Bazos v Doman

Case [2001] NSWCA 347


CITATION: Bazos and Anor v Doman and Ors [2001] NSWCA 347
FILE NUMBER(S): CA 40160/00
HEARING DATE(S): 1 August 2001
JUDGMENT DATE:
4 October 2001

PARTIES :


Peter Bazos and Susan Bazos - Appellants
Fredreick Spencer Howe Doman, Alastair Doman, T A Doman & Co Pty Limited, Margaret Campbell (t/as Yadlamalka Properties) - Respondents
JUDGMENT OF: Priestley JA at 1; Beazley JA at 2; Stein JA at 3
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) :
DC 601/98
LOWER COURT
JUDICIAL OFFICER :
Bowden ADCJ
COUNSEL: M R Gracie - Appellants
A S Martin SC - Respondents
SOLICITORS: Bowen & Gerathy - Appellants
Craddock Murray Newman - Respondents
CATCHWORDS: PROPERTY LAW - commercial lease - non-payment of rent - guarantors - rehearing of arbitration - whether final order or judgment entered - s49(1) District Court Act - Anshun estoppel - D
LEGISLATION CITED: District Court Act 1973
Local Courts (Civil Claims) Act 1970
CASES CITED:
Boles v Esanda Finance Corporation (1989) 18 NSWLR 666
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287
Gibbs v Kinna [1999] 2 VR 19
Jelson (Estates) Ltd v Harvey [1983] 1 WLR 1401
Ling v Commonwealth (1996) 139 ALR 159
Macquarie Bank Ltd v National Mutual Life Association (1996) 40 NSWLR 543
Onerati v Phillips Constructions Pty Ltd (1989) 16 NSWLR 730
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Rahme v Commonwealth Bank of Australia (Unreported, NSWCA 20 December 1991)
Securum Finance Ltd v Ashton [2001] Ch 291
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 108 ALR 335
Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 (PC)
DECISION: Appeal dismissed with costs


    IN THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL
    CA 40160/00

                    DC 601/98


    PRIESTLEY JA
    BEAZLEY JA
    STEIN JA

    Thursday, 4 October 2001
    Peter BAZOS and Anor v Frederick Spencer Howe DOMAN and Ors

    The appellants were the guarantors for rental payments under a lease entered into by their company with the respondents. The rental was not paid for a number of months prior to the company going into liquidation. Three sets of proceedings were commenced in the Local Court, being for the balance of rental payments due for 3 months plus interest, the water rates and land tax, and for the council rates. A further Statement of Claim was filed in the District Court seeking unpaid rental for a period of just under two years and interest. The Local Court proceedings for the rates and land tax were discontinued, and the remaining Local Court matter for unpaid rent submitted to arbitration. An award was made by the arbitrator in the sum of $40,000 for the respondents and a re-hearing was sought by the appellants. However, the parties settled on the day of the re-hearing. The settlement included a term by which the appellants had liberty to have the award of the arbitrator reinstated. They neither paid the settlement amount nor…

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AGLC
Bazos v Doman [2001] NSWCA 347
Case
[2001] NSWCA 347
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute arising from a commercial lease and a guarantee. The primary issue before the District Court of New South Wales was whether a prior arbitration award constituted a final order or judgment for the purposes of section 49(1) of the *District Court Act 1972* (NSW). The appellants, Bazos and others, sought to rely on this provision to prevent the respondent, Doman, from pursuing further proceedings.

The court was required to determine whether the arbitration award, which had been entered as a judgment in the District Court, was a final determination of the parties' rights and obligations concerning the lease and the guarantee. This involved considering the principles of *Anshun* estoppel, which prevents parties from raising in subsequent proceedings claims or defences that could and should have been litigated in earlier proceedings.

The court reasoned that the arbitration had resolved the dispute between the parties regarding the non-payment of rent and the liability of the guarantors. The entry of the arbitration award as a judgment in the District Court meant that the matter had been finally determined. Consequently, the appellants were estopped from raising further arguments or defences in the District Court that they could have, and should have, raised in the arbitration. The court applied the principles of *Anshun* estoppel to prevent relitigation of issues that had already been decided.

The appeal was dismissed, and the appellants were ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed 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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