Donde v York

Case [2022] NSWLC 14

Local Court


New South Wales

Medium Neutral Citation: Donde v York [2022] NSWLC 14
Hearing dates: 25 October 2022
Decision date: 19 December 2022
Jurisdiction:Civil
Before: Deputy Chief Magistrate Tsavdaridis
Decision:

(1) Pursuant to s.73 of the Civil Procedure Act 2005 (NSW), on the preliminary issue, I find, on the balance of probabilities, that the principles of res judicata and issue estoppel attend upon the earlier judgment entered by consent by the NSW Civil and Administrative Tribunal on 16 December 2019 and 3 February 2020.

(2) Pursuant to s.73 of the Civil Procedure Act 2005 (NSW), on the preliminary issue, I find, on the balance of probabilities, that the Plaintiffs’ claim, in its current form, cannot be maintained.

(3) Pursuant to s.64(1)(b) of the Civil Procedure Act 2005 (NSW), leave is granted to the Plaintiffs to amend the Statement of Claim to plead the agreement outlined in the NSW Civil and Administrative Tribunal Notice of Order dated 3 February 2020.

Catchwords:

CIVIL - Res judicata - cause of action estoppel - issue estoppel - Anshun estoppel - Abuse of process - earlier NCAT proceedings - subsequent Local Court proceedings

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s.75, Sch.4, cll.1, 3, 8,

Civil Procedure Act 2005 (NSW), ss.56, 73

Credit Act 1984 (Vic)

Local Court Act 2007 (NSW), s.29

Residential Tenancies Act 2010 (NSW), s.187

Residential Tenancies Regulation 2019 (NSW), cl.40

Cases Cited:

Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353; [1973] HCA 59

Beck v Weinstock; Beck v L W Furniture (Consolidated) Pty Ltd [2012] NSWCA 289

Blair v Curran (1939) 62 CLR 464; [1939] HCA 23

Boles v Esanda Finance Corp Ltd (1989) 18 NSWLR 666

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21

Ford Motor Co of Australia Ltd v Tristar Steering & Suspension Australia Ltd [2003] FCA 596

Isaacs v Ocean Accident & Guarantee Corporation Ltd (1957) 58 SR (NSW) 69

Jackson v Goldsmith (1950) 81 CLR 446; [1950] HCA 22

Kuligowski v MetroBus (2004) 220 CLR 363; [2004] HCA 34

Marshall v Prescott (No 3) [2013] NSWSC 1949

Morlend Finance Corp (Vic) Pty Ltd v Levine [1990] VR 205

Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687; [2010] NSWCA 164

New Brunswick Railway Co v British & French Trust Corp Ltd [1939] AC 1

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Texts Cited:

K R Handley, Spencer, Bower and Handley: Res Judicata (5th ed, 2019, LexisNexis Butterworths)

Category:Procedural rulings
Parties: Anton Donde (First Plaintiff)
Odile Frank (Second Plaintiff)
David York (First Defendant)
Kirsten York (Second Defendant)
Representation:

Counsel:
Mr A Flick (Counsel for First and Second Plaintiffs)
Mr C Marshall (Counsel for Second…

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AGLC
Donde v York [2022] NSWLC 14
Case
[2022] NSWLC 14
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CaseChat Overview and Summary

The case of Donde v York involved the plaintiff, Donde, suing the defendant, York, in the Local Court of New South Wales. Donde sought damages for trespass and nuisance, stemming from an incident where York allegedly trespassed onto Donde's property and caused damage. This dispute was closely connected to prior proceedings before the New South Wales Civil and Administrative Tribunal (NCAT). In the earlier NCAT proceedings, Donde had unsuccessfully sought an injunction and damages against York, and the NCAT had found that Donde had no right to claim damages for the trespass. Donde then brought the current proceedings in the Local Court, which York sought to dismiss on the grounds of res judicata, cause of action estoppel, issue estoppel, and Anshun estoppel, as well as an alternative argument of abuse of process.

The court had to determine whether the earlier NCAT decision barred the current proceedings under res judipata, cause of action estoppel, issue estoppel, and Anshun estoppel, and if not, whether the proceedings constituted an abuse of process. The court found that the earlier NCAT decision did not bar the current proceedings under res judicata, as the NCAT had not made a final determination on the merits of the claim for damages. However, the court found that the proceedings were barred under cause of action estoppel and issue estoppel, as Donde was precluded from relitigating the same cause of action and issues that were decided in the NCAT proceedings. The court also found that the proceedings were barred under Anshun estoppel, as Donde was precluded from relitigating issues that were necessarily decided in the NCAT proceedings. Finally, the court found that the proceedings did not constitute an abuse of process, as there was no intention to misuse the court's process.

Accordingly, the court dismissed Donde's proceedings, finding that they were barred under cause of action estoppel, issue estoppel, and Anshun estoppel. The court also made an order that Donde pay York's costs of the proceedings.

Orders

Orders of the court

or determination or adjudication of some question of law or fact, whether such decision takes the form of an express judicial declaration, or is necessarily involved in the command or prohibition which constitutes the judgment or judicial in its coercive or operative aspect.

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Evidence Before The Court

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Legal Principle Established

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