Yates Property Corporation Pty Ltd v Boland [2000] FCA 1106

FEDERAL COURT OF AUSTRALIA

Yates Property Corporation Pty Ltd v Boland [2000] FCA 1106 COSTS – Costs of application to amend cross‑claim – no longer any issue of liability of respondents to applicant – substantive issues resolved – no judgment on applications on substantive issues – resolution of costs of application by reference to substantive issues although no judgment given on substantive issues. PLEADINGS – Cross-claim – application to amend cross-claim – claim that amendment would cause irreparable prejudice – prejudice alleged on basis of length of time between initial hearing and proposed hearing of amended cross-claim – no irreparable prejudice. DAMAGES – Damages on cross-claim - application to amend cross-claim – application based on claim for contribution – contribution claim based on Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and on equity – claim based on statute inapplicable on facts – claim based on equity failed because of lack of co-ordinate liability or common burden. ESTOPPEL – Issue estoppel – application to amend cross-claim – challenge to amendment of cross‑claim based on existence of issue estoppel – determination of ultimate fact and evidentiary fact – whether duty of care owed by solicitor to client same as duty owed by counsel to client – no identity of issues. ESTOPPEL – Anshun estoppel – application to amend cross-claim – whether amendment of cross‑claim would create an inconsistent judgment – no inconsistent judgment. Federal Court of Australia Act 1976 (Cth): s 43 Federal Court Rules: O 13 r2(7) Story, Commentaries on Equity Jurisprudence 3rd ed 1920 Spencer Bower et al, The Doctrine of Res Judicata 3rd ed 1996 Australian Securities Commission v Aust‑Home Investments Ltd (1993) 44 FCR 194 referred to Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 referred to Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 143 ALR 1 referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 distinguished James Hardie & Coy Pty Limited v Seltsam Pty Ltd (1998) 196 CLR 53 distinguished NRMA Ltd v Morgan & Ors (No 3) (Giles J, 4 August 1999, unreported, New South Wales Supreme Court) distinguished Albion Insurance Co Ltd v Government Insurance Office of NSW (1969) 121 CLR 342 distinguished Blair v Curran (1939) 62 CLR 464 followed Murphy v Abi‑Saab (1995) 37 NSWLR 280 followed Jackson v Goldsmith (1950) 81 CLR 446 referred to Linsley v Petrie [1998] 1 VR 427 followed Brunsden v Humphrey (1884) 14 QBD 141 followed Sandtara Pty Ltd v Abigroup Ltd (1997) 42 NSWLR 5 followed North West Water Ltd v Binnie & Partners [1990] 3 All ER 547 distinguished Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 referred to Arnold v National Westminster Bank Plc [1991] 2 AC 93 not followed O'Toole v Charles David Pty Limited (1991) 171 CLR 232 referred to YATES PROPERTY CORPORATION PTY LIMITED v JOHN BOLAND (as representative of Abbott Tout Russell Kennedy Solicitors) & ORS NG 44 of 1993 GOLDBERG J SYDNEY 9 AUGUST 2000