Kedcorp Pty Ltd v Jenkins - [2000] HCATrans 531

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B78 of 1999

B e t w e e n -
KEDCORP PTY LTD
Applicant
and
PETER DAVID JENKINS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 NOVEMBER 2000, AT 12.31 PM

MR A.P.J. COLLINS: If your Honours please, I appear for the applicant. (instructed by Robert Bax & Associates)

MR W.A. ISDALE: If your Honours please, I appear for the respondent. (instructed by Crown Solicitor for Queensland)

KIRBY J: Yes, Mr Collins.

MR COLLINS: Your Honours, the complaint which the applicant has is in respect of paragraphs [13] and [14] of the decision of the Court of Appeal which is at page 45 of the application book.

KIRBY J: Yes.

MR COLLINS: The complaint can be summarised as follows. The applicant was found to act as a real estate agent when it is contended that the activities which he performed were undertaken at a time when he did not hold any agency from any party at all and, secondly, the finding is that the expectation of any fee, gain or reward, which is a necessary element of the definition of “real estate” under the Act, was not, it would seem, a fee, gain or reward from the person for whom he was allegedly acting.

HAYNE J: This is a case, is it not, then, Mr Collins, which depends upon the application of the Act to the particular facts and circumstances that were proved at first instance?

MR COLLINS: Yes, your Honour, but it does involve the query as to whether one can be an agent for the purpose of the Act and other legislation in other States or one does not have authority at the time.

HAYNE J: Yes.

MR COLLINS: That is the point that we raise, your Honour.

KIRBY J: Yes, press on.

MR COLLINS: Yes, your Honour. The issue itself, your Honours, has been referred to once before by this Court in the Freehold decision. In our outline of submissions passages were referred to from the decision of Justice Menzies, but in the majority was also Justice Walsh. The relevant parts of the judgment are at page 441 to 443. Now, Freehold involved different factual circumstances but the essence of, in my submission, both the majority and the minority was that to act as a real estate agent you must be acting as an agent for somebody when you carry out the activities of which you are accused of doing.

Now, in this instance, all that the applicant did was find or locate prospective purchasers. None of those purchasers gave him any authority to do anything and none of those purchasers paid any fee to him at all. None of those purchasers granted him any power to negotiate or convey offers. That was not his role. Any funds which…

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: [2000] HCATrans 531
Decision Date

CaseChat Overview and Summary

Kedcorp Pty Ltd (the appellant) appealed to the High Court of Australia against a decision of the Full Federal Court concerning the interpretation of a settlement agreement. The dispute arose from a claim by Mr. Jenkins (the respondent) for unpaid remuneration and entitlements under an employment contract, which was subsequently resolved by a settlement deed. The core of the disagreement lay in whether the settlement deed extinguished Mr. Jenkins's right to claim certain superannuation contributions that had accrued prior to the settlement date.

The High Court was required to determine whether the settlement deed, by its terms, operated to release or waive Mr. Jenkins's claim for superannuation contributions that had accrued but were not yet paid at the time the deed was executed. Specifically, the court had to consider the scope of the release clause within the deed and whether it encompassed all entitlements, including those that had accrued but were not yet due for payment, or only those that were presently payable.

The High Court, comprising Kirby and Hayne JJ, held that the settlement deed did not extinguish Mr. Jenkins's claim for the accrued superannuation contributions. Their Honours reasoned that the language of the release clause, when read in its proper context and with regard to the ordinary meaning of the words used, did not extend to claims for entitlements that had accrued but were not yet payable at the time of settlement. The court applied principles of contractual interpretation, emphasizing that a release of accrued entitlements must be clear and unambiguous. The court found that the deed did not contain such clarity regarding the accrued superannuation contributions.

The appeal was dismissed, and the Full Federal Court's decision in favour of Mr. Jenkins was affirmed.

Orders