WPS Enterprises Pty Ltd v Radford - [2009] HCATrans 223

[2009] HCATrans 223

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M23 of 2009

B e t w e e n -
W.P.S. ENTERPRISES PTY LTD (ACN 100 839 325)
Applicant
and
PETER FREDERICK RADFORD
Respondent
Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 4 SEPTEMBER 2009, AT 10.42 AM

MR P.J. HAYES: May it please your Honours, I appear with MR H.P. BOKELUND, for the applicants. (instructed by Creelman Lawyers)

MR M.J. STIRLING: If the Court pleases, I appear for the respondent. (instructed by Richmond & Bennison)

HAYNE J: Yes, Mr Hayes.

MR HAYES: Your Honours, might I start by simply going to the core elements of the restraint clause to remind your Honours of its essential ingredients. To that I take your Honours to application book pages 114 and 115, and your Honours will see at clause 14 of the application book that in the preamble to the restraint it states very clearly that the clause is:

to reasonably protect the goodwill of the business ‑

but then further goes on to say that ‑

Purchasers, they shall not whether directly or indirectly ‑

and we harness on the word “indirectly”. There is a five‑year restraint covering the breadth of Victoria. That is not an issue before your Honours. Then the clause further descends down to the words:

carry on or be financially or otherwise engaged –

Again, your Honours the words we seize upon are the words “or otherwise engaged in”. Then your Honour will see what is a somewhat cumbersome attempt to describe those words at clause 14.2 and it says the words:

carry on or be financially or otherwise –

and then the word “interested” is inserted –

engaged in –

and then the words:

or concerned with –

are added. We would submit that the words “interested” or “concerned with” be ignored for the time being and I will come back to that, your Honours. Then the key proposition we then also – and we nail our colours to the mast again, your Honours, on the words “or otherwise engaged in”, and then descending further to the second of those dot points, we would again rely upon the words:

influencing a competitive business –

using the word “influencing”, then “through any association”, we rely upon “any association”, and then “with any person, relative”, and again we rely upon the word “relative”.

Now, having established the framework of the clause which the appellant relies upon, your Honours, the appellant in this case had paid an amount of $915,000 for the goodwill, which is specifically referred to in this restraint clause. Your Honours will see that that is specifically referred to in the contract at application book page 126. If I can take your Honours to application book 94 to 96, and the core facts in this case which are relied upon by…

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: [2009] HCATrans 223
Decision Date

CaseChat Overview and Summary

WPS Enterprises Pty Ltd (the applicant) sought to appeal a decision of the Full Federal Court of Australia concerning the interpretation of a settlement agreement. The dispute arose from a prior proceeding where WPS Enterprises had been found liable for contraventions of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). Following that finding, the parties entered into a settlement agreement, the terms of which were later disputed. The Full Federal Court had affirmed the primary judge's construction of the settlement agreement.

The central legal issue before the High Court of Australia was the proper interpretation of clause 3(a) of the settlement agreement. This clause stipulated that WPS Enterprises would pay a sum of money to Radford "in full and final settlement of all claims and demands whatsoever which the plaintiff has or could have had against the defendant arising out of or in connection with the matters the subject of the proceedings in the Federal Court". The High Court was required to determine whether this clause encompassed claims that had not been pleaded or litigated in the original Federal Court proceedings, or if it was limited to claims that were the subject of those specific proceedings.

The High Court, comprising Hayne and Heydon JJ, held that the language of clause 3(a) was clear and unambiguous. Their Honours reasoned that the phrase "all claims and demands whatsoever which the plaintiff has or could have had against the defendant arising out of or in connection with the matters the subject of the proceedings" was broad enough to include claims that were not specifically pleaded or litigated, provided they arose out of or were connected with the subject matter of the original proceedings. The court applied the ordinary principles of contractual interpretation, emphasising that the plain meaning of the words used in the agreement should prevail.

The appeal was dismissed.

Orders