CLARKE v BARTER [No 2] [1990] NSWCA 44

CLARKE v BARTER [No 2] [1990] NSWCA 44

It was inappropriate to refer matters back to the Equity Division as they had not been pleaded, litigated, or argued at first instance or on appeal; the short minutes of orders as handed up by the appellants should be made.

Parties
Appellant: Clarke; Respondent: Barter
Jurisdiction
Australia
Judgment Date
21 March 1990
Procedural Posture
Appeal / Judgment on Orders Following Main Appeal Determination
Outcome
Appeal dismissed with costs. Cross-appeal allowed to the extent stated. Orders made as per short minutes.
Legal Topics
Minutes of Order, Reference to Equity Division, Costs
Practice and Procedure Minutes of Order Reference to Equity Division Costs

Case Brief

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Parties

Clarke

Appellant

Barter

Respondent

Procedural Posture

Appeal / Judgment on Orders Following Main Appeal Determination

Legal Issues

  1. 1 Whether issues not pleaded or argued at first instance or appeal can be referred back to the Equity Division

Ratio Decidendi

It was inappropriate to refer matters back to the Equity Division as they had not been pleaded, litigated, or argued at first instance or on appeal; the short minutes of orders as handed up by the appellants should be made.

Court Disposition

Appeal dismissed with costs. Cross-appeal allowed to the extent stated. Orders made as per short minutes.

Orders

  • Appeal dismissed with costs.
  • Cross-appeal allowed to the extent of the declaration that the principal sum of $7,800 is also secured by mortgage number Q217551 dated 28 March 1977, set aside.