Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Bakewell v Anchorage Capital Master Offshore Ltd [2019] NSWCA 199 Hearing dates: 8 August 2019 Date of orders: 14 August 2019 Decision date: 14 August 2019 Before: Bell P at [1];
Macfarlan JA at [78];
White JA at [79]Decision: Refusal of leave to appeal with costs
Catchwords: CIVIL PROCEDURE – amendment and joinder application – said to be unarguable because certain claims assigned and said to be invalid – where not all claims by all plaintiffs were assigned claims – where proceedings against defendant would continue in any event – importance of principle in Wickstead v Browne – where area of law and public policy underpinnings of principle sought to be invoked fluid – not appropriate to be determined on a summary basis
PERSONAL PROPERTY – assignment of choses in action – prohibition on assignment of bare chose in action – nature of principle stated in Trendtex Trading Corporation v Credit Suisse [1982] AC 679 and adopted in Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 – whether test of what rights are to be regarded as incidental to property rights has been modified
PERSONAL PROPERTY – public policy against assignment of bare chose in action – underlying basis of public policy – maintenance and champerty – whether public policy fluid – where underlying public policy justification for principle capable of being challenged – inappropriate to be dealt with on a summary basisLegislation Cited: Australian Securities and Investments Commission Act 2001 (Cth)
Civil Procedure Act 2005 (NSW), s 56
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law
Corporations Act 2001 (Cth)
Supreme Court Act 1970 (NSW), s 63Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; 367 ALR 146
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Campbells Cash & Carry Pty Ltd v Fostif Pty Limited (2006) 229 CLR 386; [2006] HCA 41
Dover v Lewkovitz [2013] NSWCA 452
Ellis v Torrington [1920] 1 KB 399
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241; [1997] HCA 8
First City Corporation v Downsview Nominees Ltd [1989] 3 NZLR 710
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69
Glegg v Bromley [1912] 3 KB 474
Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496; [2004] FCA 698
Poulton v The Commonwealth (1953) 89 CLR 540; [1953] HCA 101
PPK Willoughby v Baird [2019] NSWCA 48
Regina (Factortame Ltd and others) v Secretary of State for Transport, Local Government and the Regions (No 8) [2003] QB 381
Spencer v The Commonwealth (2010) 241 CLR 118; [2010]…
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- Case
- [2019] NSWCA 199
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were twofold. Firstly, it had to consider the principle prohibiting the assignment of a bare chose in action, as established in cases like *Trendtex Trading Corporation v Credit Suisse* and adopted in Australia by *Equuscorp Pty Ltd v Haxton*. This involved examining whether the test for determining rights incidental to property rights had been modified. Secondly, the court was required to assess the public policy underpinnings of this prohibition, specifically concerning maintenance and champerty, and whether these justifications were sufficiently fluid to warrant a summary determination.
The court reasoned that the application to amend and join was not unarguable. It noted that not all claims by all plaintiffs were assigned claims, and that proceedings against the defendant would continue regardless of the status of the assigned claims. The court also highlighted the importance of the principle articulated in *Wickstead v Browne*, and found that the area of law and the public policy justifications for the principle sought to be invoked were fluid. Consequently, the court concluded that it was not appropriate to determine these complex issues on a summary basis.
Leave to appeal was refused, with costs awarded to the respondent.
Orders
Orders of the court
Refusal of leave to appeal with costs
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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