Hill & Anor v Sidney

[1990] HCATrans 300

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B31 of 1990

B e t w e e n -

STEVEN WILLIAM HILL and

BARRY WILLIAM HILL

Applicants

and

JOHN CHARLES SIDNEY and

SUZANNE SIDNEY

Respondents

Application for special

leave to appeal

MASON CJ

TOOHEY J

McHUGH J

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TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 7 DECEMBER 1990, AT 9.20 AM

Copyright in the High Court of Australia

MR R.R. DOUGLAS, OC: If the Court please, I appear with my

learned friend, MR P. SUMNER-POTTS, for the

applicants in this case.	(Instructed by Lennon &
Woosnam)

MR K.A. CULLINANE, QC: If the Court please, I appear with

my learned friend, MR M.M. VARITOMOS, for the

respondents. (instructed by Petersen & Lade)

MR DOUGLAS:  Your Honours, this application arises out of a

judgment of the Full Court of the Supreme Court of

Queensland in relation to an option clause

contained in an agreement for lease. The clause is

conveniently contained in the judgment of the
Chief Justice in the Full Court at page 18 of the

record.

I should tell Your Honours that thus far four judges of the Supreme Court of Queensland have

written judgments with respect to this clause.

Each of them have reached quite different

conclusions as to the effect of it, in particular,
clause 6(iv), which begins at the bottom of page 18
of the record. The debate, Your Honours, turned

upon the meaning to be given on the facts to the word "forthwith" which appeared in the option in

the lease agreement.

Your Honours, as I said, the conclusions of the four judges are quite different. His Honour

Mr Justice Derrington orders specific performance

of the contract in Cairns. His Honour, the Chief

Justice, for different reasons, we submit, reached

a similar conclusion and Their Honours Mr Justice

Shepherdson and Mr Justice de Jersey, for different
reasons between themselves; that is, each for

different reasons, reached the opposite conclusion.

TOOHEY J: Mr Douglas, is the clause in question 1 common

form in Queensland or is it peculiar to this

document?

MR DOUGLAS:  It is peculiar to the document, Your Honour. I

must at the outset accept that. I say to

Your Honours that the case is one which falls

within the provisions of section 35A(b) of the

Judiciary Act, that this Court should, in the

interest of administration of justice in this

particular case, consider the judgment of the Full Court, bearing in mind the fact that the

Judges here have reached quite different

conclusions about the meaning of the word. We

would submit that the proper reasoning is that

adopted by His Honour the Chief Justice at page 31

of the record.

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Now can I briefly state what occurred? In the

agreement for lease there was the clause which gave

an option, exercisable until 30 June, 1988, to

purchase the land. On 10 March, 1988 the applicants

purported to exercise that option, but did not at

that time forward an executed contract of sale or

the deposit.	On 31 March, 1988, about two weeks
later, the respondents purported to rescind.	On
15 April the applicants forwarded an executed
contract and a deposit.	The respondents gave no

warning to the applicants of their intention to

rescind on 31 March nor did they give a notice to

complete.

It ought to be remembered, Your Honours, that

the option was exercisable until 30 June, 1988.

Now in that context, Your Honours, there has been

filed a supplementary affidavit, which does not

appear in the record, of Robert Edward Reed, filed,

I believe, on 29 November, in which, Your Honours,

sets up the argument which was taken in the summons

but, I must concede, not argued in the Full Court,

that the delivery of the deposit and the executed

contract of sale on 15 April, 1988, itself
constituted an exercise of the option.

Your Honours, we submit that that question is one which ought to be determined by this Court as to

whether the second deed of the applicants was

itself a sufficient exercise of the option. There

is dicta of Your Honour - - -

MASON CJ:  The trouble with that is that it differs from the

basic assumption on which the litigation has been

conducted by the parties up to this point.

MR DOUGLAS: It does, Your Honour, except that the summons

in the first instance - and the summons is not
before Your Honours - but I can inform you that the
summons did, when first taken out, proceed on two

bases: one, the basis which was litigated, and the

second based upon a second exercise of the option

on 15 April 1988.

MASON CJ: But that basis was not maintained before the

primary judge or the Full Court.

MR DOUGLAS: That is so, Your Honours, and we, of course, appreciate the difficulties we have. This Court

has said on a number of occasions what difficulties

they are. I would just refer to Nominal Defendant

(Q'ld) v Nilan, (1988) 62 ALJR 302, without reading

from that case.

TOOHEY J:  Mr Douglas, is the question of the second

exercise of option still a live issue in the

supreme court?

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MR DOUGLAS:  Your Honour, no judge has given a judgment with

respect to it. It was not ruled upon by His Honour

Mr Justice Derrington at first instance, and

His Honour the Chief Justice expressly says in his

judgment, at page 18 of the record, that it was not

argued before that court.

Your Honour, to answer the question, I am not

sure whether an issue estoppel has arisen or not

with respect to that.	It certainly was not argued,
but it was - - -

TOOHEY J: It is not immediately apparent that that question

is not still extant before a judge of the supreme

court.

MR DOUGLAS:  Your Honour, the summons was dealt with in the

sense that orders were made upon the summons. All I can say is that no orders were made with respect to that part of the summons, either dismissing it

or in a positive way making orders upon it.

TOOHEY J: Presumably no attempt has been made to revive

that issue before either a single judge, or indeed

before the Full Court?

MR DOUGLAS:  That is so, Your Honour. May we make one other

submission. In the judgments of the Full Court,

with respect to them, their judgments, with the
exception of the Chief Justice, seemed to forget

that when construing the word "forthwith" the

parties had until 30 June either to exercise the

option or not. So when one considers whether it

was essential, as Mr Justice de Jersey says, to

almost immediately forward and execute a contract

and deposit, he fails to take into account the fact

that they had until 30 June anyhow to decide what

they wanted to do.

As I say, I cannot submit this is a case where

any question of general importance arises. I

submit it is a case where it can be demonstrated

that the judges of the courts below are wrong,

perhaps, in their conclusion and the administration

of justice demands that this Court look at it for

that purpose. I say that because there is no

comity, if you like, between the four judgments we

already have. I cannot take it any further than

that, Your Honours.

MASON CJ: Yes, thank you, Mr Douglas. The Court need not

trouble you, Mr Cullinane. The principal question

sought to be raised in this application for special

leave concerns the construction of a particular and

unusual provision in a contract. The resolution of

this question raises no question of general

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principle and is unlikely to result in any

elucidation of general principle.

The applicants also seeks to argue that the

option was exercised on another basis, not argued
at first instance, or in the Full Court, but we
would not be disposed to grant leave to enable this
question to be raised in this Court when we lack

the benefit of consideration of it by the courts

below.

Although the judges below advanced different

reasons for a conclusion adverse to the applicants,

the case is not such as to call for the grant of

special leave to appeal.	The application is
therefore refused.

MR CULLINANE:  We ask for an order for costs, may it please

Your Honour.

MASON CJ: It is not opposed, is it, Mr Douglas?

MR DOUGLAS:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 9.25 AM THE MATTER WAS ADJOURNED SINE DIE

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