Surfstone Pty Ltd & Anor v Morgan Consulting Engineers Pty Ltd

[2016] QCA 213

Queensland Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Formation
3. › Incorporation of terms by reference
4. › Unsigned document
5. › Fee proposal referring to standard industry terms
6. › Whether terms incorporated in full
7. › Whether phrase 'generally in accordance with' sufficient to incorporate all terms
1. Contract
2. › Formation
3. › Incorporation of terms by reference
4. › Unusual or onerous terms
5. › Whether exemption clause required to be specifically drawn to attention of other party
6. › Whether clause appropriate to contract of the type in question
1. Contract
2. › Construction and interpretation
3. › Objective theory of contract
4. › Meaning of 'commission' and 'generally in accordance with'
5. › Construction of fee proposal incorporating external terms
1. Evidence
2. › Admissibility
3. › Relevance
4. › Evidence of industry practice and common usage of standard terms
5. › Whether evidence of common use of standard contractual terms relevant to incorporation question

Quick Take

A fee proposal stating that 'the commission would be generally in accordance with' a set of standard industry terms is sufficient to incorporate those terms in full, including limitation of liability clauses, where the word 'commission' refers to the whole engagement. The ACEA Guideline Terms of Agreement (including the one-year limitation clause in clause 4.3) are sufficiently common in the engineering industry that they need not be specifically drawn to the attention of the other party. The phrase 'generally in accordance with' does not create such uncertainty as to prevent incorporation; it means the standard terms apply except where the proposal sets different or additional terms.