Critchley & Ors v Conway & Anor [2009] NSWCA 297

New South Wales Court of Appeal

CITATION: Critchley & Ors v Conway & Anor [2009] NSWCA 297

HEARING DATE(S): 8 September 2009

JUDGMENT DATE: 29 September 2009

JUDGMENT OF: Ipp JA at 1; Tobias JA at 80; Handley AJA at 81

1. Grant leave to appeal as sought by the appellants; 2. Uphold the appeal by setting aside the orders made by Debelle AJ to the extent that they bear on the 33 wine storage tanks; DECISION: 3. Save to the extent that the orders made by his Honour bear on the 33 wine storage tanks, dismiss the appeal against the orders he made; 4. The issues relating to the 33 wine storage tanks proceed to trial together with the other issues that remain in the case; and 5. Each party partially successful and no order as to the costs of the application for leave to appeal and the appeal.

CATCHWORDS: PROCEDURE – judgments and orders – summary judgment ordered against five defendants – whether the trial judge was entitled to order summary judgment against two of the defendants – whether orders had been sought against two defendants not identified in the amended statement of claim – whether the parties had chosen a different basis at trial to the pleaded issues for the determination of their respective rights and liabilities - PROCEDURE – judgments and orders – whether summary judgment should have been ordered- whether there is sufficient evidence to create a triable issue – whether it was open for the trial judge to make particular findings and inferences in summary judgment proceedings

CATEGORY: Principal judgment

CASES CITED: Conway v Critchley & Ors [2009] NSWSC 499 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206