Hearsay is pleased to provide this article on cross-examination. Whilst drafted with the conduct of criminal trials in mind, the salient principles essayed are equally apt to the conduct of civil trials. This article was assembled with contributions from the following members of the Queensland bar (in alphabetical order):

• Craig Eberhardt KC
• Angus Edwards KC
• April Freeman KC
• Andrew Hoare KC
• Saul Holt KC
• Jeff Hunter KC
• David Jones KC
• Elizabeth Kelso
• Mark McCarthy KC
• Tim Ryan KC

The time and input of such Counsel is greatly appreciated. We anticipate that it will provide a valuable resource to all barristers, irrespective of their level of experience.

For ease of reference the links to the earlier articles in Hearsay in this criminal law series are provided below, as is the mentioned video from Irving Younger – “Ten Commandments of Cross-examination” referred to by Ryan KC.

Cross-examination is a skill. It is a skill that requires time, patience, and a dedication to learning. There are several ways to develop your skills, such as reading transcripts or speaking with more experienced colleagues and asking for their advice. One of the best ways to develop your skills in the art of cross examination is to watch those who are great at it. Watching how a great cross examiner walks a witness down a path, not necessarily a path they want to go down, shutting each gate along the way. The witness ends up with only one path they can take, that the cross examiner has deliberately left open, securing the answer they wanted. Or, if the witness does not take that path then they look evasive or just plain wrong.

Mark McCarthy KC told us “Perhaps the best thing I can say is that reading about tips and techniques is essential, and must be done, but so is watching others cross-examine and thinking critically about what they do. And even more important is trying it out for yourself. Compare what you have read to what you see others do, then think about whether the things you have seen worked, or didn’t, and why.  Was it execution, did it fit the witness, or the case? And then try it out for yourself. Do it in courses, in chambers, in silent mental preparation, and even by talking out loud to yourself (preferably while alone, or somewhere people will think you’re a busker and throw money). And in due course, when it suits you, use it in court. Learning how others cross-examine is fundamental. Applying that knowledge and developing what works for you is mastery”. 

In that regard, Tim Ryan KC says you cannot go past American advocate Irving Younger and his ‘Ten commandments of cross-examination.’ “When I did the BAQ bar course they played Irving Younger’s video outlining his ten commandments of cross-examination and they remain the best guideposts to mould constructive cross-examination, whether you are just starting out or a seasoned advocate. The ideas Irving Younger has are communicated very effectively and should be revisited throughout your career. The best one is the admonition ‘what do you do when things are doing good, you stop. What do you do when things are going not so good, you stop’. The other person that people are less familiar with is American trial lawyer, Gerry Spence. Gerry Spence has never lost a criminal case and has written several books on advocacy, and in particular cross-examination. He continues to teach today, and his literature is well worth reading”.  

Cross examination has several purposes:

1. Establishing important facts helpful to your case that are not already in evidence.
2. Confirming important helpful facts already in evidence.
3. Bolstering the credibility of prosecution witnesses or defence witnesses who are helpful to your case.
4. Impairing the credibility or reliability of witnesses who are not helpful to your case.

Those purposes are not mutually exclusive. It is possible, for example, to damage the credibility of a witness adverse to your case while still using that witness to establish facts helpful to your case. As defence counsel, securing evidence from a prosecution witness that helps your client can be particularly powerful for your case.

The key to an effective cross examination is to know exactly what you want to get out of the witness. Planning is important. During cross examination you want to control the narrative and elicit the information you require to incorporate into your closing address. A cross examiner should do everything that is necessary to advance the case theory and nothing that is not. 

Craig Eberhardt KC shared this advice as to how he prepares for cross examination “[When] I start preparing cross examination of a witness, I assemble all of the statements, transcripts and exhibits relating to the witness’ testimony. Having all of the witness’ versions handy makes cross-referencing the material easier.  I start by reading the witness’ versions (in the order in which they were given) and I make a numbered list of possible topics for cross examination references to the source material. As I read the material, I look for helpful evidence that I may get the witness to confirm. 

I am also looking for inconsistent statements and/or inconsistencies between the witness’ evidence and the evidence of other witnesses and differences between the witness’ evidence and the objective evidence like photographs and video evidence. Once I have a list of all possible topics for cross examination for all of the witnesses I work out which topics I intend to cross examine upon. This step is the most difficult.  Not all of the points you can make in cross examination will pull in the same direction.  Work out the points you need to make and cull the rest.”

Your approach to a witness will depend upon what you want to achieve. Your approach may also depend on the impression you have gleaned of that witness’s personality during their evidence in chief and what impression you want the jury to leave with.

When you are reviewing the brief and you are presented with a witness who is damaging to your case you need to carefully plan your cross-examination. Think carefully about what you can establish through the witness that is helpful to your case? What parts of the witness’ evidence should be challenged? How might you damage the witness’ credibility or reliability?

The care required is best explained by April Freeman KC “It is critical in cross examination that every question you ask has a purpose and you know what that purpose is. If it doesn’t advance your case theory, then don’t ask it. This means that you have to have a clear idea of what your case theory is when you start preparing your cross examination. It also means that it is easy to then identify which witnesses you may not even need to cross examine, the topics and questions you may need to avoid and it also means you are prepared to readily answer any objections to your question – because you know what the purpose of it is and why it is relevant to the case. It is also important to remember that the question itself is not evidence, but rather the answer given, so if you are expecting a witness to adopt or agree with your proposition and it is important to your case, you need to think carefully about how you are going to frame or word the question, so that when the witness adopts it, you have the concession you need for your closing submissions at the end. For these types of questions, I often will write them out word for word so that I get it right when I am on my feet in court.  A clumsily worded question which the witness then adopts may not in fact end up supporting your case when looked at in a transcript later on.

It also important to remember that you are not going to be great at cross examining witnesses straight away – it is a skill which requires practice, time and experience. So don’t beat yourself up if things did not go the way you had imagined or hoped. We all have bad days in court. The important thing is to recognise where you went wrong and how you might be able to improve things for next time. Advocacy is a continual learning process.”

If a witness is helpful to your case, there is no point in damaging their credibility. A better approach would be to simply lead the witness carefully to establish or reinforce the helpful facts you want.

The order of your questioning will be important in achieving your purpose. You should have a case theory, consistent with your instructions or in proving the elements of the offence. Consider how you can use the order of your cross-examination topics to develop that case theory. Remember, the most important people in the room are your jury. You want them to follow your narrative so they can apply it in your favour, and you do not want them to feel you are being deliberately confusing or unfair to the witness. 

Having said that, Saul Holt KC offers this advice when preparing your questions. “It took me ten years to learn that writing out my questions in cross examination was totally counterproductive. It created a straight jacket from which I couldn’t escape when – as often happens – the witness struck a different tone to that you were expecting, or came into a proposition much more readily than you thought they would, or fought back on something surprising. Instead, my notes are of the key facts, propositions and prior statements of the witness that are relevant to particular topic I’m exploring. Letting go of the crutch of written out questions was terrifying but freeing.  The other thing I wish I’d been told was to never, never never (never) start with the ultimate proposition you want to put to the witness. That always comes last (if you need to do it at all) after you have built and built and built all of the steps to make the proposition impossible to deny. Putting something to a witness and then fighting them about it for 10 minutes is never as effective.”

This, of course, is much easier when you have a cooperative witness because you can get straight to the point.

You had been drinking heavily? – YesYou were a hundred metres away from the fight?- YesYou were not wearing your glasses?- No I wasn’t.It was dark?- YesThe lighting was very poor?-  YesFor all of those reasons you did not have a good view of the fight?- CorrectAnd for that reason it is possible that you did not see everything that happened at the start of the fight?- Correct

With a difficult witness you have to take a different and more disciplined approach, particularly if you think the witness may try to work out where you are going and change their evidence to head you off. With this type of witness you need to tread cautiously and carefully, establishing all of the subordinate facts and circumstances before tackling the contentious parts of the witness’ evidence or putting a proposition that you know the witness wants to disagree with. You should be careful to maintain control of your witness. This is much easier in cross examination than evidence in chief, because your questions should generally be leading, propositional and only contain one such proposition per question. Limit the use of “tag ons” like “I put it to you that”, or “I suggest that” or “that’s true isn’t it”. “Tag ons” limit your flow and your control. Try getting rid of them and feel the difference it makes.

Angus Edwards KC offers this advice “Most trials come down to a handful of witnesses, sometimes less than that. Cross-examination of the remainder should usually be conducted with a scalpel, get what you need and get out. Of the witnesses that really matter, for my part it’s the same, get what you need and get out, but that means something different for those important witnesses. Sometimes what you need is to expose problems with credibility or reliability and that might not be neat and straightforward. For those witnesses, have a plan but don’t follow a script, and if you have a script listen to the answers and be prepared to go off script. Be prepared to follow a witness where they go. Some of the most devastating cross-examinations come in the most unexpected of ways, so be plastic and mould your cross-examination to the moment rather than to a preconception. That gets easier with experience. When you are starting out though, the things you really want to cross-examine about are the things you want to talk about in your closing address. Cross-examination of key witnesses is, in many ways, just the first time you give that address, only you give it in questions rather than a soliloquy. Your questions should contain all of the things you want to say in your address.”

When your case is that a witness is lying you need to discredit him/her early in your cross examination to erode any favourable impression he/she has made on the jury. You may wish to draw out biases, prior criminal convictions, has colluded with other witnesses, a motive to lie and significant prior inconsistent statements are all good places to start.

If you have objective evidence that demonstrates the witness is mistaken or being dishonest then use that to your advantage. Lock the witness into their current version before taxing them with their earlier inconsistent version or showing them CCTV footage that shows something different to their account.

Andrew Hoare KC said:

“Do not blindly follow a myopic path when cross-examining. You need to be suitably empathic to not just what is being said but the way it is being said. Often you approach a witness with pre-conceptions of their personality due to the content of their evidence. You must be prepared to alter your tone of questions when it is apparent those pre-conceptions are misplaced. Some witnesses will naturally evoke sympathy in the minds of the jury but that does not mean you cannot draw from those witnesses’ appropriate concessions.   Every cross-examiner has a different style, and I don’t suggest that there is any single correct approach. I try to be courteous as far as I can be, even in the face of discourtesy. Be acutely aware of the mood of the courtroom and in particular the jury. In that context, do not raise your voice at a witness unless the witness has not answered a clear question asked in a clear way and also, critically, you feel the jury have lost their patience with that witness. Approaching your cross-examination in that way makes you an ally of the jury and not their opponent. That will advance your client’s case.”

A message to prosecutors. Cross-examination is incredibly unlikely to elicit a confession to the crime you are prosecuting. You may not have a proof of evidence from the accused, but you will know what their evidence is likely to be from the cross examination of the prosecution witnesses, particularly the complainant. Prepare, and consider what is your purpose, for example are you looking to establish opportunity, lies, inconsistencies or motive. Always assume you may need to cross examine an accused and know what you need to cross-examine on to ensure that any propositions you wish to make in closing submissions are covered.

Before you embark on cross-examination you need to understand the rules of evidence. For example, learn how to properly cross examine on a prior inconsistent statement. Your questions can be pressing or persistent, but they should be relevant to an issue or to credibility and not prohibited by law. You should familiarise yourself with sections 15 to 21 of the Evidence Act 1977 (Qld). Make sure you comply with your obligations under Browne v Dunn (1893) 6 R 67.  But, where possible, integrate what you need to put to a witness as part of the general flow of cross examination, rather than adding it on at the end.

If you are getting a hard time about the relevance of your cross-examination, Jeff Hunter KC says this is an example of where the law is your friend. Look to Wakeley & Bartling (1990) 93 ALR 79, 86, where Mason CJ, Brennan, Deane, Toohey and McHugh JJ said:

The limits of cross-examination are not susceptible of precise definition, for a connection between a fact elicited by cross-examination and a fact in issue may appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any general test of relevance which a trial judge is able to apply in deciding, at the start of a cross-examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun by securing a witness’ assent to a proposition of seeming irrelevance. Although it is important in the interests of the administration of justice that cross- examination be contained within reasonable limits, a judge should allow counsel some leeway in cross- examination in order that counsel may perform the duty, where counsel’s instructions warrant it, of testing the evidence given by an opposing witness. Lord Hanworth MR, in words which commanded the approval of the House of Lords in Mechanical and General Inventions Co and Lehwess v Austin and Austin Motor Co Ltd [1935] AC 346 at 359 , said:

Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the court, not forgetting at the same time the burden that is imposed upon the witness.

What do you do once you have achieved your purpose in cross examination? Sit down. When you are questioning a witness, and everything is going your way, sometimes as an advocate it can be hard to stop and be quiet. But there is nothing more dangerous to your case than going that one question too far. If you have all the answers you need, you have done your job. Stop. Often the most powerful cross examination is no cross examination at all. If you have everything you need from a witness’ evidence in chief, the only thing you risk doing is making it worse.

For those who are starting out, David Jones KC offers this guidance “If you are new to advocacy, know that there is no singular correct approach to cross- examination. Each advocate will develop a style that will suit their personality. That style will then mould to their environment, their opponent, the witness or even their solicitor’s client. In my experience, the days of barristers only having the one ‘gear’ whereby they shout and intimidate the witness has come or is coming to an end. Our Judges appear to be less tolerant of this approach, and more importantly, our jurors appear, except for the infrequent ‘deserving’ witness, to be unimpressed when such a course is taken. My first point of call is to settle the case theory and have an advanced draft of your closing address before you start preparing for cross-examination. This, in my opinion, is a must. Putting aside opportunistic targets, having both will provide you with a clear path to cross-examination. My next point is brevity.”

You will get better at cross examination with experience, but experience and skill are no substitute for careful preparation and planning. Good preparation will help reduce your nerves, allow you to maintain control of your witness and will give the impression to everyone that you are prepared, organised and that you know your case back to front. Ultimately that is your goal, so the jury can trust what you are telling them in your closing address, supported by the evidence you require.  

After every cross examination force yourself to go through the painful process of reading the transcript and working out what worked and what didn’t.   

And importantly, take every opportunity to go watch some great cross examiners in court!

The Acceptance and Initial Management of Criminal Briefs – Issue 93 September 2023Objections in Criminal Trials – Issue 94 December 2023Opening Addresses in Criminal Trials – Issue 95 March 2024Evidence in Chief in Criminal Trials – Issue 96 June 2024Maintaining your Selfcare During Trial – Issue 97 September 2024

Although we highly recommend that you do view it, for those members who presently do not have time to watch it – in summary Irving Younger’s 10 commandments on cross examination are:

1. Be brief
2. Use plain words
3. Use only leading questions
4. Be prepared
5. Listen to the witnesses’ answers
6. Do not quarrel with the witness
7. Avoid repetition
8. Disallow witness explanation
9. Limit questioning
10. Save the ultimate point of your cross for your closing argument

Ms Amanda O’Brien, Principal Registrar – Supreme, District and Land Courts Service, obtained a Bachelor of Arts (Justice Administration) from Griffith University in 1996, and a Bachelor of Laws from the Queensland University of Technology in 2002.  She was admitted to practice as a solicitor on 28 January 2003.

Ms O’Brien’s career in legal administration commenced in 1989 with her appointment as Deputy Registrar and Deputy Sheriff of the District and Magistrates Court registries at Southport and Beenleigh.  Since that time she has served in a raft of roles, including:

• 2005 to 2013 – Manager and Senior Legal Research Officer, Queensland Sentencing Information Service, Brisbane.
• 2014 to 2015 – Legal Practice Manager, Office of Director of Public Prosecutions, Cairns.
• 2016-2017 – Senior Registrar, Magistrates Courts’ Service, Brisbane and Cairns.
• 2017-2024 – Deputy Principal Registrar and Sheriff of Queensland, Brisbane,  Supreme, District and Land Courts’ Service.
• September 2024 to date – Assistant Director-General of the Department of Justice and Attorney General, and Principal Registrar, Supreme, District and Land Courts’ Service.

Ms O’Brien chatted with editor, Richard Douglas KC.

*According to Wikipedia: mirepoix (/mɪərˈpwɑː/ meer-PWAH, French: [miʁ.pwa] ) is a mixture of diced vegetables cooked with fat (usually butter) for a long time on low heat without coloring or browning. The ingredients are not sautéed or otherwise hard-cooked, because the intention is to sweeten rather than caramelize them. Mirepoix is a long-standing part of French cuisine and is the flavor base for a wide variety of dishes, including stocks, soups, stews, and sauces.

In “Good Barristers; Bad Days”, PA Keane AC KC, in an address to Queensland Bar Practice Course, 28 May 2015, at 7, said:

One of the most misleading clichés which you will hear about advocacy is the phrase “Keep it simple, stupid.” The reason for having barristers at all is that it is not simple. The task is not to keep it simple; but to make it simple. And that is hard.

Michael McHugh QC, himself one of the legends of the Australian Bar, has observed that the secret of Sir Garfield Barwick’s success as Australia’s pre-eminent advocate lay in his ability to simplify what was complex and to illustrate an abstract proposition with a concrete example. This is the quintessential skill of oral argument.

The skills of refinement, simplification and synthesis that we value most highly in our advocates have been developed over the course of a millennium in oral argument in court or in mooting in the Inns of Court, rather than in the marshalling of citations from academic treatises. That is no less true today than it was in the time of Edward I.

But the exercise of these skills is harder for barristers today than ever before because our confident and rights-conscious fellow citizens who will be your clients, and the commercially savvy solicitors who will be briefing you, will often bring moral and economic pressure to bear on you to pursue every possible point regardless of your view of its merits or lack thereof. It is part of your job, perhaps the hardest part, to counsel your clients and your solicitors against what will appear to the court to be a wasteful self-indulgence. You will need to be brave. You might lose the support of some solicitors as a result, but you will, in the long run, be, and be seen to be, a better barrister for it. The courts will be better for it too. And you will impress the judges and others.

(emphasis added)

12 McHugh, “The Rise (and Fall?) of the Barrister Class” in Gleeson and Higgins (eds), Rediscovering Rhetoric: Law, Language and the Practice of Persuasion, (2008) 165 at 189.

Emma Coulter is a visual artist, living and working in greater Melbourne. Born in Northern Ireland, Emma grew up in Brisbane, Queensland (mostly), until she relocated to Melbourne in her late twenties.

Practising as a visual artist for over twenty years, Emma also has a background working in interior architecture. One of the key projects she led was the design for a 14000m2 office fit out for Allens Law firm, at 101 Collins Street in central Melbourne.

Having studied straight from school, both a Bachelor of Visual Arts, and a Bachelor of Built Environment at QUT, Emma worked for many years in both fields, before making the leap of faith in 2014 to quit her serious day job, and undertake a Masters at the Victorian College of the Arts in Melbourne. It was during this time that her painting practice, and deep knowledge in architecture and space collided to create a new ongoing series of site-specific works, named, ‘spatial deconstructions’. Painted in situ, these works took the elements of each space as a canvas for a painting. It was during this time that she started to refine her colour palette, creating a series of colours, that could be taken across painting, installation and sculpture.

spatial deconstruction #23 (resilience), 2021 to 2023 – CITY SQUARE, Melbourne, Australia

Since then, Emma has created over 30 site-specific installations, including 10 major public art commissions. Significant public art projects include, Yarrila Place, Coffs Harbour, (2023); Shepparton Art Museum, (2023); City Square, Melbourne (2021); Footscray Community Arts Centre, Melbourne (2021), QUT Art Museum, Brisbane (2021) and William Jolly Bridge (2020).

In 2019, Emma was invited to make a site-specific work at the Museum of Brisbane, for a retrospective exhibition, titled, ‘NEW WOMAN’, a centenary exhibition celebrating the work of ‘ground-breaking female artists’, of a Brisbane origin. Through the process of being included with a major commission in this exhibition, (her work filled an entire room in the museum, which at the time was the largest work she had ever made), she was then invited to create the work for the William Jolly Bridge by the curatorial team at the Brisbane City Council.

spatial deconstruction #21 (portals), 2019 to 2020 – Commissioned for ‘New Woman’ at Museum of Brisbane, Brisbane, Australia.

multichromatic synaesthesia, on the William Jolly Bridge, celebrates the movement of the city, and the river, whilst deconstructing the unique form of this civic heritage structure, during night fall, and the shared non-hierarchical public space of the William Jolly Bridge. Utilising a study for a painting, and her serial colour palette, and the tools of light projection, the bridge was transformed into an ephemeral site-specific light intervention.

For around ten years, from 2010 to 2020, the Brisbane City Council ran an initiative to highlight the historical and iconic structure of the William Jolly Bridge, by transforming it into a large-scale temporary public artwork celebrating artists and cultural events around the city.

The William Jolly Bridge projection was one of Emma’s first (paid for) public art commissions. Through the transformation of the bridge, as a canvas for Emma’s work, at this great scale, she was able to break into the public art realm to be shortlisted for more commissions. The breakthrough work demonstrated the potential for Emma’s work to transform public spaces into multichromatic interventions, celebrating, colour, light and space.

In 2020, Emma was shortlisted and won the commission to transform a building occupying a whole city block in central Melbourne, whilst the construction for the new Metro tunnel stations were under way. The following year she was also awarded a competition to create a new work on Footscray Community Art Centre’s façade, as part of the Footscray Art Prize. Other additions to the urban environment, include an enormous multi sided artwork on a construction site in South Melbourne, a public mural in Malvern East, a streetscape intervention on Richmond Town Hall’s facade, a public facing window intervention at QUT Art Museum, as well as a spatial deconstruction work in Burnett Lane, Brisbane CBD.

In 2023, Emma completed her first integrated, site-specific, light and sculpture commission, ‘let them feel the light’, at Yarrila Place, Coffs Harbour’s new civic and cultural centre, in NSW. Being shortlisted through national callout, Emma was awarded the commission through her winning concept design proposal. Emma worked on the development of this project for over two years.

Existing at the heart of the building, the work traverses the light filled atrium space, dispersing colour and illumination, in acknowledgement of the meaning of Yarrila, whilst also drawing inspiration from Coffs Harbour’s geographic coastal location. Through her voice as an artist these ideas intersect with concepts of memory, time and feeling to culminate into a unique site-specific work. It is her most significant public art work to date.

When she is not working on big public art projects, you can find Emma in her studio working on smaller scale paintings and sculptures. Alongside her larger scale public works, she regularly exhibits work in both solo exhibitions and invited group shows. Her work is held in the permanent collections of Artbank, the City of Melbourne, QUT Art Museum, the Australia and New Zealand Banking Group, St John of God Healthcare, and private collections here and overseas.

Emma’s works have also been exhibited internationally, in both Germany and New York.

Emma is currently working on her next solo exhibition, SUPERIMPOSITION, which will run from 3 – 24 May, at James Makin Gallery in Melbourne.

If you are interested in finding out more about Emma Coulter, you can view her website at www.emmacoulter.com.au or contact her gallery at info@jamesmakingallery.com

The title of this item is a quote from Starke J, in dissent, in a decision of the High Court 90 years ago in Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 253. The full quote is as follows:

Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future.

Starke J’s adjuration was followed by Lockhart and Gummow JJ, in the Full Court of the Federal Court, in Attorney General (NT) v Minister for Aboriginal Affairs (1987) 16 FCR 267 at [50], [51]. The issue invariably arises in circumstances in which there has been an announcement by government, at some level, of the prospect of legislative amendment, likely of retrospective operation, which would impact upon the subject matter.

Instructive in this regard is the decision of the New South Wales Court of Appeal in Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527, in particular in the judgment of Mason P. Instructive also are the reasons for judgment of McHugh J, sitting as a member of the New South Wales Court of Appeal, in Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 258, quoting R V Whiteway; Ex parte: Stevenson [1961] VR 168 at 171.

The authorities concerning the principle were collected, and application thereof exemplified, in the recent decision of Forbes J in Taylor v Trustees of the Christian Brothers [2025] VSC 25 (4 February 2025). Her Honour wrote:

[1] The plaintiff has made an application to vacate the trial listed for 11 February 2025. The application was returnable at the final directions hearing on 31 January 2025. It was opposed by the defendant.

…

[5] Given the absence of formal applications in either matter and the concession of the parties that both matters could be determined prior to the present trial date, the application to vacate rested on the proposed legislative changes in relation to vicarious liability.

[6] The plaintiff’s affidavit in support deposed to a question asked of the Victorian Attorney-General in Parliament on 26 November 2024 as to whether she would actively support legislative reform following the High Court decision in Bird: Plaintiff, ‘Affidavit of Shea Rowell’ affirmed 30 January 2025, Affidavit in Taylor v Trustees of the Christian Brothers [2025] VSC 25, (‘Plaintiff’s affidavit in support’), [22]. In response, Ms Symes indicated that ‘the Standing Committee of Attorneys-General [had met] on Friday, where I raised this matter…I have been tasked with leading the work on bringing some material back to that committee; we meet in February [2025]’: Ibid, extract of the Hansard, Legislative Council, on 26 November 2024, as exhibited to the Plaintiff’s affidavit in support, 26. Other correspondence and news articles from December 2024 were also referred to and exhibited. The proposed legislative amendments were submitted to establish a particular injustice to the claim of the plaintiff which would also affect others matters in the Institutional Liability List. An adjournment to a date not before 1 July 2025 was sought.

[7] There is a long line of authority establishing the general principle that the role of the Court is to determine cases according to the existing law. The comments apply whether the contemplated changes derive from a court appellate process or a legislative process. In Meggitt Oversesas Ltd v Grdovic (1998) 43 NSWLR 527, Mason P found that a trial judge had erred in vacating a trial so that a plaintiff could rely on proposed legislative changes to reform available damages for dust diseases. It was argued that proceeding to trial before the foreshadowed amendments would seriously prejudice the plaintiff. In finding that the trial judged had erred in exercising this discretion, his Honour said (Ibid 529, Sheller and Beazley JJA agreeing.):

In my view, the discretion miscarried. The learned judge erred in taking into account the prospect of legislative amendment as a controlling factor in the decision granting the adjournment. The error was compounded by the apparent intent that the hearing date will, as presently advised, be deferred until the amending legislation is passed and the plaintiff becomes thereby entitled to take advantage of it.

[8] The announcement of a decision to introduce particular legislation, and any retrospective operation of such legislation, may impact pending proceedings. But, as Mason P went on (Ibid 531):

Does the announcement qualify in any way the judicial branch’s obligation to uphold the existing — I emphasis the word ”existing” — law? And does it enliven a power to grant a contested adjournment of proceedings fixed for hearing so as to enable one party to gain the benefit of proposed legislation to the detriment of another party? The answer to each question must be a categorical “no”.

[9] These comments in turn relied on a line of authority based upon the comments of Starke J (Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 253; see also as applied in Attorney-General (NT) v Minister for Aboriginal Affairs (1987) 73 ALR 33 at 50 –51, Jupp v Computer Power Group Ltd (1994) 122 ALR 711, Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246, McHugh J at 258 quoting R v Whiteway; ex parte Stevenson [1961] VR 168 at 171):

Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future.

[10] At present there is no Bill before the Victorian Parliament. The Victorian Attorney-General said in the Victorian Parliament on 26 November 2024, legislative amendments are complex and involve considerations of federal laws and retrospectivity, amongst other things. There is a need to consider unintended consequences, and consultation with stakeholders will be required (Plaintiff’s affidavit in support, 26). The effect of proposed legislative change on any individual case is presently speculative.

[11] Since the trial judgment in Bird, delivered on 22 December 2021, cases in the Institutional Liability List have continued to be determined, pending the appeals to the Court of Appeal and then to the High Court in accordance with the law as it stood from that time: DP (pseudonym) v Bird [2021] VSC 850. This is in accordance with the general principle that cases are not delayed because the outcome of a prospective change in the law might have a bearing on the outcome of a particular trial. As Ormiston JA said in Geelong Football Club v Clifford (2002) VSCA 212, [6]-[7], Callaway JA agreeing:

It is not ordinarily sufficient to show that an appeal yet to be heard in another case may reach a legal conclusion which could support the claim made by the party seeking the adjournment. Of course there are no black and white rules preventing adjournments in appropriate circumstances. …

Generally speaking, however, a possible change in the law, whether judicial or legislative, is not to be treated as justification for failing to hear a case fixed and ready for trial.

[12] The general principle may be displaced in an appropriate case. The plaintiff did submit that an injustice would arise because of how the plaintiff intended to put his case at trial. As articulated, this injustice arose because of how the pleadings dealt with the role of Brother Webster against whom abuse is alleged and who was the school principal at the relevant time. The plaintiff submitted that the potential exclusion of liability for Brother Webster’s acts or omissions as principal warranted an adjournment. Whatever the particular factual circumstances, the change to come from potential legislative change remains a matter of general application to many cases. The plaintiff accepted a significant number of pending cases are likely to be similarly impacted by the decision in Bird. I do not accept that this was a basis upon which I ought adjourn this particular trial.

…

(emphasis added)

A link to the full decision may be found here.

In Sanmik Food Pty Ltd v Alfa Laval Australia Pty Ltd [2025] NSWCA 7 (10 February 2025), the New South Wales Court of Appeal addressed the proper construction of a release clause in a settlement deed in relation to the status of certain equipment.  The initial contract between the vendor and the purchaser concerned the sale of two coconut milk production plants, comprising various components, including the subject homogeniser and aseptic filler equipment.  The vendor shipped the equipment to the purchaser in Sri Lanka, but no further components were shipped.  Initial proceedings were settled, under a settlement deed, which provided for “a new supply [of two plants] that is independent of the previous contract”, and released the purchaser “from all Claims and actions arising from or in connection with the Settled Matters”.  The settlement documents were silent on what was to be made of the equipment already delivered.  The purchaser then commenced a proceeding alleging that on the proper construction of the settlement deed, the vendor was not entitled to use the equipment previously supplied to discharge any part of its obligation to supply two plants under the deed.  The primary judge dismissed the purchaser’s claim, and an appeal (Adamson JA dissenting) was dismissed.  McHugh JA, and Griffiths AJA, wrote:

[108]  The parties chose to settle litigation about their Initial Contract for the supply of two plants, which contract they agreed had been terminated, by entering into a new contract for the supply of two plants. The parties failed to make express provision in the Settlement Documents for the fact that, prior to termination of the Initial Contract, the vendor (a) had delivered to the purchaser a homogeniser and filler that would meet the specification for the same components of the plant required to be supplied under the new contract, but (b) retained title to those components. That failure made it, as Adamson JA points out, almost inevitable that the Settlement Documents would require judicial interpretation.

[109]  Having had the considerable benefit of reading Adamson JA’s reasons for judgment in draft, and gratefully adopting her Honour’s abbreviations, I can express my reasons for concluding that the appeal should be dismissed relatively shortly. Although I am in general agreement with Griffiths AJA, I would add the following.

[110]  Neither party suggested that the fact that the homogeniser and filler were physically located in Sri Lanka had any bearing on the applicable principles; they proceeded on the footing that the general law of Australia applied.

Title to the homogeniser and filler at the time of the settlement

[111]  It was common ground at first instance and on appeal that the vendor retained title to the homogeniser and filler immediately prior to entry into the Settlement Deed, and that there had been no dispute about the vendor’s ownership of the homogeniser and filler at the time. The primary judge made an unchallenged finding that the parties knew at the time that the homogeniser and filler were still owned by the vendor, and that they precisely met the specifications for the corresponding components to be supplied under the new contract: Sanmik Food Pvt Ltd v Alfa Laval Australia Pty Ltd [2024] NSWSC 698 at [42].

[112]  The common ground that title had not passed at the time of the settlement is undoubtedly correct. Unless the Initial Contract operated to effect a transfer of title from the vendor to the purchaser, nothing else in the parties’ dealings prior to entry into the Settlement Deed could have had that effect. The Initial Contract contained the following retention of title clause:

Reservation of Ownership / Insurance

Ownership of the equipment/module to be delivered shall pass to the Purchaser only upon receipt of the full purchase price by the Seller. Moreover, until that date, the Purchaser will keep the equipment/module insured against all risks, in particular fire for an amount at least corresponding to the agreed purchase price.

[113]  Because the full amount of the purchase price was never paid, the effect of this clause was that title did not pass under the Initial Contract prior to its termination.

[114]  That it was uncontroversial that the vendor had not parted with title to the homogeniser and filler at the time of the settlement is central to each of the issues raised in the appeal.

Ground 1(a): clause 3.2(a)

[115]  Ground 1(a) is to the effect that by reason of cl 3.2(a), the vendor “no longer had any claim to title to the Homogeniser and Filler”. As this ground was argued, it extended not only to the question whether the vendor retained title in the sense of property in the homogeniser and filler, but also to the question whether the vendor was entitled to assert against the purchaser any claim of right that had flowed from its title, including the right of a bailor to have goods re-delivered to it.

[116]  “A bailment comes into existence upon a delivery of goods of one person, the bailor, into the possession of another person, the bailee, upon a promise, express or implied, that they will be re-delivered to the bailor or dealt with in a stipulated way”: Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 at 238; [1971] HCA 26 per Windeyer J.

[117]  The homogeniser and filler were originally delivered to the purchaser in the following circumstances: (1) the vendor gave the purchaser the right of exclusive possession; (2) the purchaser took possession voluntarily; (3) either as a matter of the proper construction of the Initial Contract (including the retention of title clause) or by necessary implication, the purchaser assumed a responsibility to keep the homogeniser and filler safe pending payment of the full purchase price; and (4), by implication in all the circumstances, the purchaser undertook an obligation to re-deliver the homogeniser and filler to the vendor in the event that the purchaser failed to pay the full purchase price. It follows (and it does not appear to be in dispute) that upon delivery the purchaser held the homogeniser and filler as bailee.

[118]  What the purchaser disputes is the legal character of the bailment, and how long it continued. The purchaser sought to subsume the bailment wholly within the Initial Contract, such that when the contract was terminated, so too was the bailment. Thus, Senior Counsel for the purchaser submitted at the hearing of the appeal: “The way it was pleaded … was that it was a bailment under the contract.” (Tcpt, 9 December 2024, p 45/32; emphasis supplied.) This was a reference to [14]–[21] of the vendor’s Further Amended Commercial List Cross-Claim Statement. It is true that the vendor alleged at [14] that it had delivered the homogeniser and filler to the purchaser “pursuant to” the Initial Contract. But the vendor also alleged that ownership of the homogeniser and filler had remained with the vendor, that the vendor had terminated the Initial Contract by letter dated 24 August 2022, and, at [21], that following the termination of the Initial Contract (and also following entry into the Settlement Documents), either the bailment remained in effect or a new bailment came into effect. That was, clearly enough, a pleading that the bailment existed independently of the Initial Contract. That allegation was well-founded.

[119]  It is true that, prior to its termination, the Initial Contract had in some respects regulated the terms of the bailment. That explains, for example, the vendor’s allegation at [20] that “[b]y reason of” the matters earlier alleged, including the delivery pursuant to the Initial Contract, the purchaser was “to hold the Homogenizer and Filler as bailee for the [vendor] until the full purchase price under the Contract was paid.” But the bailment relation that came into existence upon delivery of the homogeniser and filler to the purchaser was itself conceptually and legally distinct from the Initial Contract, and the vendor’s allegation at [20] was not inconsistent with that proposition. From the outset, the bailment arose under the general law, as an incident of the separation of ownership and possession and the circumstances in which that occurred. The fact that the delivery of the homogeniser and filler into the purchaser’s possession occurred pursuant to the Initial Contract does not undermine the distinct legal character of the bailment; it was simply one of the circumstances which gave rise to the bailment.

[120]  That was the position immediately prior to termination of the Initial Contract.

[121]  By cl 3.2(a) of the Settlement Deed, “On and from the execution of this deed,” the vendor agreed that the Initial Contract “has been terminated and that the parties have no further obligations in respect of the Contract”. The parties had been litigating the vendor’s assertion that it had terminated the Initial Contract for the purchaser’s breach and/or repudiation. This clause resolved the existing dispute about the validity of the termination. For present purposes it does not matter whether the date of the agreed termination is taken to be the date of the vendor’s letter of termination (24 August 2022) or the date of the Settlement Deed (22 March 2023). The important point is that the clause should be read as recording the parties’ agreement about two matters. First, that the termination had already happened (“has been terminated”). Secondly, that the ordinary legal consequence of such a termination followed, namely, that the parties were discharged from further performance of the Initial Contract. Although the whole of cl 3 is headed “Release”, cl 3.2(a) thus operated very differently from the express release in cl 3.2(b).

[122]  As to the first of the matters agreed in cl 3.2(a), once the Initial Contract was terminated, it no longer regulated the bailment. But the purchaser’s submission that the termination of the Initial Contract also necessarily determined the bailment should be rejected. As noted above, even prior to termination of the contract, the bailment relation between the vendor and purchaser was distinct from the contract. It would be a mistake to treat the purchaser’s obligations under the bailment here as though they were in effect mere implied terms of the Initial Contract which came to an end with the contract. Nor was the subsistence of any contract a necessary element of the bailment relation; the relationship of bailor and bailee of a chattel can arise and exist independently of contract: Hobbs at 239 per Windeyer J.

[123]  Although the termination of the Initial Contract meant the parties were discharged from future performance of it, that did not undo what had already occurred in fact (whether pursuant to the contract or otherwise); nor did the termination undo the legal effect of what had occurred. In particular, the purchaser’s responsibility to re-deliver the homogeniser and filler to the vendor in the event that the purchaser failed to pay the full purchase price was not discharged by the termination of the Initial Contract. To the contrary, termination of that contract was likely to be a circumstance in which the purchaser would have failed to pay the full purchase price and therefore be obliged to re-deliver the goods.

[124]  As to the second of the matters agreed in cl 3.2(a), the vendor’s agreement that “the parties ha[d] no further obligations in respect of the Contract” does not assist the purchaser. Clause 3.2(a) said nothing about the vendor’s ownership of the goods; nor about the distinct bailment relation between the parties. The vendor’s title to the homogeniser and filler existed independently of the Initial Contract. The vendor’s title was not (a) an obligation (b) of the purchaser (c) in respect of that contract. So too, for the reasons given above, the bailment, and the purchaser’s obligations under it, were distinct from the contract. The vendor’s right to have the homogeniser and filler re-delivered to it pursuant to the bailment was not an “obligation” of the purchaser in respect of the contract.

[125]  The position upon termination of the Initial Contract was thus as follows: title to the homogeniser and filler remained with the vendor; the purchaser remained in physical possession of those goods; the parties had no further obligations to perform under the Initial Contract; but the purchaser continued to hold the homogeniser and filler as bailee. The vendor thus continued to enjoy its right as bailor to have the homogeniser and filler re-delivered to it.

[126]  Ground 1(a) fails.

Ground 1(b): clause 3.2(b)

[127]  The fact that at the time of the settlement there was no dispute between the parties either as to the vendor’s title to the homogeniser and filler, or as to the vendor’s right to have those goods re-delivered pursuant to the bailment, is important context for the construction of the release in cl 3.2(b). While it is true that cl 1.3 of the Heads of Agreement annexed to the draft deed of settlement had been deleted in the course of negotiations between the parties, that draft clause had been directed to a different subject matter: “The Parties agree that part of the plant for Plant 1 has already been delivered being 1 filler and 1 homogeniser.” The fact that the purchaser may have been unwilling to include in the Settlement Documents a provision acknowledging in terms that the new contract had already been performed in part is a long way from constituting a dispute, still less a dispute about the vendor’s title or right to have those goods re-delivered.

[128]  Clause 3.2(b) is expressed as a release of “all Claims and actions arising from or in connection with the Settled Matters”. The clause thus invokes two defined terms: “Claim” and “Settled Matters”.

[129]  “Claim” is defined inclusively as “any claim, action or liability of any kind (including one which is prospective or contingent and one the amount of which is not ascertained) and costs …” The vendor submitted that the word “claim” could mean either a claim in the sense of a demand, or a claim in the sense of a right. In the context of a deed of settlement the first of those two meanings is the more natural reading. As will be seen, that construction is strengthened once the definition is read in the context of the substantive clause, including the term “Settled Matters”.

[130]  The term “Settled Matters” is effectively defined in recital H. This records that “the parties have agreed to settle all claims and disputes between them which were the subject of, or in any way related to: …” various subjects, which include at (c) the Initial Contract and at (d) “the supply of the First UHT Plant and the Second UHT Plant”. The “claims and disputes” about those subjects are then described as the “Settled Matters”. It is important to bear in mind that the Settled Matters were not the subjects listed in recital H; the Settled Matters were “all claims and disputes between [the parties]” which related to those subjects.

[131]  Just as the adjective “all” is most naturally read as describing both “claims and disputes”, so too are the words “between them” most naturally read as qualifying both “claims and disputes”, as part of what should be understood as a composite phrase. That these were claims or disputes “between” the parties suggests that a “claim” means an asserted demand, rather than a right. The choice of the verb “settle” in recital H also suggests that “claim” means an asserted demand. So too does the use of the past tense (“which were the subject of, or in any way related to”). The Settled Matters should thus be read as confined to demands that had actually been asserted prior to the time of the settlement.

[132]  To construe “claim” in the definition of “Settled Matters” as meaning a demand that had actually been asserted is consistent with the longstanding approach to construing releases at law. Thus, as Leeming JA (Bell CJ agreeing) said in Reid v Commonwealth Bank of Australia (2022) 109 NSWLR 149; [2022] NSWCA 134 at [33], at law:

releases are to be construed narrowly, with general words confined to those things which were ‘specially in the contemplation of the parties at the time when the release was given’: Directors &c of the London and South Western Railway Company v Blackmore (1870) LR 4 at 623. Lord Westbury added (at 623–64) that ‘a dispute that had not emerged, or a question which had not at all arisen, cannot be considered as bound and concluded by the anticipatory words of a general release.’

[133]  Defined terms must ultimately be interpreted in the context of the substantive provision in which they are used. Given the inclusive definition of “Claim” and the syntactically complex way in which the “Settled Matters” are defined, it is not straightforward to read the two defined terms into cl 3.2(b). Upon doing so, the substantive provision is to the effect that the vendor “releases and forever discharges [the purchaser] from all Claims [ie, any claim (in the sense of a demand), action or liability] and actions arising from or in connection with the Settled Matters [ie, arising from or in connection with any claims (in the sense of demands that had been asserted) and disputes between the parties which were the subject of, or in any way related to, the subjects listed in recital H]”. In light of recital G (which refers to the commencement of the proceedings in the Supreme Court of New South Wales) and recital H, cl 3.2(b) should be read as releasing only matters which had actually been in dispute prior to the settlement.

[134]  The purchaser’s basic difficulty is that neither the vendor’s title to the homogeniser and filler, nor the vendor’s right to re-delivery of those goods pursuant to the bailment, meets the description of a claim (in the sense of a demand), action or liability arising from or in connection with the Settled Matters as defined. That is so for several reasons.

[135]  First, as noted above, the Settled Matters were not the subjects listed in recital H (such as “the supply of the First UHT Plant and the Second UHT Plant”); the Settled Matters were the extant “claims and disputes between” the parties which related to those subjects. At the time of the settlement, there had been no claim (in the sense of a demand) or dispute between the parties about either the vendor’s title to the homogeniser or filler, or the vendor’s right to re-delivery of those goods under the bailment. Nor did the vendor’s title to the homogeniser and filler, or its right to have them re-delivered under the bailment, “arise from or in connection with” any such extant demand or dispute at the time of settlement. The vendor’s title, and its right to re-delivery, arose independently of any such claims or demands. If the vendor’s title to the homogeniser and filler is to be seen as “arising from or in connection with” the Settled Matters, so too must the vendor’s title to any other equipment it purchased for the purposes of the Initial Contract. That would be a surprising outcome.

[136]  Secondly, what cl 3.2(b) releases are “Claims”. As defined, these are demands rather than rights. But the vendor’s title to its goods is not a mere demand against the purchaser; it is a right of property good against the whole world.

[137]  Thirdly, even if, contrary to the above, the word “claim” should be read here as extending to a mere right as opposed to an asserted demand, and even if the vendor’s hitherto undisputed title to the homogeniser and filler is thus to be understood as a “claim”, it makes little sense to say the vendor “releases and forever discharges” the purchaser from the vendor’s title to those goods. If those words were to be construed as effecting a transfer of title from the vendor to the purchaser, this was strange language for that purpose, particularly when such a transfer was not otherwise contemplated by the parties. But it would be stranger still if the effect of cl 3.2(b) was that the vendor retained title to (ie, ownership of) the homogeniser and filler, but surrendered its (also hitherto undisputed) right to re-delivery of those goods under the bailment.

[138]  As a matter of construction of the Settlement Deed at law, there was no transfer of title to the homogeniser or filler, no “release” of the vendor’s claim to title to those goods, and no release of the vendor’s right as bailor to the return of the goods. Ground 1(b) fails.

[139]  There is accordingly no occasion to consider the scope of any equitable doctrine.

Ground 2: did the vendor agree not to use the homogeniser and filler in performance of the new contract?

[140]  Under the settlement the vendor assumed a new and distinct obligation to supply two plants. That obligation is rooted in clause 2.1(a) of the Settlement Deed, which is a promise to enter into the Commercial Terms and Supply Terms “for a new supply that is independent of the previous Contract in the form annexed to this deed”.

[141]  The vendor was required to perform its obligation by supplying plants which met the specifications in the Supply Terms. In respect of the first plant, the obligation was not simply to deliver the homogeniser and filler; it was to supply a complete plant. That involved not only the delivery of component parts but the commissioning of the complete plant, of which the homogeniser and filler were important components. Subject to the terms of the parties’ agreement, the vendor was entitled to discharge its obligation to perform the new contract by using any equipment available to it. Since title to the homogeniser and filler remained with the vendor, and since the vendor had not released its right to re-delivery of the goods under the bailment, subject to the terms of the parties’ agreement, that equipment would include the homogeniser and filler already on site in Sri Lanka.

[142]  The Settlement Documents must be construed against that background. It would be somewhat surprising if the vendor retained title to the homogeniser and filler, and had the right under the bailment to re-take possession of them, and those components perfectly matched the specifications required under the new contract, but the parties nevertheless agreed that the vendor was prohibited from using the homogeniser and filler to perform its contractual obligation to supply a plant. The parties could of course agree to that outcome if they so chose; but there was no express term to that effect. There were provisions in the Settlement Documents, identified by Adamson JA and Griffiths AJA, which would be consistent with either position. Viewed as a whole, they are insufficient to found the implication the purchaser requires. For the reasons given by Griffiths AJA, I am not persuaded that Ground 2 is made out.

[143]  The appeal should be dismissed with costs.

Griffiths AJA.

[144]  I have had the considerable advantage of reviewing Adamson JA’s reasons for judgment in draft. The issues of construction raised by the appeal are strongly contestable. Their resolution is not straightforward. For the following reasons, however, I respectfully disagree with the orders proposed by her Honour. I consider that the appeal should be dismissed, with costs.

[145]  There is no need for me to repeat the terms of the relevant documentation, describe the relevant events or summarise the legal principles and the parties’ submissions. With one exception, the material matters are comprehensively set out by Adamson JA (I will also gratefully adopt her Honour’s abbreviations).

[146]  In my view, that exception relates to the significance as an aid to construction (once it is apparent that the relevant clauses in the Settlement Documents do not have a plain meaning) of the Customs Invoice dated 17 July 2019. This Customs declaration was made by the vendor and copied to the purchaser. It describes the proposed entry into Sri Lanka of the filler and the homogenizer, being the two items at the heart of the dispute. I consider it significant that the nominated total value of the two items was the substantial sum of AUD$588,000 (comprised of amounts of $428,500 and $159,500 for the filler and homogenizer respectively). Thus the declared total value was approximately $200,000 more than the money paid by the purchaser under the terms of the Initial Contract (being $387,600).

[147]  The substantial value of the two items, as declared to Sri Lankan Customs, was known to both parties. Indeed, it is one of the seven matters which the purchaser identified below in a document dated 17 May 2024 and headed “Critical surrounding circumstances known to both parties”. Moreover, in closing address below, the purchaser’s then senior counsel acknowledged that both parties knew of the declared value of $588,000; and, in oral address on the appeal, the purchaser’s replacement senior counsel described the homogenizer, filler and tank as “the three main components of the plant”.

[148]  The invoice forms part of the surrounding circumstances relevant to the issues of construction once it becomes clear that the contractual provisions do not have a plain meaning. In particular, I consider that it lends support to a construction which favours the view that the releases did not apply to the vendor’s undisputed title to the two items.

[149]  Objectively viewed, it is unlikely that the parties intended that the two items would simply become “White Elephants” and not be employed as part of the equipment to be supplied under the new Supply Contract. That is all the more so in circumstances where the declared value of the items was not only considerable; they were also brand new (having apparently been stored by the purchaser in its warehouse from the time of their delivery until some time after the Settlement Documents were executed). Moreover, and notably:

(a) the two items were customised and met the specifications for those particular components to be supplied under the new Supply Contract (see at [3] of the vendor’s document below headed “Surrounding circumstances”);

(b) it was common ground that Sanmik considered that the two components were unable to be used without the remainder of the Plant (see [6] of the “Critical surrounding circumstances known to both parties” document); and

(c) when the Settlement Documents were executed, there was no dispute or contest that the vendor retained title to the filler and homogenizer, having regard to the terms of the Initial Contract and the purchaser’s failure at that time to pay the full purchase price.

[150]  These surrounding circumstances all point to the likelihood, objectively viewed, of the parties agreeing in the Settlement Documents to the two items being utilised in the new supply contract rather than effectively being rendered redundant and “replaced” by two new identical customised items of equipment.

[151]  The objective logic of these matters leans against a construction of the documentation which would result in the vendor having to transport and ship two identical items for the purposes of the new supply contract, leaving the other two items idle unless the vendor was able to sell them for spare parts (presumably at a discount and possibly having to have them refabricated or redesigned given that they were customised) or incur what might reasonably be expected to be significant transport costs in shipping them elsewhere.

[152]  I consider that these particular surrounding circumstances, which were known to both parties, are relevant aids to the construction of the Settlement Documents, having regard to what was said by French CJ, Nettle and Gordon JJ in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46] –[49] (footnotes omitted):

[46] The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

[47] In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

[48] Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

[49] However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.

[153]  As is evident from Adamson JA’s detailed analysis, the relevant provisions of the Settlement Documents are not unambiguous or susceptible of only one meaning. If they were, there would be no warrant to have recourse to any relevant surrounding circumstances.

[154]  And, as stated by P Herzfeld and T Prince in Interpretation (3rd ed, 2024, Lawbook Co) at [19.70]:

The true position is that it is not possible to describe in a single statement the varied circumstances in which a court may consider extrinsic evidence to interpret a private legal document. What can be said is that the reasonable person seeking to interpret the document is attributed with knowledge of the relevant facts established by material that is admissible for the purpose of interpretation.

[155]  It is also well recognised that there are important limits to the notion that a court must give a contractual provision “a commercial and business-like operation”. For example, in Jireh International Pty Ltd t/as Gloria Jean’s Coffee v Western Exports Services Inc [2011] NSWCA 137 at [55], Macfarlan JA (with whom Young JA and Tobias AJA agreed) said:

…So far as they are able, courts must of course give commercial agreements a commercial and business-like interpretation. However, their ability to do so is constrained by the language used by the parties. If after considering the contract as a whole and the background circumstances known to both parties, a court concludes that the language of a contract is unambiguous, the court must give effect to that language unless to do so would give the contract an absurd operation. In the case of absurdity, a court is able to conclude that the parties must have made a mistake in the language that they used and to correct that mistake. A court is not justified in disregarding unambiguous language simply because the contract would have a more commercial and businesslike operation if an interpretation different to that dictated by the language were adopted.

[156]  I respectfully agree with Adamson JA that the evidence concerning the parties’ negotiations preceding the execution of the Settlement Documents, including the unexplained deletion of cll 1.3 and 3.5 from the earlier drafts, is not relevant to the task of construction at law. Nor for that purpose should the Court seek to determine the parties’ individual subjective motives in negotiating and ultimately agreeing the terms of the Settlement Documents.

[157]  I turn now to explain more fully why I would reject both grounds of the notice of appeal filed 10 September 2024.

Appeal ground 1(a) Clause 3.2(a)

[158]  The first limb of ground 1 relates to the construction of the release in cl 3.2(a) of the Settlement Deed (the terms of which are set out by Adamson JA at [29] above). The purchaser contends that the primary judge erred at J[101]–[113] in finding that the releases in cl 3 generally did not release the vendor’s claim to title of the filler and homogenizer. It contends that cl 3.2(a) should be construed such that, upon entry into the Settlement Deed, the parties agreed that neither of them had any further obligations under the Initial Contract. Accordingly, it contends the vendor no longer had any claim to title of the filler and homogenizer.

[159]  As Adamson JA has pointed out, the primary judge did not address cl 3.2(a). This is understandable, having regard to the way in which the purchaser conducted its case below. Its commercial list statement filed 17 April 2024 contained multiple references to various clauses in the Settlement Deed, including cl 3.2. The terms of cl 3.2(a) were summarised in [8(h)] of that document.

[160]  Reference was also made to cll 3.2(a), (b) and (d) of the Settlement Deed in the purchaser’s outline of written submissions below. It submitted that the releases captured any former rights or obligations concerning retention of title provisions in the Initial Contract.

[161]  In closing oral address, senior counsel for the purchaser referred to the releases in cl 3.2 generally. However, the focus of the exchanges with the primary judge was on cl 3.2(b). The primary judge observed that cl 3.2(a) was “wide enough to release [the purchaser] from any obligation in relation to the homogenizer and the filler”. Senior counsel for the purchaser agreed with the primary judge’s proposition that “on one view they are releasing you in this clause, taken alone, from any obligation to return [the homogenizer and filler]”.

[162]  When the primary judge added that, looking at the subclauses in cl 3.2, his preliminary impression was that the purchaser “would say well the parties have agreed to let the chips lie where they fall”, senior counsel for the purchaser agreed. Nothing further was said about cl 3.2(a) in the purchaser’s closing address.

[163]  It is scarcely surprising, therefore, that in his reasons for judgment the primary judge did not address this subclause and merely noted at J[65] and [97] that the focus of both parties’ submissions was on cl 3.2(b). Senior counsel for the purchaser on the appeal fairly and appropriately acknowledged that no criticism should be levelled at the primary judge on this matter because cl 3.2(a) did not feature “heavily in closing or at all, perhaps”.

[164]  I turn now to address cl 3.2(a) and whether it should be construed as releasing any claim by the vendor concerning its ownership of the relevant components of Plant 1.

[165]  When the Settlement Documents were executed, the parties were in dispute as to whether the Initial Contract had been validly terminated. This dispute was reflected in the terms of the vendor’s further amended commercial list statement below (at [52]) and the purchaser’s denial in its response that there had been a valid termination (at [19A] of its further amended commercial list response).

[166]  I accept the vendor’s submission that the release in cl 3.2(a) should be read against that background. The reference in that subclause to the purchaser agreeing that the Initial Contract “has been terminated” constituted an agreement between the parties on the contested issue of whether or not the Initial Contract had been validly terminated. The following words in the subclause (ie, “and that the parties have no further obligations in respect of the Contract…”) should be viewed as an acknowledgment of the conventional consequences of such a termination, being that the parties are discharged from future obligations of performance arising under the Initial Contract.

[167]  I do not accept the purchaser’s contention that the subclause operated to release the purchaser’s obligation to hold the items as bailee until the full purchase price was paid, which obligation was said to arise from the terms of the Initial Contract. It was further said that this was supported by [20] of the vendor’s further amended commercial list cross-claim statement. There, the vendor pleaded that, by reason of the matters pleaded earlier at [14] and [15], the purchaser was to hold the homogenizer and filler “as bailee” for the vendor until the full purchase price was paid under the Initial Contract. Paragraphs [14] and [15] were addressed to ownership of the homogenizer and filler. The vendor pleaded that it had delivered the homogenizer and filler pursuant to the Initial Contract and that it was a term of that contract that ownership would only pass to the purchaser upon receipt of the full purchase price.

[168]  I do not accept the purchaser’s submission that these pleadings confirm that the bailment was an obligation sourced in the Initial Contract (and not in law) and therefore was covered by the release in cl 3.2(a). Rather, I consider that the relevant pleadings in the further amended commercial list cross-claim statement claimed that there was a bailment as a matter of law because, although the purchaser was in possession of the two components, no title had passed from the vendor. The bailment did not arise under the Initial Contract; rather, it arose because ownership of the two components was never transferred to the purchaser.

[169]  Clause 3.2(a) also needs to be read against the background of the recitals (which are set out at [26] above). Relevantly, Recital H states that the parties “have agreed to settle all claims and disputes between them which were the subject of, or in any way related to” a list of six matters, which include the Proceedings (par (a)); the Initial Contract (par (c)); and the supply of the First UHT Plant (par (d)).

[170]  I consider that the primary judge was correct to accept the vendor’s submission that the expression “claims and disputes between them” should be read distributively. This construction means that the release does not capture ownership of the homogenizer and filler. That is because there was simply no dispute “between” the parties about that ownership, nor was there any relevant “claim” in the sense of a demand concerning their ownership — the items were unquestionably owned by the vendor as at the date of the execution of the Settlement Documents.

[171]  I do not consider that there is any “circularity” in this construction. The criticism that this construction is based on a presupposition that the two items already delivered can be used to discharge the vendor’s obligations under the new supply contract could be applied equally to the purchaser’s competing construction, which is based on the opposite presupposition.

[172]  As noted above, the purchaser conceded that the vendor retained title to the two items when the Settlement Documents were executed (presumably by reference to the retention of title clause in the Initial Contract). The Settlement Documents included a fresh retention of title clause, but that is a different matter. It provided that ownership of the equipment/module to be delivered “shall pass to the Purchaser only upon receipt of the full purchase price by the Seller”. This clause would apply to the two already delivered items, not unlike the retention of title clause in the Initial Contract prior to execution of the Settlement Documents.

[173]  For these reasons, I consider that ground 1(a) should be rejected.

(b) Clause 3.2(b)

[174]  The proper construction of the release in this subclause is raised by ground 1(b) of the notice of appeal. The terms of cl 3.2(b) are set out by Adamson JA at [29] above.

[175]  This issue turns on whether the definition of “Settled Matters” is sufficiently broad to include the vendor’s title to, or ownership of, the two relevant items. Adamson JA has summarised the parties’ respective submissions on the issue at [77]–[86] above.

[176]  In my view, the word “claim” (which is incorporated in both the definition of “Claim” in cl 1.2(b) and in the chapeau to Recital H of the Settlement Deed) refers to a dispute or contest between the parties and not to an undisputed claim of right, such as that applying to the vendor’s undisputed ownership of the two components. This interpretation is supported by the juxtaposition of the word “claim” with “any action or liability” in the definition of “Claim” and also its juxtaposition with “disputes between them” in relation to the Settled Matters as described in the chapeau to Recital H. As at the date of execution of the Settlement Documents, there was simply no claim or dispute (in the sense of a controversy or contest) between the vendor and the purchaser regarding ownership of the two components.

[177]  Nor do I accept the purchaser’s separate contention that the vendor’s ownership is a claim about a “Settled Matter” because there is a claim about “the supply of the First UHT Plant” within par (d) of Recital H or a claim relating to “payment for the supply of the First UHT Plant” within par (e). In my view, the reference in both those paragraphs to the “supply of the First UHT Plant” is a reference to the entirety of that supply, and not merely the supply (or delivery) of the two component parts.

[178]  Furthermore, I cannot accept that the question of ownership constitutes a claim or dispute which was the subject of, or in any way related to, the Initial Contract, in circumstances where it was common ground that there was no such claim or dispute about that subject. Thus the question was not left “unresolved”, nor were the parties at “cross purposes”. Rather, at all relevant times, they were ad idem on the question of ownership of the two items.

[179]  Having regard to what I consider to be the proper construction at law of the releases in cll 3.2(a) and (b), there is no need to address the possible application of equitable principles as set out in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23.

[180]  For these reasons, I would reject ground 1(b) of the appeal.

Appeal ground 2

[181]  This ground challenges the primary judge’s findings at J[120], [132] and [133], which, respectively, were to the following effect:

(a) Clause 2.1(a) of the Settlement Deed (which is set out at [28] above), which provided that the parties would immediately enter into the Commercial Terms and Supply Terms for a “new supply that is independent” of the Initial Contract, was neutral as to the proper construction of the Settlement Documents.

(b) By holding that the phrase “to be delivered” in the definitions of Plant 1 and Plant 2 was directed to the question of where the individual components of those Plants were to be delivered, rather than a future supply.

(c) By finding that the definitions of Plant 1 and Plant 2 did not require those Plants to meet the specifications in the Supply Terms at the time of delivery.

[182]  As Adamson JA has noted at [94], if the purchaser succeeded only on ground 2 and failed on ground 1, the matter would need to be remitted for determination of the vendor’s claim in conversion.

[183]  The primary judge explained at J[120] why he did not accept the purchaser’s contention that, by stating in cl 2.1(a) of the Settlement Deed that the parties agreed to enter into the Commercial Terms and the Supply Terms for a “new supply” that was to be “independent” of the Initial Contract, this necessarily precluded using the already delivered items which were the subject of the Old Supply. His Honour described those matters as “neutral” because the sale agreement was a “new” sale agreement and a “new” supply, and there was also a sale which was independent of the Initial Contract. I respectfully agree.

[184]  In oral address on the appeal, senior counsel for the purchaser asked rhetorically: “how can something be independent of the previous contract if the supply had occurred under the previous contract”. With respect, senior counsel’s question is misdirected. The Initial Contract contemplated the supply of an entire plant, but this never occurred because only two of the components were delivered (or supplied). Accordingly, there was no “supply” under the Initial Contract and title never passed to the purchaser even though it had taken physical possession of two components of the plant.

[185]  As to the significance of the phrase “to be delivered” in cl 1.1 of the Commercial Terms, with reference to Plant 1 being delivered to the Sri Lanka site and Plant 2 being delivered to the Philippines site, I respectfully agree with the primary judge’s reasoning at J[132] that these phrases appear to be directed to the question of where the components of Plant 1 and Plant 2 were “to be delivered”, rather than focusing on whether all the constituent parts of Plant 1 or Plant 2 had then been delivered. As McHugh JA said in an exchange with the purchaser’s senior counsel on the appeal, the phrase “to be delivered” is “simply identifying that there’s one going to Sri Lanka and one going to the Philippines, but the timing is governed by what’s in the clause … in 3.1 and 3.2 as to when they’re to be delivered”.

[186]  On the appeal, the vendor’s counsel properly acknowledged (as did the purchaser’s senior counsel) that there was “some infelicity in the language used”, but the primary judge’s construction is supported by the uncontested fact that, while two significant components of Plant 1 had already been delivered to the Sri Lanka Site, the entire Plant was still to be delivered to that Site. The definitions of Plant 1 and Plant 2 in cl 1.1 of the Commercial Terms (see at [38] above) plainly refer to the entirety of the plant. Although the Settlement Deed refers to the “First UHT Plant and Second UHT Plant” respectively, those expressions are not defined in that document. It may be inferred that the related definitions in the Commercial Terms applied.

[187]  For all these reasons, I reject ground 2. In these circumstances, it is not necessary to address the correctness of the primary judge’s finding that the Equipment Warranty did not relate to the termination of the Initial Contract, but rather applied to give the purchaser the benefit of any third-party warranties as a result of the vendor sourcing goods from those third parties.

…

(emphasis added)

A link to the full decision may be found here.

In Rose v Manno Kingsway Pty Limited [2025] NSWCA 23 (27 February 2025), the New South Wales Court of Appeal (Bell CJ, Mitchelmore and Adamson JJ) addressed argument concerning enforceability of an alleged loan agreement.  The particular focus of this note concerns the argument – unsuccessful on appeal – that the making of the loan advance prior to the formal agreement being entered into did not derogate from the trial judge’s finding of an agreement by dint of the advance itself being part of an entire transaction.  There was a useful essay of the authorities, coup-led with an application of them to the particular facts.  Bell CJ, for the court, wrote:

[1]  Five matters are clear about this contractual dispute which comes to this Court by way of an appeal from the decision of Campbell J (the primary judge) of the Common Law Division of the Supreme Court: Manno Kingsway Pty Ltd as trustee for the Manno Kingsway Unit Trust v Rose [2024] NSWSC 1065 (primary judgment or PJ).

[2]  First, the parties entered into a written loan agreement on 2 February 2022 by which the Respondent agreed to advance to the Appellant the sum of $1.3 million for a term of 12 months at an interest rate of 3.85% per annum (the Loan Agreement).

[3]  Second, the loan was subject to the provision of executed copies of Deeds of Release relating to the parties’ engagement with each other in respect of a development project being undertaken by them at Geralle Street, Cronulla and known as the Wavelength Project.

[4]  Third, the Deeds of Release as contemplated by the Loan Agreement were executed on 2 February 2022.

[5]  Fourth, the Appellant paid ten monthly instalments of interest in accordance with the contractual provisions in the Loan Agreement, calculated on a principal amount of $1.3 million and interest rate of 3.85%: PJ [38]–[39].

[6]  Fifth, the Respondent refused to repay the principal amount at the expiry of the term of the Loan Agreement notwithstanding demands for repayment.

[7]  So recited, one might legitimately wonder how this matter came to court. The answer to that question lies in the fact that $1.3 million (the amount specified in the Loan Agreement) was advanced to the Appellant on 24 January 2022 (nine days before execution of the Loan Agreement) and this advance was made by Manassen Holdings Pty Ltd, a party related to the Respondent, Manno Kingsway Pty Ltd. The Appellant admitted receiving that sum but denied that, upon a proper construction of the Loan Agreement, any money was owing and “by reason of that fact”, denied that the Loan Agreement was supported by consideration. It submitted that, because the advance of $1.3 million chronologically predated execution of the Loan Agreement, it was “past consideration” which was incapable of supplying the “quid pro quo” to support the contractual bargain documented in the Loan Agreement. This argument was rejected by the primary judge but is re-agitated on appeal.

[8]  By a Further Amended Statement of Claim (the FASOC), dated 30 January 2024 which was the first day of the hearing, the Respondent amended its claim to plead, in addition to the claim under the Loan Agreement, that the parties reached an agreement “in respect of a loan on or around 14 December 2021 for a term of one year”. The agreement was said to be in writing, recorded in two emails exchanged on 13 December and a further email of 14 December 2021.

[9]  The first of these emails was sent on 13 December 2021 at 12.45pm by Mr Robert (Roy) Manassen, the principal of the Respondent, to Mr Christopher (Chris) Rose (the Appellant) and summarised a meeting held with Mr Rose that day. The email read as follows:

Chris,

Just confirming our meeting.

We will lend $1m to CR by 24 Dec for 1 year at 5% subject to:

No litigation against any Manassen entities from Manny/other.

An Orville guarantee and a personal PG from yourself.

We will agree to PM/DM fees until June 2022 unless all units are sold before and then fees will cease.

Half the $1m will go to Vince.

After a 12% interest coupon is calculated from Haley the 50% profit share will be determined.

We lost SOPA case…I’ll contemplate whether to appeal.

Not discussed and [subject to appeal] not sure if this SOPA loss has been added to pref units or not but I guess it will need to be if it hasn’t.

Agreed that 407, 704 and 803 will all settle on the 28 January but that these are now time of the essence contracts.

Please confirm agreement.

Mr Rose replied to Mr Manassen’s email two minutes later, stating “[c]onfirmed Roy”.

[10]  By email dated 14 December 2021, Mr Rose added that Mr Manassen had “[f]orgot to add the return of the deposit on 801”, which was apparently a reference to a payment in the sum of $315,000 made personally by Mr Rose in relation to the Wavelength Project: PJ [36]. No response to this email was pointed to or relied upon.

[11]  The primary judge found that the exchange of emails on 13 December 2021 evinced an intention by the parties immediately to be bound and resulted in a binding enforceable agreement which it is convenient to refer to in these reasons as the Email Agreement. His Honour found that the Email Agreement fell within what has become known as the fourth category of Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 (Masters v Cameron) although such a category is not in fact mentioned in that celebrated case: see further at [41] below.

[12]  The FASOC, dated 30 January 2024, described the Loan Agreement of 2 February 2022 as a “formal” loan agreement, presumably by way of contrast with the alleged Email Agreement. The pleading did not allege what the relationship if any was between the two agreements. In particular it was silent as to whether one was a variation of the other or superseded it.

[13]  His Honour went on to hold that, even if his characterisation of the 13 December exchange of emails were wrong and no binding agreement was reached by that exchange, it remained his view that the Loan Agreement was nevertheless binding, “applying a functional test by treating the advance and entry into the Loan Agreement as forming part of one single transaction”: PJ [43]. The primary judge evidently took the language of “a functional test” from the decision of Almond J in Twenty Ninth Macorp Nominees Pty Ltd v Normal George [2017] VSC 136 at [231] –[232] (Macorp). His Honour also made reference in this context to Kestell v Davey (No 3) [2023] WASC 289 at [453] (Kestell). According to this line of authority, the fact that a payment may be made chronologically prior to the execution of terms is not decisive, and does not necessarily mean that a prior advance acquires the status of “past consideration” for the purposes of assessing whether a subsequent promise (such as those contained in the Loan Agreement) binds the recipient of the early advance.

…

The Email Agreement — grounds 1-4

[41]  As already noted, the primary judge held that the exchange of emails on 13 December 2021 (set out at [9] above) gave rise to a binding agreement and fell within what has become known as the fourth category of Masters v Cameron. As explained by JD Heydon in Heydon on Contract: The General Part (2019, Thomson Reuters) at [3.110] (Heydon on Contract):

Though its origins are older, modern recognition of the fourth class began with Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628; see also Tern Minerals NL v Kalbara Mining NL (1990) 3 WAR 486 at 494 –495; Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101; [2000] WASCA 27 at [24] –[25]. There McLelland J quoted the dicta of Knox CJ, Rich and Dixon JJ in Sinclair, Scott & Co v Naughton (1929) 43 CLR 310; [1929] HCA 34 at 317, relying on Love and Stewart Ltd v S Instone & Co (Ltd) (1917) 33 TLR 475 at 476. They identified a class ‘in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms’. The reasoning of McLelland J was upheld by the New South Wales Court of Appeal on appeal: GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 635 –636.

There is a clear distinction between the second class and the fourth class. The second class comprises cases where the parties “intend no departure from or addition to that which their agreed terms express or imply”. The fourth class comprises cases where the parties are “expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms”. An intention not to do something is different from an expectation that one will do it.

[42]  The primary judge’s conclusion that the Email Agreement fell within the fourth class of Masters v Cameron necessarily entailed the conclusion that the parties, by their conduct, manifested an intention immediately to be bound and create contractual relations. Such an issue is to be determined consistently with the objective theory of contract: Masters v Cameron; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548 -549. As the plurality said in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 at [25], the word “intention” in this context is used in the same sense as in other contractual contexts, namely it:

describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.

[43]  As a consideration as to whether the parties intended immediately to be bound, a matter going to the existence (as opposed to the terms) of a contract, subsequent conduct of the parties may also be taken into account: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [25] –[26], citing Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 77; [1907] HCA 38; Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 at 668 , 669 , 672; [1908] HCA 88.

[44]  I respectfully disagree with the primary judge’s conclusion that the exchange of emails on 13 December 2021 objectively manifested an intention to be immediately bound. This is so for a number of reasons.

[45]  First, when regard is had to the entirety of Mr Manassen’s email of 13 December, as opposed to the first four lines of that email to which the primary judge paid particular regard, there were a number of matters which were still to be determined between the parties (including the precise identity of the contracting parties, at least on Mr Manassen’s side). These matters included the terms of the two guarantees contemplated in the 13 December email, the actual date upon which any moneys would be advanced and what was meant by the entry “No litigation against any Manassen entities from Manny/other.” Who “Manny” was referring to was not obvious, nor was it known who the “other” being referred to was. Moreover, it was not evident what was meant by “No litigation …”: it may have meant a moratorium on litigation for a period, such as the duration of the Wavelength Project, or no litigation indefinitely, or an agreement to enter into a deed of release or compromise. These uncertainties militated against a conclusion that the parties intended immediately to be bound and, by the exchange of emails, to enter into immediate contractual relations. This was further reinforced by the reference to the potentiality of an appeal in relation to a Building and Construction Industry Security of Payment Act 1999 (NSW) claim, success in which may have affected the commerciality of any arrangements.

[46]  Secondly, Mr Manassen’s email of 13 December 2021 is “book-ended” by the expressions “[j]ust confirming our meeting” and “[p]lease confirm agreement”. It will be recalled that Mr Manassen and Mr Rose had met together earlier on 13 December 2021 before the exchange of emails. The expression “[j]ust confirming our meeting” is ambiguous: it may simply have been a way of seeking to confirm what was discussed at the meeting. The closing statement “[p]lease confirm agreement” when seen in this context, is capable of being interpreted as seeking confirmation from Mr Rose that he agreed with Mr Manassen’s summary of the points discussed at the meeting as opposed to something far more fundamental, namely an intention immediately to be bound by the contents in Mr Manassen’s email. In context, the former interpretation is to be preferred.

[47]  Thirdly, none of the matters purportedly “confirmed” as having been contractually agreed was in fact implemented: thus, no monies were advanced prior to 24 December 2021; no interest of 5% was charged or paid; and when moneys were advanced on 24 January 2022, they were in a different sum to the $1 million referred to in Mr Manassen’s email.

[48]  Fourthly, no complaint was raised by Mr Rose shortly after 24 December 2021 as to the non-advance of the $1 million referred to in the 13 December 2021 email, another matter that militates against the primary judge’s conclusion. Had the parties in truth intended immediately to be bound by the exchange of emails on 13 December 2021, one would have expected such a complaint, especially given the tone of the earlier correspondence between the two principals that had pre-dated their meeting of 13 December 2021.

[49]  For these reasons, I would uphold the Appellant’s challenge to the primary judge’s conclusion in relation to the Email Agreement. As explained above, however, it does not follow that the appeal must succeed, given his Honour’s conclusion in relation to the Loan Agreement and the Appellant’s “past consideration” argument. It is to this aspect of the appeal that these reasons now turn.

The Loan Agreement and past consideration — ground 5

[50]  There was no contest that the Loan Agreement was executed by the Appellant nor that, after its entry, interest had been paid at the rate specified in it, as detailed in the Table at [35] above.

[51]  Significantly, the first of those interest payments encompassed not only monthly interest but an amount calculated at the contractual rate for the 9 day period between the advance of $1.3 million on 24 January 2022 and the execution of the Loan Agreement.

[52]  This conduct was consistent with the Appellant and the Respondent treating the advance and the Loan Agreement as part and parcel of a single transaction. The Appellant, however, by ground 5, challenges this characterisation and the application by the primary judge of the decisions of the Victorian and Western Australian Supreme Courts in Macorp and Kestell respectively to the facts of the present case.

[53]  At one point in his submissions, Mr Parish submitted that these cases and the principle for which they stand do not represent the law in New South Wales. So much cannot be accepted. First, they are decisions relating to the common law of contract, and there is only one common law of Australia: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563 –4; [1997] HCA 25; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36; Lipohar v R (1999) 200 CLR 485; [1999] HCA 65 at [51] –[53]; see also MJ Leeming, Common Law, Equity and Statute: A Complex Entangled System (2023, Federation Press) ch 6. Secondly, it was accepted in SAS Realty Developments v Kerr [2013] NSWCA 56 at [66] (SAS Realty) that, in certain circumstances, “an advance payment would be capable of constituting good consideration.”

[54]  In Macorp, Almond J said (at [231]–[232]):

In my view, a functional test should be applied in this case. I have already found that a head agreement was reached… It is plain that this head agreement, the advance of funds by [the lender] on 2 May 2012 (pursuant to [the borrower’s] urgent request), the documentation of the transaction on the same day and the execution of the transaction documents by 6 May 2012 form part of a single transaction, with the execution of the transaction documents reflecting the fact of the earlier agreement.

In Kestell, Smith J said (at [453]):

Although it is established that the time of assessment with respect to which consideration is to be assessed is the time at which the contract is made, consideration will not be past consideration even if it was provided before the making of the promise for which it is alleged to be consideration, where the making of the promise and the provision of the consideration are part of the same transaction. When, by reason of their genesis, background, negotiation and terms, multiple agreements can in substance be viewed as part of a single transaction, then the courts are not bound to apply a strictly chronological test, such that, where the giving of consideration and the making of the promise are substantially one transaction, the exact order of events is not decisive.

[55]  These authorities form part of a long line of decisions to similar effect, all of which recognise that “chronology” is not decisive: see, for example: Thornton v Jenyns (1840) 1 M & G 166 at 188– 189 133 ER 291; Westminster City Council v Duke of Westminster [1991] 4 All ER 136 at 145;Classic Maritime Inc v Lion Diversified Holdings Berhad [2010] 1 Lloyd’s Rep 59 [2009] EWHC 1142 (Comm) at [45] –[46]; Forbes Engineering (Asia) Pte Ltd v Forbes (No 4) [2009] FCA 675 at [173] –[174]; Lictor Anstalt v MIR Steel UK Ltd [2014] EWHC 3316 (Ch) at [223]; Hunt v Optima (Cambridge) Ltd [2014] EWCA Civ 714 at [80] –[81]; Marsden v Barclays Bank plc [2016] 2 Lloyd’s Rep 420 [2016] EWHC 1601 (QB) at [30] –[31]. See also Heydon on Contract at [5.240]; H Beale, Chitty on Contracts (Vol 1, 35th ed, 2024, Street & Maxwell) at [6–030]; E Peel, Treitel: The Law of Contract (13th ed, 2011, Street & Maxwell) at [3–018].

[56]  In Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332 at [93] , in turn cited in Ma Hongjin v SCP Holdings Pte Ltd [2019] SGHC 277 at [78], Andrew Phang JA observed that:

[T]he courts look to the substance rather than the form. Hence, what looks at first blush like past consideration will still pass legal muster if there is, in effect, a single (contemporaneous) transaction (the common understanding of the parties being that consideration would indeed be furnished at the time the promisor made his or her promise to the promisee). This was established as far back as the 1615 English decision of Lampleigh v Braithwait (1615) Hob 105 80 ER 255 and, whilst often referred to as an exception to the principle, is not really an exception for (as just stated) its application results in what is, in substance, a single transaction to begin with…

[57]  In my view, the primary judge did not err in treating the advance as part of a single functional transaction. It is plain that it was requested by the Appellant and, in short compass, formal documentation was executed identifying the very amount of the advance and the interest payable on it. The advance and the execution of the Loan Agreement and the provision of Deeds of Release in substance amounted to one transaction.

[58]  This was not a case, moreover, where there was some other earlier transaction or obligation on the part of the Respondent which was arguably discharged by the advance of the $1.3 million on 24 January 2022: cf SAS Realty. In this context, it is to be noted that the premise of this aspect of the Appellant’s argument was that no agreement was formed by the exchange of emails of 13 December 2021. That raised the question of what the advance of $1.3 million was referable to if not the Loan Agreement that was executed shortly thereafter and by reference to which the Respondent calculated interest payable and the Appellant paid such interest. On the Appellant’s case, the advance was not in fact consideration for anything, but the Appellant properly accepted that the advance was not gratuitous.

[59]  This observation reflects the Respondent’s submission, which I accept, namely that:

the references to past consideration [in the case law] are not to simply chronologically anterior matters. The cases in which such issues arise are ones where there are multiple agreements, such that the consideration which is given in the first ‘transaction’ cannot sustain a second contract. It parallels the observation of Mason J in Wigan v Edwards (1974) 1 ALR 497 that a promise to perform an existing contractual duty or obligation is not consideration and also what Ward JA (as her Honour was) stated in SAS Realty Developments at [70] by reference to Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570, namely that fresh consideration is necessary to make valid an agreement which purports to vary another contractual agreement. It follows … that the reliance on notions of past consideration in the present case were inapposite.

[60]  As the Respondent submitted, there was, on the Appellant’s case, no relevant counter promise from him which served to render the payment made on 24 January 2022 consideration for anything, still less past consideration. The case was closely analogous to Macorp, as the primary judge held.

[61]  The primary judge also made reference to the Privy Council’s decision in Pao On v Lau You Long [1980] AC 614 (Pao On) which is sometimes understood as creating an exception to the proposition that a promise may not be supported by past consideration. In that case, at 629, Lord Scarman said:

An act done before the giving of a promise to make a payment or to confer some other benefit can sometimes be consideration for the promise. The act must have been done at the promisors’ request: the parties must have understood that the act was to be remunerated either by a payment or the conferment of some other benefit: and payment, or the conferment of a benefit, must have been legally enforceable had it been promised in advance.

[62]  As has been explained in Heydon on Contract at [5.270] by reference to earlier cases, namely Re Casey’s Patents; Stewart v Casey [1892] 1 Ch 104 at 115 –116 (Casey); Kennedy v Broun (1863) 13 CB (NS) 677 143 ER 268 at 740; and Lampleigh v Braithwaite (1615) Hob 105 80 ER 255:

Assume that before a later promise is made, an act is done or a promise is given by a person who becomes the promisee of the later promise. Assume that act was done or promise given at the request of the later promisor. Assume that it was understood that payment for the earlier act or promise would be made. Assume that payment for the earlier act or promise, had that payment been promised in advance, would have been legally recoverable. In these circumstances the promisee can enforce the promise to pay for the act or promise despite the fact that the act or promise was “past” in the sense that it took place before the promise.

[63]  In Casey, Bowen LJ explained the principle at 115–116 as follows:

Even if it were true … that a past service cannot support a future promise, you must look at the document and see if the promise cannot receive a proper effect in some other way. Now, the fact of a past service raises an implication that at the time it was rendered it was to be paid for, and, if it was a service which was to be paid for, when you get in a subsequent document a promise to pay, that promise may be treated either as an admission which evidences or as a positive bargain which fixes the amount of that reasonable remuneration on the faith of which the service was originally rendered. So that here for past services there is ample justification for the promise to give the third share.

[64]  Pao On has been applied in Australia in the Federal Court in Re Douglas; Ex parte Starkey (1987) 15 FCR 475 (1987) 75 ALR 97 at 102, and in the Supreme Court of New South Wales by Santow J (as his Honour then was) in Bluebird Investments Pty Ltd v Graf (1994) 13 ACSR 271 who said at 294:

An act done (here payment of the money) before the giving of a promise to confer a benefit (here the promise to transfer the shares) is valid consideration for that promise if the act has been done at the promisor’s request (ie that of Bluebird Canada), the parties understood that the act was to be remunerated by the conferment of a benefit, and the conferment of the benefit would have been enforceable if it had been promised in advance.

[65]  These considerations were plainly satisfied on the facts of the present case, and the primary judge was correct to so hold.

[66]  Ground 5 of the appeal must be dismissed.

…

(emphasis added)

A link to the full decision may be found here.

In Secretary, Department of Social Services v Hulett [2025] FCA 23 (30 January 2025), Justice Sarah Derrington usefully addressed the distinction between the existence of a common intention constructive trust as distinct from proprietary estoppel, but even more importantly what constitutes detriment for the purpose of the former.  Her Honour concluded such a constructive trust existed in the unusual factual circumstances pertaining in the case before her, namely a promise by parents to leave their home to their three daughters so long as one of them provided in-home care to such parents as may be required. 

Her Honour wrote:

…

[35]  In circumstances such as those in the present case, where there has been no attempt by Mr Hulett to resile from the expectation he induced in his daughters, and where there is no dispute as to the common intention, it is even less clear that the distinction between common intention constructive trusts and estoppel (of whatever description) ought be abandoned. Indeed, as a matter of principle, there seems to be sound reason for maintaining the distinction. As Randall observed at 197, the remedial consequences for proprietary estoppel, the “minimum equity” or “proportionality” requirement,

can serve to restrict the relief granted in a proprietary estoppel case (either to a lesser proprietary interest than that which the claimant had expected, or to a non-proprietary remedy). There is no direct equivalent for a constructive trust. Hence, put baldly ‘[t] he claimant who establishes a proprietary estoppel may do less well than the claimant who establishes a constructive trust ’ [Per Black J in Q v Q [2008] EWHC 1874 (Fam); [2009] WTLR 1591 at [113] ].

(emphasis added)

[36]  For these reasons, and in the absence of High Court authority to the contrary, it remains appropriate to continue to draw a distinction between the elements of equitable estoppel and those of a common intention constructive trust.

[37]  Consequently, the Secretary’s submission that the element of reliance in the doctrine of common intention constructive trusts is identical to that of reliance in estoppel must be rejected. I also reject the Secretary’s contention that the passage at [477] in Imam Ali Islamic Centre v Iman Ali Islamic Centre Inc [2018] VSC 413in which McMillan J considered it “convenient for these purposes to apply the principles of detrimental reliance established in the law of equitable estoppel” is to be construed as authority for the proposition that those principles “apply equally to the concept of detrimental reliance for the law of constructive trusts” without regard to the precise category of constructive trust with which one is concerned. As her Honour said in Imam Ali Islamic Centre at [406], in a passage referred to by Derrington J in Staatz v Berry No 3) [2019] FCA 924; 138 ACSR 231at [167], which was endorsed subsequently by the Queensland Court of Appeal in Nathan v Williams [2020] QCA 138 at [107]:

Despite the evident taxonomical confusion, it appears from the authorities that a common intention constructive trust has a role to play distinct, albeit not always mutually exclusive, from a joint endeavour constructive trust and a constructive trust arising from equitable estoppel. The common intention constructive trust will enter centre stage where the formalities for a contract or express written trust are not satisfied …

[38]  Nevertheless, it is clear that something in the nature of detrimental reliance must be established in order to make out a common intention constructive trust. On appeal to the Privy Council in Austin v Keele (1987) 10 NSWLR 283 at 291, Lord Oliver said:

A trust does not come into being merely from a gratuitous intention to transfer or create a beneficial interest. There has first of all to be the additional ingredient of an intention or at least an expectation that the cestui que trust will act in a particular way, normally, though not necessarily exclusively, by making some contribution towards the cost of acquisition of the property in which the interest is intended to subsist. Moreover, Lord Diplock’s formulation of the principle in Gissing v Gissing involves the further essential element that the trustee has so conducted himself that it will be inequitable to allow him to deny to the cestui que trust the beneficial interest which it was proved that he was intended to have. There has to be some conduct detrimental to the cestui que trust, even if only in the sense of an irrevocable change of legal position, which is referable to the common intention provedand undertaken on the footing of the grant of the beneficial interest claimed.

(emphasis added)

[39]  That this passage reflects the current state of the Australian law on this issue is beyond doubt: Agnew at [14]–[15] (Drummond, Sundberg and Marshall JJ); Bijkerk at [114]–[115]; Galati v Deans [2023] NSWCA 13 at [56] (Macfarlan JA, White JA, Basten AJA).

[40]  In Koprivnjak v Koprivnjak [2023] NSWCA 2 at [24], the New South Wales Court of Appeal held that the primary judge was correct in adopting the statement of legal principles relevant to a common intention constructive trust by Ward CJ (in Eq) in Bassett v Cameron [2021] NSWSC 207, which included that a less stringent test applies to the requirement of detriment once the common intention has been established. In Bassett v Cameron, Ward CJ said, at [564]:

It is not necessary for a common intention constructive trust that the common intention is that the parties have a specific share of the property; it is sufficient that they intend that the claimant should have a beneficial interest or “some form of proprietary interest” (Shepherd v Doolan at [36]). A less stringent test to the question of detriment has been said to apply once the common intention has been established — see Shepherd v Doolan at [40], where his Honour noted that, in Green v Green (1989) 17 NSWLR 343 at 357 Gleeson CJ (with whom Priestley JA agreed) approved the test appearing in the judgment of Sir Nicolas Browne-Wilkinson VC in Grant v Edwards [1986] Ch 638 at 657 that:

… [O]nce it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient detriment to qualify. The acts do not have to be inherently referable to the house … The holding out to the claimant that she had a beneficial interest in the house is an act of such a nature as to be part of the inducement to her to do the acts relied on. Accordingly, in the absence of evidence to the contrary, the right inference is that the claimant acted in reliance on such holding out and the burden lies on the legal owner to show that she did not do so.

(emphasis added)

[41]  Earlier in her reasons, when considering whether the plaintiff had established detrimental reliance sufficient to ground relief in equitable estoppel, Ward CJ had observed, at [548], that the concept of detriment in the context of proprietary estoppel is “neither narrow nor technical (Donis v Donis at [20] )” and, at [550], that “[it] may be of a kind and extent that involves ‘life-changing decisions with irreversible consequences of a profoundly personal nature’” (citing Sidhu at [84]). It had been argued in Bassett v Cameron that the plaintiff “would have carried on farming at [the relevant property] in any event in part because he loved farming there with his father”, at [547]. In response to that proposition, Ward CJ said, at [551]–[552]:

Insofar as it is suggested that Geoff financially benefitted from his participation in the farming of The Springs (the suggestion being that there was therefore no detrimental reliance) and has conducted his agricultural consultancy business throughout the time he was farming The Springs, it is important to bear in mind (as noted in E Co v Q at [1166]) that equity’s intervention is not premised on the outcome of some accounting of the benefits obtained and the detriment sustained by each party (ie, the existence of an equity of the kind here claimed by Geoff does not turn on an analysis of comparative financial position). Nor, it must be said, does it depend on abstract, idiosyncratic notions of fairness. It has thus been said that detrimental reliance “need not constitute, in any sense, a consideration moving to the party bound” (Sullivan v Sullivan at [20]; Delaforce v Simpson-Cook at [56]).

Had I been satisfied to the requisite degree that the alleged representations were made in 2008/2009, then I would have found that the decision not to leave The Springs or to pursue his consultancy business full time, but instead to pursue the farming of The Springs in partnership with Bill, did amount to a sufficiently life-changing decision which had an impact (albeit one that cannot be precisely measured) on the development of the agricultural consultancy business so as to amount to detrimental reliance in the requisite sense.

(emphasis added)

…

[47]  In Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; 253 CLR 560 at [84], the plurality (Hayne, Crennan, Kiefel, Bell and Keane JJ) explained, in the context of considering the requirements of the defence of change of position by the recipient of a payment made under a mistake:

The equitable doctrine concerning detriment is concerned with the consequences that would enure to the disadvantage of a person who has been induced to change his or her position if the state of affairs so brought about were to be altered by the reversal of the assumption on which the change of position occurred.

[48]  The plurality said (at [85]) that this view “accords with the understanding of detrimental reliance sufficient to ground an estoppel, as explained in Grundt v Great Boulder Pty Gold Mines Ltd by Dixon J”.

[49]  The Secretary relied on the observations of Gageler J in Australian Financial Services (which were relied on by Bathurst CJ in Ashton v Pratt [2015] NSWCA 12; 88 NSWLR 281 at [147]), who said, at [150]:

The “real detriment or harm” which that party must prove to ground an estoppel can be any “material disadvantage” which would arise from permitting departure from the assumption on the faith of which that party acted or refrained from acting. Material disadvantage must be substantial, but need not be quantifiable in the same way as an award of damages. Material disadvantage can lie in the loss of a legal remedy, or of a “fair chance” of obtaining a commercial or other benefit which “might have [been] obtained by ordinary diligence”.

[50]  Neither the High Court in Australian Financial Services nor the New South Wales Court of Appeal in Ashton v Pratt (2015) 88 NSWLR 281 was, however, concerned with a common intention constructive trust. It is therefore important to return to what Dixon J identified in Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674–675 as basal to the intervention of equity where a party has changed his or her position consequent upon an agreed understanding:

[I]t is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. His action or inaction must be such that, if the assumption upon which he proceeded were shown to be wrong and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice.

(emphasis added)

…

[55]  As has already been set out above, the evidence given by Mr Hulett and all three daughters was sufficient to ground the Tribunal’s finding that each daughter made her home available to him for in-home aged care, at least from the time when he was discharged from hospital in early 2021 — that being the time when the common intention crystallised — and that Ms Gosson in fact took on the task of providing care for her father in her home. That was clearly prior to the sale of the Property, which occurred on 30 September 2021, according to the unchallenged evidence given in his statement. It was also prior to the distribution of the proceeds of sale to his daughters (Reasons at [79]). Again, Mr Hulett’s unchallenged evidence was that $200,000 was transferred to Ms Gosson on 30 September 2021 and the remaining $400,000 was transferred in equal proportions to Ms Baker and Ms Edwards on 1 October 2021.

[56]  There can be little doubt that at least Ms Gosson’s conduct in taking in her father after his discharge from hospital to care for him in her home falls within the category of “life-changing decisions” of a “profoundly personal nature”. As Ms Gosson said in her statement, after his discharge from hospital, Mr Hulett was assessed as being unable to care for himself. In her oral evidence before the Tribunal, Ms Gosson gave evidence that at first, she thought he would only be staying with her for a couple of weeks before it became apparent to her that, whilst in his own home, he was not eating properly, was leaving the oven on, and having many falls. She said that she made changes to her own living arrangements and needed to adapt to having her father living with her — they had not lived together since she was a teenager. Although she gave no evidence of specific changes made to the house she was renting when her father first came to live with her, she gave evidence of the changes that have become necessary to the house she purchased with her share of the proceeds, including, for example, the installation of grab rails.

[57]  In Nilsson v Cynberg [2024] EWHC 2164 (Ch); 3 WLR 969 at [61], Pickering KC (sitting as a Deputy High Court Judge), held that the taking over of the legal liability and obligations of the mortgage, refraining from pursuing matrimonial financial remedy proceedings, and assuming responsibility for the expenses of the home and its improvements in reliance on the husband’s assertion upon their separation that the wife could have the whole property so long as she left it to their two children in due course, was “far from minimal” detriment.

[58]  Similarly, the taking in of an ailing parent who is unable to care for him or herself, and readjusting one’s own domestic living arrangements to do so, cannot be considered “minimal detriment”. If necessary, I would characterise it as “substantial”: Australian Financial Services per Gageler J at [150]; Ashton v Pratt at [147];Q v E Co [2020] NSWCA 220 at [127]. In my view, however, it is sufficient in a case which gives rise to a common intention constructive trust for a claimant to prove that he or she has altered his or her position on the basis of an assumed state of affairs that is then sought to be altered in order to establish the necessary detriment: Australian Financial Services at [87]. That is because it is a trust which has arisen by operation of law to enforce the parties’ otherwise unenforceable common intentions, rather than being a mere equity, viz, an equitable claim against the conscience of the true owner.

…

[61]  To the extent that the Secretary submitted that there was “clear evidence” that each of the daughters would have provided care for Mr Hulett regardless of the terms of the Agreement, that evidence must be looked at in the context in which it was given.

[62]  Although Ms Gosson’s evidence was that, notwithstanding the Agreement, she would still have looked after her father, she agreed that it was part of the Agreement that she would receive payment and said, as recorded by the Tribunal (Reasons at [64]), “[a]nd I am looking after my father. So whether I had the money or I didn’t have the money I was still always going to look after my father. But I received the money and, like I said, due to the agreement that was made all those years ago and that was installed [sic] in me, I went and bought a property”.

…

[66]  The evidence given by Ms Gosson, Ms Baker and Ms Edwards demonstrates that they are loving daughters who have a deep sense of responsibility to their surviving parent. That, in the hypothetical circumstances put to each of them which contemplated that their father was unable to provide any financial contribution to any of them, their sense of responsibility was undiminished does not detract from the position which exists as a matter of fact, and which was found by the Tribunal to be so, namely that, in accordance with the Agreement reached between Mr and Mrs Hulett and their daughters, one of their daughters has taken in Mr Hulett and is providing him with in-home care and each daughter has received her share of the net proceeds of the sale of the matrimonial home.

…

[68]  From this evidence, it is clear that Ms Gosson forewent her preference for the type of house she would have wished to purchase had she not “stuck to the agreement”.

[69]  Ms Baker’s evidence, as referred to by the Tribunal (Reasons at [68]) was that she and her husband had always rented but because of the Agreement, and the subsequent distribution of the proceeds, she had purchased a 30-acre block of land at Tara.

[70]  Ms Edwards explained her understanding of the Agreement was that “[t]he main thing was that the money we received was for us to get a house” (Reasons at [71]). In her oral evidence, Ms Edwards explained that, although separated from her husband, they shared his house with she being a tenant. She said that the house was now in both their names because she was able to purchase part of the house from her ex-husband – “with Dad’s money I have put that money into the home …”.

…

(emphasis added)

A link to the full decision is here.

In Waller Projects Pty Ltd v F.W. Estate Pty Ltd [2025] QSC 16, Kelly J considered whether a commercial relationship was fiduciary in nature, and highlighted the difference between the obligations of a fiduciary and of loyalty. The case involved a development of a parcel of land at Jimboomba. Questions for determination included whether an agreement had been entered into, and whether the relationship between the parties was such as to give rise to fiduciary obligations. It was found that the agreement had not been entered into and that a fiduciary relationship did not exist.

As to the circumstances giving rise to fiduciary obligations, his Honour said (at [250] – [265]):

[250] In Hospital Products Ltd v United States Surgical Corporation,[33] Mason J delivered a judgment which, although dissenting in the result on the facts, is regarded as “an important and correct statement of principle”.[34] The judgment makes reference to “accepted fiduciary relationships” as being relationships of trust or confidential relations.[35] In Gibson Motorsport Merchandise Pty Ltd v Forbes,[36] Finn J said that the fact that one party to a relationship subjectively trusted another, be it in the course of negotiations or otherwise, “is neither necessary for nor conclusive of the existence of a fiduciary relationship”. After making that important observation, his Honour noted an apparent inconsistency of position when courts speak of a fiduciary as a person “occupying a position of trust and confidence” and of a fiduciary relationship as being one in which “one party is shown to repose substantial trust or confidence in the other”.[37] His Honour resolved that apparent inconsistency by identifying the distinguishing obligation of a fiduciary as the obligation of loyalty. His Honour remarked that once the character of the obligation was understood “the apparent inconsistency … evaporates”.

[251] The accepted or traditional fiduciary relationships include, but are not limited to, the relationships of trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company and partners. Mason J identified the critical feature of these relationships as being that

“the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense”.[38] The relationship gives the fiduciary “a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position”.[39] Where Mason J used the expressions “for”, “on behalf of” and “in the interest of”, that language signifies that the fiduciary agrees or undertakes to act in a “representative” character in the exercise of his or her responsibility.[40]

[252] The critical feature of the traditional fiduciary relationships, as explained by Mason J, is also a feature of any fiduciary relationship.[41] The facts of the present case, which concern arm’s length dealings in a commercial context, did not involve an accepted category of fiduciary relationship. The courts have been reluctant to recognise the existence of fiduciary relationships in this kind of context.[42] Notably, in Hospital Products[43] Gibbs J said:

“The fact that the arrangement between the parties was of a purely commercial kind and that they had dealt at arm’s length and on an equal footing has consistently been regarded by this Court as important, if not decisive, in indicating that no fiduciary duty arose.”

[253] However, care is required to not overstate the position. In Hospital Products,[44] Mason J made the following cautionary observations:

“There has been an understandable reluctance to subject commercial transactions to the equitable doctrine of constructive trust and constructive notice. But it is altogether too simplistic, if not superficial, to suggest that commercial transactions stand outside the fiduciary regime as though in some way commercial transactions do not lend themselves to the creation of a relationship in which one person comes under an obligation to act in the interests of another. The fact that in the great majority of commercial transactions the parties stand at arm’s length does not enable us to make a generalisation that is universally true in relation to every commercial transaction. In truth, every such transaction must be examined on its merits with a view to ascertaining whether it manifests the characteristics of a fiduciary relationship.”

[254] That the present case does not fit within any clearly established category of fiduciary relationship and involves commercial conduct, is not necessarily a barrier to the recognition of a fiduciary relationship. The High Court has recognised that in a case not involving a traditional category of fiduciary relationship which occurs in a commercial context, the critical feature of the fiduciary undertaking or agreeing to act for or on behalf of or in the interest of another person in the exercise of a power or discretion which will affect the interest of that other person in a legal or practical sense is to be found by reference to the facts.[45] In Coomber v Coomber,[46] Fletcher Moulton LJ famously observed:

“Fiduciary relations are of many different types … There is no class of case in which one ought more carefully to bear in mind the facts of the case … than cases which relate to fiduciary and confidential relations and the action of the Court with regard to them.”

[255] The inquiry into the facts is concerned with matters of substance. Hence, as Finn J observed in Gibson Motorsport,[47] merely ascribing the label “joint venture” to a business relationship does not of itself render that relationship fiduciary for some or all of its purposes. In Edmonds v Donovan,[48] an authority upon which Waller placed particular reliance, the facts involved an agreed joint venture in which profits were to be shared concerning a particular project.

[256] An exemplar of a decision involving careful regard to the facts is United Dominions Corporation Ltd v Brian Pty Ltd.[49] The High Court considered a joint venture involving three parties, UDC, SPL and Brian. The three parties had been joint venturers in land development. UDC acted as the principal financier with the balance of the funds being provided by SPL and Brian. The percentage participation of each joint venturer had been set. By September 1973, the parties had each made substantial payments to SPL which was acting as the project manager for the development of the land. On 24 October 1973, before the joint venture agreement was concluded, SPC mortgaged the land to UDC as security for borrowings by SPL. UDC was aware that the land registered in the name of SPL was held by it in circumstances which required SPL to account to its intended partners. Two further mortgages, each of a subsequently acquired adjoining parcels of land, were executed by SPL in UDC’s favour. Unknown to Brian, the mortgages each contained a collateralization clause which had the effect of subjecting the land to debts incurred by SPL which were extraneous to the joint venture. The joint venture agreement was executed in July 1974. The land development realised a substantial profit but Brian did not receive from UDC either repayment of its contributions or its agreed share of the profit. UDC claimed to retain all profits because of the collateralization clauses and to apply the profits in reduction of amounts owing to it by reason of borrowings made by SPL in relation to two other projects with which Brian had no connection whatsoever. Default occurred under the mortgages and SPL went into liquidation. Brian contended that the collateralization clauses breached the fiduciary duty which UDC owed to it as a joint venturer.

[257] The joint judgment,[50] referencing a submission made on behalf of UDC that no fiduciary relationship existed between the prospective participants and the joint venture until such time as the joint venture agreement was executed, relevantly observed:[51]

“To the extent that that submission involves a general legal proposition that the relationship between prospective partners or joint venturers cannot be a fiduciary one until a formal agreement is executed, it is clearly wrong. A fiduciary relationship can arise and fiduciary duties can exist between parties who have not reached, and who may never reach, agreement upon the consensual terms which are to govern the arrangement between them. In particular, a fiduciary relationship with attendant fiduciary obligations may, and ordinarily will, exist between prospective partners who have embarked upon the conduct of the partnership business or venture before the precise terms of any partnership agreement have been settled. Indeed, in such circumstances, the mutual confidence and trust which underlie most consensual fiduciary relationships are likely to be more readily apparent than in the case where mutual rights and obligations have been expressly defined in some formal agreement. Likewise, the relationship between prospective partners or participants in a proposed partnership to carry out a single joint undertaking or endeavour will ordinarily be fiduciary if the prospective partners have reached an informal arrangement to assume such a relationship and have proceeded to take steps involved in its establishment or implementation.”

[258] The joint judgment then analysed the facts in the following way:[52]

“In the present case, the relationship between UDC, Brian and SPL had plainly assumed a fiduciary character prior to 24 October 1973 when SPL gave the first of the mortgages to UDC. By that time, the arrangements between the prospective joint venturers had passed far beyond the stage of mere negotiation. Each had, by then, agreed to be, and been accepted as, a participant in each of the proposed joint ventures, if both or either of them went ahead. Each had made or agreed to make financial contributions towards the costs of the project or projects in which it or he had agreed to participate. SPL was acting as agent for the proposed joint venturers in relation to the establishment of each of the joint ventures and as trustee of those funds with which it had already been entrusted. In so far as Brian was concerned, it was a fundamental element of the substratum of the fiduciary relationship that then existed that the subject land, which was being purchased with joint venture funds for joint venture purposes, would be held available to be devoted to any ensuing joint venture or joint ventures and that Brian, as an accepted joint venturer who had already made financial contribution towards the proposed hotel joint venture, was and would remain able to participate in the net profits in accordance with its share in the relevant joint venture. … the participants in each of the then proposed joint ventures were ‘associated for … a common end’ and the relationship between them was ‘based … upon a mutual confidence’ that they would ‘engage in [the] particular … activity or transaction for the joint advantage only’. It matters not, for present purposes, whether that relationship is seen as that which may exist between prospective partners or joint venturers before the terms of any partnership or joint venture agreement have been settled or whether it is seen as a limited preliminary partnership or joint venture to investigate and explore the possibilities of an ultimate joint venture or ventures. On either approach, it was a fiduciary one.”

[259] Gibbs CJ relevantly reasoned as follows:[53]

“UDC was not a financier dealing at arm’s length with SPL and entitled to leave it to SPL to disclose the terms of the mortgage to the persons, including Brian, for whom SPL was acting, but was in a relationship with those persons which, if not one of partnership, was one between persons who, intending to become partners, had already embarked on the partnership venture, of which the execution of the mortgage was an incident. Moreover, UDC knew that it would be contrary to the understanding between the parties, later to be elevated into a formal agreement, if SPL were to grant the mortgage on terms to which Brian did not agree and for purposes unconnected with the joint venture. There was no reason to believe that Brian had agreed or would agree to the inclusion of the collateralization clause, which was so obviously adverse to its interests. Although it is not easy to attempt to define the circumstances in which a fiduciary relationship will be found to exists… there was, in the circumstances of the present case, a relationship between UDC and Brian based on the same mutual trust and confidence, and requiring the same good faith and fairness, as if a formal partnership deed had been executed.”

[260] The facts in UDC v Brian have been cited as an example of a “collaborative” or “horizontal” relationship to which the notion of mutual trust and confidence was readily able to be applied.[54] However, whether or not a relationship between joint venturers is fiduciary depends upon the form of the particular venture and the content of the obligations the parties are undertaking.[55] In Gibson Motorsport,[56] Finn J said:

“If there be trust and confidence present in a business relationship and if it be claimed that the trust and confidence is a building block in establishing that the relationship was a fiduciary one …. it must be shown that that trust was given, that that confidence was reposed, in a context which was capable of attracting, and did attract, a duty of loyalty. In a setting such as the present this would necessitate it being shown that, having regard in particular to what had been agreed and done and to what in consequence each party could properly anticipate would be done, their relationship was such that each could reasonably expect the others to act in their mutual interest to the exclusion of each’s own several interest in relation to at least a part or parts of the [subject matter] ….. Put shortly, if trust and confidence in another is to be relevant, it must relate to a reasonable expectation of loyalty.”

[261] Equity is less concerned with the classification of a relationship than it is with the substance of the relationship. The concern of equity is with whether the relationship is founded on “mutual trust and confidence” in a relevant sense, the critical question always being whether the transaction satisfies criteria which justify characterising the relationship between the parties as fiduciary.[57] In Birtchnell v Equity Trustees, Executors and Agency Co Ltd,[58]Dixon J considered a factual situation where there was an established partnership relationship involving a land agency business. After having stated that the relationship between partners was “of course, fiduciary” and noting an earlier observation to the effect that “a stronger case of fiduciary relationship cannot be conceived than that which exists between partners”, his Honour the observed:[59]

“The relation is based, in some degree, upon a mutual confidence that the partners will engage in some particular kind of activity or transaction for joint advantage only … The subject matter over which the fiduciary obligations extend is determined by the character of the venture or undertaking for which the partnership exists, and this is to be ascertained, not merely from the express agreement of the parties … but also from the course of dealing actually pursued by the firm. Once the subject matter of the mutual confidence is so determined, it ought not to be difficult to apply the clear and inflexible doctrines which determine the accountability of fiduciaries for gains obtained in dealings with third parties.”

[262] In News Limited v ARL,[60] the Court relevantly observed:

“In the end, an important question — if not the question — is whether, in the words of Professor Finn:

‘the actual circumstances of a relationship are such that one party is entitled to expect that the other will act in his interests in and for the purposes of the relationship. Ascendancy, influence, vulnerability, trust, confidence or dependence doubtless will be of importance in making this out, but they will be important only to the extent that they evidence a relationship suggesting that entitlement’.”

[263] In LAC Minerals v International Corona Resources,[61] La Forest J relevantly posed the question to be determined on the facts of that case as “whether the parties have reached a stage in their relationship where their expectations should be protected”. In the same case, Sopinka J, after referencing the recognition of a fiduciary relationship as a “blunt tool of equity,”[62] observed that the element which gives rise to fiduciary relationships is the “implicit dependency by the beneficiary on the fiduciary”, this condition moving equity to subject the fiduciary to its strict standards of conduct.[63] With reference to Tito v Waddell (No. 2),[64] Sopinka J said that it was important to recognise by way of caveat that the presence of conduct that incurs the censure of a court of equity in the context of a fiduciary duty cannot itself create the duty. In Tito, Megarry V-C had said:[65]

“‘If there is a fiduciary duty, the equitable rules about self-dealing apply: but self-dealing does not impose the duty. Equity bases its rules about self-dealing on some pre-existing fiduciary duty: it is a disregard of this pre-existing duty that subjects the self-dealer to the consequences of the self-dealing rules. I do not think that one can take a person who is subject to no pre-existing fiduciary duty and then say that because he self-deals he is thereupon subjected to a fiduciary duty’.”

[264] This caveat reflects an important principle because, if a fiduciary relationship exists, as was also acknowledged by Dixon J in Birtchnell, a fiduciary is regarded as falling under a heavy burden or duty to establish that any transaction in the nature of self-dealing is a righteous transaction, open and fair and free from all objection.[66] The righteousness of a transaction is often demonstrated by the fiduciary obtaining the beneficiaries fully informed consent. The heavy burden applies because of the existence of the fiduciary relationship, and the inflexible doctrines which determine the accountability of fiduciaries, not because of any independent concern about self-interested pursuit of business opportunities.

[265] In Gibson Motorsport, the appellants sought to characterise the relationship of negotiating parties as one of mutual trust and confidence where the parties had embarked on an enterprise without having settled the terms of a series of written agreements they contemplated making for the future conduct of their business. Notably, the relationships which the parties contemplated to exploit the business opportunity were ones based upon severally owned assets. That is, the relationship there being bargained for on the facts of that case was not one which of itself (or would have been) one having fiduciary characteristics. In that factual context, Finn J relevantly observed:[67]

“The use of the word ‘mutual’ here is unhelpful as it presupposes the answer to what actually was in issue: were each of the parties entitled in the circumstances to expect loyalty from the others and if so in what matters? Whatever may have been the courses open to be taken by the parties in defining their relationship given the business opportunity identified ….., that in fact taken and pursued was not one in which they established, or agreed to, mutual rights and obligations (or joint interests). The relationships they actually sought to establish in exploiting the business opportunity were ones based on severally owned assets, individual contracts and distinct business structures which served the several interests of the contractors. They may well have reposed a trust and confidence in each other reflecting an expectation that they could bring to an acceptable finalisation the various arrangements they had in contemplation. But that trust and confidence, if it was there, was not directed to the subordination of self interest to joint interest. There was nothing fiduciary about it.”

….

A link to the full decision may be found here.

[33] [1984] HCA 64; (1984) 156 CLR 41, 96-7.

[34] Heydon, Leeming and Turner, Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies, 5th Edition (“Meagher, Gummow and Lehane”) at page 141[5-005].

[35] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 96.

[36] [2006] FCAFC 44; (2006) 149 FCR 569 at 574 [11].

[37] Ibid.

[38] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 96-7.

[39] Ibid, 97.

[40] Ibid, 97.

[41] John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1, [86] and [87]; Meagher, Gummow and Lehane, 141 [5-005].

[42] Meagher, Gummow and Lehane at 152 [5-035].

[43] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 70.

[44] Ibid, 99-100.

[45] John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1, [88].

[46] [1911] UKLawRpCh 45; [1911] 1 Ch 723, 728-9.

[47] [2006] FCAFC 44; (2006) 149 FCR 569 at 571.

[48] [2005] VSCA 27; (2005) 12 VR 513 at [7].

[49] [1985] HCA 49; (1984-1985) 157 CLR 1.

[50] Mason, Brennan and Deane JJ.

[51] Ibid, 11-12.

[52] Ibid, 12-13.

[53] Ibid, 7-8.

[54] News Limited v ARL [1996] FCAFC 870; (1996) 64 FCR 410, 539-540.

[55] United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1984-1985) 157 CLR 1, 11; News Limited v ARL [1996] FCAFC 870; (1996) 64 FCR 410, 540.

[56] [2006] FCAFC 44; (2006) 149 FCR 569, 574-575.

[57] News Limited v ARL [1996] FCAFC 870; (1996) 64 FCR 410, 538-539 citing B H McPherson (Joint Ventures) in PD Finn (ed) Equity and Commercial Relationships (1987) at pp 35-36.

[58] [1929] HCA 24; (1929) 42 CLR 384 at 407.

[59] Ibid at 407-408.

[60] [1996] FCAFC 870; (1996) 64 FCR 410, 541.

[61] [1989] 2 SCR 574, 668.

[62] Ibid, 595.

[63] Ibid, 600.

[64] [1977] 3 All E.R. 129.

[65] Ibid, 232.

[66] Maguire v Makaronis [1997] HCA 23; (1996-1997) 188 CLR 449, 465.

[67] Gibson Motorsport Merchandise Pty Ltd v Forbes [2006] FCAFC 44; (2006) 149 FCR 569, 575 [13].

….

Such a dispute was recently considered by Treston J in Taylor v Friday [2024] QSC 329 (20 December 2024).  The dispute there was between the deceased’s widow and the deceased’s mother respectively.  Cultural and family considerations played a significant evidentiary role. Ultimately her Honour determined, on the facts, that the widow – who wished to bury the deceased in their place of residence, Townsville – was properly vested with the decision. Treston J wrote:

[1]  Ricky John Morris died on 5 November 2024. He was aged 37 years. He is survived by his wife, Kimberley Friday, the respondent to these proceedings, and his four infant children. He is also survived by his mother, Phyllis Taylor, the applicant to these proceedings, his younger sister and broader family members. A dispute has arisen over who is entitled to bury the deceased’s body. This dispute centres around the location at which the body is to be buried. The matter was heard in Applications Court and it is necessary to be decided promptly.

[2]  I can do no better at the outset than to adopt the wording of Doyle CJ in the matter of Jones v Dodd1 who said this:

Sadly, the problem before me is really insoluble in one sense. It is impossible in any realistic sense to weigh the competing claims and arrive at what one would truly call a legal judgment. I understand and respect the wishes and beliefs of the plaintiff and of the defendant. There is no solution or compromise available to me that will satisfy each side. I can only make a decision and indicate my regret that it will cause pain to the unsuccessful party.

[3]  The applicant, Ms Taylor, brings the application that she be entitled to the possession and control of the deceased’s body for the purpose of burial at Kempsey in New South Wales. There are numerous cultural reasons relied upon in support of that application to which I will return. The respondent is the deceased’s spouse, who wishes to bury him in Townsville where he has resided with her and their children for the last approximately seven years.

[4]  When Mr Morris died he did not leave a Will, and therefore his own wishes about where he wanted to be buried, are not contained in any testamentary document. There is some competing evidence from family members as to oral expressions of his wishes during his lifetime. At its core, the dispute centres around this — the deceased’s mother submits that the deceased should be buried on the country where he was raised as a child in New South Wales, Dunghutti country, which is near Kempsey. She contends that the deceased had a deep spiritual and cultural connection to that region and, for a variety of other reasons to which I will return, it is an appropriate place for him to be buried. His spouse contends that he ought to be buried in Townsville where she and his children reside.

[5]  Although the Far Northern Coroner exercised a power to release the deceased’s body to his spouse, pursuant to s 26(3) of the Coroners Act 2003, this is not an appeal from the Coroner’s decision, nor is this court bound by the Coroner’s findings. The matter proceeds on the basis that the Supreme Court has jurisdiction to decide the dispute. The legal position in Queensland is this. Both parties proceed on the basis that it is well settled that part of the inherent jurisdiction of the Supreme Court is a power to direct where and how a person’s remains should be disposed of. That is a discretionary jurisdiction. Despite the unfortunate nature of this application there is in fact not a shortage of authority guiding my consideration of the legal issue.

[6]  The Queensland Law Reform Commission issued a report reviewing the law in relation to the final disposal of dead bodies in December 2011.

[7]  That report is number 69 of the Queensland Law Reform Commission Reports. It was referred to favourably by Atkinson J in a matter decided in 2014 of Laing v Laing.2 Chapter 4 of the Law Reform Commission Report sets out an overview of the law with regard to the right to decide the method and place of disposal of a deceased’s body. As was pointed out in that report, when a person dies, the first priority is to arrange for the disposal of the person’s body. The question of who has the right to determine the method and the place of the disposal of the body is governed by the common law, which provides that the executor of a deceased person’s Will has the duty to dispose of the body of the deceased and therefore has the right to possession of the deceased’s body for the purpose of such disposal.

[8]  Atkinson J did not doubt the correctness of that approach. As a starting proposition it informs the consideration here. That is, although there is no Will and therefore no executor, the court starts with the proposition that the person who has the entitlement to a grant of letters of administration is the person with the right to the possession of the deceased’s body for the purpose of disposal. Pursuant to Ch 15 of the Uniform Civil Procedure Rules 1999 the priority for letters of administration on intestacy is contained in r 610. Here, the person with the first priority to the letters of administration on intestacy is the deceased’s surviving spouse, Ms Friday. The rule does not differentiate between a spouse and a de facto spouse, given that a de facto spouse, as a matter of law, is a spouse for all purposes and certainly for the purposes of this rule.

[9]  The priority of the grant of letters of administration on intestacy was the approach adopted by Margaret Wilson J in Roma v Ketchup3 where there was a similar disagreement between parties about who should have a right to arrange for the burial of the deceased. Her Honour stated at paragraph 10 that “The usual rule is the person entitled to letters of administration is responsible for the burial of the body.” The same position was adopted by Henry J in Accoom v Pickering4 where his Honour restated the same starting point. That is, that the person entitled to the administration of the estate is the person responsible for arranging the funeral and the burial. A similar approach was adopted by North J in Johnson v George5.

[10]  The starting proposition, however, is not determinative and it remains to be considered whether, in the particular circumstances of the case, a different result ought to obtain. Those circumstances might include practical considerations as well as relevant religious, cultural or spiritual considerations. A very significant body of powerful material has been filed in support of this application. I do not intend to do any disservice to the importance of the evidence by delivering these reasons ex tempore. But I do so because it is over six weeks since the deceased died. It is now a matter of days before Christmas. And the combination of those circumstances, in the context of a tragic death of a relatively young man and the father of young children, makes it necessary for the matter to be decided promptly.

…

[30]  [Ms Friday] stresses in her affidavit that she is conscious to try to break the cycle of mental illness and trauma, and that her husband therefore needs to be laid to rest where his children are, for their wellbeing. Importantly she wants to be able to create a positive and regular connection for their children to visit their father when they are able, so that they are better able to process their grief and their loss. The one piece of evidence upon which everyone seems to agree is that Mr Morris treasured his children. It is not a leap to conclude that he would want for them what is broadly considered best for them.

[31]  I have had particular regard to the decision of Henry J in Accoom v Pickering. That case was different of course because it arose in the context of a deceased person who did not have a spouse, children or grandchildren. The dispute was between a mother and an aunt who wanted him buried in different areas. The circumstances here are quite different. The deceased had a long-term spouse and four young children. It is the prima facie position that the spouse has priority. While I accept that that starting position is not determinative and that sensitivities such as religious, cultural and spiritual ones must be taken into account, it is a difficult argument to suggest that they ought to outweigh the prima facie right of the spouse and the children and to act in the best interests of those small children.

[32]  Whatever decision this court makes there will be heartache and despair. Each side will consider that their claim is superior.

[33]  Whilst the deceased’s family rely upon Aboriginal custom, heritage, culture and spirituality, those factors must be carefully balanced against the ones which favour the spouse and the children. Were Ms Friday’s decisions considered to be capricious or unreasonable the court might more readily set them aside. But that simply cannot be said of her. Ms Friday and Mr Morris lived in Townsville for nearly seven years. All of their children are at school there. They are settled in the community. Mr Morris was an active member of the local Townsville football club. Indeed, the football club named a trophy after him after his death. He is inducted into the hall of fame at the Townsville Brothers Rugby League Club. He had a close and abiding connection with Townsville.

[34]  Those facts, coupled with the children’s need to stay connected to their deceased father by having ready access to where he is buried seems to me outweighs the submission for his burial to take place in New South Wales. To bury him there will inevitably mean that his children will have little or no connection to him. There is no ground for thinking that he would have supported such an approach. Furthermore, the practical costs of repeated travel to Kempsey to visit his grave would be a substantial financial burden for a family of five. The financial burden, coupled with the inconvenience of the travel, is too burdensome in all of the circumstances. His connection with Townsville was neither transient nor fleeting. His family was there, and he had a life there.

[35]  In the circumstances, whilst I have no doubt that the deceased had a close and abiding connection to the country of his family, and in no way do I question the strong cultural and spiritual connections that he had, unfortunately a decision has to be made, and in these circumstances the decision favours the spouse deciding where Mr Morris is to be buried.

[36]  In the circumstances, Mrs Taylor’s application is dismissed.

[37]  No party asks for costs.

(emphasis added)

1    (1999) 205 LSJS 105; [1999] SASC 458 at [36]; cited by North J in Johnson v George [2019] 1 Qd R 333 at [30].

2    [2014] QSC 194.

3    [2009] QSC 442.

4    (2020) 6 QR 640.

5    [2019] 1 QdR 333.

The link to the full decision is here.