Simmons v Henwood

Case [2013] NSWCA 184

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 1969
Cases 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 87
Category: 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

  1. BARRETT JA: The circumstances in which this matter has come before the Court…

Continue reading Simmons v Henwood

Sign in free to access the full text

Details
AGLC
Simmons v Henwood [2013] NSWCA 184
Case
[2013] NSWCA 184
Decision Date

CaseChat Overview and Summary

In *Simmons v Henwood*, the appellant, Simmons, sought leave to appeal against an order of Hammerschlag J of the Supreme Court of New South Wales, which had summarily dismissed his claim against the first and second respondents. The dispute concerned the appellant's interest in land, which had been the subject of previous Court of Appeal orders made in 1994.

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

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.