Five D Pty Ltd v Impact Building Pty Ltd

[2007] NSWLC 4

Local Court of New South Wales

CITATION:	Five D Pty Ltd v Impact Building Pty Ltd [2007] NSWLC 4
JURISDICTION:	Civil
PARTIES:	Five D Pty Ltd Impact Building Pty Ltd
FILE NUMBER:	10428/06
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	03/01/2007
MAGISTRATE:	Magistrate H Dillon
CATCHWORDS:	Practice – Abuse of process – Whether statement of claim should be struck out as an abuse of process – Whether plaintiff re-litigating an issue determined in previous proceedings between defendant and another party
LEGISLATION CITED:	Uniform Civil Procedure Rule 14.28(1)(c)
CASES CITED:	Clegg v Abel (1898) 14 WN (NSW) 131 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Hunter v Chief Constable of the West Midlands (1982) AC 527 Reichel v McGrath (1889) 14 App Cas 665 Rippon v Chilcoton Pty Ltd (2001) 53 NSWLR 198 State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81-423 Stephenson v Garnett (1898) 1 QB 677
REPRESENTATION:	Ms M.T. Bateman (counsel) Turnbull Hill, Solicitors Mr D.P.M. Ash (counsel) Guild Lawyers
ORDERS:	1. Motion granted. Plaintiff’s statement of claim struck out pursuant to Rule 14.28(1)(c).; 2. Costs to follow the event.

1. The defendant, Impact Building Pty Ltd, is the applicant on the motion now before the court. It applies for orders striking out the plaintiff’s statement of claim pursuant to Rule 14.28 (1)(c) of the Uniform Civil Procedure Rules. Impact argues that the plaintiff, Five D Pty Ltd, is seeking by its claim to re-litigate an issue determined by a magistrate in the Newcastle Local Court on 28 August 2006. This, Impact contends, is an abuse of process.

A short history of the relevant proceedings

2. The background to this application is not in contest. On 14 October 2005, Impact filed a statement of claim against a Mr Kirk May, a director of Five D, alleging that the parties had had an agreement pursuant to which Impact carried out certain building works at the Mayfield Plaza in Newcastle but had not been paid a sum of nearly $15,000 to it claims entitlement. Mr May filed a defence and the matter came before Her Honour Magistrate Carmel Forbes on 28 August 2006. Her Honour entered a verdict and judgment for the plaintiff Impact in the sum of $14,968.29, together with the usual orders as to interest and costs.

3. Impact’s statement of claim had asserted an oral agreement made by Daniel Vujic (for Impact) and Mr May in November 2003. It alleged that there was an implied term of the agreement that the plaintiff would issue invoices and that Mr May would pay them in timely fashion and that the final invoice had remained unpaid.

4. In response to a request for particulars, the works that were the subject of the contract were identified as the demolition of the interiors of two shops; the stripping out of the shops; the construction of a dividing wall between the shops; the construction of a switchboard cupboard, a grease trap and a new…