Bakewell v Anchorage Capital Master Offshore Ltd

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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 basis
Legislation 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 63
Cases 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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Details
Case
[2019] NSWCA 199
Decision Date

CaseChat Overview and Summary

The appeal concerned an application to amend proceedings and join a party in litigation between Bakewell and Anchorage Capital Master Offshore Ltd. The primary dispute revolved around whether certain claims assigned by the plaintiffs were valid, and whether this assignment rendered the entire proceedings unarguable. The Court of Appeal of New South Wales was tasked with determining the merits of this application.

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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