Western Freight Management Pty Ltd v Toll Transport Pty Ltd

1. [1]

   BELL CJ: This appeal concerns the proper construction of an agreement, the Australian Road Freight Subcontractor Agreement (the Contract), entered into by the Appellant, Western Freight Management Pty Ltd (WFM) and the Respondent, Toll Transport Pty Ltd (Toll) on 9 October 2017. Under the Contract, WFM was to provide return road freight line haul services between Sydney and Melbourne (the Trips) for a term of 36 months, commencing on 5 December 2017 and expiring on 4 December 2020.

2. [2]

   Attachment 2 to “Schedule 2 – Statement of Engagement” to the Contract (the Statement of Engagement) provided that Toll would pay WFM a fee of $3,200 per Trip with “minimum quarterly committed volumes” of 120 Trips per quarter. Attachment 2 also stipulated that “in the event that minimum committed quarterly volumes are not achieved, these will be rolled into the next quarter with agreement from Western Freight Management Pty Ltd”.

3. [3]

   By way of a Statement of Claim filed on 13 August 2020, WFM commenced proceedings in the District Court seeking recovery of a debt of $224,000 for a shortfall of 70 Trips at a rate of $3,200 per Trip which it alleged had, pursuant to Attachment 2 to the Statement of Engagement, accumulated across the duration of the agreement. WFM also made an additional two claims, both of which were abandoned prior to the hearing. Those claims concerned the cancellation of 68 Trips by Toll and an “unpaid fee” of $42,377.37.

4. [4]

   WFM amended its claim several times throughout the proceedings. Ultimately, by way of a Third Further Amended Statement of Claim filed on 10 February 2023, WFM sued primarily for recovery of a debt of $137,901.89. That sum was comprised of $140,800 arising out of a shortfall of 44 Trips at a rate of $3,200 per Trip which WFM alleged had accumulated at the expiry of the Contract, less $2,898.11 in erroneous Trip payments which it conceded were made to it by Toll. In the alternative, WFM sought liquidated damages in the same sum or, in the further alternative, damages flowing from a breach of contract constituted by Toll’s failure to provide 120 Trips per quarter at a rate of $3,200 per Trip across the 36 month duration of the Contract.

5. [5]

   The case advanced by WFM at trial was that pursuant to the Contract, it was entitled to be allocated by Toll a minimum committed quarterly volume of 120 Trips over 12 quarters such that if there were less than 1,440 Trips performed at the conclusion of the 36 month duration of the Contract, WFM was entitled to a contractual remedy in respect of the shortfall amount. The parties agreed in item (d) of an Agreed Answers to Questions document filed during the hearing, that the total number of Trips performed was 1,396 (or 2,792 single runs) such that a shortfall of 44 Trips had accumulated at the expiry of the Contract.

6. [6]

   The shortfall volume did not include “Cut Runs” which were single direction runs whereby a truck returned empty to WFM’s departure depot and in relation to which the parties had reached an informal agreement, the content of which will be set out more completely below. By way of an Amended Cross-Claim filed on 23 January 2023, Toll alleged that, in addition to the overpayment of $2,898.11 which was admitted by WFM, WFM was liable to repay it $13,484.16 plus $2,232 interest for certain overpayments made between 12 December 2018 and 28 February 2019 pursuant to the agreement concerning the Cut Runs.

7. [7]

   Toll’s case at first instance was that in the event that the number of Trips in a quarter did not reach the minimum committed quarterly volume, the only right accruing to WFM was the right to refuse to agree to the continuation of the fee of $3,200 per Trip in the subsequent quarter. Toll denied that it gave any guarantee as to any volume of services, hours of work or income to WFM throughout the duration of the Contract.

8. [8]

   On 26 May 2023, Montgomery DCJ (the primary judge) dismissed WFM’s primary action for recovery of a debt and claim for breach of contract and upheld Toll’s Cross-Claim: Western Freight Management Pty Ltd v Toll Transport Pty Ltd [2023] NSWDC 176 (the primary judgment). His Honour found that, in the event of a shortfall in any quarter, Toll’s only obligation was to rollover the shortfall volume into the next quarter and that that obligation would expire in the event that WFM did not agree to the shortfall rollover. Accordingly, the primary judge held that there was no breach of contract arising out of the failure of Toll to provide WFM with revenue equal to 1,440 Trips at a rate of $3,200 over 36 months because the Contract did not oblige it to do so.

9. [9]

   The primary judge also held that WFM’s primary action for recovery of a debt failed “because it was based on the revenue value of the shortfall of Trips but not on indebtedness in a sum certain for an executed performance as performance was prescribed under the Contract”: PJ [216(j)].

10. [10]

    By way of an Amended Notice of Appeal filed on 18 December 2023, WFM contends that the primary judge erred in his construction of Attachment 2 to the Statement of Engagement and in his consequent dismissal of WFM’s claim for recovery of a debt and breach of contract.

11. [11]

    Toll, by way of a Notice of Contention filed on 25 August 2023, contended that the primary judge:

    1. (1)

       erred at PJ [60] “in rejecting the Respondent’s submission that, in the event that the Respondent did not utilise a minimum of 120 round trips per quarter, Attachment 2 to the Statement of Engagement … on its true construction had the effect that the agreed rates would only be rolled into the next quarter if the Appellant agreed”; and

    2. (2)

       “ought to have found that the Agreement, on its true construction, did not guarantee a minimum volume of work or a minimum income and that the only right which accrued to the Appellant in the event that the Respondent did not engage services of the Appellant to reach a minimum quarterly volume of 120 round trips was to refuse consent to the agreed rates being rolled into the next quarter.”

12. [12]

    The primary judge’s findings in relation to the Cross-Claim were not challenged on appeal.

Factual Background

1. [13]

   On 17 July 2017, Mr Alec Trikash, Toll’s “Group Linehaul Specialist”, emailed several linehaul partners, including WFM, to advise them that Toll was conducting a review of its national operations and to invite them to participate in a Request for Quote (RFQ) process in relation to “Intrastate & Interstate Linehaul supply across 40 key lanes”. A “Proposed Contract” which was in identical terms to the Contract, although the “Subcontractor” details were left blank, was contained in the “RFQ document” attached to that email.

2. [14]

   On 24 August 2017, Mr Trikash met with Mr Brandon Kidner, WFM’s Chief Executive Officer. Immediately following that meeting, Mr Trikash emailed Mr Kidner a list of the “additional requirements” discussed in the meeting as well as a schedule of lanes for which WFM had entered a bid during the RFQ process, including the “Melbourne-Sydney B-double-full-rig return” lane with which these proceedings are concerned, WFM’s “bid rate” in relation to those lanes, and Toll’s “Target rate” and “(quarterly) volume commitment”. In relation to the Melbourne-Sydney B-double-full-rig return lane, the schedule stipulated that WFM had bid $3,380 and that Toll’s target price was $3,200 with a “Max quarterly volume” of 120 Trips such that there was a “Full potential spend” of $384,000.

3. [15]

   The 24 August 2017 email also included a table relating to “Equipment type”. In that table, Mr Trikash also left the following comment:

4. [16]

   On 4 October 2017, Mr Trikash emailed Mr Kidner advising him of the following:

5. [17]

   On 5 October 2017, Mr Kidner replied to Mr Trikash seeking information about when he could anticipate receiving the Contract and Statement of Engagement, noting that WFM had “committed to some extra equipment … to assist with this service”. Mr Trikash responded on the same day confirming that WFM could expect to receive the Contract and Statement of Engagement by 6 October 2017.

6. [18]

   The Contract was signed on 9 October 2017 and the Statement of Engagement was signed and made on 5 December 2017.

7. [19]

   On 19 October 2017, Toll and WFM entered into a Variation Deed, the substance of which will be set out more completely below but which generally concerned WFM’s right to redeem its costs should Toll terminate the Contract before the end of its 36 month term.

8. [20]

   By way of an Affidavit dated 7 November 2020, Mr John Peters, WFM’s Managing Director, outlined the following in relation to performance of the Contract:

9. [21]

   Under cross-examination, Mr Peters gave the following evidence:

10. [22]

    Mr Peters also gave evidence that WFM had agreed to the rollover of a shortfall of Trips during the term of the Contract. He recalled that WFM had requested a rollover of a shortfall “through [Toll’s] line haul department and management” and that “it was always agreed that we’d be doing 120 [Trips] a quarter and it would be rolled over right to the end of the contract.” As was noted at PJ [89], this was the only evidence as to WFM’s agreement or otherwise to the rollover of a shortfall of Trips.

11. [23]

    Mr Peters outlined that in January 2018, he met with Toll’s representatives in Melbourne. During that meeting, Toll agreed to pay WFM a reduced rate for Cut Runs of $800 (plus GST and fuel rebate). That agreement was not recorded in writing.

12. [24]

    Between 12 December 2018 and 28 February 2019, WFM issued Toll with five invoices for Cut Runs totalling $24,600. It was common ground that in spite of the agreement reached between the parties in January 2018 concerning Cut Runs set out above, WFM had invoiced, and Toll had paid, $1,600 for the Cut Runs.

13. [25]

    Mr Peters’ evidence was that by July 2019, Toll refused to pay for Cut Runs. This prompted WFM on 20 February 2020 to send the Respondent a letter headed “LETTER OF DEMAND – Unpaid Overdue Invoices to Western Freight Management Pty Limited”. It provided the following:

14. [26]

    The Letter of Demand went on to specify that the “OVER-ALL SHORT FALL OF TRIPS VS CONTRACT” was “70” and provided that:

15. [27]

    On 5 June 2020, Toll responded to WFM’s Letter of Demand. Toll’s position was the following:

16. [28]

    The primary judge found at PJ [180] that, by way of its 5 June 2020 email, Toll had refused to pay monetary compensation for any shortfall of Trips as a debt and, without admission, had offered performance of 70 Trips and that this offer was not taken up by WFM. During cross-examination, Mr Peters gave evidence that he “understood … an offer was made … of performing a further 70 trips … to make up any shortfall” but that “it never happened”.

17. [29]

    On 24 January 2023, WFM’s solicitors provided Toll’s solicitors with a schedule of Trips conducted in each quarter between 5 December 2017 and 4 December 2020. That schedule outlined that there was a total of 2,792 single runs (or 1,396 Trips) during the term of the Contract. The schedule also highlighted that there were fluctuations in the Trips achieved each quarter. For instance, in the quarter spanning 5 June 2018 to 4 September 2018, there were 117 Sydney to Melbourne runs and 116 Melbourne to Sydney runs, but in the quarter spanning 5 September 2018 to 4 December 2018 there were 131 Sydney to Melbourne runs and 127 Melbourne to Sydney Runs.

The Contract

1. [30]

   It is first necessary to provide an overview of the terms of the Contract.

2. [31]

   Pursuant to cl 7 of Part B of the Contract, the “Agreement” comprised, in descending order of priority:

3. [32]

   Clause 5 of Part B of the Contract provided the following:

4. [33]

   Clause 6 of Part B read as follows:

5. [34]

   Clause 8 of Part B of the Contract provides the following:

6. [35]

   The Terms and Conditions defined the “Services” as “the whole of the operations and services required by TOLL for the Goods, which may be further particularised in a Statement of Engagement.”

7. [36]

   The “Goods” were defined as “the goods and all loads referred to on the STO as accepted by The Subcontractor from TOLL or TOLL’s customer together with any container or packaging for the goods and any pallet picked up with the goods or supplied by or for TOLL’s customer but does not include TOLL Equipment or Toll Trailing Equipment.”

8. [37]

   “STO” was defined as meaning “the Subcontractor transportation instruction or other work instruction given to the Subcontractor (such as a consignment note or a manifest) prior to or as part of each job/consignment/journey, as the case may be.”

9. [38]

   Clause 8 of the Terms and Conditions stipulated that:

10. [39]

    Clause 2.17 of the Terms and Conditions outlined that where required pursuant to the Statement of Engagement, WFM was to provide Toll with, “at the same time as providing … paperwork associated with the completion of the Services (such as consignment notes or run sheets or invoices), a written statement” confirming a number of matters set out in cls 2.17.1-2.17.4 which included that remuneration payable to employees and contractors, worker’s compensation insurance premiums, payroll tax and superannuation had been paid.

11. [40]

    Clause 12 of the Terms and Conditions concerned termination of the Contract. By way of the Variation Deed referred to at [19] above, the following was inserted at the end of cl 12.2:

12. [41]

    Clause 12.5 of the Terms and Conditions provided that where certain preconditions were met, Toll could “at any time, on written notice, suspend supply of all or any portion of this Agreement or a Statement of Engagement.” Upon receipt of any such notice, WFM was to “promptly cease the Services”. Toll was also empowered to “withdraw by written notice all or part of a suspension and, upon receipt of such notice”, WFM was to “promptly resume and diligently continue the Services for which the suspension was withdrawn.” In the event of a suspension, WFM was not “entitled to any price and/or schedule adjustment or to other compensation or relief for the suspension.”

13. [42]

    Clause 17.2 of the Terms and Conditions similarly provided that “except as stated in paragraph 8 of Part B to this Agreement, TOLL has not given The Subcontractor any guarantee or warranty (considering the charges that TOLL will pay under the subcontract) as to the Subcontractor’s earning capacity, the minimum amount of Services to be provided by The Subcontractor or the minimum level of revenue The Subcontractor may earn under this Agreement.”

14. [43]

    Pursuant to the Statement of Engagement, WFM is defined as the “Subcontractor”. Item 1(a) originally stipulated a “Duration of Statement of Engagement” period of 12 months commencing on 5 December 2017. However, “12” was manually crossed out and a handwritten annotation provided “36 as per RFQ”. Item 2 defined the “Services” as “Road Linehaul Services” and listed the “Reference in the Agreement” as “Schedule 1, Clause 1”.

15. [44]

    Clause 1 of the Statement of Engagement provided that, to the extent of any inconsistency between any other provision of the Contract and the Statement of Engagement, “the Agreement will prevail”.

16. [45]

    There were four attachments to the Statement of Engagement. Attachment 2 to the Statement of Engagement was entitled “Fees”. It read as follows:

The primary judgment

1. [46]

   At PJ [216], the primary judge provided the following summary of his conclusions:

2. [47]

   In relation to the construction of the Contract, the primary judge held at PJ [63] that “Toll promised no further or other provision to WFM than was prescribed in Attachment 2; Part B - Agreement Acknowledgement, Conditions 5(b) and 5(g); Condition 8; Schedule 1 - General Terms and Conditions, Clauses 8.5 and 17.2” and that this construction was consistent with the Contract as a whole. At PJ [65]-[68], his Honour reasoned as followed in respect of Attachment 2:

3. [48]

   At PJ [83], his Honour held that Mr Peters’ subjective understanding of the operation of the contract and the fact that he was looking for a “guarantee” of revenue under the Contract to protect WFM’s commitment of resources could not be decisive because it was not consistent with the contractual intention expressed in the wording of the Contract read objectively by a reasonable business person in the position of the parties. Parenthetically, for it to be taken into account would have been heterodox: see, Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [35]-[36] citing Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352; [1982] HCA 24 (Mason J).

4. [49]

   The primary judge went on to hold that:

5. [50]

   At PJ [101], the primary judge reasoned that the requirements concerning the provision of paperwork contained in cls 2.17 and 8.9 of the Terms and Conditions did not apply in relation to payment for a shortfall so as to contractually bar WFM’s claim. Rather, cl 2.17 referred only to “paperwork associated with the completion of the Services” because “Services” referred only to Trips actually performed and not shortfall volumes, being Trips not run. Similarly, his Honour held that the requirement in cl 8.10 that WFM issue Toll with a tax invoice within 120 days was “focused on Services” and did not apply to the shortfall volume: PJ [105].

6. [51]

   In rejecting WFM’s action for debt, separate from its claims for breach of contract, the primary judge held that WFM had identified its executed performance of the Contract entitling it to sue for the shortfall of 44 Trips as being that it had “made the trucks available”, irrespective of whether it got the Trips or not: PJ [117].

7. [52]

   At PJ [181], his Honour held that the failure of WFM to accept Toll’s offer of performance of 70 Trips in its 5 June 2020 email amounted to a failure by WFM to complete the Contract and not a failure by Toll to perform the Trips. His Honour went on to hold that even if his construction of the Contract was wrong and shortfall volumes could accumulate over the whole term of the Contract, then Toll’s offer on 5 June 2020 satisfied performance and if WFM had accepted that offer, its claim of a shortfall and resulting loss would have been expunged: PJ [183].

8. [53]

   In the event that his construction of the Contract was incorrect, the primary judge went on to hold in relation to damages that the loss of revenue associated with the shortfall of 44 Trips would equate to $140,800 plus GST. His Honour noted that WFM had withdrawn its argument that there were no cost savings accruing to it as a result of not having to perform the shortfall number of Trips because there were “unladen trucks actually travelling the route”, irrespective of whether they were performing revenue-earning trips for Toll: PJ [146], [186]. The primary judge then held at PJ [187] that, on the basis of the evidence, he was “not persuaded on the balance of probabilities of what, if any, cost of drivers was incurred in the event of a shortfall of Trips”. Ultimately, his Honour held that WFM’s “performance of a trip was a relatively high overhead and low profit margin activity” and thus allowed as damages “a profit of $400 per Trip for 44 Trips” amounting to $17,600: PJ [193].

9. [54]

   In relation to Toll’s Cross-Claim, the primary judge held that although the fee per Trip was $3,200, being a loaded return Trip fee, the parties “were in the routine [practice] of quick accounting for and payment of single direction Lane trips (one half of a Trip fee - $1,600)” and that “a delay in payment of five months, was exceptional”: PJ [205]. His Honour went on to hold that Toll had paid invoices in the sum of $1,600 for a Cut Run, that being the standard Trip fee, by mistake and that this mistake was the product of Mr Peters “deliberately and unilaterally” causing the invoices for the Cut Runs to be issued for the sum of $1,600: PJ [208]. His Honour then reasoned at PJ [211] that this decision of Mr Peters, and the mistake made by Toll in paying the invoices in circumstances where it quickly processed payment for loaded Trips, were vitiating factors sufficient to give rise to a prima facie obligation on the part of WFM to make restitution: PJ [209]-[211].

Grounds of Appeal and Notice of Contention

1. [55]

   WFM raised the following Grounds of Appeal:

2. [56]

   Grounds 1 and 2 of Toll’s Notice of Contention were as follows:

Grounds 1, 2, 4 and 5 and Notice of Contention grounds 1 and 2

1. [57]

   These grounds fall to be considered together as they all relate, in one way or other, to the proper construction of the parties’ contractual arrangements pursuant to the Contract which, as set out at [31] above, comprised not only the general set of Terms and Conditions but also incorporated a Statement of Engagement to which there were attachments.

2. [58]

   Both as pleaded and as argued on appeal, WFM characterised the Contract as, in effect, an agreement by Toll to pay WFM a “sum certain” which would sound in an action for debt in an amount represented by the difference between 1,440 Trips and the number of Trips in fact undertaken, defined as the “shortfall”, multiplied by $3,200.

3. [59]

   True it is that the Third Amended Statement of Claim pleaded that, in addition to there being a “debt due and payable”, in breach of the contract, Toll failed or refused to pay the “shortfall” and that WFM was entitled to the shortfall as damages. This pleading was somewhat unconventional in that no term of the parties’ contractual arrangements was identified as having been breached, and no breach was identified other than the failure to pay. There was no plea, for example, that there was an obligation to book 1,440 return Trips over a three year period and that the failure to do so amounted to a breach of contract. Contrary to Ground 4 of the appeal, the primary judge did not err in concluding that WFM had no claim against Toll in debt separate from its claim in damages. They were two sides of the same coin.

4. [60]

   To understand WFM’s case, it is necessary to commence with a consideration of the terms of Attachment 2 to the Statement of Engagement set out at [45] above.

5. [61]

   On WFM’s case, Attachment 2 (which was headed “Fees”) was contended to represent a promise to pay a guaranteed amount of money over the term of the Contract, being 120 [return Melbourne-Sydney Trips, the “minimum committed quarterly volumes”] multiplied by 12 [quarters i.e. three years] multiplied by $3,200 or, as it was put, 1,440 Melbourne-Sydney return Trips for which WFM would be paid $3,200 per Trip. Because only 1,396 Trips were made (a fact which was agreed by the parties), WFM’s simple argument was that it was entitled to a payment of 44 multiplied by $3,200, amounting to $140,800.

6. [62]

   WFM placed great emphasis on the expression “minimum committed quarterly volumes” which twice appeared in the text of Attachment 2. The text contemplated, however, the possibility that minimum committed quarterly volumes might not be achieved. Thus, in Attachment 2 it was stated that “[In] the event that minimum committed quarterly volumes are not achieved, these will be rolled into the next quarter with agreement from WFM” (emphasis added).

7. [63]

   Although Toll argued that the word “these” in this sentence referred to fees rather than unachieved volumes, the word “these” in my view obviously refers to unachieved volumes. Importantly, the rollover of these unachieved volumes into the next quarter was not automatic under the parties’ contractual arrangements; rather, it required the agreement of WFM. The requirement that WFM agree to a rollover was plainly an element of Attachment 2 inserted for its benefit. If WFM agreed to the rollover, the minimum committed quarterly volume for the next quarter would be increased by the unachieved volume which was rolled over. But if WFM did not agree, for whatever reason, there would be no cumulation of unachieved minimum committed volumes. It follows that the Contract did not provide for a minimum committed three yearly volume of 1,440 Trips.

8. [64]

   In the event that WFM did not agree, for whatever reason, to rollover any unachieved volume into a following quarter, it would have no subsequent entitlement to insist on Toll increasing the minimum Trips promised by that unachieved number. Any failure to achieve a minimum committed quarterly volume which was not rolled into the next quarter would, at most, sound in an action for damages for breach of contract. The breach would not be a failure to pay but the non-provision of certain Trips.

9. [65]

   This analysis and conclusion is also consistent with cl. 8.5 which provided that “unless stated otherwise in a Statement of Engagement”, Toll must provide WFM with the following:

10. [66]

    Accepting that Attachment 2 formed part of the Statement of Engagement, it did not in terms state a “minimum income level”. At its highest, it might be suggested that the Attachment implied a minimum income level but any such implication does not necessarily or obviously arise by reason of the matters noted in [63]-[64] above. Moreover, if a “minimum income level” was intended to be stated, one would expect that to have been “stated” expressly.

11. [67]

    There are other reasons why Attachment 2 should not be construed as in the nature of a guarantee of the kind and extent required for WFM to succeed in its argument. First, cl 12.2 of the Terms and Conditions (see [40] above) gave Toll a right of termination prior to the expiry of three years. It specified what was to be paid in that event. The amount was not the balance of any guaranteed amount pursuant to Attachment 2 to the Statement of Engagement. Mr Leopold SC, for WFM, fastened on the word “further” in the varied cl 12.2 but that word was plainly in relation to any accrued payment obligations. Next, cl 12.5 of the Terms and Conditions permitted Toll to suspend its obligations under the Contract and Statement of Engagement for a variety of reasons including if:

12. [68]

    This right of suspension was entirely inconsistent with WFM’s “guarantee” case. Clause 12.5 of the Terms and Conditions took precedence over the Statement of Engagement and any attachment thereto and, if suspension occurred, such a suspension would necessarily qualify any committed quarterly volume of trips.

13. [69]

    WFM sought to support its argument by seeking to call in aid pre-contractual material and complained that the primary judge erred in not taking this material into account. This material was said, by Ground 2 of the appeal, to constitute:

14. [70]

    The contention appeared to be that WFM would never have agreed to the Contract unless a guaranteed amount of money would be paid over the three years of the Contract.

15. [71]

    There were a number of difficulties with this argument. Most fundamentally, the material sought to be relied on to establish the proposition for which WFM contended simply did not do so. That material comprised the email of Mr Trikash to Mr Kidner sent on 24 August 2017 referred to at [15] above and the email sent by Mr Kidner to Mr Trikash on 5 October 2017 referred to at [17] above. The first of these emails was in the form of a question, scarcely a source of a mutually known background fact. The second email referred to WFM having “committed to some extra equipment … to assist with this service” (emphasis added). What this equipment comprised was not specified, nor was the cost of it. This communication was a wholly inadequate basis to found the inference sought to be drawn. Further, even if such an inference were available, it was scarcely one which lent any material support to WFM’s construction of the Contract.

16. [72]

    Attention has already been drawn to the fact that the terms of Attachment 2 upon which WFM’s argument was founded gave it an option or contractual right to agree to the rolling over of any unachieved volume from a previous quarter into the next quarter. That was not a matter in respect of which WFM was required to agree. On 20 February 2020, whilst the Contract still had three quarterly periods to run, WFM complained that Toll was 70 Trips short of what it was contractually obliged to offer to WFM: see [25]-[26] above. This complaint was predicated on a view of the Contract that any shortfall rolled into the next quarterly period continually from quarter to quarter as opposed to one time only. The primary judge disagreed with this construction of the Contract but even if his Honour was wrong to do so, WFM’s argument still ran into a fatal problem. That was because, by its letter of 5 June 2020, set out at [27] above, Toll, although taking issue with WFM’s February letter and the contentions contained in it, nevertheless offered to provide WFM with 70 “additional round trips at the rate of $3,200 per trip.”

17. [73]

    Mr Leopold criticised the terms in which this offer was made as being too vague. I disagree. It could scarcely have been clearer. He contended that the words:

18. [74]

    In any event, as explained in [28] above, the primary judge found that the offer was not accepted. This finding was not challenged. Applying the terms of Attachment 2, any unachieved volumes did not rollover into the final two quarterly periods because WFM did not agree for that to happen. Toll was therefore under no obligation to make available any more than 120 Trips in each period, which it did. That it in fact provided goods for delivery allowing more than 120 Trips in each of the two final quarterly periods was neither here nor there. The Contract always contemplated that the quarterly Trips may exceed 120.

19. [75]

    In short, for these reasons, there was no breach of contract, and the primary judge was correct to so conclude.

20. [76]

    His Honour was also correct to conclude that the Contract cannot be construed as entailing a promise to pay a guaranteed amount at the end of the Contract represented by the multiplication of 1,440 Trips by $3,200 (less any amounts which had been paid for actual trips which had been performed and invoiced).

21. [77]

    Having reached these conclusions, it is not necessary to address Ground 3 of the Notice of Contention.

Ground 6

1. [78]

   Much time was occupied in the course of the hearing of the appeal by the question of whether or not WFM’s trucks had travelled unladen on the Melbourne to Sydney return route. This Ground relates to that topic.

2. [79]

   The relevance of that topic was never clearly articulated by Mr Leopold, despite questions as to its relevance being put to him on several occasions. In addition, evidence as to whether there were in fact unladen trucks on the route (other than those that returned to their origin unladen as part of a “Cut Run” referred to in the evidence) was wholly obscure. Mr Leopold ultimately accepted that the topic of unladen trucks had no proper bearing on the construction of the Contract.

3. [80]

   Given the conclusions reached in relation to other aspects of the appeal, it is not necessary to deal further with this ground of the appeal.

Conclusion

1. [81]

   The appeal must be dismissed with costs.

2. [82]

   PAYNE JA: I agree with the Chief Justice.

3. [83]

   GRIFFITHS AJA: I agree with the Chief Justice.