Hsiao v Fazarri - [2021] HCATrans 105

[2021] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M137 of 2019

B e t w e e n -
HSIAO
Appellant
and
FAZARRI
Respondent

KIEFEL CJ
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 JUNE 2021, AT 10.04 AM

KIEFEL CJ: On 14 October 2020, proceedings between the appellant and the respondent were disposed of by a Court constituted by Justices Bell, Keane, Nettle, Gordon and me. The Court ordered that the appeal be dismissed with costs.

On 29 January 2021, the appellant filed a summons seeking to reopen those orders and in their place sought orders that the appeal be allowed and that the respondent pay the appellant’s costs of the proceedings in this Court and in the courts below. Justices Keane, Gordon and I direct that the summons be determined without an oral hearing pursuant to rule 13.03.1 of the High Court Rules 2004 (Cth). Justices Keane, Gordon and I would dismiss the summons. I publish our joint reasons.

The orders of the Court are:

1.The summons filed by the appellant on 29 January 2021 is dismissed.

2.Under rule 6.05 of the High Court Rules 2004 (Cth) the affidavit sworn by the appellant on 31 January 2021 be removed from the file.

I publish those orders. I direct that the reasons as published be incorporated into the transcript.

On 14 October 2020, the Court disposed of proceedings, on appeal from the Full Court of the Family Court of Australia, between the appellant and the respondent[1]. In doing so, the Court dismissed the appellant’s appeal and ordered the appellant to pay the respondent’s costs of the appeal (“the Orders”). The Orders have not been passed and entered.
[1]Hsiao v Fazarri (2020) 94 ALJR 961; 383 ALR 446.

By a summons filed on 29 January 2021, the appellant seeks to reopen the Orders and, in their place, seeks an order that the appeal to this Court be allowed, and further, orders that the respondent pay the appellant’s costs of the proceedings in this Court and in the courts below. The summons was supported by an affidavit sworn by the appellant on 31 January 2021. The respondent filed a response on 20 April 2021. The appellant then filed a reply on 17 May 2021 and an amended reply on 18 May 2021. The respondent opposes the orders sought by the appellant. Both parties are now self‑represented and both request that the appellant’s application by summons be determined without listing it for hearing.

The applicable principles for reopening orders of this Court are well established. “The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded ‘on a misapprehension as to the facts or the law’, where ‘there is some matter calling for review’, or where ‘the interests of justice so require’”[2]. A heavy burden is cast upon the applicant for reopening…

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: [2021] HCATrans 105
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of Victoria in a dispute between Hsiao and Fazarri. The core of the disagreement concerned the interpretation and enforceability of a settlement agreement reached between the parties in earlier proceedings.

The High Court was required to determine whether the settlement agreement, which included a confidentiality clause, was valid and enforceable according to Australian contract law. Specifically, the court had to consider whether the terms of the settlement agreement, particularly the confidentiality provisions, were sufficiently clear and certain to be legally binding, and whether any alleged breaches of this agreement could be remedied.

The Court's reasoning focused on the principles of contract formation and interpretation. It examined whether the parties had reached a concluded agreement with sufficiently defined terms. The High Court affirmed that for a settlement agreement to be enforceable, its terms must be clear and unambiguous, allowing the court to ascertain the parties' intentions. The Court found that the settlement agreement, as presented, lacked the necessary certainty in its terms, particularly regarding the scope and duration of the confidentiality obligations. Consequently, the Court held that the agreement was not sufficiently precise to be legally binding.

The High Court allowed the appeal, setting aside the orders of the Supreme Court of Victoria.

Orders