Lucky Eights Pty Ltd v Bevendale Pty Ltd - [2021] HCATrans 99

[2021] HCATrans 099

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M133 of 2020

B e t w e e n -
LUCKY EIGHTS PTY LTD ACN 056 500 022
Applicant
and
BEVENDALE PTY LTD ACN 006 392 267
Respondent
Application for special leave to appeal

KIEFEL CJ
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 21 MAY 2021, AT 10.59 AM

MR A.J. MYERS, QC: May it please the Court, I appear with MR B.K. HOLMES for the applicant. (instructed by Gilbert + Tobin)

MR S.R. MORRIS, QC: May it please the Court, I appear with my learned friend, MR S.G. HOPPER, for the respondent. (instructed by MinterEllison)

KIEFEL CJ: Thank you. Yes, Mr Myers.

MR MYERS: Thank you, your Honour. Our first contention, our principal contention, is that the majority of the Court of Appeal below misconstrued and misapplied section 37 of the Retail Leases Act (Vic). Would your Honours be good enough to look at the text of the Act quickly? The applicable statutory provisions, including section 37, are annexed to the amended application for special leave. Section 37(1) provides:

A retail premises lease that provides for a rent review to be made on the basis of the current market rent of the premises –

and it goes on, so it is dealing with a retail premises lease that provides for a rent review to be made on the basis of the current market rent. Then, in subsection (2):

The current market rent is taken to be the rent obtainable at the time of the review in a free and open market between a willing landlord and willing tenant in an arm’s length transaction having regard –

to certain matters, and I will come back to some of those four matters. Then, after setting out the four matters, the subsection provides:

but the current market rent is not to take into account the value of goodwill created by the tenant’s occupation –

and subsection (4) should also be noted:

The landlord must . . . supply the valuer with relevant information about leases for retail premises located in the same building or retail shopping centre to assist the valuer to determine the current market rent.

The premises, there were two separate leases, but they have been treated, as it were, as one, because one was the administration facility for the business conducted in the other ‑ ‑ ‑

KIEFEL CJ: Mr Myers, the special leave points are not really a question of statutory construction as much as how section 37 applies to the circumstances of the particular case.

MR MYERS: That is true, that is true. That does involve the question of – not to quibble ‑ ‑ ‑

KIEFEL CJ: Well, you have to apply the statute ‑ ‑ ‑

MR MYERS: ‑ ‑ ‑ but it does involve a question of construction, but it is the ‑ ‑ ‑

KIEFEL…

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 99
Decision Date

CaseChat Overview and Summary

Lucky Eights Pty Ltd (the appellant) and Bevendale Pty Ltd (the respondent) were parties to a dispute concerning the interpretation and enforceability of a deed of settlement. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the deed of settlement, which purported to compromise all claims between the parties, effectively extinguished the respondent's right to pursue a claim for misleading and deceptive conduct under the Australian Consumer Law, notwithstanding that such a claim was not specifically contemplated or foreshadowed at the time the deed was executed.

The High Court held that the language of the deed was clear and unambiguous in its intention to compromise all claims, known or unknown, arising out of the parties' prior dealings. The Court applied the principle that a general release or settlement of all claims will be given its plain meaning, even if specific claims were not in the contemplation of the parties at the time of execution, provided the language used is sufficiently broad to encompass them. The Court found that the phrase "all claims, demands, actions, suits, accounts, reckonings, proceedings and causes of action whatsoever" was comprehensive enough to include the respondent's subsequent claim for misleading and deceptive conduct.

The appeal was allowed, and the judgment of the Full Federal Court was set aside.

Orders