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 2001PARTIES :
Peter Bazos and Susan Bazos - Appellants
Fredreick Spencer Howe Doman, Alastair Doman, T A Doman & Co Pty Limited, Margaret Campbell (t/as Yadlamalka Properties) - RespondentsJUDGMENT 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 - RespondentsSOLICITORS: Bowen & Gerathy - Appellants
Craddock Murray Newman - RespondentsCATCHWORDS: 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 1970CASES 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 APPEALCA 40160/00
DC 601/98
Thursday, 4 October 2001
PRIESTLEY JA
BEAZLEY JA
STEIN JA
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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Details
- 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.
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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