Carr and Purves v Thomas [2009] NSWCA 208

Carr and Purves v Thomas [2009] NSWCA 208

The Settlement Deed, properly construed, was a covenant not to sue and not a release. As such, the respondent's underlying liability to REL (if established) was not extinguished. Therefore, provided coordinate liability exists, the appellants are entitled to claim equitable contribution from the respondent, and the trial judge erred in striking out the cross-claims.

Jurisdiction
Australia
Judgment Date
23 July 2009
Procedural Posture
Appeal / Judgment on Appeal From Summary Dismissal of Cross Claim
Outcome
Appeal allowed; orders below set aside; notice of motion for summary dismissal dismissed; respondent to pay costs; leave to appeal granted; directions for appellants to file notice of appeal and pay filing fee.
Legal Topics
['deed' 'release' 'covenant Not to Sue' 'co Ordinate Liability' 'equitable Contribution']
['equity'] ['deed' 'release' 'covenant Not to Sue' 'co Ordinate Liability' 'equitable Contribution']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Summary Dismissal of Cross Claim

Legal Issues

  1. 1 ['Whether the Settlement Deed was a covenant not to sue or a release extinguishing liability.' 'Whether, if the Settlement Deed was a covenant not to sue, it abrogated coordinate liability to REL and the right to equitable contribution.']

Ratio Decidendi

The Settlement Deed, properly construed, was a covenant not to sue and not a release. As such, the respondent's underlying liability to REL (if established) was not extinguished. Therefore, provided coordinate liability exists, the appellants are entitled to claim equitable contribution from the respondent, and the trial judge erred in striking out the cross-claims.

Court Disposition

Appeal allowed; orders below set aside; notice of motion for summary dismissal dismissed; respondent to pay costs; leave to appeal granted; directions for appellants to file notice of appeal and pay filing fee.

Orders

  • ['Grant leave to appeal' 'Appeal allowed' 'Set aside the orders made by the trial judge' 'Notice of motion for summary dismissal of the cross-claim dismissed' "Order the respondent to pay the appellants' costs at first instance and on appeal, subject to Suitors' Fund Act certificate if otherwise entitled" 'Direct...