Court of Appeal
New South Wales
Case Title: Simmons v Henwood Medium Neutral Citation: [2013] NSWCA 184 Hearing Date(s): 9 May 2013 Decision Date: 25 June 2013 Before: Barrett JA at [1];
Emmett JA at [18];
Gleeson JA at [99]Decision: The Court orders that:
1.Leave to appeal be granted and the appeal be allowed.
2.The orders of Hammerschlag J made on 7 May 2012 dismissing the appellant's claim against the first and second respondents be set aside.
3.The matter be remitted to the primary judge for consideration of any application that the appellant wishes to make.
4.The costs of the appeal be the parties' costs of proceeding no. 2011/79920
5.The costs of the motions for summary dismissal be reserved for the primary judge to decide, after hearing and determining any application made on behalf of the appellant.[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - application for leave - summary dismissal - pleaded claim had no reasonable prospects of success - where Court of Appeal made orders in 1994 concerning plaintiff's interest in land - whether res judicata or issue estoppel - whether fraud pleaded in statement of claim necessary to challenge registered title under s 42 of Real Property Act 1900 Legislation Cited: Real Property Act 1900, s 42
Western Lands Act 1901, s 18G(1)(b)
Conveyancing Act 1919, s 54A
Protected Estates Act 1983
Limitation Act 1969Cases Cited: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604
Mills v Stokman [1967] HCA 15; (1967) 116 CLR 61
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198
Henderson v Henderson (1843) 3 Hare 100
Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589
Barnes v Addy (1874) LR 9 Ch App 244
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87Category: Principal judgment Parties: Paul Ernest Simmons (Appellant)
Raymond John Henwood (First Respondent)
Dorothy Frances Simmons (Second Respondent)Representation - Counsel: Counsel:
P E King; D McCallum (Appellant)
J M Ireland QC (First Respondent)
S F Hughes (Second Respondent)- Solicitors: Solicitors:
Rhodes Kildea (Appellant)
Denniston & Day (First Respondent)
Boyd House & Partners (Second Respondent)File Number(s): CA 2012/166228 Decision Under Appeal - Before: Hammerschlag J - Date of Decision: 07 May 2012 - Citation: [2012] NSWSC 455 - Court File Number(s): 2011/79920
JUDGMENT
BARRETT JA: The circumstances in which this matter has come before the Court…
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- AGLC
- Simmons v Henwood [2013] NSWCA 184
- Case
- [2013] NSWCA 184
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the appellant's claim was barred by the doctrines of *res judicata* or issue estoppel, and whether the appellant's pleaded claim, which alleged fraud, was a necessary prerequisite to challenging a registered title under section 42 of the *Real Property Act 1900* (NSW).
The Court of Appeal determined that the appellant's claim did not necessarily fail on the grounds of *res judicata* or issue estoppel, nor was the pleading of fraud a fatal flaw to his case. The Court found that the primary judge had erred in dismissing the claim summarily, as the appellant's statement of claim, when read generously, suggested a case that ought to have been permitted to proceed.
Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders of Hammerschlag J. The matter was remitted to the primary judge for further consideration of any applications the appellant wished to make, with costs of the appeal to be the parties' costs in the proceeding and the costs of the summary dismissal motions reserved for the primary judge.
Orders
Orders of the court
The Court orders that:
1.Leave to appeal be granted and the appeal be allowed.
2.The orders of Hammerschlag J made on 7 May 2012 dismissing the appellant's claim against the first and second respondents be set aside.
3.The matter be remitted to the primary judge for consideration of any application that the appellant wishes to make.
4.The costs of the appeal be the parties' costs of proceeding no. 2011/79920
5.The costs of the motions for summary dismissal be reserved for the primary judge to decide, after hearing and determining any application made on behalf of the appellant.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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