Brown v King - [2022] NSWSC 738

Supreme Court

New South Wales

Medium Neutral Citation: Brown v King [2022] NSWSC 738
Hearing dates: 1 June 2022
Date of orders: 1 June 2022
Decision date: 01 June 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
(1) Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005, these proceedings be dismissed against the first and second defendants.
(2) The first and second plaintiffs pay the first and second defendants’ costs of the proceedings on an indemnity basis, such sum not to exceed $55,000.
(3) I order that the notice of motion filed 4 February 2022 be otherwise dismissed.

Catchwords:
SUMMARY DISPOSAL – re‑litigation of claim already decided – res judicata – estoppel – abuse of process

Legislation Cited:
Uniform Civil Procedure Rules 2005, r 13.4

Cases Cited:
Hana v Shad Legal Services Pty Ltd [2021] NSWCA 258
King v Brown [2020] NSWSC 1010
King v Brown (No 2) [2021] NSWSC 1060
King v Brown (No 3) [2021] NSWSC 1116
State Bank of New South Wales v Alexander Stenhouse Ltd & Ors (1997} Aust Torts Reports 81‑423
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Category: Procedural rulings
Parties: Geoffrey Phillip Brown (First Plaintiff)
Barbara Ann Brown (Second Plaintiff)
Stanley King (First Defendant)
Blair Pleash (Second Defendant)
Representation:
Counsel:
Mr G Brown, in person (Plaintiffs)
Mr P Newton SC; Mr M Hazan (Defendants)
Solicitors:
Unrepresented (Plaintiffs)
Anne McDonald & Associates (Defendants)

File Number(s): 2021/255813

EX TEMPORE Judgment

(Revised from transcript)

By notice of motion filed 4 February 2022, the first and second defendants, Stanley King and Blair Pleash respectively, seek an order that the proceedings against them be dismissed and, in the alternative, struck out or, in the further alternative, stayed pending the payment of a certain amount of costs.
The principal contention made on behalf of Mr King and Mr Pleash is that the claims of the plaintiffs in these proceedings, Geoffrey Brown and Barbara Brown, were either decided adversely to Mr and Mrs Brown by Schmidt AJ in earlier proceedings (see King v Brown (No 2) [2021] NSWSC 1060; “King v Brown (No 2)”) or, if they were not, these claims should have been agitated in those proceedings, or that it is otherwise an abuse of process that the claims be maintained.
To address that contention it is necessary to address the background of the proceedings and then turn to the claims made in these proceedings and compare them to the claims made in the earlier proceedings.
At the hearing of this notice of motion, submissions were made on behalf of Mr and Mrs Brown by Mr Brown. I endeavoured to direct Mr Brown's attention to the critical question of whether the claims made in this case were new and separate from those made in the earlier one or whether otherwise there was some reason why they were not made in those proceedings. To a large extent, Mr Brown's response was directed to his passionate disagreement with…

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 Brown v King

Details

AGLC: Brown v King [2022] NSWSC 738
Case: [2022] NSWSC 738
Decision Date: 01 June 2022

CaseChat Overview and Summary

The matter before the court was an application by the defendant, King, for summary disposal of a claim brought by the plaintiff, Brown. The claim related to the sale of a property, and the dispute had previously been determined by the court in a previous proceeding. The court was required to determine whether the plaintiff's claim was res judicata, or whether there were grounds for estoppel or an abuse of process. The court held that the plaintiff's claim was res judicata as the matter had already been decided by the court in a previous proceeding. The court found that there were no grounds for estoppel or an abuse of process, and the defendant's application for summary disposal was successful. The court ordered that the plaintiff's claim be dismissed with costs. The court held that the previous judgment was binding on the parties and that the plaintiff was precluded from relitigating the matter. The court found that there were no exceptional circumstances that would warrant departing from the principle of res judicata. The court also found that there were no grounds for estoppel or an abuse of process, and that the defendant's application for summary disposal was well-founded. The court ordered that the plaintiff's claim be dismissed with costs.

Orders