Case: Grant v John Grant &amp; Sons Pty Ltd [1954] HCA 23 ; (1954) 91 CLR 112
Outcome: applied
In Grant v John Grant &amp; Sons Pty Ltd [1954] HCA 23 ; (1954) 91 CLR 112 Dixon CJ, Fullagar, Kitto and Taylor JJ accepted that a release expressed in general words will usually be read down by reference to what was in the contemplation of the parties at the time of the execution of the release. Their Honours expressly adopted (at 123 124) the reasoning of Lord Westbury in London &amp; South Western Railway Co v Blackmore (1870) LR 4 HL 610 at 623 that: "The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given". 45 In McCarthy v McIntyre [1999] FCA 784 a Full Court of this Court stated (at [106]): "In Grant v John Grant &amp; Sons Pty Ltd (1954) 91 CLR 123, the joint reasons for judgment (Dixon CJ and Fullagar, Kitto and Taylor JJ) approved two related principles. First, the general words of a release should be restrained by the particular occasion (at 123). Thus, the general words of a release are to be construed by reference to the recitals in the particular deed. Secondly, the general words in a release are limited to those things which were specially in the contemplation of the parties at the time when the release was given (at 123-124)." 47 In Banque Bruxelles Lambert v Australian National Industries Ltd (unreported, New South Wales Court of Appeal, 26 February 1997) the issue was whether a particular costs order was released by the deed in question. The sole point argued on the appeal was whether the principles enunciated in Grant v John Grant applied, so as to exclude the costs order from the release. After an extensive analysis of the surrounding circumstances, Beazley JA (with whom Meagher and Cole JJA agreed) concluded: "In this matter the terms of the instrument quite clearly included a release of the costs order. The surrounding circumstances included negotiations leading up to the final entering into of the Major Creditor's Deed of Release on 22 September 1992. At one stage in those negotiations, as was clearly evidenced by the letter of 17 December 1992, BBL would have liked to have reserved the costs order made by Rogers CJ Comm D at first instance. There is no evidence and indeed the evidence is to the contrary, that ANI ever agreed to that. There is no evidence that BBL between 17 December and the time of the execution of the Deed, did not decide in the interests of the overall commercial settlement, to forego its right to that costs order. In those circumstances I cannot see how the principle in Grant v John Grant &amp; Sons Pty Ltd applies." 50 Having regard to the plain language of the Deed of Release, and the surrounding circumstances, I am of the view that the principles expressed in Grant v John Grant cannot be invoked to exclude any of the Smolles' claims in relation to the Bond from the settlement. 51 It was on this basis that I indicated that I would summarily dismiss the Smolles' claim against the bank, and provide reasons at a later date. However, I made it plain that I would do so solely on the basis of the Deed of Release, and not by reason of any of the other matters upon which Ms Loughnan relied.