Smith v Noss

Case [2006] NSWCA 37

New South Wales


Court of Appeal


CITATION: Smith v Noss [2006] NSWCA 37
HEARING DATE(S): 9 and 10 February 2006
 
JUDGMENT DATE: 
8 March 2006
JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Ipp JA at 62
DECISION: Proposed orders: (1) Set aside the declarations and orders made by Gzell J in proceedings 1101/01 on 1 July 2004 and the judgment for the appellant in proceedings 3697/01; (2) Order that there be a fresh hearing on the liberty to apply in proceedings 1101/01 and a new trial of the appellant’s claims in proceedings 3697/01; (3) The respondent to pay 75 per cent of the appellant’s costs of the appeal; (4) The costs to date of the proceedings on the liberty to apply in proceedings 1101/01 and of proceedings 3697/01 to be paid as ordered by the judge(s) conducting the fresh hearing and the new trial; (5) Respondent to have a certificate under the Suitors Fund Act if otherwise qualified. Order now made that the proceedings are listed before Giles JA at 9.30 am on 15 March 2006, on which date the parties’ attitudes to mediation should be made known and, if necessary, directions will be given for filing submissions on whether the Court should make an order for compulsory mediation.
CATCHWORDS: Partnership - whether entry into partnership caused by false representations - whether would not have entered into partnership if truth known - consideration of need for "specific evidence of reliance" or evidence explaining thought processes at the time - error in insistence on such evidence - consequences as to new trial including of associated credibility-based issues.
CASES CITED: CSR Ltd v Della Maddalena [2006] HCA 1;
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553;
Gould v Vaggelas (1985) 157 CLR 215;
Holman v Holman (1965) ALR 274;
Metalcorp Recyclers Pty Ltd v Metal Manufacturers [2003] NSWCA 213;
Read v Nerey Nominees Pty Ltd (1979) VR 47;
Ricochet Pty Ltd v Equity Trustees Executor and Agency Co Ltd (1993) 113 ALR 30;
Smith v Chadwick (1884) 9 App Cas 187;
Smith v Maloney (2005) 92 SASR 498;
Temiha v Sadebarth (CA, 13 May 1997, unreported);
The Waterways Authority v Fitzgibbon [2005] HCA 57.
PARTIES: Bronwyn Smith - Appellant/Cross Respondent
Stephen Thomas Frere Noss - Respondent/Cross Appellant
FILE NUMBER(S): CA 40601/04; 40602/04
COUNSEL: N Cotman SC & C Locke - Appellant
G Laughton SC & W G Hodgekiss
SOLICITORS: Campbell Hughes Solicitors - Appellant
Stephen Noss & Associates - Respondent
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 3697/01; SC 1101/01
LOWER COURT JUDICIAL OFFICER: Gzell J



                          CA 40601/04
                          CA 40602/04
                          SC 3697/01
                          SC 1101/01

                          BEAZLEY JA
                          GILES JA
                          IPP JA

                          Wednesday 8 March 2006

SMITH v NOSS


SMITH v NOSS

Judgment

1 BEAZLEY JA: I agree with Giles JA.

2 GILES JA: Mr Stephen Noss and Ms Bronwyn Smith were legal practitioners, admitted to practise on 14 June 1974 and 18 February 1984 respectively. Mr…

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AGLC
Smith v Noss [2006] NSWCA 37
Case
[2006] NSWCA 37
Decision Date

CaseChat Overview and Summary

In Smith v Noss, the Court of Appeal of New South Wales considered an appeal concerning a partnership dispute. The appellant alleged that their entry into the partnership was induced by false representations made by the respondent, and that they would not have entered into the partnership had the truth been known.

The central legal issues before the Court of Appeal were whether the primary judge erred in requiring specific evidence of reliance or evidence explaining the appellant's thought processes at the time of entering the partnership, and the consequences of any such error, including the need for a new trial.

The Court of Appeal found that the primary judge had erred in insisting on specific evidence of reliance or an explanation of the appellant's thought processes. The Court held that such evidence was not a prerequisite for establishing that the appellant would not have entered the partnership if the truth had been known. Consequently, the Court ordered that the declarations and orders made by the primary judge be set aside, and that there be a fresh hearing on the liberty to apply and a new trial of the appellant's claims. The Court also made orders regarding the costs of the appeal and the future conduct of the proceedings.

Orders

Orders of the court

Proposed orders: (1) Set aside the declarations and orders made by Gzell J in proceedings 1101/01 on 1 July 2004 and the judgment for the appellant in proceedings 3697/01; (2) Order that there be a fresh hearing on the liberty to apply in proceedings 1101/01 and a new trial of the appellant’s claims in proceedings 3697/01; (3) The respondent to pay 75 per cent of the appellant’s costs of the appeal; (4) The costs to date of the proceedings on the liberty to apply in proceedings 1101/01 and of proceedings 3697/01 to be paid as ordered by the judge(s) conducting the fresh hearing and the new trial; (5) Respondent to have a certificate under the Suitors Fund Act if otherwise qualified. Order now made that the proceedings are listed before Giles JA at 9.30 am on 15 March 2006, on which date the parties’ attitudes to mediation should be made known and, if necessary, directions will be given for filing submissions on whether the Court should make an order for compulsory mediation.

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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