Clayton v Bant - [2020] HCATrans 137

[2020] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B21 of 2020

B e t w e e n -
CLAYTON
Appellant
and
BANT
Respondent

KIEFEL CJ
BELL J
GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON WEDNESDAY, 9 SEPTEMBER 2020, AT 10.02 AM

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MS A‑M. McDIARMID in Brisbane and MS S.F. GAUSSEN in Sydney for the appellant. (instructed by Ferguson Legal Solicitors)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR M.W. TODD for the respondent. (instructed by Watts McCray Lawyers)

KIEFEL CJ: The record will show that Justice Edelman and I are sitting physically in Brisbane, Justices Bell and Gageler in Sydney and Justice Gordon in Melbourne and that the proceedings are being hosted through Courtroom 2 in Canberra. Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. The Court should have our outline of argument.

KIEFEL CJ: Yes.

MR JACKSON: If your Honours are happy for me to proceed with the argument in substance I will do so.

KIEFEL CJ: Yes, Mr Jackson.

MR JACKSON: As the Court will have seen – and I am referring, in particular, to paragraph 2 of our appellant submissions in‑chief – the issue in the proceedings is whether, as the Full Court held, divorce in the United Arab Emirates, in particular in Dubai, prevented the appellant from persisting with applications for property settlement and spousal maintenance in the Family Court of Australia and the bases underlying the Full Court’s reasons being res judicata or, perhaps a version of it, or Anshun, or as it is called in the judgment, the “Henderson extension”, form of estoppel.

It may be convenient, your Honours, if first I indicate where the core of the Full Court’s reasons is to be seen and that, if I could go to the core appeal book, is at page 66, paragraphs 26 to 30 in respect of the claim for property settlement and, on the next page, page 67, at paragraphs 31 to 38 in respect of spousal maintenance.

Your Honours, if I can come for a moment to the base for the background facts. They may be stated shortly. They appear in submissions in‑chief, in paragraphs 1 to 15 and may I mention them in summary form. They are these. The appellant and the respondent married in Dubai on 15 July 2007. The husband is a national of the UAE, the wife Australian. The husband lives in the UAE. The parties separated in July 2013 and as the primary judge said in paragraph 7 of her Honour’s reasons, which is in page 10 of the core appeal book, they had lived throughout their relationship between the UAE and Australia.

Further, your Honours, the parties owned property as set…

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: [2020] HCATrans 137
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Mr. Clayton and Mr. Bant concerning the enforceability of a deed of release. Mr. Clayton sought to enforce the deed against Mr. Bant, who argued that the deed was void due to a misrepresentation. The case reached the High Court following decisions in lower courts.

The central legal issue before the High Court was whether Mr. Bant could rely on the defence of misrepresentation to avoid his obligations under the deed of release, despite the deed containing a clause that stated the deed was not entered into in reliance on any representation made by Mr. Clayton. The court had to determine the effect of such an "as is" or "non-reliance" clause in the context of a claim for misleading or deceptive conduct under the Australian Consumer Law.

The High Court held that the non-reliance clause did not preclude Mr. Bant from relying on the misrepresentation. The Court reasoned that the Australian Consumer Law, specifically s 18, prohibits misleading or deceptive conduct, and this prohibition cannot be contracted out of by a non-reliance clause. The Court distinguished this from common law contractual principles, where such clauses can be effective. The statutory prohibition against misleading conduct is a matter of public policy, and parties cannot by agreement exclude its operation. Therefore, Mr. Bant was entitled to pursue his claim that the deed was voidable due to misrepresentation.

The High Court allowed Mr. Bant's appeal, setting aside the orders of the lower courts and remitting the matter to the Supreme Court of Victoria for determination of the claim of misleading and deceptive conduct.

Orders