Whitehouse v BHP Steel Ltd - [2004] NSWCA 428

CITATION: Whitehouse v BHP Steel Ltd [2004] NSWCA 428

HEARING DATE(S): 17 November 2004

JUDGMENT DATE:
6 December 2004

JUDGMENT 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 491

PARTIES :
Mark Geoffrey Whitehouse
BHP Steel Limited

FILE NUMBER(S): CA 41203/03

COUNSEL: A: J S Drummond
R: J B Simpkins SC / A J McInerney

SOLICITORS: 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

GILES JA
TOBIAS JA
McCOLL JA
Monday 6 December 2004

MARK GEOFFREY WHITEHOUSE v BHP STEEL LIMITED

Judgment

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWCA 428
Decision Date: 6 December 2004

CaseChat Overview and Summary

The appeal concerned a dispute between Whitehouse and BHP Steel Ltd. Whitehouse sought to rely on a conventional estoppel against BHP Steel, alleging that BHP Steel had fostered an assumption in Whitehouse that certain payments would be made. The appeal was heard by Giles, Tobias, and McColl JJA in the Court of Appeal of New South Wales.

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

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.

CITATION:	Whitehouse v BHP Steel Ltd [2004] NSWCA 428
HEARING DATE(S):	17 November 2004
JUDGMENT DATE:	6 December 2004
JUDGMENT 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 491
PARTIES :	Mark Geoffrey Whitehouse BHP Steel Limited
FILE NUMBER(S):	CA 41203/03
COUNSEL:	A: J S Drummond R: J B Simpkins SC / A J McInerney
SOLICITORS:	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