Harplex Pty Ltd v Konstandellos & Ors [2018] VSCA 67

CONTRACT - Construction - Onus - Whether settlement agreement construed as release or covenant not to sue - Where no evidence reflecting terms of agreement - Where admitted terms of agreement failed to establish release - Murray-Oates v Jjadd Pty Ltd (1999) 76 SASR 38, Pollak v National Australia Bank Ltd [2002] FCAFC 55, Associated Retailers Ltd v Toys Unlimited Pty Ltd [2011] VSC 297 considered.

PRACTICE AND PROCEDURE - Point of law raised on appeal - Whether exceptional circumstances allow point to be raised in interests of justice - Whether point could have been met with evidence at trial - Where no party at trial aware of current status of law - Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 applied.

1 In 2016 the applicant agreed to accept a sum of money by way of settlement of a judgment debt. The judgment had been entered in default against four defendants in respect of unpaid loan obligations. An associate judge subsequently held that the applicant had, by this transaction, released the judgment debt and discharged the obligations not only of the paying debtor but also of the remaining judgment debtors.

2 The applicant seeks leave to appeal on the basis that the common law rule applied by the associate judge to reach that result has been abolished by statute or rules of court and that, in any event, the settlement transaction involved a promise not to sue, rather than any release, and so fell outside the common law rule. The first to third respondents, being the remaining judgment debtors, contest those claims and also contend that the applicant should not be allowed to run on appeal arguments as to the abolition of the common law rule, which were not run at trial.

3 For the reasons that follow, leave to appeal should be granted and the appeal allowed.

4 The first to third respondents, Nicolaos Konstandellos, Alkiviadis Konstandellos and Lambrini Dounias, are siblings. Frank Dounias is the son of the third respondent. Frank Dounias and the third respondent are the registered proprietors, respectively, of a property in Springs Road, Clarinda and a property in Arunta Crescent, Clarinda.

5 In May 2011, the first to third respondents and Frank Dounias entered into two loan agreements, each secured by mortgages over the two Clarinda properties. The loans were made for the purpose of funding the business activities of the first respondent, who conducted all the dealings between the borrowers and the lender, the applicant Harplex Pty Ltd ('Harplex'). Harplex is an investment vehicle for an unnamed person. Mr Peter Szanto of Trumble Szanto Lawyers ('Trumble Szanto') acted for, and was a director of, Harplex.

6 In late 2011 the borrowers ceased making loan repayments and on 11 September 2012 Harplex commenced recovery proceedings in the Supreme Court. On 21 December 2012 Harplex obtained judgment in default of defence in the amount of $865,000 together with interest in the amount of $188,034.61 and costs of $4,200 (totalling $1,057,234.61); and judgment for possession of the Clarinda properties. Pursuant to that judgment, on 9 January 2013 a warrant was issued for possession of the Clarinda properties.

7 The first respondent, on behalf of the judgment debtors, then entered into discussions with Trumble Szanto, on behalf of Harplex, concerning the judgment debt and the amounts payable in order to discharge the mortgages. In June 2013 the first respondent engaged the fourth respondent Kelly & Chapman, a firm of solicitors, to represent the judgment debtors concerning the mortgages.

8 On 17 July 2013, the judgment debtors paid $963,050 to Harplex and Harplex released the two properties from the mortgages and the warrant of possession.

9 In August and December 2013, Trumble Szanto wrote to Kelly & Chapman regarding the balance of the judgment debt. On 20 January 2014, Harplex applied for a warrant of seizure and sale. In an affidavit supporting the application, Mr Simon Tan on behalf of Trumble Szanto deposed that the earlier payment was made 'in settlement of the ... mortgages but not in settlement of' the loan agreements, on which a sum of $185,572.72 remained owing. As a result, a second warrant was issued, with the amount outstanding said to be $185,575.72[1] plus costs of $1,200.

10 The second warrant was defective, for reasons presently irrelevant, and on 9 July 2014 the court issued a third warrant for seizure and sale for an amount of $131,852.48 plus interest and costs. On 15 July 2014, the judgment debtors issued a summons seeking a stay of execution of the third warrant or orders that it be set aside, on the basis that the 2013 agreement and payments made pursuant to it had discharged the 2012 judgment entirely.

11 On 27 November 2014, Mukhtar AsJ ordered that execution of the third warrant be stayed subject to the judgment debtors issuing a proceeding by 11 December 2014 and paying $24,000 into court.

12 On 11 December 2014, the judgment debtors duly commenced a proceeding by writ and statement of claim seeking a declaration that they were not indebted to Harplex. In April 2015, the judgment debtors filed an amended statement of claim, which also joined Kelly & Chapman (the fourth respondent) as the second defendant.

13 The proceeding took a 'protracted path'.[2] Part of the reason for the delay was that in or around February 2016, Harplex entered into an agreement with the fourth plaintiff Frank Dounias for the settlement of its judgment against him by payment of $60,000 ('the 2016 settlement agreement'). This amount was paid, and Frank Dounias filed a notice of discontinuance in the pending proceeding.

14 The remaining plaintiffs were the first to third respondents in the present application for leave to appeal, whom it is convenient to refer to as the 'respondents'.[3]

15 On 9 May 2016, when the trial commenced, the respondents applied for an adjournment in order to re-plead their claim. In particular, they alleged that the effect in law of the 2016 settlement agreement between Harplex and Frank Dounias was to release all the respondents from any liability to Harplex. The associate judge to whom the trial had been referred granted the adjournment.

16 On 23 August 2016, the associate judge granted leave to the respondents to file and serve a further amended statement of claim, and on 8 September 2016 Harplex filed and served its defence.

17 On 2 November 2016, the first day of the trial, the associate judge granted leave to the respondents to file a second further amended statement of claim and to remove Frank Dounias as a party to the proceeding. Harplex maintained its defence.

18 The trial was held over three days in early November 2016, with further submissions filed by the parties later that month. On 26 April 2017, the associate judge delivered judgment.

(a) what the terms were of the June 2013 agreement between the judgment debtors and Harplex, pursuant to which the judgment debtors paid the sum of $963,050 to Harplex;

(b) how the 2016 settlement agreement with Frank Dounias affected the liability (if any) of the other judgment debtors to Harplex;

(c) what the terms were of Kelly & Chapman's retainer and whether Kelly & Chapman breached its duties to the judgment debtors.

20 Only the second of these issues remains live. The evidence led at trial was focussed overwhelmingly on the other issues.

21 As to the first issue, the associate judge found that the respondents, as plaintiffs in the proceeding below, had failed to establish that the 2013 agreement released them from the entire judgment debt.[5] That conclusion is not contested.

22 As to the second issue, the associate judge accepted the respondents' contention that the 2016 settlement agreement released them from any liability to pay the balance of the judgment debt. She held that the 2016 settlement agreement had that effect pursuant to a rule of the common law that a release of one joint obligor operates as a release of all.[6] As a result, judgment was entered in favour of the respondents against Harplex. This conclusion is the subject of the proposed appeal. The reasons of the associate judge are set out in more detail at [24]-[33] below.

23 As to the third issue, the claims against Kelly & Chapman largely fell away as the result of the associate judge's findings in relation to the second issue. The associate judge found, however, that the respondents had not established that they had retained Kelly & Chapman on the terms alleged. As a result, she gave judgment in favour of Kelly & Chapman as against the respondents.[7] That judgment is not challenged.

Reasons of the associate judge: the 2016 settlement agreement

24 At trial, the respondents contended that the 2016 settlement agreement between Harplex and Frank Dounias had released them from liability to pay the balance of the judgment debt. They relied on the decision of the High Court in Walker v Bowry[8] and the decision of the Supreme Court in Associated Retailers Ltd v Toys Unlimited Pty Ltd.[9]

25 In Associated Retailers, Kyrou J, referring to the decision in Walker, described a common law rule whereby 'a release of one of a number of co-debtors who are jointly, or jointly and severally, liable for the same debt releases all of them.'[10] On the other hand, this rule was said not to apply 'where the creditor enters into a covenant not to sue a debtor because such a covenant does not affect the underlying liabilities of the codebtor or the guarantors.'[11] The status of the common law rule, and the question whether, if it still exists, it applied to the present case, were the main focus of the arguments on the application for leave to appeal.

26 The associate judge held that there was no material distinction between contractual debts and judgment debts for the purpose of applying the principle in Walker. She referred to two authorities in support of this finding. In Dorgal Holdings Pty Ltd v Buckley,[12] the Supreme Court of New South Wales held that the decision in Walker could not be distinguished on the grounds that the liability was statutory rather than contractual. In Pollak v National Australia Bank Ltd,[13] the Full Court of the Federal Court assumed that the principle in Walker would apply to the release of one of two judgment debtors, but found that the relevant settlement agreement was not a release.

27 In relation to the question whether the effect of the 2016 settlement agreement was to release the remaining judgment debtors, or whether it merely contained a covenant not to sue Frank Dounias, the associate judge cited a paragraph from Associated Retailers as follows:

The question of whether a contractual term operates as a release or as a covenant not to sue must be determined by construing the term in the context of the contract as a whole. If it appears that the term, properly construed, was intended by the parties to the contract not to operate as a release of all codebtors or guarantors, then the term should be construed only as a covenant not to sue the debtor purportedly released by the contract.[14]

28 The associate judge referred again to Pollak, which had cited with approval the decision of the Full Court of the Supreme Court of South Australia in Murray-Oates v Jjadd Pty Ltd,[15] to the effect that the construction of the relevant settlement agreement ought to have regard to the words used, bearing in mind the possibility of an implied reservation of rights, but not the subjective intention of the parties about the effect of the agreement.[16] The associate judge also considered academic commentary to the effect that the precise nature of the relevant agreement must be analysed, including any express or implied intention to reserve rights against the co-debtors and the context of the document as a whole.[17]

29 The associate judge proceeded to identify the effect of the 2016 settlement agreement. As explained further below, there was no evidence as to the terms of that agreement, which were the subject of admissions in the pleadings. After setting out some of the history of the proceeding relating to the evidence available to her on the 2016 settlement agreement,[18] the associate judge 'highlighted' the following matters:[19]

a) that Harplex has been on notice since May 2016 that the plaintiffs intended to rely upon the 2016 settlement agreement as affecting their liability to Harplex, in the event they failed on their primary contention that there was an agreement between them and Harplex in the terms contended for by the plaintiffs;

b) while the plaintiffs did not plead until the first day of trial their contentions concerning the precise legal effect of the 2016 settlement agreement, Harplex had an opportunity to adduce evidence of the terms of the 2016 settlement agreement to support any contention by it that the 2016 settlement agreement did not release the fourth plaintiff, but merely contained a covenant not to sue the fourth plaintiff. It would have been a relatively straightforward matter, given that Mr Szanto was due to attend for crossexamination at trial, for Harplex to seek leave to adduce additional evidence from Mr Szanto concerning the circumstances in which the 2016 settlement agreement was made, the terms of the 2016 settlement agreement, and to tender into evidence any documents in support of Harplex's contention that the legal effect of the 2016 settlement agreement was not as contended for by the plaintiffs in the [second further amended statement of claim]; and

c) the principle in Walker v Bowry, while criticised in later authorities, is settled law in Australia, and the principles of construction summarised by Kyrou J in Associated Retailers are also well established, such that counsel for Harplex could be presumed to be aware of the issues which might arise from the plaintiffs' allegations concerning the effect of the 2016 settlement agreement upon the liability of the plaintiffs pursuant to the judgment debt.

30 The associate judge concluded that the only evidence she had available to her as to the terms of the 2016 settlement agreement was the respondents' allegations in the second further amended statement of claim and admissions made by Harplex concerning those allegations (while denying the legal effect contended for by the respondents).

31 In particular, Harplex had admitted the following allegations:

17A In or about February 2016, the fourth plaintiff [Frank Dounias] and the first defendant [Harplex] entered into a settlement agreement ('the 2016 settlement agreement').

PARTICULARS

The First to Third Plaintiffs [the respondents] are unable to give further particulars prior to discovery being given by the first defendant.

17B There were terms of the 2016 settlement agreement whereby:

(a) the Fourth Plaintiff agreed to pay the First Defendant the sum of $60,000;

(b) the Fourth Plaintiff agreed to discontinue its claim against the First Defendant in this proceeding;

(c) the First Defendant agreed not to enforce the judgment in Supreme Court proceeding no. S CI 2012 of 05213 against the Fourth Plaintiff;

(d) the Fourth Plaintiff released the First Defendant from any further claims against it; and

(e) the First Defendant released the Fourth Plaintiff from any further claims against him.

PARTICULARS

The First to Third Plaintiffs are unable to give further particulars prior to discovery being given by the first defendant.

17C In performance of his obligations under the 2016 settlement agreement, the fourth plaintiff paid the first defendant the sum of $60,000.

32 Harplex had denied a further allegation that the legal effect of entry into the 2016 settlement agreement was to discharge the respondents from any further obligations to make payment pursuant to the judgment.[20]

33 The associate judge found that, in the absence of any evidence having been led or submissions made on behalf of Harplex to support a contention that the 2016 settlement agreement should be construed as including a covenant not to sue rather than a release, she was bound by the authorities to find for the respondents.

34 The applicant's six proposed grounds of appeal are as follows:

1. The Associate Judge applied the common law rule that a release of one of a number of persons who are jointly, or jointly and severally, liable for the same debt releases them all, see Reasons at [138] and [142]. However, this rule has been abolished in Victoria by the effect of:
   1. Section 24AA of the Wrongs Act 1958;
   2. Rules 9.03-9.06 of the Supreme Court [(General Civil Procedure)] Rules [2015].
2. The Associate Judge applied the common law rule that a release of one of a number of persons who are jointly, or jointly and severally, liable for the same judgment debt releases them all, see Reasons at [138] and [142]. However, this rule has been abolished in Victoria in the case of a judgment entered in default of appearance or in default of defence (as is the present case) by the effect of Rules 9.03-9.06 and Rule 21.05 of the Supreme Court Rules.
3. The Associate Judge was wrong in holding that the common law rule that a release of one of a number of persons who are jointly, or jointly and severally, liable for the same debt releases them all, applied to the debt constituted by the judgment in the present case, Reasons at [142]-[146].
4. The Associate Judge was wrong in finding that it was the obligation of the applicant to establish, or to persuade her, that the settlement agreement:
   1. was not a release of the liability of the debtor party from liability for the judgment debt,
   2. was relevantly only an agreement not to proceed against the debtor party on the judgment,

and should have found that these obligations were those of the first, second and third respondents, as they were matters asserted by them: Reasons at [159].

1. The Associate Judge was wrong in holding, at Reasons [159], that:

However, in the absence of any evidence (or even submissions) to support a contention that the 2016 settlement agreement should be construed as including a covenant not to sue rather than a release, then in accordance with the well established authority, I must find for the plaintiffs on this question.

1. the issue of the meaning and effect of the settlement agreement was to be determined as a matter of construction, not as a matter of evidence.
2. the Associate Judge did not decide the meaning and effect of the settlement agreement as a matter of construction,

1. the Associate Judge ought to have found that on its true construction, the settlement agreement was not a release of the liability of the debtor party from liability for the judgment debt,

1. the [applicant] did make submissions to support a contention that the 2016 settlement agreement should be construed as including a covenant not to sue rather than a release, see at transcript pages 308-9.

1. The Associate Judge was wrong in holding that the settlement agreement between the applicant and one of the judgment debtors (Frank Dounias, the fourth [plaintiff]) was on its true construction a release of that debtor's liability to the applicant; Reasons [146] and [159].

35 The proposed grounds raise three broad issues: whether the common law rule still exists in Victoria and, if so, whether it extends to judgment debts and whether it was attracted on the facts of the present case. It is convenient to concentrate first on the question whether the rule still exists in Victoria.

Proposed ground 1(a): Walker rule and Wrongs Act, s 24AA

36 In Walker, a creditor obtained judgment against one of a number of joint and several guarantors. That guarantor subsequently paid the creditor a lesser sum in satisfaction of the judgment debt and the creditor released him from the judgment debt and all claims in respect of it. The guarantor sued one of the other guarantors for contribution in respect of the sum paid. The co-guarantor argued that the whole judgment had been released and that the payment could not be seen as part payment of the debt.

37 The High Court held that the release affected only the balance of the judgment debt, which debt had thereby been reduced as against all judgment debtors to the amount paid. The paying guarantor was therefore entitled to contribution in respect of the amount paid. In the course of their reasons, both Isaacs ACJ and Starke J described the effect of a release of co-obligors. Isaacs ACJ quoted with approval from the judgment of Lord Cairns LC in Kendall v Hamilton:[21]

It is the right of persons jointly liable to pay a debt to insist on being sued together. If then there are three persons so liable, and the creditor sues two of them, and those two make no objection, the creditor may recover judgment against those two. But should he afterwards bring a farther action against the third, that third may justly contend that the three should be sued together. ... [H]e may fairly require, with a view to his right of account or contribution, to have the identity and the amount of the debt constituted and declared in one and the same judgment with his co-contractors. If, therefore, when the third is sued, and required that the other two be joined as parties, the creditor has to admit that he cannot join the other two because he has already recovered a judgment against them in the same cause of action, this is equivalent to saying that he has disabled himself from suing the third in the way in which the third has a right to be sued.

38 Isaacs ACJ went on to say that, in so far as the bank had released the first guarantor from his liability to pay the balance of the judgment debt, the condition of joint and several liability, on the faith of which the co-guarantor had entered into his obligation, had been rendered impossible of observance. The effect of the release was therefore to relieve the co-guarantor of the liability to pay the balance, but there was no release as to the sum paid.[22]

39 Starke J quoted the statement of the Privy Council in Ward v National Bank of New Zealand Ltd that 'when the creditor releases one of two or more sureties who have contracted jointly and severally, the others are discharged, the joint suretyship of the others being part of the consideration of the contract of each'[23] and went on to say:[24]

At common law the release of one of a number of co-debtors jointly or jointly and severally liable for the same debt released all.

40 As already noted, Kyrou J in Associated Retailers cited Walker as authority for the common law rule regarding the release of one of a number of joint or joint and several debtors. Similarly, the case was treated as binding authority for the existence of the rule in Dorgal Holdings[25] and Pollak.[26]

41 The applicant submitted that the common law rule in Walker has been abolished in Victoria. It submitted that the rule has been abolished by s 24AA of the Wrongs Act 1958 and by rr 9.03-9.06 of the Supreme Court (General Civil Procedure) Rules 2015 (the 'Rules'). It further submitted that the rule, in respect of a judgment debt in particular, has been abolished by rr 9.03-9.06 and 21.05 of the Rules. On that basis, the applicant contended that the statement of the common law rule in Associated Retailers was not good law.

Wrongs Act 1958 s 24AA

43 The applicant submitted that s 24AA of the Wrongs Act impliedly abolished the common law rule in the case of joint debtors in the same way that analogous provisions in New South Wales and Australian Capital Territory legislation have been found to have abolished the rule in its application to joint tortfeasors.

44 Section 24AA reads as follows:

24AA Proceedings against persons jointly liable for the same debt or damage

Judgment recovered against any person liable in respect of any debt or damage shall not be a bar to an action, or to the continuance of an action, against any other person who is (apart from any such bar) jointly liable with the first-mentioned person in respect of the same debt or damage.

45 Section 23A(1) provides that, for the purposes of provisions including s 24AA:

a person is liable in respect of any damage if the person who suffered that damage ... is entitled to recover compensation from the first-mentioned person in respect of that damage whatever the legal basis of liability, whether tort, breach of contract, breach of trust or otherwise.

46 The applicant placed emphasis on the reference to 'debt' in s 24AA. It relied on the High Court's decision in Thompson v Australian Capital Television Pty Ltd,[27] which held that the principle of there being only one cause of action against joint tortfeasors should be held to have been abolished in the Australian Capital Territory by reason of s 11(2) of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) (the 'ACT Act'), to the same effect as s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the 'NSW Act').

47 Those provisions are in relevantly identical terms. Section 11(2) of the ACT Act states:

Judgment recovered against a tort-feasor liable in respect of the damage is not a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage.

48 In Thompson, Brennan CJ, Dawson and Toohey JJ quoted with approval the following explanation of the common law rule by AL Smith LJ in Duck v Mayeu:[28]

[A] release granted to one joint tortfeasor, or to one joint debtor, operates as a discharge of the other joint tortfeasor, or the other joint debtor, the reason being that the cause of action, which is one and indivisible, having been released, all persons otherwise liable thereto are consequently released.

49 They held that it followed from s 11(2) of the ACT Act that:[29]

The concept of a single wrong and a single cause of action having gone, the rule that a release given by one joint tortfeasor releases any others must have gone with it, for that rule is nothing more than another aspect of the same thing, namely, that there is only one cause of action against all joint tortfeasors in respect of the one tort. In other words, once the cause of action is by statute no longer one and indivisible, there is no conceptual basis for the rule that the release of one joint tortfeasor releases the others. The rule must therefore be taken to have been impliedly abolished by the statute.

50 This reasoning followed that of Gibbs CJ and Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd,[30] in concluding that s 5(1) of the NSW Act had destroyed the whole principle that there is only one cause of action against joint tortfeasors. The applicant submitted that the same reasoning applied to s 24AA which, unlike the above provisions, referred to debts as well as tortious liabilities.

51 The applicant also submitted that the abrogating effect of s 24AA was recognised by the New South Wales Court of Appeal in Lavin v Toppi, where Leeming JA (Macfarlan and Emmett JJA agreeing) said:[31]

[T]he common law rule that judgment against a surety or a settlement involving a release of a surety constitutes a release of the co-sureties has in part been abrogated by ... s 24AA of the Wrongs Act 1958 (Vic), insofar as the rule turned on a judgment.

However, this was a passing reference on an issue which did not need to be decided in that case and was not directed to the question of joint and several liability.

52 The respondents submitted that the abrogation of the common law rule does not extend to the rule in respect of debts, or at least joint and several debts. They placed reliance on the following passage in the judgment of Gummow J (with whom Gaudron J agreed):[32]

Nevertheless, the notion of joint and several liability in tort did not bear the same meaning as does joint and several liability in contract. There, in general, judgment against one contractor who is jointly and severally liable does not bar the several remedy against the others, whereas judgment against one of several joint tortfeasors was said in England to discharge the others in respect of that tort.

53 Later in his reasons, Gummow J quoted without qualification the passage set out above in Duck v Mayeu, referring to joint debtors.[33] He did not refer to the holding in Walker to the effect that a release of one party's joint, or joint and several, contractual obligations operates as a release of those of all parties. It would therefore be wrong to read Gummow J as departing from that authority.

54 The respondents however sought to avoid the application of the reasoning in Thompson on the basis that, in the case of joint and several debtors, the rationale for the common law rule was different and not dependent on the notion that there was a single cause of action (there being no unity of the cause of action against joint and several debtors, who might be sued individually). They relied on a summary of the law enunciated by Judge Paul Baker QC in Deanplan Ltd v Mahmoud,[34] as follows:

First, a release of one joint contractor releases the others. There is only one obligation. A release may be under seal or by accord and satisfaction. A covenant not to sue is not a release. It is merely a contract between the creditor and the joint debtor which does not affect the liabilities of the other joint contractors or their rights of contribution or indemnity against their co-contractor. It is a question of construction of the contract between the creditor and joint debtor in the light of the surrounding circumstances whether the contract amounts to a release or merely a contract not to sue.

Secondly, the same principles apply to a contract between the creditor and one of joint and several debtors. If one joint and several covenantor is released by accord and satisfaction, all are released. Some have seen this as illogical, and so it would be if the only reason for the rule that the release of one joint contractor releases the other is that there is only one obligation. Professor Glanville Williams sees the reason for the extended rule to have been an early uncertainty as to the nature of a joint and several obligation: see Joint Obligations [(Butterworths, 1949), 135 [63]]. Two other reasons can be adduced. First, where the obligations are non-cumulative, i.e. the obligation of each is to perform in so far as it has not been performed by any other party, the acceptance of some other performance in lieu of the promised performance relieves the others. The covenantee cannot have both the promised performance and some other performance which he agrees to accept. Secondly, unless the co-covenantors were released following an accord and satisfaction, they could claim a right of contribution or indemnity. Thus, by suing the co-contractor the creditor commits a breach of the contract with the released covenantor, for such an action will inevitably lead to the very claim from which the release has been purchased by accord and satisfaction.

55 The respondents submitted that, if the two 'other reasons' offered by Judge Paul Baker QC for the rule in its application to joint and several contractors were to be accepted, the rule would survive the destruction of the single cause of action identified by the High Court in Thompson. Two things may be said in response to this submission. First, the stated rationale for the rule in Walker, including in respect of joint and several debtors, is that there is a single cause of action. It is perhaps illogical that this rationale extends to the case of joint and several liability. In Dorgal Holdings,[35] McLelland CJ in Eq said that, as a matter of principle, the application of the rule beyond joint liability 'seems impossible to justify' but was none the less binding. It is similarly not open to this Court to disregard Walker and to rely on alternative or competing rationales for the rule.

56 Secondly, and in any event, it is not apparent why, even if the alternative reasons for the rule were to be accepted, they would survive a law such as s 24AA. By providing that judgment against one debtor is not a bar to recovery against a joint debtor, the section appears to undermine each of those alternative reasons, which are directed to explaining the existence of just such a bar. However the common law rule might be justified in respect of joint and several debtors, s 24AA therefore defeats that justification.

57 The respondents next relied on extrinsic material to argue that s 24AA did not affect joint and several liability. They referred to the Explanatory Memorandum for the Wrongs (Contribution) Bill 1985, as follows:

Sections 24AA and 24AB continue to allow a plaintiff to take action against any number of persons who are jointly liable for the same debt or damage but removes the existing sanction that damages of the second or other actions cannot be greater than the damages recovered in the first judgment.

58 In the second reading speech, the Minister stated:[36]

[The Bill] extends the principle of the present legislation, whereby a judgment against a person partly liable with another does not bar an action or the continuance of an action against the other person, for other kinds of joint liability.

59 The respondents submitted that nothing in the Explanatory Memorandum or second reading speech indicated an intention to abrogate the rule in Walker, or to extend the operation of s 24AA to joint and several liability. They submitted that s 24AA has limited application, being confined to circumstances where a judgment is recovered against one of multiple persons jointly (but not jointly and severally) liable for the same debt or damages.

60 The difficulty with the respondents' submissions is that, on the authority of Thompson, s 24AA destroys the unity of the cause of action in debt which, on the authority of Walker, is the basis for the common law rule as it applies to both joint and joint and several liability. It is not possible, given the High Court's conclusion in Thompson that the statute impliedly abolishes the common law rule by destroying the unity of the cause of action in relation to tort, to avoid the same conclusion in respect of the unified cause of action in contract. In the circumstances, the reasoning governing the position regarding joint, or joint and several, tortfeasors applies equally to joint, or joint and several, debtors.

61 The respondents further sought to limit the effect of s 24AA on the common law rule by submitting that, where judgment was entered against all joint, or joint and several, obligors, the effect was to create a new unity[37] to which the common law rule could apply and as to which s 24AA had nothing to say. In other words, even if s 24AA destroyed the unity of the underlying cause of action, a new right took its place and it was clear from the facts of Walker itself that a release of one obligor from its obligations under a judgment debt operated as a release of all.[38]

62 However, the foregoing reasoning applies also to judgment debts. Assuming for present purposes that the common law rule extends to obligations owed by way of judgment debt (as to which, see proposed ground 3, below), two situations must be considered. The first is where, as in Walker itself, judgment is obtained against only one of a number of joint, or joint and several, obligors. It is plain from the reasoning in Thompson that s 24AA destroys the unity in the underlying causes of action of those obligors against whom judgment has not been entered, so that the entry of judgment no longer operates as a release against all of them and the common law rule is impliedly abolished by the section.

63 In the second case, where judgment is obtained against all joint, or joint and several, obligors, no question of the judgment operating as a release of the parties' prior obligations can arise. Instead, the underlying obligations are merged into the judgment. In that context, the obligations under the judgment take on the character of the underlying obligations, and at common law a release from a joint and several judgment debt operates as a release against the other judgment debtors.[39] In those circumstances, because s 24AA destroyed the unity of the underlying cause of action, there is no basis upon which the judgment obligations into which the causes of action merged take on any character of unity of their own. The common law rule regarding release is impliedly abolished in both contexts.

64 It follows that the statement of the common law rule in Associated Retailers[40] does not reflect the law in Victoria.[41] There is, instead, no principle that a release of one of a number of co-debtors who are jointly, or jointly and severally, liable for the same debt releases all of them.[42]

Should the applicant be allowed to rely on the s 24AA argument?

65 In addition to their arguments on the substantive point, and as a preliminary to those arguments, the respondents raised a fundamental objection to the applicant's attempt to rely on s 24AA. They submitted that the Court should refuse to entertain the argument because the applicant had offered no explanation as to why the point was not raised at trial and because, if it had been raised, the respondents would have led evidence going to show that the underlying obligations in the loan agreements were joint and several, not joint. In addition, the production of an exchange of letters relating to the 2016 settlement agreement might have been pressed, leading to a possible revision of the respondents' case.

66 The law as to the raising on appeal of a ground not argued at trial is not in doubt. The following passage from the judgment of Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe sets out the principles:[43]

In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd [(1950) [1950] HCA 35; 81 CLR 418, 438]; Bloemen v The Commonwealth [(1975) 49 ALJR 219]. In O'Brien v Komesaroff [(1982) [1982] HCA 33; 150 CLR 310, 319], Mason J, in a judgment in which the other members of the Court concurred, said:

In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided ... However, this is not such a case. The facts are not admitted nor are they beyond controversy.

In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decision of six Justices of this Court (University of Wollongong v Metwally (No 2) [(1985) 60 ALR 68, 71]) the Court said:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

67 It is clear from the above that the onus rests on the applicant to show that exceptional circumstances exist whereby it is expedient in the interests of justice that the issue regarding s 24AA be decided on appeal. That entails showing, at least, that the point could not possibly have been met by evidence at trial.[44]

68 As mentioned, the respondents contended that the issue could have been met by evidence directed to showing that the liability under the loans was joint and several. This would have formed the foundation for an argument that s 24AA had no application, because (it was contended), it affected only joint and not joint and several liability. However, as was pointed out in argument, it was not contested that the liability was joint and several. So much had been pleaded in the 2012 recovery proceeding in which judgment was entered in default. The argument was therefore available, and remains available, in the absence of evidence on the point.[45]

69 The respondents also submitted that they had not pressed at trial for production of an exchange of letters prior to the making of the settlement (the terms of which were not evidenced in writing) which might have revealed a settlement on terms more favourable to the respondents than they had pleaded. However, this is entirely speculative. Moreover, the respondents had carriage of the claim that the release was effective in their favour. They had pleaded terms which they considered sufficient to establish that case. They frankly acknowledged in their written case having made a forensic decision not to supplement the applicant's admissions to those pleadings with evidence. There is no basis for thinking that they would have proceeded any differently in this regard had the point regarding s 24AA been raised.

70 Nor is this a case like Geelong Building Society (in liq) v Encel,[46] on which the respondents relied, in which the argument could have caused the other party to take a wholly different attitude to the claims made against it. The claim under the 2016 settlement agreement was subsidiary to the primary issues in the proceeding, concerning the settlement of the 2012 recovery proceeding and the actions of Kelly & Chapman in that context. It is plain from the application for leave to appeal that, had the significance of s 24AA been raised, the respondents would have met the argument, as they have in this Court, with legal arguments alone.

71 The respondents finally submitted that the interests of justice did not justify the grant of leave to the applicant to raise the new argument. It was submitted that there were no exceptional circumstances and that the applicant had simply overlooked a point available to it at trial.

72 In our opinion, the applicant has established that the interests of justice require that it be permitted to argue the point regarding s 24AA. The point is purely one of law. It could not have been met by evidence at trial. Quite exceptionally, the point was one of which no party, or the court, was aware, in circumstances where reliance was placed on a decision in the Trial Division in which, again, the point appears not to have been taken. In these circumstances, it would not be in the interests of justice for the applicant to be denied a judgment to which it was otherwise entitled if the law of this State were to be applied.

Proposed grounds 1(b) and 2: Rules, rr 9.03-9.06, 21.05.

73 In light of the above conclusions, it is unnecessary to deal with the applicant's argument that the common law rule was impliedly abolished by various rules of court. The parties did not address oral submissions on these grounds but relied on their written cases. The applicant advanced no argument regarding rr 9.03-9.06 and they may be put to one side. As to r 21.05, the applicant submitted that the same reasoning that applies in respect of s 24AA of the Wrongs Act applies to a liability under a judgment entered in default of appearance or defence, as in the present case, by the operation of r 21.05.

74 Order 21 of the Rules is entitled 'Judgment in default of appearance or pleading'. Rule 21.05 states:

21.05 Proceeding continued against other defendants

A plaintiff who enters or obtains judgment against a defendant in accordance with this Order may enforce the judgment and continue the proceeding against any other defendant, but in a proceeding for the recovery of land against more than one defendant a judgment for possession of the land shall not be enforced against any defendant unless judgment for possession has been entered or given against all the defendants.

75 The applicant submitted that this rule has the effect of destroying the unity of the cause of action against all joint liability defendants, including the judgment debtors in the present matter.

76 The respondents submitted that r 21.05 did not assist the applicant as the relevant proceedings fell within the exception, by which judgment for possession of land shall not be enforced against any defendant unless judgment for possession has been entered or given against all the defendants. Further, they submitted that r 21.05 is merely a procedural rule that was not intended to destroy the operation of the rule in Walker, and was intended to address the doctrine of merger of the cause of action.

77 As indicated, it is unnecessary to decide this issue. However, r 21.05 is not directed to questions of joint liability. It has no necessary inconsistency with the common law rule because it is capable of being read as a procedural rule applicable to all co-defendants irrespective of whether they are jointly liable. In these circumstances, the rule does not carry with it the necessary implication that the common law is altered.[47]

Proposed ground 3: Walker rule does not apply to judgment debts

78 It is also not necessary to decide whether, had the common law rule survived, it had application to the release of judgment debts. In that regard, the applicant submitted that the judgment had the effect of merging the original cause of action under the loan agreements into the judgment, resulting in a 'higher and different' obligation being created that supersedes the underlying cause of action.[48]

79 The applicant submitted that each of the judgment debtors is liable separately under the judgment in question because it was not entered against the judgment debtors 'jointly' or 'jointly and severally'. The applicant relied on a statement by the High Court in Ryan that 'the assumption that an obligation upon a judgment in respect of an actio personalis remains impressed with the character of the original cause of action' was a fallacy.[49]

80 Further, the applicant submitted that as an order of a court, a judgment does not constitute the sort of obligation on which the rule in Walker is founded, namely a unified common law cause of action against joint obligors.[50] It was argued that the rule in Walker should not be extended to judgment debts, given the criticism of the rule as 'a trap for the unwary' and 'absurd'.[51]

81 It is true of course that the entry of judgment causes the underlying obligations to take on 'a higher nature'.[52] It is also wrong to ascribe to the judgment obligation the same character as the underlying obligation in all respects. That is clear from Ryan,[53] in which the High Court held that the personal character of a libel action was lost when the cause of action merged into judgment, such that the executor of the unsuccessful plaintiff, who had since died, was able to appeal. Similarly, the giving of time by a judgment creditor to one judgment debtor does not discharge the liability of a second judgment debtor even though, since the second judgment debtor had been liable under a guarantee of the obligations of the first judgment debtor, the giving of time before judgment would have had that effect.[54]

82 However, the common law rule is still capable of applying to a judgment debt in respect of joint, or joint and several, obligations. That is because the character of the obligation created by the judgment as joint, or joint and several, or several, is determined by the character of the prior obligation.[55] This was explained by Collins LJ, with whom Rigby LJ agreed, in Re EWA, a Debtor:[56]

Mr Hansell takes two points. In the first place he says that the foundation of this obligation is the judgment, and that the doctrine that the release of one of two joint debtors operates as a release of the other has no application to a case such as this, where there has been a judgment against both. I cannot see any foundation in principle for that distinction, for under any judgment or other obligation creating a joint liability there is only one debt, and, that being so, the rule that the release of one of the joint debtors gets rid of the debt applies equally whether the obligation arises on a judgment or on any other security. Therefore no reliance can be placed upon the fact that the obligation in this case was a judgment. It is too late now to question the law

• that where the obligation is joint and several, the release of one of two joint debtors has the effect of releasing the other.

83 For these reasons, proposed ground 3, while not necessary to the applicant's success on the appeal, should be rejected.

Proposed grounds 4-6: onus of proof and construction of 2016 settlement agreement

84 It follows from the applicant's success in respect of s 24AA that the remaining proposed grounds do not need to be decided. However, for the reasons that follow those grounds should also succeed.[57]

85 The applicant submitted that since it was the respondents who asserted that the 2016 settlement agreement released Frank Dounias, and therefore released them, the onus was on them to show why, as a matter of construction, the 2016 settlement agreement ought to have been construed as a release. The applicant contended that the associate judge was wrong to have required it to lead evidence to show that there was no release.

86 The respondents submitted that they had satisfied their obligation to demonstrate that the 2016 settlement agreement constituted a release because the applicant had admitted that it released Frank Dounias 'from any further claims against him'. They contended that the onus was then on the applicant to demonstrate that the agreement was not a release but merely an undertaking not to sue. As it led no evidence to that effect, the associate judge was correct to proceed on the basis of the applicant's admission.

87 The applicant submitted that the 'releases' referred to and admitted in the pleadings were 'wrap up' releases such as commonly appear in settlement documents to deal with claims that have not been specifically mentioned. They did not qualify or affect the specific agreement by which the applicant promised not to sue Frank Dounias in respect of the judgment sum. As such, the applicant submitted that the associate judge ought to have found that the 2016 settlement agreement was intended to apply only as an agreement not to enforce the judgment debt.

88 The applicant submitted that the court in Lavin accepted that the intention of the parties, as evidenced by both the text and the surrounding circumstances, is relevant to the construction of the agreement.[58] The fact that the amount that remained owing under the judgment debt was far in excess of the amount of the settlement (approximately $185,000 compared to $60,000) was said to favour construing the settlement agreement as a covenant not to sue rather than a release. The applicant submitted that courts should be reluctant to construe an agreement with one joint obligor as a release rather than an agreement not to sue.[59]

89 The respondents submitted that the associate judge was required to decide whether the parties intended a release or a covenant not to sue. They submitted that the court will construe a release as a covenant not to sue if it discloses an intention that the other debtors are not to be discharged. Without words preserving the creditor's rights as against the remaining debtors, or any indication that the circumstances rebutted the prima facie meaning of words of release, the agreement will release all the debtors.

90 The respondents submitted that the associate judge was correct to find no indication in the evidence to rebut the words of release or to show that the applicant intended to preserve its rights against the other judgment debtors. Evidence to that effect, if it existed, could have been called by the applicant. Instead, the applicant resisted the production of documents evidencing the terms of the settlement. The Court was invited to draw a Jones v Dunkel[60] inference in respect of the applicant's failure to call evidence on the issue.

91 The respondents further submitted that the release was to be construed in its context so that it had a connection with the judgment debt. If the parties intended merely not to enforce the judgment debt, a release would have been superfluous. Instead, the release complemented the promise not to enforce the judgment debt in a 'belts and braces approach'.

92 It is convenient to commence an evaluation of the scope of the settlement by addressing the question of onus. The governing rule is that the question of construction of the terms of settlement for the purposes of the common law rule involves a single question, namely whether the terms, properly construed, operate as a release of all debtors or as a promise not to sue the debtor who is party to the settlement.[61] It was once the case that the court looked to whether there were express words reserving the creditor's rights against other debtors in those cases where a settlement was worded as a release, whereas this inquiry was not required if the settlement was worded as a promise not to sue.[62] But the modern and preferable view is that the presence or absence of words of reservation is a matter taken into account in the overall process of construction, rather than the subject of a separate and subsequent inquiry. As it was put in the Full Court of the Supreme Court of South Australia in Murray-Oates:[63]

The question of whether we are concerned with a release or covenant not to sue should be approached as being one of construction having regard to the words used. At the same time one has to bear in mind the possibility of an implied reservation of rights. The fact that the plaintiff might not have intended to release the defendant, or did not realise the legal consequence of a release to one joint debtor, is not of itself of any particular significance.

93 In approaching the task of construction, the courts recognise the harsh operation of the common law rule, and if any intention to reserve rights against codebtors, express or implied, is found in the terms of settlement, it is likely to be construed as a promise not to sue rather than a release.[64] For these purposes, a promise not to enforce a judgment is to be equated with a promise not to sue.[65]

94 In the present case, of course, there is no document or other evidence reflecting the terms of settlement. Rather than construing any such terms, therefore, the Court is interpreting the admissions made as to the terms. The Court is therefore deprived of any information as to the existence of any other terms or the context in which the terms appeared within the overall agreement. For example, nothing is known as to the relative order of the terms in any document or conversation. However, the Court is not entirely confined to the pleadings.[66] The evidence discloses some matters of context relevant to the task of construction.

95 In particular, the parties are to be taken to have been aware of the background to the 2016 settlement, including the making of the loans, the commencement of the 2012 recovery proceeding, its settlement in 2013 and the pending litigation concerning the effect of that settlement.

96 In our opinion, the terms of the admitted release, referring as it did to 'further claims', indicated that it was about something other than the judgment debt. Having agreed not to enforce the debt, there would be no point also releasing Frank Dounias from payment of that debt. Conversely, if the judgment debt were to be released, there would be no point agreeing not to enforce it. Read in the context of the protracted disputes between the parties, it was clear that claims other than in respect of the judgment debt might have been thought to be outstanding or still potentially to arise in the course of the pending litigation (for example, in respect of costs). This context offers an explanation for the use of the term 'further' to describe the claims the subject of release. While the Court cannot assume that the terms were agreed in any particular order, the language of 'further' release indicates that the release was predicated on what had been achieved by other terms, including the promise not to enforce the judgment debt.

97 We would therefore uphold the applicant's argument that the admitted terms of settlement did not constitute a release of its claims as against the present respondents in respect of the judgment debt. But we would also have upheld the argument that the onus of proof in this instance rested on the respondents. It was not necessary for the applicant to rebut any presumption arising from the presence of express words of release. As explained above, the question was one of construction of the whole of the terms, read in context in accordance with ordinary rules of construction of contracts. On the view we take of the proper construction of those terms, the respondents failed to discharge the onus that lay on them, as plaintiffs, to establish their case.

98 In the circumstances, no assistance is to be derived from application of the rule in Jones v Dunkel. In any event, the terms of settlement and the circumstances of their agreement were matters within the potential knowledge of both sides to the litigation: the applicant as a party to the settlement and the respondents through their familial relationship with Frank Dounias. Although Mr Dounias was separately represented, he filed an affidavit regarding the settlement (which was not put into evidence) and there is no reason to suppose that he could not have assisted the respondents with relevant evidence.

99 The application for leave to appeal should be granted and the appeal allowed. In place of the judgment entered in favour of the respondents, there should be judgment for the applicant.

[1] Nothing turns on the discrepancy in the figures.

[2] Described in detail in Konstandellos v Harplex Pty Ltd [2017] VSC 183 [37]-[38] ('Reasons').

[3] The fourth respondent took no part in the application for leave to appeal.

[4] A number of related issues were heard and determined at trial but are not relevant for present purposes; see Reasons [120]-[129] (whether the agreement contended for by the judgment debtors would have been enforceable) and [130]-[137] (whether Harplex engaged in misleading and deceptive conduct).

[8] [1924] HCA 28; (1924) 35 CLR 48 ('Walker').

[9] [2011] VSC 297 ('Associated Retailers').

[10] [2011] VSC 297 [183].

[12] (1996) 22 ACSR 164 ('Dorgal Holdings').

[13] [2002] FCAFC 55 ('Pollak').

[14] [2011] VSC 297 [185] (citation omitted), quoted in Reasons [138].

[15] (1999) 76 SASR 38 ('Murray-Oates').

[16] Reasons [145], quoting Murray-Oates (1999) 76 SASR 38, 54 [88].

[17] Ibid [144], quoting Thomson Reuters, Modern Contract of Guarantee at January 2017 [8.300].

[21] Walker [1924] HCA 28; (1924) 35 CLR 48, 55, quoting Kendall v Hamilton (1879) 4 App Cas 504, 515-6.

[22] Walker [1924] HCA 28; (1924) 35 CLR 48, 56.

[23] Ibid 57, quoting Ward v National Bank of New Zealand Ltd (1883) 8 App Cas 755, 764.

[25] (1996) 22 ACSR 164, 167.

[26] [2002] FCAFC 55 [14].

[27] [1996] HCA 38; (1996) 186 CLR 574 ('Thompson').

[28] Thompson [1996] HCA 38; (1996) 186 CLR 574, 581, quoting Duck v Mayeu [1892] 2 QB 511, 513.

[29] Ibid 584 (citation omitted); see also 611, 613-14 (Gummow J).

[30] [1985] HCA 12; (1985) 155 CLR 448, 459-60 (Gibbs CJ), 466 (Brennan J).

[31] [2014] NSWCA 160; (2014) 87 NSWLR 159, 170 [61] ('Lavin').

[32] Thompson [1996] HCA 38; (1996) 186 CLR 574, 604 (Gummow J), citing Walter HE ]aeger (ed), Williston on Contracts (3rd ed, 1959) vol 2, 328 and Glanville Williams, Joint Torts and Contributory Negligence (Stevens, 1951) 10, 591 (Gaudron J). See also Blyth v Fladgate [1891] 1 Ch 337, 353.

[33] Thompson [1996] HCA 38; (1996) 186 CLR 574, 609.

[34] [1993] Ch 151, 170 (emphasis in original) ('Deanplan').

[35] Dorgal Holdings (1996) 22 ACSR 164, 167.

[36] Victoria, Parliamentary Debates, Legislative Council, 5 June 1985, 67 (J H Kennan, Attorney-General).

[37] Re Kitt [2005] FCA 1564 [13] ('Kitt'); Re A Debtor [1913] 3 KB 11, 13-14.

[38] Re EWA, A Debtor [1901] 2 KB 642, 648; see also Deanplan [1993] Ch 151, 170; Murray-Oates (1999) 76 SASR 38, 52 [82]. The respondents referred to Kitt [2005] FCA 1564 [13] as suggesting that if the underlying debt was joint and several then the judgment would also be joint and several.

[39] Kitt [2005] FCA 1564 [13]; Re EWA, A Debtor [1901] 2 KB 642, 648, quoted at [82] below; R_e A Debtor_ [1913] 3 KB 11, 14.

[40] [2011] VSC 297 [183].

[41] It may be observed that the decision is silent as to the possibility of statutory alteration of the common law rule and it appears that the issue was not argued in that case.

[42] This conclusion was stated, in passing, in Dr Martens Australia Pty Ltd v Raben Footwear Pty Ltd [2000] FCA 1122 [31].

[43] [1986] HCA 33; (1986) 162 CLR 1, 7-8.

[44] See also Vlahos Pty Ltd v Vlahos [2017] VSCA 166 [49]-[51].

[45] The argument that s 24AA affected only joint and not joint and several liability is rejected at [54]-[60] above.

[46] [1996] VicRp 44; [1996] 1 VR 594, 608-9.

[47] See Thompson [1996] HCA 38; (1996) 186 CLR 574, 583 (Brennan CJ, Dawson and Toohey JJ), quoting Wah Tat Bank Ltd v Chan [1975] AC 507, 517.

[48] King v Hoare [1844] EngR 1042; (1844) 13 M & W 494, 504; [1844] EngR 1042; (1844) 153 ER 206, 210, cited in R_yan v Davies Brothers Ltd_ [1921] HCA 53; (1921) 29 CLR 527, 533 ('Ryan'). See also Chamberlain v Deputy Federal Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502, 508 (Deane, Toohey and Gaudron JJ), 512 (Dawson J); Corney v Brien [1951] HCA 31; (1951) 84 CLR 343, 353 (Fullagar J); Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46; [2014] AC 160, 180.

[49] [1921] HCA 53; (1921) 29 CLR 527, 533; cf Kitt [2005] FCA 1564 [13]. The respondents also relied on Re A Debtor [1913] 3 KB 11, 13-14.

[50] XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448, 455-6 (Gibbs CJ); Thompson [1996] HCA 38; (1996) 186 CLR 574, 581-5 (Brennan CJ, Dawson and Toohey JJ).

[51] Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2015] 2 All ER (Comm) 747, 766 [56], quoting Watts v Aldington [1999] L & TR 578, 595 (Steyn LJ); Lavin [2014] NSWCA 160; (2014) 87 NSWLR 159, 171 [62].

[52] Walker [1924] HCA 28; (1924) 35 CLR 48, 54 (Isaacs ACJ), quoting King v Hoare [1844] EngR 1042; (1844) 13 M & W 494, 504; [1844] EngR 1042; 153 ER 206, 210 (Parke B).

[53] [1921] HCA 53; (1921) 29 CLR 527.

[54] Re A Debtor [1913] 3 KB 11, 13-14.

[55] Kitt [2005] FCA 1564 [13].

[56] [1901] 2 KB 642, 648.

[57] As to whether this Court should determine all issues raised by way of appeal, whether or not that is necessary in order to dispose of the appeal, see Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260, 300-1 [105]; Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1, 6 [12]; Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (rcvrs and mgrs apptd) [2011] HCA 18; (2011) 244 CLR 1, 20 [56].

[58] [2014] NSWCA 160; (2014) 87 NSWLR 159, 171 [62].

[59] Thompson [1996] HCA 38; (1996) 186 CLR 574, 581-2 (Brennan CJ, Dawson and Toohey JJ).

[60] [1959] HCA 8; (1959) 101 CLR 298, 320.

[61] Pollak [2002] FCAFC 55 [15], quoting Deanplan [1993] Ch 151, 170.

[62] Glanville Williams, Joint Obligations (Butterworths, 1949), 112-3.

[63] (1999) 76 SASR 38, 54 [88] (citation omitted), quoted in Pollak [2002] FCAFC 55 [16]; see also Associated Retailers [2011] VSC 297 [185].

[64] James v Surf Road Nominees Pty Ltd [2004] NSWCA 475 [43]; Associated Retailers [2011] VSC 297 [185]; Thompson [1996] HCA 38; (1996) 186 CLR 574, 582 (Brennan CJ, Dawson and Toohey JJ).

[65] Pollak [2002] FCAFC 55 [24].

[66] The plaintiffs at trial did not seek judgment on the admissions under r 35.04 of the Rules.