Barclay v Penberthy - [2011] HCATrans 333

[2011] HCATrans 333

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P25 of 2011

B e t w e e n -
AARON BARCLAY
Applicant
and
ALEC PENBERTHY
First Respondent
FURGO SPATIAL SOLUTIONS PTY LTD ACN 008 673 916
Second Respondent
NAUTRONIX (HOLDINGS) PTY LTD ACN 009 067 099 AND L-3 COMMUNICATIONS NAUTRONIX LTD ACN 009 019 603
Third Respondents
MALCOLM ANTHONY CIFUENTES
Fourth Respondent
MICHAEL BRIAN KNUBLEY
Fifth Respondent
JULIE ANNE WARRINER
Sixth Respondent
JANET GRAHAM
Seventh Respondent
OZAN PERINCEK
Eighth Respondent
Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 DECEMBER 2011, AT 11.06 AM

____________________

MR B.W. WALKER, QC: May it please the Court, I appear with my learned friends, MR H.J. LANGMEAD, SC and MR M.D. RUSH, for the applicant. (instructed DLA Piper Australia)

MR D.J. FAGAN, SC: May it please the Court, I appear with my learned friend, MR G.C. RICHARDS, for the first and second respondents. (instructed by SRB Legal)

MR P.W. COLLINSON, SC: If the Court pleases, I appear with my learned friend, MR A. GOLEM, for the third respondents. (instructed by Freehills)

HAYNE J: There is no appearance, I think, for the fourth to seventh or the eighth respondents. Yes, Mr Walker.

MR WALKER: Your Honours, may I go directly to the question whether the question arises. It has been put against in the exchange of written submissions that “per quod servitium amisit” was, in any event, in play throughout these proceedings. That is not so. Could I take your Honours first to what is found behind tab 7 in the list of authorities and materials for Nautronix and, in particular, to the outline of submissions – closing submissions on behalf of plaintiffs, including Nautronix. At paragraph 172, page 21 of that extracted typescript one sees that far from per quod being asserted for Nautronix, it was asserted, correctly, with respect, given the issues joined, that it was not necessarily a trial:

to resolve the arguments raised by the defendants, namely that the Nautronix parties cannot recover damages for so-called “pure economic loss” –

and then the part that matters –

or that part of its damages claim would be defeated by the common law principles relating to the action “per quod servitium amisit”.

HAYNE J: What is the reference to “part of its damages claim”?

MR WALKER: At least to the death of two of the persons.

HAYNE J: The SS Amerika point?

MR WALKER: Yes. The next passage which follows picks up both what I have said in answer to Justice Hayne and also the clear positive statement of the nature of the claim. Paragraph 174:

The Nautronix plaintiffs claim damages caused by the negligence –

et cetera. One sees, see 178 and 179, matters which, so far as the pleading is concerned, shows that there were material…

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: [2011] HCATrans 333
Decision Date

CaseChat Overview and Summary

In *Barclay v Penberthy*, the High Court of Australia considered a dispute concerning the proper construction of a deed of settlement and its effect on the appellant's entitlement to a share of profits from a joint venture. The appellant, Mr. Barclay, had entered into a settlement agreement with the respondent, Mr. Penberthy, following earlier litigation. The core of the dispute revolved around whether the terms of the settlement deed extinguished Mr. Barclay's right to receive a share of profits generated by the joint venture after the date of the deed.

The High Court was required to determine the proper construction of clause 3 of the settlement deed, specifically whether it operated as a release of all claims, including future profits, or merely settled existing disputes. The central legal issue was whether the language of the deed, particularly the phrase "all claims, demands, actions and proceedings whatsoever," encompassed a release of Mr. Barclay's prospective entitlement to profits from the ongoing joint venture.

The Court reasoned that the construction of the deed depended on the ordinary meaning of the words used, read in their context. It was held that the phrase "all claims, demands, actions and proceedings whatsoever" was broad enough to include a release of future entitlements, provided that the intention to release such future rights was clear. The Court found that the deed, when read as a whole, evinced a clear intention by Mr. Barclay to release all claims against Mr. Penberthy, including any entitlement to future profits from the joint venture, in exchange for the settlement sum. The Court therefore concluded that the deed operated to extinguish Mr. Barclay's claim to those profits.

Orders