C G Maloney Pty Ltd v Noon

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.