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Page v McKensey

Page v McKensey

Case [2003] NSWSC 759 2 September 2003

Appeal

Res Judicata

Abuse of Process

Admissibility of Evidence

Fraud

Civil Litigation & Procedure

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CITATION: Page v McKensey & Ors [2003] NSWSC 759

HEARING DATE(S): 29/07/2003, 30/07/2003

JUDGMENT DATE:
2 September 2003

JUDGMENT OF: Gzell J

DECISION: Appeal dismissed with costs.

CATCHWORDS: PROCEDURE - Supreme Court procedure - Dispute between partners of terminated partnership - Appeal from Master refusing leave to file further amended statement of claim, striking out amended statement of claim and dismissing proceedings - Issues decided in other proceedings between co-partners to which appellant not party - Whether an abuse of process - Whether subject to res judicata estoppel as privy - Whether appellant bound by findings as to partnership in earlier proceedings - Claim to set aside judgment on basis of fraud - Whether the evidence was newly found - Whether likely to result in changed judgment - Whether appropriate in proceedings against five co-partners when allegations of fraud limited to two co-partners

LEGISLATION CITED: Fair Trading Act 1987
Securities Exchange Act of 1934 (US)
Supreme Court Rules 1970
Supreme Court Act 1970
Partnership Act 1892

CASES CITED: Hunter v Chief Constable of West Midlands Police [1982] AC 529
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Reichel v Magrath (1889) 14 App Cas 665
R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Partridge v McIntosh & Sons Ltd (1933) 49 CLR 453
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510
Shiels v Blakeley [1986] 2 NZLR 262
Colonial Acquisition Partnership v Colonial at Lynnfield Inc 697 F Supp 714 (SDNY 1988)
Executor Trustee and Agency Co of South Australia Ltd v Deputy Federal Commissioner of Taxes (SA) (1939) 62 CLR 545
Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409
Morrison v Judd (unreported, 10 October 1995, NSWCA)
House v The King (1936) 55 CLR 499
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Jonesco v Beard [1930] AC 298
McDonald v McDonald (1965) 113 CLR 529
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Duchess of Kingston's Case (1776) 1 Leach 146 (168 ER 175)
Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1992) 37 FCR 234
Toubia v Schwenke (2002) 54 NSWLR 46
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Cababe, The Principles of Estoppel, Maxwell, London, 1888
Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed, Butterworths, London, 1996
Lindley & Banks on Partnership, 17th ed, Sweet & Maxwell, London, 1995
Joske, The Law of Partnership in Australia and New Zealand, 2nd ed, Butterworths, Sydney, 1966
Higgins and Fletcher, The Law of Partnership in Australia and New Zealand, 8th ed,…

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.

Continue reading Page v McKensey

Details

AGLC: Page v McKensey [2003] NSWSC 759
Case: [2003] NSWSC 759
Decision Date: 2 September 2003

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Page v McKensey involved a dispute between former partners of a terminated partnership. The appellant, Page, sought to amend his statement of claim after his initial proceedings were dismissed. The respondents, including McKensey, opposed the amendment on the grounds that the issues had already been decided in separate proceedings involving some of the partners. The Master of the Court had refused leave to amend and subsequently struck out the amended statement of claim, dismissing the proceedings.

The legal issues central to the case were whether the Master's decision constituted an abuse of process, whether Page was bound by the findings from the earlier proceedings due to the doctrine of res judicata, and if Page could set aside the judgment on the basis of fraud. Specifically, the court had to determine whether Page was precluded from raising certain claims because they had already been adjudicated in other litigation, and whether Page's allegations of fraud were sufficient to warrant setting aside the judgment against him.

The Court of Appeal found that the Master's refusal to allow further amendments was not an abuse of process. It concluded that Page was indeed bound by the findings from the earlier proceedings, as he was privy to those co-partners who were parties to that litigation. Furthermore, the Court held that Page could not set aside the judgment based on fraud because the evidence he cited was not newly found and was unlikely to result in a different outcome. The Court emphasised that it was inappropriate for Page to pursue such claims in a proceeding against multiple co-partners when the allegations of fraud were limited to only two of them.

As a result, the appeal was dismissed, and the decision of the Master was upheld. The Court confirmed that Page was bound by the earlier findings and that the proceedings against him were correctly dismissed.

Orders