Liebe v Molloy [1906] HCA 67

Liebe v Molloy [1906] HCA 67

The necessary inference of fact as to whether the employer promised to pay for extras was not drawn by the umpire. This factual determination must be made by the umpire; the court cannot draw it. The matter is to be remitted to the umpire to determine whether, irrespective of the express contract terms, the employer or his agent promised expressly or by implication to pay for the works as extras.

Parties
Appellant/plaintiff: Liebe; Respondent/defendant: Molloy
Jurisdiction
Australia
Judgment Date
29 October 1906
Procedural Posture
Appeal / Decision on Appeal From the Full Court of Western Australia
Outcome
award remitted to umpire
Legal Topics
Building Contracts, Extras, Implied Contract, Arbitration Awards, Remittance of Award
Contract Law Arbitration Building Contracts Extras Implied Contract Arbitration Awards Remittance of Award

Case Brief

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Parties

Liebe

Appellant/plaintiff

Molloy

Respondent/defendant

Procedural Posture

Appeal / Decision on Appeal From the Full Court of Western Australia

Legal Issues

  1. 1 Whether extras not ordered in writing as required by contract can be recovered under an implied contract
  2. 2 Whether the court has the power to draw necessary inferences of fact
  3. 3 Whether the matter should be remitted to the arbitrator for findings of implied contract to pay for extras

Ratio Decidendi

The necessary inference of fact as to whether the employer promised to pay for extras was not drawn by the umpire. This factual determination must be made by the umpire; the court cannot draw it. The matter is to be remitted to the umpire to determine whether, irrespective of the express contract terms, the employer or his agent promised expressly or by implication to pay for the works as extras.

Court Disposition

award remitted to umpire

Orders

  • Order appealed from discharged
  • Award remitted to the umpire for reconsideration of whether the respondent, by himself or agent, promised to pay for the works as extras