Page v Mckensey

[2004] NSWCA 437

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Geoffrey Francis PAGE v Hugh Stanely McKENSEY & Ors [2004]  NSWCA 437

FILE NUMBER(S):
40860/03

HEARING DATE(S):               29 September 2004

JUDGMENT DATE: 01/12/2004

PARTIES:
Geoffrey Francis PAGE
Hugh Stanley McKENSEY & Ors

JUDGMENT OF:       Mason P Hodgson JA Pearlman AJA   

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):          SC 1595/96

LOWER COURT JUDICIAL OFFICER:     Gzell J

COUNSEL:
Appellant: C Birch SC/ M Duncan
1st, 2nd, 4th Respondent: C D Wood
3rd Respondent: In Person
5th Respondent: Submitting

SOLICITORS:
Appellant: Shaw McDonald
1st, 2nd, 4th Respondent: Bowen-Thomas & Barlow
3rd Respondent: N/A
5th Respondent: Hewitts Commercial Lawyers

CATCHWORDS:
Fraudulent misrepresentation - deceit - appeal from interlocutory orders - whether leave should be granted - limitation period - date at which appellant ought reasonably to have discovered relevant facts - res judicata.  (ND)

LEGISLATION CITED:
Evidence Act 1995, s140
Fair Trading Act 1987
Limitation Act 1969, ss14, 55(1)

DECISION:
Appeal  dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40860/03

MASON P
HODGSON JA
PEARLMAN AJA

Wednesday 1 December 2004

Geoffrey Stanley PAGE v Hugh Stanley McKENSEY & Ors

BACKGROUND
The parties to this appeal are chartered accountants who have been involved in a stream of litigation over the past 12 years. The first respondent (McKensey) and the second respondent (Lewis) had been partners of Deloitte, Haskins and Sells in the Newcastle office of the firm. In September 1987 there was an agreement that Deloitte would cease practising in Newcastle, that McKensey and Lewis would retain their existing clients and that Deloitte would form a “friendly firm” relationship with the new firm commenced by McKensey and Lewis called Forsythes, Chartered Accountants.

On 30 November 1997, Page and the third respondent (Nelson) joined the Forsythes partnership. On 1 July 1989 the fifth respondent (Hewitt) joined the partnership. On 1 July 1990 the fourth respondent (Hicks) joined the partnership. The partnership was technically dissolved on 30 June 1992 when Page left the firm.

The sole cause of action in this appeal concerns the circumstances in which Page came to enter the Forsythes partnership. Page alleges that McKensey fraudulently misrepresented certain matters relevant to the relationship between Forsythes and Deloitte that induced him to enter the partnership.

Gzell J dismissed Page’s appeal from the decision of the Master. His Honour held that Page was estopped by res judicata in that he was a privy to the prior decision of the Court of Appeal on appeal from Windeyer J, by reason of having been partner to those who were parties to the litigation.

HELD per Mason P (Hodgson JA and Pearlman AJA agreeing) dismissing the appeal:

The appeal is incompetent because the orders under challenge are interlocutory. Leave should not be granted

• The Court is not persuaded that even the most stringent order for costs would eliminate the prejudice the remaining defendants would suffer if forced to trial.

• The limitation barrier is insurmountable. Gzell J’s findings were tantamount…