Custombuilt Homes Pty Ltd v Dowell
[2005] WASCA 221
•9 NOVEMBER 2005
CUSTOMBUILT HOMES PTY LTD -v- DOWELL & ANOR [2005] WASCA 221
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 221 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:21/2005 | 9 NOVEMBER 2005 | |
| Coram: | STEYTLER P WHEELER JA | 9/11/05 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | CUSTOMBUILT HOMES PTY LTD (ACN 009 393 051) ASHLEY KEVIN DOWELL SHOANA LEANNE DOWELL |
Catchwords: | Practice and procedure Issue estoppel Anshun estoppel Turns on own facts |
Legislation: | Nil |
Case References: | Custombuilt Homes v Dowell [2005] WASC 25 Dowell v Custombuilt Homes [2004] WASCA 171 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Triantafillidis v National Australia Bank (1995) V ConvR 54-536 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CUSTOMBUILT HOMES PTY LTD -v- DOWELL & ANOR [2005] WASCA 221 CORAM : STEYTLER P
- WHEELER JA
- Appellant
AND
ASHLEY KEVIN DOWELL
SHOANA LEANNE DOWELL
Respondents
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : CUSTOMBUILT HOMES PTY LTD -v- DOWELL & ANOR [2005] WASC 25
Catchwords:
Practice and procedure - Issue estoppel - Anshun estoppel - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr M L Bennett
Respondents : Mr G M Abbott
Solicitors:
Appellant : Bennett & Co
Respondents : Biddulph & Turley
Case(s) referred to in judgment(s):
Custombuilt Homes v Dowell [2005] WASC 25
Dowell v Custombuilt Homes [2004] WASCA 171
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Triantafillidis v National Australia Bank (1995) V ConvR 54-536
Case(s) also cited:
Nil
(Page 3)
1 STEYTLER P: I agree with the reasons of Wheeler JA and would also allow the appeal.
2 WHEELER JA: The relevant background to this appeal is set out in the decision of the Full Court in Dowell v Custombuilt Homes [2004] WASCA 171 and the decision of the Master in Custombuilt Homes v Dowell [2005] WASC 25 and I do not repeat all of that factual background. The principles governing the setting aside of a statutory demand are not in issue in this case.
3 The question before the Master was whether there was a genuine claim by Custombuilt against the Dowells capable of amounting to an offsetting claim within s 459(H)(1)(b) of the Corporations Act 2001 (Cth). It was argued before the Master that there was no such claim since by reason of either issue estoppel or Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). Custombuilt was unable now to raise claims which it alleged, they being either matters which were in issue in the District Court or which it was unreasonable for Custombuilt not to have raised in the earlier District Court proceedings.
4 The principal basis upon which that submission was made seems to have been that the Full Court had in effect held that such an estoppel existed. The Master found in favour of the respondent to this appeal in relation to that point. He said at [11] of his reasons:
"In my view, it is an inevitable conclusion from the decision of the Full Court that it is not now open to the plaintiff to attempt to enforce any of the matters which it says are offsetting claims. On behalf of the plaintiff, it was submitted that such a conclusion was manifestly unjust and should not be countenanced. It seems to me to be, however, a natural consequence of the way in which the plaintiff's claim was run. It was further submitted that what was said by EM Heenan J in his judgment was obiter and it was open to the plaintiff to issue proceedings and deal with the res judicata issue in due course. With respect, it seems to me that the Full Court carefully considered the question and effectively shut out the plaintiff from agitating these claims. In my view, no other conclusion can be reached. Once what was said by EM Heenan J is put against what was said by Wheeler J, that is the end of the matter. Unfortunate though it may be, the plaintiff simply has nowhere to go."
(Page 4)
5 With respect, in my view the Master erred in that conclusion. EM Heenan J in the Full Court dissented in the result. His reasons do not therefore reflect the Court's reasons for making the orders which it made. Murray J did not address the estoppel question at all. It was unnecessary for him to do so. In my own reasons, in which I generally agreed with Murray J, I referred to the orders proposed by EM Heenan J. I did not take issue with anything his Honour said in relation to the law, but my reason for not joining with the orders he proposed is plainly to be found in that portion of [56] of my reasons introduced by the word "because"; that is, because the parties had confined their case in a particular way both in the District Court and in the Full Court. It was not necessary for me to reach any concluded view in relation to the questions of estoppel and I did not canvass that issue.
6 The decision of the Master should therefore be set aside, unless it can be seen that on an examination of the pleadings it is revealed that there is an estoppel, and that is so clearly revealed that the offsetting claims cannot be considered to be genuine. The problem with that proposition is that, although there is an affidavit of Mr Green explaining, by reference to what he alleges to be the underlying facts, the nature of the offsetting claims, they are not even pleaded at this stage. Looking at the affidavit and the pleading in the District Court, it would not appear prima facie that there is that identity of issues which is necessary for issue estoppel. The issue in the District Court action was whether there was a concluded agreement of a particular type, and the issue on appeal from the District Court was the narrower one of whether there was a concluded agreement in respect of one item the subject of the District Court action.
7 It would appear, on that cursory examination then, that it would be necessary for the Dowells to rely on what is known as Anshun estoppel; that is, upon an assertion that it was unreasonable for Custombuilt to have refrained from raising the issue in the earlier proceedings. In the materials before the Master, there is little which deals with the course of the proceedings below in a way which would allow an evaluation or otherwise of the reasonableness of any particular manner of proceeding.
8 Consideration of the appropriateness of relying on Anshun principles to dispose of an issue in a summary way at an early stage was considered by the Court of Appeal of Victoria in Triantafillidis v National Australia Bank (1995) V ConvR 54-536. That case concerned a permanent stay. There was some difference between the members of the Court concerning the appropriateness of seeking summary judgment at all in the circumstances of that case, but that difference of view is not relevant for
(Page 5)
present purposes. There are in that case some observations by Ormiston JA concerning the difficulty faced by a party invoking Anshun principles at this early stage of the proceedings which are, in my view, applicable to the present case. There were, in his Honour's view, two principal issues. The first was the question of precisely how the Anshun principle was to be formulated, including the question of the extent to which it was unreasonableness, rather than a potential for inconsistent decisions, which was critical. The second related to the question of how unreasonableness was to be determined. At page 66-367 his Honour said (omitting citations):
"Even if it were not appropriate to agree with Toohey J that the precise scope of Anshun is not yet settled, the majority judgment in Anshun'sCase appears to require a determination whether the plaintiff in the second action would have been unreasonable not to rely upon its later claims in the first action and for that purpose the resolution of each case 'depends upon a meticulous scrutiny of its own facts'. In part the majority in Anshun'sCase relied upon the absence of any explanation by the appellant to adduce evidence as to why it failed to raise the relevant issue in the first action. If this be the kind of necessary enquiry which Anshun'sCase requires, then it is not ordinarily appropriate that it be dealt with upon an application for a summary judgment or stay. Unless the alleged unreasonableness is manifest (e.g. if the potential judgment would be plainly inconsistent), the appellant is entitled to have both the questions of principle and the issues of fact resolved upon a trial and upon the basis of precisely pleaded defences."
9 Adopting that analysis for present purposes, it would be my view that this, too, is a case in which it is necessary that there be that "meticulous examination upon precisely pleaded defences", which was not possible in the application before the Master. I would therefore allow the appeal.
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