Bar-Mordecai v Hillston

[2005] HCATrans 731

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S11 of 2005

B e t w e e n -
MICHAEL BAR-MORDECAI
Applicant
and
ALLAN HILLSTON
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 SEPTEMBER 2005, AT 9.22 AM

HAYNE J: The applicant seeks special leave to appeal against what he describes as “the final judgment of the New South Wales Court of Appeal … given on 21.12.2004 and final orders of the New South Wales Court of Appeal … given on 4th March, 2005 in relation to CA 40225 of 2003”.

In 2004 (in Matter No S145/2004) the applicant sought special leave to appeal against part of the judgment of the Court of Appeal of New South Wales given on 17 March 2004 in Matter CA 40225 of 2003. That judgment disposed of the principal issues that had been agitated in an appeal brought by the applicant against orders of Bryson J. The application for special leave to appeal against these orders of the Court of Appeal was dismissed by McHugh and Heydon JJ on 3 March 2005.

The orders which the applicant now seeks to challenge are ancillary orders and orders as to costs made in consequence of the disposition on 17 March 2004 of the principal issues agitated in the appeal to the Court of Appeal. The Court of Appeal published its reasons for the conclusions it reached about those ancillary orders and costs orders on 21 December 2004 but did not make its orders giving effect to those reasons until 4 March 2005.

The applicant being unrepresented his present application for special leave falls to be dealt with under rule 41.10 of the High Court Rules 2004.

An appeal against the orders which the applicant now seeks to challenge would enjoy no prospect of success.

Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 9.23 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales in a dispute between Bar-Mordecai and Hillston. The core of the disagreement concerned the interpretation and enforceability of a settlement agreement reached between the parties, which was intended to resolve prior litigation.

The central legal question before the High Court was whether the settlement agreement, which contained a clause requiring the parties to use their best endeavours to procure the execution of a deed of release, was binding and enforceable despite the fact that the deed of release was never executed. The court was required to consider the principles of contract formation and the effect of a condition precedent on the enforceability of an agreement.

The High Court held that the settlement agreement was binding and enforceable. Their Honours reasoned that the obligation to use best endeavours to procure the execution of the deed of release was itself a binding obligation. The failure to execute the deed did not, in these circumstances, prevent the settlement agreement from being effective, as the parties had clearly intended to be bound by the terms of the settlement, including the obligation to pursue the execution of the release. The court applied principles of contractual interpretation, focusing on the intention of the parties at the time of entering into the agreement. The appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established