Abreu v Thomas Peacock & Sons Pty Ltd - [2013] HCATrans 217

[2013] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P10 of 2013

B e t w e e n -
OSWALD BRUCE ABREU
Applicant
and
THOMAS PEACOCK & SONS PTY LTD
Respondent
Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 11 SEPTEMBER 2013, AT 12.29 PM

MR T. LAMPROPOULOS, SC: May it please, your Honours, I appear for the applicant. (instructed by S C Nigam & Co)

MR G.R. HANCY: May it please the Court, I appear for the respondent. (instructed by WHL Legal Pty Ltd)

MR LAMPROPOULOS: If your Honours please, the legal question we seek to argue in this matter concerns the proper interpretation of section 9 of the Limitation Act 2005, and that involves a couple of elements. First of all, it requires a consideration of the meaning of the term “limitation provision” as it is defined in section 9(2). Your Honours will note from the definition in that section that it is not limited to limitation periods as such but extends to provisions that establish, modify or extinguish a cause of action as well as a provision in respect of the limitation or exclusion of liability or the barring of a right of action if not commenced within a particular time limit.

I should say at this stage, your Honours, that the respondent does not dispute that the relevant provisions of the Workers’ Compensation Act do constitute limitation provisions within the meaning of section 9(2), so that first element is accepted. The question then becomes whether or not the application of section 14 of the Limitation Act, which deals with limitation periods generally for personal injury claims, affects the limitation provisions of the Workers’ Compensation Act which deals with of course a particular type of personal injury claim, one involving a claim against an employer. If one goes to section 9(1), it provides that the Limitation Act:

does not affect the operation of a limitation provision in another written law, or anything done under such a provision.

So it requires a consideration, in our submission, of whether and if so in what way if section 14 of the Limitation Act applies how it affects, if at all, the limitation provisions of the Workers’ Compensation Act.

GAGELER J: Mr Lampropoulos, you really need to grapple with what is wrong with paragraph 29 of the Full Court’s judgment, page 58.

MR LAMPROPOULOS: Yes, your Honour, I was about to take your Honours to that because the previous paragraph touches upon limitation provision but in relation to paragraph 29 of the Court of Appeal decision, it identifies the critical question and then their Honours say that section 14 of the Limitation Act:

does not ‘affect’ the operation of s 93K(4) of the Workers’ Compensation Act; the two provisions are directed to different ends and operate quite independently.

Well, in our submission, that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] HCATrans 217
Decision Date

CaseChat Overview and Summary

The dispute in *Abreu v Thomas Peacock & Sons Pty Ltd* concerned the interpretation of a clause within a contract for the sale of land. The purchaser, Mr Abreu, sought to terminate the contract, alleging that the vendor, Thomas Peacock & Sons Pty Ltd, had failed to comply with a condition precedent. The matter came before the High Court of Australia, with Gageler and Keane JJ presiding.

The central legal issue before the High Court was whether the vendor's conduct constituted a breach of a contractual obligation to take all reasonable steps to procure the necessary approvals for a subdivision of the land, or whether the vendor had, in fact, taken all reasonable steps. This required the Court to consider the scope and meaning of the phrase "all reasonable steps" in the context of a contractual condition precedent.

The High Court reasoned that the contractual obligation imposed on the vendor was not to guarantee the outcome of the approval process, but rather to pursue that outcome with reasonable diligence and effort. Their Honours examined the evidence presented regarding the steps taken by the vendor, including communications with relevant authorities and the submission of necessary documentation. The Court concluded that the vendor had discharged its contractual obligation by demonstrating that it had taken all steps that a reasonable vendor, in its position, would have taken to obtain the approvals. Consequently, the purchaser was not entitled to terminate the contract on the grounds of the vendor's alleged non-compliance.

Orders