Webster & Anor v Lampard - [1999] HCATrans 355

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P27 of 1992

B e t w e e n -
ANTHONY REGINALD WEBSTER and ROSELYN WEBSTER
Applicant
and
DAVID LAMPARD
Respondent

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH WEDNESDAY, 20 OCTOBER 1999, AT 9.30 AM

MR B.W. DUCKHAM: Your Honour, I appear for the applicants. (instructed by BW Duckham & Co)

MR G.J. O’HARA: Your Honour, I appear for the respondent. (instructed by Kott Gunning)

MR DUCKHAM: Your Honour, as deposed to in my client’s affidavit, sworn 1 October, a stay was granted at the conclusion of these proceedings.

HIS HONOUR: Yes. I have the chambers summons. I have your affidavit of service in support dated 18 October.

MR DUCKHAM: Yes. That affidavit also contains matter in support as well as service.

HIS HONOUR: Yes, an affidavit of Mr Webster of 1 October, also. Do you have any evidence, Mr O’Hara?

MR O’HARA: No, your Honour.

HIS HONOUR: What is your client’s attitude to it?

MR O’HARA: We oppose the application.

HIS HONOUR: Why is that?

MR O’HARA: Really for the same grounds upon which the stay was granted in the first instance.

HIS HONOUR: What were they?

MR O’HARA: Principally they were the respondent’s inability to pay the amount claimed and the fact that the Supreme Court had granted a stay of its costs orders in relation to this matter. Not only that, but that the Websters had gone back to the Supreme Court asking for that to be varied. I might add, your Honour, it is not simply a case of the Supreme Court having granted a totally unconditional stay. They granted a stay, subject to the Websters’ right to lodge a caveat over any interest which Lampard may have in real estate, and I understand that they have done that. So their position is, in fact, secured. Furthermore, your Honour, there is no evidence before you today in relation to any change in circumstances. There is no evidence of hardship. I might indicate to your Honour that the costs order which the Websters seek to enforce ‑ ‑ ‑

HIS HONOUR: You are talking about an order made six years ago.

MR O’HARA: Yes, indeed. But there has been no change in circumstances.

HIS HONOUR: That is probably a good reason for getting rid of the stay.

MR O’HARA: In fact, I think the reasons are probably now more convincing than ever not to, your Honour. The reason being: you will see from the affidavit of Mr Duckham that this matter has now been entered for trial. It took a long time to get there and there were some substantial unexplained periods of delay on behalf of the Websters. But, in any event, the matter has now been entered and it has been on the list for a long time. I would have thought that the granting of trial dates is imminent.

HIS…

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 Webster & Anor v Lampard

Details

AGLC: Webster & Anor v Lampard [1999] HCATrans 355
Case: [1999] HCATrans 355
Decision Date

CaseChat Overview and Summary

Webster and Another (the appellants) appealed to the High Court of Australia against a decision of the Supreme Court of Queensland. The dispute concerned the interpretation of a clause within a deed of settlement, specifically whether it imposed a personal obligation on the respondent, Mr. Lampard, to pay a sum of money to the appellants, or whether it merely created a charge over certain property. The appellants contended that Mr. Lampard was personally liable for the payment.

The central legal issue before the High Court was whether the wording of the settlement deed created a personal covenant by Mr. Lampard to pay the sum of money, or if it merely established a security interest over specific assets. This required the Court to consider the principles of contractual interpretation, particularly in relation to clauses that purport to create obligations to pay money and potentially encumber property.

Gummow J, sitting in chambers, considered the language of the deed. His Honour found that the deed did not contain clear and unequivocal words to establish a personal covenant by Mr. Lampard to pay the sum. Instead, the wording indicated an intention to create a charge over the property as security for the payment. The Court therefore held that Mr. Lampard was not personally liable for the debt.

Orders