White v Thompson

Case [2011] NSWCA 161

Court of Appeal

New South Wales
Case Title: White & Libut v Thompson & Ors
Medium Neutral Citation: [2011] NSWCA 161
Hearing Date(s): 13 April 2011
Decision Date: 27 June 2011
Jurisdiction:
Before:

Basten JA at 1; Young JA at 2; Handley AJA at 6
Decision:

Appeal and Notice of Motion of 5 April 2011 dismissed with costs.
[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:

ABUSE OF PROCESS -- first action established that excess drawings from joint-venture created debt due to joint-venture -- second action claiming proprietary rights by tracing through drawings -- abuse of process

EQUITY - accounts -- rights to be established at trial

PROCEDURE - accounts -- rights to be established at trial

RES JUDICATA - judgment for joint-venture accounts -- excess drawings from joint-venture created debts to joint-venture -- later claim to trace through drawings -- claim barred

RES JUDICATA - abuse of process -- first action established that excess drawings from joint-venture created debt due to joint-venture -- second action claiming proprietary right by tracing through drawings -- abuse of process
Legislation Cited:

Bankruptcy Act 1966 (Cth)
Cases Cited:

M'Mahon v Burchell (1846) 2 Ph 127, 136-7
McGrory v Alderdale Estate Co Ltd [1918] AC 513
MCC Proceeds Inc v Lehman Bros International (Europe) [1998] 4 All E R 675 CA
Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22, 54 NSWLR 146
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, 147 CLR 589
Reichel v Bishop of Oxford (1889) 14 App Cas 259
Reichel v Magrath (1889) 14 App Cas 665
Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198
Sanguinetti v Stuckey's Banking Company (No 2) [1896] 1 Ch 502
Smith v Armitage (1883) 24 Ch D 727
Squire v Rogers (1979) 39 FLR 106
Strachan v The Gleaner Co Ltd [2005] 1 WLR 3204 PC
Texts Cited:
Category: Principal judgment
Parties:

First Appellant - Julian John White
Second Appellant - Romeo Medina Libut
First Respondent  - Byron Ward Thompson
Second Respondent  - Jennifer Joy Thompson
Third Respondent  - Paul Weston atf Bankrupt Estate of Byron Ward Thompson
Representation
- Counsel:

First Appellant - Self Represented
Second Appellant - Self Represented (Ms Cheong as McKenzie friend)
First and Third Respondents - N Cotman SC
Second Respondent - A Bingham (sol)
- Solicitors:

First and Third Respondents - Brown & Partners
Second Respondent - Peninsula Law
File number(s): 2008/280717
Decision Under Appeal
- Court / Tribunal:
- Before: Windeyer AJ
- Date of Decision: 15 October 2009
- Citation: White & Anor v Thompson & Ors [2009] NSWSC 1103
- Court File Number(s) 2008/280717 (formerly…

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AGLC
White v Thompson [2011] NSWCA 161
Case
[2011] NSWCA 161
Decision Date

CaseChat Overview and Summary

In *White v Thompson*, the New South Wales Court of Appeal considered an appeal concerning claims arising from a joint venture. The dispute involved allegations of abuse of process in relation to a second action brought by the appellant, Mr Thompson, after a prior judgment had been entered.

The primary legal issue before the Court of Appeal was whether Mr Thompson's second claim, which sought to establish proprietary rights by tracing funds through excess drawings made from the joint venture, constituted an abuse of process. This was in light of a previous action where it had been established that these excess drawings had created a debt owed by Mr Thompson to the joint venture. The Court was therefore required to determine the application of the doctrine of *res judicata* and the broader concept of abuse of process in these circumstances.

The Court of Appeal found that the first action had definitively determined that the excess drawings constituted a debt due to the joint venture. Consequently, the subsequent claim to trace proprietary rights through those same drawings was an attempt to relitigate issues that had already been resolved. Applying the principles of *res judicata* and abuse of process, the Court held that the second action was an improper use of court proceedings.

The appeal and notice of motion were dismissed with costs.

Orders

Orders of the court

Appeal and Notice of Motion of 5 April 2011 dismissed with costs.

[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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