C G Maloney Pty Ltd v Noon

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Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: C G Maloney Pty Ltd v Noon [2011] NSWCA 397
Hearing dates:15 November 2011
Decision date: 15 December 2011
Before: Campbell JA at [1]
Handley AJA at [127]
Tobias AJA at [169]
Decision:

(1) Grant leave to appeal against the order for costs in the court below, if such leave is necessary.

(2) Appeal dismissed.

(3) Appellant to pay costs of the Respondents of the appeal on an indemnity basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ESTOPPEL - Anshun estoppel - whether matter sought to be relied upon was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it

ESTOPPEL - Anshun estoppel - evidence admissible regarding Anshun estoppel - any facts that bear upon reasonableness of manner in which litigation conducted are relevant - written submissions in earlier proceedings can be admitted

ESTOPPEL - Anshun estoppel - standard of appellate review - standard is that of Warren v Coombes (1979) 142 CLR 531, not House v The King (1936) 55 CLR 499

APPEAL - when desirable for intermediate appeal court to decide issue beyond those that are sufficient for determination of a particular appeal - whether consequences are detrimental for administration of justice - Kuru v State of New South Wales (2008) 236 CLR 1

COSTS - indemnity costs - factors to be taken into account in discretionary decision - whether case weak - whether Anshun estoppel - whether plaintiff forewarned that indemnity costs would be sought

COSTS - indemnity costs - appeal - whether leave to appeal against costs order required if appeal against substantive orders unsuccessful
Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Judicature Act 1873
Supreme Court Act 1970
Cases Cited: Aldi Stores Ltd v WSP Group Plc [2007] EWCA Civ 1260; [2008] 1 WLR 748
Aon Risk Services Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Arena Management Pty Ltd (recs & apptd) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128; (2011) 281 ALR 304; (2011) 84 ACSR 33
Beswick v Beswick [1968] AC 58
Bondi Beach Astra Retirement Village Pty Ltd v Noon [2009] NSWSC 461
C G Maloney Pty Ltd v Noon [2011] NSWSC 242
C G Maloney Pty Ltd v Noon [2011] NSWSC 256
Certain Lloyds Underwriters v Kathy Giannopoulos [2009] NSWCA 56
Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245
Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Commonwealth v Bank of New South Wales…
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Details
Case
[2011] NSWCA 397
Decision Date

CaseChat Overview and Summary

In *C G Maloney Pty Ltd v Noon*, the New South Wales Court of Appeal considered an appeal by C G Maloney Pty Ltd (CGM) against a costs judgment delivered by Rein J. CGM sought to appeal against the primary judge's decision on three grounds, including the application of *Anshun* estoppel, and also contested the order that it pay the respondents' costs on an indemnity basis. The respondents, by way of a Notice of Contention, challenged the primary judge's rejection of their submission that CGM lacked standing to bring the original proceedings.

The primary legal issues before the Court of Appeal included whether the doctrine of *Anshun* estoppel applied to preclude CGM from raising certain matters in the second proceeding, the scope of admissible evidence when considering *Anshun* estoppel, and the appropriate standard of appellate review for such determinations. Additionally, the court was required to consider the factors relevant to an indemnity costs order and whether leave to appeal against that order was necessary.

The Court of Appeal applied the test for *Anshun* estoppel as articulated in *Port of Melbourne Authority v Anshun Pty Ltd*, which requires the matter sought to be relied upon in the second action to have been so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. The court noted that determining this involved a value judgment regarding the proper conduct of litigation. Regarding the admissibility of evidence, the court considered whether written submissions from earlier proceedings could be admitted when assessing *Anshun* estoppel, referencing observations made in *Champerslife Pty Ltd v Manojlovski*. The standard of appellate review for findings on *Anshun* estoppel was confirmed to be that of *Warren v Coombes*, not *House v The King*.

The appeal was dismissed. Leave to appeal against the order for costs in the court below was granted, if necessary. CGM was ordered to pay the costs of the respondents of the appeal on an indemnity basis.

Orders

Orders of the court

(1) Grant leave to appeal against the order for costs in the court below, if such leave is necessary.

(2) Appeal dismissed.

(3) Appellant to pay costs of the Respondents of the appeal on an indemnity basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 30 March 2011 Rein J delivered a judgment and made orders concerning the costs of the 2010 Proceedings: C G Maloney Pty Ltd v Noon[2011] NSWSC 256 (" the Costs Judgment "). He held that CGM should pay the costs of the Respondents on an indemnity basis, and so ordered. In the present appeal, Mr B Coles QC appears with Mr B DeBuse for CGM. Dr AS Bell SC appears for the Respondents. In the appeal CGM contests each of the three bases upon which it failed in the court below, and also the ordering of indemnity costs. In the court below, the Respondents argued that by reason of the deed that purported to effect an assignment of CGM's rights (para [23] above) CGM did not have standing to bring the proceedings. Rein J rejected that submission of the Respondents. By a Notice of Contention, the Respondents have challenged that aspect of the primary judge's decision. It is convenient to deal first with the Anshun estoppel point. In Henderson v Henderson(1843) 3 Hare 100 at 115; 67 ER 313 at 319 Sir James Wigram VC said: In Port of Melbourne Authority v Anshun Pty Ltd(1981) 147 CLR 589 at 598, Gibbs CJ, Mason and Aickin JJ approved that statement of principle. At 602, their Honours rejected, as going too far, the statement of Lord Kilbrandon in Yat Tung Investment Co Ltd v Dou Heng Bank Ltd[1975] AC 581 at 590 that it was "an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in the earlier proceedings" . It was wrong because in that context "could" did not entail "should" . Their Honours also, at that page, said that it was "not of great utility" to ask whether "the issue in question was so clearly part of the subject matter of the initial litigation and so clearly could have been raised that it would be an abuse of process to allow a new proceeding." The test that their Honours laid down, at 602, was that this type of estoppel would not arise unless the matter sought to be relied upon in the second action "was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it." As Allsop P pointed out in Champerslife Pty Ltd v Manojlovski[2010] NSWCA 33; (2010) 75 NSWLR 245 at [3], deciding whether the matter in question was so relevant that it can be said to have been unreasonable not to rely upon it in the first proceeding involves "a value judgment to be made referable to the proper conduct of modern ligation" . A separate ground of appeal relating to Anshunestoppel is: As the scope of the evidence that can legitimately be relied upon in answering a particular question must be decided before the question itself is embarked on, I will deal with that ground of appeal first. The basis of that ground of appeal is that in ChamperslifeHandley JA said, at [107]: " The relevant evidence is restricted to the pleadings in both proceedings and the reasons for judgment in the earlier . " CGM says that by reason of that sentence it was not open to the judge to admit the written submissions in the court below.

Ratio Decidendi

Legal Principle Established

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