Newington, Jean Edelweiss Alaine and Ors v Beneficial Finance Corporation Ltd

[1997] FCA 312

IN THE FEDERAL COURT OF AUSTRALIA      )

NEW SOUTH WALES DISTRICT REGISTRY     )
GENERAL DIVISION  )  NG 213 of 1990

BETWEEN:  JEAN EDELWEISS ALAINE NEWINGTON
  JACQUES BONNET
  GENMAN PTY LIMITED

Applicants

AND:             BENEFICIAL FINANCE CORPORATION LIMITED

Respondent

CORAM:  Lehane J
PLACE:    Sydney

DATE:     22 April 1997

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J:

The respondent to proceedings NG 213 of 1990 sought orders dismissing the application on the footing that the applicants were precluded from proceeding with the causes of action founding the application by the principle applied by the High Court in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. Such a view of the matter would, at least in substance and in the light of my judgment delivered on 30 January 1997 in the related matter NG 234 of 1993 (the related proceedings), accord with an interlocutory judgment delivered by Davies J in the present proceedings in July 1991.

For at least two reasons, however, the matter is however slightly more complex than at first appears.  One reason is that there is a cross-claim, which it is now conceded, cannot be decided now but must go to trial.  A second is that there are allegations in the fourth amended statement of claim filed on 20 September 1995 which might support certain of the relief sought.  Thirdly, the applicant has foreshadowed that it will seek to amend the statement of claim further, at least by incorporating a claim for damages based on certain alleged breaches of the compromise agreement with which a large part of my earlier judgment was concerned.

In the light of those matters, the respondent seeks, as an alternative to dismissal, that the fourth amended statement of claim be struck out.  In the course of argument, Senior Counsel for the respondent accepted that an appropriate course might be instead to strike out only those portions of the fourth amended statement of claim which, on its submission, cannot stand with either or both of the judgments of this Court and of the Supreme Court of New South Wales to which the compromise agreement related or, alternatively, with my decision in the related proceedings: could not stand, that is to say, either on the basis of estoppel per rem judicatam or on the basis of the Anshun principle.

Although the applicant is not to be taken as conceding that the statement of claim or any part of it should be struck out, there is agreement between counsel as to those portions of the statement of claim which might appropriately be struck out were I to hold that an estoppel of a kind asserted by the respondent arises.  In my view an estoppel does arise as to the portions of the statement of claim to which I shall presently refer and accordingly those portions of the statement of claim should be struck out, but with leave to replead by adding causes of action, particularly, as foreshadowed this morning, a cause of action which might be claimed and arise from alleged breaches of the compromise agreement.  It may be as well that additional amendments will be needed in relation to the causes of action left on foot, and no doubt if so advised the applicant will make an appropriate application for that purpose.

The portions of the statement of claim which will be struck out on the basis which I have indicated are as follows: paragraphs 10-12 inclusive; the second sentence only of paragraph 13; paragraphs 14-19 inclusive; the words "colourably as a builder" in paragraph 20;  paragraphs 21-25 inclusive; paragraphs 27-29 inclusive;  paragraph 30 except to the extent that it pleads as follows:

The respondent after 22 December 1983, while a mortgagee in possession, sold all the applicants' houses at an under value,

paragraphs 32 and 33; paragraph 34(a); in paragraph 34(b) the words "alternatively 2(a)"; the lettered subparagraphs of paragraph 35, other than subparagraph (d); and, in paragraph 36, the words "that the deed of 6 February 1983 be delivered up for cancellation and an order".

I order therefore that those portions of the statement of claim be struck out but with the leave to replead which I have indicated.  I make the following additional orders, which have been discussed with counsel this morning in the course of argument:

1. That the proceedings be adjourned for further directions following judgment in any appeal brought by the applicants in proceeding number G234 of 1993.

1. That each party be at liberty to restore the matter for further directions on not less than seven clear days’ written notice.

1. That costs be reserved. 

The applicant has applied for leave to appeal.  It is plainly convenient that, if there is to be an appeal from my judgment in the related proceedings the Full Court should be able at the same time to deal with issues arising out of the orders I have just made.  Accordingly, leave to appeal is granted.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:22 April 1997

Heard:  22 April 1997

Place:  Sydney

Decision:  22 April 1997

Appearances:  M K Rollinson of counsel appeared for the applicants.

Mr A J H Morris QC and Mr M G Skinner of counsel instructed by R B Monteith & Co appeared for the respondent.