Ambrose J:

On 24 September 1953 the present defendants, obtained judgment for $40,125.54 against the present plaintiff in Suit No. 1532 of 1953. In the present suit the present plaintiff claims (1) a declaration that the present defendants' rights under the judgment were superseded by an alleged instrument of compromise dated 29 October 1953 and (2) repayment of $3,192.85, being the amount by which the sum received by the present defendants on execution of the judgment exceeds the sum due to them under the alleged instrument of compromise.

In para. 10 of the amended defence it is alleged that the present plaintiff is estopped from making his present claim by the dismissal of his application by summons in Chambers dated 3 April 1958, in the former suit for an order that satisfaction of the judgment be entered.

By consent of the parties, the defence of estoppel by judgment was taken as a preliminary point of law. It appeared from the way in which it was pleaded that the alleged estoppel related to the entire cause of action. Such a defence is treated as a defence of res judicata in Halsbury's Laws of England, 3rd Edn., vol. 15, at p. 184. There it is said:

Where res judicata is pleaded by way of estoppel to an entire cause of action, it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact.

It appeared, however, from the argument of Counsel for the defendants that the alleged estoppel related to a particular issue decided at the hearing of the summons in Chambers. He cited Outram v. Moorewood [1803] 3 East 346, and submitted that a party is precluded from contending the contrary of any precise point which, having been once distinctly put in issue, has been solemnly found against him. This kind of estoppel by judgment is referred to at p. 182 of Halsbury's Laws of England, 3rd Edn., vol. 15, in these terms:

If, however, a matter in issue is determined with certainty by the judgment, an estoppel may arise where a plea of res judicata could never be established, as where the same cause of action has never been put in suit.

Such an estoppel is termed an estoppel by record in Halsbury's Laws of England, 3rd Edn., vol. 15, p. 184, note (a), and p. 208, note (k). It was called "issue estoppel" by Higgins J in the Australian case of Hoystead v. Federal Commissioner of Taxation [1921] 29 CLR 561. The term "issue estoppel" was adopted by Dixon J (as he then was) in Blair v. Curran [1939] 62 CLR 531, 532. In my view, the Australian term "issue estoppel" is to be preferred to estoppel by record: as the latter is used sometimes for estoppel by res judicata in the sense defined above, and sometimes as including both estoppel by res judicata and issue estoppel.

I considered it highly improbable that any cause of action based on the alleged instrument of compromise could have been determined on the merits on an application by summons in Chambers in the former suit, as such a cause of action could not be litigated in that suit. I formed the opinion, therefore, that the estoppel by judgment relied on by the defendants was an estoppel by record, that is, an issue estoppel, as opposed to an estoppel by res judicata affecting the entire cause of action.

To ascertain the issue decided by the then Chief Justice when he dismissed the application by summons in Chambers, it seemed to me necessary to examine his grounds of decision. The question arose whether it was open to me to do so. In a case of estoppel by record as opposed to estoppel by res judicata, Mellish LJ said in Re Bank of Hindustan, China and Japan, Alison's Case [1873] 9 Ch App 1 at p. 26:

I doubt whether technically we could have looked at what was said by the Judges for the purpose of discovering what were the real grounds of their decision.

This view, however, has not been followed in a number of cases. In a pro