Westpac Banking Corporation v Newey [2013] NSWSC 847

Westpac Banking Corporation v Newey [2013] NSWSC 847

The inclusion of Lucky Poulos in the definition of 'Prospective Applicants' created a textual anomaly because he was a former St George employee terminated by St George and would not fall within Clause 1(d) if 'Westpac' meant only Westpac Banking Corporation. That anomaly made Clause 1(d) ambiguous, and in its lexical, grammatical and syntactical context and the known objective fact of Poulos' status, 'Westpac' should be construed as 'Westpac or any of its related bodies corporate'. The prior correspondence also provided clear and convincing evidence of an antecedent consensus supporting rectification if construction had not resolved the matter. No discretionary or doctrinal objection,...

Jurisdiction
Australia
Judgment Date
05 July 2013
Procedural Posture
Application by the Plaintiff to Enforce a Contractual Restraint and Seek Declarations as to Construction Or, Alternatively, Rectification / Principal Judgment After Hearing in the Equity Division Expedition List
Outcome
Declarations made that 'Westpac' in Clause 1(d) of both deeds is to be construed as 'Westpac or any of its related bodies corporate'; injunction granted against the first defendant; first to tenth defendants ordered to pay the plaintiff's costs.
Legal Topics
['contractual Construction' 'ambiguity' 'rectification' 'contractual Restraint' 'entire Agreement Clause' 'injunction']
['contract Law' 'equity'] ['contractual Construction' 'ambiguity' 'rectification' 'contractual Restraint' 'entire Agreement Clause' 'injunction']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application by the Plaintiff to Enforce a Contractual Restraint and Seek Declarations as to Construction Or, Alternatively, Rectification / Principal Judgment After Hearing in the Equity Division Expedition List

Legal Issues

  1. 1 ["Whether the word 'Westpac' in Clause 1(d) of each deed should be construed to mean 'Westpac or any of its related bodies corporate'." "Whether the deeds should alternatively be rectified by inserting words extending Clause 1(d) to Westpac's related bodies corporate." 'Whether the first defendant should be restrained from acting in Local Court proceedings brought by Michael Pastega and Carolyn Judith Colley against Westpac.' 'Whether the entire agreement clause or other matters raised by Gillis Delaney barred construction by context or rectification.']

Ratio Decidendi

The inclusion of Lucky Poulos in the definition of 'Prospective Applicants' created a textual anomaly because he was a former St George employee terminated by St George and would not fall within Clause 1(d) if 'Westpac' meant only Westpac Banking Corporation. That anomaly made Clause 1(d) ambiguous, and in its lexical, grammatical and syntactical context and the known objective fact of Poulos' status, 'Westpac' should be construed as 'Westpac or any of its related bodies corporate'. The prior correspondence also provided clear and convincing evidence of an antecedent consensus supporting rectification if construction had not resolved the matter. No discretionary or doctrinal objection,...

Court Disposition

Declarations made that 'Westpac' in Clause 1(d) of both deeds is to be construed as 'Westpac or any of its related bodies corporate'; injunction granted against the first defendant; first to tenth defendants ordered to pay the plaintiff's costs.

Orders

  • ["Declare that the word 'Westpac' in Clause 1(d) of the deed between the plaintiff and the first to eighth defendants executed in April 2011 should be construed to read 'Westpac or any of its related bodies corporate'." "Declare that the word 'Westpac' in Clause 1(d) of the deed between the plaintiff and the ninth...