O'Connor v O'Connor

[2022] NSWCA 97

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

O’Connor v O’Connor [2022] NSWCA 97

Hearing dates:

27 April 2022

Decision date:

17 June 2022

Before:

Bell CJ; Ward P; Leeming JA

Decision:

Appeal dismissed with costs.

Catchwords:

APPEAL – plaintiffs claimed damages for breach of agreement to issue shares – primary judge dismissed claim but indicated alternative case which might succeed – whether primary judge ought to have upheld claim based on alternative case – whether alternative case subject of concession at trial – whether concession wrongly elicited by primary judge – whether concession ought be permitted to be withdrawn on appeal – appeal dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Cases Cited:

Brunninghausen v Glavanics (1999) 46 NSWLR 538; [1999] NSWCA 199

Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51

Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133

O’Connor v O’Connor [2017] NSWSC 1648

O’Connor v O’Connor [2018] NSWCA 214

Percival v Wright [1902] 2 Ch 421

Ridolfiv Rigato Farms Pty Ltd [2001] 2 Qd R 455; [2000] QCA 292

SLE Worldwide v WGB [2005] NSWSC 816

Smits v Roach (2006) 227 CLR 423; [2006] HCA 36

United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1; [1985] HCA 49

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; [1985] HCA 28

Category:

Principal judgment

Parties:

Morgan Benedict O’Connor (First Appellant)
Michael Stack (Second Appellant)
John Joseph O’Connor (Respondent)

Representation:

Counsel:
C Birch SC, I Chatterjee (Appellants)
D Studdy SC, T Boyle (Respondent)

Solicitors:
Coleman Greig Lawyers (Appellants)
Webb Henderson (Respondent)

File Number(s):

2021/00268236

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Commercial List

Citation:

[2021] NSWSC 1056

Date of Decision:

24 August 2021

Before:

Hammerschlag J

File Number(s):

2019/00236226

Judgment

1. THE COURT: This appeal turns on its own facts and the course taken at trial. The primary judge promptly produced a judgment after a five day hearing which dismissed the plaintiffs’ claims based on an oral contract and dismissed the proceeding. However, his Honour went on to make tentative findings in the alternative (although there was an issue as to whether they were findings at all), and to suggest that there were “powerful considerations” that would have favoured the plaintiffs had their case been different, and were it not for repeated concessions that that different case was not pursued. For the most part, the concessions were made during the plaintiffs’ counsel’s final address.

2. In this appeal, no challenge is made to the dismissal of the claim based on the oral contract alleged by the plaintiffs. However, it is said that the primary judge was wrong to regard the case as confined by a concession,…