O'Shaughnessy v Jwland Group Pty Ltd (Appeal) - [2025] ACAT 10

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

O’SHAUGHNESSY v JWLAND GROUP PTY LTD (Appeal) [2025] ACAT 10

AA 33/2024; AA 35/2024 (XD 199/2024; XD 202/2024)

Catchwords: APPEAL – civil dispute – contract – general release – interpretation – general words of a release are to be read subject to the particular matters that are shown by the recitals to be the occasion of the instrument – regard to be had to the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract – appreciation of the commercial purpose is facilitated by an understanding of the genesis of a transaction, the background and the context.

Cases cited:Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7
Grant v John Grant & Sons Pty Ltd [1954] HCA 23
Protheroe v Protheroe [2023] NSWCA 328
Pye v Registrar, Domestic Animals Act 2000 [2022] ACAT 102
Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31

Tribunal:Acting Presidential Member G Curtin SC

Date of Orders:  12 February 2025
Date of Reasons for Decision:      12 February 2025
Date of Publication:  21 February 2025
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 33/2024

BETWEEN:

BERNADINE O’SHAUGHNESSY
Appellant

AND:

JWLAND GROUP PTY LTD ACN 614 864 792
Respondent

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 35/2024

BETWEEN:

BERNADINE O’SHAUGHNESSY
Appellant

AND:

JWLAND GROUP PTY LTD ACN 614 864 792
First Respondent

CELESTIAL DEVELOPMENT NO 4 PTY LTD ACN 169 997 655
Second Respondent

APPEAL TRIBUNAL: Acting Presidential Member G Curtin SC
DATE:12 February 2025

ORDER

The Tribunal orders that in both appeals:

Appeal upheld.
The orders of the Original Tribunal dated 15 July 2024 are set aside.
The proceedings are remitted to the Original Tribunal as originally constituted to be determined according to law and in accordance with these reasons.

………………………………..
Acting Presidential Member G Curtin SC

REASONS FOR DECISION

Introduction

In 2020, the appellant commenced proceedings against the respondents (numbered XD 1171) in relation to alleged defects in a residential unit she had purchased off-the-plan. As explained in more detail below, the issues in dispute between the parties in those proceedings were finalised by two sets of Tribunal orders and, subsequently, by a Settlement Deed (the Deed).
In 2024, the appellant commenced three proceedings against the respondents and another party (numbered XD 199, 201 and 202) for further alleged defects in the unit. The three proceedings were heard together with evidence in each proceeding being evidence in the others.
In defence of those three claims, the respondents submitted that a general release clause in the Deed prevented the appellant from bringing the three proceedings. The first respondent also cross-claimed. It claimed a contractual right to payment of its legal costs on an indemnity basis in defending the three proceedings relying upon certain terms of the Deed. The respondents were successful on both counts.
The appellant appealed from the orders made in each of the three cases.
This is a decision in relation to two of the three appeals, namely in AA 33 and AA 35 of 2024. The third appeal (AA 34/2024) was dismissed by consent after the appellant elected to discontinue it.
Three issues were common to each of the two remaining appeals, being:
(a)whether the Original Tribunal erred in construing the terms of the Deed;
(b)whether the Original Tribunal erred in not finding that the Deed was void on the basis that it was associated with or made in furtherance of an illegal purpose; and
(c)whether the Original Tribunal erred in awarding indemnity costs to the respondent based on the terms of the Deed.
I shall refer to those three matters as Grounds 1, 2 and 3.
A fourth issue, which only related to appeal AA 35/2024 (the appeal from proceedings XD 202 of 2024), was whether leave should be granted to allow the appellant to tender fresh evidence on the appeal.

Summary of decision

In my opinion, the Original Tribunal erred in construing the Deed. On its proper construction, the Deed did not bar the appellant’s three 2024 proceedings and could not support the order for indemnity costs under the Deed.
That finding is sufficient to uphold grounds 1 and 3, and the appeal. There is therefore no need to determine ground 2. Accordingly, the two proceedings are remitted to the Original Tribunal, as originally constituted, for determination according to law.
In appeal AA 35/2024 (from proceedings XD 202/2024), there was an additional reason advanced by the respondents before the Original Tribunal as to why the appellant’s case should have been dismissed, namely that she had not tendered any proof of loss. It was to overcome that perceived deficiency that the appellant sought to tender fresh evidence on the appeal. In my opinion, the fresh evidence was not admissible on the appeal because no exceptional circumstances had been demonstrated for its admission.[1]
[1] Pye v Registrar, Domestic Animals Act 2000 [2022] ACAT 102 at [79]
Be that as it may, the Original Tribunal did not decide this point taken by the respondents. The respondents did not raise the point as a cross-appeal (even in an informal way) and so, as explained later in these reasons, that issue should also be remitted to the Original Tribunal for determination. It will be a matter for the Original Tribunal whether to allow further evidence on the remitted proceedings.

Background

In December 2017, the appellant purchased an off-the-plan unit (the Property) in Campbell, in the Australian Capital Territory, from the second respondent (Celestial) and which had been developed by the first respondent (JWL).
She moved into the apartment sometime in 2019.
Thereafter she noticed what she regarded as defects in the construction of the Property and entered into discussions with the respondents in relation to their rectification.
In about November 2020, the appellant commenced proceedings in the Tribunal against the respondents to this appeal, and one other respondent, seeking compensation and rectification in relation to certain alleged defects. Those proceedings were numbered XD 1171/2020 (XD 1171).
On 14 April 2021, and in XD 1171, the Tribunal made consent orders in relation to all defects in dispute except for one, being Item 12. The parties referred to these orders as the Primary Orders. In general terms, the Primary Orders involved the payment by the respondents to the appellant of certain monies, and the respondents undertaking certain rectification works. The determination of Item 12 was deferred to another date. None of the material before me identified what Item 12 was.
The monies payable under the Primary Orders was for carpet cleaning, the cleaning of a window, doors and mirrors, the replacement of a lock and repair of the front door, the replacement of a kettle and payment for the Tribunal filing Fee.
The rectification work referred to in the Primary Orders related to bathroom tiles, marble on the kitchen benchtop, two damaged floorboards, the top of a balustrade, joinery of the kitchen island bench, planter boxes, the sliding door to the main balcony, a handle on a second sliding door, cleaning and repainting the front door and removing grout from the surface of a tile in the ensuite bathroom. All rectification work was ordered to be completed by 9 June 2021.
On or about 17 September 2021, the appellant filed an Application for Interim Orders. The orders sought were:
Request a change of Orders to facilitate the compliance of Orders as determined on the 9 Apr 21 and to repair damage sustained during the rectification.
New Orders to include the supply of all materials for the rectification and trades to invoice the Respondent. Trades are not to be associated with the Respondent with the exception of the tradesman completing the balustrade. Coordination of trades will be done by the Owner.
Respondent to also supply details of the tradesman who worked on the balustrade in order to match existing work.
An order that the Respondents pay the difference to the Applicant between marble and reconstituted stone as there were no matching (sides of the island bench) marble designs at the designated supplier of the replacement marble as requested by the Respondent. The difference between the marble and reconstituted stone is between $8,000 and $10,000.
An Order that all materials are to be provided on request at the designated time and place for tradesmen to use.
An order to replace all floorboards and ensure that floorboards supplied come from the same supplier and batch in type and colour and finish and to supply the appropriate underlay for the floor.
An Order to replace all of the Main balcony tiles that are now brown.
An Order to replace the bath in the ensuite.
An Order to repair the Exhaust system including the noise of the motor in the ensuite and fan in the laundry cupboard.
An Order to repair or replace the basin tap in the ensuite.
In a supporting document to that Interim Application, the appellant alleged that tradesman attending to some of the rectification work the subject of the Primary Orders had caused further damage when they attended on 28 July, 5, 6 and 12 August 2021, and had mismatched some of the materials.
The Interim Application was therefore broadly concerned with three things. First, alleged faulty rectification works (e.g. bathroom tiles and balustrade) ordered on 14 April 2021. Second, alleged damage caused by the tradesmen when effecting the rectification work (e.g. allegedly damaged balcony tiles). Third, further alleged defects which had come to the appellant’s attention, and which had not previously been part of proceedings XD 1171 (e.g. replacement of the bath, exhaust system in the laundry).
On 8 October 2021, the Tribunal made consent orders for the balance of the matters in dispute in the proceedings. The parties called these orders the Final Orders. The Final Orders said:
1.     The respondents are to pay the applicant $2,700.00 by 5:00 pm Tuesday 12 October 2021.
2.     The respondents are to deliver 32 'balcony tiles' to site and notify strata and the applicant when delivered.
3.      The respondents are to inspect the ﬂoorboards and source up to 12 boards to provide to the applicant, that match as closely as possible in colour and ﬁnish.
The Tribunal notes that:
These orders are made in full and ﬁnal settlement of all matters between the parties.
As will appear later, it is significant that in relation to the floorboard issue Order 3 was only for the supply of 12 floorboards.
The agreement represented by those consent Final Orders was subsequently varied. The appellant told the Original Tribunal that, subsequent to the Final Orders, the work needed to rectify the floorboard issue expanded from replacing 12 floorboards to having to redo the entire floor. She said:
Now, those ACAT orders were the second lot of orders which was as a result of the developer coming in and doing the repairs as directed by ACAT, and then causing considerable damage to other areas of the property that actually weren’t in the original claim. And they were then banned from coming back into the property. So as a result, some of the damage was difficult to do, such as the floor, and they tried using putty and paint, et cetera. And then because it was in the middle of the floor, they then had to end up having to replace the entire floor, and - which was the sort of - how the deed came about was it was the closure of the works that they had then had to do as a result of causing that damage in the property.
(emphasis added)
On my reading of the transcript, that factual evidence was not contested.
On an unknown date, but before 20 January 2022, Canberra Floorworld quoted $22,881 incl GST to, I infer, redo the entire timber floor of the appellant’s unit.
At 4.49 pm on 20 January 2022, an officer of JWL emailed the appellant and said:
Quick email to confirm I’ll be asking our solicitor to provide an agreement deed for you to sign so we can officially close off the ACAT orders with the following agreement:
JWLand agrees to pay the Invoice Quote: QU-16477 direct with Floorworld. You’ll co-ordinate all works as per quote.
JWLand understands the balustrade works is still yet to be completed due to bad weather. Once the skies are clear, you’ll organise the works direct with the trade.
This would be considered a final closure to all works outstanding at [the Property].
Can you confirm your understanding and I’ll get this underway asap.
The Floorworld quote referred to in that email was not in the material provided on the appeals.
On the same day, at 5.06 pm, the appellant replied:
I understand the completion of all works as per your email below close out the final ACAT Orders XD 1171/2020 dated 8 Oct 21.
At some unknown point after these emails, the Deed was drafted.
On 28 January 2022, Canberra Floorworld issued an invoice for $22,881 incl GST.
On 7 February 2022, the respondents signed the Deed.
On 8 February 2022, the appellant also signed the Deed. The Deed says she signed it in 2021 but that must be a typographical error.
On 9 February 2022, Canberra Floorworld’s invoice was paid by Celestial.
The relevant parts of the Deed are quoted below. What appears in bold are the more critical parts of the Deed relevant to the issues in the appeals.
The Deed said:
BACKGROUND
A. In or around November 2020, the Applicant commenced proceedings against the Respondents in the ACT Civil and Administrative Tribunal (ACAT). The Applicant’s claim in the ACAT was allocated the proceedings number no. XD 1171/2020 (‘Proceedings’)
B. The proceedings related to a claim by the Applicant for compensation and rectification of various defects in the property situated at [address redacted] ('Property'). The Applicant is the registered proprietor of the Property.
C. On 14 April 2021, Senior Member E Ferguson made orders in the Proceedings ('Primary Orders').
D. By Application for Interim or Other Orders dated 17 September 2021, the Applicant sought compliance with the Primary Orders made by the Tribunal on 14 April 2021 as well as compensation and rectification of further damage to the Property.
E. On 8 October 2021, Member E Trickett made further orders in the Proceedings which were made in full and final settlement of all matters between the parties ('Final Orders').
F. As a result of discussions between parties, and without any admission of liability by either party, the parties have agreed to settle all disputes and claims which the Applicant may have relating to:
(a) the Property situated at 411/59 Constitution Avenue, Campbell ACT 2612;
(b) the Proceedings and the Application for Interim or Other Orders dated 17 September 2021; and
(c) the Primary and Final Orders made by Senior Member E Ferguson and Member E Trickett on 14 April 2021 and 8 October 2021, respectively,
on the terms contained in this document (Deed).
G. The Definitions and Interpretation clauses are contained in Annexure A and form part of this Deed.
1. SETTLEMENT
1.1 Payment of Settlement Sum
(a)      In full and final settlement of the Claim and the Proceedings, the parties agree that:
(i)        The Respondents have paid to the Applicant the amount of $7,308.50; and
(ii)       Within seven (7) days of receiving the original version of this Deed executed by the Applicant. the Respondents will pay to Canberra Floorworld, the amount of $22,881 in payment of their invoice ref. INV-9250 dated 28 January 2022
Together, the Settlement Sum
Upon payment of the Settlement Sam the Applicant forever releases and discharges the Respondents from any and all Actions that she had, has or may have against the Respondent arising out of or in connection with the Dispute or the Property, once the Respondents have complied with their obligations under clause 1.1.
Any proof of payment, receipt or acknowledgement from Canberra Floorworld regarding I NV-9250 to any Respondents is sufficient discharge of the Respondents' obligations in relation to clause 1.1 (a)(ii) and payment of the Settlement Sum.
1.2 Restriction on Taking Further Steps
A party must not take a further step in the Claim unless permitted to do so under clause 5.
1.3   Obligation to Discontinue
….
1.4   Disposal of Proceedings
...
2. BAR
This document may be pleaded as a bar and defence to any proceeding brought in contravention of it.
3. NO ADMISSION
No party by executing this document admits liability in the Dispute.
4. CONFIDENTIALITY
…
5. BREACH
5.1   Restriction on Exercising Rights
An Innocent Party may not exercise its rights in respect of a breach of this deed by a Defaulting Party unless the Defaulting Party has failed to remedy the breach within 7 days of the Innocent Party giving it notice to do so.
5.2 Rights of Innocent Party
The rights of an Innocent Party include the right to:
(a)   affirm this deed and recover from the Defaulting Party:
(i)      any amount payable by the Defaulting Party under this deed as a liquidated debt;
(ii)     interest on the outstanding amount from the date it became payable until the date it is paid, at the rate payable on judgments of the Supreme Court of the Australian Capital Territory; and
(iii)     the costs of enforcing the terms of this deed on an indemnity basis; or
(b) terminate this deed and continue the Claim against the Defaulting Party.
This does not limit the Innocent Party's other rights.
6. ACKNOWLEDGMENTS
(a) The terms of settlement contained in this document are in full and final satisfaction of all Actions arising out of or in connection with the Dispute. Each party acknowledges that the later discovery of information or facts regarding the Dispute does not affect the enforceability of this document.
(b) Each party acknowledges that it has obtained, or has had the opportunity to obtain, legal advice about this document before executing it.
(emphasis added)
Annexure A to the Deed defined a number of terms including the following:
Actions means any claim, proceeding or action for damages, compensation, expenses, losses, legal costs, contribution, indemnity or any other legal, equitable or statutory remedy.
Claim means the claim in the Proceeding.
Dispute means the dispute described in the Background and includes the Proceedings.
Proceedings means matter number XD1711/2020 in the ACT Civil and Administrative Tribunal in Canberra
After the execution of the Deed, the appellant commenced the following three proceedings against the respondent:
(a)proceedings XD 199/2024 for alleged bathroom defects;
(b)proceedings 201/2024 for alleged paint splatters on a balustrade; and
(c)proceedings XD 202/2020 for alleged defective sealing of the front door.
The appeal from the decision in the second matter, XD 201/2024, as noted earlier, was dismissed by consent and need not be further mentioned.
In the remaining two proceedings, JWL brought a counter-claim for indemnity legal costs incurred in enforcing the Deed against the appellant, namely being the legal costs it incurred in defending the proceedings brought by the appellant. JWL relied on the terms of cl 5.2 of the Deed.

The Original Tribunal’s Reasons

There was no dispute that the condition subsequent set out in the Deed had been satisfied, namely that the respondent had paid the amount it was obliged to pay after the execution of the Deed. There was no dispute that the condition precedent to enforcement of cl 5.2, namely the matter set out in cl 5.1, had been satisfied.
The main issue in dispute in relation to the Deed was whether, on its proper interpretation, it covered only then existing disputes between the parties (which was the appellant’s position), or covered those existing disputes together with any other disputes that may arise between the parties (the respondent’s position).

The Original Tribunal favoured the respondent’s interpretation.
The Original Tribunal referred to cl 1.1 of the Deed and said that, on its face:
…the settlement deed operates as a bar on the applicant bringing any further claims in relation to alleged deficiencies with the property, and without more, would be sufficient to support a decision to dismiss claims for deficiencies related to the property.
There was then reference to a claim that the Deed was void due to alleged misleading conduct by the respondent. That claim was dismissed and was not pursed on appeal.
The Original Tribunal then set out its reasons for interpreting the Deed in the respondent’s favour as follows:
The consent orders themselves followed orders of the Tribunal made six months’ earlier requiring remediation. Further, Ms Gbel in her initial email and the applicant in reply reference the tribunal orders, the applicant going [to the] the lengths of referencing XD 1171/2020. It is of some import that those orders include a Tribunal note that the orders are made in full and final settlement of all matters between the parties. I am satisfied that the context supports the view that the deed was intended to deal with both existing and future claims in relation to the build of the property. That is, the applicant has failed to discharge the onus of satisfying me that what was said outside the deed was misleading. And I am satisfied that the settlement deed does the work for which I have found it was intended.
I also note that the applicant’s argument begs the question of the necessity for a settlement deed at all, possibly for evidence in an enforcement matter. The work of finalising the matters in dispute was done by the Tribunal’s orders. No further step was necessary to finalise those orders. Were the applicant’s argument accepted, it would seem to make the settlement deed otiose, to serve no real, practical purpose.
The Original Tribunal then set out its reasons for finding that the Deed was not void on the basis that it was associated with or made in furtherance of an illegal purpose as follows:
The respondents have not abrogated the applicant’s statutory right under the Australian Consumer Law or otherwise to compensation. The act of executing the settlement deed was the applicant’s act. She chose how she would deal with the rights conferred by the ACL. The respondents did not unilaterally take it away. They did not abrogate those rights. Accordingly, I dismiss those applications.

49. In relation to the claim by the respondent for contractual indemnity costs, the Original Tribunal said:

I am also satisfied on the balance of probabilities that the respondents have made out those counterclaims in those matters. By operation of clause 5(2)(a)(iii) of the settlement deed, they are entitled to indemnity costs of $12,832 in each of XD 199/24 and 202/24.
I note that the applicant asked the Tribunal not to make a costs order. However, this misconstrues the Tribunal’s order as an exercise of the Tribunal’s discretion to award costs. The correct view is that it is a decision in accordance with the terms of the settlement deed. There is not, as the applicant submitted, an undermining of the integrity of the Tribunal’s processes. The applicant’s concern that in bringing the applications, she always, as she put it, had the threat of money hanging over her head, is an operation of the settlement deed into which she entered. It also disregards the settlement discussions at the directions hearing, that each party bear its own costs.

In relation to proceedings XD 202/2020 which related to alleged defective sealing of the front door, the respondent had submitted to the Original Tribunal that there was no quotation for the repair or replacement of the front door, a position seemingly accepted by the appellant on the appeal. The Original Tribunal said it did not need to consider that submission having dismissed those proceedings on other grounds.
The absence of a quote is not necessarily fatal as there may have been other evidence which was sufficient to estimate damages. In Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328 Gleeson JA, with whom Macfarlan and Brereton JJA agreed, said this about proof of damage:
[76] It is well-established that where damage has been proved but the evidence does not enable precise quantification of it, the Court is required to “do its best”. In Paino v Paino [2008] NSWCA 276, Hodgson and McColl JJA said at [76]:
There is a general principle in relation to damages that where a plaintiff has proved substantial loss but the evidence does not enable precise quantification of it, the court should “do its best”: Fink v Fink [1946] HCA 54; (1946) 74 CLR 127 (at 143); State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [72]); Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 (at [135]-[141]).
[77] In Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257, Hayne J distinguished between a case where the plaintiff cannot adduce precise evidence of what has been lost and a case where, although apparently able to do so, the plaintiff has not adduced such evidence.
Black J explained the difference between difficulties with and absence of proof of damage in Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 wherein his Honour said:
[41] The damages to which RBD is entitled, in respect of Mr Sabouni’s breach of or repudiation of the Contract is the monetary sum which, so far as money can, represents “fair and adequate compensation for the loss or injury” which it sustained by reason of that breach or repudiation: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 116 per Deane J. The Court must do the best it can to make a reliable assessment of damages, where damages are difficult to assess, including where a party has failed to lead the best evidence of damages: Commonwealth of Australia v Amann Aviation Pty Ltd above at 83, per Mason CJ and Dawson J, 125 per Deane J, 153 per Gaudron J. In Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [135], Beazley JA observed that:
“Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provides for breach of contract, an award of damages … . Such damages should not be nominal only, notwithstanding that the award may be difficult to assess. …” (Citations omitted)
[42] On the other hand, the case law also recognises that damages must be proved with a degree of precision which reflects the proof that is reasonably available to the parties: State of New South Wales v Moss (2000) 54 NSWLR 536 at [72]; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [38]. In Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 319, Pincus J noted that “if the evidence called on behalf of [the plaintiff] fails to provide any rational foundation for a proper estimate of damages, the Court should simply decline to make one”. That approach was approved by Brooking J in JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 at 243 and by the Court of Appeal in Troulis v Vamvoukakis [1998] NSWCA 237 where Gleeson CJ observed that, where damages were susceptible of evidentiary proof, but there was an absence of raw material to which good sense may be applied, “[j]ustice does not dictate that … a figure should be plucked out of the air”. That decision has been approved in subsequent cases, including McCrohan v Harith [2010] NSWCA 67 at [128], where McColl JA (with whom Campbell JA and Handley AJA agreed) held that an estimate of damages, in the nature of a “guess”, should not be made where precise evidence of the damages suffered could have been adduced, but was not. I followed that decision in Re Hair Industrie Penrith Pty Ltd, Hair Industrie Merrylands Pty Ltd [2015] NSWSC 1578 at [20], on which I have drawn for the summary which appears above.
The parties did not take me to any other material on damages in relation to the door, and the point was not really argued. As the Tribunal did not make a finding about that aspect of the case, I think the better course is to remit that matter to the Tribunal to determine that issue on the evidence that was previously given to it, and to leave it to the Tribunal to determine whether leave should be granted to permit the parties to tender further evidence on damages.

Ground 1: the proper construction of the Deed

The principles to apply when construing the Deed were not in dispute. They were summarised in Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 (Electricity Generation) at [35]:
The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties … intended to produce a commercial result”. A commercial contract is to be construed so as to avoid it “making commercial nonsense or working commercial inconvenience”.
An earlier authority was also cited by the appellant, namely Grant v John Grant & Sons Pty Ltd [1954] HCA 23 (Grant). In the plurality’s judgment their Honours said:
From the authorities which have already been cited it will be seen that equity proceeded upon the principle that a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor.
This authority was important to the outcome of these appeals and, it must be said, was not cited to the Original Tribunal by the appellant. That is not to be critical of the appellant, who appeared before the Original Tribunal without legal representation, but as is not uncommon the Original Tribunal did not receive as much assistance on the applicable legal principles as one would prefer to see.
In relation to Grant, the appellant submitted that equity and the common law operated differently when construing deeds of release, and that if she failed on her common law interpretation she could succeed on her “equitable” interpretation (which, it was submitted, would allow evidence of the parties’ subjective intentions to be admitted whereas at common law they could not be admitted).
Quite how Grant is to be applied after Electricity Generation in that respect has been the subject of some debate at intermediate appellate level. One view which has been expressed is that Grant’s holding was to the effect that evidence of the subjective intention of the parties (otherwise inadmissible at law) was admissible when equitable relief was being sought in relation to a release. However, that view is not universal.
Putting aside that matter, what seems settled is that Grant does not suggest there is equitable interpretation as well as common law interpretation of contracts, as suggested by the appellant. Rather, and as explained in Protheroe v Protheroe [2023] NSWCA 328 (Protheroe), Grant says that equity may in its auxiliary jurisdiction relieve a releasor from unconscientious reliance by a releasee on the general words of a release, but that depends on a claim for equitable relief which itself requires equitable jurisdiction. Meagher JA explained at [37] that:
The underlying equitable doctrine was described by Pollock CB in Lyall v Edwards (1861) 6 H & N 337 at 347 [158 ER 139 at 143] as being “that a release cannot apply, or be intended to apply to circumstances of which a party had no knowledge at the time he executed it, and that if it is so general in its terms as to include matters never contemplated, the party will be entitled to relief” (emphasis added).
Be that as it may, I need not determine that issue and whether the Tribunal has an equitable jurisdiction. That is because there is no disagreement that two other principles found in Grant, relevant in this case, apply without the need for the intervention of equity. The first is that general releases are to be confined to the matters shown by the recitals to be the occasion of the instrument. The second is that general releases are to be construed with regard to the tenor of the instrument.
These two principles were explained in Protheroe. Meagher JA, with whom Mitchelmore JA and Basten AJA agreed, said at [54]:
In addition to considering the application of the equitable doctrine referred to above, Grant v John Grant contains often-cited statements as to the principles applicable to the proper interpretation at law of a general release. The first is that the general words of the release are to be read subject to the particular matters that are shown by the recitals to be the “occasion of the instrument” (at 131). The second and related principle is that the words of release should be construed with regard to the tenor of the deed, a reference to “indications … in the provisions of the deed” as to whether or not a general release was intended to go beyond the immediate area of disputation between the parties (at 131-132).
The genesis of the Deed was the disputes between the appellant and the respondents about defects and which led to proceedings XD 1171. The background and context include the history of proceedings XD 1171 as I have described earlier, the expansion of the appellant’s claims and the two emails of 20 January 2022.
The release clause of the Deed was cl 1.1.
It said that “in full and final settlement of the Claim and the Proceedings” the parties agreed certain things. Those words indicated that the settlement was a settlement of then existing claims, being those made by the appellant in the Claim and in the Proceedings.
The release clause went on to say that upon payment of the Settlement Sum:
… the Applicant forever releases and discharges the Respondents from any and all Actions that she had, has or may have against the Respondent arising out of or in connection with the Dispute or the Property ...
The respondent’s case was that those general words captured the subsequent proceedings. The appellant’s case, was that those general words should be read down to refer only to the matters which were the subject of dispute in proceedings XD 1171.
Proceedings XD 1171 were commenced in relation to certain defects. Many of those defects were settled between the parties and became the subject of the Primary Orders. Rectification work in relation to some of those defects was undertaken on 28 July, 5, 6 and 12 August.
The Interim Application was then filed alleging faulty rectification works, damage caused during that rectification work and further alleged defects in the unit which had not previously been part of the proceedings XD 1171. The Interim Application had the effect of expanding the defects in issue between the parties.
The Final Orders were then made.
Subsequently, the work required to rectify the floorboard defect was enlarged from that set out in the Final Orders (supply of 12 floorboards) to the entire floor having to be redone at a cost of a little under $23,000.
In contemplation of the Deed, JWL’s email said it wanted to “officially close off the ACAT orders” and that the Deed would bring about “final closure to all works outstanding at [the Property]”. Both of those expressions have the tenor of referring to existing defects which were the subject of the original proceedings, were then expanded on by the Interim Application after which the cost (to JWL) and method of rectification in relation to the floorboards increased significantly.
The ACAT orders spoken of in that email were in, and were necessarily confined to, the defects in dispute in XD 1171. The “works outstanding” at the time of that email could only be sensibly interpreted as being a reference to those mentioned in XD 1171.
Thus, the commercial purpose sought to be achieved by JWL was to bring all of the issues in dispute in proceedings XD 1171, including the scope of rectification, to an end.
The appellant’s email that same day reflected the same commercial purpose intended for the Deed. The appellant said that the completion of all the works mentioned in JWL’s email would “close out” the Final Orders.
It is not to be overlooked that the Final Orders did address the floorboard issue. Inter alia, the order that JWL was to supply 12 floorboards necessarily accepted that there had been a defect for which JWL was responsible. What happened after that was not the addition of another defect which had not previously been mentioned, but was a change in what was needed to properly remedy the floorboard issue.
The earlier Tribunal note of 8 October 2021 said that the Final Orders made that day were made “in full and ﬁnal settlement of all matters between the parties”. That seems to me to be a reference to the issues in dispute in XD 1171 given that Tribunal orders could only be made in relation to the issues expressly in dispute in those proceedings. In any event, that note was subsequently overtaken by the parties agreeing for the whole floor to be redone rather than JWL supplying 12 floorboards.
The Original Tribunal correctly considered whether the Deed could be said to be otiose if it had the meaning contended for by the appellant. The Original Tribunal concluded that it would have been.
With respect, I disagree.
The Deed contained terms touching and concerning matters in dispute in XD 1171 but which were not captured by the Tribunal’s orders of 14 April and 8 October 2021.
Most prominently was the change in the agreed remedy in relation to the floorboard issue from supplying 12 floorboards to paying for the supply and installation of floorboards to replace the entire timber floor of the unit at a cost of a little under $23,000, and JWL’s obligation to pay Floorworld for an invoice which post-dated the Final Orders.
Another example is that the total sum to be paid by the respondent to the appellant pursuant to the Primary and Final Orders was $6,290.50, whereas the sum to be paid under the Deed was $7,308.50. Why there was a difference is unknown, but the sums are different and therefore the monetary obligations under the two Orders was not the same as the monetary obligation under the Deed.
Thus, the Deed did provide for outcomes not covered by the Primary or Final Orders and was therefore not otiose if the appellant’s contention as to its proper interpretation was accepted.
It also follows that the Tribunal note in the Final Orders that the orders were made in full and ﬁnal settlement of all matters between the parties was not relevant because, as subsequent events showed, they were not.
Turning to the words of the Deed, the definitions of “Claim”, “Dispute” and “Proceeding” in Annexure A to the Deed all speak of existing disputes between the parties.
The word “Claim” was defined to mean the claim in the then existing proceedings.
“Proceeding” was defined as proceedings XD 1171.
“Dispute” was defined as the dispute described in the “Background” to the Deed, and the only dispute referred to in that Background was that in proceedings XD 1171.
The “Background” speaks only of past facts. There is no recital in the “Background”, for example, to the effect that the parties desired the Deed to capture any and all defects whether part of proceedings XD 1171 or otherwise.

The central recital was recital F. The appellant said the word “and” at the end of sub-paragraph (b) operated conjunctively. That is, that the “disputes and claims” the appellant “may have”, had to relate to all three of the matters mentioned in sub-paragraphs (a), (b) and (c). Put more simply, the subject matter of the chapeau to recital F were claims which met the description in each of the sub-paragraphs. That is, that a claim had to relate to the Property, it had to relate to the proceedings and the Interim Application, and it had to relate to the Primary and Final Orders.
The respondent submitted that the word “and” should be interpreted both conjunctively and disjunctively at the same time (that is, as meaning both “and” and “or” at the same time).
I was initially attracted to the appellant’s submission but, on reflection, I do not think that that is how the recital should be interpreted. I also do not agree with the respondent’s submission that the word “and” meant both ‘and’ and ‘or’ at the same time. A word in a contract cannot be given different and inconsistent meanings at the same time.
In written submissions provided, with leave, subsequent to the hearing of the appeal, the respondent submitted that to interpret the Deed in the manner I was initially attracted to would create consequences which were capricious, unreasonable and unjust. No explanation of why that would be so was provided, but in any event, I am no longer attracted to that interpretation.
The respondent next submitted that sub-paragraphs F(a)-(c) should be read as a list. In substance that meant that the word “and” should be read as “or”, although that proposition was expressly disclaimed. However, I am not attracted to that interpretation because it would mean that parts of Recital F would be redundant. For example, every alleged defect related to the Property, and so recitals (b) and (c) were redundant if the parties intended recital F to apply both to existing disputes and others not then existing between the parties.
The respondent next submitted that if Recital F were to be interpreted so that sub-paragraphs (a)-(c) were read conjunctively, then recital F(c) was redundant. There is some force in that submission. Indeed, there would be other redundancies.
In my view, given the genesis, background and common commercial objective the parties said in their emails that they wanted to achieve, recital F should be read as if there were an “and” at the end of recital F(a), and an “or” at the end of recital F(b). That is, recital F would read:
F. As a result of discussions between parties, and without any admission of liability by either party, the parties have agreed to settle all disputes and claims which the Applicant may have relating to:
(a)the Property situated at 411/59 Constitution Avenue, Campbell ACT 2612; and
(b)the Proceedings and the Application for Interim or Other Orders dated 17 September 2021; or
(c)the Primary and Final Orders made by Senior Member E Ferguson and Member E Trickett on 14 April 2021 and 8 October 2021, respectively.
on the terms contained in this document (Deed).
That is, any dispute or claim had to relate to either of two things. The first was it had to relate both to the Property and the Proceedings and Interim Application. The second was that it had to relate to both the Property and the Primary or Final Orders.
That interpretation captures all of the issues in dispute up to the date of the Deed but without any redundant paragraphs. Clearly enough all disputes and issue had to relate to the Property. But whilst there was substantial overlap between the disputes and issues described in the Proceedings and Interim Application on the one hand, and the Primary and Final Orders on the other, there were some differences.
For example, the Proceedings (as originally framed) and the Interim Application (treated collectively) contained disputes not found in the Primary or Final Orders (treated collectively). The Interim Application sought an order that the bath be replaced, the laundry exhaust system be repaired and that all floorboards be replaced. Neither of those two disputes appeared in the Primary or Final Orders.
Therefore, by interpreting recital F in the way I have suggested, the parties would be expressing what had been expressed in their emails, namely that they wished to settle all disputes between them that related to both the Property and either the Proceedings (as originally framed) and the Interim Application (treated collectively), or the Property and the Primary or Final Orders (treated collectively).
In this way, per JWL’s email, all existing disputes, whether they were related to the proceedings, the Interim Application, the Primary or Final Orders, including the increased costs to rectify the floorboards by having the entire floor redone, would be settled.
I would also suggest that the parties used the words “close off the ACAT orders” in the sense that those words encompassed the subsequent agreement (i.e. after the Final Orders) that JWL would pay for the redoing of the whole floor, something not in the Final Orders.
The “occasion of the instrument” shown by the recitals and the background to the Deed were the then existing disputes as I have described them. The commercial objective of the Deed revealed by the background and surrounding circumstances was to settle all existing disputes. This would, in the words of JWL’s email, bring about a “final closure to all outstanding works” at the Property.
So understood, and in accordance with the principle laid down by Grant and applied in Protheroe, I should read the words of the general release subject to the particular matters shown by the recitals to be the occasion of the instrument. The occasion of the Deed were the then existing disputes.
The tenor of the Deed, taken as a whole, indicates to me that the general release was intended to apply only to then existing disputes. There were no words in the Deed to the effect that the disputes intended to be settled included those not then in dispute.
For example, in Protheroe, the release clause said that each Borrower released every other Borrower from:
… all Claims which he, she or it has or which but for this document he, she or it could, would or might at any time hereafter have or have had …
(emphasis added)
No words such as “could, would or might have at any time hereafter” appeared in the Deed.
What did appear were the words in the release clause that the appellant released the respondents from all claims which she “had, has or may have” against the respondents “arising out of or in connection with the Dispute or the Property”.
There was no evidence that any party had in its or her contemplation the resolving of disputes between them that were not in existence at the time. The commercial purpose evident from the parties’ emails was to the contrary.
That conclusion is fortified by the terms of cl 6(a) of the Deed which said that the settlement contained in the Deed was in full and final satisfaction of “all Actions arising out of or in connection with the Dispute”. The definition of “Dispute” was the dispute described in the recitals (the “Background”) and proceedings XD 1171. Neither the recitals or proceedings XD 1171 concerned or mentioned other than then existing disputes.
In my view, the reasonable businessperson, acquainted with the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract, would have understood the release clause to refer to the then existing disputes and no others.
There was no evidence of any surrounding circumstance indicating the release was intended to go beyond the matters set out in recital F.
Accordingly, the appellant’s appeal in relation to the proper interpretation of the Deed should be upheld.

Conclusion

It follows that the Deed did not operate as a defence to the proceedings and could not be the basis of a contractual claim for indemnity costs.
As the determination of Ground 1 is dispositive of the appeal I need not determine Ground 2.
As the appellant has been successful in relation to Ground 1, it follows that Ground 3 also succeeds.
As the appellant failed before the Original Tribunal on the allegation that there had been misleading and deceptive conduct prior to her entry into the Deed, and as that claim was not pursued on appeal, she is not permitted to relitigate that matter on the remitted proceedings.

Orders

I make the following orders in both appeals:
(a)Appeal upheld.
(b)The orders of the Original Tribunal dated 15 July 2024 are set aside.
(c)The proceedings are remitted to the Original Tribunal as originally constituted to be determined according to law and in accordance with these reasons.
………………………………..

Acting Presidential Member G Curtin SC

Date of hearing:	9 December 2019
Counsel for the Applicant:	Mr K Fox
Solicitors for the Applicant:	WG Stefaniak
Counsel for the Respondent:	Mr J Moffett
Solicitors for the Respondent:	Thomson Geer