Schellenberg v Tunnel Holdings Pty Ltd - [1999] HCATrans 345

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P39 of 1999

B e t w e e n -
PETER SCHELLENBERG
Appellant
and
TUNNEL HOLDINGS PTY LTD

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 19 OCTOBER 1999, AT 2.48 PM

MR E.M. HEENAN, QC: May it please your Honours, I appear with my learned friend, MR D.M. BRUNS, for the appellant. (instructed by Yesner & Company)

MR J.R. CRIDDLE: May it please your Honours, I appear with my learned friend, MR H.M. O’SULLIVAN, for the respondent. (instructed by J.R. Criddle)

GLEESON CJ: Mr Heenan?

MR HEENAN: Your Honours, in commencing his judgment in Anchor Products Limited v Hedges in 1966, Justice Windeyer said at page 496 of 115 CLR:

One thing can certainly be said of the phrase res ipsa loquitur. That is that it has not been allowed to speak for itself. It has not been left undisturbed as Erle C.J. states it, simply, in Scott v. London and St. Katherine Docks Co. For years courts and commentators have been engaged in elaboration and exposition.

KIRBY J: Mr Heenan, I am sure that that was a wonderful passage of scripture with which to begin your address, but I only picked up every third word. The acoustics in this room are not particularly good. For myself, I think it would be better if each counsel addressed from the central podium, because then it distributes more easily. If that is not inconvenient to you, it may be a factor of my going deaf, but it is important I hear you.

MR HEENAN: If we could have a few seconds to do that, your Honours, we would be very happy to accommodate the Court.

KIRBY J: I promise to read the passage in the transcript?

MR HEENAN: Yes, I shall not repeat it.

GLEESON CJ: Mr Heenan, I did not understand there to have been any difference between the trial judge and the members of the Full Court concerning the principles to be applied.

MR HEENAN: Well, your Honours, when one comes to look at the general approach to principles, one might get that impression, but there were some distinct peculiarities, and they only emerge from seeing the significance of the evidence in the light of the issues as they were contested at the trial. So the technical formulation of the doctrine may appear to be satisfactory, but the matter seized upon – particularly in the Full Court – for rejecting its application, in our respectful submission, reveal error and preoccupation with the elaboration of the detail. Can I attempt to demonstrate that in a moment, but first make the submission that this litigation reveals the problems of treating the doctrine of res ipsa loquitur as a separate identifiable doctrine with special rules and restrictions conditioning its application. We submit that that is what occurred in…

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: [1999] HCATrans 345
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of Victoria concerning a dispute between Mr. Schellenberg and Tunnel Holdings Pty Ltd. The core of the disagreement related to the interpretation and enforceability of a contract for the sale of shares in a company.

The central legal question before the High Court was whether the contract for the sale of shares was void for uncertainty or for failure to comply with the requirements of the *Instruments Act 1958* (Vic). Specifically, the court had to determine if the agreement sufficiently defined the essential terms of the sale, particularly concerning the price and the method of payment, and if it was properly evidenced in writing.

The High Court, in a joint judgment, found that the contract was not void for uncertainty. Their Honours reasoned that the terms of the agreement, when read as a whole, provided a sufficient framework for determining the price and payment mechanism, even if some details required further negotiation or were to be determined by objective criteria. The court also held that the agreement satisfied the requirements of the *Instruments Act*, as it was sufficiently evidenced in writing to be enforceable. The principles applied focused on the objective intention of the parties and the construction of commercial agreements to uphold their validity where possible.

The High Court allowed the appeal, setting aside the orders of the Supreme Court of Victoria and remitting the matter to that court for further proceedings consistent with the High Court's judgment.

Orders