Abstract

Article

Proof of Existence and terms of Contract.

An objective approach is applied to determine the existence of an agreement, usually, by offer and acceptance: Tallerman & Co v Nathan’s Merchandise (Vict) (1957) 98 CLR 93; MacRobertson Miller Airline Serv v Commr of State Taxn (WA) (1975) 133 CLR 125, but a failure to identify an offer and an acceptance does not necessarily mean that there is no contract. It may be inferred from the parties’ conduct. And evidence of communications between the parties may be admitted in order to determine the formation or otherwise of a contract and its terms objectively. Bechini v IUS Pty Limited (ABN 93 003 359 279 (In Liquidation) [2019] NSWSC 427

Provision of and Incorporation of Proposal

Generally, the incorporation of the proposal into an insurance contract will be ineffective, unless there is an express provision to that effect: Deaves v CML Fire and General Insurance Co Ltd (1979) 143 CLR 24; [1979] HCA 12, at 37. If it expressly states that it does not bind the proponent or the insurer to complete the insurance, the form’s provision to the proponent is not an offer capable of acceptance, nor, it has been suggested, even an invitation to treat. Bechini v IUS Pty Limited (ABN 93 003 359 279 (In Liquidation) [2019] NSWSC 427. But the proponent’s submission of the proposal to the insurer would amount to an offer, which would be accepted by the insurer’s issue of a policy in accordance with its request.

Relating to

Generally, the term “relating to” is a term of wide import and is used to describe a relationship between one thing and another. It does not need to be direct, causal or temporal, and it can be a relationship with a contemplated future event, a past event or a present circumstance. It has similar meaning, but probably not quite as wide, as the words “in connection with”; see R v Isaac; Ex parte Transport Workers’ Union of Australia [1985] HCA 80; (1985) 159 CLR 323 at 334-335; [1985] HCA 80; Re Our Town FM Pty Limited and Newcastle Stereo Radio Pty Limited v Australian Broadcasting Tribunal and Newcastle FM Pty Limited [1987] FCA 301; (1987) 16 FCR 465 at 479-480; [1987] FCA 479. However, the mere fact that the term “relating to” refers to a connection between one thing and another, does not require acceptance of the proposition that the two things connected are different. The word “this” is a word of relation that does not suggest separateness. Bechini v IUS Pty Limited (ABN 93 003 359 279 (In Liquidation) [2019] NSWSC 427

Rectification

It is the document that is rectified; not the contract. The Court does not remake the contract, but equity remedies a common mistake so that the document takes its intended form as to the content of the instrument. It can be applied if there is a continuing common intention that can be inferred, though common intention is not always necessary. The party seeking rectification must advance ‘convincing proof’ that the written contract does not embody the final intention of the parties. The omitted ingredient must be capable of such proof in clear and precise terms. Pukallus v Cameron  (1982) 180 CLR 447 at 452. It is anissue of conscientious behaviour. Rectification is granted by rewriting the contract, but to the minimum extent, so that it no longer departs from the common intention of the parties. The rewriting is undertaken literally by identifying the precise words that are to be replaced, those that are to be inserted, and where. The common intention of the parties has to relate to what the mutual rights and obligations of the parties will be, and has to be sufficiently well-defined and clear to be able to be stated in words that can be incorporated in a contract. Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407