Baxter v Obacelo Pty Ltd & Anor [2000] NSWCA 69

Reported Decision : [2000] 48 NSWLR 522 [2001] Aust Torts Reports 81-601

New South Wales Court of Appeal

CITATION : Baxter v Obacelo Pty Ltd & Anor [2000] NSWCA 69 revised - 10/04/2000 FILE NUMBER(S) : CA 40447/99 HEARING DATE(S) : 1 December 1999 JUDGMENT DATE : 31 March 2000

PARTIES : Phillip Julius Baxter - Claimant Obacelo Pty Ltd & Richard Thomas Moon - Opponents JUDGMENT OF : Mason P at 1; Sheller JA at 2; Giles JA at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 14486/87 FILE NUMBER(S) : LOWER COURT Hulme J JUDICIAL OFFICER :

COUNSEL : D P Robinson - Claimant A J Sullivan QC, D P Miller & M G McHugh - Opponents SOLICITORS : Baker & McKenzie - Claimant Moray & Agnew - Opponents CATCHWORDS : JOINT TORTFEASORS - proceedings against both - settlement between plaintiffs and one defendant - judgment entered for settlement sum and settlement sum paid to plaintiffs - plaintiffs continue against other defendant - summary judgment application by the defendant - becomes decision of separate question - whether by force of s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 the plaintiffs could not recover from the defendant more than the judgment sum - no, because the restriction on recovery in the action did not apply where the tortfeasors were sued in the same proceedings - whether satisfaction of the judgment barred further proceedings against the defendant - no, because on facts the judgment for the settlement sum was not in full satisfaction of the plaintiffs' loss - whether settlement and payment of settlement sum barred further proceedings against the defendant - no, because on the facts the settlement sum was not in full satisfaction of the plaintiffs' loss - consideration of rule against double satisfaction and its application to a judgment sum. D CASES CITED: Bryanston Finance Ltd v de Vries (1975) QB 703, explained; Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR 159; D'Angola v Rio Pioneer Gravel Co Pty Ltd (1979) 1 NSWLR 495; XL Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd (1985) 155 CLR 448; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; and Jameson v Central Electricity Generating Board (1999) 1 All ER 193, considered. DECISION : (1) Application for leave to appeal dismissed; (2) Order that it be separately decided whether the matters of defence in paras 16-22 of the defence filed on 11 June 1998 provide a defence to the opponents' claim against the claimant; (3) Decide the question in the negative; (4) Claimant pay the opponents' costs of the proceedings in the Court of Appeal.