Julian John White & Anor v Byron Ward Thompson

[2011] HCASL 174

JULIAN JOHN WHITE & ANOR
v
BYRON WARD THOMPSON & ORS
[2011] HCASL 174
S251/2011

1. In their application for special leave to appeal to this Court the applicants raise in substance about 20 grounds of appeal against a decision of the Court of Appeal of the Supreme Court of New South Wales.

2. The litigation arises out of a joint venture between the applicants and the first respondent to develop land at Seaforth, New South Wales, and the acquisition by the first respondent of an interest in another property in Somersby.  The applicants were successful in obtaining findings of liability from the Supreme Court of New South Wales (Gzell J), which were upheld on appeal by the Court of Appeal of the Supreme Court of New South Wales.  The applicants then obtained judgments in debt against the respondent from Biscoe AJ, to whom the task of the taking of accounts of the joint venture had been given by order of Gzell J.  However, the first respondent became bankrupt, and the applicants sought to enforce a proprietary tracing claim against the Somersby land.  Windeyer AJ held that this was an abuse of process, because the applicants had elected against it earlier in the proceedings. 

3. The Court of Appeal dismissed an appeal.  Handley AJA held (Basten and Young JJA concurring) that though the applicants could have claimed a proprietary interest in Somersby in the alternative before Gzell J, they had not done so; those proceedings had ended and their outcome had been upheld on appeal; and the attempt to reopen them was an abuse of process.

4. Despite the breadth of the applicants' attack on the Court of Appeal's orders, that attack does not demonstrate error in Handley AJA's reasoning.

5. The application is dismissed.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
26 October 2011 V.M. Bell