MWH Australia Pty Ltd v Wynton Stone Australia Pty Ltd (in liq)

[2010] VSCA 245

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction
3. › Deed of Novation
4. › Release clause
5. › Whether release of 'all claims and demands whatsoever in respect of the contract' intended to cover breaches occurring before date of Deed
6. › Whether release intended to cover liability in tort for negligent performance of contractual obligations
1. Contract
2. › Construction
3. › Intention of parties
4. › Objective theory of construction
5. › Reasonable business persons in the position of the parties
6. › Reading clause in context of whole document
1. Contract
2. › Warranty
3. › Whether acknowledgment in Deed of Release that work performed in accordance with contract amounted to contractual warranty
4. › Distinction between promissory warranty and representation of fact
1. Trade Practices
2. › Misleading and deceptive conduct
3. › Section 52 Trade Practices Act 1974 (Cth)
4. › Whether statement of fact embodied in warranty amounted to engaging in misleading and deceptive conduct
5. › Causation
6. › Reliance
7. › Whether causation able to be inferred in absence of direct evidence of reliance
8. › Trade Practices Act 1974 (Cth), ss 4(2)(a), 51A, 52, 82, 87

Quick Take

A release from 'all claims and demands whatsoever in respect of the contract' in a deed of novation does not necessarily operate retrospectively; it must be read in context of the whole deed, including effective date and payment provisions, and construed according to what reasonable business persons in the position of the parties would understand. The phrase 'in respect of the contract' is broad enough to encompass tortious liability for negligent performance of contractual obligations. An acknowledgment in a deed that services have been performed in accordance with the contract can constitute a contractual warranty and, if false, misleading or deceptive conduct under s 52 TPA. However, causation for a s 52 claim requires more than bare assertion where the claim was not properly developed at trial.