Smith v Noss [2006] NSWCA 37

New South Wales Court of Appeal

CITATION: Smith v Noss [2006] NSWCA 37

HEARING DATE(S): 9 and 10 February 2006

JUDGMENT DATE: 8 March 2006

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Ipp JA at 62

DECISION: Proposed orders: (1) Set aside the declarations and orders made by Gzell J in proceedings 1101/01 on 1 July 2004 and the judgment for the appellant in proceedings 3697/01; (2) Order that there be a fresh hearing on the liberty to apply in proceedings 1101/01 and a new trial of the appellant's claims in proceedings 3697/01; (3) The respondent to pay 75 per cent of the appellant's costs of the appeal; (4) The costs to date of the proceedings on the liberty to apply in proceedings 1101/01 and of proceedings 3697/01 to be paid as ordered by the judge(s) conducting the fresh hearing and the new trial; (5) Respondent to have a certificate under the Suitors Fund Act if otherwise qualified. Order now made that the proceedings are listed before Giles JA at 9.30 am on 15 March 2006, on which date the parties' attitudes to mediation should be made known and, if necessary, directions will be given for filing submissions on whether the Court should make an order for compulsory mediation.

CATCHWORDS: Partnership - whether entry into partnership caused by false representations - whether would not have entered into partnership if truth known - consideration of need for "specific evidence of reliance" or evidence explaining thought processes at the time - error in insistence on such evidence - consequences as to new trial including of associated credibility-based issues.

CSR Ltd v Della Maddalena [2006] HCA 1; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Gould v Vaggelas (1985) 157 CLR 215; Holman v Holman (1965) ALR 274; Metalcorp Recyclers Pty Ltd v Metal Manufacturers [2003] NSWCA 213; CASES CITED: Read v Nerey Nominees Pty Ltd (1979) VR 47; Ricochet Pty Ltd v Equity Trustees Executor and Agency Co Ltd (1993) 113 ALR 30; Smith v Chadwick (1884) 9 App Cas 187; Smith v Maloney (2005) 92 SASR 498; Temiha v Sadebarth (CA, 13 May 1997, unreported); The Waterways Authority v Fitzgibbon [2005] HCA 57.