MAAG Developments Pty Ltd v Oxanda Childcare Pty Ltd

[2018] VSCA 289

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction and interpretation
3. › Commercial contracts
4. › Termination clauses
5. › Whether words in termination clause should be disregarded as redundant surplusage
6. › Whether clause inconsistent with contractual scheme as a whole
7. › Fitzgerald v Masters (1956) 95 CLR 420 applied
1. Contract
2. › Construction and interpretation
3. › Commercial contracts
4. › Correction of mistakes in language
5. › Whether something has gone wrong with the language
6. › Power of court to omit words to avoid absurdity or inconsistency
1. Appeal
2. › New arguments on appeal
3. › Whether applicant permitted to raise argument not expressly put to trial judge
4. › Pure question of law
5. › No prejudice to respondent
6. › Commercial Court context

Quick Take

Where a termination clause in an agreement for lease contains a condition that is inconsistent with the contractual scheme as a whole — here, a requirement that settlement not have occurred when the contractual structure required settlement to occur simultaneously with entry into the agreement — the inconsistent words may be disregarded as redundant surplusage under Fitzgerald v Masters. A new construction argument may be raised on appeal where it is a pure question of law, the substance of the argument was before the trial judge, and no prejudice is identified.