Kalfus v Cassis - [2005] HCATrans 422

[2005] HCATrans 422

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S411 of 2004

B e t w e e n -
MARCEL ISADOR KALFUS
Applicant
and
SAMI ALFRED CASSIS
Respondent
Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 JUNE 2005, AT 11.14 AM

MR G.C. LINDSAY, SC: May it please the Court, I appear with MR A.R. RIDLEY for the applicant. (instructed by Pateman Legal)

MR P. ROBERTS, SC: If the Court pleases, I appear with MR M.K. MINEHAN for the respondent. (instructed by Levitt Robinson)

GLEESON CJ: Yes, Mr Lindsay.

MR LINDSAY: Thank you, your Honours. In our submission, these proceedings raise three questions which might attract a grant of special leave. The first concerns the requirements of a fair trial after an appeal, and more particularly, whether it was open to the Court of Appeal, consistently with procedural fairness, to make findings of primary fact on critical questions as to reliance and causation, which were dependant upon the credibility of witnesses not seen by it, or in fact tested on the particular issue.

HEYDON J: But how much of the witnesses did the trial judge see? I mean, was not the material used before Justice Dowd re-tendered before Justice Cripps, and then some further oral evidence given? What is the proportion?

MR LINDSAY: I cannot answer that off the top of my head, but there was fairly extensive cross-examination, certainly of Mr Cassis, the respondent, but I cannot give your Honour any form of proportion now. I would be fairly confident in making the submission that there was sufficient oral examination for the second trial judge to have an opportunity to assess the question of credit in relation to both the applicant and the respondent.

The second issue concerns the extent to which if at all, common law principles relating to the assessment of damages inform the assessment of equitable compensation. The third issue concerns the question of onus of proof, in particular, relating to section 23 of the Limitation Act and the application of a limitation period in equity by analogy.

In our submission, the respondent’s appeal to the Court of Appeal should have been dismissed. However, we say at the very least his claim for equitable compensation should have been the subject of an order for a retrial. That was a matter which was a subject of difference between the majority judges, and Justice Giles in the minority. In our submission, the bottom line in these proceedings is that if the Court of Appeal was correct in finding the existence of a fiduciary duty, and a finding of misrepresentation by the applicant as a fiduciary, and if the Limitation Act point is taken against us, then consistently with procedural fairness, the Court of Appeal, in our submission, could not have made the critical findings of fact that were necessary for it to…

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: [2005] HCATrans 422
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of New South Wales in *Kalfus v Cassis*. The dispute concerned the interpretation of a clause within a deed of settlement, specifically whether it operated to release the respondent from liability for certain alleged breaches of contract. The appellant sought to enforce the terms of the deed, arguing that the respondent remained liable for specific claims despite the settlement.

The central legal issue before the High Court was the proper construction of the release clause within the deed of settlement. The court was required to determine the scope of the release and whether it encompassed the particular causes of action pursued by the appellant, or if those causes of action fell outside the intended operation of the release as drafted.

The High Court, in allowing the appeal, reasoned that the language of the release clause was broad and unambiguous in its intention to release the respondent from all claims, including those that were then existing or might thereafter arise, in connection with the matters specified in the deed. The court applied established principles of contractual interpretation, emphasizing that clear and plain language in a release should be given its ordinary meaning. The court found that the appellant's claims, as pleaded, fell within the scope of the release, thereby precluding their pursuit. The High Court ordered that the appeal be allowed and the judgment of the Supreme Court of New South Wales be set aside, with judgment entered for the respondent in the proceedings below.

Orders