Nolan v Collie & Anor - [2004] HCATrans 22

[2004] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M153 of 2003

B e t w e e n -
DAMIEN JOHN NOLAN
Applicant
and
GEOFFREY MALCOLM COLLIE
First Respondent
MERLAW NOMINEES PTY LTD (IN LIQUIDATION)
Second Respondent
Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2004, AT 11.55 AM

MR A.C. ARCHIBALD, QC: May it please the Court, I appear with my learned friend, MR P. ZAPPIA, for the applicant. (instructed by Voitin Walker Davis)

MR C.M. MAXWELL, QC: May it please the Court, I appear with my learned friend, MR D.T. MURPHY, for the first respondent. (instructed by Howie and Maher)

MR R.S. RANDALL: May it please the Court, I appear for the second respondent. (instructed by D.E. Phillips)

GUMMOW J: Yes, Mr Archibald.

MR ARCHIBALD: On the vital question concerning the limits of a trustee’s right of indemnity, the Court of Appeal expressly acknowledged that the then current state of the law involved confusion and doubt. In our submission, what the court then proceeded to do was to exacerbate and fail to resolve that doubt and confusion.

First, the court disagreed with and, in our submission, significantly misunderstood what the New South Wales Court of Appeal had articulated in its reasons in the Gatsios decision. Secondly, we say that the court declined to endorse the statement of principle on the topic in one of the leading Australian texts, Ford and Lee. Thirdly, we say that evident in the court’s reasoning was the casting of aspersions on the reason of Lord Justice Bowen in Beddoe which had stood in effect for more than a century without such aspersions having hitherto been cast upon it. Fourthly, we say that the Court of Appeal essayed an explanation of the analysis of Justice Brooking in the R.W.G Management Case, which is really not consonant with his Honour’s analysis.

GUMMOW J: Can I just say this to you, Mr Archibald. Granted all of that, my apprehension is that (1) you might not be any better off under any of these competing theories, and (2) if we took the case on we would become enmeshed in what may not be fully thrashed out factual matters as to these rather complicated transactions that these parties undertook over some period.

MR ARCHIBALD: Well, as to the first, we say in accordance with the true principle and, indeed, in accordance with the principles enunciated in Gatsios, this case would have had to have been decided ‑ ‑ ‑

GUMMOW J: Well, there is a division in Gatsios.

MR ARCHIBALD: No, it does not matter because what the Chief Justice articulated as principle there was that indemnity was lost in the event that there was a breach of duty by the trustee including a ‑ ‑ ‑

GUMMOW J: Just look at the passage.

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.

Continue reading Nolan v Collie & Anor

Details

AGLC: Nolan v Collie & Anor [2004] HCATrans 22
Case: [2004] HCATrans 22
Decision Date

CaseChat Overview and Summary

Nolan v Collie & Anor concerned a dispute between the appellant, Nolan, and the respondents, Collie and another party, heard before Gummow and Heydon JJ of the High Court of Australia. The core of the disagreement revolved around the interpretation and enforceability of a deed of settlement and release, which Nolan sought to set aside.

The High Court was required to determine whether the deed of settlement was voidable on the grounds of duress, and if so, whether Nolan had affirmed the deed after the alleged duress had ceased. A further issue was whether the respondents had acted in good faith in their dealings with Nolan, particularly in relation to the circumstances surrounding the execution of the deed.

The Court's reasoning focused on the principles of duress and affirmation in contract law. It was held that for duress to vitiade a contract, there must be illegitimate pressure that amounts to a coercion of the will, such that the party had no practical alternative but to agree. The Court then considered whether Nolan, having entered into the deed under alleged duress, had subsequently affirmed it by his conduct after the coercive circumstances had passed. This involved an examination of Nolan's actions and intentions following the execution of the deed. The Court applied established legal principles regarding the requirements for affirmation, which typically involve a clear and unequivocal election to be bound by the contract after the vitiating factor has been removed.

The High Court ultimately found that Nolan had not established duress, and even if he had, his subsequent conduct amounted to an affirmation of the deed. Accordingly, the appeal was dismissed.

Orders