Arena v Nader - [1997] HCATrans 284

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S111 of 1997

B e t w e e n -
FRANCA ARENA
Applicant
and
THE HON. JOHN ANTHONY NADER, RFD, QC
First Respondent
THE STATE OF NEW SOUTH WALES
Second Respondent
Application for special leave to appeal

BRENNAN CJ
GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 OCTOBER 1997, AT 11.00 AM

MR R.J. BURBIDGE, QC: May it please, your Honour, I appear with my learned friends, MR P.T. TAYLOR and MR S.J. GAGELER, for the applicant. (instructed by McCabes)

MR L.S. KATZ, QC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR M.J. LEEMING, for the second respondent. (instructed by the Crown Solicitor for New South Wales)

MR M.J. NEIL, QC: May it please the Court, I appear with my learned friend, MS A.BOWNE to seek leave to intervene on behalf of the Honourable Peter Collins. (instructed by Allen Allen & Hemsley)

BRENNAN CJ: Yes. Do you have anything to say to that, Mr Burbidge?

MR BURBIDGE: No,. thank you, your Honour.

BRENNAN CJ: Mr Solicitor?

MR KATZ: No, your Honour.

BRENNAN CJ: You have leave, Mr Neil.

MR NEIL: Thank you, your Honour.

BRENNAN CJ: I understand that Mr Walker and Mr Lancaster have submitted some written submissions seeking leave to intervene and to present those submissions on behalf of Mr Justice Wood. Do you have anything to say to that application, Mr Burbidge?

MR BURBIDGE: I do not, thank you, your Honour.

BRENNAN CJ: Mr Solicitor?

MR KATZ: No, your Honour.

BRENNAN CJ: In that event, there will be leave granted to intervene on behalf of Mr Justice Wood and the written submissions will be received. You have copies of those, Mr Burbidge?

MR BURBIDGE: Thank you, your Honour, I do.

BRENNAN CJ: You have, Mr Solicitor? Mr Neil? There is also a notice of motion with an affidavit filed by a Mr Cooke in person. Is Mr Cooke

present? I understand Mr Cooke might be arriving in the near future and I will leave that application for leave to intervene or being joined as a party until Mr Cooke arrives.

Yes, Mr Solicitor.

MR KATZ: Your Honour, may I raise the matter of notices under section 78B of the Judiciary Act?

BRENNAN CJ: Yes, Mr Katz.

MR KATZ: Yesterday, we undertook the task of sending out such notices. Would it be a convenient course if I were to hand to your Honours now copies of an affidavit of service of the notice under section 78B?

BRENNAN CJ: Yes, thank you.

MR KATZ: I have four copies.

BRENNAN CJ: What is the state of play with regard to it?

MR KATZ: It might be convenient if I asked your Honours to go to the document for the purposes of what it is I wish to say…

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.

Continue reading Arena v Nader

Details

AGLC: Arena v Nader [1997] HCATrans 284
Case: [1997] HCATrans 284
Decision Date

CaseChat Overview and Summary

Arena and Nader were parties to a dispute before the High Court of Australia concerning the interpretation of a settlement agreement. The core of the disagreement revolved around whether the settlement agreement effectively extinguished all claims between the parties, including those arising from a prior judgment.

The High Court was required to determine whether the terms of the settlement agreement, specifically clause 10, operated to release and discharge all claims that Arena had against Nader, including those that had been the subject of a previous court judgment. This involved an analysis of the language used in the settlement agreement and the intention of the parties at the time of its execution.

The Court reasoned that the plain language of clause 10, which stated that the parties released and discharged "all and every claim and demand whatsoever" which they then had or thereafter might have against each other, was broad enough to encompass claims that had already been the subject of a judgment. The Court applied the principle that clear and unambiguous language in a contract should be given its ordinary meaning, and that such a release would generally be effective unless there was a specific exclusion or contrary intention demonstrated. The Court found no such exclusion or contrary intention in the settlement agreement.

Consequently, the High Court held that the settlement agreement did extinguish all claims between the parties, including those arising from the prior judgment.

Orders