C H Magill & 1 Or v National Australia Bank Limited [2001] NSWCA 221

Reported Decision : [2001] Aust Contract R 90-131

New South Wales Court of Appeal

CITATION : C H Magill & 1 Or v National Australia Bank Limited [2001] NSWCA 221 revised - 13/08/2001 FILE NUMBER(S) : CA 40607/00 HEARING DATE(S) : 12/07/01, 13/07/01 JUDGMENT DATE : 13 August 2001

PARTIES : Colin Harold Magill & Deirdre Evelyn Magill v National Australia Bank Limited JUDGMENT OF : Meagher JA at 1; Heydon JA at 2; Ipp AJA at 4

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 11011/96 FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :

COUNSEL : G K Burton (Appellants) J W Stevenson (Respondent) SOLICITORS : Leary & Company (Appellants) Mallesons Stephen Jaques (Respondent) CATCHWORDS : CONTRACT - Construction & Interpretation - Extrinsic evidence - Parol evidence rule - Ambiguity exception - Admissibility of prior negotiations to construe loan contract - Conduct of parties after contract made - Not admissible to aid construction or resolve ambiguity - Implied terms - Whether necessary for business efficacy - Term accelerating interest repayments not to be implied - No implied term to allow combination of loan and other accounts or capitalisation of interest. D Commercial Banking Company of Sydney Limited Merger Acts 1982 LEGISLATION CITED : Australian Rural Bank Act 1977 (Cth) Primary Industry Bank Act Codelfa Construction Pty Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 Hoyt's Pty Limited v Spencer (1919) 27 CLR 133 Hide & Skin Trading Pty Limited v Oceanic Meat Traders Limited (1990) 20 NSWLR 310 Spunwill Pty Limited v Bab Pty Limited (1994) 36 NSWLR 290 Sportsvision Australia Pty Limited v Tallglen Pty Limited (1998) 44 NSWLR 103 James Miller & Partners Limited v Whitworth Street Sales (Manchester) Limited [1970] AC 583 CASES CITED: FAI Traders Insurance Company Limited v Savoy Plaza Pty Limited [1993] 2 VR 343 Hamfray Carpets Australia Pty Limited v Hycraft Carpets Pty Limited (1996) ACLC 555 Winstonu Pty Ltd t/as Harvey Norman Electrics v Pitson [2001] FCA 541 L Schuler AG v Wickman Machine Tools Sales Limited [1974] AC 235 Deverell v Peter Johnson Earthmoving Pty Limited (1991) 32 FCR 268 National Bank of Greece SA v Pinios Shipping Company No 1 [1990] 1 AC 637 Liverpool City Council v Irwin [1977] AC 239 DECISION : (1) The appellants' appeal be upheld and the orders made by the Master set aside (2) The respondent's application to amend its Further Amended Statement of Claim be refused (3) The respondent file written submissions within 14 days hereof, setting out the notional PIBA account, drawn up as indicated and in accordance with the findings. The account should identify, by reference to paragraph and page numbers of the particular volumes of the appeal books, the evidence that supports each item in the account (4) The appellants file written submissions in like form and on the same basis within 14 days of receipt of the respondent's submissions (5) The parties, at the same time as filing the written submissions in orders 3 and 4, should file submissions as to the date by which a writ of possession should issue and as to any question of costs that might arise, and should file short minutes or orders that each contends should be made (6) The stay of execution is extended until further order.