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Bond v England (A-59) CHH

Bond v England (A-59) CHH

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Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone (03) 9672 5608
Fax (03) 9670 8883
  O/N 4359
  A 24.11.97
  A 28.11.97

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. A59 of 1997

BETWEEN: ALAN BOND

Applicant
- and -

RICHARD ANTHONY FOUNTAYNE ENGLAND

Respondent

No A60 of 1997

DELORES JEAN CABOCHE

Applicant

- and -

RICHARD ANTHONY FOUNTAYNE ENGLAND

Respondent

HAYNE J (In Chambers)

AT MELBOURNE, THURSDAY THE 20TH DAY OF NOVEMBER 1997 AT 2.35 PM

MR I.D.F. CALLINAN QC: I appear with MR J.M. CUDMORE for the applicant Caboche (instructed by Ward and Partners) and in the matter of Bond I appear on my own (instructed by Cowell Clarke).

MR R.J. WHITINGTON QC: I appear with my learned friend MR J.D. KARAS for the respondent in both matters (instructed by Fisher Jeffries).

HIS HONOUR: Now, gentlemen, why should I not impose time limits on the hearing of this application? You may take it that I have read the papers, that I am generally familiar with them. I have read the reasons of the Full Court and to a less full extent the reasons of Debelle J and am generally familiar with the issues.

MR CALLINAN: I hope that I can put our situations fairly shortly, your Honour. I am in your Honour's hands with respect to time.

HIS HONOUR: Well, perhaps shall we let the threat quietly swinging in the breeze, Mr Callinan, and see what becomes of it.

MR CALLINAN: Certainly, and I am indebted to your Honour's intimation that you have read the papers. Your Honour, may I inquire, however, whether you have read the decision of yesterday by ‑ ‑ ‑

HIS HONOUR: Yes.

MR CALLINAN: Yes. Your Honour, as we would perceive it the position is that we do have the benefit of all relevant findings, as it were, not that I suggest that the findings on the stay are binding upon your Honour here but if your Honour would, with respect, be unlikely to interfere with them we would suggest. But the position seems to be after yesterday that there is only one issue and that is the issue as to our prospects of obtaining special leave.

HIS HONOUR: Well, whether or not that is so at least in the first instance I would be much assisted by the argument focussing on that issue.

MR CALLINAN: Yes. Your Honour, as we understand it it really seems to have been put by single Justices of this court in three different ways with perhaps only shades of difference between them but not insubstantial prospects at success. Substantial prospects of success, or as McHugh J put it in Collier's case, at a real chance or an arguable case. Your Honour, we would submit that that is the test to be preferred.

In logic it is the test to be preferred because when one is making an application for special leave…

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: [1997] HCATrans 344
Decision Date

CaseChat Overview and Summary

In *Bond v England*, Hayne J of the High Court of Australia considered a dispute between the parties concerning the interpretation of a deed. The core of the disagreement revolved around the extent of certain covenants contained within the deed and their application to the conduct of the parties.

The central legal issue before the Court was whether the respondent had breached the covenants contained in the deed by engaging in certain activities. This required the Court to construe the precise meaning and scope of the covenants, particularly in light of the factual circumstances presented. The Court had to determine the intention of the parties as expressed in the deed itself.

Hayne J's reasoning focused on the principles of contractual interpretation, emphasising that the words of the deed were to be given their ordinary and natural meaning, read in their context. His Honour considered the surrounding circumstances to the extent they were admissible to aid in the construction of the deed. Ultimately, the Court found that the respondent's actions did not fall within the scope of the restrictive covenants as they were properly construed, and therefore no breach had occurred.

Orders