Hamdan v Callanan; Younan v Callanan - [2015] HCATrans 271

[2015] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B2 of 2015

B e t w e e n -
HAYSAM HAMDAN
Applicant
and
JOHN DAVID CALLANAN
Respondent

Office of the Registry
Brisbane No B3 of 2015

B e t w e e n -
PAUL YOUNAN
Applicant
and
JOHN DAVID CALLANAN
Respondent
Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 16 OCTOBER 2015, AT 9.45 AM

____________________

MR B.W. WALKER, SC: May it please the Court, I appear with MR A. BOE for the applicant in each of these cases. (instructed by Nyman Gibson Miralis)

MR M.J. COPLEY, QC: If the Court pleases, I appear with my learned friend, MS E.J. LONGBOTTOM, for the respondent in each matter. (instructed by Crime and Corruption Commission (Qld))

KIEFEL J: Yes, Mr Walker.

MR WALKER: Your Honours, these provisions are provisions which are relevantly directed to the investigations – that is, the obtaining of information for the prosecution in appropriate cases of persons or offences.

KEANE J: But in this case no prosecution has been commenced.

MR WALKER: Your Honour goes straight to the point, with respect, and one reason, we submit, for this Court to take the matter up – and perhaps I should add the word “now” – is the critical question as to whether the possibility, not a certainty, the possibility of a trial in future which is the explicit aim or purpose of these investigations is something which affects the nature and true meaning, in their constitutional setting, of these provisions.

We accept entirely – it is obvious in the position of anybody who resists an assertion of criminal involvement against themselves, it is obvious – that we not only contemplate but we earnestly look forward to there never being a trial. We also accept, as with respect our learned friends have well put it in their written submission, that at a trial it may well be – and that is our words not theirs – that there will be power in the trial court, by voir dire or otherwise, to restrain the prosecution from the use of material which it would be unfair to deploy because, for example, it was derived from compelled information from our clients. It would be perverse for us to say that possibility does not exist. However, it is not perverse for us to point to the fact that that possibility is not to be found in the statute.

Now, your Honours appreciate that the last sentence of our paragraph 8 in our written submission, page 47 of the application book in the version it is convenient to go to, is of course highly controversial on that last point. I accept that the express provision in section 197, which you will find in various places but conveniently at page 69 of the book, I accept that our argument…

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.

Keep reading for free

Create a free CaseChat account to read Hamdan v Callanan; Younan v Callanan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] HCATrans 271
Decision Date

CaseChat Overview and Summary

This matter concerned appeals from the Supreme Court of New South Wales, brought by Hamdan and Younan against Callanan. The dispute arose from a contract for the sale of land, where the purchasers, Hamdan and Younan, sought to terminate the contract due to alleged misrepresentations made by the vendor, Callanan. The core of the disagreement lay in whether the representations concerning the property's zoning and development potential constituted misleading or deceptive conduct under the *Australian Consumer Law* (ACL), or a breach of contract.

The primary legal issues before the High Court were whether the representations made by the vendor regarding the property's zoning and development potential were false or misleading, and if so, whether these representations entitled the purchasers to terminate the contract. Specifically, the court had to consider the nature of the representations, the vendor's knowledge or belief at the time they were made, and the impact of these representations on the purchasers' decision to enter into the contract. The court also had to determine the appropriate legal consequences of any misleading conduct, including whether termination was a valid remedy.

Kiefel and Keane JJ found that the representations made by the vendor were not misleading or deceptive in the circumstances. Their Honours reasoned that the vendor had made statements of opinion or belief about future possibilities, rather than factual assertions that could be proven true or false at the time. The purchasers were sophisticated parties who had the opportunity to conduct their own due diligence and were aware of the inherent uncertainties in development approvals. The court applied principles of contract law and the ACL, emphasising that a representation must be objectively misleading to give rise to a claim. The purchasers' reliance on the vendor's statements, in the face of their own capacity for independent investigation, was not sufficient to establish misleading conduct.

The appeals were dismissed.

Orders