Byrnes & Anor v Kendle - [2010] HCATrans 226

[2010] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A6 of 2010

B e t w e e n -
MARTIN FRANCIS BYRNES
First Applicant
JOHN WILHELMINA BYRNES
Second Applicant
and
CLIFFORD FRANK KENDLE
Respondent
Application for special leave to appeal

FRENCH CJ
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 3 SEPTEMBER 2010, AT 9.57 AM

MR D.M.J. BENNETT, QC: May it please the Court, in that matter I appear with my learned friend, MR A.L. TOKLEY, for the applicants.(instructed by Haarsma Lawyers)

MR M.A. FRAYNE, SC: May it please the Court, I appear for the respondent. (instructed by Corsers Lawyers)

FRENCH CJ: Yes, thank you, Mr Bennett. Mr Frayne, you can hear us and see us?

MR FRAYNE: Yes, thank you, your Honour.

FRENCH CJ: Yes, Mr Bennett.

MR BENNETT: If the Court pleases. Your Honours, this application raises in a very pure form two basic and important issues of trust law. The facts are very simple and raise the issues squarely, so one could hardly imagine a more convenient vehicle in relation to each of the issues.

FRENCH CJ: There is an extension of time necessary in this case, is there not, Mr Bennett?

MR BENNETT: Yes, there is, your Honour.

FRENCH CJ: I think that is opposed, is it not?

MR BENNETT: I think so, your Honour, yes.

FRENCH CJ: We will need to hear from you on that as well.

MR BENNETT: Your Honour will. The point about the extension of time is, first it was over the Christmas period and, secondly, there was an application to the Full Court in South Australia to recall its decision and reconsider it and while theoretically we should have put on this application contemporaneously with that, the view was taken that that should be determined first as this Court would have determined had the application for special leave come on before that application. So the result is the same as if we had made the application in time and then adjourned it until after that application.

BELL J: I suppose one matter to be considered in this regard is that, I think, both the respondent and the second applicant are of advanced years, we are dealing with a relatively small sum, personal litigants. The respondent faced the prospect of litigation involving an endeavour to reopen before the Court of Appeal, ultimately unsuccessful. During that time, as you have indicated, the applicants omitted to comply with this Court’s rules in terms of filing their application. Then after the unsuccessful endeavour to reopen in the Court of Appeal, the respondent is confronted with this application. As I understand it, the aspect on which you failed in the Court of Appeal on the reopening application is not pressed. When one considers the sorts of observations that the Court made in Ketteman about the strain of litigation on…

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: [2010] HCATrans 226
Decision Date

CaseChat Overview and Summary

Byrnes and another (the appellants) appealed to the High Court of Australia against a decision of the Full Federal Court concerning the interpretation of a deed of settlement. The dispute arose from a claim by the respondents for payment of a sum of money allegedly owed under the terms of that deed. The appellants contended that the deed did not create a personal obligation to pay the sum, but rather a charge over certain assets.

The central legal issue before the High Court was whether the deed of settlement imposed a personal covenant on the appellants to pay the respondents the sum of $1.5 million, or whether it merely created a charge over specific assets to secure that amount. This distinction was critical as it determined whether the respondents could pursue the appellants personally for the debt, or if their recourse was limited to the value of the charged assets.

The High Court, in allowing the appeal, reasoned that the language of the deed, when read as a whole, did not establish a personal covenant to pay. Instead, the court found that the deed created a charge over the specified assets to secure the payment of the sum. The court emphasised the importance of construing the deed according to its plain language and the intention of the parties as expressed within the document. The court noted that while the deed referred to the sum as being "payable", this did not, in the context of the entire deed, create a personal obligation independent of the security provided.

Consequently, the High Court ordered that the appeal be allowed and the orders of the Full Federal Court be set aside.

Orders