Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Wilcox v Chapple [2025] NSWCA 155 Hearing dates: 28 May 2025 Decision date: 16 July 2025 Before: Leeming JA; Ball JA; Griffiths AJA Decision: 1. Appellant’s notice of motion filed 23 May 2025 dismissed.
2. Appeal dismissed.
3. Appellant pay the first and second respondents’ costs of the appeal (including the costs of the notice of motion filed 23 May 2025).
Catchwords: EQUITY — trusts — rural properties said to be held on trust — plaintiff aware of letter saying he was beneficiary of trust many years ago — plaintiff made deliberate decision not to advance claim based on trust in earlier litigation seeking family provision orders — litigation compromised by release approved by Court — whether claims barred by release — whether claims barred by res judicata or Anshun estoppel — whether claims made out on merits
PROCEDURE — appeals — further or fresh evidence — whether plaintiff should be permitted to rely on further evidence — relationship between application for tender of further evidence on appeal and ground of appeal challenging rejection of same evidence at trial — whether plaintiff had established evidence not available by reasonable diligence and whether evidence likely to be material
Legislation Cited: Bankruptcy Act 1966 (Cth), s 58
Civil Procedure Act 2005 (NSW), ss 58, 62
Duties Act 1997 (NSW), s 304
Succession Act 2006 (NSW), ss 59, 95, 96
Supreme Court Act 1970 (NSW), s 75A
Trustee Act 1925 (NSW), s 63
Uniform Civil Procedure Rules 2005 (NSW), rr 31.23, 36.15, 51.18, 51.51
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66
Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136
Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288
Chapple v Wilcox [2014] NSWCA 392
Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV [2021] FCAFC 77; 389 ALR 612
Foundas v Arambatzis (2022) 109 NSWLR 73; [2022] NSWCA 113
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270
Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Watson v Foxman (1995) 49 NSWLR 315
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Wilcox v Chapple [2024] NSWSC 1394
Texts Cited: P R Adams and B J McMahon, Australian Tax Planning with Precedents (Butterworths, 1961)
Category: Principal judgment Parties: Robert William Wilcox (Appellant)
John Francis…
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- AGLC
- Wilcox v Chapple [2025] NSWCA 155
- Case
- [2025] NSWCA 155
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether Mr Wilcox's claims were barred by the release executed in the earlier proceedings, or by the doctrines of *res judicata* or *Anshun* estoppel. Additionally, the Court considered whether Mr Wilcox had established his claims on their merits, and whether he should have been permitted to rely on further evidence on appeal, examining the relationship between an application to tender fresh evidence and a ground of appeal challenging the rejection of that same evidence at trial. The Court also considered whether the plaintiff had established that the evidence was not available by reasonable diligence and whether it was likely to be material.
The Court of Appeal found that the release executed in the earlier family provision proceedings was a complete bar to the present claims concerning the rural properties. The Court reasoned that the terms of the release were sufficiently broad to encompass the claims now being advanced, and that Mr Wilcox had made a conscious and informed decision not to pursue these trust-based claims in the prior litigation. Consequently, the Court held that the doctrines of *res judicata* and *Anshun* estoppel also applied, preventing the relitigation of issues that were, or could have been, raised in the earlier proceedings. The application to adduce further evidence was dismissed as the evidence was not likely to be material and could have been obtained with reasonable diligence.
The Appellant’s notice of motion filed 23 May 2025 was dismissed, and the appeal was dismissed. Mr Wilcox was ordered to pay the first and second respondents’ costs of the appeal, including the costs of the notice of motion.
Orders
Orders of the court
1. Appellant’s notice of motion filed 23 May 2025 dismissed.
2. Appeal dismissed.
3. Appellant pay the first and second respondents’ costs of the appeal (including the costs of the notice of motion filed 23 May 2025).
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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