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264 Singapore Academy of Law Journal (2003) 115 In the light of the foregoing, it is submitted that although leave is required before the 3 rd party who is a non-party with notice may intervene to appeal against the decision made against him, such leave would be granted quite readily. 4.6 Issue estoppel based on res judicata 4.6.1 In respect of a party 116 A party to any legal proceedings will be estopped from bringing or defending any future action the substance of which involves an issue which has been decided by the court in those legal proceedings—as the matter would then be res judicata. 91 In this regard, declaratory judgments may also create a res judicata. 92 A party who intervenes in the proceedings is considered a party. 93 117 The English case of Tebbutt, supra, illustrates the operation of the principle of issue estoppel based on res judicata. In this case, the wife filed a divorce petition in the Family Division in October 1973. A decree nisi was granted in May 1974. She then applied for a property adjustment order under Section 24 of the Matrimonial Causes Act 1973. The husband (who had gone missing from September 1973) had purchased a property in his name in October 1970. The wife prayed for the transfer of this property to her. At the material time, the husband’s mother and the husband’s aunt were the occupants of this property. The husband’s aunt had agreed with the husband that although the husband would be the legal owner of the property, the husband’s aunt would be 91 92 93 chose not to, attend the meeting. Thus, for practical reasons, (which would not really be applicable to non-company’s winding up cases) those creditors who could have joined themselves as parties to oppose the scheme of arrangement, but failed to do so, should not be allowed to appeal. See The Doctrine of Res Judicata, Spencer Bower, Turner and Handley, (3 rd Ed, 1996), at p 4 for a definition of res judicata: “In English law a res judicata is a decision pronounced by a judicial tribunal having jurisdiction over the cause and the parties which disposes once and for all of the matters decided, so that except on appeal they cannot afterwards be relitigated between the same parties or their privies....In every case the decision estops or precludes any party to the litigation or his privies from disputing, against any other party or his privies, in later litigation, the correctness of the earlier decision. The same claim cannot be raised again between them, and this principle extends to all matters of law and fact which the decision necessarily established as the legal foundation of the conclusion reached by the court.” (Also see pp 88-89, para 182 of the same text on the topic of Issue Estoppel). Ibid at p 71, para 159. Ibid at p 112, para 218.
15 SAcLJ Matrimonial Assets and the 3 rd Party 265 liable for the mortgage instalments, and when she paid off the mortgage, would be entitled to call for the transfer of the full legal and beneficial ownership of the property to her. On the hearing of the wife’s property adjustment order application, the registrar ordered that notice be given to the husband’s aunt. Subsequently, leave was given to the husband’s aunt and the husband’s mother to intervene in the wife’s application, which they duly did. The husband’s aunt gave evidence at a “very full hearing” 94 before the registrar, and subsequently at the appeal hearing. The appeal court found that the wife had no claim to the property except to the extent that the husband had contributed to its purchase. A few days before the judgment was given in the appeal, the husband’s aunt issued a writ in the Chancery Division claiming that she was entitled to an interest in the property against the husband and wife. The wife put in a defence and counterclaim. The Court of Appeal held that the wife was estopped from asserting that she was entitled to a share in the equity of the house: The principle involved is that of issue estoppel. A person should not have to fight all over again the selfsame issue that has been decided before, provided that the party against whom the estoppel is raised has had a fair and full opportunity to contest the issue, so that it would not be just to allow him to reopen the matter in subsequent proceedings. (per Brightman LJ, supra, at page 244 b-c) 4.6.2 In respect of a non-party without notice 118 It appears that only parties to an action are bound by issue estoppel. 95 A non-party without notice of the proceedings will not be bound, as he would not have had a “fair and full opportunity” to contest the matter. 4.6.3 In respect of a non-party with notice 119 But if a non-party was given due notice of the proceedings, and had a “fair and full opportunity” to join the same, but failed to do so, should he be bound by issue estoppel subsequently 94 95 per Brightman LJ, at p. 243 f-g. Supra note 91, at p 110.
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