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Decisions of the Superior Courts of New South Wales, 1788-1899

Campbell v. Burdekin [1850] NSWSupC 1 [costs - lis pendens - res judicata]

costs - lis pendens - res judicata

Supreme Court of New South Wales

Therry J., 5 February 1850

Source: Sydney Morning Herald, 6 February 1850, Supreme Court Collection, vol. 3, pp 64-65 [1]

His Honor sat for a short time this morning, but the only business transacted was the delivering judgment in the two following matters:--


His HONOR said, the Trustees should pay the respective proportionate sums of the parties on whose behalf Burdekin made payments. I can see no sufficient reason for refusing to pay these sums on application. The case, however, appears to me to come under the principle of Knight v. Martin, 1 Ruseell and Mylne 70, on which a trustee refusing to pay a legacy without the direction of the Court in a case which admitted of no doubt, was refused his costs, but was not made to pay the costs of the other party, because he might have acted from ignorance, and not from any improper motive. In this case, in like manner, though I will not give the trustees their costs, I will not make them pay the costs of the other side.

Therry J., 27 March 1850

Source: Sydney Morning Herald, 28 March 1850, Supreme Court Collection, vol. 3, pp 72-73

His Honor the PRIMARY JUDGE in Equity delivered the following judgment:---


I have only delayed judgment in this case until I had an opportunity of ascertaining by satisfactory reference, whether or not it had been decided that the present and a former suit referred to in the pleadings were for the same matter.

A plea of lis pendens had been formerly put in by the defendant to the amended bill, which plea had been overruled on the ground, it was contended, by the defendant, of wanting an allegation that the suits were for the same matter, whereas it was contended on behalf of the plaintiff, that the Court in overruling the plea decided also that the suits were for distinct and different matter. As these proceedings took place during my absence from the colony, it became requisite for me to inquire into and inform myself of the true grounds on which the decision was pronounced.

First then, on reference to the judgment of the then Primary Judge (Mr. Justice Manning), I find that, whether regarding the one of res judicata or of lis pendens, it was not sustainable. As a plea of res judicata, he considered it bad, inasmuch as the decree pronounced was not a final adjudication upon the points in issue, and on the further ground that the plea did not allege that the decree had been signed and enrolled. Regarding it as a plea of lis pendens and touching the material point on which I required information for my guidance as to the identity of the two objects of the two suits, the Primary Judge thus plainly and in unmistakable terms declares the grounds of his judgment from which the defendant unsuccessfully appealed. He pronounces that the plea cannot be sustained

"because upon the face of the plea there does not appear such a degree of identity in the subject of the two suits as to make the pending of the first an absolute bar to the second. This point does not depend either upon the statement of facts as such, nor upon the decree pronounced, but upon the nature of the relief sought or obtainable on the issue raised, and this is to be collected from the prayer of relief, specific and general, taken in connexion with the case made out by the facts stated. I look to the general scope and object of the two bills, and although they are certainly founded upon the same agreement, and are in other respects so far identical as to justify a surmise that the differences are occasioned by a misconception in the first instance of the plaintiff's rights, I think the general scope and object of one so distinct from that of the other, as to be an answer to the plea of lis pendens."

The remainder of the Judgment of the Primary Judge consists of a comparison of the two bills, by which it is, in my opinion, very satisfactorily shown that the issue in the two suits is not the same---that the object is not the same---and that the purpose sought to be attained by the latter suit cannot be attained by the former,---and in such a case the plea of a suit depending is bad. In addition to many other cases establishing this position, I may advert to one not cited in argument at the bar, but which may perhaps be deemed in some respects analogous to the present. It is cited thus in the last edition (the 5th) of Mitford's Treatise on Pleading, p. 288:

"In the case of a plea of a former suit pending, where the former suit is for relief in respect of legal and equitable waste, but no evidence has been entered into with regard to the equitable waste, and the decree makes no decision respecting it, and the latter suit is exclusively for relief in respect of equitable waste, a plea of the former suit pending is bad, for the purpose sought to be attained by the latter suit cannot be attained by the former.---Newdigate v. Newdigate, 8 Law J. (O.S.), Ch. R. 35."

From the judgment of the Primary Judge in this matter there was an appeal to the full Court, and I have been favoured with the note book of the Chief Justice, in which I find a memorandum of the judgment of the Court entered---with His Honor's usual accuracy and clearness,---and I am authorised by Mr. Justice Dickinson and Mr. Justice Manning to say, that in the terms of that judgment they concurred. Speaking for himself and the other Judges His Honor states:---

"We think the plea one of lis pendens, and bad, because it wants an averment of identity, and we further are of opinion that this is not a case for amendment of the plea; as we see nothing that tends to support a plea of lis pendens, unless the two suits be identical. See precedents in Willis' and Beames' Treatises on Pleading."

In the Master's minute-book of the decision of the Court there is an entry to the same effect. It is entered thus:---

"This is a plea of lis pendens, and plea bad, as wanting allegation that the two suits are for the same matter. In this case the two suits are not for the same matter within the rule."

This refusal for leave to amend, or at least intimation that if applied for it would be refused, clearly indicates the opinion of the Court to be in unison with the judgment of the Primary Judge, that not only the plea did not expressly aver that the second was for the same purpose as the first, but moreover, because in point of fact it was not so.

As to the objections taken to the frame of the present bill, that in consequence of the former suit what is now sought to be done could only be done by a bill of review, or a supplemental bill in the nature of a bill of review, and that the leave of the Court should have been first obtained; these objections are but a renewal of the same topics which were pressed on my attention when in a former stage of these proceedings a demurrer was argued before me. The same grounds were again gone over on appeal from my decision on the demurrer, and as the Court then gave leave to the plaintiff to amend, and decided that the bill should be retained, I do not think that at this advanced stage of the suit, an objection which could only at most prevail in the ground of irregularity, and does not go to the merits, should now be entertained. Independently of this consideration, however, I am of opinion that the cases cited, Law v. Rigby, 4 Brown 60; Aaron v. Towgood, 6 Maddox, 374, Shepherd v. Towgood, Turner v. Russell, 390, establish that the existence of a prior suit does not constitute a bar to a second, when extended relief is sought---or when the second suit has a further purpose, and the cause depending is such as cannot be effective. On this point I fully adopt the doctrine thus clearly expressed in the language of the Master of the Rolls in the case of Shepherd v. Towgood.

"If the relief in the first suit can be extended,---if expense can be saved by incorporating with the suit any proceeding that will avoid the necessity of a second bill, there may be a great propriety in not permitting another suit to go on. But on the other hand, it never can be contended, noir is it the law of this Court, that a second suit may not be rendered necessary either by collusion in the former suit, or by the inattentive mode of framing it, which may have left out some principal matters of charge against the trustees, or by the omission from ignorance or negligence of some important ground of relief."

And his Honor concludes by observing---

"It never can be permitted that the priority of a suit, defective in its nature, is to exclude another suit that may introduce important matters without which complete justice could not be done to the creditors."

I have looked into the case of Worsley v. Birkhead, 3 Atkins, 809, which only decides that after a decree in a cause a new original bill cannot be brought between the same parties, and for the same matter; but here it has already been decided that the bill is not brought for the same matter---and the same decision operates as a bar to the case of Kinsly v. Kinsly, 2 Ves., Senr., 577, being an authority to govern the present: for though the Lord Chancellor there said that a decree not signed and enrolled could not be pleaded in bar of a suit, yet it may be insisted on by way of answer;---that was a case in which there was the plea of a decree in a former suit, as having determined the matter wherein the present defendant was plaintiff; and the present plaintiff, in his answer thereto, insisted on the same matter he had charged by this bill. The question there decided was, that by the strict rules you cannot plead a decree that is not signed and enrolled; yet you may insist on it by answer; but that is where the second suit is for the same matter, and not as here, where there is a previous positive decision in a former stage of the suit that the second suit is not instituted for the same matter.

As to the mode of taking this account, no question was raised in argument before me as to the nature of the account, and having reference to the articles of agreement and deed of assignment in the pleadings mentioned, I am not aware that any relief is prayed that may not be given consistently and properly under them.

The Court, on appeal, having decided that the two suits were not for the same matter, the relief prayed for is such as in substance should be granted. The account is therefore decreed according to the prayer.

Stephen C.J., Dickinson and Therry JJ, 29 April 1850

Source: Sydney Morning Herald, 30 April 1850, Supreme Court Collection, vol. 3, pp 93-94

BEFORE the three JUDGES.


The facts of this case have been very frequently before the Court. The bill is filed by the plaintiff, the assignee of the insolvent estate of John T. Wilson, against the defendants, executrix and executor of Thomas Burdekin, for the purpose of having an account taken of the sales and the profits that had arisen in respect of an assignment by Wilson of his stick in trade to Thomas Burdekin, under a certain agreement dated the 1st July, 1836. To this bill a demurrer was filed on the ground that there was in existence another bill between the same parties, seeking the same relief. The demurrer was sustained by the then Primary Judge, Mr. Justice Therry, and which decision was affirmed on appeal by the majority of the Court.

Leave was given to amend the bill. Accordingly, the bill was amended, by striking out the objectionable averments. The defendants then pleaded a plea, setting out the proceedings in the former suit down to decree, and alleged that it was an answer to the present bill.

The argument on this plea took place in 1848, before the then Primary Judge. He held it was neither a good plea of res judicata nor of lis pendens. Against this last decision an appeal was filed, and upon its coming on to be heard, the full Court at once affirmed the decision of the Primary Judge; at the same time saying, that they would have allowed the defendants to amend the plea, did they but see that justice would thereby be done. In the mean time, the defendants put in their answer, embodying the same facts set forth in the plea, and which were proved in evidence.

The suit coming on to be heard before the present Primary Judge, he delivered judgment in the March of the present year, in effect granting the prayer of the bill, viz., that an account should be had before the Master. From this decree the defendants appealed, and which appeal now came on for argument before the full Court. The difference between the two suits was in effect, that the first only sought an account of the stock sold under the agreement, whereas the second sought as well an account of stock sold as the profit made thereon.

Messrs. FOSTER and BROADHURST, in support of the appeal, contended that the point now to be determined, had never been determined,---although when the appeal filed in this suit was last before the Court, an extrajudicial opinion did fall from the Court, that the two suits were not identical.

His Honor the CHIEF JUSTICE said that was not exactly an extrajudicial opinion, inasmuch as the argument adduced went to prove that the two suits were distinct.

Messrs. FOSTER and BROADHURST in continuation, submitted, that no decree ought to have been made in the suit, as the second suit only sought what might have been obtained under the first, if properly managed. In fact it came within the principle of the cases that established, that where a party has had an opportunity of recovering something under one suit, and failed, he cannot institute another to do so, especially during the existence of the first.

The SOLICITOR-GENERAL, (with whim were Messrs. Donnelly and Fisher,) were heard against the appeal, shortly contending that the two suits were dissimilar. The facts stated in the one were different from those stated in the other, and that the relief now prayed could not have been granted under the first, indeed it was not asked. The point as to the non-identity of the two suits had already been determined more than incidentally, when the last appeal in this suit came before the full Court; this being the case, they hoped the Court would dismiss the appeal with costs, to be paid as between attorney and client.

His Honor the CHIEF JUSTICE said he had now arrived at the same conclusion as to the non-identity of the two suits, he had arrived at twice before. The suits, he was of opinion, were for distinct purposes, and had different objects in view, though perhaps founded on the same agreement. The Court had already delivered an opinion, which, if regarded, would have prevented this appeal; that opinion, in one sense, may have been extra-judicial, but in another it certainly was not, as the argument made use of by the defendants invoked it.

He was of opinion the present appeal had signally failed; it had been supported by the same arguments, couched in almost the same language, and the same cases were cited, as used on a former occasion. The necessity of the appeal, however, may have arisen from the fact, that it may be the intention of the defendants to appeal home; and which it is possible could not be done direct from the decree of the Primary Judge. Taking this circumstance, however, into consideration, it was a reason why the order of the Court was not that the decree be dismissed with costs, as between attorney and client.

Mr. FOSTER here said, it was the intention of the defendants to appeal home, and that was the reason of the present appeal, thinking that an appeal could not be carried home direct from the Court of the Primary Judge.

Mr. Justice DICKINSON said he arrived at the same conclusion, with some hesitation.

Mr. Justice THERRY added, that when the case was before him in the capacity of Primary Judge, he had given it his very best attention, and he heard nothing to-day to alter his opinion, and therefore it would not be expedient to add anything more.

Appeal dismissed with costs.

Stephen C.J., 14 May 1850

Source: Sydney Morning Herald, 15 May 1850, Supreme Court Collection, vol. 3, pp 100-101

BEFORE his Honor the CHIEF JUSTICE, in the absence of Mr. Justice THERRY, the Primary Judge in Equity.


Mr. BROADHURST, for the defendants, moved that they be at liberty to take out certain books of account relative to the suit, from the Master's Office, deposited there by them. It was stated on affidavit, that to comply with the order made by the Court, "that the defendants bring in certain accounts within a month," it was necessary the motion should be granted.

Mr. FISHER opposed the motion, reading an affidavit to the effect that there was no necessity for the motion to be granted. He contended that there was no case decided, warranting the application, and he (the learned counsel) was instructed, that when once books and papers were deposited with the Master, they were never taken out of his custody, except under very peculiar circumstances; which, he would submit, did not exist here.

Mr. BROADHURST replied, submitting that if the time were extended, within which the account was to be furnished, he would not press the motion. If the motion, however, were granted, his clients would undertake to furnish the required accounts within the month.

His Honor said he was disposed to grant the motion. The books were, however, to be deposited in a place to be approved of by the Master. That upon their return, an affidavit be made, that they are in the same state as when given out. The month to be calculated from the present time, at the end of which period the books and the required accounts are to be brought in.

Motion granted upon payment of costs.


[1] See also Campbell v. Burdekin, 1847; Campbell v. Burdekin, 1848.

Published by the Division of Law, Macquarie University