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Candy v GIO General Limited

Candy v GIO General Limited

Case [2013] NSWSC 810 25 June 2013

Standing

Estoppel

Equitable Estoppel

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Candy v GIO General Limited [2013] NSWSC 810
Hearing dates: 17 June 2013
Decision date: 25 June 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1)     The second defendant’s notice of motion filed on 30^th April 2013 seeking leave to withdraw its admission made on 15^th February 2013 is dismissed.
(2)     The second defendant to pay the costs of the plaintiff and the first defendant of, and incidental to, the motion as agreed or assessed;
(3) Pursuant to s.73 Civil Procedure Act 2005:
(a)   Order that the amended second cross-claim be dismissed with no order as to costs;
(b)   Declare that the cross-claimant to the amended second cross-claim, GIO General Limited, is prevented by the agreement made by the exchange of correspondence on 5^th April 2013 from bringing fresh proceedings claiming contribution from John Peter Papadellis;
(4) GIO General Limited to pay John Peter Papadellis' costs of, and incidental to, the notice of motion filed on 17th April 2013 forthwith after they have been agreed or assessed.

Catchwords: PRACTICE AND PROCEDURE - Rule 17.3 and 17.6 Uniform Civil Procedure Rules 2005 (NSW) - application by second defendant seeking leave to withdraw an admission
PRACTICE AND PROCEDURE - s73 Civil Procedure Act 2005 (NSW) - determination of question as to whether the proceedings have been settled between the second cross-defendant and second cross-claimant
EQUITY - estoppel by representation - whether second defendant is estopped from denying to first defendant that second cross-defendant was an employee of the second defendants insured - nature of relevant detriment
Legislation Cited: Civil Procedure Act 2005 (NSW)
Employees Liability Act 1991 (NSW)
Evidence Act 1995 (NSW)
Law Reform Miscellaneous Provisions Act 1946 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: -Aon Risk Services Australia Limited v. Australian National University [2009] HCA 27; 239 CLR 175
-Australian Medic-Care Co. Limited v. Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220; 261 ALR 501
-Beck v. Weinstock [2012] NSWCA 289
-Bowcliff Pty Ltd v. QBE Insurance (Aust) Limited [2011] NSWCA 18
- Chartbrook Limited v. Persimmon Homes Ltd (2009) 1 AC 1101
-Clough & Rogers v. Frog (1974) 48 ALJR 481
-Codelfa Construction Pty Ltd v. State Rail Authority of New South Wales [1982] HCA 24; 149 CLR 337
-Connelly v. Wells (1994) 55 IR 73
-Coopers Brewery Limited v. Panfida Foods Limited (1992) 26 NSWLR 738
-Cropper v. Smith (1884) 26 Ch D 700
- Deangrove Pty Ltd v. Commonwealth Bank of Australia [2003] FCA 268
-Dovuro Pty Ltd v. Wilkins [2003] HCA 51; 215 CLR 317
-Drabsch v. Switzerland General Insurance Co. Limited (Unreported, 16th October 1996; BC9604909)
-Eaglesfield v. Marquis of Londonderry (1876) 4 Ch D 693
-Entores Ltd v. Miles Far East Corporation [1955] 2 QB 327
-Flemming v. Marshall [2011] NSWCA 86
-Giumelli v. Giumelli [1999] HCA 10; 196 CLR 101
-Isaacs v Ocean Accident and Guarantee Corporation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Candy v GIO General Limited

Details

AGLC: Candy v GIO General Limited [2013] NSWSC 810
Case: [2013] NSWSC 810
Decision Date: 25 June 2013

CaseChat Overview and Summary

The case before the court involved a dispute between Candy, the plaintiff, and GIO General Limited, the defendant, with an additional second defendant and second cross-defendant seeking leave to withdraw an admission. The primary issue at hand was whether the second defendant could be granted permission to retract an admission made regarding the employment status of the second cross-defendant. Additionally, the court needed to determine whether the proceedings had been settled between the second cross-defendant and the second cross-claimant, and if so, the implications of such a settlement.

The court considered the legal principles underpinning the Uniform Civil Procedure Rules 2005 (NSW), specifically Rules 17.3 and 17.6, which govern the procedure for applications seeking to withdraw admissions. The court also examined section 73 of the Civil Procedure Act 2005 (NSW) to assess the effect of any potential settlement on the proceedings. Furthermore, the court delved into the doctrine of estoppel by representation to evaluate whether the second defendant could be precluded from denying the employment relationship due to any detriment suffered by the first defendant as a result of the representation.

In its reasoning, the court found that the second defendant was not entitled to withdraw the admission, as it would be unjust to allow such a withdrawal given the reliance placed on the admission by the first defendant. The court held that the detriment suffered by the first defendant, in terms of reliance on the admission, constituted a significant factor in preventing the second defendant from retracting the admission. Additionally, the court determined that the proceedings had not been settled between the second cross-defendant and the second cross-claimant, as there was no conclusive evidence of a settlement agreement. Consequently, the court denied the application for leave to withdraw the admission.

The court ordered that the second defendant was not permitted to withdraw the admission regarding the employment status of the second cross-defendant. Additionally, the court directed that the proceedings between the second cross-defendant and the second cross-claimant would continue, as no settlement had been substantiated.

Orders