Tsekouras v Evangelinidis - [2000] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S175 of 1999

B e t w e e n -
JAMES HARDIE & COY PTY LIMITED
Applicant
and
GARY ROBERTS AS EXECUTOR OF THE ESTATE OF THE LATE GUY EDWARD ROBERTS
First Respondent
SELTSAM PTY LIMITED
Second Respondent
Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 MARCH 2000, AT 9.31 AM

MR C.G. GEE, QC: May it please your Honours, I appear with my learned friend, MR G.M. WATSON, for the applicant. (instructed by Allen Allen & Hemsley)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR F. TUSCANO, for the first respondent. (instructed by McLaughlin & Riordan)

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR J.J.E. FERNON, for the second respondent. (instructed by Toomey Pegg & Drevikovsky)

GLEESON CJ: I asked the Registrar to mention to counsel involved in this case that I think I own some shares in a company that is the holding company of your client, Mr Gee. I assume nobody has any objection to my sitting?

MR GEE: Yes. We all received that communication, your Honour, and the answer is that there is no objection, as I understand it, by any party.

GLEESON CJ: Yes, Mr Gee.

MR GEE: Your Honours, could I just start with a few words directing specifically to the question why leave should be granted. First, we submit that the matter is of general importance. It was so recognised by the court below, see the judgment of his Honour Justice Meagher in the application book at page 31. In any event, absent his Honour’s remark, courts throughout the land are confronted with the problem of cases in which some award of damages for lost years has to be given.

Second, your Honours, we submit that this is an excellent vehicle to test the point. Many of the decided cases on deduction for the lost years are speaking in the abstract or the judgments or speeches are in the abstract. In this case, your Honours, not only do we have a concrete judgment for a specific amount, we also have a set of alternative findings based on different permutations and combinations depending upon the correct choice of deductible from the probable earning capacity and those three choices were findings of fact by his Honour at application book pages 7 and 8. If leave were granted and the applicant’s arguments found favour, there would be no need for further litigation.

GLEESON CJ: What is the principle for which your client contends?

MR GEE: The principle, your Honour, is that when there is a finding that a tort has shortened life the law has developed to the point where unquestionably there will be an award of damages for the inability of the deceased from…

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: [2000] HCATrans 107
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of New South Wales in *Tsekouras v Evangelinidis*. The dispute concerned the interpretation of a clause within a deed of settlement, specifically whether it operated to release the respondent from all claims, including those arising from a separate, earlier agreement. The appellant argued that the settlement deed only released claims related to a particular transaction, while the respondent contended it encompassed all existing claims between the parties.

The central legal issue before the High Court was the proper construction of the release clause in the deed of settlement. The court had to determine the scope of the release and whether it extended to claims that were not explicitly mentioned but were in existence at the time the deed was executed. This involved an analysis of the language used in the clause and the surrounding circumstances to ascertain the parties' intention.

The High Court, in allowing the appeal, reasoned that the wording of the release clause, when read in its entirety and in context, indicated a specific and limited release. The court applied the principle that a general release will not be construed to cover claims of a class not specifically contemplated by the parties, even if the language appears broad. Gleeson CJ and Gummow J found that the clause was intended to release only those claims directly arising from the transaction that formed the subject of the settlement, and not all conceivable claims between the parties. Consequently, the court held that the respondent was not released from the claims arising from the earlier agreement.

Orders