COMINO v MANETTAS, COONEY v MANETTAS [1993] NSWCA 73

COMINO v MANETTAS, COONEY v MANETTAS [1993] NSWCA 73

It is not appropriate for the Court of Appeal to determine issues (such as the 'one claim issue') that were not pleaded or litigated at trial or on appeal and may require the determination of disputed facts; these should be remitted to the Trial Division for full consideration.

Parties
Appellant Solicitor: Comino; Appellant Solicitor: Cooney; Respondent (former Client): Manettas, Nicholas Peter; Third Party/claimant: Government Insurance Office of New South Wales (GIO); Respondent/insurer: Lawcover (insurer, primary); Respondent/insurer: Lawcover (insurer, excess)
Jurisdiction
Australia
Judgment Date
01 October 1993
Procedural Posture
Appeal/motion / Post Judgment Motion for Reconsideration of Orders; Referral for Further Proceedings
Outcome
Motion dismissed with costs; proceeding referred to the Commercial Division for further determination as appropriate.
Legal Topics
Solicitors' Indemnity Insurance, Reopening Orders Post Judgment, Quantum of Insurance Liability, Estoppel/anshun Principle
Insurance Law Professional Negligence Civil Procedure Solicitors' Indemnity Insurance Reopening Orders Post Judgment Quantum of Insurance Liability Estoppel/anshun Principle

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Parties

Comino

Appellant Solicitor

Cooney

Appellant Solicitor

Manettas, Nicholas Peter

Respondent (former Client)

Government Insurance Office of New South Wales (GIO)

Third Party/claimant

Lawcover (insurer, primary)

Respondent/insurer

Lawcover (insurer, excess)

Respondent/insurer

Procedural Posture

Appeal/motion / Post Judgment Motion for Reconsideration of Orders; Referral for Further Proceedings

Legal Issues

  1. 1 Whether the Court of Appeal should withdraw a declaration and determine the 'one claim issue' not raised at trial or on appeal.
  2. 2 Whether further relief (e.g., specific payment orders) should replace a declaration of indemnity for the solicitors against their insurers.
  3. 3 Whether factual issues not previously litigated can be determined at this appellate stage.

Ratio Decidendi

It is not appropriate for the Court of Appeal to determine issues (such as the 'one claim issue') that were not pleaded or litigated at trial or on appeal and may require the determination of disputed facts; these should be remitted to the Trial Division for full consideration.

Court Disposition

Motion dismissed with costs; proceeding referred to the Commercial Division for further determination as appropriate.

Orders

  • Motion dismissed with costs.
  • Proceedings returned to the Commercial Division for further determination.