Edliban Sahin & Anor v National Australia Bank Limited

[2013] HCASL 82

EDLIBAN SAHIN & ANOR

v

NATIONAL AUSTRALIA BANK LIMITED & ANOR

[2013] HCASL 82
M6/2013

1. In January 2009, the applicants brought proceedings against the respondents claiming damages, inter alia, for misleading and deceptive conduct and fraudulent misrepresentation ("the first proceedings").  Before the trial, the applicants sought to amend their pleading to add a claim for the tort of deceit, but this was not permitted.  The claim was dismissed at first instance in the County Court of Victoria.  However, on 8 March 2011, the Court of Appeal of the Supreme Court of Victoria allowed the applicants' appeal, holding that the respondents had engaged in misleading and deceptive conduct and foreshadowing orders for relief by way of variation of contract and declarations.

2. While the appeal was pending, the first respondent commenced separate proceedings for possession of the applicants' property.  The applicants counterclaimed against the respondents in the tort of deceit.  On 6 May 2011, the Supreme Court (Daly AsJ) granted the first respondent leave to discontinue its claim.  Daly AsJ also stayed the applicants' counterclaim, holding that it was an abuse of process because the matter had already been litigated.

3. On 7 October 2011, the Supreme Court (Dixon J) dismissed the applicants' appeal against the order staying the counterclaim.

4. On 18 December 2012, the Court of Appeal dismissed the applicants' appeal from Dixon J's decision.  Ferguson AJA (with whom Warren CJ and Neave JA agreed) held that the deceit claim was substantially the same as the causes of action litigated in the first proceedings.  The same facts had given rise to the relief sought in both proceedings.  The respondents' plea of res judicata was therefore made out.  Ferguson AJA also held that Anshun estoppel principles applied.  The deceit claim was very closely connected with the subject matter of the first proceedings and it was unreasonable that the applicants had not appealed the refusal to permit the deceit claim to be added in those proceedings.

5. The application for special leave to appeal continues to press arguments concerning the application of res judicata and Anshun estoppel by the courts below.  The deceit claim and the causes of action in the first proceedings were in substance the same and were based on the same facts.  An appeal to this Court would have insufficient prospects of success.  Special leave is refused.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
5 June 2013 P.A. Keane