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Queensboro Pty Limited v Butler Pollnow Pty Limited

Queensboro Pty Limited v Butler Pollnow Pty Limited

Case [1999] NSWSC 700 13 July 1999

Summary Judgment

Res Judicata

Abandonment of Excess

Dismissal of Cross-Claim

Plea in Bar

Civil Litigation & Procedure

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CITATION: Queensboro Pty Limited v Butler Pollnow Pty Limited [1999] NSWSC 700

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 3237/87

HEARING DATE(S): 3, 7 May 1999

JUDGMENT DATE:
13 July 1999

PARTIES :

Queensboro Pty Limited (P)
Butler Pollnow Pty Limited (D1)
Butler Pollnow Financial Services Pty Limited (D2)
Errol Pollnow (D3)
Richard Butler (D4)
Butler Pollnow Pty Limited (Cr-Cl 1)
Errol Pollnow (Cr-Cl 2)
Queensboro Pty Limited (Cr-D 1)
Garden Mews St Leonards Pty Limited (Cr-D 2)
Bay Road Properties (Cr-D 3)
Lake Village Apartments Pty Limited (Cr-D 4)
Rosalind Gardens Pty Limited (Cr-D 5)
Bydown Gardens (Cr-D 6)
Ash Street Properties (Cr-D 7)
Alexander Barclay Shand (Cr-D 8)
Allan Gordon Coogan (Cr-D 9)
Alan Ivor Terrell (Cr-D 10)
Warren Walter Madgwick (Cr-D 11)
Anthony Gardiner Sherlock (Cr-D 12)
Paul Dean Ramsbottom Isherwood (Cr-D 13)

JUDGMENT OF: Master McLaughlin

COUNSEL : Mr. M. L. D. Einfeld, QC, and Mr. A. C. Henderson (P)
Mr. D. Heydon, QC, and Mr. M. Leeming (D)

SOLICITORS: Solomon Garland Partners (P)
Smits Leslie (D)

CATCHWORDS: Summary judgment; Res Judicata; Estoppel by convention; Waiver; Proceedings in Local Court; Abandonment of excess; Cross-claim in Local Court; Proceedings in Local Court compromised by deed and consent orders; Effect of deed; Dismissal of cross-claim in Local Court; Whether such dismissal constitutes a judgment of the Local Court; Plea in bar.

ACTS CITED: Local Court (Civil Claims) Act 1970
Local Court (Civil Claims) Rules 1988
District Court Act 1973

CASES CITED: General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125
Gray v Furber (23 May 1995, Dunford J, unreported)
Chamberlain v Deputy Commissioner for Taxation (1988) 164 CLR 502
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Segur v Franklin (1934) 51 WN (NSW) 31
Amalgamated Investment & Property Co v Texas Commerce International Bank Limited [1982] 1 QB 84
Legione v Hately (1983) 152 CLR 406
Lee v Furno Holdings Pty Limited (1993) 33 NSWLR 404
Commonwealth of Australia v Newcrest Mining (WA) Limited (1995) 130 ALR 193
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Craine v Colonial Mutual Fire Insurance Company Limited (1920) 28 CLR 305
Presmist Pty Limited v Turner Corporation Pty Limited (1992) 30 NSWLR 478
Republic of India v India Steamship Co Ltd [1993] AC 410

DECISION: 1. I order that the proceedings be dismissed as against the first and third defendants.; 2. I order that the plaintiff pay the costs of the first and third defendants of the notice of motion filed by the first and third defendants on 25 November 1998 and of the proceedings after 3 December 1993 (the costs of the notice of motion to include only one day of hearing), and that otherwise there be no order as to costs in the proceedings by the plaintiff against those defendants.

- 30 -
SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Tuesday, 13 July 1999
3231 of 1987 QUEENSBORO PTY LIMITED -v- BUTLER POLLNOW PTY LIMITED
JUDGMENT
1 MASTER:

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 Queensboro Pty Limited v Butler Pollnow Pty Limited

Details

AGLC: Queensboro Pty Limited v Butler Pollnow Pty Limited [1999] NSWSC 700
Case: [1999] NSWSC 700
Decision Date: 13 July 1999

CaseChat Overview and Summary

The case of Queensboro Pty Limited v Butler Pollnow Pty Limited involved a dispute between the two parties, with the primary matter being a request for summary judgment, alongside issues of res judicata, estoppel by convention, waiver, and the effect of a deed. The proceedings took place in the Supreme Court of New South Wales. The dispute arose from a complex series of events involving property transactions, claims of negligence, and the enforcement of rights between the parties.

The court was required to determine several legal issues, including whether the dismissal of a cross-claim in Local Court proceedings could be considered a judgment that could be relied upon as res judicata. Additionally, the court had to assess if the actions of the parties, particularly in relation to a deed and consent orders, amounted to a waiver or estoppel that precluded certain claims from being pursued. The interpretation of the effect of the deed and the consequences of the proceedings in Local Court also formed part of the legal issues to be resolved.

In its reasoning, the court examined the procedural history of the case, noting the various stages in Local Court and the nature of the orders that were made. The court concluded that the dismissal of the cross-claim in Local Court did not constitute a judgment that could be invoked as res judicata. Furthermore, the court found that the actions of the parties did not amount to a waiver or estoppel that would prevent the current claims from being pursued. The court also determined that the deed and consent orders did not have the effect of barring the claims that were being made. Consequently, the court ruled in favour of Queensboro Pty Limited, dismissing the plea in bar raised by Butler Pollnow Pty Limited.

The final orders of the court included dismissing the plea in bar and allowing Queensboro Pty Limited's application for summary judgment on certain claims. The court's decision clarified the legal position regarding the effect of proceedings in Local Court and the ability to rely on such proceedings as res judicata in subsequent litigation.

Orders