the Final Payment Amount is in full and final settlement of all payment obligations of Boral to the Contractor under the Contract to the intent and with the effect that no further claim for any payment may be made by the Contractor against Boral.

2.3 The parties agree that the Final Payment Amount includes but is not limited to any and all claims, costs, fees, fines, third party claims, claims for property and personal damage and expenses howsoever arising and in any way related to the transport services provided by the Contractor to Boral and the vehicles, equipment and drivers used or engaged by the Contractor when providing those transport services.

3. Indemnity and Release

3.1 By its execution of this Deed, the Contractor agrees that, subject to payment by Boral to the contractor of the Final Payment Amount due for the period to the Termination Date, the Contractor will indemnify and release Boral from any and all liabilities, losses, claims, damages and expenses howsoever arising which may, directly or indirectly, arise from the Contract and the vehicles, equipment and drivers used and engaged in the provision by the Contractor of the transport services.

3.2 The Contractor acknowledges and agrees that effective on the termination date the Contract between Boral and the Contractor is at an end and the Contractor has no further claims or entitlements against Boral either now or in the future and hereby releases and indemnifies Boral against any and all such claims.

4. General Conditions

...

0.0 [sic] Entire Agreement

This deed embodies the entire agreement and understanding between the parties concerning its subject matter and succeeds and cancels all another [sic] agreements and understandings concerning the subject matter of this deed and any warranty, representation, guarantee or other term and condition of any nature not contained in this deed is of no force or effect.

5. Legal advice

The Contractor confirms that it has been advised by Boral to obtain independent legal advice concerning the terms of this deed and has been provided with an opportunity to obtain that advice.

1. After setting out the relevant facts and determining not to make a Jones v Dunkel[5] inference from Boral's failure to call certain witnesses, a matter which is not challenged on this appeal, the judge identified that the following matters were issues in dispute:

(a) Do the following implied terms form part of the cartage agreement: > > (i) implied terms of good faith and cooperation as pleaded by the plaintiff; and > > (ii) an implied term that the plaintiff would comply with its own and Boral's work, health and safety obligations, as pleaded by Boral? > > (iii) If so, did either party breach the implied terms? > > (b) Did the plaintiff breach any express terms of the cartage agreement, including clauses 1.1(d), (f) and (h)? > > (c) Was the plaintiff was acting at the request, supervision or direction of Boral on 9 July 2015, and if so, was Boral estopped or otherwise prohibited by law from terminating the cartage agreement? > > (d) Did Boral wrongfully terminate the cartage agreement? > > (e) In relation to the effect and construction of the Deed: > > (i) Do clauses 2.2, 3.1 and 3.2 of the Deed, separately or in combination, constitute an indemnity and release in favour of Boral from the claim that is the subject of this proceeding? > > (ii) If so, is Boral estopped from relying on the indemnity and release as provided under the Deed as to do so would be unconscionable? > > (iii) If not, pursuant to the principle of circuity of action, should the Court decline to grant the relief sought by the plaintiff in this proceeding? > > (f) Is the plaintiff entitled to an amount representing loss of goodwill, being the alternative head of damages claimed? > > (g) If so, has the plaintiff suffered loss and damage as a result?

2. We put aside the issues raised in par (a) above as the implied terms in sub-par (i) are not raised on the appeal, and the implied term in sub-par (ii) was only raised in the Notice of Contention, which has been withdrawn.

1. Because cl 1.1(d), (f) and (h) of the Agreement concerned the manner in which the applicant must perform the 'Cartage Works', it was first necessary for the judge to consider whether the repair works performed on 9 July 2015 fell within the definition of 'Cartage Works'.[6] The judge determined that the repair works were 'Cartage Works' on the basis that the work performed was a task associated with the delivery of concrete under the Agreement. Finding that a truck was being loaded with concrete at the time the incident occurred, the judge said that it was artificial to argue that what was being done on the day fell outside the definition of 'Cartage Works'.[7]
2. Next the judge turned to the content of the obligations concerning the manner in which the Cartage Works were to be performed.
3. Clauses 1.1(d) and (f) of the Agreement required the applicant to perform Cartage Works 'safely, and in accordance with Boral's safety requirements as notified by Boral from time to time' and 'in accordance with any direction, policy, procedure or specification ... notified by Boral from time to time'. The judge held that the applicant had been notified of Boral's safety policies and procedures and that Mr Smith and Mr Pickering were aware of them. Mr Smith and Mr Pickering had received warnings about standing on the back of vehicles in the past, and had observed posters around the Swan Hill Plant which referred to 'Non-Negotiable Rules', which included never removing a guard without confirming that isolation was in place and never working within two metres of an unprotected edge without correct fall injury prevention systems.[8]
4. The judge concluded that the applicant had acted unsafely when performing the repair works due to the fact that Mr Smith had not confirmed that isolation was in place when the guard was removed and was working three metres above the floor without any fall injury prevention systems in place. Accordingly, her Honour found that the applicant had breached cl 1.1(d) and (f) of the Agreement.
5. The judge further determined that the applicant had breached cl 1.1(h) of the Agreement, on the basis that that clause required that the Cartage Works be performed in compliance with Applicable Laws, including the Occupational Health and Safety Act 2004 and that the applicant had acted in an unsafe manner.[9]
6. The judge accepted that Mr Smith had performed the works at the request of Boral, but rejected a submission made by the applicant that this disentitled Boral from terminating the contract.[10]

1. The judge found that Boral's termination of the Agreement was not unconscionable under either ss 20 or 21 of the ACL. The judge held that the applicant had failed to identify a special disadvantage in its dealings with Boral sufficient to establish a claim for unconscionable conduct. The judge considered that in any event, Boral's action was not offensive to conscience but was based on a reasonable and genuine belief that the applicant had engaged in unsafe practices.[11]
2. The judge also rejected an argument that Boral was estopped from terminating the Agreement on the basis that Boral had induced the assumption that it would not insist on strict compliance with the Agreement. The judge determined that the applicant had failed to prove a sufficiently clear representation or warranty from Boral which was capable of misleading a reasonable person that Boral would not terminate the contract for any unsafe practices.[12]

1. Clause 22.2 of the Agreement permitted Boral to immediately terminate the Agreement for any 'material and wilful breach of any of the terms of the agreement', upon written notice to the contractor. The judge concluded that, pursuant to cl 22.2, Boral was entitled to 'summarily terminate' the Agreement by sending its first letter dated 22 July 2015.[13]
2. The judge determined that the breaches of the Agreement were material in that the applicant breached numerous safety policies and the breaches were likely to lead to a major risk incident. She also found that the breaches were wilful in that they were intentional acts done in disregard of various safety obligations known to the applicant and its employees.[14]

1. On the assumption that Boral had unlawfully terminated the Agreement, the judge held that cls 3.1 and 3.2 of the Second Deed released Boral from the applicant's claim for breach of contract.[15] The judge rejected the applicant's submission that the purpose and legal effect of the Second Deed was solely to resolve claims for payment of work performed under the Agreement.[16]
2. The judge also rejected an argument that it would be unconscionable for Boral to rely upon the Second Deed. Her Honour determined that the applicant suffered no special disadvantage in negotiating the Second Deed, and that Mr Smith's own evidence was that he did not believe he needed to sign the Second Deed to settle debts owed but rather to receive money from the seller for the sale of the trucks.[17] The judge also found that it was not unconscionable for Boral to rely upon the indemnity in cl 3.2 of the Second Deed, on the basis that Mr Smith signed the Second Deed voluntarily and could have obtained legal advice before signing it.[18]

1. The judge concluded that Boral's 'no goodwill' policy was not unconscionable and that the applicant was not entitled to goodwill on the sale of its trucks.[19] This finding is not the subject of appeal, although the applicant does refer to the 'no goodwill' policy to support its argument that the proper construction of the Second Deed did not release the applicant's claim for wrongful termination.

1. The judge found that if Boral was not entitled to terminate the contract summarily then it would have terminated the agreement upon three months' written notice, which both parties had absolute discretion to do pursuant to cl 22.4 of the Agreement. The judge drew her conclusion, as a matter of inference, from the following evidence:[20]

(a) the rating of the seriousness of the incident by Boral as "Extreme" and a "Serious Harm Event; > > (b) the fact of the earlier disciplinary incident involving the plaintiff in 2014; > > (c) the fact that Boral sacked its own employee Mr Congram over the incident; and > > (d) Boral's oft stated concerns and requirements about ensuring safety procedures being followed at all times, in effect a zero-tolerance policy for unsafe work practices.

1. By ground 1, the applicant contends that the trial judge erred in concluding that the repair works undertaken on 9 July 2015 at the Swan Hill Plant satisfied the definition of 'Cartage Works' under cl 28 of the Agreement. If the repair works did not satisfy that definition, the applicant submitted, Mr Smith's and Mr Pickering's conduct in providing assistance to Boral in repairing the broken elevator chain could not have been conduct which could give rise to any right of immediate termination under cl 22.
2. The applicant argued that the judge was wrong for two reasons. First, the judge was incorrect in assuming that '[t]he truck was being loaded with concrete at the plant at the time the incident occurred'.[21] Secondly, as a matter of construction, the assistance the applicant's employees gave to Boral in repairing the elevator chain did not fall within the definition of 'Cartage Works' under the Agreement.

Whether a truck was being loaded at the time of the incident

1. Turning to the first reason, the assumed relevance of the elevator chain breaking during the course of loading the applicant's truck with concrete is the temporal and functional association between the task of repairing the elevator chain, on the one hand, and the delivery of Goods (ie, concrete), on the other. The trial judge relied on the strength of that association in concluding that the repair works constituted Cartage Works.
2. For reasons which we explain when we come to the construction of the Agreement, we do not consider that it is relevant whether the applicant's truck, or any other truck, was being loaded with concrete at the time that the elevator broke for the purposes of deciding whether, as a matter of construction, the repair works constituted Cartage Works within the meaning of the Agreement. Nevertheless, we will briefly deal with the factual point.
3. The only direct evidence concerning the loading of a truck at the time the elevator broke was evidence given by Mr Smith. Neither Mr Pickering nor Mr Congram gave evidence at the trial. Mr Smith's evidence, so far as it bore upon this question, was confined to his description, in evidence-in-chief, of his conversation with Mr Congram when he arrived at the plant shortly after 6:30 am on the morning of the incident. After parking his car, he walked over to the batch hut and said, 'Morning Neil, what's wrong?', to which someone - presumably Mr Congram, although the speaker was not identified - answered, 'The elevator's stopped. Half a load in, a little bit of cement in, half a load in the truck and the elevator has stopped'. Mr Smith said words to the effect, 'Well, let's have a look', and he proceeded to describe what they did next.
4. Boral did not oppose the admission of the hearsay evidence of Mr Congram's response. Mr Smith was not specifically asked about the accuracy of Mr Congram's response, nor was any further attention paid to whether in fact a truck was being loaded with concrete at the time that the elevator broke or whose truck it was.
5. A further piece of evidence bearing on the topic was an Incident Investigation Form prepared by Kirsten Gandert. Ms Gandert prepared the incident report following her inquiry into what occurred on 9 July 2015. It was tendered in evidence (without objection) and she was cross-examined about it at the trial. In the report, Ms Gandert recorded that the chain drive broke 'during batching the first load for the day' and that '[Tate Pickering]'s truck was under the sock'. The applicant's counsel confirmed that he did not challenge the accuracy of the report, nor did he specifically challenge Ms Gandert's two statements to which we have just referred.
6. To like effect, another document prepared by Boral following the incident, a 'Safety Alert', was admitted into evidence. It recorded that the agitator was 'halfway through being loaded' when the conveyor stopped. As we have explained, an agitator is the large revolving barrel on a concrete truck in which the concrete is carried.
7. From these bare facts we consider the judge was correct to infer that a truck was being loaded with concrete at the time that the elevator broke and that it was Mr Pickering's truck that was being loaded. The applicant submits that the evidence went no further than establishing that a truck was present at the time the elevator broke. For reasons which we have given, we do not accept that submission.
8. Whether or not, however, a truck, or indeed the applicant's truck, was being loaded with concrete at the time the elevator broke, has no bearing, in our view, on whether the subsequent task of assisting in the repair of the elevator chain constituted Cartage Works for the purpose of the Agreement. We will now explain that conclusion.

1. We start with the basic proposition that the rights and liabilities of parties to a contract are construed objectively. Accordingly, the meaning of terms in a contractual document is determined by what a reasonable person would have understood them to mean. That meaning normally requires consideration of the text of the document, the surrounding circumstances known to the parties and the purpose and object of the transaction.[22]
2. Importantly, Boral's right to 'immediately terminate' the Agreement pursuant to cl 22.2, as it purported to do, was conditional upon the applicant committing 'a material or wilful breach of any of the terms' of the Agreement. To terminate the Agreement, Boral relied upon the alleged breaches by the applicant of its obligations under cl 1.1(d), (f) and (h) of Part C, reproduced above at [15].
3. Before coming to the text of cl 1 it is helpful to observe other aspects of the Agreement to understand the context within which it appears. The Agreement commenced by identifying the parties and setting out some recitals under the heading 'Background'. These assist in understanding the purpose and object of the Agreement. By those recitals the parties recorded that Boral carries out a business of supplying concrete and that:

1. Boral and the Contractor wish to enter into this Agreement for the transportation of concrete by the Contractor for Boral upon the following terms and conditions.

1. The Contractor has agreed to provide a manned Vehicle suitable to perform the Cartage Works.
2. Part A of the Agreement set out terms relating to payments to be made under the Agreement. All such payments relate to cartage by reference to such things as 'Flag Fall', 'Volume/Distance/Rate' and other fees including for 'Waiting Time', 'Call Out Fee' and 'Standby Fee'. Costs such as a 'Standby Fee' and a 'Waiting Time' charge relate to fees and charges the Contractor is entitled to be paid for having to remain at a Boral site for the purpose of delivering Goods or waiting at a delivery site until the discharge of the Goods. None, however, refer to a fee for carrying out any non‑cartage works upon Boral's plant and machinery.
3. Part B is headed 'Details'. This part records numerous matters such as the commencement date, term, payment terms, insurance requirements and so forth.
4. Part C is headed 'General Terms and Conditions'. It contains 28 clauses including cl 1 'Cartage Works', cl 22 'Termination' and cl 28 'Definitions and Interpretation'.
5. As appears from the text of cl 1, that clause commences with the words 'The Contractor must perform the Cartage Works'. This clause is the principal substantive provision requiring the Contractor to perform the Cartage Works. The sub‑paragraphs beneath these opening words expand upon the manner by which the Contractor must perform those works.
6. So, for example, the Cartage Works must be performed 'in accordance with the terms of this Agreement' (cl 1.1(a)). This obligation requires the Contractor when delivering Goods - the primary meaning of Cartage Works - to observe other requirements in the Agreement such as cl 5, headed, 'Driver and Handling Requirements'. That clause requires the Contractor only to use drivers of the delivery vehicles who are approved by Boral (cl 5.1). Additionally, the Contractor's performance of the Cartage Works would also have to comply with cl 7, 'Vehicle Requirements'. For example, the Contractor must maintain the delivery vehicles in a roadworthy, safe and fully operable state (cl 7.1(a)); keep accurate logbooks as required by Applicable Laws and maintain a system for recording vehicle maintenance (cl 7.1(b), (c)); arrange for vehicles to carry Boral's livery and logos (cl 7.4); and expedite any repairs to the vehicles that are reasonably required by Boral (cl 7.7).
7. More closely related to the actual delivery tasks, the Contractor must also perform the Cartage Works in compliance with cl 9 ('Use of Vehicle'), cl 10 ('Loading and Delivery of Goods') and cl 8 ('Agitator Requirements'). Pursuant to those provisions, for example, the Contractor must not overload the vehicle (cl 9.1(a)) or undertake vehicle maintenance on a Boral site (unless approved by Boral) (cl 9.1(d)). After loading a vehicle and before leaving a Boral site, the Contractor must visually check the load (cl 10.1(a)); 'add water to bring the Goods to the required slump' (ie, consistency) (cl 10.1(c)); and maintain the agitator revolution rate as required in the Agreement (cl 10.2).
8. Although Boral is to supply and install the agitator on the Contractor's vehicle, the Contractor must, for example, take reasonable measures to control the build-up of hardened concrete in the agitator (cl 8.5). Unless the need for repair is caused by the Contractor, repairs to the agitator are otherwise the duty of Boral (cl 8.3).
9. Apart from the Contractor's obligation to maintain and repair the vehicle (that is, the prime mover, not the agitator), and the Contractor's limited obligation to repair the agitator, the Agreement imposes no other repair or maintenance obligation on the Contractor. Crucially, it is silent as to any obligation to carry out repairs to Boral's plant, even if the operation of the plant is a necessary precondition to the delivery of concrete by the Contractor.
10. In argument before this Court, as before the trial judge, considerable focus was given to the definition of Cartage Works in cl 28. Specifically, close attention was paid to the words 'and associated tasks performed by the Contractor for Boral in accordance with this Agreement'.
11. Boral submitted to the trial judge that any task 'with some subject matter, geographic or temporal connection with the delivery of concrete will be "associated" for that purpose'.[23] Without expressly adopting that submission, it appears that the judge accepted it to some extent when reasoning that because the truck was being loaded with concrete at the plant at the time the elevator chain broke, work done by the applicant's employees in assisting to remove and replace the chain was an 'associated task' within the definition.[24] Then, the judge went on to find, by not performing that task safely, in accordance with Boral's safety policies or in accordance with the provisions of the Occupational Health and Safety Act, the applicant breached cl 1.1(d), (f) and (h) respectively. The judge also found that those breaches were 'wilful and material', thus fulfilling the preconditions for Boral being able to immediately terminate the contract pursuant to cl 22.2.
12. In our view the judge was in error in this analysis. The phrase 'and associated tasks performed by the Contractor for Boral' did not enlarge the ambit of the meaning of Cartage Works by reference to any task which the Contractor performed for Boral which happened to have some functional or temporal association with a delivery of concrete. Full meaning needs to be given to the qualifying words, 'in accordance with this Agreement'. It is only those tasks associated with the delivery of concrete, performed in accordance with the Agreement, which fall within the defined term, Cartage Works.
13. It is obvious, in our view, why this limitation must be strictly observed. Clause 1.1 imposes the fundamental obligation on the Contractor under the Agreement for which it is entitled to receive the payments the Agreement prescribes. Failing to perform the delivery of Goods, and such associated tasks as the Agreement requires, would constitute a breach of the Agreement. Viewed another way, Cartage Works comprise those matters which Boral can insist that the Contractor perform as its part of the bargain, failing which Boral can resort to contractual remedies for breach.
14. If the Contractor should fail to repair its vehicles after Boral's reasonable request, Boral could take action for breach. If the Contractor, in connection with delivering concrete, should fail to maintain the agitator revolution rate as prescribed, or keep a proper accurate logbook for the vehicle, or not inspect the concrete at the point of delivery to ensure that the slump is as stated on the delivery docket, Boral would have a contractual remedy for non-performance or defective performance of the Agreement.
15. But nothing in the provisions of the Agreement gives Boral a contractual entitlement to insist that the Contractor repair Boral's own broken plant. No such obligation springs into being merely because the operation of Boral's plant is a necessary precondition to a truck being loaded with concrete to enable the Contractor to deliver concrete to a customer. That a Contractor should choose to assist Boral to repair its broken plant may, in a general way, be associated with a particular delivery task. But the Contractor's voluntary action does not convert a non-contractual task into a contractual task merely by reason of that temporal or functional connection.
16. In sum, the object and purpose of the Agreement is to create rights and liabilities on the parties so that Boral's concrete should be delivered by the Contractor, for payments specified and calculated by reference to necessary delivery tasks. The context of the substantive operating provision in cl 1, and the associated definition of 'Cartage Works' which that obligatory provision incorporates, demonstrates that there are a host of contractual tasks associated with the primary task of delivering concrete, including some repair and maintenance tasks, none of which extend to the performance of repairs to Boral's own plant. Those objects and that context provides no support whatsoever - and, in our view, counter-indicate - a construction of 'associated tasks performed by the Contactor for Boral in accordance with this Agreement' which would embrace repairs to Boral's plant.
17. For completeness, Boral relied upon a number of authorities which more particularly concern the construction and use of definitions within statutes and agreements.[25] None of the principles referred to in those cases assist Boral's argument.
18. As a result of our finding that the judge was wrong to conclude that the repairs to the elevator chain at Boral's plant carried out by Mr Smith and Mr Pickering were Cartage Works for the purpose of cl 1 of the Agreement, ground 1 must succeed.

Did the applicant breach the Agreement and enliven Boral's right of summary termination?

1. A corollary of our finding in respect of ground 1 is that grounds 2, 3, and 4 are unnecessary to decide. Since the repair works were not works that the applicant, as Contractor, was required to perform, even if such works were not performed safely (ground 2), were in breach of Boral's safety policies and procedures or in breach of Applicable Laws (grounds 3 and 4), these things could not give rise to a 'material or wilful breach of any of the terms of the Agreement' so as to engage the contractual right to immediately terminate the Agreement, upon which Boral relied.
2. Having (correctly in our view) withdrawn its notice of contention, Boral did not seek to invoke any alternative, stand-alone obligation to perform tasks (whether contractually required or not) safely or in compliance with Applicable Laws.

Was Boral precluded from terminating the Agreement for some other reason?

1. For similar reasons, it is unnecessary to decide grounds 5 and 6, as the premise upon which they are formulated does not apply. That is, it is unnecessary to consider whether, if the applicant was in breach of the Agreement, its breaches were 'material or wilful' (ground 5); or whether Boral would in any event have been precluded from 'taking advantage' of its own breaches consisting of its failure to have appropriate personnel to perform the repairs and, through Mr Congram, its failure to direct and supervise the repair works in a safety-compliant manner (ground 6).

Did the applicant release Boral from the claim for wrongful termination?

1. Both in its pleading and at trial, Boral relied on the Second Deed, and not the First Deed, as releasing it from any liability arising from the termination of the Agreement. That remained the position in this Court. The full terms of the Second Deed have been reproduced above (at [35]), but it is convenient to set out the critical provisions again:

3. Indemnity and Release

3.1 By its execution of this Deed, the Contractor agrees that, subject to payment by Boral to the contractor of the Final Payment Amount due for the period to the Termination Date, the Contractor will indemnify and release Boral from any and all liabilities, losses, claims, damages and expenses howsoever arising which may, directly or indirectly, arise from the Contract and the vehicles, equipment and drivers used and engaged in the provision by the Contractor of the transport services.

3.2 The Contractor acknowledges and agrees that effective on the termination date the Contract between Boral and the Contractor is at an end and the Contractor has no further claims or entitlements against Boral either now or in the future and hereby releases and indemnifies Boral against any and all such claims.

1. The judge commenced by observing that the terms of the deed are to be construed objectively, by reference to the text, context and purpose of the instrument. The judge found no ambiguity in the terms of cls 3.1 and 3.2, and held that the maxim of contra proferentem need not be applied.
2. The judge emphasised the words 'any and all liabilities' and 'directly or indirectly' appearing in cl 3.1, finding those words to be broad in scope. In her Honour's view, cl 3.2 furthered the scope of cl 3.1. The acknowledgment in cl 3.2 that the applicant had 'no further claims or entitlements against Boral either now or in the future' and that it 'releases and indemnifies Boral against any and all such claims' militated against a construction of the deed which would limit its operation only to final monies owed by Boral, as had been submitted by the applicant.
3. The judge accepted that a reasonable businessperson in the position of the parties would have understood cls 3.1 and 3.2 to cover a claim of wrongful termination by the applicant against Boral either at the time of execution or in the future. Accordingly, the judge found the applicant's wrongful termination claim fell within the scope of the release contained in cls 3.1 and 3.2 so that, even had the termination of the Agreement been in breach of its terms, the applicant had released Boral from any liability for that breach.
4. Ground 7 is expressed as follows:

The Learned Trial Judge erred in concluding that the Deed, and in particular clause 3.2, released Boral from claims for wrongful termination in circumstances in which:

(a) the works performed were not Cartage Works within the meaning of the Concrete Cartage Agreement (see Ground 1) such that any release is inoperative; or

(b) the terms of the release ought to have been construed to be insufficient to encompass the wrongful termination (including statutory claims for unconscionability) of the Concrete Cartage Agreement.

1. Before this Court, the applicant argued that, properly construed, the Second Deed only indemnified Boral for, and created a release in relation to, payments owing for Cartage Works as between Boral and the applicant, and to further release Boral in relation to any liability arising from the sale of the applicant's trucks to a proposed purchaser.
2. The applicant submitted that a relevant contextual circumstance for the making of the Second Deed (as with the First Deed) was that Boral maintained and enforced what was called a 'no goodwill' policy. Under that policy Boral would not permit a departing contractor, when selling to an incoming contractor a concrete truck to which Boral's agitator was attached, to include any component of goodwill in the sale price. In that context, the applicant submitted that the subject matter of the deed was, as stipulated in cl 1.1 of the Second Deed, 'To enable the Contractor to sell the vehicle within the Boral Fleet'.
3. In its submissions, Boral argued that the claims made by the applicant in the proceeding were 'plainly captured' by the broad language of both cl 3.1 and cl 3.2. In particular, cl 3.2 would have no meaning if there was a carve-out for wrongful termination of the contract. It was deliberately expressed as a wide release. Further, cl 2 expressly dealt with final payments, meaning that the indemnities and releases in cls 3.1 and 3.2 were dealing with matters going beyond final payments for Cartage Works.
4. Boral submitted that it was difficult to see any conceptual link between the wide indemnity and release, on the one hand, and the purpose of enabling the contractor to sell the vehicle within the Boral fleet, on the other. Boral accepted, however, that the Agreement had already been determined before 21 August 2015 by operation of Boral's purported exercise of its power of summary termination and its letter of 22 July 2015. The Agreement having already been terminated, Boral conceded that there must have arisen, implicitly, a new (informal) agreement between Boral and the applicant to permit the applicant to continue to provide cartage services (without using Mr Smith or Mr Pickering as drivers) until the applicant could complete the sale of the trucks (incorporating Boral's agitators) to the incoming contractor. Boral accepted that the First Deed operated until the Second Deed was executed, and the Second Deed superseded the first.

1. The language of cls 3.1 and 3.2 is wide. On its face, cl 3.1 provides for a release from any claims arising directly or indirectly from the 'Contract and the vehicles, equipment and drivers used ... in the provision by the Contractor of the transport services'. Clause 3.2 provides for a release of 'further claims' following the termination of the Contract. Not only are the words of wide scope, but the 'Contract' is not specifically identified.
2. The primary argument before us, as it was before the trial judge, concerned whether the wide general words of the release and indemnity found in cls 3.1 and 3.2 should be confined to apply only to specific subject matter. On this question, there is a settled line of authority.
3. In Grant v John Grant & Sons Pty Ltd ('Grant'),[26] the High Court authoritatively stated the circumstances in which a deed of release could be narrowed to its specified subject matter. Two principles of contractual interpretation and one equitable principle emerge from that case. We confine ourselves to the principles of interpretation.
4. The first is that the general words of a release are to be restrained by the particular occasion referred to in the recitals.[27] If there is 'introductory matter' in the deed, that will qualify the general words of the release.[28] The second, related, principle is that the general words of a release are limited to those things which were in contemplation of the parties at the time when the release was given.[29] The High Court explained that the second principle found earlier expression in the words of Taunton J in Upton v Upton,[30] put this way:

[T]he general words of a release may be limited by the particular matter out of which the release springs and the particular intent of the parties by whom the release is executed.[31]

1. As also explained by the High Court, the relationship between the two interpretive principles lies in the difference between controlling the general words by reference to an express recital and controlling them by reference to actual disputes which existed between the releasor and releasee.[32]
2. These principles have been accepted and applied consistently since the publication of Grant, including recently by the Full Court of the Federal Court in Wardman,[33] the New South Wales Court of Appeal in Reid,[34] and the Victorian Court of Appeal in Burness.[35]
3. In Wardman, Wheelahan J (Snaden J agreeing)[36] further explained the two principles as follows:[37]

This first principle may be seen as an emanation of the more general principle that the words of a contract are to be construed as a whole having regard to the purpose or objects to be secured by the contract. The first principle operates on the premise that there are express objects evident from recitals.

The second and differently expressed common law principle of construction referred to in the joint judgment in Grant ... is that the general words in a release are limited to those things which were in contemplation of the parties at the time when the release was given.

...

The second principle may also be seen as an emanation of the more general principle that in the construction process regard be had to the purpose to be secured by a contract, objectively ascertained. To the extent that such an examination extends to mutually known circumstances that are extrinsic to the words of the contract, the principles referred to by French CJ, Nettle and Gordon JJ in Mount Bruce Mining at [48]-[49] will apply -

• [48] Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.
• [49] However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". It may be necessary in determining the proper construction where there is a constructional choice ...

1. Turning first to the terms of the Second Deed, and in particular to its recitals, it is necessary to consider the two sentences which appear under the heading 'Background'. In the first sentence, the defined word 'Contract' appears to refer to an agreement under which the applicant provided 'transport services' to Boral over a period of time. That contract is otherwise undefined, so the text of the deed needs to be examined further for other signs of its meaning. The second sentence refers to a contract which the parties 'mutually agreed to terminate'. It is evident that the deed is intended to provide for the terms and conditions governing that termination.
2. Under the heading, 'Contract Termination', cl 1.1 simply states - 'To enable the Contractor to sell the vehicle within the Boral fleet'. Despite having the appearance of an operative provision within the deed, that clause reads more like a statement of purpose or the object of the deed itself, or at least a recital of a further relevant background fact.
3. In our view, cl 1.1 should be construed as specifying the purpose of the deed. It uses the language of purpose and appears as the first operative provision, suggesting it is to govern what follows. Read in that way, cl 1.1, together with the sentences under 'Background' to which we have referred, indicate that the subject matter of the deed is a contract under which the applicant provided transport services to Boral and which the parties mutually agreed to terminate to enable the applicant to sell its vehicle 'within' the Boral fleet.
4. Viewed in isolation, without any other knowledge of the circumstances affecting the parties, that description of the subject matter is not very illuminating as to the identity of the contract in issue and the rights and liabilities with which it was concerned.
5. The other provisions of the deed, apart from the clauses containing the releases and indemnity themselves, do not shed much further light on the matter. The three parts of cl 2 essentially provide for a final payment date for the services performed by the contractor (cl 2.1), and ensure that the deed concludes Boral's payment obligations under 'the Contract' (cl 2.2) and its liability for claims, damages or expenses arising from the performance of transport services and the vehicles, equipment and drivers used in their performance (cl 2.3). At most, those clauses indicate that the contract with which the deed is concerned is one pursuant to which transport services were performed, which could give rise to payment liabilities or other liabilities associated with the performance of those services, including in relation to vehicles and drivers used. Within those clauses the phrase 'Termination Date' might have provided a clue as to what contract was in question, had it been defined. But it was not.
6. Other clauses are neutral about the subject matter of the deed, being an entire agreement clause and one relating to obtaining legal advice.
7. In summary, applying the first of the interpretation principles in Grant, the object and purpose of the Second Deed, in so far as they may be gleaned from the recitals, was to provide for the terms and conditions of the termination of an unidentified contract that had the characteristics we have already identified. Beyond that, the subject matter of the deed, and the scope of the release and indemnity provided in cls 3.1 and 3.2, remain unclear and ambiguous.
8. Given the residual uncertainty as to the object of the deed, it is necessary to apply the second of the interpretation principles in Grant. Therefore we turn to the mutually known circumstances extrinsic to the words of the deed itself. Construing a contract objectively involves ascertaining what a reasonable person in the position of the parties would have understood the words to mean having regard to such matters as the surrounding circumstances known to the parties and addressed by the contract, and the purpose or objects to be secured by the contract.
9. Those circumstances can be rehearsed shortly. The parties entered a five year Cartage Contract on 1 August 2014 under which the applicant provided concrete delivery services for Boral in consideration of payments stipulated in that contract (ie, the Agreement). The Agreement was purportedly terminated by Boral, upon written notice given to the applicant on 22 July 2015, for an alleged material or wilful breach by the applicant. Boral and the applicant subsequently agreed that the termination would 'take effect' on 21 August 2015 to allow the applicant to sell its three trucks, with the Boral agitators attached (and with the Boral livery), to an incoming contractor, and they agreed further that in the meantime the applicant would continue to provide concrete delivery services to Boral albeit under a different driver arrangement to that which applied under the Agreement. On 21 August 2015, as required by Boral, the parties executed the First Deed, in identical terms to the Second Deed, seemingly in expectation of the completion of the sale of the applicant's trucks to the incoming contractor. That sale could not be completed at that time so, with Boral's consent, the applicant continued to provide concrete delivery services to Boral until 13 October 2015 when the truck sales were concluded. On 13 October 2015, again as required by Boral, the Second Deed was executed.
10. In the first letter to the applicant dated 22 July 2015, Boral recorded that it had informed the applicant the previous day that the Agreement 'has been terminated' due to 'wilful behaviour inconsistent with the terms of the contract'. Boral also informed the applicant that it would accept the on-sale of the three trucks to an approved party after an interview process, require a statutory declaration from the applicant that no goodwill component was involved in the sale price, and would also require a 'Deed termination' to 'end the Concrete Cartage Agreement'. According to Boral's account in that letter, the parties had 'agreed' that the termination would take effect on 21 August. It is quite clear, however, that the applicant had never agreed to the termination of the Agreement, and it was not suggested otherwise.
11. Boral's first letter on 22 July contained internal inconsistencies. On the one hand it informed the applicant that the Agreement 'ha[d] been terminated'. Its reliance upon the applicant's alleged 'wilful behaviour inconsistent with the terms of your contract' implied its reliance upon a right to immediately terminate the Agreement conferred by cl 22.2 (as was contended in the proceeding). That being the case, the written notice purported to effect the immediate termination of the Agreement. On that understanding, nothing further was required to achieve that result, including the agreement of the applicant or any deed of termination. On the other hand, the letter went on to say that a deed of termination would be required to end the Agreement and that the parties had 'agreed' that the termination would take effect on 21 August.
12. The terms of the first letter read together with the second letter make it clear, however, that the period of time between 22 July and 21 August (and ultimately to 13 October) was not required to 'terminate the Agreement' but to allow for the sale of the applicant's trucks to an approved Boral contractor. Thereafter, as we know, the applicant continued to provide concrete delivery services to Boral under a new driver arrangement that excluded Mr Smith and Mr Pickering until the sales were completed.
13. From these facts, the mutually known circumstances relevant to the genesis of the Second Deed are as follows:

(a) on 22 July 2015, Boral purported to immediately terminate the Agreement by giving the applicant notice of such termination under cl 22 of the Agreement; > > (b) despite the termination of the Agreement, the parties agreed that the applicant would continue to provide concrete delivery services to Boral in return for the payment of fees, under restricted driver arrangements, until such time as the applicant had secured a purchaser for its trucks with the agitators affixed and Boral had approved such purchaser; and > > (c) after 22 July the applicant continued to provide such services until 13 October 2015 when an approved purchaser bought the applicant's trucks and, as required by Boral, the applicant signed both a statutory declaration (declaring that it had not added any goodwill to the sale price of the vehicles) and the Second Deed.

14. Given our conclusion that the conditions for the exercise of the summary power of termination under cl 22 of the Agreement were not satisfied, the letter of 22 July, and the oral termination advised the day before, were not authorised by the Agreement and constituted repudiatory conduct on the part of Boral. In any event, however, the applicant took no steps to affirm the Agreement and it came to an end. Whether the Agreement was terminated unilaterally or by the acceptance of a repudiatory breach, is not critical to the question about the meaning and effect of the Second Deed. Objectively determined, both parties understood and proceeded on the basis that the Agreement had come to an end. It is not possible to conclude from the mutually understood facts that the Agreement remained on foot, and that was not Boral's position in this Court.
15. The agreement made on 22 July that the applicant would provide services was not a continuation of the Agreement but a new bargain. It was arrived at for a limited purpose, to allow the trucks to be sold, on different terms (both Mr Smith and Mr Pickering not being entitled to drive) and was for a different and defined period.
16. There was no suggestion that a release of past liability would be sought or required as the price of securing further work or Boral facilitating the sale of the trucks. Indeed no release was proffered until 21 August. On the other hand, Ms Coombs (Boral's then fleet manager) explained that a consequence of effecting the deed was to allow the transfer of the trucks to the new entity. As that fact illustrates, the making of a deed as contemplated by the 22 July letter which related to the post-termination services would neatly bring the intervening period to an end, provide a time for the sale of the vehicles and bring the relationship to a conclusion.
17. Imbued with the knowledge of these circumstances, a reasonable person in the position of the parties would have understood that the 'Contract' referred to under 'Background' in the Second Deed - that is, a contract said to have been terminated by mutual agreement between Boral and the applicant - was not the Agreement which had been terminated without mutual agreement but, rather, the short-term contractual arrangement entered into by the parties on 22 July (extended on 21 August) for the limited purpose of enabling the termination of their relationship by the final sale of the applicant's trucks.
18. Looking at the whole of the deed, discerned objectively, the intention of the parties in executing the Second Deed was to provide for the termination of that short-term contractual arrangement and to finalise any payment obligations due by Boral to the applicant for the performance of the concrete delivery services during that short-term contractual arrangement, and any liability for claims, damages or expenses associated with the performance of those services.
19. It follows, applying both interpretive principles in Grant, that cl 3.1 must be construed as only releasing and indemnifying Boral from liabilities, losses, claims, damages and expenses arising from the short-term contract made between the parties on 22 July 2015 and the vehicles, equipment and drivers used and engaged in the provision of concrete delivery services under that contract. So much is clear from the express reference in cl 3.1 to the release and indemnity being conditional upon final payment being made in respect of payments due under that contract (as provided in cl 2), and from express reference to 'the Contract'. Those words simply reinforce the construction that would otherwise have been given to the wide general words appearing in the provision, by virtue of the subject matter of the deed being limited to the termination of the short-term contractual arrangement rather than the Agreement.
20. Having reached that conclusion, the claim now pursued by the applicant could not possibly be characterised as arising, directly or indirectly, from that contract or the vehicles, equipment and drivers used and engaged in the applicant's provision of services under it. Clause 3.1 therefore has no present application.
21. Likewise cl 3.2 must be construed only as an acknowledgement that the short-term contract made between the parties on 22 July 2015 was at an end, and that the applicant had no further claims or entitlements against Boral in that context and released and indemnified Boral against any such claims. Again, the express reference in cl 3.2 to 'the Contract' reinforces the construction that would otherwise have been given to it due to the subject matter of the deed. Clause 3.2 therefore has no operation either.
22. In light of those conclusions, it is unnecessary to resolve the question whether, by virtue of the subject matter of cl 2 in particular, the releases and indemnities in cl 3 extend beyond claims for payments due under the Contract, or include claims for wrongful termination of the Contract. Those issues simply do not arise on our view of the identification of the relevant contract.
23. It follows that neither cls 3.1 nor 3.2 released Boral from, or indemnified Boral for, its liabilities to the applicant for having unlawfully terminated the Agreement by letter of 22 July 2015, purporting to rely on cl 22.2 of the Agreement. Being in breach of the Agreement and not being relieved of liability for that breach, Boral is prima facie liable to the applicant for any damage the applicant sustained by that breach.
24. We would therefore uphold ground 7(b). However, ground 7(a) is in our view misconceived. The release and indemnity in the Second Deed is not inoperative because the works performed were not Cartage Works within the meaning of the Agreement; rather they are inoperative because the deed does not operate with respect to the rights and liabilities arising from the Agreement at all.

Was it unconscionable for Boral to rely upon the release in the Second Deed?

1. Given our view on the operation of the Second Deed, ground 8 need not be considered in any detail. Nevertheless, we will state our views on the argument in summary form.
2. In its pleading the applicant alleged unconscionability in contravention of ss 20 and 21 of the ACL. In the main, the applicant sought to rely upon a supposed power imbalance between Boral and the applicant, and Boral's insistence that the applicant sign the Second Deed as a condition of its consent to the sale of the trucks. The applicant did not grapple with its own acknowledgement that it was offered but declined to obtain legal advice. It relied on the termination of the Agreement being unlawful as enough, in itself, to establish unconscionability, without explaining why. Other than these features, no attempt was made to address the principles necessary to establish unconscionability under the unwritten law (for the purpose of s 20) or any of the other matters referred to in s 22 of the ACL which may have been relevant to an analysis of unconscionability as referred to in s 21.
3. The judge justifiably concluded that the applicant had failed to establish sufficient special disadvantage in its dealings to make out its claim under s 20 or, in relation to its claim under s 21, to show that Boral's conduct was so far outside of societal norms of acceptable commercial conduct as to be offensive to conscience.[38]
4. In our view, the applicant failed to identify in a coherent way the elements of the alleged unconscionability relied upon in relation to this ground and it would not have succeeded.

Would Boral have terminated the Agreement on three months' notice?

1. Next, we must determine whether the judge was correct to find that, even if Boral's termination on 22 July 2015 was unlawful, Boral would have terminated the Agreement on three months' notice in any event, so that the applicant suffered no loss as a consequence of Boral's breach.
2. In short, the judge found that even if Boral had not immediately terminated the Agreement on 22 July 2015 in reliance upon its power of summary termination provided by cl 22.2, it would nonetheless have given the applicant a three month notice of termination under cl 22.4, exercisable at its absolute discretion, thus ending the Agreement in that time frame.
3. The mere existence of a right to terminate on notice does not automatically cap the amount of damages that may be awarded.[39] Whether Boral would have given the applicant three months' notice of termination under cl 22.4 of the Agreement presents an issue of fact. Boral called no evidence to this effect. No one from Boral was called to say what Boral would have done, and why. Nonetheless, the judge was prepared to infer from four facts we reproduced above (at [51]) that Boral would have terminated the Agreement.
4. In the hypothetical scenario that is being considered, it must be assumed that Boral would have understood that the applicant had not breached the Agreement by reason of what occurred on 9 July 2015.[40] We accept that this does not mean, of itself, that the applicant's conduct would have been ignored or that Boral would have adopted a more benign approach. But it is a significantly different scenario to the one Boral evidently believed itself to be facing on 21 and 22 July 2015. Not only is it to be assumed that Boral would have been advised, and understood, that it could not have lawfully terminated the Agreement, it is also to be assumed that it would have understood that the tasks Mr Smith and Mr Pickering performed on 9 July were not tasks which they were obliged to perform by the Agreement. That is, unlike Mr Congram, they were merely performing gratuitous services to assist Boral.
5. The applicant, and before its incorporation Mr Smith, had a very long combined history of involvement with Boral. Only 11 months before the incident, Boral had again entrusted the task of delivering its concrete in and around Swan Hill exclusively to the applicant. It had done so after the occurrence of the earlier disciplinary incident which had occurred in June of 2014. From the evidence led at trial, it cannot be ascertained whether Boral's decision to terminate the applicant was made after considering other possible responses, short of termination, or to what extent the decision might have been finely balanced. There was no evidence that Boral was otherwise looking for some reason to rid itself of the applicant or Mr Smith.
6. It is plain that the services provided by the applicant remained valuable to Boral and would have needed to continue. Indeed, Boral needed Mr Smith to make a further delivery mid-way through the meeting that was called to terminate the Agreement. If Boral terminated the Agreement on three months' notice it would have had to secure another contractor. It could not have assumed that the applicant would make its own vehicles available to a new contractor. In these circumstances, getting rid of a long standing contractor would potentially involve an exercise of cutting off its nose to spite its face.[41]
7. Since finding the facts in question did not involve the trial judge relying on any advantage by reason of seeing and hearing witnesses, we are in as good a position as the trial judge to draw any inference from those facts.[42] In the absence of any direct evidence on this point, we would not infer that it was more probable than not that Boral would have terminated the five year contract one year into its term, because of the incident, if it understood that the applicant had not breached that contract.
8. Even if we postulate a situation in which all the facts remain the same except for Boral's understanding as to the nature of its legal right to terminate the Agreement summarily,[43] Boral failed to establish the probability of its alternative factual hypothesis. Boral's failure to adduce any direct evidence on this point is, in our view, fatal to any finding in its favour.

1. In consequence of its success on the appeal, the applicant seeks an order setting aside the judge's dismissal of its claim and substituting an order that there be judgment for the applicant in the sum of $818,772 with interest and costs, or alternatively that the matter be remitted to the County Court for the assessment of loss and damage.
2. Since the judge concluded that the applicant had not established its claim of unlawful termination of the Agreement, and that the claim was released in any event, and further that Boral would have terminated on three months' notice, the judge found there was 'no need to assess the [applicant's] putative loss and/or damages claim'.[44]
3. The parties did not address the quantum of damages in their respective written submissions. In oral submissions, the applicant submitted that the assessment of its loss and damage was not contested at trial, given that it had tendered an expert report from a chartered accountant, Michael Jensen, and Boral had not tendered any evidence to contest Mr Jensen's opinion. Boral orally submitted before us that merely because it did not tender evidence to contest Mr Jensen's opinion did not mean that it did not challenge his assessment of loss and damage, and indicated that it did indeed contest his conclusions. Boral submitted that the appropriate course was, having made orders setting aside the judge's order, this Court should remit the proceeding to the County Court for the assessment of damages.
4. The final question, therefore, is whether this Court is able to assess damages or whether that assessment should be remitted to the County Court.
5. In a report dated 11 November 2020, Mr Jensen expressed his opinion as to loss and damage on the premise that the loss was constituted by the loss of the value of the applicant's business including physical property and goodwill, as a going concern, at the date of termination. The quantification of loss was put as follows:

...the indicative value of the Business Goodwill at 21 July 2015 is in the range of $353,000 - $424,000.

Total Value of the Business as a going concern at 21 July 2015 inclusive of physical property is between $638,000 - $709,000.

1. In a second report dated 22 April 2021, Mr Jensen expressed his opinion on the value of the applicant's loss conceived on a different measure. In his second report he assessed the applicant's loss on the basis that its loss was the revenue it would have earned had the Agreement been performed. On the basis that the Agreement would continue to run for the balance of its term plus the three years of potential extensions, a total of eight years, Mr Jensen assessed the net present value of the lost revenue for the remaining seven years as at 22 July 2015 at $818,772.
2. There are a number of issues that could be raised, about which we have heard no argument. They include:

(a) Whether the correct basis upon which to assess the loss of bargain is to assess the net present value of the income the applicant would have earned for the life of the contract. > > (b) If so, how long should the entitlement to income be projected? What facts should be taken into account on that analysis? > > (c) Should Mr Jensen's figures be accepted as correct?

3. It is not clear to us whether Boral disputed the conceptual measure of loss underlying Mr Jensen's second valuation but merely took issue with the calculation and some of the assumptions made. That measure is the basis upon which the applicant sought an order for damages in this Court.
4. In this state of affairs, we are not able to make a determination of damages in the absence of full argument on both facts and law. Moreover, we consider that because the judge declined to make any of the necessary primary factual findings, such as how long the contract might have proceeded, it is not appropriate that we should undertake that task as if at first instance.
5. In all the circumstances it is appropriate to remit to the County Court the question of the assessment of damages to the applicant on the footing that:

(a) Boral breached the Agreement by wrongfully purporting to exercise a right of immediate termination; > > (b) Boral's breach prevented the applicant from performing the Agreement and earning revenue from that performance; > > (c) Boral failed to prove that it would have terminated the Agreement upon three months' written notice; > > (d) the applicant is entitled to judgment, with costs, with damages to be assessed; and > > (e) the parties led the evidence at trial upon which they intended to rely for the assessment of loss and damage should the applicant succeed on its claim.

6. Having reached these conclusions, we will order that:

(a) the applicant have leave to appeal and the appeal be allowed; > > (b) the orders made by the County Court on 3 June 2022 be set aside and in their place there be judgment for the plaintiff (applicant in this Court) for a sum of damages to be assessed; > > (c) the proceeding be remitted to the County Court for the assessment of damages and orders as to costs; and > > (d) the respondent pay the applicant's costs of the appeal, including the application for leave to appeal.

[1] Competition and Consumer Act 2010 (Cth), sch 2.

[2] Described as the Second Deed because, as explained below, the parties entered into a prior identical deed.

[3] RW & ME Smith Pty Ltd v Boral Resources (Vic) Pty Ltd [2022] VCC 729 ('Reasons').

[4] In these reasons, proposed grounds of appeal are referred to as grounds of appeal.

[5] (1959) 101 CLR 298; [1959] HCA 8.

[22] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, [40]; [2004] HCA 52.

[25] Gibb v Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628, 638 (Barwick CJ, McTiernan and Taylor JJ); [1966] HCA 74; Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, [84], [103] (McHugh J); [2004] HCA 12; Halford v Price (1960) 105 CLR 23, 26-28 (Dixon CJ; Menzies and Windeyer JJ agreeing), 32 (Fullagar J); [1960] HCA 38; Segelov v Ernst & Young Services Pty Ltd [2015] NSWCA 156; (2015) 89 NSWLR 431, [88] (Gleeson JA, Meagher and Leeming JJA agreeing); [2015] NSWCA 156; Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450, 452; The Registrar of Titles of the State of Western Australia v Franzon [1975] HCA 41; (1975) 132 CLR 611, 618 (Mason J, Barwick CJ and Jacobs J agreeing); [1975] HCA 41; Parmar v Minister for Immigration and Citizenship [2011] FCA 760; (2011) 195 FCR 186, [18]; [2011] FCA 760.

[26] Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23 ('Grant').

[27] Grant [1954] HCA 23; (1954) 91 CLR 112, 123 (Dixon CJ, Fullagar, Kitto and Taylor JJ), citing Payler v Homersham [1815] EngR 1083; (1815) 4 M & S 423; 105 ER 890.

[28] Grant [1954] HCA 23; (1954) 91 CLR 112, 123 (Dixon CJ, Fullagar, Kitto and Taylor JJ), citing Lampon v Corke (1822) 5 B & Ald 606, 611 106 ER 1312, 1314 (Best J).

[29] Grant [1954] HCA 23; (1954) 91 CLR 112, 123-4.

[30] Upton v Upton (1832) Dow PC 400; 36 RR 817.

[31] Upton v Upton (1832) Dow PC 400, 406; 36 RR 817, 821.

[32] Grant [1954] HCA 23; (1954) 91 CLR 112, 123 (Dixon CJ, Fullagar, Kitto and Taylor JJ).

[33] Wardman v Macquarie Bank Ltd [2023] FCAFC 13 ('Wardman').

[34] Reid v Commonwealth Bank of Australia [2022] NSWCA 134.

[35] Burness v Hill [2019] VSCA 94 ('Burness').

[36] Wardman [2023] FCAFC 13, [290].

[37] Wardman [2023] FCAFC 13, [207]-[209]. See also Burness [2019] VSCA 94, [71]-[72] (Kaye, McLeish and Hargrave JJA).

[38] Citing Australian Securities and Investment Commission v Kobelt (2019) 267 CLR 1, 39 [92] (Gageler J); [2019] HCA 18.

[39] Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151, 175 [36] (Bell, Keane and Nettle JJ); [2020] HCA 27 ('Berry').

[40] Wills Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 318, [122] (Macfarlan JA) ('Wills').

[41] Berry [2020] HCA 27; (2020) 271 CLR 151, 176 [38] (Bell, Keane and Nettle JJ).

[42] Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9.

[43] Wills [2015] NSWCA 318, [122].