Willoughby v Clayton Utz [No 2]

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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 Appellant

MICHAEL STEPHEN WILLOUGHBY
Third Appellant

AND

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

Busch v Stevens [1963] 1 QB 1

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

Jackson v Goldsmith (1950)…

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Details
Case
[2009] WASCA 29
Decision Date

CaseChat Overview and Summary

In the case of Willoughby v Clayton Utz, the appellants, the Willoughbys, sued the respondent, Clayton Utz, for damages resulting from alleged negligence and breach of contract. The dispute reached the High Court of Australia after the initial action was dismissed by the Federal Court due to the causes of action being vested in the Official Trustee in Bankruptcy. The causes of action were subsequently assigned to the appellants, leading to the commencement of a second action. The respondent applied for summary judgment, arguing that the defence of res judicata and the limitation period barred the second action.

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

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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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