BANQUE BRUXELLES LAMBERT v AUSTRALIAN NATIONAL INDUSTRIES LTD [1997] NSWCA 40

BANQUE BRUXELLES LAMBERT v AUSTRALIAN NATIONAL INDUSTRIES LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, COLE and BEAZLEY JJA 26 February 1997, 26 February 1997

[1997] NSWCA 40

Contract — Deed of Release — Construction and Interpretation — Equitable principle in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 — General words of release — Whether included release of court order for costs in initial litigation.

Beazley JA In this matter, which might correctly be described as another of the spin-offs from the litigation which was commonly known as the Spedley Litigation, it is convenient for the purposes of dealing with this appeal if I quote from the judgment of the trial judge as to the relevant facts:

"In 1992 BBL, lent money to Spedley Securities Ltd, ('SSL'), which was a fully owned subsidiary of Spedley Holdings Ltd of which ANI held 45% of the issued capital. To support the loan ANI gave BBL 'a letter of comfort' and when SSL failed to repay the amount lent by BBL to it, BBL sued ANI on the letter of comfort. The proceedings were contested and, on 12 December 1989, his Honour [Rogers CJ Comm D] found that BBL had 'made out its case on liability' and ordered ANI to pay BBL's 'costs to this point'. He noted there remained outstanding the question of the quantum, which was subsequently litigated, and, on 5 October 1990, his Honour found BBL was entitled to damages. On 16 October 1990 an order was made that ANI pay BBL $9,091,717.86 and costs. The judgment debt has been paid by ANI to BBL, but the costs have neither been taxed, nor agreed and consequently have not been paid. An appeal was lodged to the Court of Appeal."

That appeal was subsequently discontinued by a Notice of Discontinuance, the terms of which will be relevant to the matters to which I will refer later in this judgment.