CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - OFFER AND ACCEPTANCE - MATTERS NOT GIVING RISE TO BINDING CONTRACT - VAGUENESS AND UNCERTAINTY EQUITY - EQUITABLE REMEDIES - SPECIFIC PERFORMANCE Claimant (Ausbulk) seeks orders requiring Respondent (Ewing) to procure performance guarantees – Ewing entered into two contracts with Ausbulk for construction work relating to grain silos – clause 5 of the contracts required Ewing to provide security for performance – Ewing provided bank guarantees as security – dispute arose regarding the performance of the contract in 2007 – each party alleged termination for breach and sought damages – dispute referred to arbitration – performance guarantees due to expire in February 2008 – Ausbulk sought to call on the guarantees – Ewing sought injunctions in Supreme Court – injunctions granted on 8 February 2008 conditional upon Ewing extending existing guarantees – precise form of orders to await hearing the parties – parties negotiated on the basis of Ewing providing guarantees that would not be limited in time – on 18 February 2008 Ewing advised Ausbulk that its bank refused to issue guarantees not limited in time – parties then negotiated on the basis of Ewing providing guarantees limited in time but with mechanism for rollover – Ausbulk alleges contract entered into by parties on 20 February 2008 – alleged contract included obligation of Ewing to provide rollover guarantees with a mechanism which enabled Ausbulk to call on guarantees in final month before expiry – consent orders entered on 26 February 2008. Contractual issues: whether correspondence and attached draft orders evidenced a contract dated 20 February 2008 – whether contract placed obligation on Ewing to roll over guarantees until determination of arbitration – whether express or implied terms – whether legal representatives had actual or ostensible authority to enter into contract on behalf of parties – whether adequate consideration – whether intention to create legal relations – whether contract void for uncertainty – whether order for specific performance of that contractual obligation appropriate when performance of obligation is contingent on bank agreeing to provide guarantees – relevance of impecuniosity of Ewing – whether order for specific performance would be futile – whether permissible to make order requiring Ewing to do “all that is reasonably necessary” to achieve rollover obligation. Held: contract formed at 20 February 2008 – contract not void for uncertainty – order for specific performance appropriate – order for specific performance should not be refused on the grounds of futility merely because Ewing is impecunious and the contractual obligation is contingent on approval by bank – appropriate to order that Ewing do “all that is reasonably necessary” to achieve rollover obligation. EQUITY - GENERAL PRINCIPLES - MISTAKE - EFFECT ON CONTRACTS - MISTAKE AS TO NATURE OR CONTENTS OF DOCUMENT Alternative claim in common mistake – whether orders provide for obligation to roll over guarantees – whether failure to provide for express obligation on Ewing to roll over guarantees in the consent court orders amounts to an actionable common mistake – whether rectification of orders appropriate. Held: parties intended to include express requirement on Ewing to roll over the guarantees in the consent orders – rectification not appropriate given effect on Ewing, lack of clarity as to the formulation of orders and the success of Ausbulk on the primary claim for contract. ESTOPPEL - ESTOPPEL BY CONVENTION ESTOPPEL - ESTOPPEL IN PAIS - EQUITABLE ESTOPPEL Alternative claims in estoppel – whether estoppel by convention – whether parties proceeded on underlying assumption that Ewing was required to rollover guarantees – whether unconscionable for Ewing to deny that consent orders require rollover of the guarantees – whether estoppel by representation – whether Ewing made representation to Ausbulk that it was under an obligation to roll over guarantees – whether detrimental reliance on representation. Held: parties entered into consent orders in reliance on the underlying assumption that Ewing was required to roll over guarantees – Ewing estopped from denying that orders have that effect – Ewing represented that it was under obligation to roll over guarantees – Ausbulk relied on representation to its detriment – Ewing estopped from denying obligation to roll over guarantees. CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS Alternative claim for specific performance of clause 5 of Construction Contracts – whether clause 5 of contracts required Ewing to roll over guarantees in case of arbitration – whether clause 5 survived termination of the contracts. Held: clause 5 is linked with clause providing for parties to submit to arbitration – both clause 5 and arbitration clause survive termination of contract – although clauses survive termination, obligation to provide security modified and now governed by 20 February 2008 contract. EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - PARTY'S FAILURE TO GIVE OR CALL EVIDENCE Ausbulk failed to call legal representatives involved in negotiation of consent orders as witnesses – Ewing failed to call legal representatives or employees involved in negotiation of consent orders as witnesses – whether Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference appropriate in the circumstances. Held: no adverse inference appropriate in the circumstances