Critchley v Conway - [2009] NSWCA 297

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Critchley & Ors v Conway & Anor [2009] NSWCA 297

FILE NUMBER(S):
40181/09

HEARING DATE(S):
8 September 2009

JUDGMENT DATE:
29 September 2009

PARTIES:
Stephen Critchley (First Appellant)
Mudgee Wines Pty Ltd (Second Appellant)
Eurunderee Wines Pty Ltd (Third Appellant)
William JJames Whalley (Fourth Appellant)
Jane Margaret McLean (Fifth Appellant)
David Conway (First Respondent)
Mark Norman Thompson (Second Respondent)

JUDGMENT OF:
Ipp JA Tobias JA Handley AJA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 6429/08

LOWER COURT JUDICIAL OFFICER:
Debelle AJ

LOWER COURT DATE OF DECISION:
5 June 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Conway v Critchley & Ors [2009] NSWSC 499

COUNSEL:
G A Sirtes SC (First, Second, Third, Fourth and Fifth Appellants)
T Hall Solicitor (First Respondent)

SOLICITORS:
Leonard Legal (First, Second, Third, Fourth and Fifth Appellants)
Hall partners (First Respondent)

CATCHWORDS:
PROCEDURE – judgments and orders – summary judgment ordered against five defendants – whether the trial judge was entitled to order summary judgment against two of the defendants – whether orders had been sought against two defendants not identified in the amended statement of claim – whether the parties had chosen a different basis at trial to the pleaded issues for the determination of their respective rights and liabilities
PROCEDURE – judgments and orders – whether summary judgment should have been ordered- whether there is sufficient evidence to create a triable issue – whether it was open for the trial judge to make particular findings and inferences in summary judgment proceedings

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
Conway v Critchley & Ors [2009] NSWSC 499
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206

TEXTS CITED:

DECISION:
1. Grant leave to appeal as sought by the appellants;
2. Uphold the appeal by setting aside the orders made by Debelle AJ to the extent that they bear on the 33 wine storage tanks;
3. Save to the extent that the orders made by his Honour bear on the 33 wine storage tanks, dismiss the appeal against the orders he made;
4. The issues relating to the 33 wine storage tanks proceed to trial together with the other issues that remain in the case; and
5. Each party partially successful and no order as to the costs of the application for leave to appeal and the appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40181/09
SC 6429/08
IPP JA
TOBIAS JA
HANDLEY AJA
29 September 2009

Stephen Critchley & Ors v David Conway & Anor

Judgment

IPP JA:
The application for leave to appeal and the appeal
This is an application for leave to appeal and, if granted, an appeal against orders made by Debelle AJ in the course of granting summary judgment in favour of the respondent (“Mr Conway”) against the appellants (Conway vCritchley & Ors [2009] NSWSC 499). The application for leave to appeal and appeal were heard concurrently.
A…

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 Critchley v Conway

Details

AGLC: Critchley v Conway [2009] NSWCA 297
Case: [2009] NSWCA 297
Decision Date: 29 September 2009

CaseChat Overview and Summary

Critchley and Conway were the parties involved in this matter before the Court of Appeal of New South Wales. The dispute concerned summary judgment orders made by Debelle AJ against five defendants, with the appeal focusing on whether the trial judge was entitled to order summary judgment against two specific defendants, particularly in relation to 33 wine storage tanks. A key aspect of the appeal was whether orders had been sought against these two defendants who were not identified in the amended statement of claim, and whether the parties had pursued a different basis for determining their rights and liabilities at trial than that which was pleaded.

The Court of Appeal was required to determine whether there was sufficient evidence to create a triable issue regarding the liability of the two appellants, and whether it was open for the trial judge to make certain findings and inferences in the context of summary judgment proceedings. Specifically, the court considered whether the summary judgment was appropriately ordered against the appellants, given the nature of the claims and the evidence presented.

The Court of Appeal granted leave to appeal and upheld the appeal in part, setting aside the summary judgment orders made by Debelle AJ concerning the 33 wine storage tanks. However, save for those specific orders, the appeal against the other orders made by the trial judge was dismissed. The court directed that the issues relating to the 33 wine storage tanks would proceed to trial, along with any other outstanding issues in the case. As each party was partially successful, no order was made as to the costs of the application for leave to appeal or the appeal itself.

Orders

Orders of the court

1. Grant leave to appeal as sought by the appellants;

2. Uphold the appeal by setting aside the orders made by Debelle AJ to the extent that they bear on the 33 wine storage tanks;

3. Save to the extent that the orders made by his Honour bear on the 33 wine storage tanks, dismiss the appeal against the orders he made;

4. The issues relating to the 33 wine storage tanks proceed to trial together with the other issues that remain in the case; and

5. Each party partially successful and no order as to the costs 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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