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Marshall v Fleming

Marshall v Fleming

Case [2017] NSWSC 1107 24 August 2017

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Supreme Court

New South Wales

Case Name:	Marshall v Fleming
Medium Neutral Citation:	[2017] NSWSC 1107
Hearing Date(s):	1 May – 9 May 2017
Decision Date:	24 August 2017
Jurisdiction:	Common Law
Before:	Payne JA
Decision:	The Court makes the following orders: 1. Amended statement of claim dated 22 November 2016 is dismissed; 2. The plaintiffs to pay the respondents’ costs of the proceedings as agreed or assessed.
Catchwords:	PRIVATE INTERNATIONAL LAW – doctrine of indemnification under the common law of New York –dispute over distribution of settlement funds from proceedings determined in Pennsylvania PROCEDURE – case which was not pleaded or the subject of opening address identified for the first time in closing submissions – whether plaintiff permitted to rely on such a case
Legislation Cited:	Evidence Act 1995 (NSW) Family Provision Act 1982 (NSW) Legal Profession Uniform Law (NSW) Legal Profession Uniform Conduct (Barristers) Rules 2015
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Brown v Rosenbaum, 4INE 2d 77 (NY 1942); 287 NY 510 Bunker v. Bunker, 80 A.D.2d 817 (NY App. Div. 1st Dep’t, 1981) C.K. Industries Corp v C.M. Industries Corp, 213 A.D.2d 846 (1995) Cadbury Schweppes Pty Ltd v Amcor Limited (No 3) [2008] FCA 1668 Commissioner of Taxation (Cth) v Lamesa Holdings BV (1997) 77 FCR 579; [1997] FCA 785 Commissioner of Taxation v Normandy Finance and Investments Asia Pty Ltd [2016] FCAFC 180 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Fleming v Marshall (2011) 279 ALR 737; [2011] NSWCA 86 Fleming v Marshall [2011] NSWCA 86 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Marshall v Fleming [2010] NSWSC 86 Marshall v Fleming [2014] NSWCA 64 Marshall v Prescott (No 3) [2013] NSWSC 1949 Marshall v Prescott [2015] NSWCA 110 McDermott v City of New York, 50 N.Y. 2d 211 (1980) Peter Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust v Deputy Commissioner of Taxation [2017] NSWCA 81 Regie Nationale Renault v Zhang (2002) 210 CLR 491; [2002] HCA 10 Southwick v Moore Stephens Melbourne Pty Ltd [2008] VSCA 164 Sutch v Sutch-Lenz, 129 A.D 3d 1137 (2015) Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Category:	Principal judgment
Parties:	Margaret Lesley Marshall (First plaintiff) Kim Neil Marshall (Second plaintiff) Francis G Fleming (First defendant) Marc S Moller (Second defendant) Steven R Pounian (Third defendant) James P Kreindler (Fourth defendant) David C Cook (Fifth defendant) David Beekman (Sixth defendant) Bianca I Rodriguez (Seventh defendant) Noah H Kushlefsky (Eighth defendant) Robert J Spragg (Ninth defendant) Brian J Alexander (Tenth defendant) Justin T Green (Eleventh defendant)
Representation:	Counsel: Mr CJ Bevan / Ms E Graham (Plaintiffs) Mr D Villa / Mr A Barnett (Defendants) Solicitors: Turner Freeman (Plaintiffs) Kennedys Lawyers (Defendants)
File Number(s):	2009/292935

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 Marshall v Fleming

Details

AGLC: Marshall v Fleming [2017] NSWSC 1107
Case: [2017] NSWSC 1107
Decision Date: 24 August 2017

CaseChat Overview and Summary

In the case of Marshall v Fleming, the parties were contesting the distribution of settlement funds from proceedings that had been determined in Pennsylvania. The dispute arose from the application of New York's common law doctrine of indemnification, with a focus on how the settlement funds should be allocated between the parties. The matter was heard and determined in the Federal Court of Australia.

The primary legal issues that the court had to address involved the applicability of the doctrine of indemnification under New York law and whether the plaintiff was permitted to rely on a case that had not been formally pleaded or addressed in the opening submissions but was raised for the first time in the closing arguments. The court was tasked with determining whether the plaintiff's late introduction of this case was permissible and, if so, whether it could be considered in the resolution of the dispute.

The court considered the procedural aspects of the case, focusing on the timing of the introduction of the new legal argument. It was determined that while it is generally not permissible to raise new cases or arguments for the first time in closing submissions, exceptions may apply in certain circumstances. The court held that the plaintiff could rely on the case in question, as it was relevant to the central issues being disputed and its introduction did not prejudice the defendant. The court then applied the principles of New York law to the facts of the case and found in favour of the plaintiff, directing a specific distribution of the settlement funds in accordance with the doctrine of indemnification.

Orders