Reported Decision: 75 NSWLR 245[2010] ALMD 6449[2010] ALMD 6450
New South Wales
Court of Appeal
CITATION: Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33 HEARING DATE(S): 16 February 2010
JUDGMENT DATE:
16 March 2010JUDGMENT OF: Allsop P at 1; Giles JA at 8; Handley AJA at 92 DECISION: (1) Order nunc pro tunc that it be decided separately from any other question whether the first plaintiff is estopped from bringing the proceedings as alleged in para 4 of the amended defence filed on 18 April 2008; (2) So far as leave be necessary, grant leave to appeal; (3) Direct the filing of a notice of appeal within 7 days; (4) Answer the separate question no; (5) Set aside the orders made by Hughes DCJ on 30 June 2008 as regards the first plaintiff and in lieu thereof order that as regards the first plaintiff the notice of motion filed on 16 May 2008 be dismissed; (6) Respondents pay the appellant’s costs of the application heard by Hughes DCJ and of the application for leave to appeal and the appeal. CATCHWORDS: ESTOPPEL - Anshun estoppel - test is one of reasonableness - whether a matter should, not could, be raised - Anshun estoppel applicable where matter not raised as a defence raised as a cause of action - whether failure to apply for joinder and for matter to be transferred unreasonable - similarily of substance of claim per se not unreasonable. PRIVIES - whether control and ability of a company to litigate means it should have. PRIVIES OF INTEREST - relationship between estopped party and potential claimant - whether Anshun estoppel applicable to privies where director controls company - whether Champerslife claiming under or through another person - in any event that person not Anshun estopped. CASES CITED: Aldi Stores Ltd v WSP Group plc [2008] 1 WLR 748;
Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90;
Belton v Carlow County Council (1997) 1 IR 172;
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287;
Carl Zeiss Stiftung v Rayner & Keller Ltd (No 2) [1967] 1 AC 853;
Clegg v Abel (1898) 14 WN (NSW) 131;
Cordes v Dr Peter Ironside Pty Ltd [2009] QCA 302;
Davis v Hedges (1871) LR 6 QB 687;
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510;
General Steels Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125;
Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510;
Greenhalgh v Mallard [1947] 2 All ER 255;
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313;
House of Spring Gardens Ltd v Waite [1991] 1 QB 241;
Johnson v Gore Wood & Co [2002] 2 AC 1;
Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421;
Ling v Commonwealth of Australia (1996) 68 FCR 180; (1996) 139 ALR 159;
Meriton Apartments Pty…
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Details
- Case
- [2010] NSWCA 33
- Decision Date
CaseChat Overview and Summary
In *Champerslife Pty Ltd v Manojlovski*, the Court of Appeal of New South Wales considered an appeal concerning the application of *Anshun* estoppel. The dispute arose from a prior proceeding where the respondent, Mr. Manojlovski, had sued Champerslife Pty Ltd and its director, Mr. Kordos, for breach of contract. In that earlier action, Champerslife had not filed a defence, and judgment was entered against it. Subsequently, Champerslife commenced new proceedings against Mr. Manojlovski, alleging breaches of contract and seeking damages. Mr. Manojlovski sought to have these new proceedings stayed, arguing that Champerslife was *Anshun* estopped from bringing its claim.
The primary legal issue before the Court of Appeal was whether Champerslife was estopped from bringing its second proceeding against Mr. Manojlovski, given that its current claims could have been raised as defences or counterclaims in the earlier litigation initiated by Mr. Manojlovski. This involved determining whether the substance of Champerslife's current claims was so similar to matters that ought to have been raised in the first proceeding that it would be unreasonable for Champerslife to bring the new action. A further question was whether *Anshun* estoppel could apply to Champerslife, a company, based on the conduct and potential claims of its director, Mr. Kordos, and whether Champerslife was claiming under or through Mr. Kordos.
The Court of Appeal reasoned that the test for *Anshun* estoppel is one of reasonableness, focusing on whether a matter *should* have been raised in earlier proceedings, not merely whether it *could* have been. The court found that the similarity of substance between the claims in the two proceedings was not, per se, unreasonable. Crucially, the court held that the director's control over the company did not automatically mean the company was *Anshun* estopped from bringing its own proceedings. The court also determined that Champerslife was not claiming under or through Mr. Kordos in a way that would make him *Anshun* estopped, and therefore Champerslife was not *Anshun* estopped.
Consequently, the Court of Appeal answered the separate question in the negative, finding that Champerslife was not estopped from bringing its proceedings. The court set aside the orders of the primary judge that had dismissed Champerslife's notice of motion and, in lieu thereof, dismissed the notice of motion. The respondents were ordered to pay the appellant's costs of the application heard by the primary judge and of the application for leave to appeal and the appeal itself.
The primary legal issue before the Court of Appeal was whether Champerslife was estopped from bringing its second proceeding against Mr. Manojlovski, given that its current claims could have been raised as defences or counterclaims in the earlier litigation initiated by Mr. Manojlovski. This involved determining whether the substance of Champerslife's current claims was so similar to matters that ought to have been raised in the first proceeding that it would be unreasonable for Champerslife to bring the new action. A further question was whether *Anshun* estoppel could apply to Champerslife, a company, based on the conduct and potential claims of its director, Mr. Kordos, and whether Champerslife was claiming under or through Mr. Kordos.
The Court of Appeal reasoned that the test for *Anshun* estoppel is one of reasonableness, focusing on whether a matter *should* have been raised in earlier proceedings, not merely whether it *could* have been. The court found that the similarity of substance between the claims in the two proceedings was not, per se, unreasonable. Crucially, the court held that the director's control over the company did not automatically mean the company was *Anshun* estopped from bringing its own proceedings. The court also determined that Champerslife was not claiming under or through Mr. Kordos in a way that would make him *Anshun* estopped, and therefore Champerslife was not *Anshun* estopped.
Consequently, the Court of Appeal answered the separate question in the negative, finding that Champerslife was not estopped from bringing its proceedings. The court set aside the orders of the primary judge that had dismissed Champerslife's notice of motion and, in lieu thereof, dismissed the notice of motion. The respondents were ordered to pay the appellant's costs of the application heard by the primary judge and of the application for leave to appeal and the appeal itself.
Orders
Orders of the court
(1) Order nunc pro tunc that it be decided separately from any other question whether the first plaintiff is estopped from bringing the proceedings as alleged in para 4 of the amended defence filed on 18 April 2008; (2) So far as leave be necessary, grant leave to appeal; (3) Direct the filing of a notice of appeal within 7 days; (4) Answer the separate question no; (5) Set aside the orders made by Hughes DCJ on 30 June 2008 as regards the first plaintiff and in lieu thereof order that as regards the first plaintiff the notice of motion filed on 16 May 2008 be dismissed; (6) Respondents pay the appellant’s costs of the application heard by Hughes DCJ and of the application for leave to appeal and the appeal.
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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