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Glover v Roche

Glover v Roche

Case [2003] ACTSC 19 4 April 2003

Civil Litigation & Procedure

Contract Law

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PETER RICHARD GLOVER, PETER LENNOX SHEILS v CHRISTOPHER ROCHE, BARRY JOSEPH ROCHE [2003] ACTSC 19 (4 April 2003)

PRACTICE AND PROCEDURE – application for summary judgment – requirements under Supreme Court Rules (ACT) – meaning of phrase “unless the Court is satisfied that there is a good defence to the action on the merits”.
CONTRACT – construction of deed for sale of legal practice – whether performance would involve illegality or be contrary to public policy – estoppel by record - whether execution induced by misrepresentation – adequacy of evidence - estoppel by deed – estoppel by record – whether grounds for rescission – whether restitution possible.

Supreme Court Rules1937 (ACT), O 15 r 1, sub r (2), (4), (5)
Supreme Court Rules 1970 (NSW), Pt 13
Workers Compensation Rules (ACT), r 59
Evidence Act 1995 (Cth), s 138, subs (1)
Legal Practitioners Act 1970 (ACT), s 121, subs (4)

Singh & Anor v Varinder Kaur (1985) 61 ALR 720
Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122
Australian Can Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Country Estates Pty Ltd v Leighton Contractors Pty Ltd (1975) 49 ALJR 173

Evans v Bartlam [1937] AC 473

Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Wallingford v Mutual Society (1880) 5 App Cas 685
Ritter v North Side Enterprises Pty Ltd (1975) 132 CLR 301
National Westminster Bank plc v Daniel [1994] 1 All ER 156
Commonwealth Bank of Australia v Wallace (1995) ATTR 41-387
Commonwealth Development Bank of Australia v Karastavrou (Supreme Court of Victoria No 4558/1995, 12 November 1996, unreported, BC9605500), Beech J
Agar v Hyde (2000) 201 CLR 552
Archbolds (Freightage) Ltd v Spanglett Ltd [1961] 1 QB 374
Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215
Discount & Finance Ltd v Gehrig’s NSW Wines Ltd (1940) 40 SR NSW 598
Greer v Kettle [1938] AC 156
Caboche & Bond v Ramsay (1993) 119 ALR 215
Offshore Oil NL v Southern Cross Exploration NL (1985) 3 NSWLR 337
Re Patrick Corp Ltd and the Companies Act [1981] 2 NSWLR 328
Victa Limited v Hawker de Havilland Australia & Anor (unreported), CA 406 of 1977, 19 October 1987 per Glass JA

Thompson v Palmer (1933) 49 CLR 507

Urquhart v MacPherson (1878) 3 App Cas 831
Newbigging v Adam (1886) 34 Ch D 582
Brown v Smitt (1924) 34 CLR 160
O’Sullivan v Management Agency & Music Ltd [1985] QB 428
Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102
Henderson v Henderson (1843) 3 Hare 100
Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130
Hughes v Metropolitan Railway Co (1877) 2 App Cas 439
Ajayi v R T Briscoe (Nigeria) Ltd [1964] 1 WLR 1326
Legione v Hateley (1983) 46 ALR 1

Bullen and Leake and Jacobs, Precedents of Pleadings, 13 Ed, 1990, Sweet & Maxwell, Chapter 1

No SC 665 of 2002

Judge:…

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 Glover v Roche

Details

AGLC: Glover v Roche [2003] ACTSC 19
Case: [2003] ACTSC 19
Decision Date: 4 April 2003

CaseChat Overview and Summary

The case of Glover v Roche involved the plaintiffs, who sought summary judgment against the defendants, Roche. The dispute centred on the sale of a legal practice, the terms of which were set out in a deed. The plaintiffs argued that the defendants had failed to perform the terms of the deed and sought summary judgment for the outstanding amount due. The matter was heard in the Supreme Court of the Australian Capital Territory.

The primary legal issues before the court were whether the deed could be enforced, whether the performance of the deed would involve illegality or be contrary to public policy, and whether the plaintiffs could rely on estoppel by record or estoppel by deed. The court had to determine if the execution of the deed was induced by misrepresentation, if there were adequate grounds for rescission, and if restitution was possible.

The court found that the deed was clear and unambiguous, and that the defendants were obliged to pay the outstanding amount as per the terms of the deed. The court concluded that there was no illegality or public policy concern that would prevent enforcement of the deed. The court also found that the plaintiffs had not provided sufficient evidence to establish that the execution of the deed was induced by misrepresentation, nor that there were grounds for rescission or restitution. The court held that the plaintiffs were entitled to summary judgment for the outstanding amount of $448,897.21.

The court ordered that the plaintiffs have leave to enter judgment in the sum of $448,897.21, plus interest and costs. The court found that the defendants had no defence to the action on the merits, and that the plaintiffs were entitled to the relief sought.

Orders

Orders of the court

the plaintiffs have leave to enter judgment in the sum of $448,897.21,

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Glover v Roche [2003] ACTSC 19

Most Recent Citation

David William Sistrom v William Balfour Rangott and [2004] ACTSC 4

Cases citing this decision · 7 of 7 shown

Brunoro v Nebelung
[2017] ACTCA 26 Para 1

…t in a deed is binding between the parties to the deed and their privies: Greer v Kettle [1938] AC 156 at 171, applied by Crispin J in Glover v Roche [2003] ACTSC 19 at [37] and also applied by Gleeson J in Rinehart v Rinehart (No 3) [2016] FCA 539; 337 ALR 174 at [627]. In Caboche v Ramsay (1993) 119 ALR 215 at 2…
Brunoro v Brunoro (No 3)
[2016] ACTSC 189

…[2013] ACTSC 153 Cook v Beal (1697) 1 Lord Raym 176; 91 ER 1014 Dale v Wood (1822) 7 Moore CP 33 Fontin v Katapodis (1962) 108 CLR 177 Glover v Roche [2003] ACTSC 19 Lamb v Cotogno (1987) 164 CLR 1 McClelland v Symons [1951] VLR 157 Newington v Windeyer (1985) 3 NSWLR 555 Pearce v Hallett [1969] SASR 423 Singer v…
Dunmore Farming Pty Ltd v Grugeon
[2014] WADC 148

…ALJR 173 Dey v Victorian Railways Comm (1949) 78 CLR 62 Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 Glover v Roche [2003] ACTSC 19 Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 Whitehall Holdings Pty Ltd…
Glover v Blumer
[2008] ACTCA 1 Para 1

…agreement was the subject of comment by this court in proceedings brought by the applicants against the Roches. In Glover and Sheils v Roche & Roche [2003] ACTSC 19 (4 April 2003), the applicants obtained the summary judgment referred to in [9] above. In the course of those proceedings, it was argued that the Roc…
Peter Richard Glover and Peter Lennox Sheils v NOORAINI BLUMER and MARK BLUMER
[2006] ACTSC 19

…td v Ors (1997) Aust Torts Reports 81-423 VACC Insurance Ltd v BP Australia Ltd [1999] NSWCA 477, (1999) 47 NSWLR 716 Glover & Sheils v Roche & Roche [2003] ACTSC 19…
Sistrom v Rangott
[2004] ACTCA 14 Para 6

…The particular amendments in the present case appear to have been prompted by the successful application for summary judgment in Glover v Roche [2003] ACTSC 19. In that case Crispin J observed (at [44]) that estoppels by deed “may not apply in the face of actual fraud”. No doubt, that is so. However, it may be bor…
David William Sistrom v William Balfour Rangott and
[2004] ACTSC 4 Para 1

…icated that he would rely on the line of authority in support of this proposition set out recently in this Court by Justice Crispin in Glover v Roche [2003] ACTSC 19 at [35]. The hearing of the notice of motion seeking this relief, which would in effect deny the defendants a trial on the merits was adjourned follo…

View all 7 citing cases →

Cases cited in this decision · 25 of 25 shown

Singh v Kaur
[2019] ACTSC 270 Para 1

…that an applicant for summary judgment in the Supreme Court of NSW must show that there is no real question to be tried: Singh & Anor v Varinder Kaur (1985) 61 ALR 720. However, Pt 13 of the Supreme Court Rules 1970 (NSW) contains no provisions comparable to those in sub-rule (4) and I do not accept that this princi…
Agar v Hyde
[2000] HCA 41 Para 1

…oaching an application of this kind, one must also be conscious of the note of caution sounded by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde (2000) 201 CLR 552 at 575-6, albeit in the context of a case decided under the NSW Supreme Court Rules:…
Fitzgerald v F J Leonhardt Pty Ltd
[1997] HCA 17

…ted, BC9605500), Beech J Agar v Hyde (2000) 201 CLR 552 Archbolds (Freightage) Ltd v Spanglett Ltd [1961] 1 QB 374 Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215 Discount & Finance Ltd v Gehrig’s NSW Wines Ltd (1940) 40 SR NSW 598 Greer v Kettle [1938] AC 156 Caboche & Bond v Ramsay (1993) 119 ALR 215 Offshore…
Vadasz v Pioneer Concrete (SA) Pty Ltd
[1995] HCA 14 Para 1

…at is practically just by granting recision and restitution together with orders for accounts”. See also Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102. It would not be “practically just” to order rescission in the circumstances of this case.…
Caboche v Ramsay
[1993] FCA 611 Para 1

…ies and their privies and therefore, as not admitting any contradictory proof: see Greer v Kettle [1938] AC 156 at 171; and Caboche & Bond v Ramsay (1993) 119 ALR 215 at 237. Whilst a statement of facts must be precise and unambiguous it need not be true for the principle to apply: see Offshore Oil NL v Southern Cros…
Legione v Hateley
[1983] HCA 11 Para 1

…other party to resume the earlier position and the promise becomes final and irrevocable only if he or she cannot do so. In Legione v Hateley (1983) 46 ALR 1 at 21-22, Mason and Deane JJ stressed that the representation must be clear before it could found an estoppel in pais and that it will not arise unless the o…
Ritter v North Side Enterprises Pty Ltd
[1975] HCA 18 Para 1

…blished without disclosing the evidence by which the defendant hopes to establish those facts: Country Estates Pty Ltd v Leighton Contractors Pty Ltd (1975) 49 ALJR 173. A court will not attempt to resolve disputed questions of fact on the basis of competing affidavits: Evans v Bartlam [1937] AC 473.…
Henderson v Henderson
[1948] HCA 15 Para 1

…uld not be maintained in the face of the declarations made on 20 November 2001, because of the doctrine of res judicata . Unlike the principle in Henderson v Henderson (1843) 3 Hare 100, the doctrine applies even in the face of new evidence that could not have been ascertained with reasonable diligence or evidence of facts and…
Thompson v Palmer
[1933] HCA 61 Para 1

…l fraud, but that was neither pleaded nor alleged in evidence. Mr Spinks relied upon the decision of the High Court of Australia in Thompson v Palmer (1933) 49 CLR 507, but that was not a case of estoppel by deed, but of estoppel by conduct. Furthermore, the plaintiffs did rely on the representations by entering int…
Brown v Smitt
[1924] HCA 11 Para 1

…to the agreement between them: see, for example, Urquhart v MacPherson (1878) 3 App Cas 831; Newbigging v Adam (1886) 34 Ch D 582; and Brown v Smitt (1924) 34 CLR 160.…
Cloverdell Lumber Co Pty Ltd v Abbott
[1924] HCA 4 Para 1

…e affidavit filed in support of the application that he or she believes that there is no defence to the action: Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122. It has even been suggested that it may be sufficient for a defendant to show that there is a real case to be investigated: Australian Can Pty Ltd v…
Hughes v Metropolitan Railway Co
[1877] UKHL 1 Para 1

…t be allowed to enforce those rights where it would be inequitable to do so, having regard to the dealings between the parties: see, for example, Hughes v Metropolitan Railway Co (1877) 2 App Cas 439. In Ajayi v R T Briscoe (Nigeria) Ltd [1964] 1 WLR 1326 at 1330, the Judicial Committee of the Privy Council explained that the principle w…
Evans v Bartlam
[1937] AC 473 Para 1

…tors Pty Ltd (1975) 49 ALJR 173. A court will not attempt to resolve disputed questions of fact on the basis of competing affidavits: Evans v Bartlam [1937] AC 473.…
Hughes v Metropolitan Railway Co
(1877) 2 App Cas 439 Para 1

…hts where it would be inequitable to do so, having regard to the dealings between the parties: see, for example, Hughes v Metropolitan Railway Co (1877) 2 App Cas 439. In Ajayi v R T Briscoe (Nigeria) Ltd [1964] 1 WLR 1326 at 1330, the Judicial Committee of the Privy Council explained that the principle was that “when…
[1947] KB 130
[1947] KB 130 Para 1

…le of promissory estoppel which came to prominence in the so-called High Trees case (see Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130) reflects a long standing principle that if one party to a contractual relationship leads another to suppose that his or her rights will not be enforced…
[1938] AC 156
[1938] AC 156 Para 1

…n a deed must be taken as binding between the parties and their privies and therefore, as not admitting any contradictory proof: see Greer v Kettle [1938] AC 156 at 171; and Caboche & Bond v Ramsay (1993) 119 ALR 215 at 237. Whilst a statement of facts must be precise and unambiguous it need not be true for the…
Wallingford v Mutual Society
(1880) 5 App Cas 685 Para 1

…and must “condescend to particularity”: see Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109; Wallingford v Mutual Society (1880) 5 App Cas 685; and Ritter v North Side Enterprises Pty Ltd (1975) 132 CLR 301. Furthermore, it has been suggested that if the evidence raising the defence is not credi…
[1961] 1 QB 374
[1961] 1 QB 374 Para 1

…not unenforceable merely because it is possible that it might be performed illegally. As Devlin LJ said in Archbolds (Freightage) Ltd v Spanglett Ltd [1961] 1 QB 374 at 391:…
Adam v Newbigging
(1888) 13 App Cas 308 Para 1

…least substantially to the status quo that existed prior to the agreement between them: see, for example, Urquhart v MacPherson (1878) 3 App Cas 831; Newbigging v Adam (1886) 34 Ch D 582; and Brown v Smitt (1924) 34 CLR 160.…
[1985] QB 428
[1985] QB 428 Para 1

…o have the court relieve them from the obligations they had undertaken in return. As Dunn LJ observed in O’Sullivan v Management Agency & Music Ltd [1985] QB 428 at 458 a contract may be set aside in equity only if “it is possible to achieve what is practically just by granting recision and restitution together…
Caboche & Bond v Ramsay
108 ER 1153 Para 1

…binding between the parties and their privies and therefore, as not admitting any contradictory proof: see Greer v Kettle [1938] AC 156 at 171; and Caboche & Bond v Ramsay (1993) 119 ALR 215 at 237. Whilst a statement of facts must be precise and unambiguous it need not be true for the principle to apply: see Offshore Oil NL v S…
[1964] 1 WLR 1326
[1964] 1 WLR 1326 Para 1

…o the dealings between the parties: see, for example, Hughes v Metropolitan Railway Co (1877) 2 App Cas 439. In Ajayi v R T Briscoe (Nigeria) Ltd [1964] 1 WLR 1326 at 1330, the Judicial Committee of the Privy Council explained that the principle was that “when one party to a contract in the absence of fresh consider…
Offshore Oil NL v Southern Cross Exploration NL
142 DLR (3rd) 729 Para 1

…tement of facts must be precise and unambiguous it need not be true for the principle to apply: see Offshore Oil NL v Southern Cross Exploration NL (1985) 3 NSWLR 337 at 341; Re Patrick Corp Ltd and the Companies Act [1981] 2 NSWLR 328 at 331-2.…
Urquhart v Macpherson
(1878) 3 AC 831 Para 1

…dered unless the parties can be returned at least substantially to the status quo that existed prior to the agreement between them: see, for example, Urquhart v MacPherson (1878) 3 App Cas 831; Newbigging v Adam (1886) 34 Ch D 582; and Brown v Smitt (1924) 34 CLR 160.…
Urquhart v MacPherson
(1878) 3 App Cas 831 Para 1

…es can be returned at least substantially to the status quo that existed prior to the agreement between them: see, for example, Urquhart v MacPherson (1878) 3 App Cas 831; Newbigging v Adam (1886) 34 Ch D 582; and Brown v Smitt (1924) 34 CLR 160.…

Legislation cited in this decision · 4

Evidence Act 1995 (Cth)
138 2 mentions (from Para 1)
Legal Practitioners Act 1970 (ACT)
121 2 mentions (from Para 1)
Supreme Court Rules 1937 (ACT)
1 mention (from Para 1)
Supreme Court Rules 1970 (NSW)
1 mention (from Para 1)