Supreme Court
New South Wales
Medium Neutral Citation: Adicho v Dankeith Homes Pty Ltd [2013] NSWSC 125 Hearing dates: 14 February 2013 Decision date: 20 February 2013 Jurisdiction: Equity Division Before: Macready AsJ Decision: (1) I order that the proceedings be dismissed and order that the plaintiff pay the defendant's costs of the proceedings.
(2) I order that the plaintiff may not bring fresh proceedings to claim the same relief as is claimed in these proceedings.
(3) I reserve to the defendant the right to make application that the orders for costs payable by the plaintiff be paid by the solicitors for the plaintiff.
(4) Liberty to apply.
Catchwords: PROCEDURE - summary dismissal - whether issue estoppel due to proceedings in District Court - whether Anshun estoppel principle applies for failure to run current claim as cross-claim in original proceedings - whether unreasonable not to have applied for leave to transfer to Supreme Court - whether proceedings frivolous and vexatious Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Lord Cairns' Act 1858
Supreme Court Act 1970Cases Cited: Adicho v Dankeith Homes Pty Limited [2012] NSWCA 316
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287
Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245
Henderson v Henderson (1843) 67 ER 313
Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589
R & J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232
Rahme v Commonwealth Bank of Australia [1991] NSWCA 230
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
The Millstream Pty Ltd v Schultz [1980] 1 NSWLR 547
Triantafilidis v National Australia Bank Ltd (1995) VConvR 54-536Texts Cited: Handley, K R, "Res Judicata: General Principles and Recent Developments" (1999) 19 Australian Bar Review 214
Spencer Bower and Handley, Res Judicata, 4th ed (2009)Category: Principal judgment Parties: John Adicho (Plaintiff)
Dankeith Homes Pty Ltd (Defendant)Representation: Counsel:
R K Newton (Plaintiff)
D Murr SC & Ms M Fraser(Defendant)
Solicitors:
Edmond Khoury Solicitors (Plaintiff)
Noel Bracks & Company (Defendant)
File Number(s): 2012/321233
Judgment
This is the hearing of the defendant's Notice of Motion filed 16 November 2012 in which the defendant seeks the proceedings be dismissed and an order under s 91 of the Civil Procedure Act 2005 that the plaintiff not bring fresh proceedings or claim the same relief in fresh proceedings.
The parties have been in litigation in the District Court which has gone to the Court of Appeal and the present proceedings have been brought by the present plaintiff concerning matters which were dealt with in earlier matters in the District Court.
Background
Helpfully the parties' submissions have included some of the history which I will incorporate with some modification into this judgment.
Dankeith is a builder and developer. In 2005, it completed the construction of eight town houses on land it owned at Ingleburn. In August 2007, it exchanged separate contracts for each of the…
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- AGLC
- Adicho v Dankeith Homes Pty Ltd [2013] NSWSC 125
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- [2013] NSWSC 125
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CaseChat Overview and Summary
The court was tasked with determining whether issue estoppel or Anshun estoppel applied to prevent the plaintiff from pursuing the new claim. Issue estoppel, also known as collateral estoppel, prevents a party from relitigating an issue that has already been determined in a prior proceeding. Anshun estoppel, on the other hand, applies when a party fails to raise a cross-claim in a proceeding where it is relevant and practicable to do so. Additionally, the court considered whether it was unreasonable for the plaintiff not to have sought leave to transfer the current proceedings to the Supreme Court and whether the proceedings were frivolous and vexatious.
In delivering the judgment, the court found that the plaintiff was indeed estopped from pursuing the new claim. The principle of Anshun estoppel was deemed applicable, as the plaintiff had failed to raise the current claim as a cross-claim in the original District Court proceedings, despite it being relevant and practicable to do so. The court further held that it was not unreasonable for the plaintiff not to have sought leave to transfer the proceedings, given the circumstances at the time. Consequently, the court ordered the plaintiff's claim to be summarily dismissed. The court also found that the proceedings were not frivolous and vexatious, which meant that the defendant was not entitled to costs on that basis.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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