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Khoury & Anor v Murdoch & Anor [2005] NTSC 70

PARTIES: KHOURY, DIEB PETER

and

BENJAMIN & KHOURY PTY LTD
ACN 104 057 043

MURDOCH, JUNG-SOOK

and

MURDOCH, GERALD

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NOS: 116 of 2005 (20522355)

DELIVERED: 4 November 2005

HEARING DATES: 28 October 2005

JUDGMENT OF: RILEY J

CATCHWORDS:

ESTOPPEL – FORMER ADJUDICATION

Res judicata – cause of action estoppel – first proceeding directed at the maintenance of a caveat – second proceeding directed at a specific allegation of fraud – application of Anshun principle – whether it was unreasonable not to have raised issue of fraud in first proceeding – cause of action in the second proceeding was not directly relevant to the right of plaintiffs to maintain caveat – factual merits of the second proceeding have not been addressed – not a case for application of Anshun principle.

Land Title Act (NT) s 188
Law of Property Act (NT) s 208

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 489 at 597 and 602, considered.
Jackson v Goldsmith (1950) 81 CLR 446 at 466, cited.
Blair v Curran (1939) 62 CLR 464 at 532, cited.
Jeans v Bruce [2004] NSWSC 539 at [304], cited.
Chamberlain v Deputy Commissioner of Taxation (1987-88) 164 CLR 502 at 507, applied.
Cromwell v County of Sac (1876) 94 US 351 at 356; (1876) 24 L Ed 195 at 199, applied.
Gibbs and Anor v Kinna (1992) 2 VR 19 at 28 and 29, applied.
Tanning Research Laboratories Inc v O’Brien (1989-1990) 169 CLR 332 at 346, applied.
University of Wollongong & Ors v Metwally (No 2) (1985) 59 ALJR 481 at 483, cited.
Effem Foods Pty Ltd v Trawl Industries of Australia Ltd (In Liq) & Ors (1993) 115 ALR 377 at 404, applied.
Imhoff v IBM Australia Ltd [2001] NTSC 23, cited.

Handley JA, “A Closer Look at Henderson v Henderson” (2002) LQR 397 at 405.

REPRESENTATION:

Counsel:
Plaintiffs: P.M. Barr QC
First defendant: J. Kelly

Solicitors:
Plaintiffs: Paul Maher
First defendant: Pipers Barristers & Solicitors

Judgment category classification: B
Judgment ID Number: ril0527
Number of pages: 13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Khoury & Anor v Murdoch & Anor [2005] NTSC 70
No 116 of 2005 (20522355)

BETWEEN:

KHOURY, Dieb Peter
First Plaintiff

and

BENJAMIN & KHOURY PTY LTD
ACN 104 057 043
Second Plaintiff

AND:

MURDOCH, Jung-Sook
First Defendant

and

MURDOCH, Gerald
Second Defendant

CORAM: RILEY J

REASONS FOR JUDGMENT

(Delivered 4 November 2005)

[1] In this matter I am concerned with two sets of proceedings, being D.P. Khoury and Benjamin & Khoury Pty Ltd v Jung-Sook Murdoch and Adelaide Bank Limited (proceeding number 78 of 2005 – “the first proceeding”) and D.P. Khoury and Benjamin & Khoury Pty Ltd v Jung-Sook Murdoch and Gerald Murdoch (proceeding number 116…

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 Khoury v Murdoch

Details

AGLC: Khoury v Murdoch [2005] NTSC 070
Case: [2005] NTSC 70
Decision Date: 04 November 2005

CaseChat Overview and Summary

The case of Khoury and Benjamin & Khoury Pty Ltd v Murdoch and Murdoch involves two separate proceedings brought by the plaintiffs against the Murdochs. The first proceeding was directed at supporting a lapsing caveat over a property in Larrakeyah, while the second proceeding alleged that the transfer of the property was made with intent to defraud the plaintiffs. The central legal issues were whether the second proceeding was barred by the doctrine of res judicata or cause of action estoppel, and whether it constituted an abuse of process. The court found that the doctrine of res judicata did not apply as the cause of action in the second proceeding was not identical to that in the first. The court also rejected the application of the Anshun principle, which would have estopped the plaintiffs from pursuing the second proceeding, as it was not unreasonable for them not to have raised the issue of fraud in the first proceeding given their limited information at the time. The court held that the factual merits of the second proceeding had not been addressed, and allowing the Anshun estoppel to prevent the issue being aired would risk an injustice occurring. The court dismissed the application to strike out the second proceeding and to stay it as an abuse of process.

Orders