MR Hornibrook (Pty) Ltd v Eric Newham (Wallerawang) Pty Ltd

MR Hornibrook (Pty) Ltd v Eric Newham (Wallerawang) Pty Ltd

The parties mutually intended that payments under the sub-contract would be adjusted in line with adjustments under cl. 4 of the head contract, but omitted the necessary clause by mutual mistake. Clause 8 did not prevent rectification, and although the council had not approved the rectified contract, the condition could be treated as waived or no longer significant because the plaintiff performed and the defendant accepted the work on the rectified terms. Alternatively, the plaintiff could recover for the work accepted, with the parties' bargain providing the measure of value. The appellant was therefore entitled to rectification and judgment for the outstanding balance.

Jurisdiction
Australia
Procedural Posture
Civil Appeal / Appeal and Cross Appeal From the Supreme Court of Queensland
Outcome
Appeal allowed with costs. Cross-appeal dismissed with costs.
Legal Topics
['rectification' 'mutual Mistake' 'sub Contract' 'suspensory Condition' 'waiver' 'payment for Work Done']
['contract Law' 'equity' 'restitution'] ['rectification' 'mutual Mistake' 'sub Contract' 'suspensory Condition' 'waiver' 'payment for Work Done']

Case Brief

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Procedural Posture

Civil Appeal / Appeal and Cross Appeal From the Supreme Court of Queensland

Legal Issues

  1. 1 ['Whether the sub-contract should be rectified to include a clause carrying on to the plaintiff any adjustment made in payments to the defendant under cl. 4 of the head contract for work done by the plaintiff.' "Whether cl. 8 of the sub-contract, making the agreement subject to the Toowoomba City Council's written approval, prevented rectification or enforcement of the rectified contract." 'Whether the plaintiff was entitled to payment for work done and accepted by the defendant if the suspensory condition was not fully satisfied.']

Ratio Decidendi

The parties mutually intended that payments under the sub-contract would be adjusted in line with adjustments under cl. 4 of the head contract, but omitted the necessary clause by mutual mistake. Clause 8 did not prevent rectification, and although the council had not approved the rectified contract, the condition could be treated as waived or no longer significant because the plaintiff performed and the defendant accepted the work on the rectified terms. Alternatively, the plaintiff could recover for the work accepted, with the parties' bargain providing the measure of value. The appellant was therefore entitled to rectification and judgment for the outstanding balance.

Court Disposition

Appeal allowed with costs. Cross-appeal dismissed with costs.

Orders

  • ['Agreement between the appellant and the respondent dated 23rd January, 1963 rectified by including therein, as cl. 3A, the following clause: The total amount of this contract, calculated in accordance with the schedule of rates hereto, shall be adjusted by the same percentage as the total amount of the head...