Case: Modern Buildings Wales Ltd v Limmer and Trinidad Co Ltd [1975] 2 All ER 549
Outcome: considered
Counsel for the applicant relied on Modern Buildings Wales Ltd v Limmer and Trinidad Co Ltd [1975] 2 All ER 549. In that case, there was a question whether a standard form contract, known as the 'green form', which contained an arbitration clause, had been incorporated by reference into a building contract, although misdescribed in the terms of the building contract itself. The Court of Appeal, consisting of Buckley and Ormrod LJJ, held that the green form had been incorporated by reference, and that a proceeding brought to enforce the building contract ought to be stayed pending arbitration, in accordance with the arbitration clause. Buckley LJ dealt with one of the arguments supporting the proposition that the green form had not been incorporated by reference at 555-556 as follows: 'Counsel for the plaintiffs has suggested that the written contract contains insufficient indication how various matters that are left in blank in the green form contract, and in particular in the appendix to the contract, which relates to such matters as the completion period, the retention money and so forth, should be filled in. Where parties by an agreement import the terms of some other document as part of their agreement those terms must be imported in their entirety, in my judgment, but subject to this: that if any of the imported terms in any way conflicts with the expressly agreed terms, the latter must prevail over what would otherwise be imported. Here it is not disputed that the written contract between the parties, consisting of the quotation and the order, contains all the essential terms of the contract, and, in my judgment, the green form of contract must be treated as forming part of the written contract, subject to any modifications that may be necessary to make the clauses in the green form accord in all respects with the express terms agreed between the parties.' [Emphasis added] Ormrod LJ agreed with Buckley LJ and did not comment specifically on the issue of the gaps in the green form. 30 Counsel for the applicant contended that the principle to be derived from Modern Buildings , as stated by Buckley LJ, was that, when the terms of a document are incorporated by reference into an agreement, the terms are only imported into the agreement to the extent to which they are not inconsistent with the express terms of the agreement. Plainly, the principle cannot be this broad. Buckley LJ was speaking of a term that 'conflicts with the expressly agreed terms', not a term that would be inconsistent only in the sense that its application would produce a different result from that produced by the application of the express terms of the agreement. In the absence of conflict between terms, there is no reason why full effect should not be given to the choice of the parties to incorporate provisions by reference. In the present case, there is no conflict between the definition in cl 28 of the Certified Agreement and the definition of 'ordinary pay' in the LSL Act. It is only that the application of the two definitions to the expression 'ordinary pay', which happens to be common to both the provisions incorporated by reference and the express terms of the Certified Agreement, might produce different results. Such different results would not involve derogation from the express terms of the Certified Agreement. There is, therefore, no possibility of conflict. There is no reason why the choice of the parties to have entitlements to long service leave determined by the application of the provisions of the LSL Act should not be given full effect.