Overton Investment Pty Ltd v Murphy - [2001] NSWCA 183

CITATION: OVERTON INVESTMENTS PTY LTD v MURPHY & ORS [2001] NSWCA 183

FILE NUMBER(S): CA 40367/99

HEARING DATE(S): 26 and 27 February 2001

JUDGMENT DATE:
21 June 2001

PARTIES :

OVERTON INVESTMENTS PTY LTD v John MURPHY & 111 ORS

JUDGMENT OF: Mason P at 1; Sheller JA at 96; Beazley JA at 97

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : ED 1181/97

LOWER COURT
JUDICIAL OFFICER : Windeyer J

COUNSEL: Appellant: J C Campbell QC/ A J McInerney
Respondents: G A Moore

SOLICITORS: Appellant: Gadens Lawyers
Respondents: Wendy Fisher, The Aged Care Rights Service

CATCHWORDS: Retirement village - Retirement Villages Act 1995 - lessor sues to recover share of outgoings - cross claim - referee determines most issues - judgment entered despite outstanding defences raising claims of misleading and deceptive conduct - intention that issue of misleading and deceptive conduct should be litigated in representative proceedings commenced by residents in Federal Court - lessees acquiesce in proposed procedure - lessees bound by conduct of counsel (ND)

DECISION: Appeal dismissed with costs.

CA 40367/99

ED 1181/97

MASON P

SHELLER JA

BEAZLEY JA

OVERTON INVESTMENTS PTY LTD v JOHN MURPHY & ORS

JUDGMENT

1 MASON P: The appellant, Overton Investments Pty Ltd (Overton) developed the Heritage Retirement Village at Padstow. At all material times, and until June 2000, it was the owner and operator of the Village.

2 The respondents are most of the residents of the Village, occupying units under individual 99 year leases.

3 A dispute concerning recoupment of outgoings has spiralled out of control and hardened into destructive siege warfare on several fronts (only some of which are referred to below).

4 For several years Overton’s position has been that the residents’ leases obliged them to pay a proportion of actual outgoings. The residents disputed Overton’s primary contention that the rights of the parties depended exclusively on the contractual arrangements between them. There have also been prolonged disagreements as to quantum. There was a partial rent strike, with the residents withholding portion of the outgoings claimed.

5 On 10 January 1997 Overton started proceedings in the Local Court against 84 residents, seeking to recover the arrears of outgoings it then claimed.

Proceedings in equity division culminating in the orders under appeal

6 The residents commenced a single proceeding in the Equity Division of the Supreme Court on 28 January 1997 seeking to restrain the prosecution of the Local Court proceedings. They also sought declaratory relief to the effect that the Retirement Villages Act 1989 (the 1989 Act) applied, relief which was presumably designed to ensure that any proceedings to terminate the leases had to go before the Residential Tenancies Tribunal and to be determined within the protective framework of the 1989 Act. The residents also sought declarations that Overton had breached clauses of the Retirement Villages Industry Code of Practice 1995 (the Code).

7 On 27 February 1997 Simos J made consent orders designed to maintain the status quo pending an expedited hearing. These…

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.

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Details

Case: [2001] NSWCA 183
Decision Date: 21 June 2001

CaseChat Overview and Summary

Overton Investment Pty Ltd (the lessor) sued Murphy and other residents (the lessees) of a retirement village to recover a share of outgoings. The lessees filed cross-claims. A referee determined most of the issues between the parties, but judgment was entered for the lessor despite outstanding defences that raised claims of misleading and deceptive conduct. The lessees appealed this judgment to the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the lessees were bound by the conduct of their counsel in agreeing to a procedure where the issue of misleading and deceptive conduct would be litigated in separate representative proceedings commenced by residents in the Federal Court, rather than in the present proceedings. The court also considered whether the judgment entered by the primary judge was premature given the outstanding defences.

The Court of Appeal held that the lessees were bound by the conduct of their counsel, who had acquiesced in the proposed procedure for litigating the misleading and deceptive conduct claims. The court found that the intention of the parties and the referee was that these claims would be dealt with in the Federal Court proceedings. Consequently, the court determined that the judgment entered by the primary judge was not premature, as the outstanding defences had been effectively deferred to the separate proceedings. The legal principle applied was that parties are generally bound by the actions and agreements of their legal representatives.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	OVERTON INVESTMENTS PTY LTD v MURPHY & ORS [2001] NSWCA 183
FILE NUMBER(S):	CA 40367/99
HEARING DATE(S):	26 and 27 February 2001
JUDGMENT DATE:	21 June 2001
PARTIES :	OVERTON INVESTMENTS PTY LTD v John MURPHY & 111 ORS
JUDGMENT OF:	Mason P at 1; Sheller JA at 96; Beazley JA at 97

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	ED 1181/97
LOWER COURT JUDICIAL OFFICER :	Windeyer J

COUNSEL:	Appellant: J C Campbell QC/ A J McInerney Respondents: G A Moore
SOLICITORS:	Appellant: Gadens Lawyers Respondents: Wendy Fisher, The Aged Care Rights Service
CATCHWORDS:	Retirement village - Retirement Villages Act 1995 - lessor sues to recover share of outgoings - cross claim - referee determines most issues - judgment entered despite outstanding defences raising claims of misleading and deceptive conduct - intention that issue of misleading and deceptive conduct should be litigated in representative proceedings commenced by residents in Federal Court - lessees acquiesce in proposed procedure - lessees bound by conduct of counsel (ND)
DECISION:	Appeal dismissed with costs.