Burden v Ainsworth - [2004] HCATrans 144

[2004] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S196 of 2003

B e t w e e n -
LESLIE JAMES BURDEN
Applicant
and
LEONARD HASTINGS AINSWORTH
Respondent
Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 2004, AT 11.44 AM

MR B.H.K. DONOVAN, QC: May it please your Honours, I appear with MR R.K.M. RASMUSSEN for the applicant. (instructed by Hunt & Hunt)

MR R.R. STITT, QC: May it please your Honours, I appear with my learned friend, MR T.D. BLACKBURN, SC, for the respondent. (instructed by Dibbs Barker Gosling)

CALLINAN J: I should say, before you commence, that some years ago I appeared for Mr Ainsworth in the Queensland Supreme Court. It was a case that ultimately went on appeal to this Court, but I did appear for him, I think it is 10 years or so ago. I am not sure.

MR DONOVAN: I had better just check that, before I ‑ ‑ ‑

HEYDON J: Mr Donovan, I am in a similar position. In relation to, I think, two separate matters, I gave some advice to Mr Ainsworth’s interests in contests with other members of his family. That would have been eight or so years ago.

MR DONOVAN: I appreciate it is probably difficult to find judges who have not, at some stage, I suspect, your Honours, but just excuse me a moment. We make no objection or complaint about that. Could I perhaps start by bringing your Honours up to date a bit on what has happened since the written submissions were filed.

Your Honours will recall that the particular issue which is before this Court arises out of a judgment of Justice Simpson on 2 March 2000. The point about section 64 was before her Honour, but there were other points in the notice of motion that was put forward which her Honour did not deal with. The matter was then taken to the Court of Appeal. The Court of Appeal decided the section 64 issue, but sent the balance of the notice of motion which had been before her Honour back to be dealt with at first instance. They were dealt with at first instance before Justice Levine, and his Honour has reserved his judgment on the balance of those matters. That is our understanding. If I am wrong, no doubt I will be corrected.

CALLINAN J: There ought not to be any doubt about this. Would you like us to stand the matter down for a few minutes? It may be that if the matter is reserved, if you, for example, were to fail, that would make these proceedings unnecessary. Is that right?

MR DONOVAN: Well, if we were to succeed, it would not make these proceedings unnecessary because there would almost certainly then be an appeal to the Court of Appeal.

CALLINAN J: 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 Burden v Ainsworth

Details

AGLC: Burden v Ainsworth [2004] HCATrans 144
Case: [2004] HCATrans 144
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Burden v Ainsworth*. The dispute concerned the interpretation of a deed of settlement and release entered into between the parties, which had the effect of releasing certain causes of action. The primary question before the Court was whether the deed effectively released a claim for breach of fiduciary duty.

The legal issues before the High Court were whether the deed of settlement and release extinguished the appellant's claim for breach of fiduciary duty, and if so, whether the deed was voidable on the grounds of misrepresentation or non-disclosure. The Court was required to consider the scope of the release and the principles governing the avoidance of deeds based on equitable doctrines.

Callinan and Heydon JJ, in separate but concurring judgments, held that the deed of settlement and release did not extinguish the claim for breach of fiduciary duty. Their Honours reasoned that the language of the deed, particularly the specific enumeration of the causes of action being released, did not extend to the claim for breach of fiduciary duty. They applied the principle that general words of release in a deed are to be construed in light of the specific matters that were in dispute or contemplated by the parties at the time of its execution. Furthermore, their Honours found that there was no misrepresentation or non-disclosure sufficient to render the deed voidable. The appeal was allowed.

Orders