Jeans v Cleary - [2004] NSWSC 1245

CITATION: Jeans v Cleary [2004] NSWSC 1245

HEARING DATE(S): 5 November 2004

JUDGMENT DATE:
17 December 2004

JURISDICTION:
Common Law

JUDGMENT OF: Mathews AJ

DECISION: Orders sought in the notice of motion filed on 8 April 2004 declined. The question of costs deferred. Each party to furnish written submissions on the issue of costs by 4 February 2005.

CATCHWORDS: Motion to dismiss proceedings - issue estoppel created by admission - no privity of interest - Anshun estoppel - unreasonableness - whether conflicting judgments - application dismissed.

LEGISLATION CITED: Trade Practices Act 1974 (Cth)

CASES CITED: Blair v Curran (1962) 464
Hoystead v Commissioner of Taxation [1926] AC 155
Ramsay v Pigram (1968) 118 CLR 271
Lloyd v Grace, Smith & Co [1912] AC 716
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No2) [1996]
AC 83 at 911
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Henderson v Henderson (1843) 3 Hare at p. 115 [67 E.R. at 319]
Minero Pty Ltd v Redero Pty Ltd SC 3288 29 July 1998

PARTIES :
John Anthony Jeans - Plaintiff
Stephen Thomas Cleary - Defendant

FILE NUMBER(S): SC 20049/04

COUNSEL: J M Ireland QC - Plaintiff
A Bell SC with D A McLure - Defendant

SOLICITORS: Moloney Lawyers - Plaintiff
J K O'Sullivan - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MATHEWS AJ

17 December 2004
20049/04
John Anthony JEANS v Stephen Thomas CLEARY
JUDGMENT

1 HER HONOUR: This is an application to dismiss these proceedings upon a number of bases, all of which relate to previous proceedings in the Federal Court of Australia between Deangrove Pty Limited (“Deangrove”) and the present plaintiff (“Mr Jeans”) as plaintiffs/applicants and the Commonwealth Bank of Australia (“the Bank”) as defendant/respondent.

2 The background to the Federal Court proceedings, very briefly, is as follows. Mr Jeans was the sole shareholder and director of Deangrove. In 1998 a contract was entered into between Deangrove and the Bank in which the Bank was to provide a bill discount facility for the purpose of financing a proposed development in North Queensland. Deangrove executed an equitable charge as security for advances to be made by the Bank under the facility. Further security was required from Mr Jeans in the form of an unlimited guarantee of Deangrove’s performance under the contract. A guarantee dated 12 June 1998 was apparently executed by him. Thereafter the Bank advanced approximately $7.55 million under the facility. The development was less successful than envisaged, and Deangrove repaid only part of the loan. In the Federal Court proceedings, Deangrove sought damages for losses it was said to have suffered as a result of misrepresentations alleged to have been made on behalf of the Bank. Similarly, Mr Jeans sought to set aside the guarantee of 12 June 1998. The basis of both claims was that the Bank had made a number of misrepresentations and had been in breach of the Trade Practices Act 1974 (Cth). It was an…

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 Jeans v Cleary

Details

AGLC: Jeans v Cleary [2004] NSWSC 1245
Case: [2004] NSWSC 1245
Decision Date: 17 December 2004

CaseChat Overview and Summary

In the matter of Jeans v Cleary, the parties were engaged in a legal dispute that was brought before the court. The primary issue was whether the respondent was bound by an admission made by the appellant in a prior proceeding, despite the absence of privity of interest between the parties. The court was required to determine if the principles of issue estoppel, specifically Anshun estoppel, could be applied in this situation and if it would be unreasonable to do so. Additionally, the court needed to assess whether the application to dismiss the proceedings was appropriate given the potential for conflicting judgments.

The court carefully considered the principles of issue estoppel, including Anshun estoppel, which is an extension of the estoppel doctrine that prevents a party from relitigating an issue that has been decided in a prior proceeding, even in the absence of privity of interest. The court acknowledged the potential for conflicting judgments but emphasised that the doctrine of issue estoppel is not absolute and may be overridden where it would be unjust or where the application is unreasonable. The court found that, in this instance, the application to dismiss the proceedings based on the prior admission was unreasonable due to the absence of privity of interest and the potential for conflicting judgments. Therefore, the application to dismiss was dismissed.

The court concluded that the principles of issue estoppel and Anshun estoppel, while important, do not apply in cases where there is no privity of interest between the parties and where the application would lead to an unreasonable outcome. The court held that it was not appropriate to dismiss the proceedings based on the prior admission, and the application was dismissed accordingly.

Orders