KERRIGAN & NOTT

In the matter of *Kerrigan & Nott*, Riley J of the Supreme Court of New South Wales considered a dispute concerning the interpretation of a deed of settlement and release. The applicants, Kerrigan and Nott, sought to set aside a deed they had entered into with the respondent, a company, arguing that it was voidable due to alleged misrepresentations made by the company. The core of the dispute revolved around whether the applicants had been induced to enter into the deed by fraudulent or negligent misrepresentations regarding the company's financial position and future prospects.

The primary legal issue before the Court was whether the applicants could establish the elements necessary to void the deed of settlement and release on the grounds of misrepresentation. This required the Court to determine whether the statements relied upon by the applicants constituted actionable misrepresentations, whether these misrepresentations were material to the applicants' decision to enter into the deed, and whether the applicants had, in fact, relied on those misrepresentations. Furthermore, the Court had to consider whether any purported affirmations of the deed by the applicants, after becoming aware of the alleged misrepresentations, precluded them from seeking to set it aside.

Riley J analysed the evidence presented by both parties, paying close attention to the precise wording of the alleged misrepresentations and the surrounding circumstances at the time the deed was executed. The Court applied the principles of contract law relating to misrepresentation, including the distinction between statements of fact and statements of opinion or future intention. His Honour found that the statements relied upon by the applicants did not meet the threshold for actionable misrepresentation, as they were either expressions of opinion or predictions that were not demonstrably false at the time they were made. Consequently, the Court concluded that the applicants had not established a basis for setting aside the deed.

The Court therefore dismissed the application to set aside the deed of settlement and release.