FRIGGER -v- LEAN [2015] WASC 125

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 125
Published:	10/04/2015
Case No:	CIV:2408/2014	Heard:	2 APRIL 2015
Coram:	MITCHELL J	Delivered:	2/04/15
No of pages:	13	Judgment Part:	1 of 1
Result:	Proceedings permanently stayed
Category:	B
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Parties:	ANGELA FRIGGER HARTMUT FRIGGER GRAEME TREVOR LEAN
Catchwords:	Abuse of process Application to permanently stay proceedings Claim based on substantially the same facts as previous unsuccessful claim Turns on own facts
Legislation:	Nil
Case References:	Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133 Frigger v Campbell-Smith [2010] WASC 353 Frigger v Lean [2012] WASCA 66 Huntingdale Village Pty Ltd (Receivers and Managers appointed) ATF Huntingdale Village Unit Trust v Perpetual Nominees Ltd [2013] WASC 352 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] (2009) 26 1 ALR 179; [2009] WASCA 183 Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : FRIGGER -v- LEAN [2015] WASC 125 CORAM : MITCHELL J HEARD : 2 APRIL 2015 DELIVERED : 2 APRIL 2015 PUBLISHED : 10 APRIL 2015 FILE NO/S : CIV 2408 of 2014 BETWEEN : ANGELA FRIGGER

First Plaintiff

HARTMUT FRIGGER

Second Plaintiff

AND

GRAEME TREVOR LEAN

Defendant

Catchwords:

Abuse of process - Application to permanently stay proceedings - Claim based on substantially the same facts as previous unsuccessful claim - Turns on own facts

Legislation:

Nil

Result:

Proceedings permanently stayed

Category: B

Representation:

Counsel:

First Plaintiff : In person

Second Plaintiff : No appearance

Defendant : Mr J Healy

Solicitors:

First Plaintiff : In person

Second Plaintiff : In person

Defendant : DLA Piper Australia

Case(s) referred to in judgment(s):

Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 6] [2014] WASC 105
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133
Frigger v Campbell-Smith [2010] WASC 353
Frigger v Lean [2012] WASCA 66
Huntingdale Village Pty Ltd (Receivers and Managers appointed) ATF Huntingdale Village Unit Trust v Perpetual Nominees Ltd [2013] WASC 352
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] (2009) 26 1 ALR 179; [2009] WASCA 183
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4

1 MITCHELL J: In these proceedings the plaintiffs are seeking to recover loss and damages arising from an alleged breach of contract by the defendant. These proceedings are the latest iteration in a long series of actions arising out of a dispute between the plaintiffs' associated company Computer Accounting and Tax Pty Ltd (CAT) and Martin Banning and his associated company Professional Services Australia Pty Ltd (PSA)in respect of the purchase of a service station in Armadale…

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 Frigger v Lean

Details

AGLC: Frigger v Lean [2015] WASC 125
Case: [2015] WASC 125
Decision Date: 10 APRIL 2015

CaseChat Overview and Summary

In the case of Frigger v Lean, the parties were engaged in a dispute over an alleged abuse of process. The matter was heard in the Supreme Court of New South Wales. The applicant, Frigger, sought a permanent stay of proceedings on the basis that the respondent, Lean, had instituted proceedings that were substantially based on the same facts as a previous unsuccessful claim.

The court had to determine whether the respondent's claim was an abuse of process because it was based on substantially the same facts as a previous unsuccessful claim. The court also had to consider whether the respondent's claim turned on its own facts or whether it was substantially the same as the previous claim.

The court found that the respondent's claim was indeed an abuse of process as it was based on substantially the same facts as a previous unsuccessful claim. The court found that the respondent's claim did not turn on its own facts and was therefore an abuse of process. The court noted that the respondent had not identified any new facts or evidence that would support a different outcome. The court held that the applicant was entitled to a permanent stay of proceedings. The court made an order that the proceedings be permanently stayed.

Orders

Orders of the court

Proceedings permanently stayed

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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