Evans & Ors v Measy

[1997] HCATrans 81

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B20 of 1996

B e t w e e n -

ERNEST VICTOR EVANS, EDWARD JOHN EVANS, GRAEME DOUGLAS EVANS and KAREN PATRICIA LANGTON

Applicants

and

BRIAN HAROLD MEASEY and PATRICIA MARY MEASEY

Respondents

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 APRIL 1997, AT 10.03 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC:   May it please the Court, I appear with MR M.M. STEWART for the applicants.  (instructed by Ian C. Millyard)

MR P.D. McMURDO, QC:   If the Court pleases, I appear for the respondents.  (instructed by Gadens Ridgeway)

BRENNAN CJ:   Mr Solicitor, I think we can say to you that the point that you seek to argue is, in our view, highly arguable, as at present advised and subject to what Mr McMurdo might say, but what is the special leave point?

MR KEANE:   Your Honour, in our respectful submission it is this.  The decision of the Court of Appeal treats the description of a condition as being for the benefit of a party, as pregnant with a significance apt to absolve that party of the consequences of an election which the condition itself requires that party to make.  The orthodox approach ‑ ‑ ‑

GUMMOW J:   After it has made it, too.  They had made it, had they not?

MR KEANE:   After it has made it, your Honour, they had, quite so.  And, indeed, your Honour, had made it and waited until the day before the six month period had expired, at the end of which, of course, my clients would have been entitled to rescind.

GUMMOW J:   Yes, but this is not a standard form, is it?

MR KEANE:   No, it is not a standard form, your Honour.  It is very distinctly not, and we appreciate the difficulty we face is in demonstrating the case is an appropriate one for the grant of special leave.  That is why we submit that the point is really this:  the cases such as Gange v Sullivan and that line of cases where the courts are concerned to deal with provisions which are described as being for the benefit of one party, the essence of those cases, the essence of that line of authority is the view that that description, used routinely, as we have submitted, by those who draw contracts for the sale of land - not in a standard form but routinely used by those who draw such contracts - has in this case been given a force, been allowed a force which, as a matter of principle in terms of approach to construction it should not be allowed to have.  In particular, we submit that it is contrary to the fundamental principle which is that the governing provisions of the contract should be the express provisions, rather than implication.

The problem which this case poses is that the Court of Appeal has recognised ‑ and quite distinctly recognised at page 39 of the record, commencing at about line 6 ‑ the Court of Appeal has quite distinctly recognised the especial force.  We have said they recognised the provision was pregnant with the significance, which in our respectful submission it cannot be allowed to  have, so as to defeat the actual exercise of an election and the rights that are created in consequence of that.

BRENNAN CJ:   Mr Solicitor, can we just take you to that paragraph which does seem to contain the gravamen of the court’s view.  If one looks at, I think it is about line 8, where his Honour says:

the last sentence of subcl. (d) applies to the whole condition and its curious location does not, in our view, affect its construction.

Now, I take it you would join issue with that proposition, is that correct?

MR KEANE:   No, your Honour, we accept that.  We accept that and we do not seek to say that the court erred in that.  What we say, with respect, is that the court erred in the significance which it allowed a provision, which in terms, we accept, refers to the whole of the condition, but nevertheless allows parties to escape the consequences of elections they are required to make by that condition.  We submit that is erroneous and erroneous in terms of principle.

BRENNAN CJ:   One looks at the next sentence:

Looking now at subcl. (e), we can find nothing in it which expressly accords a right to the vendors, other than the second-last sentence, which gives a right of termination, but not one operative before the six month period mentioned in that sentence expires.

Do you accept that?

MR KEANE:   Yes, your Honour.

BRENNAN CJ:   You accept that also?

MR KEANE:   Yes.  We accept these matters and we do that because we recognise that they are matters which are truly matters which arise because of the peculiar drafting of this provision.  We accept that any application for special leave must be founded on the footing that we can only win the case ‑ we can only expect to get a grant of special leave on the footing that the question of principle is squarely raised and we accept that we have to confront that head on. 

Your Honours, that is what we can say in relation to the issue which your Honour has raised for our submission, that is to say the question as to the general importance of the case.  Unless your Honours have some other aspect of the matter on which you wish to hear us, those are our submissions.

BRENNAN CJ:   Could I just say that for myself the problem that I face is that I cannot see how the Court could address the questions that you seek to raise except by reference to a construction being placed upon the provisions of this contract, and being specific to that.

MR KEANE:   Your Honour, we accept that this is a question of construction of a particular contract.  Having said that, the question of construction of this contract falls to be decided, as their Honours did, by giving to the particular phrase a particular force.  That phrase is a phrase which, as we have said, is used routinely in contracts for the sale of land.  That phrase should not be allowed, as a matter of principle, to override by the implications that flow from it, by the implications that the court is prepared to regard as flowing from it, the express provisions of the contract.

BRENNAN CJ:   Let me give you a precise problem that I face at the moment.  The first sentence which I drew to your attention and which you accepted:

the last sentence of subcl. (d) applies to the whole condition and its curious location does not, in our view, affect its construction.

Now, if the Court were to come to the view that that was wrong, you would succeed, is that not right?

MR KEANE:   We would, your Honour.

BRENNAN CJ:   And how can one be sure that that is not the correct solution to the case?

MR KEANE:   Your Honour, we submit that the language that is used is clear.  Its location might be a geographical oddity, but it is no more than that.  The language is, in its terms, literally apt to refer to ‑ and indeed to refer to nothing other than ‑ the whole of the condition.

BRENNAN CJ:   Which condition?

MR KEANE:   The whole of condition 6.

BRENNAN CJ:   That is one way of reading it. 

MR KEANE:   In our respectful submission, your Honour, to read it otherwise is to read it down by reference to considerations of location.  But it certainly cannot be said to be absurd and it can be given effect, as we have submitted it can be given effect, on the footing that it can be exercised at any time other than once an election has been made.

Your Honours, those are our submissions.

BRENNAN CJ:   We need not trouble you, Mr McMurdo.

The issues which would arise if special leave were granted in this case must turn on the specific and peculiar terms of the contract.  For that reason, the case is not a suitable vehicle for considering any issues that might otherwise warrant a grant of special leave.  Accordingly special leave is refused.

MR McMURDO:   May it please the Court, I ask for costs.

BRENNAN CJ:   Have you anything to say about that, Mr Keane?

MR KEANE:   Nothing to say about that, your Honour.

BRENNAN CJ:   Special leave will be refused with costs.

AT 10.14 AM THE MATTER WAS CONCLUDED