In RW & ME Smith Pty Ltd v Boral Resources (Vic) Pty Ltd [2023] VSCA 182, the Victorian Court of Appeal held that a termination right had not been validly exercised because the unsafe works relied upon were not required by the contract.
The proceedings related to a cartage agreement with the applicant, RW & ME Smith (operated by Robert Smith). Boral had requested Mr Smith assist replacement of a broken drive chain at Boral's concrete plant. Boral alleged that Mr Smith had engaged in serious misconduct (due to the unsafe way he assisted in the repair), and notified Mr Smith of its termination for breach.
The primary judge held that the repair works performed by Mr Smith fell within the ambit of the contract. On appeal, Mr Smith argued that the repair works were not within the ambit of "Cartage Works" and so were performed outside the contract, with the result that no right to terminate the contract was engaged.
The Court of Appeal overturned the trial decision, agreeing with Mr Smith.
While the definition of Cartage Works included "associated tasks performed by [Mr Smith] for Boral in accordance with the [Contract]", the Court of Appeal held that repairing Boral's plant was not a task associated with the delivery of concrete, performed in accordance with the Contract.
