SUPREME COURT OF QUEENSLAND
CITATION:
Frikton v Plastiras [2010] QSC 5
PARTIES:
FRIKTON, Gyorgy
(Plaintiff)
v
PLASTIRAS, Con Michael(Defendant)
FILE NO/S:
BS 4823 of 2006
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
20 January 2010
DELIVERED AT:
Brisbane
HEARING DATE:
19 October 2009
JUDGE:
Margaret Wilson J
ORDER:
1. Statement of claim struck out; and
2. Proceeding dismissed with costs on the indemnity basis.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – STAYING PROCEEDINGS – STRIKE OUT PLEADINGS – where the plaintiff and Ari Jelekainen agreed to purchase land – where the defendant, a solicitor, acted for them in the purchase of that land – where the plaintiff and Jelekainen entered into a joint venture agreement with a number of investors to subdivide the land and on-sell it – where plaintiff agreed to contribute $100,000 towards the joint venture and bank finance was arranged – where plaintiff wanted to be released from obligations to the bank and negotiations ensued – where transfer of the land from the vendor to Jelekainen and the plaintiff was prepared in typewriting; under the sub-heading "Transferee" it contained Mr Jelekainen’s name followed by that of Mr Frikton and the words "as Tenants in Common in equal shares" – where before transfer was lodged in the Queensland Land Registry, the words "equal shares" were struck through, and the words "in the shares of 99/100 and 1/100 respectively" were inserted in handwriting – where Jelekainen and the other joint venturers commenced a proceeding against the plaintiff (BS 3205/05) alleging he was bound by the terms of joint venture agreement in respect of which his interests and those of Mr Jelekainen were not equal – where they alleged the plaintiff was bound by a release agreement – where plaintiff denied the existence of the release agreement and counterclaimed – where plaintiff commenced this proceeding (BS 4823/06) against the defendant – where defendant applied for an order striking out part of the statement of claim – where plaintiff gave undertaking to be bound by the findings of fact in proceeding BS 3205/05 – where Court struck out disputed paragraphs of the statement of claim and gave plaintiff leave to file an amended pleading – where plaintiff alleges he never agreed to be bound in this proceeding by the findings in the other proceeding – where plaintiff alleges he did not have access to or receive independent legal advice to allow him to protect his own interests and that he did not understand or have legal advice in relation to the nature, effect and risks inherent in the joint venture agreement, and that he did not understand or obtain independent legal advice in relation to the release agreement – where plaintiff submits he should not be prevented from re-litigating issues determined against him – whether Court should stay proceedings on grounds of an abuse of process – whether statement of claim should be struck out
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- AGLC
- Frikton v Plastiras [2010] QSC 5
- Case
- [2010] QSC 5
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the proceedings against Frikton should be stayed on the grounds of an abuse of process, and whether the statement of claim should be struck out. The court had to consider Frikton's allegations that he had not been adequately advised and did not understand the implications of the joint venture agreement and the release agreement. Furthermore, the court had to assess Frikton's contention that he should not be precluded from re-litigating issues determined against him in the previous proceeding. The court also needed to evaluate the validity of Frikton's undertaking to be bound by the findings of fact in the earlier proceeding, which was a basis for the defendant's application to strike out certain paragraphs of the statement of claim.
The court ruled that the proceedings should be stayed on the grounds of an abuse of process, as Frikton had given an undertaking to be bound by the findings of fact in the earlier proceeding but later sought to challenge those findings in the current proceeding. The court found that Frikton's allegations of lack of understanding and independent legal advice did not negate the effect of the undertaking he had given. Consequently, the court struck out the disputed paragraphs of the statement of claim and dismissed the proceeding with costs on an indemnity basis. The court did not allow Frikton to re-litigate issues that had already been determined against him in the earlier proceeding, and the undertaking given by Frikton was deemed binding.
Orders
Orders of the court
1. Statement of claim struck out; and
2. Proceeding dismissed with costs on the indemnity basis.
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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