Pollnow v Armstrong [2000] NSWCA 245

New South Wales Court of Appeal

CITATION : Pollnow v Armstrong [2000] NSWCA 245 revised - 6/11/2000 FILE NUMBER(S) : CA 40064/99 HEARING DATE(S) : 28 July 2000 JUDGMENT DATE : 31 August 2000

PARTIES : Errol Hugh Pollnow v Frank John Armstrong, Charles James Buckles, Gordon Raymond Engele, Neville Murray Gentle, Raymond John Heiniger, John Sidney Herman, Robin Reece Jones, Neville Lockett, Peter Ferguson Martin, Bruce Valentine Mickan, Barry Phillip O'Regan, Geoffrey Harold Pollock, Lake Village Apartments Pty Limited, Butler Pollnow Pty Limited. JUDGMENT OF : Priestley JA at 1; Meagher JA at 4; Sheller JA at 18

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT 3702/98 FILE NUMBER(S) : LOWER COURT Cohen J JUDICIAL OFFICER :

COUNSEL : Appellant: J J Archer Respondents: M. Einfield QC/H. Packer Appellant: Smits Leslie SOLICITORS : Respondents 1-13: Solomon Garland Partners Respondents 14: Gayle Meredith & Associates. CATCHWORDS : Partnership - Real estate development - Units held in trust - beneficiary - res judicata - Arnold v Westminister Bank Pty Limited distinguished. CASES CITED: Arnold v National Westminster Bank Pty Limited [1991] 2 AC 93, Tiufino v Warland [2000] NSWCA 110. DECISION : Appeal dismissed with costs.

- 1 - - 7 - PARTNERSHIP - REAL ESTATE DEVELOPMENT - UNITS HELD IN TRUST - BENEFICIARY - RES JUJDICATA - ARNOLD v WESTMINSTER BANK PTY LIMITED DISTINGUISHED. Facts: The present appellant in prior litigation in the Equity Division before McClelland CJ in Equity, claimed units in "Lake Village Apartments Pty Limited" were held in trust for him and that this Company held 15-25% of the units in the partnership "Beauvest Investment Partnership". Mr Pollnow alleged that the trust was express, arising from a Deed of Nomination and constructive. His Honour disallowed an express trust and found a constructive trust. On appeal, the Court of Appeal found an express trust and disallowed a constructive trust, and then found the allegation of trust failed because the Deed of Nomination upon which it was based had not been stamped. Mr Pollnow then initiated further proceedings in the Equity Division claiming relevantly the same relief. This litigation was dismissed by Cohen J and Mr Pollnow appeals. Held: By Meagher JA, Priestley, Sheller JJA agreeing: 1. The parties were different in each case but not relevantly so: In each the issue was whether the units of Lake Village Apartment Pty Limited in the Beauvest Investment Partnership were held for Mr Pollnow. As a result the proper parties were the same in each case. 2. Thus, one can say of the later proceedings that they involve exactly the same claim over the same property by the same plaintiff against the same defendant as in the earlier cases. This is a classic situation for the application of res judicata, as found by Cohen J. 3. The doctrine of res judicata is concerned with results not reasons. The failure of the trust in previous proceedings prevents further proceedings based on the same allegation regardless of reasons. 4. The possible exception as stated in Arnold v Westminster Bank Pty Limited [1991] 2AC 93 distinguished: since the present case is true res judicata it is not appropriate to discuss the situation if it were merely issue estoppel. 5. For the purposes of res judicata one is restricted to the examination of the plaintiff's pleadings and the Court's orders: see Handley JA in Tiufino v Warland [2000] NSWCA 110.