JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WILLOUGHBY -v- CLAYTON UTZ [No 2] [2009] WASCA 29
CORAM: WHEELER JA
PULLIN JA
MILLER JA
HEARD: 11 NOVEMBER 2008
DELIVERED : 2 FEBRUARY 2009
FILE NO/S: CACV 161 of 2007
BETWEEN: BERYL FRANCES WILLOUGHBY
First Appellant
JOHN FRANCIS WILLOUGHBY
Second AppellantMICHAEL STEPHEN WILLOUGHBY
Third AppellantAND
CLAYTON UTZ
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :ACTING MASTER CHAPMAN
Citation :WILLOUGHBY -v- CLAYTON UTZ [2007] WASC 281
File No :CIV 1764 of 2005
Catchwords:
Estoppel - Res judicata - First action by appellants against respondent for damages for alleged negligence and breach of contract - First action dismissed because causes of action vested in Official Trustee in Bankruptcy - Causes of action then assigned to appellants - Second action commenced - Summary judgment application by respondent - Whether res judicata defence bound to succeed
Stare decisis - Whether court should follow New South Wales Court of Appeal decision - Common law of Australia
Estoppel - Second action commenced more than six years after accrual of causes of action - Whether any arguable case that the respondent should be estopped from relying on limitation defence
Acknowledgment - Whether deed of assignment of causes of action contained an acknowledgment which extended the limitation period
Legislation:
Limitation Act 1623 (UK)
Limitation Act 1935 (WA), s 44
Rules of the Supreme Court 1971 (WA), O 16 r 1, O 21 r 7
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5
Result:
Ground 1 upheld and other grounds dismissed
Leave to appeal refused
Appeal dismissed
Category: A
Representation:
Counsel:
First Appellant : Mr K J Kimball
Second Appellant : Mr K J Kimball
Third Appellant : Mr K J Kimball
Respondent: Mr P C S van Hattem SC
Solicitors:
First Appellant : Sajen Legal
Second Appellant : Sajen Legal
Third Appellant : Sajen Legal
Respondent: Freehills
Case(s) referred to in judgment(s):
Arnold v National Westminster Bank Pty Ltd [1991] 2 AC 93
Blair v Curran (1939) 62 CLR 464
Boydell v Drummond (1808) 2 Camp 157; 170 ER 1114
Bucknell v Commercial Banking Co of Sydney Ltd (1937) 58 CLR 155
Cameron v Murdoch [2003] WASC 264(S)
Carl‑Zeiss (No 2) Stiftung v Rayner & Keeler Ltd [1967] 1 AC 853
Chamberlain v Deputy Commission of Taxation (1988) 164 CLR 502
Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283
DSV Silo-und Verwaltungsgesellschaft Mbh v Owners of the Sennar (No 2) [1985] 1 WLR 490
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Hurst v Parker (1817) 1 B & Ald 92; 106 ER 34
Keep reading for free
Create a free CaseChat account to read Willoughby v Clayton Utz [No 2] and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2009] WASCA 29
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the doctrine of res judicata required the respondent's summary judgment application to succeed, and whether the court should adhere to a New South Wales Court of Appeal decision. Additionally, the court considered whether there was an arguable case that the respondent should be estopped from relying on the limitation defence, and whether the deed of assignment contained an acknowledgment extending the limitation period.
The court determined that the doctrine of res judicata did not bar the second action as the causes of action had been assigned to the appellants after the first action was dismissed. The court also found that it was not bound by the New South Wales Court of Appeal decision, as the common law of Australia applied. The court held that there was no arguable case that the respondent should be estopped from relying on the limitation defence, and that the deed of assignment did not extend the limitation period. Consequently, the appeal was dismissed, and leave to appeal was refused.
The final orders of the court were that ground 1 of the appeal was upheld, while the other grounds were dismissed. The appeal was dismissed, and leave to appeal was refused, leaving the lower court's decision in place.
Orders
Orders of the court
Ground 1 upheld and other grounds dismissed
Leave to appeal refused
Appeal dismissed
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.