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 unsuccessfulLegislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Judicature Act 1873
Supreme Court Act 1970Cases 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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- Case
- [2011] NSWCA 397
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
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