CITATION: Whitehouse v BHP Steel Ltd [2004] NSWCA 428 HEARING DATE(S): 17 November 2004 JUDGMENT DATE:
6 December 2004JUDGMENT OF: Giles JA at 1; Tobias JA at 2; McColl JA at 72 DECISION: Appeal dismissed with costs. CATCHWORDS: ESTOPPEL - Conventional estoppel - Party asserting estoppel was the source of the assumption - Self-induced assumption - Other party fosters the assumption - No attempt to correct mistaken assumption - PRACTICE AND PROCEDURE - Prejudice - Argument on appeal not raised at trial - Bound by conduct of case LEGISLATION CITED: Nil CASES CITED: Amalgamated Investment & Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd [1982] QB 84
Chilcotin Pty Ltd v Canelage Pty Ltd [1999] NSWCA 11
Coghlan v S H Lock (Australia) Limited (1985) 4 NSWLR 158
Colton v Holcombe (1986) 162 CLR 1
Commonwealth v Verwayen (1990) 170 CLR 394
Con-Stan Industries of Australia Pty Limited v Norwich Winterhur Insurance (Australia) Ltd (1986) 160 CLR 226
Cummings v Lewis (1993) 41 FCR 559
Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175
Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641
K Lokumal & Sons (London) Ltd v Lotte Shipping Co Ltd [1985] 2 Lloyd's Rep 28
Multicon Engineering Pty Limited v Federal Airports Corporations (2000) 47 NSWLR 631
Suttor v Gundowda Pty Limited (1950) 81 CLR 418
University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481
Water Board v Moustakas (1988) 180 CLR 491PARTIES :
Mark Geoffrey Whitehouse
BHP Steel LimitedFILE NUMBER(S): CA 41203/03 COUNSEL: A: J S Drummond
R: J B Simpkins SC / A J McInerneySOLICITORS: A: Hewitts Commercial Lawyers, Newcastle
R: Gadens Lawyers, Sydney
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 7860/02 LOWER COURT
JUDICIAL OFFICER :Rolfe DCJ
CA 41203/03
Monday 6 December 2004GILES JA
TOBIAS JA
McCOLL JA
1 GILES JA: I agree with Tobias JA.
2 TOBIAS JA: By its Second Amended Statement of Liquidated Claim filed in the District Court on 18 July 2003, the respondent sued the appellant as guarantor with respect to certain roofing materials (materials) sold and supplied by the respondent to MGW Roofing Pty Limited (Roofing) of which the appellant was the sole director.
3 The appellant's primary defence to the respondent's claim was that as he had only given a guarantee with respect to materials supplied by the respondent to MGW Construction Pty Limited (Construction) (of which the appellant was the sole director and shareholder), he was not liable under that guarantee with respect to materials supplied by the respondent to Roofing.
4 By way of reply, the respondent asserted that the appellant was estopped from denying that he was liable to it under the guarantee in respect of materials supplied to Roofing as the relationship between them had proceeded on the conventional basis of an agreed or assumed state of affairs which both were estopped from denying. That assumed…
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- Case
- [2004] NSWCA 428
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether Whitehouse could successfully establish a conventional estoppel against BHP Steel, particularly given that Whitehouse was the source of the assumption and whether BHP Steel had acted in a way that fostered this assumption. The court also considered whether Whitehouse had suffered prejudice as a result of BHP Steel's conduct, and whether an argument not raised at trial could be considered on appeal.
The Court of Appeal found that Whitehouse could not establish a conventional estoppel. The court reasoned that Whitehouse was the party who had made the assumption, and there was no evidence that BHP Steel had induced or fostered this assumption. Furthermore, the court noted that Whitehouse had not demonstrated any prejudice arising from BHP Steel's conduct. The court also held that parties are generally bound by the way they conducted their case at trial, and arguments not raised at that stage would not be considered on appeal.
Consequently, the appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
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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