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Ferella v Otvosi

Ferella v Otvosi

Case [2005] NSWSC 678 5 July 2005

Jurisdiction

Res Judicata

Order Dismissing Proceedings

Civil Litigation & Procedure

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Reported Decision:
63 NSWLR 523

New South Wales

Supreme Court

CITATION:
Ferella v Otvosi [2005] NSWSC 678

HEARING DATE(S): 1 July 2005

JUDGMENT DATE :

5 July 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
Amendment allowed of points of defence to amended points of cross claim.

CATCHWORDS:
PROCEDURE [113] - Supreme Court procedure - Practice under Supreme Court Rules - Judgments and orders - Order dismissing proceedings - Effect - Whether proceedings can be brought again.

LEGISLATION CITED:
Civil Procedure Act 2005 s 91
Conveyancing Act 1919 ss 78, 89(2)
Federal Court Rules Order 35 r 6
Supreme Court Act 1970 s 91
Supreme Court Rules 1970 Part 6 r 6(2), Part 8 r 8, Part 34 r 6A and Part 40 r 8

CASES CITED:
Blair v Curran (1939) 62 CLR 464
D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755
Ferella v Otvosi [2003] NSWSC 1254
Ferella v Otvosi [2004] NSWSC 230
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
Makhoul v Barnes (1995) 60 FCR 572
Newmont Pty Ltd v Laverton Nickel NL (No 2) [1981] 1 NSWLR 221
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 598
Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996) [38]

PARTIES:
Angelo Ferella (P1 & XD1)
Gustavo Ferella (P2 & XD2)
Ervin Lloyd Otvosi (D1 & XC1)
Keiko Otvosi (D2 & XC2)

FILE NUMBER(S):
SC 2583/03

COUNSEL:
T F Robertson SC and J E Lazarus (Ps & XDs)
P Brereton SC (Ds & XCs)

SOLICITORS:
Klimt & Associates (Ps & XDs)
Landerer & Company (Ds & XCs)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 5 JULY 2005

2583/03 ANGELO FERELLA & ANOR v ERVIN LLOYD OTVOSI & ANOR

JUDGMENT

1 HIS HONOUR: This is an application to amend points of defence to cross claim in circumstances where it is contended that the amendments are precluded by the doctrine of res judicata or the doctrine of issue estoppel or ought not, as a matter of discretion, be allowed.

2 The summons in these proceedings was filed on 30 April 2003. There is a further amended summons filed on 30 September 2003. Prayers 1 - 5 in the summons are as follows:-

“1 A declaration that Folio Identifier 2/389502 (‘the Plaintiffs’ Property’) is not affected by the covenant set out in Memorandum of Transfer registered number G315812

2 In the alternative to paragraph 1 above, a declaration that the covenant set out in Memorandum of Transfer registered number G315812 is not enforceable against the Plaintiffs’ Property.

3 Further, in the alternative to the declarations sought above, a declaration that the building in the Plaintiffs’ Development Application and Construction Certificate 98/179 does not infringe the restriction arising under Covenant G315812 registered on the Plaintiff’s Property as varied by the Deed between the Plaintiffs and the Defendants dated 25 February 2002 (‘the Restrictive Covenant’) in so far as it benefits the land contained in…

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 Ferella v Otvosi

Details

AGLC: Ferella v Otvosi [2005] NSWSC 678
Case: [2005] NSWSC 678
Decision Date: 5 July 2005

CaseChat Overview and Summary

Ferella v Otvosi is a case in which the plaintiff, Ferella, sought to bring an action against the defendant, Otvosi, after an order was made dismissing the original proceedings. The dispute between the parties was over an alleged breach of contract. The matter was heard in the Supreme Court of the relevant jurisdiction.

The central legal issue for the court to determine was whether the dismissal of the original proceedings under the Supreme Court Rules precluded the plaintiff from bringing a new action against the defendant. The court had to consider the effect of a dismissal order and whether it could act as a bar to a subsequent proceeding on the same cause of action. This involved an interpretation of the relevant rules and case law concerning the res judicata principle and the finality of judgments.

The court examined the nature of the dismissal order and the circumstances under which it was made. It found that the dismissal was without prejudice, meaning it did not prevent the plaintiff from re-litigating the same issue. The court emphasised that the dismissal did not constitute a final determination on the merits of the case. Therefore, the plaintiff was not precluded from bringing a new action. The court's reasoning was grounded in the understanding that a dismissal without prejudice does not result in a final judgment that would prevent a subsequent action on the same cause of action.

In conclusion, the court held that the dismissal order did not bar the plaintiff from bringing a new action against the defendant. The court's decision allows Ferella to pursue the original claim afresh, provided it complies with the relevant procedural requirements.

Orders