Cabal & Anor v United Mexican States & Ors - [2001] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S229 of 2000

B e t w e e n -
TERRY KYRWOOD, GEOFFREY KYRWOOD, GEDROT PTY LIMITED and GAVROS PTY LIMITED
Applicants
and
PETER WESTGARTH DRINKWATER, JOHN FRANCIS DRINKWATER, LUSTRAY PTY LIMITED and CADDYRACK INC
Respondents
Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 JUNE, 2001, AT 10.43 AM

MR R. W. WHITE, SC: If the Court pleases, I appear with my learned friend, MR A.J. McINERNEY, for the applicants. (instructed by Wood Roberts).

MR P.A. HEWITT: If the Court pleases, I appear for the respondents. Mr Ashurst, of counsel, was to appear. Unfortunately weather conditions precluded him from getting back from Queensland, and I was not aware of that until late yesterday, and he apologises for any inconvenience to the Court. (of Hewitts Commercial Lawyers).

GLEESON CJ: Yes, Mr White.

MR WHITE: Your Honours, in this matter neither the primary judge nor the Court of Appeal made a finding that the applicants’ repudiation, which they found, was of an essential term or otherwise went to the root of the contract.

The finding of repudiation which was made was that because of the attitude the applicants evinced to performing clause 6 of the agreement; that is to say, they would only discharge a security if the respondents performed their obligations under another term to exchange the Australian tool for the United States tool.

CALLINAN J: Could I ask you this. The breach committed by your client was the failure to replace the security, is that right?

MR WHITE: Yes.

CALLINAN J: Whilst your clients failed to replace the security, presumably the respondents’ property was at risk. It was subject to a mortgage and there were obligations under the mortgage, is that right?

MR WHITE: It secured the obligation of the company Caddyrack, yes.

CALLINAN J: Did the settlement agreement require your clients to do that within 14 days of its execution?

MR WHITE: That is what the Court of Appeal found, yes.

CALLINAN J: In fact, the breach that was committed by the respondents occurred some considerable time – it was not only a question of whether it was interdependent, it occurred, did it not, some considerable time after your clients were in breach and remained in breach? Is that right, though, what I ‑ ‑ ‑

MR WHITE: Not entirely, no, your Honour, because the particular breach by the respondents was foreshadowed on the 29 August by a letter which is in the application book.

CALLINAN J: What was the date of the deed of settlement?

MR WHITE: The deed of settlement was the 26 July, but there were two conditions, in any event, to which it was subject, and there were arrangements made for settlement which was originally proposed to take place in early August on the 7th or the 8th. Objections to settlement -…

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 Cabal & Anor v United Mexican States & Ors

Details

AGLC: Cabal & Anor v United Mexican States & Ors [2001] HCATrans 235
Case: [2001] HCATrans 235
Decision Date

CaseChat Overview and Summary

In *Cabal & Anor v United Mexican States & Ors*, the High Court of Australia considered a dispute concerning the alleged wrongful detention of the applicants, Mr Cabal and Mr Scharfenberger, by agents of the United Mexican States. The applicants sought damages for false imprisonment and assault, alleging that their detention occurred in circumstances that engaged the sovereign immunity of the United Mexican States.

The central legal issue before the High Court was whether the actions of the Mexican agents fell within the scope of the restrictive theory of sovereign immunity, specifically whether the detention constituted an "act jure imperii" (an act of sovereign power) or an "act jure gestionis" (a commercial or private act). The applicants contended that the detention was an unlawful act outside the scope of sovereign immunity, while the United Mexican States argued that the detention was an exercise of sovereign authority and thus immune from Australian jurisdiction.

The High Court, comprising Gleeson CJ and Callinan J, examined the nature of the detention and the purpose for which it was carried out. Their Honours considered the distinction between acts that are inherently governmental and those that are commercial in nature. The Court ultimately found that the detention, as described, was not an act undertaken in the exercise of sovereign authority but rather an act that, if proven, would constitute a tortious act for which the United Mexican States could not claim immunity. The reasoning focused on the characterisation of the conduct itself, rather than the status of the actors.

The High Court held that the claim was not barred by sovereign immunity and remitted the matter to the Federal Court of Australia for further proceedings.

Orders