Leto v Coffey Projects (Australia) Pty Ltd - [2015] NSWSC 1896

Supreme Court

New South Wales

Medium Neutral Citation: Leto v Coffey Projects (Australia) Pty Ltd [2015] NSWSC 1896
Hearing dates: 5 November 2015
Date of orders: 17 December 2015
Decision date: 17 December 2015
Jurisdiction: Equity
Before: Young AJA
Decision:
Order the Notice of Motion dated 27 November 2014 be dismissed with costs.

Catchwords:
ANSHUN ESTOPPEL – Possible for Plaintiff in second action to have cross-claimed against another Defendant – Second action not barred

CONFIDENTIALITY AGREEMENT – Whether Court should consider document covered by agreement
PROCEDURE – Application to strike out claim for delay or obtain security for costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Trade Practices Act 1974 (Cth)
Cases Cited: Anthony Developments Pty Ltd v Marsden [1999] NSWSC 472
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371
Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWSC 591
Ling v Commonwealth (1996) 68 FCR 180
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589
Rahme v Commonwealth Bank [1991] NSWCA 230 Tanning Research Laboratories Inc v O’Brien [1990] HCA 8; 169 CLR 332
Texts Cited: Spencer Bower and Handley, Res Judicata (4th ed 2009, LexisNexis)
Category: Procedural and other rulings
Parties: Giuseppe Leto (Plaintiff/Respondent)
Coffey Projects (Australia) Pty Ltd
(Defendant/Applicant)
Representation:
Counsel:
Mr S A Gregory; Mr G Doherty (Plaintiff)
Mr K Andronos SC (Defendant)
Solicitors:
Lloyd & Lloyd Solicitors (Plaintiff)
Baker & McKenzie (Defendant)

File Number(s): 2014/317381

Judgment

HIS HONOUR: By his Statement of Claim filed on 28 October 2014, Mr Leto claims a declaration and damages under the Trade Practices Act 1974 (Cth) in respect of a transaction that took place in September 2008. Unfortunately, the transaction was fraudulent, of a type which has already been brought to my attention in a matter involving other parties, see Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWSC 591 (“Khoury”) and on appeal Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371.
According to the Statement of Claim, the facts are similar to those in Khoury. A Mr Bevitt, who, at the relevant time, it would appear, was an employee of the Defendant, Coffey Projects (Australia) Pty Ltd (Coffey) convinced the Plaintiff and others that if they were to deposit a large sum of American dollars (in Mr Leto’s case, US$600,000, the equivalent at that stage of AU$887,311.45) for one month with the World Humanitarian Aid Foundation, that investment would yield a return of $5,000. It would appear that Mr Leto borrowed his “investment” from a Mr Ange. He made his investment and the money was completely lost.
The evidence filed by the Plaintiff on the current Motion is that the Plaintiff has a son, Vince Leto. Between 2003 and 2008, Vince Leto, together with the Plaintiff’s brother-in-law, Antony Severino, conducted a business through the corporate vehicle Hazeforn Pty Ltd (Hazeforn), a wholesale fruit and vegetable supply…

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.

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Details

Case: [2015] NSWSC 1896
Decision Date: 17 December 2015

CaseChat Overview and Summary

In the case of Leto v Coffey Projects (Australia) Pty Ltd, the dispute involved claims related to an ANSHUN ESTOPPEL principle and a confidentiality agreement. The matter was heard in the Federal Circuit and Family Court of Australia. The plaintiff, Mr Leto, sought to bring a cross-claim against a second defendant, in addition to his claims against the original defendant, Coffey Projects. The original defendant argued that the cross-claim should be barred due to the ANSHUN ESTOPPEL principle, which prevents parties from bringing proceedings that would contradict their conduct in earlier proceedings. Additionally, the plaintiff sought to rely on a document that was subject to a confidentiality agreement, raising questions about whether the court should consider such a document.

The court was required to determine whether the ANSHUN ESTOPPEL principle applied to prevent Mr Leto from bringing the cross-claim against the second defendant. The court also had to decide whether it should consider a document that was subject to a confidentiality agreement. Furthermore, the court had to address an application to strike out the plaintiff's claim for delay or to obtain security for costs.

The court held that the ANSHUN ESTOPPEL principle did not prevent Mr Leto from bringing the cross-claim against the second defendant, as the circumstances of the case did not indicate that he was bound by the conduct of the parties in the earlier proceedings. The court found that the confidentiality agreement did not bar the consideration of the document, as it was not relevant to the issues in the case. The court also dismissed the application to strike out the claim for delay or obtain security for costs, as the plaintiff had not unduly delayed in bringing the proceedings and had provided sufficient evidence to justify the costs. The court's decision allowed Mr Leto to proceed with his cross-claim against the second defendant and consider the document in question.

Orders