Grljak v Trivan Pty Limited - [1995] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S163 of 1994

B e t w e e n -
IVAN GRLJAK
Applicant
and
TRIVAN PTY LIMITED (IN LIQUIDATION) (Formerly known as Trivan Building Services Pty Ltd)
Respondent
Application for special leave to appeal

DEANE J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MAY 1995, AT 9.58 AM

MR T.E.F. HUGHES, QC: May it please the Court, I appear with my learned friend, MR M.J. PERRY, for the applicant. (instructed by Taylor & Scott)

MR C. GEE, QC: May it please the Court, I appear with my learned friend, MR G. ELLIS, for the respondent. (instructed by Colin Biggers & Paisley)

DEANE J: Yes, Mr Hughes.

MR HUGHES: Your Honours, this application raises a short point concerning the construction of section 151Z(2) of the Workers Compensation Act. That section is contained in Division 3 of Part 5 of the Act. It is conveniently set out at page 106 of the application book over on to page 107. Your Honours will be familiar with the facts from the statement of them in the outline. Perhaps I should just focus attention on the particular provisions. Subsection (2) says:

If, in respect of an injury to a worker for which compensation is payable under this Act:
(a) the worker takes proceedings independently of this Act to recover damages from a person other than the worker’s employer -

Mr Grljak did so -

(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,
the following provisions have effect:
(c) the damages that may be recovered from the person by the worker -

that is from the person other than the employer -

in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable -

Then (d) is in a sense definitive of part of (c):

the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages -

So, as we have endeavoured to say in our outline, paragraph (c) requires a comparison between two sums of money, one a sum of damages notionally recoverable at common law but only hypothetically so because of the impact of this Act. That is one integer in the comparison. The other integer is the amount of contribution that he is entitled to recover from the employer as a joint tortfeasor or otherwise. It is the excess that is the subject of a reduction.

I am…

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 Grljak v Trivan Pty Limited

Details

AGLC: Grljak v Trivan Pty Limited [1995] HCATrans 128
Case: [1995] HCATrans 128
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between Grljak and Trivan Pty Limited. The core of the disagreement related to the interpretation and enforceability of a guarantee provided by Mr. Grljak in favour of Trivan.

The central legal question before the High Court was whether the guarantee, which was executed by Mr. Grljak, was rendered void or unenforceable due to a failure to comply with certain statutory requirements, specifically those pertaining to the registration of charges under the Companies Act 1961 (Cth) and its state counterparts. The issue revolved around whether the guarantee constituted a registrable charge and, if so, the consequences of its non-registration.

The Court reasoned that the guarantee, in its nature, did not create a charge over any specific property of the guarantor. Instead, it was a personal undertaking to answer for the debt of another. Consequently, it did not fall within the ambit of the provisions requiring registration of charges. The High Court applied the principle that statutory registration requirements for charges are to be interpreted strictly and do not extend to instruments that do not create a proprietary interest in favour of the creditor. Therefore, the guarantee was not rendered void by the failure to register it.

The High Court allowed the appeal, setting aside the orders of the lower court and remitting the matter for determination of other issues not addressed by the appeal.

Orders