Moloney v Housing Industry Association Ltd - [1992] TASSC 130

Serial No B53/1992
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Moloney v Housing Industry Association Ltd [1992] TASSC 130; B53/1992

PARTIES:  MOLONEY, Judith Anne
  v
  HOUSE INDUSTRY ASSOCIATION LTD

FILE NO/S:  371/1992
DELIVERED ON:  4 December 1992
HEARING DATE/S:  13 November 1992
JUDGMENT OF:  Crawford J

Champerty and Maintenance — What constitutes maintenance — Common interest of parties in question of law.

Martell v Consett Iron Co Ltd [1955] Ch 363 considered.

REPRESENTATION:

Counsel:
             Applicant:  P W Tree
             Respondent:  M E O'Farrell
Solicitors:
             Applicant:  Zeeman Kable & Page
             Respondent:  Dobson Mitchell & Allport

Judgment Number: B53/1992
Number of paragraphs: 27

Serial No B53/1992
List "B"
File No 371/1992

JUDITH ANNE MOLONEY v HOUSING INDUSTRY ASSOCIATION LTD

REASONS FOR JUDGMENT CRAWFORD J

4 December 1992

Following a trial the plaintiff obtained a judgment against Allen John Bryan for $34,464.68 damages. Mr Bryan built a house in 1979 for Mrs L M Manion. Mrs Manion subsequently sold the premises to Mr and Mrs J L Quittenden. In May 1986 Mr & Mrs Quittenden sold the premises to the plaintiff. Her action against Mr Bryan was in negligence following movement in the building. Wright J found that Mr Bryan did not fabricate footings to a standard to be expected of a reasonably competent builder in 1979 (unreported judgment 371992). His Honour also found that Mr Bryan owed a duty of care to the plaintiff which he breached.

Mr Bryan filed a notice of appeal to the Full Court seeking judgment in his favour on a number of grounds. They included that Wright J was wrong in law in finding that Mr Bryan owed a duty of care to the plaintiff and that he breached any duty. Other grounds included claims that errors in findings of fact were made and other errors of law.

The present action was commenced on 14 October 1992. In the statement of claim the plaintiff claims that the defendant has agreed to financially assist Mr Bryan in the prosecution of the appeal, that the defendant "does not have an interest" in the appeal and that in consequence of the agreement between the defendant and Mr Bryan she has suffered loss and damage. The relief sought includes an order restraining the defendant from maintaining or causing to maintain the appeal, unspecified damages, interest and costs. On the same day as the writ was filed the interlocutory application now before me was filed. In it the plaintiff seeks, following an amendment, an order "that until further order or until the hearing of this action the Defendant by its servant agent or howsoever be restrained from maintaining or causing to be maintained Full Court appeal number 37 of 1992 in the Supreme Court of Tasmania".

When the application came on for hearing before me Mr Bryan was present for the purpose of being cross–examined on an affidavit he had sworn, that affidavit being read later on behalf of the defendant. In answer to questions from me he declared that he was…

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.

Keep reading for free

Create a free CaseChat account to read Moloney v Housing Industry Association Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1992] TASSC 130
Decision Date: 4 December 1992

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Judith Anne Moloney initiated a legal action against the Housing Industry Association Ltd, seeking to prevent the defendant from financially supporting the appeal of Allen John Bryan, a builder who had been found liable for damages due to negligence in constructing a house. The plaintiff claimed that the defendant's financial support constituted maintenance, a legal doctrine prohibiting interference in litigation by those without a legitimate interest. The court was tasked with determining whether the defendant's involvement in Bryan's appeal constituted maintenance and, if so, whether an interim injunction should be granted to halt the defendant's support.

The central legal issue was whether the defendant had a sufficient interest in Bryan's appeal to justify its financial support, thereby avoiding the classification of maintenance. The court examined the nature of the defendant's interest, considering both its direct association with Bryan and its broader concern for the potential liabilities of its members in similar cases. The plaintiff argued that the defendant's interest was insufficient as it did not extend to the specific outcome of Bryan's appeal against her, but rather to the broader legal principles concerning builder liability. The defendant countered that its support was based on a genuine and common pecuniary interest shared with its members, who could potentially face similar legal challenges.

Crawford J concluded that the question of whether the defendant's conduct constituted maintenance was complex and required a comprehensive examination of all evidence, which could best be achieved at a full trial. The court held that it was inappropriate to determine the matter at the interlocutory stage. Given the uncertainty surrounding the likely success of the plaintiff's case and the potential impact on Bryan's ability to fund his appeal, the application for an interim injunction was dismissed. The court reasoned that granting such an injunction at that stage would not be in the interests of justice.

The court's decision not to grant the interim injunction effectively allowed the Housing Industry Association Ltd to continue its financial support for Bryan's appeal, pending a full trial to determine the merits of Moloney's claim that this support constituted maintenance.

Orders