Archive for Declaratory relief

George Zoltan Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822

Pembroke J

7 Consent declarations without a hearing on the merits are a rarity. Courts will frequently not entertain them. I am only prepared to do so in this case because I have formed the view that it is clearly appropriate and justified. That is because I have already gained some familiarity with the issues through the process of case management in the Expedition List; I am confident in the good sense and sound judgment of both counsel who requested that I make the declaration; and I am satisfied that there are no possible competing property rights to the die other than those of the parties before me.

8 It is perhaps stating the obvious to say that the making of a declaration is a judicial act determining and pronouncing a legal right: Williams v Powell [1894] 1 WN 141. It follows that a declaration that is not based on the court’s review of the evidence but on the admissions of the parties may not always be satisfactory or prudent. As an order of the court, a declaration binds the parties to the proceedings before it. But the impact of a declaration may not be confined to the parties. Where the declaration “will have effects on the community … that extend far beyond the interests of the original plaintiff and defendant” ( Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corporation (1975) 33 LGRA 70 at 82), a declaration made based merely on the consent of the parties to the proceedings is inappropriate.

9 If the declaration sought is confined to the private rights between the parties such as (to use the example proffered by Keely and Beaumont JJ in BMI v Federated Clerks Union of Australia (1983) 51 ALR 401 at 413 – 414) the respective rights of the parties under a contract – it may be appropriate to make a declaration by consent. However, where there is a risk that a declaration will have a wider effect than the respective rights of those parties, it must be based on evidence considered by the court.

10 Declarations as to proprietary rights present additional problems. This case involves a contest over a proprietary right as between Mr Ajkay and Hickey. Although prima facie a proprietary right, unlike a contractual right, is enforceable against the world, a declaration as to a proprietary right will not be effective against a stranger to the proceedings. It can only operate between the parties to the declaration: Blair v Curran (1939) 62 CLR 464 at 531-532 (Dixon J).

11As a matter of legal theory therefore, the declaration sought in this case will not prevent a third party from claiming ownership of the 412 Die and from bringing proceedings seeking a declaration to support their claim to ownership. However, there is no realistic prospect of this occurring and I do not foresee any possible future contest relating to the question of ownership. I am therefore content to make the declaration which both parties seek.


Peter David Roy Lewis v Lisa Adele McKinnon [2011] NSWSC 338

Ball J:
11 In Sanderson Computers Pty Ltd v Urica Library Systems BV (1998) 44 NSWLR 73 at 80, Sheller JA (with whom Mason P and Powell JA agreed) said:

… there will always be a problem where a claimant which has not terminated an agreement, seeks a declaration that it is entitled to do so. The declaration speaks from the time that it is made. Before a notice of termination is given or expires, events may overtake its validity. … Even if the respondent presently intends to give a notice of termination, it may delay it and fresh questions about election and waiver may arise.

For that reason, the Court of Appeal refused to give a declaration in that case that the claimant was entitled to terminate the contract. That principle applies equally where the question is whether the claimant is entitled to rescind a contract for misrepresentation; and, indeed, one of cases relied on by the Sheller JA was the decision of Holland J in Dormer v Solo Investments Pty Ltd [1974] 1 NSWLR 428, which was a case of rescission.

Scott MacRae Investments Pty Ltd & Anor v Baylily Pty Ltd & Anor [2011] NSWCA 82

Giles JA


27 ……..a fact on the way to the substantive relief claimed, and it is ordinarily not appropriate to embody such matters in a declaration: Warramunda Village Inc v Pry de [2001] FCA 61; (2001) 105 FCR 437 at [8];Australian Competition and Consumer Commission v Francis [2004] FCA 487; (2004) 142 FCR 1 at [96].



Young JA:

132 (1) It is now clear that the court has very wide jurisdiction to make declaratory orders. It is also clear that the court, in its discretion, may determine that it is inappropriate to make a declaration. The “principles” that are discussed in the following paragraphs are cases where the authorities suggest that it would be appropriate not to make a declaration. Because the matter is one of the exercise of discretion, special facts in a particular case may mean that the discretion is exercised other than in accordance with “principle”.

133 As a general rule, courts do not make declarations as a mere precursor to an executive order in tort: it is sufficient that the court finds that the defendant has to pay a sum of damages. A declaration in addition is usually of no utility. There are some contractual cases where it has been the custom to make a declaration along the way such as in the typical case of specific performance of a contract; see eg Brinsley v Lynton & Lynnmouth Hotel & Property Co [1895] WN (Eng) 53, 54. However, the same does not occur with tort except in those jurisdictions where one trial fixes liability and a separate trial assesses damages.

134 In the instant case, the primary judge made declarations that the appellants had committed the torts of inducing breach of contract and conspiracy. Such a bald declaration of commission of a tort is not to be found in any precedent book, nor is it of any real utility. Declarations are almost entirely within the areas of public law, status, property law and trust or breach of contract. Of course a person may get a declaration that the defendant is not entitled to do certain acts which acts might also constitute a tort, see Borchard, Declaratory Judgments, 2nd ed, 1941, p 368; Shirvell v Hackwood Estates Co Ltd [1938] 2 KB 577.

135 Declarations must be of the right involved not of the facts found by the court which led to the decision. Thus, a declaration is made that a contract has been terminated or rescinded, not that the defendant has done or not done various acts which amount to a repudiation which the other party has accepted; see eg Lohar Corp Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177, 9179.

136 On the other hand, as Zamir & Woolf, The Declaratory Judgment, 3rd ed, 2002, p 323 [8.54] put it, “not only must [a declaratory order] relate to particular circumstances so as to avoid the error of being only a general statement of legal relationships, but it also must be clear and precise in its actual terms.” I adopted that passage in Global Funds Management (NSW) Ltd v Rooney (1994) 36 NSWLR 122 and it has never been doubted.

137 Ordinarily a declaration must be self contained so that the reader of the order does not have to refer to some other document: Tannous v Mercantile Mutual Insurance [1978] 2 NSWLR 331, 335 (CA). 138 As the matter is discretionary, as I have said, one will find exceptions to the “principles”. A reading of DR Williams’ chapter in Dharmananda & Papamatheos (eds), Perspectives on Declaratory Relief (Federation Press, 2009) pages 100 and following illustrates this (see particularly the order in Council of NSW Bar Association v Davison [2006] NSWSC 699 set out at p 107). 139 There are also other problems with the declarations made. For instance sub-para (iv) of orders 6, 14 and 19 in each case is merely a repeat of (iii). 140 There are good reasons to say that no declarations should have been made, but, if they were made, they should not have been in the form made by the primary judge.