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Barber v De Prima

Barber v De Prima

Case [2018] NSWSC 601 7 May 2018

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Barber v De Prima [2018] NSWSC 601
Hearing dates: 20 - 21 March 2018
Decision date: 07 May 2018
Jurisdiction: Equity
Before: Robb J
Decision:
See 245 and 272-273

Catchwords:
EQUITY — Contribution — Co-ordinate liability — Between co-sureties — whether the plaintiff is entitled to contribution from the first defendant

EQUITY — Subrogation — Rights of subrogated party — co-guarantor paid more than their share of liability — plaintiff entitled to contribution from first defendant

EQUITY — Assignment — Of causes of action — whether the cause of action was capable of assignment — whether there was a valid assignment to the plaintiff of rights of contribution and subrogation as between co-guarantors — whether the plaintiff as assignee had standing — whether the assignment was limited to the rights attached to the deed of assignment

EQUITY — Subrogation and Contribution — Limitation of Actions — whether rights of contribution and subrogation were statute-barred by direct application of statutory limitation provisions or in equity by analogy

EQUITY — Subrogation — Requirements — equitable doctrine of subrogation — statutory subrogation — right of co-sureties to subrogation in equity — right of co-sureties to statutory subrogation
EQUITY — Defences — Laches and acquiescence — Discretionary factors — whether laches available — laches not available
Legislation Cited: Limitation Act 1969 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Usury, Bills of Lading and Written Memorandum Act 1902 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Corporations Act 2001 (Cth)
Cases Cited: Lang v Le Boursicot (1993) 5 BPR 97,406
Parker v Alessi [2011] NSWSC 947
Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Lavin v Toppi (2015) 254 CLR 459; [2015] HCA 4
Barker v The Duke Group Limited (in liq) (2005) 91 SASR 167
Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342; [1969] HCA 55
Dering v Earl of Winchelsea (1787) 1 Cox Eq 318; 29 ER 1184
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5
Davies v Evan Humphreys (1840) 6 M & W 153; 151 ER 361
Craythorne v Swinburne (1870) 14 Ves 160; 33 ER 482
Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181
Barker v The Duke Group Limited (in liq) (2005) 91 SASR 167; [2005] SASC 81
The Duke Group Ltd (in liq) v Alamain Investments Ltd [2004] SASC 415
Copis v Middleton (1823) Turn & R 224; 37 ER 1083
Wolmershausen v Gullick [1893] 2 Ch 514
Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44
Embling v McEwan (1872) 3 VR (L) 52
Hardy v Johnston (1880) 6 VLR (L) 190
Cochrane v Cochrane (1985) 3 NSWLR 403
Ghana Commercial Bank v Chandiram [1960] AC 732
Batchellor v Lawrence (1861) 9 CB (NS) 543; 142 ER 214
Rossfreight Holdings Pty Ltd v Unipep Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barber v De Prima

Details

AGLC: Barber v De Prima [2018] NSWSC 601
Case: [2018] NSWSC 601
Decision Date: 07 May 2018

CaseChat Overview and Summary

The case of Barber v De Prima involved a dispute between the plaintiff, Barber, and the first defendant, De Prima. The plaintiff sought contribution from the first defendant in relation to a debt owed by a third party. The case was heard in the Supreme Court of New South Wales. The central issue was whether the plaintiff was entitled to contribution from the first defendant, given that the plaintiff had already paid more than their share of the debt as a co-surety. The court also had to consider whether the plaintiff's rights of subrogation, contribution, and assignment were valid, and whether these rights were statute-barred or affected by laches and acquiescence.

The court examined the equitable doctrine of subrogation and statutory subrogation, considering the rights of co-sureties to subrogation in equity and under statute. The court also assessed the validity of the assignment of rights of contribution and subrogation to the plaintiff and whether the assignment was limited to the rights attached to the deed of assignment. Additionally, the court deliberated on the availability of the defences of laches and acquiescence, and whether these defences were applicable in this case.

The court found that the plaintiff was indeed entitled to contribution from the first defendant as they had paid more than their share of the debt. The court also determined that the assignment of rights of contribution and subrogation to the plaintiff was valid, and that the plaintiff had standing as the assignee. The court ruled that the rights of contribution and subrogation were not statute-barred, and that the defences of laches and acquiescence were not applicable in this case. As a result, the plaintiff was entitled to recover their contribution from the first defendant. The court's final orders mandated that the first defendant pay the plaintiff the amount of the contribution they were entitled to receive.

Orders