NSW Caselaw
New South Wales Court of Appeal CITATION : LUXPARK PTY LTD v ESSO AUSTRALIA LIMITED [1999] NSWCA 50 FILE NUMBER(S) : CA 40529/97 HEARING DATE(S) : 3 March 1999 JUDGMENT DATE : 3 March 1999
LUXPARK PTY LTD PARTIES : v ESSO AUSTRALIA LIMITED JUDGMENT OF : Meagher JA at 20; Handley JA at 2; Powell JA at 21
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 3090/95 LOWER COURT JUDICIAL OFFICER : George ADCJ
COUNSEL : I M Wales SC (Appellant) B J Skinner (Respondent) SOLICITORS : Jenkins & Associates Bondi Junction (Appellant) Middletons Moore & Bevins Sydney (Respondent) CATCHWORDS : CONTRACT - breach - construction of deed of release - whether release covered all causes of action in statement of claim The Republic of India v India Steamship Company Limited [1993] AC 410 CASES CITED: 420 421 Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd & Ors (1996) 40 NSWLR 543 DECISION : Appeal dismissed with costs
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40529/97 DC 3090/95
MEAGHER JA HANDLEY JA POWELL JA
Wednesday 3 March 1999
LUXPARK PTY LTD v ESSO AUSTRALIA LIMITED
CONTRACT - breach - construction of deed of release - whether release covered all causes of action in statement of claim The appellant was a licensee of the respondent under a service station licence agreement. An action for breach of a covenant by the defendant to repair the premises including the petrol tanks in this agreement was commenced in the District Court. The defendant pleaded a release and this defence was upheld. The appeal turned on the construction of the release and whether it covered the causes of action in the statement of claim for breaches of this covenant. The release applied to claims for loss of petrol from leaking petrol tanks, but such claims could only arise from breach of the covenant to repair. HELD, dismissing the appeal: The release covered the causes of action in the statement of claim for breaches of the service station licence agreement. The Republic of India v India Steamship Company Limited [1993] AC 420 applied. ORDER Appeal dismissed with costs. THE SUPREME COURT
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