Frewin v Adecco Industrial Pty Limited [2015] NSWSC 1568

Supreme Court New South Wales

Medium Neutral Citation: Frewin v Adecco Industrial Pty Limited [2015] NSWSC 1568 Hearing dates: 12–15 October 2015 Decision date: 23 October 2015 Jurisdiction: Common Law Before: Adamson J Decision: 1. Judgment for Adecco Australia Pty Ltd (the cross-defendant) on the cross-claim brought by CSR Ltd and Holcim (Australia) Pty Ltd (the cross-claimants).

2. Unless an application for a different order is made in writing to my Associate within seven days, order the cross-claimants to pay the cross-defendant's costs. Catchwords: CONTRACT – whether contract for indemnity remained in force and binding on parties after expiry of agreement – whether conduct of parties such that they ought be taken to have extended agreement after expiry and ought be bound by terms – whether sufficient evidence to conclude that performance of the arrangement between the parties continued in the same way following expiry of agreement – lack of evidence

CONTRACT – construction of indemnity clause – context to be determined as at date of contract – indemnities to be construed against the indemnified

CONTRACT – power of courts to make informal rectification of documents that contain obvious errors Cases Cited: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 Ankar Pty Ltd v National Reece Westminster Finance (Australia) Ltd (1987) 162 CLR 549 Bofinger v Kingsway Group Ltd [2009] HCA 44; 239 CLR 269 Brambles Ltd v Wail; Brambles Ltd v Andar Transport Pty Ltd [2002] VSCA 150; 5VR 169 Cawsand Pty Ltd v Normans Wines Pty Ltd (Supreme Court (Vic), Brooking J, 21 June 1989, unrep) Chan v Cresdon Pty Ltd (1989) 168 CLR 242 Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 Optus Networks Pty Ltd v Gilsan (International) Ltd [2006] NSWCA 171 Re CSR Ltd [2003] FCA 82 Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52; 219 CLR 165 State of New South Wales v Tempo Services Ltd [2004] NSWCA 4 Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; 164 CLR 387 Texts Cited: Cheshire and Fifoot, Law of Contract (10th Aust. Ed, 2012, LexisNexis Butterworths) Category: Principal judgment Parties: David Brian Frewin (Plaintiff) Adecco Industrial Pty Limited (First Defendant) CSR Limited (Second Defendant) Holcim (Australia) Pty Limited (Third Defendant) Adecco Australia Pty Limited (Cross-defendant) Representation: Counsel: D Campbell SC/SJ Longhurst (Plaintiff) D Kelly (First Defendant) HJA Neal (Second & Third Defendants) DA Lloyd (Cross-defendant)