Grimson v Marjason

[2002] NSWCA 135

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Grimson v Marjason [2002]  NSWCA 135

FILE NUMBER(S):
40815 of 2000

HEARING DATE(S):            07/05/02

JUDGMENT DATE: 07/05/2002

PARTIES:
Martin Harold Grimson & 1 or
v
Leonard Cecil Marjason

JUDGMENT OF:      Meagher JA Handley JA Acting Justice Pearlman   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 5472/99

LOWER COURT JUDICIAL OFFICER:     Rolfe DCJ

COUNSEL:
A: Litigant in Person
R: Mr A Leopold

SOLICITORS:
A: Litigant in Person
R: Kemp Strang

CATCHWORDS:
Whether valuation of hotel supplied by the respondent was false, misleading and negligently prepared - action dismissed by the Full Court of the Federal Court - whether the principles in Haines v Australian Broadcasting Corporation were correctly applied - whether claim barred by the Statute of Limitations - defence of res judicata - appeal dismissed with costs.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40357/01
CA 40815/00

MEAGHER JA
HANDLEY JA
PEARLMAN AJA

Tuesday, 7 May 2002

MARTIN HAROLD GRIMSON & 1 OR v LEONARD CECIL MARJASON

Judgment

1. MEAGHER JA:  In October 1991 the current appellants purchased the Royal Hotel, Bungendore.  Utilised in that transaction was a valuation supplied by the respondent.  Since that date, the appellants have been engaged in an orgy of litigation, alleging that the valuation was negligently prepared and that it was false and misleading.

2. Initially, the first bout of litigation was dismissed by Lindgren J, and his decision was affirmed on appeal by the Full Court of the Federal Court.  An attempt to commence a second bout of litigation in the Federal Court was struck out by Branson J.  Nothing daunted, the appellants commenced this third bout of litigation. 

3. Rolfe DCJ dismissed the proceedings under Part 11A Rule 3 of the District Court Rules. His Honour found that the proceedings were an abuse of process, and were in any event barred by the Statute of Limitations.

4. The fact that no defence of res judicata was available because the defendants in each bout of litigation were different did not prevent all litigation after the first bout being oppressive, since the fundamental issues at stake in all three bouts were the same: See Haines v Australian Broadcasting Corporation (1995) 43 NSWLR at 404.

5. His Honour the trial judge was perfectly correct.

6. The appeal should be dismissed with costs.

7. HANDLEY JA:  I agree.

8. PEARLMAN AJA:  And I agree.

9. MEAGHER JA:  The order of the Court therefore is the appeal is dismissed with costs.

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LAST UPDATED:            13/05/2002