Clout v Klein

Case [2001] QSC 401

SUPREME COURT OF QUEENSLAND

CITATION: Clout & Ors  v Klein & Ors [2001] QSC 401
PARTIES: DAVID LEWIS CLOUT and LACHLAN STUART McINTOSH
(first plaintiffs)
and
FIBRE-TEK (GOLD COAST) PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) CAN 010 811 980
(second plaintiff)
v
GARY MONTAGUE KLEIN
(first defendant)
and
PETER JAMES HILBERT
(second defendant)
and
BERNARD JOHN HILBERT
(third defendant)
and
NATIONAL AUSTRALIA BANK LIMITED
ACN 004 044 937
(fourth defendant)
and
VON INVESTMENTS PTY LTD ACN 000 899 570
(fifth defendant)
and
COMMISSIONER OF TAXATION
(sixth defendant)
FILE NO/S: S 10717 of 2000
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING COURT:

Brisbane
DELIVERED ON: 25 October 2001
DELIVERED AT: Brisbane
HEARING DATE: 13 September 2001
JUDGE: Holmes J
ORDER: First and second defendants’ application to strike out dismissed
CATCHWORDS:

PRACTICE – DEFENCE – STRIKING OUT – STATEMENT OF CLAIM

ESTOPPEL – RES JUDICATA – ASHUN ESTOPPEL
Application to strike out parts of the further amended claim and further amended statement of claim – whether second plaintiff is estopped from advancing a claim against the applicants by virtue of a dismissal of a previous action – whether a judgment obtained on a procedural default can give rise to an estoppel based on res judicata – whether issue estoppel made out – whether Ashun estoppel arose – whether there exists a risk that a judgment will result declaring rights inconsistent with the default judgment – whether an abuse of process.

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508
Pople v Evans [1968] 3 WLR 97
Baines v State Bank of New South Wales (1985) 2 NSWLR 729
Rogers v Legal Services Commission of South Australia [1995] 64 SASR 572
Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993
New Brunswick Railway Co. v British and French Trust Corporation Ltd [1939] AC 1
Macquarie Bank v National Mutual Life Association of Australasia Ltd & Larcombe (1996) 40 NSWLR 543
Thoday v Thoday [1964] P. 181
Jackson v Goldsmith (1950) 81 CLR 446
Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730
Chamberlain v Deputy Commissioner of Taxation (1998) 164 CLR 502
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406
Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666
Blair & Perpetual Trustee Co Ltd v Curran (Adam’s will) (1939) 62 CLR 464
Brewer v Brewer (1953) 88 CLR 1
Egri v DRG Australia Ltd (1988) 19 NSWLR 600
Arnold v Westminster Bank [1991] 2 AC 93
Effem Foods v Trawl Industries (1993) 43 FCR 510
Linsley v Petrie [1998] 1 VR 427
Hoystead v Commissioner of Taxation [1926] AC 155
Cachia v Isaacs (1985) 3 NSWLR 366
Re: Allsop & Joy’s Contract (1889) 61 LT 213
Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd [2001] NSWSC 431
Bazos…

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Details
AGLC
Clout v Klein [2001] QSC 401
Case
[2001] QSC 401
Decision Date

CaseChat Overview and Summary

In the matter of Clout v Klein, the court was tasked with deciding whether to strike out certain parts of the further amended claim and further amended statement of claim. The applicants, the first and second defendants, sought the dismissal of parts of the plaintiffs' claims on the basis of estoppel, res judicata, and Ashun estoppel, among other grounds. The central issue revolved around whether the second plaintiff was barred from advancing a claim against the applicants due to a previous dismissal of a similar action. The court had to determine whether a judgment obtained on a procedural default could create an estoppel based on res judicata and whether issue estoppel was applicable. Additionally, the court examined whether an Ashun estoppel existed and if there was a risk that a judgment would declare rights inconsistent with a default judgment, which could be considered an abuse of process.

The court's reasoning centred on the principles of estoppel and res judicata. It concluded that the dismissal of the previous action did not necessarily bar the second plaintiff from bringing a new claim, as the grounds for dismissal were procedural and not based on the merits. The court found that a judgment obtained due to procedural defaults could not give rise to an estoppel based on res judicata. Furthermore, the court determined that issue estoppel was not made out, as the issues in the previous action were not identical to those in the current proceedings. The notion of Ashun estoppel was also rejected, as it was not applicable to the facts of the case. The court concluded that there was no risk of a judgment that would declare rights inconsistent with the default judgment, and therefore, no abuse of process was present.

As a result of the court's reasoning, the first and second defendants' application to strike out parts of the further amended claim and further amended statement of claim was dismissed. The court found no grounds to bar the second plaintiff from advancing the claims against the applicants. This decision underscored the importance of distinguishing between procedural defaults and merits-based dismissals in the context of estoppel and res judicata. The court's ruling ensured that the second plaintiff could pursue their claims, free from the constraints of previous procedural errors.

Orders

Orders of the court

First and second defendants’ application to strike out dismissed

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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