C G Maloney Pty Ltd v Noon

Court of Appeal (NSW)|2011-11-15|Before: Campbell JA

67 ER 313 House v The King (1936) 55 CLR 499 Honeywood v Munnings [2006] NSWCA 215; 67 NSWLR 466 Johnson v Gore Wood & Co [2002] 2 AC 1 Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 Leaway v Newcastle City Council (No 2) [2005] NSWSC 826; (2005) 220 ALR 757 Lee v Kim [2006] NSWCA 384; 68 NSWLR 433 Macdougall v Knight (1890) 25 QBD 1 CA Moss v Anglo-Egyptian Navigation Co (1865) LR 1 Ch App 108 Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 R v Beserick (1993) 30 NSWLR 510 Rangayya Goundan v Nanjappa Rao (1901) LR 28 Ind App 221 Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198 Stuart v Goldberg Linde (a firm) [2008] EWCA Civ 2; [2008] 1 WLR 823 The Indian Grace [1993] AC 410 Warren v Coombes (1979) 142 CLR 531 Wheeler v Somerfield [1966] 2 QB 94 Yat Tung Investment Co Ltd v Dou Heng Bank Ltd [1975] AC 581 Category: Principal judgment Parties: C G Maloney Pty Ltd (Appellant) Gregory Brian Noon (First Respondent) Matthew Jack Noon (Second Respondent) Representation: Counsel B A Coles QC; B DeBuse (Appellant) A S Bell SC (Respondents) Solicitors McCooe Raves & Poole (Appellant) Gilbert & Tobin Lawyers (Respondents) File Number(s): 2010/423568 Decision under appeal Jurisdiction: 9111 Citation: C G Maloney Pty Ltd v Noon [2011] NSWSC 242 Date of Decision: 2011-03-25 00:00:00 Before: Rein J File Number(s): 2010/423568

Judgment 1CAMPBELL JA : Nature of the Case 2The Appellant was a party to a contract. The Appellant contended that one clause of that contract conferred an option to purchase a home unit. It brought proceedings contending that it had validly exercised the option, which failed in the Court of Appeal. It then started fresh proceedings against the same defendants, contending it was entitled to an injunction that would protect its rights under that clause. Rein J dismissed those proceedings, for reasons that included Anshun estoppel. The central issue in the present appeal is whether Rein J was correct in dismissing the proceedings on that basis. I have concluded that Rein J was correct in so doing. 3Another issue in the appeal is whether Rein J was correct in ordering that the Appellant pay the costs of the proceedings below on an indemnity basis. I have concluded that his Honour's judgment was also correct in that respect. Relevant Contractual Documents and Title to Land 4By a contract for sale of land dated 11 October 1996, the late Mr Brian Noon and his wife, the late Mrs Jennifer Noon, agreed to purchase a strata title home unit known as Unit 42, 34 Campbell Parade, Bondi Beach ("the Unit"). The vendor to Mr and Mrs Noon was the Appellant in the present proceedings, C G Maloney Pty Ltd. I will refer to the Appellant as " CGM ". 5It is now established that the contract of sale had annexed to it a document entitled "Disclosure Statement B" (" DSB "), which special condition 15 of the contract identified as containing further special conditions. Clause 1 of DSB contained the following definitions: "'Act' means the Retirement Villages Act 1989 ; 'Code' means the New South Wales Retirement Village Industry Code of Practice ; 'Purchaser' means and includes:- i) the purchaser named in this Agreement her/his executors, administrators and successors in title to the Unit: ii) where the purchaser is to be the resident the word 'purchaser' shall be taken to incorporate the words 'the purchaser (as defined in i)) and resident'. 'Qualified Occupant' means a person 55 years of age or over and who has agreed to enter into an agreement in similar terms as this Agreement with the Service Company. 'Service Company' means and includes Bondi Beach Astra Retirement Village Pty Limited, its successors and assigns. 'Unit' means the property hereby sold; and 'Village' means the Astra Retirement Village situated at 34 Campbell Parade, Bondi. The terms defined or used in the Act and/or the Code shall have the same meanings when used herein except to the extent that the context otherwise requires." 6The contract did not contain a definition of "the resident" , but the last-quoted provision in DSB incorporated the statutory definition by reference. The relevant definitions in the Code and the Act are: "'resident' in relation to a retirement village, means a person who occupies residential premises in a retirement village under a residence contract, and includes a person who occupies such premises and who is or was the spouse or de facto partner [in the Code but not Act, (within the meaning of the De Facto Relationships Act 1984)] of such a person. (Act, s 3(1); Code, cl 2) 'residence contract' means a contract, agreement, scheme or arrangement by which a person obtains the right to occupy residential premises in a retirement village, and may take the form of a lease or licence.' (Act, s 3(1); Code, cl 2)" 7Clause 15 of DSB provided: "(1) If: (i) the resident wishes to terminate the Residence Contract; (ii) the resident dies (in which case the Service Company may at any time thereafter deem the resident to have served upon the Service Company the notice referred to in paragraph (a)); (iii) the resident abandons the unit (in which case the Service Company may at any later time deem the resident to have served upon the Service Company the notice referred to in paragraph (a)); (iv) the purchaser wishes to sell, or dispose of the unit; (v) the resident dies; or (vi) the [Residential Tenancies Tribunal] makes an order terminating the Residence Contract (in which case the resident shall be taken to have served upon the Service Company the notice referred to in paragraph (a)); the following procedure shall apply. (a) the resident or the resident's executors or administrators as the case may be shall immediately or as soon as possible thereafter, give to the Service Company one (1) month's written notice of termination of the residence contract or as appropriate the purchaser or her/his legal personal representative shall give to the Service Company one (1) month's notice of intention to sell or dispose of the unit. ... (b) upon the expiration of the period of one (1) month referred to in paragraph (a), the purchaser or the Service Company shall have the option by notice in writing (the 'Buyback Notice') served upon the other no later than a further twenty eight (28) days thereafter to require the transfer by the purchaser of the unit to the Service Company or its nominee for the price at which the purchaser bought the unit and the following conditions shall apply: (i) the relevant parties shall upon the service of the Buyback Notice by either or the other be taken to have entered into an agreement ('the Buyback Agreement') upon the same conditions as are contained in the standard Agreement for Sale of Land - 1988 Edition with the following alterations, omissions and additions thereto ... (c) should for any reason neither the purchaser nor the Service Company serve on the other the Buyback Notice referred to in clause 1(b) of this agreement then the purchaser may sell, transfer or dispose of the unit to any qualified occupant provided that the purchaser simultaneously causes such person to enter into an agreement with the Service Company incorporating the special conditions of this agreement with any necessary alterations to suit the circumstances. (2) The purchaser acknowledges and agrees that the rights conferred on the Service Company or its nominee pursuant to sub-clause (1) entitle the Service Company to register a caveat against the folio of the Register in the Land Titles Office relating to the unit." 8Mr and Mrs Noon became registered proprietors of the Unit. 9Mrs Noon died in October 2001, whereupon her interest in the Unit passed by survivorship to Mr Noon. The Caveats 10On 5 April 2006, Bondi Beach Astra Retirement Village Pty Ltd (" Astra ") lodged a caveat against the title to the Unit. Astra was at the time a wholly owned subsidiary of CGM. The interest the caveat claimed was a "right to purchase the land" arising by virtue of the contract for the sale of land dated 11 October 1996. The interest claimed in the caveat was also stated to arise by virtue of the following facts: "Agreement between Brian Noon and C G Maloney Pty Limited and Bondi Beach Astra Retirement Village Pty Limited for Bondi Beach Astra Retirement Village Pty Limited to purchase the land from Brian Noon or his executors." 11On 20 October 2006, CGM lodged a caveat against the title to the Unit. The interest that that caveat claimed was: "A specifically enforceable right to compel the sale of the property by the registered proprietor to Bondi Beach Astra Retirement Village Pty Ltd arising from the terms of the instruments and facts referred to below. Alternatively an estoppel preventing the registered proprietor from denying the interest claimed. Alternatively an equitable interest in the land to secure a claim for unjust enrichment in connection with the denial of the alleged right." 12That interest was said to arise by virtue of a contract disclosure statement dated 11 October 1996, the parties to which were said to be "Brian Noon and C G Maloney Pty Ltd" . (This was apparently intended to be the DSB, though Mrs Noon's role as a purchaser was overlooked.) It was also said to arise by virtue of the following facts: "The entry of the parties into the agreement referred to above and the existence of the Disclosure Statement referred to above. The reliance of the caveator on the existence of the interest in entering the agreement and providing services to the registered proprietor on the faith of the existence of the agreement and its enforceability. The denial of the interest by the registered proprietor. The increase in value of the land." Pleadings and Identification of Issues in the First Proceedings 13On 23 October 2006, Astra and CGM filed a summons in the Equity Division of the Supreme Court that began proceedings 5436 of 2006 (" the First Proceedings "). Appropriately, as Mrs Noon was deceased by that time, Mr Noon was the sole defendant in those proceedings. The summons claimed some interlocutory relief, including orders that the caveats that had been lodged by Astra and CGM, be extended. As the occasion for seeking those orders would only arise if lapsing notices had been served concerning those caveats, and the court abridged the time for service of the summons, I would infer that lapsing notices had been served. The summons also sought final relief including: "6. A declaration that there exists a specifically enforceable agreement between the Plaintiffs, or one of them, and the Defendant for the buy back of the Property by the Plaintiffs or one of them for a consideration equal to the price at which the Defendant purchased the Property ('the Contract'). 7. Alternatively an order that the Defendant is estopped from denying the existence of the Contract. 8. Alternatively, an order that the Defendant pay damages or equitable compensation for breach of contract or unjust enrichment." There was also a prayer for further or other relief. 14On 28 October 2007, Mr Noon died. 15On 6 November 2007, Stephen Wawn & Associates, the solicitors then acting for Astra and CGM, wrote three letters the body of each of which was in identical terms. They were addressed to the executors of the estate of the late Mr Noon, the solicitors who had acted for Mr and Mrs Noon on the purchase of the Unit, and the solicitors who had acted for Mr Noon more recently, Pike Pike & Fenwick. 16The letters said: "Re: Estate late BRIAN NOON We are the solicitors who act on behalf of the Bondi Beach Astra Retirement Village Pty Limited and CG Maloney Pty Ltd. We are instructed by our client that Mr Brian Noon passed away on or about 28th October 2007 and both our clients and our office wish to express our sympathy at this time. At the time of the deceased purchasing the property known as Unit 42 Bondi Beach Astra Retirement Village, the deceased entered into an Agreement with our client which provided that our client had the right to buy-back the unit for the original sale price from Mr Noon upon a number of events happening, one being upon the death of Mr Brian Noon. We are instructed by our client that Mr Brian Noon purchased the property from our client CG Maloney Pty Ltd for $197,000.00 and we hereby advise that our client Bondi Beach Astra Retirement Village Pty Ltd exercises its rights in respect of its Buy-Back Agreement with the deceased to purchase the unit for the sum of $197,000.00. As previously advised to Pike Pike & Fenwick, this notice is being given for the purpose of satisfying the machinery provisions of the Retirement Villages Act 1999. Should you have any queries in respect of this matter then please do not hesitate to contact Stephen Wawn from our office." 17Probate of Mr Noon's estate was granted on 12 February 2008 to his executors. His executors are his two sons, who are the Respondents to the present appeal. 18Astra and CGM filed a Further Amended Statement of Claim (" FASOC ") in the First Proceedings on 12 August 2008. It amended the name of the defendant to the action by deleting the name of Mr Noon and inserting the names of the Respondents (as co-executors of Mr Noon's estate). The relief it claimed included: "1. A declaration that there exists a specifically enforceable agreement between the Plaintiffs, or one of them, and the Defendants entitling the Plaintiffs or one of them to repurchase the property known as Unit 42/34 Campbell Parade, Bondi Beach ('the Unit') for a consideration equal to the price at which the late Brian and Jennifer Noon purchased the unit. 2. Alternatively a declaration that the Defendants are estopped from denying the existence of the Agreement for Sale of Land incorporating the terms of the Disclosure Statements annexed thereto. 2B. Alternatively, a declaration that the Defendants are bound by the terms set out in the Disclosure Statements as to the rights of repurchase and the obligation to pay recurrent and deferred fees. 3. Alternatively, damages or equitable compensation. 4. An order in the nature of specific performance of the Agreement between the second plaintiff or its nominee and the late Brian and Jennifer Noon requiring the defendants to sell and convey the title of the Unit to the first plaintiff or its nominee for the price of $197,000.00." 19After pleading the entry of the contract for sale, the terms of the DSB that related to the option, and that the DSB was a special condition of the contract, the FASOC alleged: "5. [Astra] holds the benefit of the contractual obligations owed by the defendants to it, including of and concerning the obligation to sell to [CGM] for the original purchase price, on trust for [CGM]. 20The FASOC then asserted that CGM had exercised its option to buy back the Unit. That exercise of option was particularised as being the letter of 6 November 2007, set out at [16] above. The FASOC alleged that that letter was sent "on behalf of the plaintiffs exercising the plaintiffs' rights to purchase the Unit pursuant to the Agreement" . This allegation was imprecise about which of CGM and Astra had had the right to purchase, and imprecise about which of CGM and Astra had exercised the right. 21The FASOC then alleged that the defendants had refused to agree to transfer the Unit to CGM or its nominee, and that that was a breach of contract. It alleged that Astra was ready, willing and able to comply with the contract, and that Astra would suffer loss and damage if the agreement was not specifically enforced. As there was no allegation that Astra was the nominee of CGM, the allegation referred to in the previous sentence seems inconsistent with the allegation referred to in the sentence before that. 22The FASOC also pleaded an estoppel. The part of the pleading concerning an estoppel alleged that the value of the Unit, had there been no buyback provisions, significantly exceeded the value of the Unit with the buyback provisions. It alleged that there were representations by Mr and Mrs Noon in the agreement that they "agreed that the rights conferred on [CGM] entitled [CGM] or its nominee to register a caveat" . It alleged that Mr and Mrs Noon expressly represented to "the vendor's agent" that "they were willing to pay the purchase price on the understanding that there was a buyback clause which made the purchase price significantly cheaper." It alleged that both of the plaintiffs relied on those representations, and that by reason of the representations both of the plaintiffs "had adopted the assumption that the buyback obligations applied and were effective in respective of the Unit, which assumption was shared or alternatively acquiesced in by" Mr and Mrs Noon. On this basis, it was contended that the Respondents "are estopped (whether by an promissory estoppel or an estoppel by convention) from denying the existence or efficacy of the buyback provisions" . 23On 28 October 2008, CGM and Astra and the principal of CGM entered into a deed by which CGM assigned absolutely to Astra all of its right, title and interest in "the First Choses in Action" . The property thus purported to be assigned was identified by the following definitions: "' Buy Back Rights' means the rights granted or agreed to be granted to the Company by the owners of certain units at the Astra as described in the Schedule pursuant to the agreements described in the Schedule to buy back those units for the price described in the Schedule. ' First Choses in Action' means any legal or equitable rights of C G Maloney Pty Ltd associated with the Buyback Rights and the obligations of the owners to sell to the Company the units in the Astra referred to in Part A of the Schedule and which are the subject of the following proceedings ..." 24The agreement for sale of land between CGM and Mr and Mrs Noon was one of the agreements listed in the Schedule. 25On 17 December 2008, CGM's solicitors wrote to the solicitors for the Respondents, giving notice of that assignment and seeking consent to the filing of a Second Further Amended Statement of Claim (" Second FASOC "). It differed from the FASOC only by pleading that the assignment by CGM to Astra of its right, title and interest in the proceedings had occurred on 28 October 2008. Thus, both CGM and Astra remained as plaintiffs. 26The Respondents consented to the filing of the Second FASOC. That was the latest Statement of Claim at the time of the hearing of the First Proceedings. 27The hearing of the First Proceedings was held before Smart AJ on 20 and 21 May 2009. On the first day of the hearing, a Further Amended Defence was filed in court. Clause 6 of that defence raised the following contentions: "Further and in the alternative:- a the buy-back provisions allegedly recorded in the provisions of the Disclosure Statement referred to in paragraph 4 of the Further Amended Statement of Claim (the 'alleged buy-back agreement') involved the assumption of contractual obligations on the part of [Astra]; b it was an implied term or condition of any agreement under which Brian and/or Jennifer Noon or their legal personal representatives were to be obliged to sell the Unit that [Astra] should execute and be bound by the terms of the alleged buy-back agreement; bb alternatively, the existence of any agreement in terms of the alleged buy-back was conditional upon the assumption of [Astra] of its obligations under the alleged agreement; c [Astra] did not execute or otherwise become bound by the terms of the alleged buy-back agreement; and d in the premises, the alleged buy-back agreement did not become binding upon Brian and/or Jennifer Noon." 28In response to the allegation in the Second FASOC that the Respondents had "refused to agree to transfer the Unit to [CGM] or its nominee pursuant to the buyback notice and the contract thereby created" , the defence asserted that the Respondents: "a deny that [CGM] or any nominee, has any entitlement pursuant to the alleged buy-back notice or otherwise to purchase the Unit; b deny the contract alleged; and c otherwise admit the matters alleged." 29In accordance with the usual procedures in the Equity Division, each side filed written submissions shortly before the hearing in the First Proceedings began. The written submissions of Senior Counsel for CGM and Astra, dated 18 May 2009, began by saying: "The issue in this proceeding is whether the personal representatives of Mr Brian Noon are bound, in contract or alternatively by estoppel, to transfer Unit 42 at 34 Campbell Pde Bondi Beach ('the Unit') to the plaintiffs at the price for which it was purchased in 1996, namely, $197,000." 30The "primary issues" that were identified as arising included: "(b) Do the 'buy-back' provisions entitle the plaintiffs to require the transfer of the Unit to them at the price of $197,000? ... (d) If the plaintiffs have no rights in contract, nonetheless are the defendants estopped from denying the existence or efficacy of the 'buy-back' provisions?" 31Concerning para 6 of the defence ([27] above) para 22(e) of those submissions said: "Fifthly, they say that only if [BBA] executed the terms of the agreement was it binding upon Mr and Mrs Noon (defence para 6). How such a term is to be implied is unstated. But in any event, it is plain that [CGM] can enforce the provisions. That is what it is doing in this proceeding." Smart AJ's Judgment in the First Proceedings 32Smart AJ delivered his judgment in the First Proceedings on 2 June 2009: Bondi Beach Astra Retirement Village Pty Ltd v Noon [2009] NSWSC 461. The Respondents had raised an issue about whether the DSB was part of the contract that Mr and Mrs Noon had signed. Smart AJ held that it was part of the contract. 33Another of the arguments that the Respondents raised before Smart AJ was that Mr Noon's death could have triggered a right under clause 15 of the DSB only if he was a "resident" . They submitted that under the definition of "resident" and "residence contract" incorporated by reference into the contract for sale ([6] above), there was no "residence contract" and hence Mr Noon had not been a "resident" . Smart AJ recorded, at [52]: "The plaintiffs submitted that the Contract for Sale, upon completion, gave the purchasers the right to occupy the unit which were residential premises in a retirement village as they were over the age of 55 years. They did not have to enter into a residence contract with themselves. The plaintiffs pointed out that in the definition of 'residential premises', it was envisaged that the right of predominant or exclusive occupation by retired persons might arise from the ownership of residential premises subject to a right or option of repurchase. That proceeded on the basis that for that right to occupy, the retired persons were or would be required to pay money." 34Smart AJ held, at [63], that the contract for sale of land was itself a residence contract within the meaning of the relevant definitions. He said, at [68]-[69]: "I do not accept the submission of the plaintiffs that they have a right, either singly or jointly, to exercise the option in the absence of a residence contract. Both Disclosure Statement B and the Code envisage that there will be a residence contract, albeit that it may be incorporated in the Contract for Sale of Land. I accept that it is not expressly stated in clause 15 that there must be a residence contract and that clause 15(v) provides that the option may be exercised if the resident dies. However, 'resident' means a person who occupies residential premises in a retirement village under a residence contract. If I had taken the view that there was no residence contract, I would not have held that the right to exercise the option arose. This is apart from the question as to who was entitled to exercise the option." 35Smart AJ held at [86], as a matter of construction of the contract for sale, that the references to the Service Company in clause 15 of DSB were references to CGM. He rejected a submission of the Respondents that the option was invalid because it failed to comply with s 66ZG Conveyancing Act 1919 . He made a declaration that there was a specifically enforceable agreement between CGM and the Respondents entitling CGM or its nominee to repurchase the property for $197,000. He also made an order "in the nature of specific performance" of that agreement. The Court of Appeal Judgment in the First Proceedings 36Those orders were set aside in the Court of Appeal: Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202. In lieu, the Court of Appeal ordered that the proceedings be dismissed, and that Astra and CGM pay the costs of the Respondents. That judgment was delivered on 19 August 2010. 37The majority reasons were those of Giles JA, with whom Macfarlan JA agreed. Young JA would have made the same orders as Giles and Macfarlan JJA, but for somewhat different reasons. 38Giles JA held that the option under clause 15 of the DSB was not exercisable by CGM, for two separate reasons. The first was because on the proper construction of clause 15 the Service Company was Astra. Giles JA noted, at [42], that on the appeal CGM and Astra "... did not submit that, if the grantee was Astra, it could exercise the cl 15 option as third party beneficiary of a contractual promise or as offeree notwithstanding that it was not a party to the sale contract." 39Similarly, Young JA recorded, at [178], that "... no submissions were made as to the operation of s 36C of the Conveyancing Act 1919 on the facts of this case, nor was there any reference to the esoteric learning as to when a third (non) party can be benefited by a contract." 40In the course of construing the expression "Service Company" in clause 15 as being Astra, Giles JA said, at [52]-[53]: "... the central purpose and object of the buyback provision was probably that Astra would be able to purchase the unit. The intention was not a buy back , and it was consistent with knowledge in both parties of the buyback provisions that the grantee of the cl 15 option (as a call option) would be a company other than the seller, and would be Astra or its nominee although the seller was [CGM]. The fact that Astra was not a party to the sale contract is not an indication that the cl 15 option was granted in favour of [CGM] as the opposite party to the sale contract. Astra was plainly intended as the Service Company in a host of references to the Service Company in DSB, many purporting to impose obligations or confer benefits on the Service Company notwithstanding that it was not a party to the sale contract. There was fine disregard of privity of contract, and if that was a mistake it was not one to be remedied by construction of the sale contract." 41The second reason why Giles JA held that the option under clause 15 of the DSB was not exercisable by CGM was that a "residence contract" was necessary for the clause 15 option to arise, and there was no residence contract. Astra and CGM had filed a Notice of Contention in the appeal in the First Proceedings. However, that Notice of Contention had not challenged the finding of Smart JA at [69] of his judgment, set out at [34] above, to the effect that it was necessary for there to be a residence contract before the right to exercise the option arose. 42The letter of 6 November 2007 that was a purported exercise of the option ([16] above) proceeded on the basis that it was the death of Mr Noon that gave Astra the right to purchase the Unit for $197,000. Giles JA said, at [43]: "It had been disputed at trial whether, for the triggering events listed at the commencement of cl 15(1) operative on the death of Mr Noon, it was necessary that he was a resident and so, by the imported definition, an occupier under a residence contract. The judge held that it was necessary, and there was no notice of contention." 43However, Giles JA held that Smart AJ had been mistaken in holding that the sales contract was a residence contract. He held, at [66]: "Mr and Mrs Noon (and later Mr Noon alone) had the right to occupy the unit by virtue of their proprietorship. Their proprietorship came about by offering a price, acceptance of the offer, entry into the sale contract and completion of the sale contract. Upon completion the sale contract, as a source of their right to occupy the unit, was spent." 44At [71] Giles JA concluded: "For two separate reasons the cl 15 option was not exercisable by [CGM]." 45Giles JA went on to hold that, in any event, the letter of 6 November 2007 did not show, on its proper construction, that it was CGM that was purporting to exercise the option. 46His Honour went on further to hold that the clause 15 option was not void by reason of an alleged contravention of s 66ZG Conveyancing Act . He declined to deal with an issue that had been raised for the first time on appeal, namely, whether the clause 15 option was void as a restraint on alienation. 47Because Smart AJ had found for Astra and CGM on other grounds, he had not considered their case that the Respondents were bound by an estoppel that the option was efficacious. As the case was argued in the Court of Appeal, as Giles JA said at [121], "the efficacy asserted was as an option exercisable by Astra, and the representational case was also one of an option exercisable by Astra" . On the ground that that estoppel was different to the estoppel that had been pleaded, he declined to permit it to be raised on appeal. He also held, at [124], that such a case was in any event bound to fail. The 2010 Proceedings 48On 8 November 2010, CGM lodged another caveat against the title to the Unit. The interest that it claimed was stated to be: "1 An equitable interest in the Land arising from the right to require the registered proprietor and his or her executors, administrators and successors in title, should he or she or they wish to sell or dispose of the Land, to give to the Service Company a month's notice of that intention, pursuant to the terms of clause 15(1)(iv) and 15(1)(a) of Disclosure Statement B of the Agreement for Sale of Land entered into between the Registered Proprietor and CGM dated 11 th October 1996 ('the Agreement for Sale of Land') And/Or 2 An equitable interest in the Land arising from the right, should no Buyback Notice be served following the giving of the notice referred to in paragraph 1 above, to require the registered proprietor and his or her executors, administrators and successors in title to require any transferee from him her or them to enter into an agreement with the Service Company, incorporating the special conditions of the Agreement for Sale of Land with any necessary alteration to suit the circumstances, pursuant to Clause 15(1)(c) of Disclosure Statement B of the Agreement for Sale of Land." 49The caveat stated that those interests arose by virtue of the agreement for sale of land dated 11 October 1996, and in particular by reason of the DSB, clause 15(1) and (2). 50There followed some correspondence between the solicitors, in which the solicitors for the Respondents demanded that the caveat be withdrawn, and the solicitors for the CGM declined to do so. On 7 December 2010 the solicitors for the Respondents served a lapsing notice. On 22 December 2010 CGM, as sole plaintiff, filed a summons starting the proceedings from which this appeal is brought (" the 2010 Proceedings "). It named the Respondents as the sole defendants. 51As well as interlocutory relief seeking an extension of the caveat, that summons sought: "5. A declaration that the First and Second Defendants ('the Defendants') and their successors are required if they propose to sell, or dispose of the property known as unit 42/34 Campbell Parade Bondi Beach ... ('the property') they are to give to the Plaintiff and/or Bondi Beach Astra Retirement Village Pty Ltd ('Astra') one (1) month's notice of intention to sell or dispose of the property and in the event that Astra wishes to purchase the property and has notified the Defendants within 28 days they must enter in to a contract for sale on the terms contained in the standard Agreement for Sale of Land - 1988 Edition with the variations additions and omissions identified in clause 15(1)(b) of Disclosure Statement B of the Agreement for Sale of Land entered into between the late Brian Noon and the late Jennifer Noon and the Plaintiff dated 11 th October 1996 ('the 1996 Agreement') at the price of $197,000. 6. An injunction restraining the defendants from selling advertising for sale disposing of or attempting to dispose of the property without giving Astra and/or the Plaintiff 28 days notice. 7. An order extending caveat dealing number AG860721K ('the Caveat') lodged for registration by the Plaintiff on the title of the property to which the Defendants are or are entitled to become the Registered Proprietors, until further order of the Court. 8. An order that the Defendant withdraw and not seek to rely upon the service of the Lapsing Notice and shall not without further order seek the issue of a further lapsing notice in respect of the Caveat." 52CGM's contention in the 2010 Proceedings is that even though five of the six triggering events for the exercise of the option identified in clause 15(1) of the DSB are dependent upon there being a "resident" or "residence contract" , the triggering event in clause 15(1)(iv) is not dependent on there being a "resident" or "residence contract" . All that is required for the triggering event in clause 15(1)(iv) is that "the purchaser wishes to sell, or dispose of the unit." The definition of "purchaser" includes the executors, administrators and successors in title of Mr and Mrs Noon, and thus the Respondents fall within the definition of "the purchaser" . CGM contends that the relevant words, for present purposes, in clause 15(1) are: If:- ... (iv) the purchaser wishes to sell, or dispose of the unit; the following procedure shall apply:- (a) ... the purchaser or her/his legal personal representative shall give to the Service Company one (1) months notice of intention to sell or dispose of the unit ... (b) upon the expiration of the period of one (1) month referred to in paragraph (a), the purchaser or the Service Company shall have the option by notice in writing (the 'Buyback Notice') served upon the other no later than a further twenty eight (28) days thereafter to require the transfer by the purchaser of the unit to the Service Company or its nominee for the price at which the purchaser bought the unit and the following conditions shall apply: (i) the relevant parties shall upon the service of the Buyback Notice by either or the other be taken to have entered into an agreement ('the Buyback Agreement') upon the same conditions as are contained in the standard Agreement for Sale of Land - 1988 Edition with the following alterations, omissions and additions thereto ..." 53CGM's contention in the 2010 Proceedings is that clause 15 gives CGM a contractual right that "the purchasers" (ie the Respondents) will act in accordance with the procedure laid down in clause 15. The obligation that the Respondents owe to CGM is that, when the time comes that they wish to sell, they must give notice to Astra of their intention to sell or dispose of the Unit, and that Astra will thereupon have the opportunity to serve a Buyback Notice, and thereby bring about a Buyback Agreement. CGM contends that that contractual right of CGM to have a benefit conferred on a third party is enforceable by equitable relief at the suit of CGM in accordance with principles laid down in obiter remarks of Barwick CJ and Windeyer J in Coulls v Bagot's Executor and Trustee Co Ltd (1967) 119 CLR 460 at 478, 502-503 and the decision of the House of Lords in Beswick v Beswick [1968] AC 58. CGM accepts that at the time of the trial, the Respondents had not caused the Unit to be transmitted into their name. It now accepts that the conditions for specific performance of the contractual obligation upon which CGM now focuses had not arisen. However, CGM asserts that it is entitled to an injunction to prevent the erosion or removal of rights that would in due course provide the basis for an application for specific performance. The Decisions Appealed From 54The 2010 Proceedings were heard by Rein J, without pleadings. In a judgment given on 25 March 2011, his Honour dismissed the proceedings: C G Maloney Pty Ltd v Noon [2011] NSWSC 242 (" the Principal Judgment "). 55There were three substantial reasons for Rein J reaching that conclusion. The first was that the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 precluded the claims from being brought. The second was that the promises in clause 15 were made to Astra, not to CGM, that thus clause 15 gave no rights to CGM, and therefore its claim against the Respondents failed. The third was that in any event equitable relief was unavailable because of a lack of mutuality. 56On 30 March 2011 Rein J delivered a judgment and made orders concerning the costs of the 2010 Proceedings: C G Maloney Pty Ltd v Noon [2011] NSWSC 256 (" the Costs Judgment "). He held that CGM should pay the costs of the Respondents on an indemnity basis, and so ordered. 57In the present appeal, Mr B Coles QC appears with Mr B DeBuse for CGM. Dr AS Bell SC appears for the Respondents. In the appeal CGM contests each of the three bases upon which it failed in the court below, and also the ordering of indemnity costs. 58In the court below, the Respondents argued that by reason of the deed that purported to effect an assignment of CGM's rights (para [23] above) CGM did not have standing to bring the proceedings. Rein J rejected that submission of the Respondents. By a Notice of Contention, the Respondents have challenged that aspect of the primary judge's decision. Anshun Estoppel? 59It is convenient to deal first with the Anshun estoppel point. 60In Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 at 319 Sir James Wigram VC said: "... where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of [a] matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." 61In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598, Gibbs CJ, Mason and Aickin JJ approved that statement of principle. At 602, their Honours rejected, as going too far, the statement of Lord Kilbrandon in Yat Tung Investment Co Ltd v Dou Heng Bank Ltd [1975] AC 581 at 590 that it was "an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in the earlier proceedings" . It was wrong because in that context "could" did not entail "should" . Their Honours also, at that page, said that it was "not of great utility" to ask whether "the issue in question was so clearly part of the subject matter of the initial litigation and so clearly could have been raised that it would be an abuse of process to allow a new proceeding." The test that their Honours laid down, at 602, was that this type of estoppel would not arise unless the matter sought to be relied upon in the second action "was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it." 62As Allsop P pointed out in Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245 at [3], deciding whether the matter in question was so relevant that it can be said to have been unreasonable not to rely upon it in the first proceeding involves "a value judgment to be made referable to the proper conduct of modern ligation" . Evidence Admissible Re Anshun Estoppel 63A separate ground of appeal relating to Anshun estoppel is: "His Honour erred in admitting and having regard to the written submissions of counsel for the plaintiff in the earlier proceedings or drawing any conclusion adverse to the appellant in holding that it was unreasonable for the Appellant not to have made the claim it has now brought in the earlier proceedings." 64As the scope of the evidence that can legitimately be relied upon in answering a particular question must be decided before the question itself is embarked on, I will deal with that ground of appeal first. 65The basis of that ground of appeal is that in Champerslife Handley JA said, at [107]: " The relevant evidence is restricted to the pleadings in both proceedings and the reasons for judgment in the earlier . " CGM says that by reason of that sentence it was not open to the judge to admit the written submissions in the court below. 66Rein J rejected this argument (and an argument that not even the defence in the First Proceedings was admissible, a claim now not pressed). He noted that the sentence relied on was part only of a larger portion of his judgment in Champerslife where Handley JA said: "105 In my opinion the test of relevance and reasonableness mandated by Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 gives content to the somewhat amorphous test of abuse of process accepted in Johnson v Gore Wood & Co [2002] 2 AC 1. In practice the former very often becomes the real test of the latter. 106 The test for an issue estoppel or a cause of action estoppel is objective. For issue estoppel it is whether the precise question of fact or law sought to be litigated in the later proceedings was decided in the earlier as a fundamental basis for the decision. For cause of action estoppel it is whether the cause of action in the later proceedings is in substance the same as that litigated to judgment in the former. 107 The principle in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 at 319 widens the scope of both forms of res judicata estoppel without introducing subjective factors. The test is whether the new point 'properly belonged to the subject of litigation' in the earlier proceedings. The relevant evidence is restricted to the pleadings in both proceedings and the reasons for judgment in the earlier. 108 Where the extended form of res judicata in Anshun or Johnson is in issue the enquiry is extended to include the reasonableness of the litigant's conduct in the earlier proceedings, or the existence of an abuse of process in the later. 109 In Port of Melbourne Authority v Anshun Pty Ltd Gibbs CJ, Mason J and Aickin J said (at 602-603): '[T]here will be no estoppel unless it appears that the matter relied upon ... was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking it would be unreasonable not plead a [matter] if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why any party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of a particular issue, motives extraneous to the actual litigation, to mention but a few.' 110 The matters referred to would not be relevant if a res judicata estoppel was in issue. No question of privity arose. 111 In Johnson the second action, by Mr Johnson personally, was held not to be abusive although it could have been joined with the earlier action by his company. Lord Bingham said (at 31): 'The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied ... that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings would be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before ... while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim.' 112 A broad merits-based judgment, which, inter alia, takes account of the matters referred to by Lord Bingham, involves a broader enquiry than that for res judicata estoppel." 67Rein J continued at [59] of the Principal Judgment: "I think it is clear from the paragraphs surrounding [107] that Handley AJA accepted that the evidence relevant on an Anshun estoppel is wider than that relevant to res judicata or issue estoppel. His Honour's endorsement of the approach of Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1, which includes reference to the potential relevance of the party's lack of funds, further demonstrates that this is so. Accordingly, I reject Mr Coles' submission. If there is evidence that shows a point was considered in the First Proceedings and not run, I think that is relevant in determining whether the point later sought to be agitated is one which it was unreasonable not to have advanced in the First Proceedings. In my view, the evidence which Dr Bell sought to rely on, ie the defence filed by the Executors to the FASOC (which FASOC is itself in evidence) and submissions of counsel in the First Proceedings, are admissible." 68I agree that the evidence relevant to an Anshun estoppel is wider than the evidence relevant to res judicata or issue estoppel, and that "a broad merit-based judgment" that "takes account of all the facts of the case" would permit the court to receive the submissions of counsel in the First Proceedings. When the essential question in an Anshun estoppel case concerns the reasonableness of the manner in which litigation has been conducted, any facts that bear upon that reasonableness are relevant. The sentence on which CGM relies for this ground must, like any statement in a judgment, be read in accordance with its context: Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 637-638; R v Beserick (1993) 30 NSWLR 510 at 517; Leaway v Newcastle City Council (No 2) [2005] NSWSC 826; (2005) 220 ALR 757 at [75]-[84] and cases there cited. So read, I cannot accept, with respect, that it is to be taken at the face value it would have when read in isolation. It may be that there is a " not" missing from it, or that it should appear at the end of the paragraph preceding that in which it actually appears. This ground of appeal is rejected. Standard of Appellate Review of an Anshun Decision 69Dr Bell submits that the judge's upholding of the Anshun defence was an exercise of discretion, and could be overturned only in accordance with the principles in House v The King (1936) 55 CLR 499. 70I do not accept that submission. The concepts upon which any application of Anshun depends are those of relevance, and unreasonableness. Each of those concepts involves application of a legal standard. In relation to a particular case, there can only be one right answer to a question of whether A is relevant to B, and only one right answer to a question of whether certain conduct is unreasonable. I recognise that answering each question requires evaluation and judgment. Notwithstanding that, such decisions do not involve the exercise of a discretion: Certain Lloyds Underwriters v Kathy Giannopoulos [2009] NSWCA 56 at [1], [91]-[97] and cases there cited. In particular, Warren v Coombes (1979) 142 CLR 531 was a case relating to the standard for appellate review of a decision dependent upon reasonableness, namely, whether a defendant had taken reasonable care. The standard for appellate review that it laid down differed from the House v The King standard. The applicable standard for appellate review in the present case is that laid down in Warren v Coombes . 71Similarly in England, where abuse of process provides the legal test that is used in deciding whether a second piece of litigation contravenes Henderson v Henderson , it has been accepted that an appeal from a first instance decision on that topic should not be approached on the basis that the first instance decision is a discretionary judgment: Aldi Stores Ltd v WSP Group Plc [2007] EWCA Civ 1260; [2008] 1 WLR 748 at [16], [38]; Stuart v Goldberg Linde (a firm) [2008] EWCA Civ 2; [2008] 1 WLR 823 at [43], [76], [81]-[82]. Was the Judge Wrong in Upholding the Anshun Defence? 72In my view, the manner of enforcing clause 15 that CGM sought to rely upon in the 2010 Proceedings was so closely related to the subject matter of the First Proceedings that it was unreasonable not to have relied upon it in those proceedings. 73Difficult questions of judgment can sometimes arise in a case in which an Anshun estoppel is asserted about whether failure to plead a particular defence or raise a particular cross-claim in earlier proceedings prevents the contention that would have been involved in that defence or cross-claim from being raised in later proceedings. The present case does not raise any such difficulties. Nor does it involve any of the difficulties that sometimes arise if A has failed to raise an issue in earlier proceedings, and in the later proceedings B, who has a connection with A, seeks to raise that issue. Rather, this case involves the comparatively simple situation of a particular plaintiff who failed to bring forward one basis of claim in litigation against a particular defendant, and then seeks to bring fresh proceedings against the same defendant to present the basis of claim that had not been presented in the first proceedings. 74I recognise that even in that comparatively simple situation it is not always unreasonable for the plaintiff to have failed to rely on the basis of claim in the first proceedings. However, there are numerous additional factors concerning the present litigation that made it unreasonable for CGM to fail to rely on the basis of claim in the First Proceedings that it now propounds in the 2010 Proceedings. 75The First Proceedings involved enforcement of the same clause, in the same contract, as the 2010 Proceedings. The construction and legal effect of clause 15 of the DSB were central to the First Proceedings. That task of construction and ascertainment of legal effect was to be carried out in the circumstances of the "fine disregard of privity of contract" in clause 15 of the DSB and what Giles JA at [65] described as " abysmal drafting" of the sale contract, and of it being apparent that in some fashion CGM and Astra were both involved in what rights clause 15 might have created and conferred. 76The interest in land that CGM claimed in the caveat lodged on 20 October 2006 ([11] above), in para 6 of the summons that initiated the First Proceedings (para [13] above) and in orders 1 and 4 of both the FASOC and the Second FASOC (para [18] above), is one that is very close to the claim now made. The claim now made is that even though CGM does not, today, have a specifically enforceable right to compel the sale of the property to Astra, it nevertheless has a right that will in due course become specifically enforceable and that will enable Astra to buy the property, in consequence of which it is, today, entitled to an injunction. 77The estoppel that was pleaded in the FASOC (para [22] above) was to the effect that the buyback provision was effective in accordance with its terms. That likewise is quite close to the contention that CGM now seeks to advance. 78In a sense, the issue that the then senior counsel for CGM identified before Smart AJ as involved in the First Proceedings ([29] above) encompasses the basis on which CGM now puts its case, as that issue is one that CGM would now submit should be answered " yes, but the contractual right is not yet enforceable" . Similarly, the way CGM now puts its claim is, in a sense, one within "primary issue" (b) identified by the then senior counsel for CGM ([30] above), as that issue is capable of being answered " y es, but not yet" . 79It appears from [68] of the judgment of Smart AJ ([34] above) that CGM and Astra had contended before him that they had a right to exercise the option even if there was no residence contract. However, Smart AJ rejected that submission, and his rejection of it was not questioned in the appeal in the First Proceedings. Mr Coles submits that the submission that Smart AJ was there referring to was the submission that his Honour had recorded at [52] of his judgment ([33] above). I accept that that is so, and also accept that the submission recorded at [52] is not the precise argument that CGM now seeks to litigate. Even so, the question of whether clause 15 could be enforced without a residence contract was a live question in the First Proceedings. 80A related point is that Smart AJ at [68]-[69] ([34] above) made a finding to the effect that it is essential that there be a residence contract before the option can be exercised. That finding was not appealed against. Giles JA expressly noted, at [43] of his judgment ([42] above), that it had not been appealed against. His Honour, in concluding that the option in clause 15 could not be exercised when there was no residence contract, made a statement that would need to be directly contradicted if CGM were to run its present argument. That is not a matter that would give rise to inconsistent judgments, in the sense referred to in Anshun at 596, but it is still a relevant matter. 81The First Proceedings were begun while Mr Noon was alive. Also, the First Proceedings were begun before the 6 November 2007 letter was written, and upon which CGM and Astra relied at the hearing of the First Proceedings as being an exercise of the option. At the time when the First Proceedings were begun there was no basis upon which it could have been contended that the option had already been exercised, and that a resulting contract should be enforced then and there by specific performance. However, the very act of lodging the caveat and filing the summons was an acknowledgement and assertion by CGM that it then and there had rights arising from clause 15 that were enforceable in equity. 82The present claim could readily have been brought as an alternative claim in the First Proceedings. No event has occurred, between the First Proceedings and now, to give CGM any different or better rights arising from clause 15 than it had at the time of the First Proceedings. Mr Coles correctly points out that in the interim a new caveat was lodged, and a lapsing notice was served concerning it. However those are not matters which give CGM different or better rights under clause 15. 83It was, then as now, clear that at some stage the Respondents will wish to sell or dispose of the Unit. The litigious stance of the Respondents, from early on in their involvement in the First Proceedings, involved a wholesale rejection of CGM or Astra having any rights at all under clause 15 - they put the Respondents to proof that the DSB was part of the contract, contended that clause 15 was void under s 66ZG, and in the Court of Appeal tried to raise the argument that the clause was an invalid restraint on alienation. Their defence ([28] above) made a wide-ranging allegation of CGM's lack of entitlement. I would accept that the manifest unwillingness of the Respondents to perform clause 15 in any way would mean that the mere fact that the Respondents have not manifested an intention to sell in the immediate future did not provide a sufficient reason for denying declaratory relief concerning whatever rights CGM had under clause 15, or injunctive relief to protect whatever those rights might be. However, the issue that CGM now seeks to litigate was as ripe for determination at the time of the First Proceedings as it is now. The caveat that CGM had placed on the title to the Unit lapsed after the Court of Appeal decision in the First Proceedings. There was a delay of several days between the lapsing of the caveat, and the commencement of the 2010 Proceedings. If the Respondents had been sufficiently Machiavellian and willing to take something of a risk, they might have entered a contract to sell the Unit in that time. Alternatively, once the result of the Court of Appeal proceedings was known, they could have entered a contract to sell the Unit subject to a condition that the caveat be removed, and settled that contract as soon as the caveat was removed. If CGM had been able to obtain in the First Proceedings an injunction of the type that CGM now claims, it would have provided protection against the risk that the Respondents might act in that way. 84Mr Coles placed great emphasis on the fact that the First Proceedings sought an order for specific performance, while the 2010 Proceedings sought only an injunction. In my view, identification of the " given matter" that " becomes the subject of litigation" is not to be confined so narrowly. Both then, and now, CGM sought an order of the court, based in its equitable jurisdiction, that would compel the Respondents to perform clause 15, 85Mr Coles submits that in the First Proceedings all that the parties were putting in dispute was whether Astra or CGM could enforce a right that had arisen as a result of Mr Noon's death. I accept that that was the ambit of the matters actually debated in the First Proceedings. However, the ambit of what was actually debated is not conclusive of what was the " subject matter of the proceedings" or of whether some particular contention was so closely related to the subject matter of the proceedings that it was unreasonable not to raise it. Indeed, the only circumstance in which an Anshun estoppel arises (as opposed to a res judicata or issue estoppel) is when a basis of claim that was not litigated in the first set of proceedings is sought to be litigated in the second set of proceedings. Raising the issue in the First Proceedings would have involved some additional legal argument, but would not have involved proof of any additional factual matters. The time and trouble that would have been involved in running the issue at that stage was vastly less than has been involved in the bringing of the 2010 Proceedings, which have now involved a two-day trial and a hearing in the Court of Appeal. 86I recognise that there may have been some forensic disadvantage in running in the First Proceedings the argument that CGM now seeks to raise. Running the issue in the First Proceedings would have entailed focusing attention on an analysis of clause 15 as a third-party beneficiary contract. This may well have detracted from CGM and Astra's principal argument: that clause 15 conferred rights that entitled one or other of them, there and then, to an order for specific performance. However it is a usual part of litigation that lawyers select amongst the available arguments, present the arguments that seem to have the best prospect of success, and not present arguments that would weaken what they see as their strongest points. 87Rein J said, at [63] of the Principal Judgment: "In recent times there has been an increased awareness of the importance of efficiency and proper use of court resources in the manner in which litigation is conducted, not only by the courts themselves (see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [96]-[102] per Gummow, Hayne, Crennan, Kiefel and Bell JJ and [133]-[134] per Heydon J) but by the legislature as well (see ss 56-61 of the Civil Procedure Act 2005 (NSW) and Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 per Spigelman CJ at [28]-[29], with whom Basten and Campbell JJA concurred at [34] and [35]). The need for parties to bring before the court all of the matters relevant to their dispute is a requirement long ago recognised in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 and reiterated in Anshun , and is an important part of the orderly and fair administration of justice." While that part of the judgment below was not attacked by CGM on the appeal, I should record my agreement with it. It is consistent with the remark of Allsop P in Champerslife that I have set out at [62] above. It is also consistent with a remark of Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31. 88Mr Coles contends that Rein J had insufficient appreciation that in the First Proceedings the rights asserted were ones claimed by reference to determination of the residence contract, while in the 2010 Proceedings the rights were asserted against the Respondents in their role as "the purchasers" . I do not accept that His Honour failed to grasp that distinction. He said, at [28]: "I should note that Mr Coles' argument is based on reading Clause 15(1)(a) as: 'if the purchaser wishes to sell, the following procedures shall apply: the purchaser or his/her legal personal representative shall give to the Service Company one month's notice of their intention to sell or dispose of the Property'. This is a filleted form of the clause and deletes all references to 'resident', 'death of resident' and 'deemed notice'." 89When the judge then refers to " a filleted form of the clause" he is, fairly clearly, speaking by analogy with the filleting of fish, a process that involves removing what is extraneous or unwanted. So understood, his Honour's remark captures precisely the argument that CGM was advancing. As well, at [61] Rein J said " CGM's case is framed as if the events which give rise to its right to enforce the claimed contractual promise have not yet arisen " . That accurately captures the nature of CGM's claim in the 2010 Proceedings. 90Rein J also observed at [64] that CGM's case that it could compel the Respondents to transfer the Unit to Astra "was not only a case that could have been raised in the First Proceedings, it was one that was in a fashion raised in the First Proceedings." His Honour gave this as one of his reasons for upholding the Anshun estoppel. He referred, in that respect, to paragraph 4 of the relief set out in the FASOC, and to the written submissions of CGM and Astra in the First Proceedings containing "primary issue" 3(b) (set out at [30] above), and paragraph 22(e), set out at [31] above. Mr Coles submits that the judge was there taking the submission in paragraph 22(e) out of context. 91I recognise that paragraph 22(e) of the submissions was an answer to clause 6 of the Further Amended Defence, and accept that there the Further Amended Defence was providing reasons why Astra could not enforce clause 15. What para 22(e) of the submissions was doing was saying that whether Astra could enforce clause 15 was beside the point, because CGM could enforce clause 15. I recognise that para 22(e) is not saying that CGM could enforce clause 15 in any way other than it was actually seeking to enforce it in the First Proceedings. However I do not take the primary judge's remark to be asserting that the very way in which clause 15 is now sought to be invoked was raised in the First Proceedings, merely that the topic of the First Proceedings was CGM enforcing clause 15. His Honour was right to take that view. 92In my view, it is quite clear that the attack on the dismissal of the 2010 Proceedings fails on the basis that those proceedings cannot be brought by reason of an Anshun estoppel. Other Issues - Kuru 93Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [12] instructs me to consider whether it is desirable to go on and decide the other questions involved in the attack on the dismissal of the 2010 Proceedings. I have done so. 94Whether the judge was right in reaching the view that clause 15 of the DSB did not confer rights on CGM would require some analysis of the moderately detailed topic of third party beneficiary contracts. 95Even if the primary judge was wrong in concluding that clause 15 conferred no rights on CGM at all, there would be a further question about precisely what rights it gave CGM. In particular, there would be a question about whether, even if the Respondents owed CGM a contractual obligation not to sell without one month's notice of intention to sell being given to Astra, that is the sort of right that would be protected by an injunction. While an injunction is frequently granted to enforce a negative stipulation in a contract, it is not invariable that such an injunction will be granted: Dalgety Wine Estates Pty Ltd v Risson (1979) 141 CLR 552; Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 at 346. 96Part of clause 15(1)(a), which I omitted when quoting that clause in para [7] above, was: "... any notice by the purchaser of her/his intention to sell the unit shall itself be taken as notice by the resident of termination of the Residence Contract." That apparently mandatory provision would need to be reconciled with the parts of clause 15(1) upon which CGM relies. In particular, it would be necessary to decide whether, as a matter of construction, the obligation not to sell without first serving notice of intention to sell upon Astra did not, as a matter of construction, apply in the present circumstances. Here, there is no resident, and no residence contract that is capable of termination. 97As well, even if the Respondents owed a contractual obligation not to sell without first serving Astra with a notice of intention to sell, there would be a question about whether clause 15(b) was effective to result in a contract coming into existence between the Respondents and Astra. An exchange of correspondence between the Respondents and Astra in which the Respondents said, in effect, "I intend to sell the Unit at the expiry of one month" and Astra replied "I require you to transfer the Unit to me for the price and on the conditions identified in clause 15(2)(b) of the DSB" may well not be effective to cause a contract to result simply from the exchange of those two pieces of paper. They do not look much like an offer, and an acceptance. But if the exchange of the two pieces of paper by itself is not effective to bring about a contract for the sale of the unit to Astra, does clause 15(b), which is part of a contract that binds the Respondents and CGM, but not Astra, result in that effect? If service of the notice of intention to sell led nowhere, that may provide a reason why it was not appropriate to enforce by injunction any contractual obligation that arose under clause 15 for the Respondents not to sell without giving Astra one month's prior notice. 98The question of whether an injunction should be refused by reason of lack of mutuality is likewise a question of some complexity. 99The essence of the reason why the primary judge held that the deed purporting to assign CGM's rights to Astra did not result in CGM losing its standing to bring the proceedings was that the deed failed to achieve its intended purpose. This was because the rights in question were inherently unassignable. That likewise is a complex question. 100Once an intermediate appellate court has decided a question that is sufficient to dispose of an appeal, the rationale for the court going on to decide all the other issues in the case is that the High Court might grant special leave, might decide that the intermediate court of appeal was wrong in the basis on which it disposed of the case, and might then remit the matter to that court for deciding the other issues. That would cause extra delay and costs to the litigants in that case. Unnecessary delay and costs are detrimental to the proper administration of justice. 101However, for an intermediate appellate court to decide issues beyond those that are sufficient for determination of a particular appeal can itself bring consequences that are detrimental to the administration of justice. This Court has a heavy workload, and a limited number of judges. Taking time to decide and write reasons concerning unnecessary issues in a case will inevitably delay the decision of that case, and also the hearing or decision of other cases. Unless an appellate judge who decides one of the extra issues in a case adopts the decision on that issue as an alternative ground for dismissal of the appeal, the decision will only have the status of obiter dicta. Proliferation of obiter dicta can be undesirable for the proper operation of the system of precedent. It can prolong the argument and consideration of subsequent cases, as argument is put concerning, and the court decides, whether to adopt those dicta. 102When deciding issues in a case beyond those that are necessary can have consequences detrimental for the administration of justice, and not deciding those unnecessary issues can also sometimes have consequences that are detrimental for the administration of justice. the court's task is to decide, concerning any particular case, which course is less detrimental. In the present case, I have reached the view that the unnecessary issues should not be decided. Indemnity Costs 103My reasons so far lead to the conclusion that the appeal should be dismissed. Even in that circumstance, CGM contends that the primary judge was mistaken in ordering the payment of indemnity costs. Leave to Appeal on Costs? 104In Arena Management Pty Ltd (recs & apptd) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128; (2011) 281 ALR 304; (2011) 84 ACSR 33 one of the issues under consideration was whether leave to appeal was needed for a particular appeal. I reached the view (McColl and Macfarlan JJA agreeing) that leave to appeal was not needed. However, the appellant had been ordered to pay indemnity costs in the court below, and wished to contest that order. If any of the substantive orders in the court below are held on appeal to be mistaken, there is no doubt that the appellate court can re-exercise the discretion about the costs of the first instance proceedings. In Arena at [129] I foreshadowed that if the judges deciding the appeal were to come to the view that the substantive orders in the court below should not be disturbed, but the appellant still wished to contest the finding concerning indemnity costs, a question might arise of whether leave to appeal against the costs order was needed, by virtue of s 101(2)(c) Supreme Court Act 1970 . I said: "In that situation, a question might arise about whether the decision in Wheeler v Somerfield [1966] 2 QB 94 is correct. Wheeler held that if an appeal is brought as of right, and that appeal fails concerning substantive matters, but the appellant wishes to argue that the trial judge's decision concerning costs was in any event wrong, the appellate court can deal with that question of costs without leave being required. Wheeler has been followed in this Court, in Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 at [200]; Dasreef Pty Limited v Hawchar [2010] NSWCA 154 at [61]. However in Dasreef , and apparently also in Tyco , the attention of the court was not drawn to decisions in other intermediate courts of appeal that had declined to follow Wheeler , eg Re Golden Casket Art Union Office ; [1995] 2 Qd R 346 (where Fitzgerald P, Davies and McPherson JJA at 349 noted, amongst other things, that in Road Chalets Pty Ltd v Thornton Motors Pty Ltd (1986) 47 SASR 532 Zelling ACJ said Wheeler was 'against the whole course of reported cases for a century'); Theophanous v Gillespie [2002] QCA 117 at [17]; Shadbolt v Wise [2005] QCA 443; [2006] 1 Qd R 553 at [35]-[36] per Keane JA (McPherson and Williams JJA agreeing); Remely v O'Shea [2008] QCA 78 at [79]-[80]. I mention at this stage the possibility of this matter arising as, if any party wishes to argue that Wheeler should not be followed, ample notice should be given so that consideration can be given to sitting a bench of five judges." 105Counsel for CGM were not prepared to argue the correctness of Wheeler v Somerfield [1966] 2 QB 94 when that matter was raised in oral argument on this appeal. Though they promptly offered to put on written submissions on the topic, the court decided that it would hear argument concerning the indemnity costs order, and might at a later stage seek those written submissions if necessary. 106In my view, given the way the indemnity costs question was argued, it can be decided comparatively simply, and the pragmatic course is to grant leave to appeal if necessary, without involving the parties in further delay and expense. If it had been necessary to decide the questions other than concerning Anshun that arose on the appeal solely for the purpose of deciding costs, I may well have sought submissions on the Wheeler v Somerfield question. One of the purposes of the requirement for leave to appeal in s 101(2)(c) is so the court has control over whether it decides complex or time-consuming questions whose only practical relevance relates to costs. Facts Relating to Costs 107After the caveat of 8 November 2010 had been lodged, after the solicitors for the Respondents had served a lapsing notice, but before the caveat had actually lapsed or the 2010 Proceedings had been commenced, the solicitors for the Respondents wrote to the solicitors for CGM on 21 December 2010 ("the Warning Letter"). That letter made "four points" about why any litigation that sought to assert the right that had been claimed in the caveat would fail. 108The first was that CGM had no rights at the time it lodged the caveat, because it had assigned those rights to Astra. That argument was repeated to Rein J, who rejected it. 109The second "point" was that it followed from the judgment of the Court of Appeal in the First Proceedings that there were no rights arising under clause 15 that were exercisable by CGM, and neither, for reasons of privity of contract, were there any rights exercisable by Astra. 110The third "point" was that the right could not be asserted by reason of res judicata or Anshun estoppel. The fourth was that the caveat had, in all these circumstances, been lodged without reasonable cause. The letter continued: "Our clients have already incurred costs in corresponding with you and your clients' previous solicitors. Our clients are entitled to claim these from your client. However our clients are willing to release your clients from this obligation but only if your client ceases to press the Caveat immediately and your clients provide a written undertaking through you, as their solicitors, that they will take no further steps to press the Caveat or lodge any further caveat that relies in any way upon alleged rights under clause 15." 111The warning letter went on to say that if the undertaking was not provided and attempts were made to extend the caveat, the letter would be relied on in an application for indemnity costs against CGM. The Decision Below on Costs 112In the Costs Judgment, Rein J set out the oft-quoted passage in the decision of Sheppard J in Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233-4, where his Honour gave examples of cases in which indemnity costs could be awarded. One of the examples given by Sheppard J was "the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions" . Rein J noted that his Honour was not purporting to give a closed list of categories. Rein J continued, at [9]-[10]: "Generally speaking, it has to be borne in mind that mere failure on the part of the plaintiff or the defendant in a case does not of itself warrant an order for indemnity costs. Some of the categories where indemnity costs are awarded involve significant misconduct, such as the making of allegations of fraud that were totally without foundation, but the categories are not limited. The nature of the Anshun defence (and it is applicable to res judicata as well) is that it is asserted by the defendant in such cases that the plaintiff, by bringing the fresh proceedings, is vexing the defendant for a second time and this is a category of abuse of process. I think that is a relevant and important consideration in determining whether an award of indemnity costs should be made against an unsuccessful plaintiff, but I should not be understood as saying that an order for indemnity costs should necessarily be made whenever the Anshun defence or res judicata defence is successful." 113He said, at [11], that there was "a particularly strong case for an Anshun estoppel" . 114The primary judge concluded, at [14]-[16]: "Mr DeBuse accepted that should I come to the conclusion that the plaintiff's claim was a hopeless one doomed to failure, that is a reason why the Court would be justified in making an order for indemnity costs, but he submitted that absent that conclusion or some other ground identified in Colgate-Palmolive , the order sought by the defendants should not be made. There was an issue about whether [the Warning Letter] contained any real offer at all. Mr DeBuse argued that the plaintiff would not have been liable for the costs of the defendants obtaining advice. Dr Bell did not seek to assert that an offer was made sufficient to enable it to be characterised as a Calderbank letter, so it is not necessary to dwell upon this issue. I think it is of some relevance (albeit limited) that the defendants did write to the plaintiffs and put them squarely on notice that the claim, if advanced, would be barred and the reasons for that, and warning the plaintiff that the defendants would seek to rely on [the Warning Letter] on the issue of indemnity costs. Whilst I am not persuaded that the plaintiff's claim was so hopeless that it could be described as doomed to failure, it was a very weak case and comes perilously close to that characterisation and I take that into account as well." Alter the Costs Order? 115It is trite that the primary judge's decision on costs was a discretionary decision that can be overturned only in accordance with the principles in House v The King . 116Mr DeBuse, who presented the argument on costs for CGM, accordingly sought to identify errors of fact or principle in the Costs Judgment. He submitted that the first sentence in [9] of the Costs Judgment was mistaken. The correct principle, he submitted, was that mere failure by a litigant never warrants an order for indemnity costs. 117I accept this submission of Mr DeBuse, but it does not lead anywhere. Rein J found reasons other than mere failure for the making of an order for indemnity costs. 118The second matter that Mr DeBuse identified as an error of fact or principle was that the primary judge applied an evaluation of cases "based upon a sliding scale of strength and weakness and hopeless" . He submits that it was an error of principle for his Honour to rely on the case being "very weak" as the basis for an indemnity costs order. 119I do not accept that Rein J was laying down any principle about strength or weakness always being the basis for an order for indemnity costs. Rather, he was regarding the weakness of the particular case as a reason for awarding indemnity costs, along with other factors that he mentioned (namely, that this was an Anshun case, that it was a "particularly strong" Anshun case, and that the Appellant was forewarned). His Honour said nothing that suggests that weakness of a case is sufficient, when a claim that is brought the first time fails, for an order for indemnity costs. 120In my view, the primary judge made no error of principle in taking the weakness of the case into account, as relevant in conjunction with the other factors. Whenever a case fails on the basis of an Anshun estoppel, that case is necessarily one in which there has already been litigation about issues closely related to those in the proceedings in question, and the matter at issue in the proceedings in question was so relevant to the subject matter of a previous action that it would have been unreasonable not to rely on it. That that is the nature of the litigation is a relevant and powerful matter to take into account in exercising a discretion concerning costs. It is strengthened if the case was in any event weak. It is important that in the present case the Anshun estoppel defence came to be decided following a hearing in which all issues were litigated fully. Thus the primary judge was able to reach a fully informed view about the strength or weakness of the case. If an Anshun defence came to be argued in the context of an application for summary judgment a judge would usually not be in the position to make a fully informed view about the strength of the case. 121In the present case, when his Honour was of the view that the 2010 Proceedings failed by virtue of an Anshun defence, there was a "particularly strong case for an Anshun estoppel" , CGM's claim in the 2010 Proceedings was "very weak" , and there had been a forewarning that indemnity costs would be sought if the action was commenced, it was within the scope of the judge's discretion to order indemnity costs. 122At [12] in the Costs Judgment the primary judge specifically made mention of CGM failing on two grounds besides Anshun estoppel. I would accept that when he referred to "the weakness of the case" his Honour was referring to the way that it had failed on three separate grounds. CGM has submitted in this appeal that the primary judge was mistaken in holding against CGM on each of those grounds, and I have earlier declined to give consideration to whether he was wrong in holding that the case failed because clause 15 conferred no rights on CGM, and because lack of mutuality provided a discretionary defence to the grant of an injunction. Even if the his Honour's conclusion about the effect of clause 15, and lack of mutuality were wrong, I would come to the view that the strength of the case for Anshun estoppel, coupled with the forewarning that indemnity costs would be sought, would suffice to justify an order for indemnity costs in the first instance proceedings. Costs of the Appeal 123The Respondents seek an order that its costs of the appeal be on an indemnity basis. Dr Bell submits that the same factors apply concerning the appeal as applied concerning the first instance proceedings. 124That submission is not quite right. One different factor is there was no specific warning given that indemnity costs would be sought if the appeal proceeded. However, the Warning Letter continues to have some relevance to the costs of the appeal, though its weight is not great. 125In my view, it is appropriate, despite that difference, to make an order for indemnity costs of the appeal. The case for an Anshun estoppel was a powerful one. The appeal in the present case is the fourth court hearing about enforceability of the option in clause 15. Even though the Respondents were appellants in the First Proceedings, the entire litigious saga is one that the Respondents have not chosen to engage in. In the first two hearings the Respondents received, ultimately, an order for costs on the usual basis. In my view, the appropriate costs order for the appeal is one that would not leave the Respondents to bear a cent of the costs of the appeal that they have reasonably incurred. Orders 126I propose the following orders: (1) Grant leave to appeal against the order for costs in the court below, if such leave is necessary. (2) Appeal dismissed. (3) Appellant to pay costs of the Respondents of the appeal on an indemnity basis. 127HANDLEY AJA : This is an appeal from the decision of Rein J [2011] NSWSC 242 who upheld an Anshun estoppel. On that and other grounds he dismissed proceedings to enforce an option or buy-back provision in a contract for the sale of a unit in a retirement village. I have had the benefit of reading the reasons for judgment of Campbell JA in draft. I agree with his reasons and orders he has proposed but will give brief reasons of my own. 128On 11 October 1996 the appellant (the vendor) sold Unit 42 in the retirement village at 34 Campbell Parade Bondi Beach to the late Mr and Mrs Noon for $197,000. 129Clause 15 of the "Disclosure Statement B", annexed to and forming part of the contract of sale, was a buy-back provision which, in defined events, purported to require the purchasers, or their legal personal representatives to sell the unit for its original purchase price to the "Service Company" apparently defined as Bondi Beach Astra Retirement Village Pty Ltd (Astra). 130Clause 15(1) identified six events which would trigger this obligation, five of which applied if there was or had been a resident in the unit. Resident was defined as a person who occupied under a residence contract as defined. One of those events, in cl 15(1)(v), was the death of the resident. Astra, a wholly-owned subsidiary of the vendor, was not a party to the contract of sale. 131Mrs Noon died in October 2001 and her interest passed by survivorship to her husband. On 5 April 2006 Astra lodged a caveat claiming an interest under the contract of sale. On 20 October 2006 the vendor lodged a caveat relevantly claiming "a specifically enforceable right to compel the sale of the property to" Astra. 132On 23 October 2006 the vendor and Astra commenced proceedings (the first proceedings) against Mr Noon seeking a declaration and other relief to enforce cl 15. Relief was sought on the basis that it created a specifically enforceable option in favour of one or both companies. 133Mr Noon died on 28 October 2007 and the respondents became his executors. The vendor and Astra amended their statement of claim to seek specific performance of an alleged contract between the vendor "or its nominee" requiring the executors to sell the unit to Astra for $197,000. This was said to arise from Astra's exercise of "the option" under cl 15, following the death of Mr Noon. 134The first proceedings were heard by Smart AJ who held: [2009] NSWSC 461 that Mr Noon had been a resident as defined, that the "Service Company" mentioned in cl 15, despite the definition, was the vendor, that the "option" had arisen on the death of Mr Noon and been validly exercised, creating a contract of sale between the executors and the vendor. He made an order for specific performance. 135The executor's appeal was allowed on 19 August 2010 and the first proceedings were dismissed: [2010] NSWCA 212. Giles JA, who gave the principal judgment, held that Astra was the "Service Company" mentioned in cl 15, that it had purported to exercise the option, that the vendor was not entitled to exercise it but had not purported to do so. He also held that Mr Noon had not been a resident as defined, and therefore his death had not triggered the option. This meant that five of the six triggering events which depended on there being a "resident" did not apply. 136Giles JA noted [42], that the vendor and Astra "did not submit that, if the grantee was Astra, it could exercise the option" either as offeree or as the beneficiary under a trust of the benefit of a contractual promise. As will appear the question was not overlooked. 137The remaining triggering event in cl 15(1)(iv) was "the purchaser wishes to sell or dispose of the unit". Clause 15(1) provided that on the occurrence of a triggering event the "following the procedures shall apply": "(a) ... the purchaser or her/his legal personal representative shall give to the Service Company one (1) month's notice of intention to sell or dispose of the unit ... (b) upon the expiration of the period of one (1) month referred to in paragraph (a) ... the Service Company shall have the option by notice in writing (the 'Buyback Notice') ... no later than a further twenty eight (28) days thereafter to require the transfer by the purchaser of the unit to the Service Company or its nominee for the price at which the purchaser bought the unit and the following conditions shall apply: (i) the relevant parties shall upon the service of the Buyback Notice ... be taken to have entered into an agreement ('the Buyback Agreement') upon the same conditions as are contained in the Standard Agreement for Sale of Land - 1988 Edition with the following alterations, omissions and additions thereto ...". 138On 8 November 2010 the vendor lodged another caveat claiming the right to require the registered proprietor and his executors, should they wish to sell, to offer the property to Astra under cl 15(1). 139On 22 December 2010 the vendor commenced the second proceedings to extend its caveat. 140The vendor sought to restrain the executors from selling or disposing of the property without having given Astra one month's notice under cl 15(1)(b) and thus the opportunity to give a Buyback Notice and acquire the right to purchase the property. 141The proceedings were based on the principles in Beswick v Beswick [1968] AC 58 and Coulls v Bagot's Executor and Trustee Co Ltd [1967] HCA 3; 119 CLR 460, 478, 502-3. 142The principle behind Anshun estoppels, stated by Wigram VC in Henderson v Henderson (1843) 3 Hare 100, 115 [67 ER 313, 319], is that: "... the Court requires the parties ... to bring forward their whole case, and will not ... permit the same parties to open the same subject of litigation in respect of [a] matter which might have been brought forward as part of the subject in contest, but which was not brought forward ..." 143As developed and refined by the plurality in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589, 602 the test (expanded to cover claims and defences) is whether: "... the matter relied upon ... in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence [or a claim] if having regard to the nature of the plaintiff's claim [or defence] and its subject matter it would be expected that the defendant would raise the defence [the plaintiff would raise the claim] and ... enable the relevant issues to be determined in the one proceeding." 144It was clear that Mr Noon was not going to comply with the buyback procedure unless compelled to do so. Hence the 2 caveats, and the first proceedings commenced in his lifetime. It became even clearer after his death when his executors refused to give the required notice to Astra. 145This is not a case where a new cause of action has arisen which could not have been litigated in the first proceedings. In such cases there is no cause of action or Anshun estoppel against the new cause of action: Moss v Anglo-Egyptian Navigation Co (1865) LR 1 Ch App 108, 115. 146The principle in Henderson is reflected in and reinforced by other aspects of the res judicata doctrine. 147Where the same facts give rise to more than one breach of a single contract there is only one cause of action and all breaches must be included in the first action: The Indian Grace [1993] AC 410; Honeywood v Munnings [2006] NSWCA 215; 67 NSWLR 466. 148In Macdougall v Knight (1890) 25 QBD 1 CA the plaintiff having failed in an action for libel based on parts of a pamphlet brought a second action based on other parts of the same pamphlet. The second action was summarily dismissed. This decision was followed in Lee v Kim [2006] NSWCA 384; 68 NSWLR 433, 436-7. 149In Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198 judgment in proceedings for misrepresentation and breach of a warranty of the latest accounts annexed to a contract for the sale of a business barred later proceedings for misrepresentation in the annexed accounts for an earlier year. 150In the first proceedings the executors challenged the standing of Astra, the validity of its purported exercise of the option, the right of the vendor to exercise the option, and the availability of triggering events based on there being a resident as defined. The effectiveness and enforceability of the buyback clause was at the heart of the case. 151A contract which purports to confer rights on a third party raises difficult legal questions. Apart from agency, which was not relied on, at least two mechanisms have been recognized which can overcome the difficulties, the principle in Beswick (above) and Coulls (above), and a trust of the benefit of the contractual promise. 152The caveats lodged prior to the first proceedings made alternative claims, and one claim of the vendor [5] above was substantially the same as that made in the second proceedings. 153The executors relied on the statement in the written submissions for the companies at the first trial (blue 50H) that "It is plain that the second plaintiff [the vendor] can enforce the provisions. That is what it is doing in this proceeding." 154Rein J overruled the vendor's objection based on my judgment in Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245, 263-4: "107. The principle in Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 at 319 widens the scope of both forms of res judicata estoppel without introducing subjective factors. The test is whether the new point 'properly belonged to the subject of litigation' in the earlier proceedings. The relevant evidence is restricted to the pleadings in both proceedings and the reasons for judgment in the earlier. 108. Where the extended form of res judicata in Anshun or Johnson is in issue the enquiry is extended to include the reasonableness of the litigant's conduct in the earlier proceedings, or the existence of an abuse of process in the later." 155Since an Anshun estoppel was in issue the written submissions were clearly admissible. They would also have been admissible if the Henderson principle was relied on to support a cause of action or issue estoppel. 156In the passage quoted I should not have limited the objective evidence to the pleadings and reasons for judgment. Other objective matters could also be relevant such as any case conducted outside the pleadings, an unsuccessful application to amend, or, and the submissions of the parties. 157As Rein J held [63], the Henderson and Anshun principles promote the efficiency and finality of litigation. These principles have been reinforced by Parliament. Section 63 of the Supreme Court Act , borrowed from the Judicature Act 1873, requires the Court to determine the claims brought forward "so that ... all multiplicity of legal proceedings [may be] ... avoided." 158Section 56(1) of the Civil Procedure Act requires the Court "to facilitate the just, quick, and cheap resolution of the real issues." These principles were further reinforced in Aon Risk Services Ltd v Australian National University [2009] HCA 27; 239 CLR 175. 159As Allsop P said in Champerslife (above) at 247[4] in an Anshun case: "... the assessment is not to be made mechanistically, but rather there is a value judgment to be made referable to the proper conduct of modern mitigation." 160The the parties of the second proceedings were parties in the first. The proceedings involved the same property and a continuing repudiation by the defendants of any obligation under the same clause in the same contract. 161In the first proceedings the vendor's claim for equitable relief to enforce the buyback clause potentially included not only specific performance of positive obligations but also an injunction to enforce the implied negative ones. The latter is a form of specific performance: Doherty v Allman (1878) 2 App Cas 709, 719-720. 162If this analysis is correct the vendor had a single equitable cause of action to enforce the buyback clause, and by analogy with the position at law in actions for damages [21] above, the decision in the first proceedings created a cause of action estoppel. This is supported by the decision of the Privy Council in Rangayya Goundan v Nanjappa Rao (1901) LR 28 Ind App 221, 226 per Lord Hobhouse that an action by purchasers for possession, damages for disturbance, and an injunction barred a later action for specific performance of the same contract. 163Rein J alluded to possibility of a cause of action estoppel [64(4)]. Since it was not argued I will not decide the case on that basis. 164This analysis nevertheless demonstrates that the vendor's argument in the second proceedings was simply a variant of its argument in the first. 165When senior counsel for the appellant was asked to identify any disadvantage the companies would have suffered by pleading the present claim in the original proceedings he was unable to give a convincing answer. 166In my judgment the vendor acted unreasonably in failing to include the claim made in the second proceedings in the first. There was therefore an Anshun estoppel, and the substantive appeal fails. 167I agree with Campbell JA that this Court is not entitled to interfere with the order for indemnity costs made by Rein J. 168I agree with the orders proposed by Campbell JA. 169TOBIAS AJA : I agree with Campbell JA.

Amendments 07 March 2012 - Correction of typographical error Amended paragraphs: 70 07 March 2012 - Correction of typographical error Amended paragraphs: 70 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2011

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