Adicho v Dankeith Homes Pty Ltd - [2013] NSWSC 125

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 1970
Cases 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 54-536
Texts 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adicho v Dankeith Homes Pty Ltd

Details

AGLC: Adicho v Dankeith Homes Pty Ltd [2013] NSWSC 125
Case: [2013] NSWSC 125
Decision Date: 20 February 2013

CaseChat Overview and Summary

The case of Adicho v Dankeith Homes Pty Ltd was heard in the Supreme Court of New South Wales. The dispute centred around the adequacy of the defendant's response to the plaintiff's claim for damages arising from alleged defects in a residential property. The defendant, Dankeith Homes Pty Ltd, had previously been involved in similar litigation with the plaintiff in the District Court, which resulted in a default judgment against the defendant. The plaintiff subsequently filed a new claim in the Supreme Court, seeking to avoid the implications of the previous judgment. The defendant applied for summary dismissal of the new claim, arguing that the plaintiff was estopped from bringing it due to the prior proceedings.

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