Beck v Weinstock;Beck v L W Furniture (Consolidated) Pty Ltd

[2012] NSWCA 289

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Res judicata
3. › Consent judgments
4. › Whether consent orders noting agreements between parties give rise to res judicata
5. › Distinction between mandatory or prohibitory orders and noted agreements
6. › Whether cause of action merged in judgment
1. Practice and Procedure
2. › Res judicata
3. › Consent judgments
4. › Whether absence of express order that proceedings be 'otherwise dismissed' precluded res judicata
5. › Whether implicit dismissal could be found as matter of construction
1. Practice and Procedure
2. › Consent orders
3. › Construction
4. › Whether surrounding circumstances admissible as aid to construction of consent orders
5. › Whether question of construction premature on strike-out application
1. Practice and Procedure
2. › Judgments and orders
3. › Form and content
4. › Distinction between mandatory or prohibitory part of judgment and preliminary or introductory matters
5. › Court noting agreements inter partes
6. › Long-standing practice of including non-adjudicative material in documents entered as judgments or orders

Quick Take

Where consent orders take the form of the court noting agreements between parties (rather than making mandatory or prohibitory orders), those noted agreements do not give rise to res judicata because they lack judicial sanction and coercive authority. For res judicata to arise from consent orders, there must be either a mandatory or prohibitory order of the court, or an express order dismissing the proceedings 'otherwise'. Whether an implicit dismissal can be found is a question of construction that may require investigation of surrounding circumstances and cannot be assumed on a strike-out application.