Harris v Bellemore - [2011] HCATrans 346

[2011] HCATrans 346

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S268 of 2011

B e t w e e n -
PAUL HARRIS
Applicant
and
MICHAEL BELLEMORE
Respondent
Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 2011, AT 2.50 PM

MR B.M. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MR E.G. ROMANIUK, for the applicant. (instructed by T D Kelly & Co)

MR S.R. DONALDSON, SC: May it please the Court, I appear with my learned friend, MR E.C. MUSTON, for the respondent. (instructed by Blake Dawson)

FRENCH CJ: Yes, Mr Toomey.

MR TOOMEY: Thank you, your Honours. Your Honours, this was a case with complex facts which went for 29 days and the trial judge’s decision was partly overturned in the Court of Appeal. Perhaps I can just shortly state what did happen. The applicant was a professional engineer. As a boy he had two accidents which resulted in him having one leg shorter than the other. He was a twin and it greatly preyed on his psyche, consciousness, his peace of mind that he was different from his brother. His brother was athletic and, of course, uninjured. He became aware in his late 20s of a process called an Ilizarov process which ‑ ‑ ‑

FRENCH CJ: Sorry, Mr Toomey. I do not want you to use up precious time unnecessarily. I think we are both pretty familiar with the facts.

MR TOOMEY: May it please your Honours.

FRENCH CJ: So the first point is whether or not the matter was wrongly remitted to the primary judge.

MR TOOMEY: Can I leave that to the end, your Honour, because an important point, we say, is what we characterise as a profound failure of process in the decision on whether the psychiatric injury was to be attributed to the surgery. Can I elucidate it in this way. The applicant, late in the case after the respondent had admitted liability for all that arose out of the second osteotomy, put on a pleading which has caused a lot of trouble and which said, in effect, well, if it had not been for the second osteotomy he would not have any psychiatric injury.

FRENCH CJ: It did not pick up the procurvatum?

MR TOOMEY: No, it did not.

FRENCH CJ: That is the problem that you are facing, I think, is it not?

MR TOOMEY: Perhaps, your Honour, but it is met, we say, by the failure of process to which I wish to take your Honours. The case therefore proceeded towards the end of the case when it got to the expert’s conclaves and such like on the basis that it had to be determined what was caused by the second osteotomy and what was caused by the first. The questions left to the psychiatrists included a…

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: [2011] HCATrans 346
Decision Date

CaseChat Overview and Summary

In *Harris v Bellemore*, the High Court of Australia considered a dispute between the appellant, Mr Harris, and the respondent, Ms Bellemore, concerning the interpretation of a clause within a deed of settlement. The core of the disagreement lay in whether Ms Bellemore was entitled to receive a further payment under the settlement deed, contingent on the successful sale of certain shares.

The central legal issue before the High Court was the proper construction of clause 4(b) of the deed of settlement. This clause stipulated that Ms Bellemore would receive an additional payment if the shares were sold for a price exceeding $1.50 per share. The High Court had to determine whether the phrase "sold for a price exceeding $1.50 per share" referred to the gross sale price or the net sale price after deducting certain expenses.

The High Court, in its joint judgment, applied principles of contractual interpretation, emphasizing the importance of giving effect to the ordinary meaning of the words used in the deed, read in their context. The Court found that the phrase "sold for a price" in the absence of any express indication to the contrary, referred to the gross consideration received for the shares. The Court reasoned that if the parties had intended to refer to a net price, they would have used clearer language, such as "net proceeds of sale" or "price after deduction of expenses." Therefore, the Court concluded that the condition for the additional payment was met because the shares were sold for a gross price exceeding $1.50 per share, irrespective of any associated selling costs.

The High Court allowed the appeal, setting aside the orders of the Full Court of the Supreme Court of Queensland and ordering that Ms Bellemore was entitled to the further payment under the deed of settlement.

Orders