The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal on the construction of a bank guarantee contract. The appellant is the guarantor of a building company that tendered for a building contract from the respondent housing corporation. As part of that contract, the appellant provided security in the form of a bank guarantee contract, authorising the transfer of approximately $140,000 to the respondent if requested by the respondent. The contract was prepared with multiple errors, including mistakes in the name of the respondent corporation and its ABN, causing the bank to refuse to pay the amount when the respondent made the request. The NSWCA held that while the principle of strict compliance with the terms of the contract was a requirement of performance rather than construction, the principle of autonomy (that letters of credit and guarantees should be construed independently from the underlying agreements that lead to their creation) must form part of the process of construction. The Continue reading →

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on sentencing guidelines and ‘manifestly excessive’ sentences. The respondent pleaded guilty to intentionally causing serious injury after he doused his partner in petrol and set her alight. The offence carried a maximum penalty of 20 years, and the sentencing judge sentenced the respondent to 15 years imprisonment. The VSCA held that the sentence significantly exceeded those previously given for convictions that involved more horrific assaults and where defendants did not show remorse, were young, or made an early guilty plea (as had all occurred here), and reduced it to 10 years and 10 months imprisonment. Appealing the VSCA decision to the High Court, the Crown contended that the original sentence cannot be manifestly excessive if it falls into the ‘worst case’ category for the offending, and that the VSCA erred in its approach to evaluating ‘current sentencing practices’ as applied by the sentencing judge.

The Court (Bell, Gageler, Keane, Nettle and Gordon JJ) unanimously allowed the Crown’s appeal, holding that the Court of Appeal erred in its approach to ‘current sentencing practices’ when it held that the differences between the sentencing judge’s conclusions and those in other cases warranted the conclusion that the sentencing judge imposed a manifestly excessive sentence.

The Court first held that the VSCA erred in describing the offence as falling within the ‘worst category’ of cases of intentionally causing serious injury. Given that the ‘worst category’ means an instance of an offence which warrants the Continue reading →