COMINO v MANETTAS, COONEY v MANETTAS [1993] NSWCA 73

COMINO v MANETTAS, COONEY v MANETTAS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, SHELLER and CRIPPS JJA 22 September 1993, 1 October 1993

[1993] NSWCA 73

ORDERS made by Court of Appeal on appeal — Motion for Determination of further Questions — Declaration made of right of Solicitors to claim indemnity under insurance policy — Motion for withdrawal of declaration and substitution of other orders — Motion for determination by Court of Appeal of issues not raised in pleadings, at trial or on appeal.

Held: Issues would or may require the determination of issues of fact - Not appropriate for Court of Appeal to decide issues - Referred to trial Division to deal further with proceedings.

Mahoney JA On 5 March 1993 this Court held, inter alia, that the appellant solicitors ("the Solicitors") were liable in negligence to their former client Nicholas Peter Manettas and that the Solicitors were, in terms of their insurance policies, entitled to indemnity against their insurers in respect of that liability. The terms of the orders to be made were to be the subject of further consideration.

On 20 May 1993, after argument, this Court held, inter alia, that the relief to which the Solicitors were entitled was a declaration. It concluded that it should not make orders for payment, by the insurers to the Solicitors, of a specific money sum. It did so following argument upon the matter and because, inter alia, an important issue between the Solicitors and the insurers ("the one claim issue") required - or might require - judicial determination.

Subsequently, on 28 June 1993, the Solicitors moved the Court to reconsider the orders then made, to change them, and to grant a different form of relief. They did this essentially because they desired that, on that motion, the Court should determine the one claim issue. The Solicitors conceded that that issue arose as part of their claim against their insurers, that it was not litigated or argued between them at the trial, that it was not argued before this Court on the appeal, and that it was referred to as a relevant matter in the argument before this Court as to the form which the orders of this Court should take.