Beaman v Higson - [2021] NSWSC 935

Supreme Court

New South Wales

Medium Neutral Citation: Beaman v Higson [2021] NSWSC 935
Hearing dates: 23 July 2021
Date of orders: 30 July 2021
Decision date: 30 July 2021
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
1. The appeal is dismissed;
2. Unless the parties’ approach to be heard within 7 days, Mr Beaman must pay Mr Higson’s costs, as agreed or assessed.

Catchwords:
APPEALS – Point not taken below – Whether new defence raised on appeal may be permitted
CONTRACTS – Construction – Principles – Extrinsic Evidence – Implication of terms – Where terms in contractual deed are ambiguous – Whether terms of deed correctly construed given its commercial purpose

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Higson v Beaman (Local Court (NSW)) 28 March 2021, unrep)
O’Brien v Komesaroff (1982) 150 CLR 310
Perr v Coolangatta Investments [1982] HCA 29
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
University of Wollongong v Metwally (No 2) [1985] HCA 258; 59 ALJR 481
Wenham & Anor b Ella (1972) 127 CLR 454; [1972] HCA 43

Category: Principal judgment
Parties: Damian Beaman (Plaintiff)
David Warren Higson (Defendant)
Representation: Counsel:
Mr J Mack (Plaintiff)
Mr S Chapple (Defendant)
Solicitors:
TDP Legal (Plaintiff)
Law Quarter (Defendant)

File Number(s): 2021/113058
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Civil – General Division

Date of Decision:

26 March 2021

Before:

Magistrate J Price

File Number(s):

2019/00253866

Judgment

In 2017 Local Court proceedings which Mr Higson had brought against Mr Beaman after he had resigned as a director of Central Coast Party Charter Pty Ltd, were settled. They had both been shareholders and directors of the company, together with Mr Abbott, as well as being involved in a partnership. Those proceedings were concerned with Mr Higson’s recovery of $42,271.80 which he claimed Mr Beaman had promised to pay him, on his resignation as a director in 2016.
Those proceedings were settled with Mr Higson and Mr Beaman executing a deed of settlement containing terms which they negotiated with the assistance of their legal representatives. It provided in short that Mr Beaman would pay Mr Higson $40,618.00 and refinance partnership borrowings which Mr Higson had guaranteed; that Mr Higson would transfer his share in the company to Mr Beaman and forfeit his interest in the company and partnership; that he would also release Mr Beaman from other claims and not disparage him, the company or partnership.
Consent orders were made in the Local Court, but Mr Beaman did not make the payment and Mr Higson did not transfer his share. Mr Higson pursued payment and eventually took further proceedings in the Local Court, to recover the agreed sum. Mr Beaman resisted his claim on the basis that they had later entered a further agreement under which Mr Higson was to take over the company, a defence which Price LCM rejected: Higson v Beaman (Local Court (NSW)…

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 Beaman v Higson

Details

AGLC: Beaman v Higson [2021] NSWSC 935
Case: [2021] NSWSC 935
Decision Date: 30 July 2021

CaseChat Overview and Summary

The appeal before the court involved a dispute between Beaman and Higson. The nature of the dispute was the interpretation of certain terms within a contractual deed, specifically regarding the implication of terms and the admissibility of extrinsic evidence to clarify the meaning of those terms. The court hearing the case was the Supreme Court of Victoria.

The legal issues before the court centred on whether the terms of the contractual deed were ambiguous and, if so, whether the court could admit extrinsic evidence to clarify those terms. The court also had to determine if a new defence raised on appeal could be considered, despite not having been raised at the original trial. The central issue was the correct construction of the contractual terms, given their commercial purpose, and whether the court should imply additional terms to achieve a commercially sensible result.

In delivering the judgment, the court held that the terms of the contractual deed were indeed ambiguous. The court further held that it was permissible to admit extrinsic evidence to assist in interpreting the ambiguous terms, given the commercial purpose of the deed. The court found that the terms of the deed had been correctly construed in light of the evidence presented, and no additional terms needed to be implied. The court also ruled that a new defence raised on appeal could not be considered, as it had not been raised at the original trial. The appeal was thus dismissed.

The final orders of the court were that the appeal by Higson was dismissed, and the decision of the trial court was upheld. The terms of the contractual deed were to be interpreted as the trial court had determined, with the admissibility of extrinsic evidence to clarify the meaning of those terms being upheld. The new defence raised by Higson on appeal was not considered by the court, and thus had no effect on the outcome of the case.

Orders