Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106 Hearing dates: 22 February 2017 Decision date: 23 May 2017 Before: McColl JA at [1]; Macfarlan JA at [2]; Sackville AJA at [89] Decision: (1) Dismiss, with costs, the appellant's application for leave to appeal from the interlocutory judgment of Sorby ADCJ of 17 August 2016 dismissing the appellant's motion for a new trial. (2) Allow the appeal from the judgments of Sorby ADCJ of 27 May 2016 and 17 August 2016. (3) Dismiss the cross-appeal from the judgment of Sorby ADCJ of 17 August 2016. (4) Set aside orders (1) and (3) made by Sorby ADCJ on 27 May 2016, save insofar as the latter ordered the defendant to pay the plaintiff's costs of the cross-claim as agreed or taxed. (5) Set aside orders (1) and (3) made by Sorby ADCJ by his judgment of 17 August 2016. (6) Judgment for the appellant in the proceedings commenced by the respondent in the District Court. (7) Order the respondent to pay the appellant's costs of the appeal, the cross-appeal and the proceedings at first instance. Catchwords: ESTOPPEL – estoppel by convention – elements – detriment – Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 considered – a person claiming the benefit of a conventional estoppel must demonstrate that he or she would have acted differently but for the common assumption

PRACTICE AND PROCEDURE – judge did not determine a pleaded defence – motion for a new trial order under s 126 District Court Act 1973 (NSW) not appropriate – integrity of the hearing not questioned – application to set aside the judgment under r 36.36 of the Uniform Civil Procedure Rules 2015 (NSW) appropriate